CFIUS: Factors Considered

Overview

Section 721(f) sets forth the "factors to be considered in a CFIUS review or investigation

_____

Statute: Section 721(f) Factors to be considered

Factors to be considered
    For purposes of this section, the President or the
    Presidents designee may, taking into account the
    requirements of national security, consider

(1) domestic production needed for projected national defense requirements,
(2) the capability and capacity of domestic industries to meet national defense requirements, including the availability of human resources, products, technology, materials, and other supplies and services,
(3) the control of domestic industries and commercial activity by foreign citizens as it affects the capability and capacity of the United States to meet the requirements of national security,
(4) the potential effects of the proposed or pending transaction on sales of military goods, equipment, or technology to any country

(A) identified by the Secretary of State
(i) under section 6(j) of the Export Administration Act of 1979 [section 2405 (j) of this Appendix], as a country that supports terrorism;
(ii) under section 6(l) of the Export Administration Act of 1979 [section 2405 (l) of this Appendix], as a country of concern regarding missile proliferation; or
(iii) under section 6(m) of the Export Administration Act of 1979 [section 2405 (m) of this Appendix], as a country of concern regarding the proliferation of chemical and biological weapons;
(B) identified by the Secretary of Defense as
posing a potential regional military threat to the
interests of the United States; or'
(C) listed under section 309(c) of the Nuclear Non-Proliferation Act of 1978 [42 U.S.C. 2139a (c)] on the "Nuclear Non-Proliferation-Special Country List" (15 C.F.R. Part 778, Supplement No. 4) or any successor list;

(5) the potential effects of the proposed or pending transaction on United States international technological leadership in areas affecting United States national security;
(6) the potential national security-related effects on
United States critical infrastructure, including major energy assets;
(7) the potential national security-related effects on United States critical technologies;
(8) whether the covered transaction is a foreign government-controlled transaction, as determined under subsection (b)(1)(B);
(9) as appropriate, and particularly with respect to transactions requiring an investigation under subsection (b)(1)(B), a review of the current assessment of --

(A) the adherence of the subject country to nonproliferation control regimes, including treaties and multilateral supply guidelines, which shall draw on, but not be limited to, the annual report on 'Adherence to and Compliance with Arms Control, Nonproliferation and Disarmament Agreements and Commitments' required by section 403 of the Arms Control and Disarmament Act;
(B) the relationship of such country with the United States, specifically on its record on cooperating in counter-terrorism efforts, which shall draw on, but not be limited to, the report of the President to Congress under section 7120 of the Intelligence Reform and Terrorism Prevention Act of 2004; and
(C) the potential for transshipment or diversion of technologies with military applications, including an analysis of national export control laws and regulations;

(10) the long-term projection of United States requirements for sources of energy and other critical resources and material; and
(11) such other factors as the President or the Committee may determine to be appropriate, generally or in connection with a specific review or investigation.

Legislative history

Section 4 of FINSA (2007):

Deleted "among other factors" from the end of the introductory clause
Added subparagraph (4)(B)
Added paragraphs 6 to 11

// This display the document title in the html page document.write(document.title);