Office of Investment Security; Guidance Concerning the National Security Review Conducted by the Committee on Foreign Investment in the United States, 74567-74572 [E8-28791]

Agencies

• DEPARTMENT OF THE TREASURY
• Department of Treasury

[Federal Register Volume 73, Number 236 (Monday, December 8, 2008)]
[Notices]
[Pages 74567-74572]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28791]


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DEPARTMENT OF THE TREASURY


Office of Investment Security; Guidance Concerning the National 
Security Review Conducted by the Committee on Foreign Investment in the 
United States

AGENCY: Department of the Treasury.

ACTION: Notice.

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SUMMARY: This notice provides guidance to U.S. businesses and foreign 
persons that are parties to transactions that are

[[Page 74568]]

covered by section 721 of the Defense Production Act of 1950, as 
amended by the Foreign Investment and National Security Act of 2007, 
and the regulations at 31 CFR part 800. The guidance is issued pursuant 
to section 721(b)(2)(E), which requires the Chairperson of the 
Committee on Foreign Investment in the United States to publish 
guidance regarding the types of transactions that it has reviewed and 
that have presented national security considerations.

FOR FURTHER INFORMATION CONTACT: Nova Daly, Deputy Assistant Secretary, 
U.S. Department of the Treasury, 1500 Pennsylvania Avenue, NW., 
Washington, DC 20220, telephone: (202) 622-2752, e-mail: 
Nova.Daly@do.treas.gov; or Welby Leaman, Senior Advisor, telephone: 
(202) 622-0099, e-mail: Welby.Leaman@do.treas.gov.

I. Legislative Mandate for Guidance

    Consistent with section 721(b)(2)(E) of the Defense Production Act 
of 1950 (``section 721'') (50 U.S.C. App. 2170), as amended by the 
Foreign Investment and National Security Act of 2007 (``FINSA''), the 
U.S. Department of the Treasury, as the chair of the Committee on 
Foreign Investment in the United States (``CFIUS''), is issuing the 
following guidance regarding the types of transactions that CFIUS has 
reviewed and that have presented national security considerations.\1\
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    \1\ ``National security considerations'' are facts and 
circumstances, with respect to a transaction, that have potential 
national security implications and that therefore are relevant for 
CFIUS to analyze in determining whether a transaction threatens to 
impair U.S. national security, i.e., whether the transaction poses 
``national security risk.'' The term ``national security concerns'' 
is used in this document to describe those circumstances where CFIUS 
(or any CFIUS member) has unresolved questions about whether the 
transaction poses national security risk or where CFIUS (or any 
CFIUS member) has identified national security risks and those risks 
have not yet been mitigated.
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    To place this guidance in context, the following three sections 
provide an overview of the purpose and nature of the foreign investment 
review process that CFIUS administers. This guidance does not create 
any rights for, or confer any rights on, any person, nor operate to 
bind the U.S. Government.

II. Purpose and Nature of the CFIUS Process

A. Purpose of the CFIUS Process

    The United States has a longstanding commitment to welcoming 
foreign investment. In May 2007, the President's Statement on Open 
Economies reaffirmed that commitment, recognizing that ``our prosperity 
and security are founded on our country's openness.'' CFIUS carries out 
its responsibilities within the context of this open investment policy. 
In the preamble to FINSA, Congress states that the purpose of the Act 
is ``[t]o ensure national security while promoting foreign investment 
and the creation and maintenance of jobs [and] to reform the process by 
which such investments are examined for any effect they may have on 
national security.''
    The rules governing the CFIUS process are set forth in section 721; 
in Executive Order 11858, as amended most recently by Executive Order 
13456 of January 23, 2008 (``Executive Order 11858''); and in 
regulations found at 31 CFR part 800, as amended most recently by the 
Final Rule published at 73 FR 70702 (Nov. 21, 2008) (``Regulations''). 
These provisions establish CFIUS and provide the President and CFIUS 
with the authority to review any ``covered transaction,'' defined in 
the Regulations as ``any transaction that is proposed or pending after 
August 23, 1988, by or with any foreign person, which could result in 
control of a U.S. business by a foreign person.'' \2\ The purpose of 
the national security reviews conducted by CFIUS is to allow CFIUS to 
identify and address any national security risk that arises as a result 
of a covered transaction, and, in the circumstances described in Sec.  
800.506(b) of the Regulations, to request that the President determine 
whether to suspend or prohibit a covered transaction or take other 
action.
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    \2\ The terms ``U.S. business'' and ``foreign person'' are 
defined at 31 CFR 800.226 and 800.216, respectively.
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B. Nature of the CFIUS Process

1. CFIUS Reviews Are Limited to National Security Considerations
    CFIUS focuses solely on any genuine national security concerns 
raised by a covered transaction, not on other national interests. The 
requirements, described below, that CFIUS or the President must satisfy 
in order to take action with respect to a covered transaction, 
demonstrate this narrow focus on national security alone.
    Section 721 requires CFIUS to complete a review of a covered 
transaction within a 30-day period. CFIUS concludes action on the vast 
majority of transactions within this initial 30-day review period. In 
limited cases, following a review, CFIUS may initiate an investigation, 
which it must complete within a subsequent 45-day period. CFIUS 
initiates an investigation only where: (1) CFIUS or a member of CFIUS 
believes that the transaction threatens to impair the national security 
of the United States and that threat has not been mitigated; (2) an 
agency designated by the Department of the Treasury as a lead agency 
recommends, and CFIUS concurs, that an investigation be undertaken; (3) 
the transaction is a foreign government-controlled transaction; or (4) 
the transaction would result in foreign control of any critical 
infrastructure of or within the United States, if CFIUS determines that 
the transaction could impair national security and that risk has not 
been mitigated. With respect to transactions described in (3) and (4) 
above, CFIUS would not initiate an investigation if the Treasury 
Department and any lead agency it has designated determine, at the 
Deputy Secretary level or higher, that the transaction will not impair 
the national security of the United States.\3\
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    \3\ The terms ``foreign government-controlled transaction'' and 
``critical infrastructure'' are defined at 31 CFR 800.214 and 
800.208, respectively.
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    CFIUS concludes action under section 721 on a covered transaction 
only if it has determined that there are no unresolved national 
security concerns. That determination must be certified to Congress 
after CFIUS concludes action. CFIUS is authorized to enter into or 
impose, and enforce, agreements or conditions to mitigate any national 
security risk posed by the covered transaction. Section 721 and 
Executive Order 11858, however, contain important conditions on CFIUS's 
exercise of this authority. First, before CFIUS may pursue a risk 
mitigation agreement or condition, the agreement or condition must be 
justified by a written analysis that identifies the national security 
risk posed by the covered transaction and sets forth the risk 
mitigation measures that the CFIUS member(s) preparing the analysis 
believe(s) are reasonably necessary to address the risk. CFIUS must 
agree that risk mitigation is appropriate and must approve the proposed 
mitigation measures. Second, CFIUS may pursue a risk mitigation measure 
intended to address a particular risk only if provisions of law other 
than section 721 do not adequately address the risk. Such other laws 
include, for example, the International Traffic in Arms Regulations 
(``ITAR''), Export Administration Regulations (``EAR''), and the 
National Industrial Security Program Operating Manual (``NISPOM''). 
Accordingly, for example, if the NISPOM provides adequate authority to 
address the risk posed by a transaction--e.g., the possibility in a

[[Page 74569]]

particular case that a foreign government may use a foreign company to 
obtain classified government information concerning systems critical to 
U.S. national defense--then CFIUS would not pursue its own risk 
mitigation measures under section 721 to address that risk.\4\
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    \4\ In addition, pursuant to section 7(c) of Executive Order 
11858, CFIUS may not, except in extraordinary circumstances, require 
that a party to a transaction recognize, state its intent to comply 
with, or consent to the exercise of any authorities under existing 
provisions of law.
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    Only the President has the authority to suspend or prohibit a 
covered transaction. Pursuant to section 6(c) of Executive Order 11858, 
CFIUS refers a covered transaction to the President if CFIUS or any 
member of CFIUS recommends suspension or prohibition of the 
transaction, or if CFIUS otherwise seeks a Presidential determination 
on the transaction.
    In order to exercise the authority to suspend or prohibit a covered 
transaction under section 721, the President is required to make two 
findings: (1) That 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 (2) that 
provisions of law, other than section 721 and the International 
Emergency Economic Powers Act (``IEEPA''), do not, in the judgment of 
the President, provide adequate and appropriate authority for the 
President to protect the national security.
2. The CFIUS Process Is Based on a Voluntary Notice System
    CFIUS administers a voluntary notice system, allowing parties to a 
transaction to decide whether to initiate a CFIUS review by filing a 
voluntary notice under section 721. This distinguishes the CFIUS 
process from investment screening used in some countries, where all 
transactions that meet specified value thresholds or other criteria are 
subject to mandatory review by government agencies.
    To reassure parties that choose to file voluntarily with CFIUS that 
the sensitive and proprietary business information that they submit to 
CFIUS will be protected, section 721(c) prohibits CFIUS from disclosing 
to the public any information filed with CFIUS under section 721, 
except in certain legal proceedings. This includes the identity of 
filers and details of a notified transaction, as well as information 
provided to CFIUS in connection with a transaction never formally 
notified to CFIUS.
    In making their decision about whether to submit a voluntary notice 
of a transaction to CFIUS, parties to a transaction may wish to 
consider whether their transaction could present national security 
considerations, since CFIUS focuses solely on national security. A 
covered transaction that has been notified to CFIUS, and on which CFIUS 
has concluded action under section 721 after determining that there 
were no unresolved national security concerns, qualifies for a ``safe 
harbor,'' as described in Sec.  800.601 of the Regulations and section 
7(f) of Executive Order 11858. Thus, subject to the terms of the safe 
harbor and any mitigation agreement or conditions imposed by CFIUS, the 
transaction can proceed without the possibility of subsequent 
suspension or prohibition under section 721. A covered transaction that 
CFIUS has not reviewed and cleared without objection does not qualify 
for the safe harbor, and CFIUS has the authority to initiate review of 
the transaction on its own, even after the transaction has been 
concluded, which CFIUS may choose to do if it believes the transaction 
presents national security considerations.

III. National Security Considerations

A. The Process for Analyzing National Security Risk

    Section 721 requires CFIUS to review covered transactions notified 
to it ``to determine the effects of the transaction[s] on the national 
security of the United States,'' but does not define ``national 
security,'' other than to note that the term includes issues relating 
to homeland security. Instead, section 721 provides an illustrative 
list of factors, listed below, for CFIUS and the President to consider 
in assessing whether the transaction poses national security risks.
    CFIUS considers the national security factors identified in section 
721 and all other national security factors that are relevant to a 
covered transaction it is reviewing. In the context of these factors, 
CFIUS identifies all national security considerations (i.e., facts and 
circumstances that have potential national security implications) in 
order to assess whether the transaction poses national security risk 
(i.e., whether the foreign person that exercises control over the U.S. 
business as a result of the transaction might take action that 
threatens to impair U.S. national security). In conducting its analysis 
of whether the transaction poses national security risk, CFIUS assesses 
whether a foreign person has the capability or intention to exploit or 
cause harm (i.e., whether there is a threat) and whether the nature of 
the U.S. business, or its relationship to a weakness or shortcoming in 
a system, entity, or structure, creates susceptibility to impairment of 
U.S. national security (i.e., whether there is a vulnerability). 
National security risk is a function of the interaction between threat 
and vulnerability, and the potential consequences of that interaction 
for U.S. national security. This national security risk assessment is 
conducted based on information provided by the parties, public sources, 
and government sources, including a classified National Security Threat 
Assessment that, as required by section 721, the Director of National 
Intelligence prepares for CFIUS within twenty days after a notice of a 
transaction is accepted.

B. Statutory List of National Security Factors

    Section 721(f) provides the following illustrative list of factors 
for consideration by CFIUS and the President in determining whether a 
covered transaction poses national security risk:
     The potential effects of the transaction on the domestic 
production needed for projected national defense requirements.
     The potential effects of the transaction on 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.
     The potential effects of a foreign person's control of 
domestic industries and commercial activity on the capability and 
capacity of the United States to meet the requirements of national 
security.
     The potential effects of the transaction on U.S. 
international technological leadership in areas affecting U.S. national 
security.
     The potential national security-related effects on U.S. 
critical technologies.
     The potential effects on the long-term projection of U.S. 
requirements for sources of energy and other critical resources and 
material.
     The potential national security-related effects of the 
transaction on U.S. critical infrastructure, including [physical 
critical infrastructure such as] major energy assets.
     The potential effects of the transaction on the sales of 
military goods, equipment, or technology to countries that present 
concerns related to terrorism; missile proliferation;

[[Page 74570]]

chemical, biological, or nuclear weapons proliferation; or regional 
military threats.
     The potential that the transaction presents for 
transshipment or diversion of technologies with military applications, 
including the relevant country's export control system.
     Whether the transaction could result in the control of a 
U.S. business by a foreign government or by an entity controlled by or 
acting on behalf of a foreign government.
     The relevant foreign country's record of adherence to 
nonproliferation control regimes and record of cooperating with U.S. 
counterterrorism efforts.
    Section 721 also provides that CFIUS may consider any other factors 
that the Committee finds appropriate in determining whether a 
transaction poses national security risk.

IV. Types of Transactions That CFIUS Has Reviewed and That Have 
Presented National Security Considerations

    As discussed above, CFIUS analyzes the particular facts and 
circumstances of each transaction it reviews in order to identify what 
national security considerations, if any, are presented by the 
transaction. Thus, while the guidance provided in this section is drawn 
from CFIUS's extensive experience in reviewing voluntary notices 
regarding foreign investment transactions both prior and subsequent to 
the enactment of FINSA, it is necessarily illustrative and does not 
purport to describe all national security considerations that CFIUS may 
identify and analyze in reviewing a transaction. Accordingly, this 
discussion does not provide comprehensive guidance on all types of 
covered transactions that have presented national security 
considerations.
    Furthermore, the fact that a transaction presents national security 
considerations does not mean that CFIUS will necessarily determine that 
the transaction poses national security risk. This guidance does not 
identify the types of transactions that pose national security risk, 
and it should not be used for that purpose. In addition, this guidance 
should not be interpreted to suggest that the U.S. Government 
encourages or discourages the types of transactions described in this 
section.
    The national security considerations presented by transactions that 
CFIUS has reviewed pertain to one or both of the following: (1) The 
nature of the U.S. business over which foreign control is being 
acquired, and (2) the nature of the foreign person that acquires 
control over a U.S. business. Again, this does not mean that a 
transaction that corresponds to one or the other, or both, of these 
categories was necessarily determined by CFIUS to pose national 
security risk, but it does mean that the facts and circumstances 
surrounding the transaction implicated national security factors that 
CFIUS considered.

A. Transactions That Have Presented National Security Considerations 
Because of the Nature of the U.S. Business Over Which Control Is Being 
Acquired

    This section describes covered transactions that CFIUS has reviewed 
(having received voluntary notices regarding the transactions) and that 
have presented national security considerations because the transaction 
involves a U.S. business that provides goods or services that directly 
or indirectly contribute to U.S. national security. As noted above, 
CFIUS is focused on identifying and addressing national security risks 
posed by covered transactions, regardless of the industry of the 
parties to the transaction. Accordingly, CFIUS does not focus on any 
one U.S. business sector or group of sectors. Since its inception, 
CFIUS has received and reviewed voluntary notices regarding 
transactions across a broad spectrum of the U.S. economy. The following 
description of covered transactions that CFIUS has reviewed and that 
have presented national security considerations is illustrative only.
    A significant number of covered transactions that CFIUS has 
reviewed and that have presented national security considerations 
involve foreign control of U.S businesses that provide products and 
services--either as prime contractors or as subcontractors or suppliers 
to prime contractors--to agencies of the U.S. Government and state and 
local authorities, including, but not limited to, sole-source 
arrangements. These notices have sometimes involved companies with 
access to classified information, often included U.S. businesses in the 
defense, security, and national security-related law enforcement 
sectors, and covered such industry segments as weapons and munitions 
manufacturing, aerospace, and radar systems. They have also included 
U.S. businesses that supply goods and services with broader 
applicability to a variety of U.S. Government agencies that have 
functions that are relevant to national security. Such goods and 
services may involve information technology (consulting, hardware, or 
software), telecommunications, energy, natural resources, industrial 
products, and a range of goods and services that affect the national 
security-relevant functions of the U.S. Government agency or create 
vulnerability to sabotage or espionage.
    CFIUS has also reviewed numerous covered transactions that have 
presented national security considerations because of the nature of the 
U.S. businesses, but without regard to government contracts. The U.S. 
businesses in these cases have operations, or produce or supply 
products or services, the security of which may have implications for 
U.S. national security. For example, some of these transactions 
involved U.S. businesses in the energy sector at various stages of the 
value chain: The exploitation of natural resources, the transportation 
of these resources (e.g., by pipeline), the conversion of these 
resources to power, and the provision of power to U.S. Government and 
civilian customers. Other transactions have involved U.S. businesses 
that affect the nation's transportation system, including maritime 
shipping and port terminal operations and aviation maintenance, repair, 
and overhaul. Transactions involving U.S. businesses that could 
significantly and directly affect the U.S. financial system have also 
accounted for a number of covered transactions reviewed by CFIUS that 
have presented national security considerations.
    Some covered transactions that CFIUS has reviewed have presented 
national security considerations because they involve infrastructure 
that may constitute United States critical infrastructure, including 
major energy assets, which section 721 identifies as presenting 
national security considerations.\5\ As defined in section 721 and 
further explained in the regulations, CFIUS determines whether a 
transaction involves critical infrastructure on a case-by-basis, 
depending on the importance of the particular assets involved in the 
transaction.
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    \5\ As described in Section II.B.1 above, section 721 also 
prescribes special procedural rules for certain covered transactions 
involving ``critical infrastructure of or within the United 
States.''
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    CFIUS has also reviewed numerous covered transactions that have 
presented national security considerations related to the U.S. 
businesses' production of certain types of advanced technologies that 
may be useful in defending, or in seeking to impair, U.S. national 
security. Many of these U.S. businesses are engaged in the design and 
production of semiconductors and other equipment or components that 
have both commercial

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and military applications. Others are engaged in the production or 
supply of goods and services involving cryptography, data protection, 
Internet security, and network intrusion detection, and they may or may 
not have contracts with U.S. Government agencies.
    More generally, a significant portion of the covered transactions 
that CFIUS has reviewed and that have presented national security 
considerations have involved U.S. businesses that are engaged in the 
research and development, production, or sale of technology, goods, 
software, or services that are subject to U.S. export controls.
    The report that CFIUS is required to submit to Congress each year, 
consistent with section 721(m), contains further information regarding 
the types of transactions that CFIUS has reviewed. An unclassified 
version of this report is released publicly.

B. Transactions That Have Presented National Security Considerations 
Because of the Identity of the Foreign Person That Is Acquiring Control 
of a U.S. Business

1. Generally
    Among the national security factors listed in section 721 for 
CFIUS's consideration are factors related to the identity of the 
foreign person that is acquiring control of a U.S. business. For 
example, the factors include whether a transaction is a foreign 
government-controlled transaction, and, particularly in the case of 
foreign government-controlled transactions, what the record of the 
country of the investor is with regard to nonproliferation and other 
national security-related matters. CFIUS has reviewed covered 
transactions that have presented this sort of national security 
consideration. CFIUS has also reviewed covered transactions that have 
presented national security considerations because of the track record 
or intentions of the foreign person and its personnel with regard to 
actions that could impair U.S. national security, including whether the 
foreign person acquiring control of the U.S. business had plans to 
terminate contracts between the U.S. business and U.S. Government 
agencies for goods and services relevant to national security.
    However, as emphasized previously, the fact that a transaction 
presents a national security consideration does not necessarily mean 
that it poses a national security risk. First, risk requires not only 
threat, but also a vulnerability in U.S. national security. Second, the 
applicability of laws other than section 721 has often resolved any 
national security concerns identified by CFIUS when considering 
relevant national security factors.
2. Foreign Government-Controlled Transactions
    Whether a covered transaction is a ``foreign government-controlled 
transaction'' is one of the national security factors listed in section 
721 for consideration by CFIUS. The regulations define a foreign 
government-controlled transaction as ``any covered transaction that 
could result in control of a U.S. business by a foreign government or a 
person controlled by or acting on behalf of a foreign government.'' 31 
CFR 800.214. Foreign government-controlled transactions may include 
transactions resulting in control of a U.S. business by, among others, 
foreign government agencies, state-owned enterprises, government 
pension funds, and sovereign wealth funds.
    Although foreign government control is clearly a national security 
factor to be considered, the fact that a transaction is a foreign 
government-controlled transaction does not, in itself, mean that it 
poses national security risk. In reviewing foreign government-
controlled transactions, as with all other covered transactions, CFIUS 
considers all facts and circumstances relevant to national security in 
assessing whether the foreign person that could exercise control has 
the capability to use its control of a U.S. business to take action to 
impair U.S. national security and whether the foreign person may seek 
to do so.
    In reviewing foreign government-controlled transactions, CFIUS 
considers, among all other relevant facts and circumstances, the extent 
to which the basic investment management policies of the investor 
require investment decisions to be based solely on commercial grounds; 
the degree to which, in practice, the investor's management and 
investment decisions are exercised independently from the controlling 
government, including whether governance structures are in place to 
ensure independence; the degree of transparency and disclosure of the 
purpose, investment objectives, institutional arrangements, and 
financial information of the investor; and the degree to which the 
investor complies with applicable regulatory and disclosure 
requirements of the countries in which they invest.
    CFIUS has reviewed and concluded action on numerous foreign 
government-controlled transactions, determining that there were no 
unresolved national security concerns. These transactions varied 
significantly with regard to several of the facts and circumstances 
described above.
3. Exceptional Corporate Reorganizations in Which a New Foreign Person 
That Raises National Security Considerations Acquires Control of a U.S. 
Business
    A corporate reorganization normally involves the realignment of a 
company's structure to achieve some legal, financial, or other business 
objective. It is only in exceptional cases that a corporate 
reorganization would present national security considerations. Even 
where a corporate reorganization results in a new foreign person 
obtaining control over a U.S. business--by becoming, for example, an 
intermediate parent of the U.S. business--the corporate reorganization 
usually would not result in a change in the ultimate parent of the U.S. 
business and, therefore, generally would not present national security 
considerations.
    In considering whether a covered transaction that arises in the 
context of a corporate reorganization is an exceptional case that would 
present national security considerations, CFIUS considers all relevant 
national security factors, including those listed in section 721, with 
respect to any new foreign person that gains control of the U.S. 
business as a result of the transaction. In cases in which a corporate 
reorganization results in a new foreign person obtaining control of a 
U.S. business, the reorganization is unlikely to raise national 
security considerations if it does not result in any change in the 
relevant national security factors presented by the ownership structure 
of the U.S. business.
    One example of an exceptional corporate reorganization that would 
raise national security considerations would be the following: Control 
of a U.S. business is transferred from Corporation A, a foreign person, 
to Corporation B, another foreign person, both of which are wholly-
owned subsidiaries of Corporation C. Although Corporation C continues 
to be the ultimate parent of the U.S. business, the facts and 
circumstances related to the actions, policies, and personnel of the 
new intermediate controlling entity, Corporation B, raise national 
security considerations that were not raised by the facts and 
circumstances related to control of the U.S. business by Corporation A, 
the previous intermediate controlling entity.

[[Page 74572]]

V. Information Regarding Transactions That May Present National 
Security Considerations

    CFIUS review of notified transactions is an intensive process, 
involving over a dozen U.S. Government agencies, departments, and 
offices. CFIUS reviews are limited to 30 days, absent the initiation of 
an investigation. Thus, it is important that, at the time of filing a 
voluntary notice, parties provide CFIUS with the information needed for 
its review, including regarding the parties' products, services, and 
business operations, and the transaction itself.
    Section 800.402 of the Regulations, as recently amended, requires 
parties to include in their notice certain information that CFIUS 
normally requires to complete its review of any transaction. This 
includes, for example, a listing of certain contracts with the U.S. 
Government, products that the parties produce or sell, the foreign 
person's plans with respect to the U.S. business, and the parties and 
individuals involved with the transaction.
    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.
    In CFIUS's experience, the efficiency of reviews is also enhanced 
when parties to transactions voluntarily provide in their notice 
additional information that may be relevant to the notified transaction 
but which is not listed in Sec.  800.402 of the Regulations. A list of 
such information, which may be updated from time to time, is provided 
on the CFIUS Web site (https://www.ustreas.gov/offices/international-
affairs/cfius/). Examples of such information include: Information 
regarding whether the U.S. business develops or provides cyber systems, 
products, or services (including business systems used to manage or 
support common business processes and operations, such as enterprise 
resource planning, e-commerce, e-mail, and database systems; 
telecommunications or Internet systems; control systems used to 
monitor, assess, and control sensitive processes and physical 
functions, such as supervisory control, data acquisition, and process 
and distributed control systems; or safety, security, support, and 
other specialty systems, such as fire, intrusion detection, access 
control, people mover, and heating, ventilation, and air conditioning 
systems); information regarding whether the U.S. business processes 
natural resources and material or produces and transports energy; and 
information on any required regulatory reviews, on-going dealings, or 
outstanding issues that the parties have with other U.S. Government 
agencies with national security responsibilities.
    Where CFIUS requires additional information to enable it to review 
a notified transaction, CFIUS may request such additional information 
of the parties. Section 800.403(a)(3) of the Regulations authorizes the 
Staff Chairperson to reject any voluntary notice if the parties do not 
provide follow-up information 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.

VI. Conclusion

    CFIUS does not issue advisory opinions as to whether a covered 
transaction raises national security considerations. Rather, it 
conducts full reviews of specific covered transactions that are 
notified to CFIUS pursuant to Sec.  800.401 of the Regulations. This 
guidance may provide assistance to parties as they consider whether to 
file a voluntary notice with CFIUS. Additional information is available 
on the CFIUS Web site, https://www.ustreas.gov/offices/international-
affairs/cfius/.

Clay Lowery,
Assistant Secretary (International Affairs).
[FR Doc. E8-28791 Filed 12-5-08; 8:45 am]
BILLING CODE 4810-25-P