WASHINGTON — The federal government on Thursday laid out for the first time how it will determine penalties for foreign companies that break agreements to protect American national security.
When some foreign companies buy American firms, they sign agreements with the Committee on Foreign Investment in the United States, a group of federal agencies, in order to mitigate national security concerns about the new ownership. The committee, known as CFIUS, has the ability to levy fines, some of them very large, on companies that break those agreements.
The new guidelines issued on Thursday give insight into how the committee, which wields considerable power over foreign transactions but is often seen as a black box, makes its decisions. In recent years, CFIUS has forced a Chinese company to sell the dating app Grindr and has made another Chinese firm divest an American maker of hotel management software. The committee is currently negotiating an agreement with TikTok, the popular video app, to resolve concerns posed by its Chinese ownership.
According to the new guidelines, the committee could consider more serious penalties when a foreign company’s failure to follow an agreement causes an especially grave risk to national security. CFIUS would also consider whether it took a long time for the committee to learn of a foreign company’s failure to comply with an agreement. And it would take into account whether a company’s failings had been intentional or simply negligent, according to the new guidelines, which are not binding.
President Biden has been trying to limit the sway that China and other adversaries have over American companies and consumers. Lawmakers and regulators have grown increasingly concerned that China could use its proximity to major computer chip manufacturers in Asia to influence the supply of a device that is central to a vast array of products, including appliances and automobiles. Many are also worried that Chinese-owned apps like TikTok and WeChat might hand over Americans’ data to Beijing under Chinese laws.
This month, the Biden administration issued restrictions that stop Americans from working with Chinese chip companies. Last month, Mr. Biden signed an executive order directing CFIUS to closely scrutinize whether corporate deals involving foreign companies, including from China, would expose the personal data of Americans or involve crucial emerging technologies.
The guidelines issued on Thursday do not name any specific foreign country.
Paul Rosen, the assistant secretary for investment security at the Treasury Department, which oversees CFIUS, said in a statement that most foreign companies abided by their agreements on national security. But, he said, “those who fail to comply with CFIUS mitigation agreements or other legal obligations will be held accountable.”
The committee has been busy in recent years, reviewing hundreds of corporate deal filings in 2021, according to the reports it sends to Congress. In some of those cases, the committee agreed to approve a deal only if the foreign company agreed to carry out measures designed to reduce its concerns.
Mr. Rosen said in his statement that the guidelines sent a “clear message” that it was “not optional” for companies to follow their agreements with the government.
Under federal law, the government can fine companies that violate their agreements with the committee. The fines can be significant, reaching as high as the total value of the corporate deal in question.
The guidelines also publicly explain how companies can challenge a penalty from the government, and they shed more light on how the committee monitors for violations. According to the memo, the government learns of possible violations from “across the U.S. government, publicly available information, third-party service providers (e.g., auditors and monitors), tips” and participants in the deal itself.
