Reports indicate that in the wake of an order from the D.C. Circuit, the Committee on Foreign Investment in the United States (CFIUS) is considering changes to its review process for transactions involving foreign investment in the United States.
Last year, CFIUS was ordered to disclose unclassified information on which it based a recommendation to block Ralls Corporation’s acquisition of four wind farm projects in Oregon in 2012. CFIUS subsequently turned over nearly 3,500 pages of documentation to Ralls, marking the first time CFIUS has ever shared information relied on in a national security review with a foreign investor. Interestingly, CFIUS withheld portions of only two documents on the basis of privilege. According to court filings, the material withheld contained “sensitive but unclassified military information describing vulnerabilities in Department of Defense operations . . . .” But it appears that even this information may have ultimately been disclosed to Ralls’ counsel under Protective Order.
Whether CFIUS will ultimately announce changes to the review process remains to be seen. Any such changes would require input and approval from all CFIUS member agencies, including Treasury, as the chair of CFIUS, and the Departments of Defense, Homeland Security, State, Commerce, and Justice, and likely even the White House. Further, it is unclear whether CFIUS will put any proposed changes through the formal rule-making process, which would require the interagency committee to consider and respond to comments from the public, or will simply alter its internal procedures.