The Office of Investment Security Monitoring & Enforcement (Monitoring & Enforcement) protects the integrity of the United States’ open investment policy by leading CFIUS activities and efforts to: monitor foreign investments in the United States that are not voluntarily submitted to CFIUS for review (“non-notified” transactions); enforce CFIUS’s mandatory declarations regulations (“non-declared” transactions); oversee compliance with CFIUS mitigation agreements, conditions, and orders; and, administer and enforce civil monetary penalties for violations of applicable CFIUS regulations and mitigation agreements, conditions, or orders.
NON-NOTIFIED & NON-DECLARED TRANSACTIONS
Monitoring & Enforcement leads the Committee’s efforts to identify transactions where no voluntary notice has been filed or safe harbor has been granted under section 721 of the Defense Production Act of 1950, as amended (“Section 721”). If the Committee determines that a non-notified transaction may be a covered transaction or covered real estate transaction and may raise national security considerations, Monitoring & Enforcement may contact the transaction parties. Additionally, with respect to transactions subject to the mandatory declaration provisions under 31 C.F.R. § 800.401, Monitoring & Enforcement leads efforts to identify failures to declare such transactions with the Committee.
Transaction parties can find detailed instructions for submitting a notice or declaration on the applicable Web pages on the left menu bar.
CFIUS has the authority to negotiate, enter into or impose, and enforce any agreement or condition with any party in order to mitigate any national security risk that arises as a result of a covered transaction or covered real estate transaction if other provisions of law do not provide adequate authority to address the risk. This includes circumstances in which a party has voluntarily chosen to abandon a transaction and mitigation measures are needed to effectuate such abandonment and address any attendant risk that arises as a result of the transaction. CFIUS may enter into a mitigation agreement or impose a condition after determining that such an agreement or condition will resolve the national security risk arising from the transaction and is reasonably calculated to be effective, verifiable, and monitorable over the long term. Examples of mitigation measures negotiated and adopted by the Committee are available in the CFIUS Annual Report to Congress.
Monitoring & Enforcement oversees CFIUS mitigation measures established in national security agreements with transaction parties. It executes its mission under the authority of the CFIUS Chairperson to designate at least one CFIUS member agency to negotiate, monitor, and enforce each active mitigation agreement. Monitoring & Enforcement also coordinates compliance activities with respect to mitigation measures, including but not limited to: on-site compliance reviews; third-party audits and monitors; investigations if anomalies or breaches are discovered or suspected; and remedial action, as appropriate.
Monitoring & Enforcement administers the regulations under Subpart I (Penalties and Damages) of 31 C.F.R. parts 800 and 802, which authorize CFIUS to impose civil monetary penalties for violations of certain CFIUS regulations, orders, and agreements. Penalties and damages available under CFIUS authority are available without prejudice to other civil or criminal penalties available under law and may result in referrals to relevant government enforcement authorities, as warranted.
In addition, Treasury publishes information related to specific enforcement actions:
- Penalties Imposed and Unilateral Reviews Initiated 2018
- Actions Taken by the Committee to Impose Penalties and Unilateral Reviews Initiated 2019
TIPS AND REFERRALS
Members of the public may contact Monitoring & Enforcement with any tips, referrals, or other relevant information at CFIUS.email@example.com; in particular:
- identification of a contemplated or completed foreign investment in, or an acquisition of, a U.S. business or real estate that may be within CFIUS’s purview;
- incidents that may imperil or constitute an apparent violation of an existing CFIUS mitigation agreement or order; or
- other issues requiring the attention of Monitoring & Enforcement relating to foreign investment and national security.
Section 721(c) of the Defense Production Act, 50 U.S.C. § 4565(c) (“Section 721(c)”), prohibits CFIUS from publicly disclosing any information filed with the Committee, subject to limited exceptions; and information and documentary material filed with the CFIUS are exempt from disclosure under the Freedom of Information Act, 5 U.S.C. § 552. Consistent with Section 721(c), CFIUS will not confirm or deny that a transaction has been notified to CFIUS or that CFIUS has undertaken an assessment, review, or investigation of any particular transaction. However, circumstances could arise under which the disclosure of such information may be required by law—potentially including the identity of the party providing the information.