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Exon-Florio National Security Test for Foreign Investment
James K. Jackson
The Exon-Florio provision grants the President the authority to block proposed or pending foreign acquisitions of “persons engaged in interstate commerce in the U.S.” that threaten to impair the national security. This provision came under intense scrutiny with the
proposed acquisitions in 2006 of major operations in 6 major U.S. ports by Dubai Ports World and of Unocal by the China National Offshore Oil Corp. (CNOOC). The debate that followed reignited long-standing differences among Members of Congress and between the Congress and the admin. over the role foreign acquisitions play in U.S. national security. The public debate underscored the differences between U.S. policy, which is to actively promote internationally the national treatment of foreign firms, and the concerns of some over the way this policy applies to companies that are owned by foreign governments that have unlimited access to the Nation’s industrial base. Much of this debate focused on the activities of a relatively obscure committee, the Comm. on Foreign Investment in the U.S. (CFIUS) and the Exon-Florio provision, which gives the President broad powers to block certain types of foreign investment. In the first session of the 110th Congress, Congresswoman Maloney introduced H.R. 556, the National Security Foreign Investment Reform and Strengthened Transparency Act of 2007, on Jan. 18, 2007. Signed into law on July 26, 2007, it is designated as P.L. 110-49. Contents of this report: (I) Background; (II) The Exon-Florio Provision; (III) Treasury Dept. Regulations: Transactions Not Subject to a Review; Control; National Security; (IV) The “Byrd Amendment”; (V) The Amended CFIUS Process; Critical Infrastructure; Procedures; Factors for Consideration; Confidentiality Requirements; Mitigation and Tracking; Congressional Oversight; (VI) Caseload; (VII) Conclusions. Figures and tables.
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