On September 14, 2023, the U.S. Department of the Treasury held the annual Committee on Foreign Investment in the United States (“CFIUS”) Conference in Washington, DC. The interagency Committee is tasked with reviewing certain transactions involving foreign investment in the United States and certain real estate transactions by foreign persons to determine the effect of such transactions on U.S. national security. The forum aimed to facilitate dialogue on foreign investment and national security between U.S. Government representatives and stakeholders. Here are five key takeaways:
Balancing Economic Growth and National Security
In her keynote address, Secretary of the Treasury Janet Yellen underscored the importance of an "open investment climate" in the U.S., balanced against the imperatives of national security. CFIUS reviewed 440 transactions in FY 2022, striving to mitigate national security risks while maintaining a favorable investment environment.
Emphasis on Enforcement and Penalties
Assistant Secretary of the Treasury for Investment Security Paul Rosen’s keynote speech emphasized CFIUS’s renewed focus on robust enforcement in cases of non-compliance. With reference to the first-ever CFIUS Enforcement and Penalty Guidelines issued late last year, Assistant Secretary Rosen explained that CFIUS has taken and will continue to take enforcement actions – including civil monetary penalties, remediation plans, and warning letters – to hold transaction parties accountable for violations of CFIUS’s statute – the Defense Production Act – and its implementing regulations. “Violations can occur when companies fail to file mandatory declarations or comply with mitigation agreements, orders, or other conditions,” said Assistant Secretary Rosen. Prior to 2023, CFIUS had only issued two civil monetary penalties. According to Assistant Secretary Rosen, CFIUS has already issued two civil monetary penalties in 2023 and is “on track to have more civil monetary penalties issued this year than we have in our entire history.”
Utilization of Third-Party Monitors and Auditors
Assistant Secretary Rosen spoke about CFIUS’s utilization of, and increasing reliance on, third-party monitors and auditors in some mitigation agreements, especially in connection with complex transactions. Recognizing the “burden that such oversight can impose on parties,” Assistant Secretary Rosen explained that CFIUS “make[s] every effort to deploy [the imposition of monitors] only when necessary to protect national security.” CFIUS has also taken steps to improve its process for utilizing third-party providers, including expanding the pool of monitor and auditor firms working in the CFIUS space and refining the Committee’s own processes for vetting, selecting, and, where appropriate, replacing third-party monitors and auditors.
Focus on Non-Notified Transactions
Though most CFIUS filings are voluntary, some transactions mandate filing. CFIUS is intensifying its efforts to identify and scrutinize "non-notified transactions" that fall under its jurisdiction but haven't been voluntarily declared. Assistant Secretary Rosen announced that the Committee is adding resources “to detect and bring in non-notified transactions,” signaling CFIUS’s commitment to pursuing failure to file cases.
Previewing Future Regulatory Changes
Both Secretary Yellen and Assistant Secretary Rosen highlighted anticipated changes to the CFIUS regulations as well as changes to other legal and regulatory regimes that complement CFIUS’s mission. Assistant Secretary Rosen noted that he expects “that Treasury will be issuing one or more notices of proposed rulemaking” over the course of the next year to amend the CFIUS regulations. Specifically, the changes aim to enhance efficiency, update penalty and enforcement authorities, and improve tools for dealing with non-notified transactions.