At the recent NEI Nuclear Fuel Supply Forum, Morgan Lewis partner Giovanna M. Cinelli highlighted important changes to the Committee on Foreign Investment in the United States (CFIUS) transaction review process being considered by Congress that are likely to affect the Energy industry in general and the nuclear industry in particular. Giovanna is the leader of the Morgan Lewis International Trade, National Security & Economic Sanctions practice and has been practicing in that area of law for more than 25 years. Giovanna counsels clients in the defense, aerospace, and technology sectors on a broad range of issues affecting national security and export controls, including complex export compliance matters, audits, cross-border due diligence (including CFIUS), and export enforcement, both classified and unclassified.

CFIUS is an inter-agency committee authorized to review cross-border transactions that could result in ownership, control, or (in some instances) influence of a US business by a foreign person, in order to determine the effect of such transactions on the national security of the United States. In her presentation, Giovanna described some of the challenges parties have encountered with the CFIUS review process in light of the government’s recent focus on the national security implications of cross-border investments, including: a greater volume of requests for additional information; an increase in the number of days needed to complete a pre-filing review; and an increase in the number of filings that require a 75 calendar day review period.

Senator Benjamin Cardin (D-MD), along with a bipartisan group of senators that includes John McCain (R-AZ), Marco Rubio (R-FL), Lindsey Graham (R-SC), Amy Klobuchar (D-MN), and Dick Durbin (D-IL), introduced S.94, the “Counteracting Russian Hostilities Act of 2017.” While widely reported on for its proposed sanctions on the Russian Federation for cyberattacks on the United States, S.94 also contains a little-discussed provision aimed at civilian nuclear trade with Russia.

Section 209 of the bill would penalize any person who makes an investment that directly and significantly contributes to enhancing the ability of the Russian Federation to construct civil nuclear power plants. While the bill certainly covers the construction of civil nuclear plants in Russia, it is broadly phrased in a manner that could cover Russia’s construction of civil nuclear plants in other countries as well. The restriction on investments is limited to nuclear power plant construction, but the bill also would penalize any person who sells, leases, or provides goods, services, technology, information, or support to the Russian Federation that “could directly and significantly facilitate the maintenance or expansion of the construction, modernization, or repair of civil nuclear plants by the Russian Federation.” The dollar threshold for investments or goods, services, etc. is $1 million per transaction and $5 million per 12-month period.