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Overview
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CFIUS
must certify its actions to Congress
- To ensure high-level accountability for CFIUS decisions, FINSA requires that
a high-level official of the Treasury Department and at the lead agency certify
to Congress that, for any covered transaction on which CFIUS has concluded action
under section 721, CFIUS has determined that there are no unresolved national security
concerns
- For national security reviews:
Certification must be made at the Assistant Secretary level or above
- For national security investigations:
Certification must made at the Deputy Secretary level or above
- If it is the President who concludes
action, then he must announce his decision publicly
- Foreign
government-controlled transactions
- In addition, in order for CFIUS to conclude action under section 721 for a foreign government-controlled transaction without proceeding beyond a review to an investigation,
the Treasury Department and the lead agency must determine, at the Deputy
Secretary level or above, that the transaction will not impair national security
- Similarly, under sections 721(b)(2)(B)(i)(III) and 721(b)(2)(D)(i), in cases where
the transaction would result in foreign control over critical infrastructure that
could impair national security, and such impairment has not been mitigated during
the review period, CFIUS may conclude action under section 721 without
proceeding beyond a review if the Department of the Treasury and the lead agency
determine, at the Deputy Secretary level or above, that the transaction will not
impair national security
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Section 721(b)(3) Certifications to congress
(A)
Certified notice at completion of review.-
Upon completion of a review under subsection (b) that concludes action under
this section, the chairperson and the head of the lead agency shall transmit
a certified notice to the members of Congress specified in subparagraph
(C)(iii).
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(B)
Certified report at completion of investigation.-
As soon as is practicable after completion of an investigation under
subsection (b) that concludes action under this section, the chairperson and
the head of the lead agency shall transmit to the members of Congress
specified in subparagraph (C)(iii) a certified written report (consistent
with the requirements of subsection (c)) on the results of the
investigation, unless the matter under investigation has been sent to the
President for decision.
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(C)
Certification procedures.- (i) In general.
Each certified notice and report required under subparagraphs (A) and (B),
respectively, shall be submitted to the members of Congress specified in
clause (iii), and shall include --
- (I) a description of the actions taken by the
Committee with respect to the transaction; and
- (II) identification of the determinative factors
considered under subsection (f).
- (ii) Content of certification.
Each certified notice and report required under subparagraphs (A) and (B),
respectively, shall be signed by the chairperson and the head of the lead
agency, and shall state that, in the determination of the Committee, there
are no unresolved national security concerns with the transaction that is
the subject of the notice or report.
- (iii) Members of congress.
Each certified notice and report required under subparagraphs (A) and (B),
respectively, shall be transmitted --
- (I) to the Majority Leader and the Minority
Leader of the Senate;
- (II) to the chair and ranking member of the
Committee on Banking, Housing, and Urban Affairs of the Senate and of any
committee of the Senate having oversight over the lead agency;
- (III) to the Speaker and the Minority Leader of
the House of Representatives;
- (IV) to the chair and ranking member of the
Committee on Financial Services of the House of Representatives and of any
committee of the House of Representatives having oversight over the lead agency;
and
- (V) with respect to covered transactions
involving critical
infrastructure, to the members of the Senate from the State in which the
principal place of business of the acquired United States person is located, and
the member from the Congressional District in which such principal place of
business is located.
- (iv) Signatures; limit on delegation.
- (I) In general.
Each certified notice and report required under subparagraphs (A) and (B),
respectively, shall be signed by the chairperson and the head of the lead
agency, which signature requirement may only be delegated in accordance with
subclause (II).
- (II) Limitation on delegation of certifications.
The chairperson and the head of the lead agency may delegate the signature
requirement under subclause
(I) --
(aa) only to an appropriate employee of the Department of the Treasury (in the
case of the Secretary of the Treasury) or to an appropriate employee of the lead
agency (in the case of the lead agency) who was appointed by the President, by
and with the advice and consent of the Senate, with respect to any notice
provided under paragraph (1) following the completion of a review under this
section; or
(bb) only to a Deputy Secretary of the Treasury (in the case of the Secretary of
the Treasury) or a person serving in the Deputy position or the equivalent
thereof at the lead agency (in the case of the lead agency), with respect to any
report provided under subparagraph (B) following an investigation under this
section.
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Legislative
history
- FINSA
(2007)
amended section 721(b) in its entirety
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Related
Topic Pages |
721(g) Additional Information to Congress; Confidentiality
SEC_CODE_REF_0090001192884
(1)
Briefing requirement on request- The
Committee
shall, upon request from any Member of Congress specified in
subsection (b)(3)(C)(iii), promptly provide briefings on a covered transaction for which all action has concluded under this section, or on
compliance with a mitigation agreement or condition imposed with respect to
such transaction, on a classified basis, if deemed necessary by the
sensitivity of the information. Briefings under this paragraph may be
provided to the congressional staff of such a Member of Congress having
appropriate security clearance.
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(2)
Application of confidentiality provisions.
- (A) In general.--The disclosure of information under this subsection
shall be consistent with the requirements of
subsection (c). Members of
Congress and staff of either House of Congress or any committee of Congress,
shall be subject to the same limitations on disclosure of information as are
applicable under subsection (c).
- (B) Proprietary information.--Proprietary information which can be
associated with a particular party to a covered transaction shall be
furnished in accordance with subparagraph (A) only to a committee of
Congress, and only when the committee provides assurances of
confidentiality, unless such party otherwise consents in writing to such
disclosure.
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Legislative
history- Section 7(a) of FINSA
amended section 721(d) in its entirety
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Related
Topic Pages |
Related Topics
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