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Thursday, February 23, 2006

Dubai Ports and the Extra 45 Days

I happen to know a lot about this for reasons I don't want to disclose on the blog. Anyway, there now seems to be some clamoring for an extended review process of the Dubai Ports World acquisition of control of six US ports, as the New York Times is reporting:

An objection from any member of the interagency committee would have started, as required by law, an additional 45-day review. Such a review is being urged by governors and members of Congress.
That interagency committee is the Committee on Foreign Investment in the United States (CFIUS), and its role is defined by statute in section 2170 of an appendix to Title 50 of the United States Code. Section 2170a says:

The President or the President's designee may make an investigation to determine the effects on national security of mergers, acquisitions, and takeovers . . . by or with foreign persons which could result in foreign control of persons engaged in interstate commerce in the United States. If it is determined that an investigation should be undertaken, it shall commence no later than 30 days after receipt by the President or the President's designee of written notification . . . Such investigation shall be completed no later than 45 days after such determination.
In short, there's the initial 30-day review, and if there are still national security concerns, there's an additional 45-day investigation, which is what a lot of people are suggesting now for Dubai Ports. The odd thing, though, is that such an additional 45-day investigation is actually required by statute when the foreign entity acquiring control of sensitive US assets is owned by a foreign government. Dubai Ports World is owned by the UAE government. This is in section 2170b:

The President or the President's designee shall make an investigation . . . in any instance in which an entity controlled by or acting on behalf of a foreign government seeks to engage in any merger, acquisition, or takeover which could result in control of a person engaged in interstate commerce in the United States that could affect the national security of the United States.
As the statute defined that term "investigation" in subsection a, it refers to the additional 45 days.

The bottom line is that the 45 days is supposed to be a requirement in this instance, not optional. If the members of the Bush administration's CFIUS didn't do the extra 45-day review here, they simply did not follow the statutory mandate, which requires a minimum 75-day total time reviewing anything that could become owned by a foreign government, regardless of how concerned they are about national security in any particular instance.

You know, reading the law really does help sometimes! I am tempted to attack the massive amount of other misinformation that is out there on this story, but I have probably said too much already.