CFIUS

April 24, 2015 | By Keith Martin in Washington, DC

CFIUS reported to Congress in February that foreign companies submitted 97 proposed acquisitions of US companies to it for review in 2013.

Roughly half (48) went to an investigation phase. Eight proposed deals were withdrawn. One was resubmitted in 2014 with revised terms.

Twelve of the proposed deals for which foreign buyers sought clearance in 2013 were utility transactions. Of those, 10 involved power generation, transmission or distribution and two were water, sewage or natural gas distribution.

The largest number of filings in 2013 was for in-bound US investments from China. The top five countries for which filings were made in 2013 are China (21), Japan (18), Canada (12), United Kingdom (7) and France (7). The top three accounted for more than 50% of all filings.

CFIUS — short for the Committee on Foreign Investment in the United States — is an inter-agency committee of 16 federal agencies, headed by the Treasury Department, that reviews potential foreign investments in US companies for national security concerns. Submission of proposed deals is voluntary. However, the committee has authority to set aside transactions after the fact that were not submitted for review.

Review takes 30 days. Transactions that raise potential issues then move into an investigation phase that takes another 45 days.

The report lists as potential areas of concern investments in US companies or projects that “involve various aspects of energy production, including extraction, generation, transmission, and distribution” and projects that are near US military bases or other sensitive US government facilities.

The committee makes recommendations. The President has ultimate authority to block a transaction.

Presidential action to block a transaction is rare. President Obama ordered Chinese-backed Ralls Corp. in 2012 to divest four wind farms that the company bought in Oregon at which it hoped to deploy turbines made by its affiliate, the Sany Electric Co. One of the wind farms is close to a US Navy base that provides training for drone aircraft.

Most transactions that raise problems are voluntarily withdrawn. Many are later resubmitted on revised terms. In some cases, transactions are approved after the acquirer agrees to mitigation measures.

CFIUS reports annually to Congress. According to the latest report, covering the period through December 2013, the committee reviewed 480 proposed transactions in the five years from 2009 through 2013, or an average of 96 a year. About 11% of proposed transactions were withdrawn during this five-year period, with 3% of withdrawals occurring during the initial review stage and another 8% during the investigation stage.

In 2013, only 8.2% of transactions were withdrawn. Another 11.3% were cleared, but after agreeing to mitigation measures.