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A Japanese Finance Ministry panel has recommended a legal revision to tighten screening of inward foreign investments. The panel says the amendment is needed to adapt to a change in the security envir...

WASHINGTON — Today, President Trump published an order ordering the divestment by HieFo Corporation (“HieFo”), a Delaware corporation and foreign person of certain assets of EMCORE Corporation (“EMCORE”), a New Jersey corporation.  The assets that were the subject of the transaction comprised EMCORE’s digital chips and related wafer design, fabrication, and processing business, including a semiconductor manufacturing facility (the “EMCORE Digital Chips Business”).    The Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) reviewed and investigated this transaction pursuant to Section 721 of the Defense Production Act of 1950, as amended (“Section 721”). CFIUS identified a national security risk arising from the transaction relating to potential access to EMCORE’s intellectual property, proprietary know-how, and expertise and to the potential diversion of supply of indium phosphide chips manufactured by the EMCORE Digital Chips Business away from the United States.  To address this risk, the President’s order directs HieFo to divest all interests and rights in the EMCORE Digital Chips Business.    HieFo did not file the transaction with CFIUS until after CFIUS’s non-notified team investigated the transaction.  CFIUS’s non-notified function has been enhanced by authorities provided by Congress in FIRRMA and ongoing appropriations to support the Committee’s ability to identify and review non-notified transactions.  Parties to transactions should carefully consider whether or not any transaction they may be undertaking may be subject to CFIUS jurisdiction, including whether or not the transaction has a potential nexus to U.S. national security. The CFIUS process focuses exclusively on identifying and addressing national security risks arising from a covered transaction.  CFIUS's risk analysis involves consideration of the potential threat, vulnerability, and consequence of any given transaction.  CFIUS reviews each transaction on a case-by-case basis and considers the specific facts and circumstances relating to that transaction.  As such, the disposition of each CFIUS case is reflective only of CFIUS’s analysis of that specific transaction and not indicative of a general position on the transaction parties, countries, or industries involved.  CFIUS’s mandate to conduct case-by-case reviews is reflective of the U.S. Government’s commitment to maintaining its open investment policy while protecting U.S. national security. View a copy of the President’s order. ABOUT CFIUS CFIUS is an interagency committee authorized to review certain transactions involving foreign investment in the United States and certain real estate transactions by foreign persons, in order to determine the effect of such transactions on the national security of the United States.  CFIUS is chaired by the Secretary of the Treasury and includes as members the Secretaries of State, Defense, Commerce, Energy, and Homeland Security, the Attorney General, the Director of the White House Office of Science and Technology Policy, and the U.S. Trade Representative.  The Director of National Intelligence and the Secretary of Labor participate as non-voting, ex-officio members, and the Secretary of the Department of Agriculture is a member when a case involves elements of the agricultural industrial base that have implications for food security.   Treasury’s Office of Investment Security leads CFIUS’s efforts to identify transactions where no voluntary notice has been filed under section 721 of the Defense Production Act of 1950, as amended. If CFIUS determines that a non-notified transaction may be a covered transaction or covered real estate transaction and may raise national security considerations, the Committee may contact the transaction parties and request a CFIUS filing.  Members of the public may contact Treasury with any tips, referrals, or voluntary self-disclosures at CFIUS.tips@treasury.gov.  ####

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