CFIUS: Presidential Authority

Overview

Covers Presidential authority

Section 721(d) Action by the President

Action by the President.

(1) In general. Subject to paragraph (4), the President may take such action for such time as the President considers appropriate to suspend or prohibit any covered transaction that threatens to impair the national security of the United States.
(2) Announcement by the president. The President shall announce the decision on whether or not to take action pursuant to paragraph (1) not later than 15 days after the date on which an investigation described in subsection (b) is completed.
(3) Enforcement. The President may direct the Attorney General of the United States to seek appropriate relief, including divestment relief, in the district courts of the United States, in order to implement and enforce this subsection.
(4) Findings of the president. The President may exercise the authority conferred by paragraph (1), only if the President finds that --

(A) there is credible evidence that leads the President to believe that the foreign interest exercising control might take action that threatens to impair the national security; and
(B) provisions of law, other than this section and the International Emergency Economic Powers Act, do not, in the judgment of the President, provide adequate and appropriate authority for the President to protect the national security in the matter before the President.

(5) Factors to be considered. For purposes of determining whether to take action under paragraph (1), the President shall consider, among other factors each of the factors described in subsection (f), as appropriate.

Legislative history

Related Topic Pages

31 CFR 800.601 Finality of actions under section 721

(a) ___________

All authority available to the President or the Committee under section 721(d), including divestment authority, shall remain available at the discretion of the President with respect to covered transactions proposed or pending on or after the effective date. Such authority shall not be exercised if:

(1) The Committee, through its Staff Chairperson, has in writing advised a party (or the parties) that a particular transaction, with respect to which voluntary notice has been filed is not a covered transaction;
(2) The parties to the transaction have received written advice pursuant to Sec. 800.504 or Sec. 800.506(d) that the Committee has concluded all action under section 721 with respect to the covered transaction; or
(3) The President has previously announced, pursuant to section 721(d), his decision not to exercise his authority under section 721 with respect to the covered transaction.

(b) ___________

Notwithstanding any other provision in the regulations in this part, and in addition to such other penalties as may be provided by law, in any case where one or more parties to a covered transaction submits false or misleading material information to the Committee, or omits material information, including relevant information that is supplied in response to provisions of Sec. 800.402; that is requested specifically by the President or the Committee in the course of a review, investigation, or Presidential determination; or that is actually provided by a party:

(1) The Committee may, consistent with sections 721(b)(1)(D)(ii) and (b)(1)(F), reopen its review of the transaction and exercise all its original authorities under section 721 with respect to the transaction, including revising any recommendation or recommendations submitted to the President; and
(2) The President may take action under section 721 for such time as the President deems appropriate with respect to the covered transaction, and may revise actions earlier taken.

The Committee will generally not consider as material minor inaccuracies, omissions, or changes relating to financial or commercial factors not having a bearing on national security.

(d) ___________

Divestment or other relief under section 721 shall not be available with respect to transactions that were completed prior to the effective date.

Proposal release
Section 800.601. This section has been substantially shortened to delete provisions pertaining to the President's authority that are not necessary to include in regulation because they are already addressed in FINSA.

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