The Committee on Foreign Investment in the United States: debunking the CMSM lies on the Uranium One deal

I totally disdain conjecture without details, facts & information. This week, as the Russian Investigation continues & team Trump, his Republican confederates & the Conservative Mainstream Media (CMSM) drives the alternative desire to push the narrative to the Republican’s favorite target, Hillary Clinton (the focus on her is as if she won the Presidency & they are working to impeach her, but that’s for another article). One part of the narrative is the Uranium One sale in 2010. The Trump push has been that Pres. Clinton (tongue in cheek) made a quid pro quod decision to personally sale Uranium One to JSC Atomredmetzoloto, or ARMZ, the mining arm of Rosatom, the Russian nuclear energy agency. Uranium One has two licensed mining operations in Wyoming that amount to about “20 percent of the currently licensed uranium in-situ recovery production capacity in the U.S.” They say that she did this in exchange for speaking fees for Bill Clinton & donations to the Clinton Foundation. This lie has multiple parts of deceitful information, but the major portion of the lie is that Pres. Clinton, independent of anyone else, sold this private Canadian Company to the Russia Government.

Well, there is a little thing called The Committee on Foreign Investment in the United States (CFIUS) (https://www.treasury.gov/resource-center/international/Pages/Committee-on-Foreign-Investment-in-US.aspx) which reviews and approves all transactions that could result in a US. Business being owned by a foreign person. This agency sits under the Department of Treasury (I have included a link to their website so you can study this for yourself). That being said, I want to offer, for your consideration, the details about the Committee on Foreign Investment in the United States (CFIUS), to make your own assessment if this sale was as the CMSM describes it as (If you’re not sure how they are covering it, please go to Fox News, NewsMax, Breitbart, Alex Jones, Sinclair Broadcasting, Laura Ingraham, Ann Coulter, the Washington Times, Washington Examiner, New York Post, Gateway Pundit, among others) as a personal deal between Pres. Clinton & Russia or what it really is, a normal transaction with multiple agency Federal Government oversight.

The Committee on Foreign Investment in the United States (CFIUS)

CFIUS is an inter-agency committee authorized to review transactions that could result in control of a U.S. business by a foreign person (“covered transactions”), in order to determine the effect of such transactions on the national security of the United States. CFIUS operates pursuant to section 721 of the Defense Production Act of 1950, as amended by the Foreign Investment and National Security Act of 2007 (FINSA) (section 721) and as implemented by Executive Order 11858, as amended, and regulations at 31 C.F.R. Part 800.

The CFIUS process has been the subject of significant reforms over the past several years. These include numerous improvements in internal CFIUS procedures, enactment of FINSA in July 2007, amendment of Executive Order 11858 in January 2008, revision of the CFIUS regulations in November 2008, and publication of guidance on CFIUS’s national security considerations in December 2008. Further information about each of these reforms is available via the links below.

Process Overview

Prior to filing a voluntary notice, parties may consult with CFIUS or submit a draft notice, as described in the Filing Instructions section of this website, to ensure that the review will proceed as efficiently as possible. The CFIUS process generally begins formally when parties to a proposed or pending transaction jointly file a voluntary notice with CFIUS containing information required by § 800.402 of the regulations. Upon receiving the notice, the Staff Chairperson will promptly determine whether the notice is complete and satisfies the requirements stated in the regulations. If the notice is complete, the Staff Chairperson will circulate the notice to all CFIUS members. A review period of up to 30 days begins on the next business day.

During the review period, CFIUS members examine the transaction in order to identify and address, as appropriate, any national security concerns that arise as a result of the transaction. During the review period, CFIUS members, through the Department of the Treasury as Committee Chair, may request additional information from the parties. Parties must respond to such follow-up requests within three business days of the request or within a longer time frame if the parties so request in writing and the Staff Chairperson grants that request in writing.

CFIUS concludes action on the preponderant majority of transactions during or at the end of the initial 30-day review period. In certain circumstances defined in section 721 and at § 800.503 of the regulations, CFIUS may initiate a subsequent investigation, which must be completed within 45 days. In certain circumstances described at section 6(c) of Executive Order 11858, as amended, and § 800.506 of the regulations, CFIUS may also refer a transaction to the President for decision. In such case, section 721 requires the President to announce a decision with respect to a transaction within 15 days of CFIUS’s completion of the investigation.

Parties to a transaction may request withdrawal of their notice at any time during the review or investigation stages. Such a request must be approved by CFIUS and may include conditions on the parties, such as requirements that they keep CFIUS informed of the status of the transaction or that they re-file the transaction at a later time. CFIUS tracks withdrawn transactions.

CFIUS may also reject voluntary notices in certain circumstances, such as when the voluntary notice is not complete, the parties do not respond to follow-up information requests within the required time frame, there is a material change in the transaction, or information comes to light that contradicts material information provided in the notice by the parties.

If CFIUS finds that the covered transaction does not present any national security risks or that other provisions of law provide adequate and appropriate authority to address the risks, then CFIUS will advise the parties in writing that CFIUS has concluded all action under section 721 with respect to such transaction.

If CFIUS finds that a covered transaction presents national security risks and that other provisions of law do not provide adequate authority to address the risks, then CFIUS may enter into an agreement with, or impose conditions on, parties to mitigate such risks or may refer the case to the President for action.

Where CFIUS has completed all action with respect to a covered transaction or the President has announced a decision not to exercise his authority under section 721 with respect to the covered transaction, then the parties receive a “safe harbor” with respect to that transaction, as described in § 800.601 of the regulations and section 7(f) of Executive Order 11858, as amended.

Parties to a transaction that choose to file notice of the transaction with CFIUS must do so in accordance with the procedures stated in the regulations at § 800.401 of the regulations. Such notice must include the information required in the regulations at § 800.402.

This website outlines the basic requirements for voluntary notices and other information that may be useful to parties, but does not create any rights for, or confer any rights on, any person, nor operate to bind the U.S. Government. Parties must consult the regulations to ensure that the notice meets all legal requirements for acceptance. Parties may also contact the Staff Chairperson with questions.

Composition of CFIUS

The Secretary of the Treasury is the Chairperson of CFIUS, and notices to CFIUS are received, processed, and coordinated at the staff level by the Staff Chairperson of CFIUS, who is the Director of the Office of Investment Security in the Department of the Treasury.

The members of CFIUS include the heads of the following departments and offices:

1. Department of the Treasury (chair)

2. Department of Justice

3. Department of Homeland Security

4. Department of Commerce

5. Department of Defense

6. Department of State

7. Department of Energy

8. Office of the U.S. Trade Representative

9. Office of Science & Technology Policy

The following offices also observe and, as appropriate, participate in CFIUS’s activities:

1. Office of Management & Budget

2. Council of Economic Advisors

3. National Security Council

4. National Economic Council

5. Homeland Security Council

The Director of National Intelligence and the Secretary of Labor are non-voting, ex-officiomembers of CFIUS with roles as defined by statute and regulation.

Filing Instructions

Parties to a transaction that choose to file notice of the transaction with CFIUS must do so in accordance with the procedures stated in the regulations at § 800.401 of the regulations. Such notice must include the information required in the regulations at § 800.402.

This website outlines the basic requirements for voluntary notices and other information that may be useful to parties, but does not create any rights for, or confer any rights on, any person, nor operate to bind the U.S. Government. Parties must consult the regulations to ensure that the notice meets all legal requirements for acceptance. Parties may also contact the Staff Chairperson with questions.

1. Pre-Notice Consultations and Draft Notices

CFIUS does not issue advisory opinions as to whether a transaction might raise national security concerns or be considered a covered transaction subject to review. Parties to a transaction, however, are encouraged to consult with CFIUS in advance of filing a notice and/or to file with CFIUS a draft notice or other appropriate documents describing the transaction. Such steps both aid the Committee’s understanding of the transaction and provide an opportunity for the Committee to request additional information to be included in the actual notice. Any such pre-notice consultation should take place, or any draft notice should be provided, at least five business days before the filing of a voluntary notice. All information and documentary material made available to the Committee as part of pre-notice consultations is accorded confidential treatment pursuant to § 800.702 of the regulations.

2. Filing a Notice with CFIUS

CFIUS will not accept a notice until it has received the notice in both electronic and hard-copy forms.

All files submitted electronically must be no larger than five megabytes (5MB) in size to facilitate handling by CFIUS. Larger files must be broken down into multiple files of 5MB or less. Please also provide a hyperlink to any documents over 5MB that are publicly available on the Internet.

Electronic notices should be sent to: CFIUS@treasury.gov

Hard-copy notices should be sent to:

Mr. Stephen Hanson
Staff Chairperson
Committee on Foreign Investment in the United States
Office of Investment Security
Department of Treasury
1500 Pennsylvania Avenue, N.W., Room 5221
Washington, DC 20220

Required Contents of a Notice

The regulations, at 31 C.F.R. § 800.402, specify the required contents of a voluntary notice. See Regulations.

3. CFIUS Timetable

CFIUS staff distributes a filed notice to all CFIUS agencies only after having determined that it meets all requirements of § 800.402 of the regulations and, accordingly, is complete. The next business day is the first day of the review period. The review period ends no later than the thirtieth calendar day after it has commenced, or if the thirtieth day is not a business day, no later than the next business day after the thirtieth day. Upon accepting a notice, the Staff Chairperson will advise the parties in writing of the date that the review period started and the date on which the review period will end. Similarly, the Staff Chairperson or other Treasury Department official will advise the parties in writing of the outcome of the CFIUS review and, if necessary, investigation.

4. Certifications

Parties to a transaction that file a voluntary notice with CFIUS are required in every case to provide two types of certifications: A certification at the time of filing the voluntary notice that covers the contents of the voluntary notice (§ 800.402(l)) and a certification at the conclusion of a review or investigation covering all additional information filed subsequent to the original notice (§ 800.701(d)).

The final certification will be requested several days before the end of the review or investigation and should be submitted at least one or two days before the anticipated closing date of the review or investigation. A review or investigation cannot be closed without the certification, and failure to provide a final certification by Day 30 of the review or Day 45 of the investigation is grounds for rejection of the notice.

The requirements for the certifications, including the contents and the person(s) who may sign the certification, are stated in the regulations at § 800.202. Following are sample certifications:

Legislation

The authority of the President to suspend or prohibit certain transactions was initially provided by the addition of section 721 to the Defense Production Act of 1950 by a 1988 amendment commonly known as the Exon-Florio amendment. The Foreign Investment and National Security Act of 2007 (FINSA), which became effective October 24, 2007, substantially revised section 721. Section 721 of the Defense Production Act of 1950 is codified at 50 U.S.C. App. 2170.

Additional references:

Executive Orders

Executive Order 11858, wholly amended by Executive Order 13456 on January 23, 2008, defines the relationship among CFIUS agencies and between CFIUS and the President.

Historical references:
Executive Order 11858 was first issued in 1975 and has been amended several times since then by the executive orders listed below. The version linked above reflects Executive Order 11858 as currently in effect, so the documents listed below are provided solely for historical reference.

Regulations

The regulations governing the CFIUS review process are codified at 31 C.F.R. Part 800. The regulations were wholly revised by the final rule published at 73 Fed. Reg. 70702 (Nov. 21, 2008), which became effective on December 22, 2008. All voluntary notices filed on or after the effective date must comply with the information requirements at § 800.402 of the new regulations.

With respect to certain determinations in a small number of cases, as provided at §800.103 of the new regulations, the old regulations will continue to apply.

Guidance

The U.S. Department of the Treasury, as CFIUS chair, published Guidance Concerning the National Security Review Conducted by CFIUS in the Federal Register on December 8, 2008.

The guidance describes: the purpose and nature of the CFIUS process, how CFIUS analyzes whether a transaction poses national security risks, national security factors identified by FINSA, and the types of transactions that CFIUS has reviewed that have presented national security considerations.

Reports and Tables

Date

Title

​09/2017

Annual Report to Congress for CY 2015

​02/2016

Annual Report to Congress for CY 2014

02/2015

Annual Report to Congress for CY 2013

12/2013

Annual Report to Congress for CY 2012

12/2012​

Annual Report to Congress for CY 2011

12/2011

Annual Report to Congress for CY 2010

11/2010

Annual Report to Congress for CY 2009

11/2009

2009 Annual Report to Congress

12/2008

2008 Annual Report to Congress

Tables

Covered Transactions, Withdrawals, and Presidential Decisions 2008–2012
Covered Transactions, Withdrawals, and Presidential Decisions 2014–2016

Speeches and Other News

04/01/2016 — Remark by Treasury Deputy Assistant Secretary for Investment Secuirty Aimen Mir at the Council on foreign Relations, Washington,D.C.

5/19/2011 — Remarks by Deputy Secretary Neal S. Wolin at the Singapore Exchange

11/14/2011 — Remarks by Assistant Secretary Marisa Lago on “America’s Continued Commitment to Open Investment

Committee on Foreign Investment in U.S. (CFIUS)

What are the most common reasons for notices being determined to be incomplete?

Examples of deficiencies commonly resulting in a determination that a notice is incomplete include:

a. Unclear description of business lines — the notice must provide a clear and detailed account of each companies’ products and services;

b. Unclear description of the transaction — the notice must clearly describe all entities involved in the transaction and the nature and structure of the transaction; or

c. Absence of a certification — all notices must be certified correctly (in accordance with the above templates and § 800.202 of the regulations) to be deemed complete.

What steps can be taken with respect to information required by § 800.402 to further facilitate CFIUS review?

Suggestions include:

a. Section 800.402(j)(1) requires submission of organizational charts showing control and ownership of the foreign person that is a party to the transaction. CFIUS’s review would be aided if the parties provide such charts for the U.S. business and if the charts for the U.S. business and the foreign person diagram the ownership chains for the acquirer and target before and after the transaction being notified to CFIUS. These should be as extensive and detailed as possible.

b. Sections 800.402(c)(1)(iii) and (v) require submission of information related to the foreign person and its parents. CFIUS’s review would be aided if the notice identifies whether the actual party in interest is the party to the transaction or one of the parents of the party to the transaction. CFIUS does not consider special purpose vehicles, wholly-owned subsidiaries established for the sole purpose of the transaction, or other shell companies to be the actual parties in interest in a transaction.

c. Sections 800.402(c)(3)(iii) and (iv) require information regarding certain United States Government contracts. Parties are advised to update and verify United States Government contact information for such contracts. Private sector entities not party to the notice are not acceptable points-of-contact for contracts in question.

d. Filers should ensure that all files in the electronic version of a notice are less than five megabytes (5MB) in size.

What steps, though not required for a notice to be determined complete, may facilitate CFIUS review?

a. CFIUS agencies have found it very helpful in the past for filing companies to provide the following additional information, even if the activity is not the primary focus of their commercial operations. CFIUS often requests this information after a voluntary notice has been accepted if it was not included in the initial filing.

i. Cyber systems, products, services: Identify whether the U.S. business being acquired develops or provides cyber systems, products, or services, including:

§ Business systems used to manage or support common business processes and operations (for example, enterprise resource planning, e-commerce, email, and database systems); control systems used to monitor, assess, and control sensitive processes and physical functions (for example, supervisory control, data acquisition, process and distributed control systems); safety, security, support, and other specialty systems (for example, fire, intrusion detection, access control, people mover, and heating, ventilating, and air conditioning systems); or

§ (ii) Telecommunications and/or Internet or similar systems, products or services.

ii. Natural resources: Identify whether the U.S. business being acquired processes natural resources and material or produces and transports energy, and the amount processed, produced, or transported annually.

b. Discussion in the notice of the business rationale for the transaction may be useful.

c. The regulations require parties to provide information regarding any other applicable national security-related regulatory authorities, such as the ITAR, EAR, and NISPOM. Some of the regulatory review processes under these authorities may have longer deadlines than the CFIUS process, and parties to transactions affected by these other reviews may wish to start or complete these processes prior to submitting a voluntary notice to CFIUS under section 721.

How can parties accurately and completely report all classified contracts as required by §800.402(c)(3)(iii)?

The Notice should identify all classified contracts, subcontracts, purchase orders, lease agreements, service agreements, etc. (“classified contracts”), that contain a “Security Requirements Clause” (FAR 52.204–2 or similar clause) or include a Contract Security Classification Specification (DD Form 254). The clause identifies the contract as involving classified information, and the DD 254 provides classification guidance. Therefore, parties should report each contract that contains a Security Requirements Clause, has a DD Form 254, requires or will require access to classified information by a contractor or his or her employees in the performance of the contract, or requires the contractor or its personnel to have security clearances. Note that a contract may be a classified contract (in that the nature of the subject goods or services to be performed under the contract are classified) even though the contract document itself is not classified.

Will Day 1 of the 30-day review be the day after I submit the Notice?

Not necessarily. Pursuant to §800.502(b), Day 1 is the date on which the Staff Chairperson accepts a voluntary notice, which occurs the next business day after the Staff Chairperson has: (1) determined that the notice complies with §800.402 and (2) disseminated the notice to all members of the Committee. The time that it takes for the Staff Chairperson to determine that the notice complies with §800.402 after it has been submitted by the parties depends upon a variety of factors, including the notice itself and whether parties have submitted a draft notice before submitting the formal notice.

I'm a Father, 10th generation American (family roots to South Carolina, 1725 roughly), Political, Public Policy, Economic Theory & Data Analytics SME.