Foreign Investment Risk Review Modernization Act of 2017
This bill amends the Defense Production Act of 1950 to expand the scope of "covered transaction" subject to the review of the Committee on Foreign Investment in the United States (CFIUS). CFIUS analyzes the national security implications of foreign investment in the United States.
A covered transaction includes:
The bill revises other provisions relating to CFIUS, including the length of its review period, special hiring authority and funding, and authority to mandate reviews or take unilateral action.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4311 Introduced in House (IH)]
<DOC>
115th CONGRESS
1st Session
H. R. 4311
To modernize and strengthen the Committee on Foreign Investment in the
United States to more effectively guard against the risk to the
national security of the United States posed by certain types of
foreign investment, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 8, 2017
Mr. Pittenger (for himself, Mr. Nunes, Mr. Smith of New Jersey, Mrs.
Hartzler, Mr. Yoho, Mr. Rogers of Alabama, Ms. DeLauro, Mr. Gallagher,
Mrs. Roby, Mr. Loebsack, Mr. Heck, Mr. Weber of Texas, Mr. Sam Johnson
of Texas, and Mr. Culberson) introduced the following bill; which was
referred to the Committee on Financial Services, and in addition to the
Committees on Energy and Commerce, Foreign Affairs, Intelligence
(Permanent Select), Armed Services, and the Budget, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To modernize and strengthen the Committee on Foreign Investment in the
United States to more effectively guard against the risk to the
national security of the United States posed by certain types of
foreign investment, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign Investment
Risk Review Modernization Act of 2017''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Sense of Congress.
Sec. 3. Definitions.
Sec. 4. Inclusion of partnership and side agreements in notice.
Sec. 5. Declarations relating to certain covered transactions.
Sec. 6. Stipulations regarding transactions.
Sec. 7. Authority for unilateral initiation of reviews.
Sec. 8. Timing for reviews and investigations.
Sec. 9. Monitoring of non-notified and non-declared transactions.
Sec. 10. Submission of certifications to Congress.
Sec. 11. Analysis by Director of National Intelligence.
Sec. 12. Information sharing.
Sec. 13. Action by the President.
Sec. 14. Judicial review procedures.
Sec. 15. Factors to be considered.
Sec. 16. Actions by the Committee to address national security risks.
Sec. 17. Modification of annual report.
Sec. 18. Certification of notices and information.
Sec. 19. Funding.
Sec. 20. Centralization of certain Committee functions.
Sec. 21. Unified budget request.
Sec. 22. Special hiring authority.
Sec. 23. Conforming amendments.
Sec. 24. Assessment of need for additional resources for Committee.
Sec. 25. Authorization for Defense Advanced Research Projects Agency to
limit foreign access to technology through
contracts and grant agreements.
Sec. 26. Effective date.
Sec. 27. Severability.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) foreign investment provides substantial economic
benefits to the United States, including the promotion of
economic growth, productivity, competitiveness, and job
creation, and the majority of foreign investment transactions
pose little or no risk to the national security of the United
States, especially when those investments are truly passive in
nature;
(2) maintaining the commitment of the United States to open
and fair investment policy also encourages other countries to
reciprocate and helps open new foreign markets for United
States businesses and their products;
(3) it should continue to be the policy of the United
States to enthusiastically welcome and support foreign
investment, consistent with the protection of national
security;
(4) at the same time, the national security landscape has
shifted in recent years, and so have the nature of the
investments that pose the greatest potential risk to national
security, which warrants a modernization of the processes and
authorities of the Committee on Foreign Investment in the
United States;
(5) the Committee on Foreign Investment in the United
States plays a critical role in protecting the national
security of the United States, and, therefore, it is essential
that the member agencies of the Committee are adequately
resourced and able to hire appropriately qualified individuals
in a timely manner, and that those individuals' security
clearances are processed as a high priority;
(6) the President should conduct a more robust
international outreach effort to urge and help allies and
partners of the United States to establish processes that
parallel the Committee on Foreign Investment in the United
States to screen foreign investments for national security
risks and to facilitate coordination; and
(7) the President should lead a collaborative effort with
allies and partners of the United States to develop a new,
stronger multilateral export control regime, aimed to address
the unprecedented industrial policies of certain countries of
special concern, including aggressive efforts to acquire United
States technology, and the blending of civil and military
programs.
SEC. 3. DEFINITIONS.
Section 721(a) of the Defense Production Act of 1950 (50 U.S.C.
4565(a)) is amended to read as follows:
``(a) Definitions.--In this section:
``(1) Access.--The term `access' means the ability and
opportunity to obtain information, subject to regulations
prescribed by the Committee.
``(2) Committee; chairperson.--The terms `Committee' and
`chairperson' mean the Committee on Foreign Investment in the
United States and the chairperson thereof, respectively.
``(3) Control.--The term `control' means the power to
determine, direct, or decide important matters affecting an
entity, subject to regulations prescribed by the Committee.
``(4) Country of special concern.--
``(A) In general.--The term `country of special
concern' means a country that poses a significant
threat to the national security interests of the United
States.
``(B) Rule of construction.--This paragraph shall
not be construed to require the Committee to maintain a
list of countries of special concern.
``(5) Covered transaction.--
``(A) In general.--Except as otherwise provided,
the term `covered transaction' means any transaction
described in subparagraph (B) that is proposed,
pending, or completed on or after the date of the
enactment of the Foreign Investment Risk Review
Modernization Act of 2017.
``(B) Transactions described.--A transaction
described in this subparagraph is any of the following:
``(i) Any merger, acquisition, or takeover
that is proposed or pending after August 23,
1988, by or with any foreign person that could
result in foreign control of any United States
business.
``(ii) The purchase or lease by a foreign
person of private or public real estate that--
``(I) is located in the United
States and is in close proximity to a
United States military installation or
to another facility or property of the
United States Government that is
sensitive for reasons relating to
national security; and
``(II) meets such other criteria as
the Committee prescribes by regulation.
``(iii) Any other investment (other than
passive investment) by a foreign person in any
United States critical technology company or
United States critical infrastructure company,
subject to regulations prescribed under
subparagraph (C).
``(iv) Any change in the rights that a
foreign person has with respect to a United
States business in which the foreign person has
an investment, if that change could result in--
``(I) foreign control of the United
States business; or
``(II) an investment described in
clause (iii).
``(v) The contribution (other than through
an ordinary customer relationship) by a United
States critical technology company of both
intellectual property and associated support to
a foreign person through any type of
arrangement, such as a joint venture, subject
to regulations prescribed under subparagraph
(C).
``(vi) Any other transaction, transfer,
agreement, or arrangement the structure of
which is designed or intended to evade or
circumvent the application of this section,
subject to regulations prescribed by the
Committee.
``(C) Further definition through regulations.--
``(i) Certain investments and
contributions.--The Committee shall prescribe
regulations further defining covered
transactions described in clauses (iii) and (v)
of subparagraph (B) by reference to the
technology, sector, subsector, transaction
type, or other characteristics of such
transactions.
``(ii) Exemption for transactions from
identified countries.--The Committee may, by
regulation, define circumstances in which a
transaction otherwise described in clause (ii),
(iii), or (v) of subparagraph (B) is excluded
from the definition of `covered transaction' if
each foreign person that is a party to the
transaction is organized under the laws of, or
otherwise subject to the jurisdiction of, a
country identified by the Committee for
purposes of this clause based on criteria such
as--
``(I) whether the United States has
in effect with that country a mutual
defense treaty;
``(II) whether the United States
has in effect with that country a
mutual arrangement to safeguard
national security as it pertains to
foreign investment;
``(III) the national security
review process for foreign investment
of that country; and
``(IV) any other criteria that the
Committee determines to be appropriate.
``(iii) Exemption of certain
contributions.--The Committee may, by
regulation, define circumstances in which
contributions otherwise described in
subparagraph (B)(v) are excluded from the term
`covered transaction' on the basis of a
determination that other provisions of law are
adequate to identify and address any potential
national security risks posed by such
contributions.
``(iv) Transfers of certain assets pursuant
to bankruptcy proceedings or other defaults.--
The Committee shall prescribe regulations to
clarify that the term `covered transaction'
includes any transaction described in
subparagraph (B) that arises pursuant to a
bankruptcy proceeding or other form of default
on debt.
``(D) Passive investment defined.--
``(i) In general.--For purposes of
subparagraph (B)(iii), the term `passive
investment' means an investment by a foreign
person in a United States business--
``(I) that is not described in
subparagraph (B)(i);
``(II) that does not afford the
foreign person--
``(aa) access to any
nonpublic technical information
in the possession of the United
States business;
``(bb) access to any
nontechnical information in the
possession of the United States
business that is not available
to all investors;
``(cc) membership or
observer rights on the board of
directors or equivalent
governing body of the United
States business or the right to
nominate an individual to such
a position; or
``(dd) any involvement,
other than through voting of
shares, in substantive
decisionmaking pertaining to
any matter involving the United
States business;
``(III) under which the foreign
person and the United States business
do not have a parallel strategic
partnership or other material financial
relationship, as described in
regulations prescribed by the
Committee; and
``(IV) that meets such other
criteria as the Committee may prescribe
by regulation.
``(ii) Nonpublic technical information
defined.--For purposes of clause (i)(II)(aa),
the term `nonpublic technical information'--
``(I) has the meaning given that
term in regulations prescribed by the
Committee; and
``(II) includes information (either
by itself or in conjunction with other
information to which a foreign person
may have access)--
``(aa) without which
critical technologies cannot be
designed, developed, tested,
produced, or manufactured; and
``(bb) in a quantity
sufficient to permit the
design, development, testing,
production, or manufacturing of
such technologies.
``(iii) Nontechnical information defined.--
For purposes of clause (i)(II)(bb), the term
`nontechnical information' has the meaning
given that term in regulations prescribed by
the Committee.
``(iv) Effect of level of ownership
interest.--A determination of whether an
investment is a passive investment under clause
(i) shall be made without regard to how low the
level of ownership interest a foreign person
would hold or acquire in a United States
business would be as a result of the
investment. The Committee may prescribe
regulations specifying that any investment
greater than a certain level or amount would
not be considered a passive investment.
``(v) Regulations.--The Committee shall
prescribe regulations providing guidance on the
types of transactions that the Committee
considers to be passive investment.
``(E) Associated support defined.--For purposes of
subparagraph (B)(v), the term `associated support' has
the meaning given that term in regulations prescribed
by the Committee.
``(F) United states critical infrastructure company
defined.--For purposes of subparagraph (B), the term
`United States critical infrastructure company' means a
United States business that is, owns, operates, or
primarily provides services to, an entity or entities
that operate within a critical infrastructure sector or
subsector, as defined by regulations prescribed by the
Committee.
``(G) United states critical technology company.--
For purposes of subparagraph (B), the term `United
States critical technology company' means a United
States business that produces, trades in, designs,
tests, manufactures, services, or develops one or more
critical technologies, or a subset of such
technologies, as defined by regulations prescribed by
the Committee.
``(6) Critical infrastructure.--The term `critical
infrastructure' means, subject to regulations prescribed by the
Committee, systems and assets, whether physical or virtual, so
vital to the United States that the incapacity or destruction
of such systems or assets would have a debilitating impact on
national security.
``(7) Critical materials.--The term `critical materials'
means physical materials essential to national security,
subject to regulations prescribed by the Committee.
``(8) Critical technologies.--
``(A) In general.--The term `critical technologies'
means technology, components, or technology items that
are essential or could be essential to national
security, identified for purposes of this section
pursuant to regulations prescribed by the Committee.
``(B) Inclusion of certain items.--The term
`critical technologies' includes the following:
``(i) Defense articles or defense services
included on the United States Munitions List
set forth in the International Traffic in Arms
Regulations under subchapter M of chapter I of
title 22, Code of Federal Regulations.
``(ii) Items included on the Commerce
Control List set forth in Supplement No. 1 to
part 774 of the Export Administration
Regulations under subchapter C of chapter VII
of title 15, Code of Federal Regulations, and
controlled--
``(I) pursuant to multilateral
regimes, including for reasons relating
to national security, chemical and
biological weapons proliferation,
nuclear nonproliferation, or missile
technology; or
``(II) for reasons relating to
regional stability or surreptitious
listening.
``(iii) Specially designed and prepared
nuclear equipment, parts and components,
materials, software, and technology covered by
part 810 of title 10, Code of Federal
Regulations (relating to assistance to foreign
atomic energy activities).
``(iv) Nuclear facilities, equipment, and
material covered by part 110 of title 10, Code
of Federal Regulations (relating to export and
import of nuclear equipment and material).
``(v) Select agents and toxins covered by
part 331 of title 7, Code of Federal
Regulations, part 121 of title 9 of such Code,
or part 73 of title 42 of such Code.
``(vi) Other emerging technologies that
could be essential for maintaining or
increasing the technological advantage of the
United States over countries of special concern
with respect to national defense, intelligence,
or other areas of national security, or gaining
such an advantage over such countries in areas
where such an advantage may not currently
exist.
``(9) Foreign government-controlled transaction.--The term
`foreign government-controlled transaction' means any covered
transaction that could result in the control of any United
States business by a foreign government or an entity controlled
by or acting on behalf of a foreign government.
``(10) Intellectual property.--The term `intellectual
property' has the meaning given that term in regulations
prescribed by the Committee.
``(11) Intelligence community.--The term `intelligence
community' has the meaning given that term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 3003(4)).
``(12) Investment.--The term `investment' means the
acquisition of equity interest, including contingent equity
interest, as further defined in regulations prescribed by the
Committee.
``(13) Lead agency.--The term `lead agency' means the
agency or agencies designated as the lead agency or agencies
pursuant to subsection (k)(5).
``(14) Malicious cyber-enabled activities.--The term
`malicious cyber-enabled activities' means any acts--
``(A) primarily accomplished through or facilitated
by computers or other electronic devices;
``(B) that are reasonably likely to result in, or
materially contribute to, a significant threat to the
national security of the United States; and
``(C) that have the purpose or effect of--
``(i) significantly compromising the
provision of services by one or more entities
in a critical infrastructure sector;
``(ii) harming, or otherwise significantly
compromising the provision of services by, a
computer or network of computers that support
one or more such entities;
``(iii) causing a significant disruption to
the availability of a computer or network of
computers; or
``(iv) causing a significant
misappropriation of funds or economic
resources, trade secrets, personally
identifiable information, or financial
information.
``(15) National security.--The term `national security'
shall be construed so as to include those issues relating to
`homeland security', including its application to critical
infrastructure.
``(16) Party.--The term `party' has the meaning given that
term in regulations prescribed by the Committee.
``(17) United states.--The term `United States' means the
several States, the District of Columbia, and any territory or
possession of the United States.
``(18) United states business.--The term `United States
business' means a person engaged in interstate commerce in the
United States.''.
SEC. 4. INCLUSION OF PARTNERSHIP AND SIDE AGREEMENTS IN NOTICE.
Section 721(b)(1)(C) of the Defense Production Act of 1950 (50
U.S.C. 4565(b)(1)(C)) is amended by adding at the end the following:
``(iv) Inclusion of partnership and side
agreements.--A written notice submitted under
clause (i) by a party to a covered transaction
shall include a copy of any partnership
agreements, integration agreements, or other
side agreements relating to the transaction,
including any such agreements relating to the
transfer of intellectual property, as specified
in regulations prescribed by the Committee.''.
SEC. 5. DECLARATIONS RELATING TO CERTAIN COVERED TRANSACTIONS.
Section 721(b)(1)(C) of the Defense Production Act of 1950 (50
U.S.C. 4565(b)(1)(C)), as amended by section 4, is further amended by
adding at the end the following:
``(v) Declarations relating to certain
covered transactions.--
``(I) Voluntary declarations.--
Except as provided in this clause, a
party to any covered transaction may
submit to the Committee a declaration
with basic information regarding the
transaction instead of a written notice
under clause (i).
``(II) Mandatory declarations.--
``(aa) Certain covered
transactions with foreign
government interests.--The
parties to a covered
transaction shall submit a
declaration described in
subclause (I) with respect to
the transaction if the
transaction involves the
acquisition of a voting
interest of at least 25 percent
in a United States business by
a foreign person in which a
foreign government owns,
directly or indirectly, at
least a 25-percent voting
interest.
``(bb) Other declarations
required by committee.--The
Committee shall require the
submission of a declaration
described in subclause (I) with
respect to any covered
transaction identified under
regulations prescribed by the
Committee for purposes of this
item, at the discretion of the
Committee and based on
appropriate factors, such as--
``(AA) the
technology, industry,
economic sector, or
economic subsector in
which the United States
business that is a
party to the
transaction trades or
of which it is a part;
``(BB) the
difficulty of remedying
the harm to national
security that may
result from completion
of the transaction; and
``(CC) the
difficulty of obtaining
information on the type
of covered transaction
through other means.
``(cc) Submission of
written notice as an
alternative.--Parties to a
covered transaction for which a
declaration is required under
this subclause may instead
elect to submit a written
notice under clause (i).
``(dd) Timing of
submission.--
``(AA) In
general.--A declaration
required to be
submitted with respect
to a covered
transaction by item
(aa) or (bb) shall be
submitted not later
than 45 days before the
completion of the
transaction.
``(BB) Written
notice.--If, pursuant
to item (cc), the
parties to a covered
transaction elect to
submit a written notice
under clause (i)
instead of a
declaration under this
subclause, the written
notice shall be filed
not later than 90 days
before the completion
of the transaction.
``(III) Penalties.--The Committee
may impose a penalty pursuant to
subsection (h)(3) with respect to a
party that fails to comply with this
clause.
``(IV) Committee response to
declaration.--
``(aa) In general.--Upon
receiving a declaration under
this clause with respect to a
transaction, the Committee may,
at its discretion--
``(AA) request that
the parties to the
transaction file a
written notice under
clause (i);
``(BB) inform the
parties to the
transaction that the
Committee is not able
to complete action
under this section with
respect to the
transaction on the
basis of the
declaration and that
the parties may file a
written notice under
clause (i) to seek
written notification
from the Committee that
the Committee has
completed all action
under this section with
respect to the
transaction;
``(CC) initiate a
unilateral review of
the transaction under
subparagraph (D); or
``(DD) notify the
parties in writing that
the Committee has
completed all action
under this section with
respect to the
transaction.
``(bb) Timing.--The
Committee shall endeavor to
take action under item (aa)
within 30 days of receiving a
declaration under this clause.
``(cc) Rule of
construction.--Nothing in this
subclause (other than item
(aa)(CC)) shall be construed to
affect the authority of the
President or the Committee to
take any action authorized by
this section with respect to a
covered transaction.
``(V) Regulations.--The Committee
shall prescribe regulations
establishing requirements for
declarations submitted under this
clause. In prescribing such
regulations, the Committee shall ensure
that such declarations are submitted as
abbreviated notifications that would
not generally exceed 5 pages in
length.''.
SEC. 6. STIPULATIONS REGARDING TRANSACTIONS.
Section 721(b)(1)(C) of the Defense Production Act of 1950 (50
U.S.C. 4565(b)(1)(C)), as amended by section 5, is further amended by
adding at the end the following:
``(vi) Stipulations regarding
transactions.--
``(I) In general.--In a written
notice submitted under clause (i) or a
declaration submitted under clause (v)
with respect to a transaction, a party
to the transaction may--
``(aa) stipulate that the
transaction is a covered
transaction; and
``(bb) if the party
stipulates that the transaction
is a covered transaction under
item (aa), stipulate that the
transaction is a foreign
government-controlled
transaction.
``(II) Basis for stipulation.--A
written notice submitted under clause
(i) or a declaration submitted under
clause (v) that includes a stipulation
under subclause (I) shall include a
description of the basis for the
stipulation.''.
SEC. 7. AUTHORITY FOR UNILATERAL INITIATION OF REVIEWS.
Section 721(b)(1) of the Defense Production Act of 1950 (50 U.S.C.
4565(b)(1)) is amended--
(1) by redesignating subparagraphs (E) and (F) as
subparagraphs (F) and (G), respectively;
(2) in subparagraph (D)--
(A) in clause (i), by inserting ``(other than a
covered transaction described in subparagraph (E))''
after ``any covered transaction'';
(B) by striking clause (ii) and inserting the
following:
``(ii) any covered transaction described in
subparagraph (E), if any party to the
transaction submitted false or misleading
material information to the Committee in
connection with the Committee's consideration
of the transaction or omitted material
information, including material documents, from
information submitted to the Committee; or'';
and
(C) in clause (iii)--
(i) in the matter preceding subclause (I),
by striking ``any covered transaction that has
previously been reviewed or investigated under
this section,'' and inserting ``any covered
transaction described in subparagraph (E),'';
(ii) in subclause (I), by striking
``intentionally'';
(iii) in subclause (II), by striking ``an
intentional'' and inserting ``a''; and
(iv) in subclause (III), by inserting
``adequate and appropriate'' before ``remedies
or enforcement tools''; and
(3) by inserting after subparagraph (D) the following:
``(E) Covered transactions described.--A covered
transaction is described in this subparagraph if--
``(i) the Committee has informed the
parties to the transaction in writing that the
Committee has completed all action under this
section with respect to the transaction; or
``(ii) the President has announced a
decision not to exercise the President's
authority under subsection (d) with respect to
the transaction.''.
SEC. 8. TIMING FOR REVIEWS AND INVESTIGATIONS.
Section 721(b) of the Defense Production Act of 1950 (50 U.S.C.
4565(b)), as amended by section 7, is further amended--
(1) in paragraph (1)(F), by striking ``30'' and inserting
``45'';
(2) in paragraph (2), by striking subparagraph (C) and
inserting the following:
``(C) Timing.--
``(i) In general.--Except as provided in
clause (ii), any investigation under
subparagraph (A) shall be completed before the
end of the 45-day period beginning on the date
on which the investigation commenced.
``(ii) Extension for extraordinary
circumstances.--
``(I) In general.--In extraordinary
circumstances (as defined by the
Committee in regulations), the
chairperson may, at the request of the
head of the lead agency, extend an
investigation under subparagraph (A)
for one 30-day period.
``(II) Nondelegation.--The
authority of the chairperson and the
head of the lead agency referred to in
subclause (I) may not be delegated to
any person other than the Deputy
Secretary of the Treasury or the deputy
head (or equivalent thereof) of the
lead agency, as the case may be.
``(III) Notification to parties.--
If the Committee extends the deadline
under subclause (I) with respect to a
covered transaction, the Committee
shall notify the parties to the
transaction of the extension.''; and
(3) by adding at the end the following:
``(8) Tolling of deadlines during lapse in
appropriations.--Any deadline or time limitation under this
subsection shall be tolled during a lapse in appropriations.''.
SEC. 9. MONITORING OF NON-NOTIFIED AND NON-DECLARED TRANSACTIONS.
Section 721(b)(1) of the Defense Production Act of 1950 (50 U.S.C.
4565(b)(1)), as amended by section 7, is further amended by adding at
the end the following:
``(H) Monitoring of non-notified and non-declared
transactions.--The Committee shall establish a
mechanism to identify covered transactions for which--
``(i) a notice under clause (i) of
subparagraph (C) or a declaration under clause
(v) of that subparagraph is not submitted to
the Committee; and
``(ii) information is reasonably
available.''.
SEC. 10. SUBMISSION OF CERTIFICATIONS TO CONGRESS.
Section 721(b)(3)(C) of the Defense Production Act of 1950 (50
U.S.C. 4565(b)(3)(C)) is amended--
(1) in clause (iii)--
(A) in subclause (II), by inserting ``and the
Select Committee on Intelligence'' after ``Urban
Affairs''; and
(B) in subclause (IV), by inserting ``and the
Permanent Select Committee on Intelligence'' after
``Financial Services'';
(2) in clause (iv), by striking subclause (II) and
inserting the following:
``(II) Delegation of
certifications.--
``(aa) In general.--Subject
to item (bb), the chairperson,
in consultation with the
Committee, may determine the
level of official to whom the
signature requirement under
subclause (I) for the
chairperson and the head of the
lead agency may be delegated.
The level of official to whom
the signature requirement may
be delegated may differ based
on any factor relating to a
transaction that the
chairperson, in consultation
with the Committee, deems
appropriate, including the type
or value of the transaction.
``(bb) Limitations.--The
signature requirement under
subclause (I) may be
delegated--
``(AA) in the case
of a covered
transaction assessed by
the Director of
National Intelligence
under paragraph (4) as
more likely than not to
threaten the national
security of the United
States, not below the
level of the Assistant
Secretary of the
Treasury or an
equivalent official of
another agency or
department represented
on the Committee; and
``(BB) in the case
of any other covered
transaction, not below
the level of a Deputy
Assistant Secretary of
the Treasury or an
equivalent official of
another agency or
department represented
on the Committee.'';
and
(3) by adding at the following:
``(v) Authority to consolidate documents.--
Instead of transmitting a separate certified
notice or certified report under subparagraph
(A) or (B) with respect to each covered
transaction, the Committee may, on a monthly
basis, transmit such notices and reports in a
consolidated document to the Members of
Congress specified in clause (iii).''.
SEC. 11. ANALYSIS BY DIRECTOR OF NATIONAL INTELLIGENCE.
Section 721(b)(4) of the Defense Production Act of 1950 (50 U.S.C.
4565(b)(4)) is amended--
(1) by striking subparagraph (A) and inserting the
following:
``(A) Analysis required.--
``(i) In general.--The Director of National
Intelligence shall expeditiously carry out a
thorough analysis of any threat to the national
security of the United States posed by any
covered transaction, which shall include the
identification of any recognized gaps in the
collection of intelligence relevant to the
analysis.
``(ii) Views of intelligence agencies.--The
Director shall seek and incorporate into the
analysis required by clause (i) the views of
all affected or appropriate intelligence
agencies with respect to the transaction.
``(iii) Updates.--At the request of the
lead agency, the Director shall update the
analysis conducted under clause (i) with
respect to a covered transaction with respect
to which an agreement was entered into under
subsection (l)(3)(A).
``(iv) Independence and objectivity.--The
Committee shall ensure that its processes under
this section preserve the ability of the
Director to conduct analysis under clause (i)
that is independent, objective, and consistent
with all applicable directives, policies, and
analytic tradecraft standards of the
intelligence community.'';
(2) by redesignating subparagraphs (B), (C), and (D) as
subparagraphs (C), (D), and (E), respectively;
(3) by inserting after subparagraph (A) the following:
``(B) Basic threat information.--
``(i) In general.--The Director of National
Intelligence may provide the Committee with
basic information regarding any threat to the
national security of the United States posed by
a covered transaction described in clause (ii)
instead of conducting the analysis required by
subparagraph (A).
``(ii) Covered transaction described.--A
covered transaction is described in this clause
if--
``(I) the transaction is described
in subsection (a)(5)(B)(ii);
``(II) the Director of National
Intelligence has completed an analysis
pursuant to subparagraph (A) involving
each foreign person that is a party to
the transaction during the 12 months
preceding the review or investigation
of the transaction under this section;
or
``(III) the transaction otherwise
meets criteria agreed upon by the
Committee and the Director of National
Intelligence for purposes of this
subparagraph.'';
(4) in subparagraph (C), as redesignated by paragraph (2),
by striking ``20'' and inserting ``30''; and
(5) by adding at the end the following:
``(F) Assessment of operational impact.--The
Director may provide to the Committee an assessment,
separate from the analyses under subparagraphs (A) and
(B), of any operational impact of a covered transaction
on the intelligence community and a description of any
actions that have been or will be taken to mitigate any
such impact.
``(G) Submission to congress.--The Committee shall
submit the analysis required by subparagraph (A) with
respect to a covered transaction to the Select
Committee on Intelligence of the Senate and the
Permanent Select Committee on Intelligence of the House
of Representatives upon the conclusion of action under
this section (other than compliance reviews under
subsection (l)(6)) with respect to the transaction.''.
SEC. 12. INFORMATION SHARING.
Section 721(c) of the Defense Production Act of 1950 (50 U.S.C.
4565(c)) is amended--
(1) by striking ``Any information'' and inserting the
following:
``(1) In general.--Except as provided in paragraph (2), any
information'';
(2) by striking ``, except as may be relevant'' and all
that follows and inserting a period; and
(3) by adding at the end the following:
``(2) Exceptions.--Paragraph (1) shall not prohibit the
disclosure of the following:
``(A) Information relevant to any administrative or
judicial action or proceeding.
``(B) Information to either House of Congress or to
any duly authorized committee or subcommittee of
Congress.
``(C) Information to any domestic or foreign
governmental entity, under the direction of the
chairperson, to the extent necessary for national
security purposes and pursuant to appropriate
confidentiality and classification arrangements.
``(D) Information that the parties have consented
to be disclosed to third parties.''.
SEC. 13. ACTION BY THE PRESIDENT.
(a) In General.--Section 721(d) of the Defense Production Act of
1950 (50 U.S.C. 4565(d)) is amended--
(1) by striking paragraph (1) and inserting the following:
``(1) In general.--Subject to paragraph (4), the President
may, with respect to a covered transaction that threatens to
impair the national security of the United States--
``(A) take such action for such time as the
President considers appropriate to suspend or prohibit
the transaction or to require divestment; and
``(B) in conjunction with taking any such action,
take any additional action the President considers
appropriate to address the risk to the national
security of the United States identified during the
review and investigation of the transaction under this
section.''; and
(2) in paragraph (2), by striking ``not later than 15
days'' and all that follows and inserting the following: ``with
respect to a covered transaction not later than 15 days after
the earlier of--
``(A) the date on which the investigation of the
transaction under subsection (b) is completed; or
``(B) the date on which the Committee otherwise
refers the transaction to the President under
subsection (l)(2).''.
(b) Civil Penalties.--Section 721(h)(3)(A) of the Defense
Production Act of 1950 (50 U.S.C. 4565(h)(3)(A)) is amended by striking
``including any mitigation'' and all that follows through ``subsection
(l)'' and inserting ``including any mitigation agreement entered into,
conditions imposed, or order issued pursuant to this section''.
SEC. 14. JUDICIAL REVIEW PROCEDURES.
Section 721(e) of the Defense Production Act of 1950 (50 U.S.C.
4565) is amended to read as follows:
``(e) Actions and Findings Nonreviewable.--
``(1) Actions and findings of the president.--The actions
and findings of the President or the President's designee under
this section shall not be subject to judicial review, including
claims under chapter 7 of title 5, United States Code.
``(2) Actions and findings of the committee.--
``(A) In general.--Except as provided in
subparagraph (B), the actions and findings of the
Committee under subsection (b) or (l), and any
assessment of penalties or use of enforcement
authorities under this section, shall not be subject to
judicial review, including claims under chapter 7 of
title 5, United States Code.
``(B) Petitions.--
``(i) Definition.--In this subparagraph,
the term `classified information' means any
information or material that has been
determined by the United States Government
pursuant to an Executive order, statute, or
regulation to require protection against
unauthorized disclosure for reasons of national
security and any restricted data, as defined in
section 11 of the Atomic Energy Act of 1954 (42
U.S.C. 2014).
``(ii) Petition.--
``(I) In general.--Except as
provided in subclause (II), not later
than 60 days after the date on which
the President or the Committee takes an
action with respect to the covered
transaction, any party to the covered
transaction may file a petition under
this subparagraph alleging that the
action of the Committee is a violation
of a constitutional right, power,
privilege, or immunity.
``(II) Notification.--No party to a
covered transaction shall be permitted
to file a petition or any claim related
to a petition under subclause (I)
unless--
``(aa) the party initiated
the review of the transaction
pursuant to a written notice
filed under clause (i) of
subsection (b)(1)(C) or a
declaration filed under clause
(v) of that subsection or the
Committee determines that such
a notice or declaration was not
required; and
``(bb) the Committee has
completed all action under this
section with respect to the
transaction.
``(III) Related claims.--Any claims
related to a petition filed under this
clause shall be filed before the date
described in subclause (I).
``(iii) Exclusive jurisdiction.--
``(I) In general.--The United
States Court of Appeals for the
District of Columbia Circuit shall have
exclusive jurisdiction over claims
arising under this subparagraph,
subject to review by the Supreme Court
of the United States under section 1254
of title 28, United States Code, only--
``(aa) to affirm the action
of the Committee; or
``(bb) to remand the case
to the Committee for further
consideration.
``(II) Standard of review.--The
court shall uphold an action challenged
under this subparagraph unless the
court finds that the action was
contrary to a constitutional right,
power, privilege, or immunity.
``(iv) Scope of review.--In a claim under
this subparagraph, the court shall decide all
relevant questions based solely on any
administrative record submitted by the United
States under clause (v).
``(v) Administrative record and
procedures.--
``(I) In general.--Notwithstanding
any other provision of law, the
procedures described in this clause
shall apply to the review of a petition
under this subparagraph.
``(II) Administrative record.--
``(aa) Filing of record.--
The United States shall file
with the court an
administrative record, which
shall consist of the
information that the parties
submitted to the Committee and
that the Committee relied upon
in support of the action of the
Committee under review.
``(bb) Unclassified,
nonprivileged information.--All
unclassified information
contained in the administrative
record that is not otherwise
privileged or subject to
statutory protections shall be
provided to the petitioner with
appropriate protections for any
privileged or confidential
trade secrets and commercial or
financial information.
``(cc) Discovery bar.--
Other than the provision of
information in the
administrative record described
in subparagraph (II)(bb), no
discovery shall be permitted.
``(dd) In camera and ex
parte.--The following
information may be included in
the administrative record and
shall be submitted only to the
court ex parte and in camera:
``(AA) Unclassified
information subject to
privilege or statutory
protections.
``(BB) Classified
information.
``(CC) Sensitive
security information.
``(DD) Sensitive
law enforcement
information.
``(EE) Information
obtained or derived
from any activity
authorized under the
Foreign Intelligence
Surveillance Act of
1978 (50 U.S.C. 1801 et
seq.), except that,
with respect to such
information,
subsections (c), (e),
(f), (g), and (h) of
section 106 (50 U.S.C.
1806), subsections (d),
(f), (g), (h), and (i)
of section 305 (50
U.S.C. 1825),
subsections (c), (e),
(f), (g), and (h) of
section 405 (50 U.S.C.
1845), and section 706
(50 U.S.C. 1881e) of
that Act shall not
apply.
``(ee) Under seal.--Any
classified information,
sensitive security information,
law enforcement sensitive
information, or information
that is otherwise privileged or
subject to statutory
protections, that is part of
the administrative record filed
ex parte and in camera, or
cited by the court in any
decision, shall be treated by
the court consistent with the
provisions of this
subparagraph, and shall remain
under seal and preserved in the
records of the court to be made
available in the event of
further proceedings. In no
event shall such information be
released to the claimant or as
part of the public record.
``(ff) Return.--After the
expiration of the time to seek
further review, or the
conclusion of further
proceedings, the court shall
return the administrative
record, including any and all
copies, to the United States.
``(gg) Consideration of
claim without information in
administrative record.--If, on
motion or sua sponte, the court
determines that the claim may
be considered without any of
the information in the
administrative record, the
court shall require that only
the necessary information, if
any, from the record be
provided to the parties.
``(vi) Exclusive remedy.--A determination
by the court under this subparagraph shall be
the exclusive judicial remedy for any claim
described in this subparagraph against the
United States, any United States department or
agency, or any component or official of any
such department or agency.
``(vii) Rule of construction.--Nothing in
this subparagraph shall be construed as
limiting, superseding, or preventing the
invocation of, any privileges or defenses that
are otherwise available at law or in equity to
protect against the disclosure of
information.''.
SEC. 15. FACTORS TO BE CONSIDERED.
Section 721(f) of the Defense Production Act of 1950 (50 U.S.C.
4565(f)) is amended--
(1) in paragraph (1), by inserting ``including whether the
covered transaction is likely to result in the increased
reliance by the United States on foreign suppliers to meet
national defense requirements;'' after ``defense
requirements,'';
(2) in paragraph (4), by striking ``proposed or pending'';
(3) by striking paragraph (5) and insert the following:
``(5) the potential effects of the covered transaction on
United States international technological and industrial
leadership in areas affecting United States national security,
including whether the transaction is likely to reduce the
technological and industrial advantage of the United States
relative to any country of special concern;'';
(4) in paragraph (6), by inserting ``and transportation
assets, as defined in Presidential Policy Directive 21
(February 12, 2013; relating to critical infrastructure
security and resilience) or any successor directive'' after
``energy assets'';
(5) in paragraph (7), by inserting ``, including whether
the covered transaction is likely to contribute to the loss of
or other adverse effects on technologies that provide a
strategic national security advantage to the United States''
after ``critical technologies'';
(6) in paragraph (10), by striking ``; and'' and inserting
a semicolon;
(7) by redesignating paragraph (11) as paragraph (20); and
(8) by inserting after paragraph (10) the following:
``(11) the degree to which the covered transaction is
likely to increase the cost to the United States Government of
acquiring or maintaining the equipment and systems that are
necessary for defense, intelligence, or other national security
functions;
``(12) the potential national security-related effects of
the cumulative market share of any one type of infrastructure,
energy asset, critical material, or critical technology by
foreign persons;
``(13) whether any foreign person that would acquire an
interest in a United States business or its assets as a result
of the covered transaction has a history of--
``(A) complying with United States laws and
regulations, including laws and regulations pertaining
to exports, the protection of intellectual property,
and immigration; and
``(B) adhering to contracts or other agreements
with entities of the United States Government;
``(14) the extent to which the covered transaction is
likely to expose, either directly or indirectly, personally
identifiable information, genetic information, or other
sensitive data of United States citizens to access by a foreign
government or foreign person that may exploit that information
in a manner that threatens national security;
``(15) whether the covered transaction is likely to have
the effect of creating any new cybersecurity vulnerabilities in
the United States or exacerbating existing cybersecurity
vulnerabilities;
``(16) whether the covered transaction is likely to result
in a foreign government gaining a significant new capability to
engage in malicious cyber-enabled activities against the United
States, including such activities designed to affect the
outcome of any election for Federal office;
``(17) whether the covered transaction involves a country
of special concern that has a demonstrated or declared
strategic goal of acquiring a type of critical technology that
a United States business that is a party to the transaction
possesses;
``(18) whether the covered transaction is likely to
facilitate criminal or fraudulent activity affecting the
national security of the United States;
``(19) whether the covered transaction is likely to expose
any information regarding sensitive national security matters
or sensitive procedures or operations of a Federal law
enforcement agency with national security responsibilities to a
foreign person not authorized to receive that information;
and''.
SEC. 16. ACTIONS BY THE COMMITTEE TO ADDRESS NATIONAL SECURITY RISKS.
Section 721(l) of the Defense Production Act of 1950 (50 U.S.C.
4565(l)) is amended--
(1) in the subsection heading, by striking ``Mitigation,
Tracking, and Postconsummation Monitoring and Enforcement'' and
inserting ``Actions by the Committee To Address National
Security Risks'';
(2) by redesignating paragraphs (1), (2), and (3) as
paragraphs (3), (5), and (6), respectively;
(3) by inserting before paragraph (3), as redesignated by
paragraph (2), the following:
``(1) Suspension of transactions.--The Committee, acting
through the chairperson, may suspend a proposed or pending
covered transaction that may pose a risk to the national
security of the United States for such time as the covered
transaction is under review or investigation under subsection
(b).
``(2) Referral to president.--The Committee may, at any
time during the review or investigation of a covered
transaction under subsection (b), complete the action of the
Committee with respect to the transaction and refer the
transaction to the President for action pursuant to subsection
(d).'';
(4) in paragraph (3), as redesignated by paragraph (2)--
(A) in subparagraph (A)--
(i) in the subparagraph heading, by
striking ``In general'' and inserting
``Agreements and conditions'';
(ii) by striking ``The Committee'' and
inserting the following:
``(i) In general.--The Committee'';
(iii) by striking ``threat'' and inserting
``risk''; and
(iv) by adding at the end the following:
``(ii) Abandonment of transactions.--If a
party to a covered transaction has voluntarily
chosen to abandon the transaction, the
Committee or lead agency, as the case may be,
may negotiate, enter into or impose, and
enforce any agreement or condition with any
party to the covered transaction for purposes
of effectuating such abandonment and mitigating
any risk to the national security of the United
States that arises as a result of the covered
transaction.
``(iii) Agreements and conditions relating
to completed transactions.--The Committee or
lead agency, as the case may be, may negotiate,
enter into or impose, and enforce any agreement
or condition with any party to a completed
covered transaction in order to mitigate any
interim risk to the national security of the
United States that may arise as a result of the
covered transaction until such time that the
Committee has completed action pursuant to
subsection (b) or the President has taken
action pursuant to subsection (d) with respect
to the transaction.''; and
(B) by striking subparagraph (B) and inserting the
following:
``(B) Limitations.--An agreement may not be entered
into or condition imposed under subparagraph (A) with
respect to a covered transaction unless the Committee
determines that the agreement or condition resolves the
national security concerns posed by the transaction,
taking into consideration whether the agreement or
condition is reasonably calculated to--
``(i) be effective;
``(ii) allow for compliance with the terms
of the agreement or condition in an
appropriately verifiable way; and
``(iii) enable effective monitoring of
compliance with and enforcement of the terms of
the agreement or condition.
``(C) Jurisdiction.--The provisions of section
706(b) shall apply to any mitigation agreement entered
into or condition imposed under subparagraph (A).'';
(5) by inserting after paragraph (3), as redesignated by
paragraph (2), the following:
``(4) Risk-based analysis required.--
``(A) In general.--Any determination of the
Committee to suspend a covered transaction under
paragraph (1), to refer a covered transaction to the
President under paragraph (2), or to negotiate, enter
into or impose, or enforce any agreement or condition
under paragraph (3)(A) with respect to a covered
transaction, shall be based on a risk-based analysis,
conducted by the Committee, of the effects on the
national security of the United States of the covered
transaction, which shall include--
``(i) an assessment of--
``(I) the national security threat
posed by the transaction, taking into
account the analysis conducted by the
Director of National Intelligence under
subsection (b)(4);
``(II) any national security
vulnerabilities related to the
transaction; and
``(III) the potential national
security consequences of the
transaction; and
``(ii) an identification of any of the
factors described in subsection (f) that the
transaction may substantially implicate.
``(B) Actions of members of the committee.--
``(i) In general.--Any member of the
Committee who concludes that a covered
transaction poses an unresolved national
security concern shall recommend to the
Committee that the Committee suspend the
transaction under paragraph (1), refer the
transaction to the President under paragraph
(2), or negotiate, enter into or impose, or
enforce any agreement or condition under
paragraph (3)(A) with respect to the
transaction. In making that recommendation, the
member shall propose the risk-based analysis
required by subparagraph (A).
``(ii) Failure to reach consensus.--If the
Committee fails to reach consensus with respect
to a recommendation under clause (i) regarding
a covered transaction, the members of the
Committee who support an alternative
recommendation shall produce--
``(I) a written statement
justifying the alternative
recommendation; and
``(II) as appropriate, a risk-based
analysis that supports the alternative
recommendation.'';
(6) in paragraph (5), as redesignated by paragraph (2), by
striking ``(as defined in the National Security Act of 1947)'';
and
(7) in paragraph (6), as redesignated by paragraph (2)--
(A) in subparagraph (A)--
(i) by striking ``paragraph (1)'' and
inserting ``paragraph (3)''; and
(ii) by striking the second sentence and
inserting the following: ``The lead agency may,
at its discretion, seek and receive the
assistance of other departments or agencies in
carrying out the purposes of this paragraph.'';
(B) in subparagraph (B)--
(i) by striking ``designated agency'' and
all that follows through ``The lead agency in
connection'' and inserting ``designated
agency.--The lead agency in connection'';
(ii) by striking clause (ii); and
(iii) by redesignating subclauses (I) and
(II) as clauses (i) and (ii), respectively, and
by moving such clauses, as so redesignated, 2
ems to the left; and
(C) by adding at the end the following:
``(C) Compliance plans.--
``(i) In general.--In the case of a covered
transaction with respect to which an agreement
is entered into under paragraph (3)(A), the
Committee or lead agency, as the case may be,
shall formulate, adhere to, and keep updated a
plan for monitoring compliance with the
agreement.
``(ii) Elements.--Each plan required by
clause (i) with respect to an agreement entered
into under paragraph (3)(A) shall include an
explanation of--
``(I) which member of the Committee
will have primary responsibility for
monitoring compliance with the
agreement;
``(II) how compliance with the
agreement will be monitored;
``(III) how frequently compliance
reviews will be conducted;
``(IV) whether an independent
entity will be utilized under
subparagraph (E) to conduct compliance
reviews; and
``(V) what actions will be taken if
the parties fail to cooperate regarding
monitoring compliance with the
agreement.
``(D) Effect of lack of compliance.--If, at any
time after a mitigation agreement or condition is
entered into or imposed under paragraph (3)(A), the
Committee or lead agency, as the case may be,
determines that a party or parties to the agreement or
condition are not in compliance with the terms of the
agreement or condition, the Committee or lead agency
may, in addition to the authority of the Committee to
impose penalties pursuant to subsection (h)(3) and to
unilaterally initiate a review of any covered
transaction under subsection (b)(1)(D)(iii)(I)--
``(i) negotiate a plan of action for the
party or parties to remediate the lack of
compliance, with failure to abide by the plan
or otherwise remediate the lack of compliance
serving as the basis for the Committee to find
a material breach of the agreement or
condition;
``(ii) require that the party or parties
submit any covered transaction initiated after
the date of the determination of noncompliance
and before the date that is 5 years after the
date of the determination to the Committee for
review under subsection (b); or
``(iii) seek injunctive relief.
``(E) Use of independent entities to monitor
compliance.--If the parties to an agreement entered
into under paragraph (3)(A) enter into a contract with
an independent entity from outside the United States
Government for the purpose of monitoring compliance
with the agreement, the Committee shall take such
action as is necessary to prevent a conflict of
interest from arising by ensuring that the independent
entity owes no fiduciary duty to the parties.
``(F) Additional compliance measures.--Subject to
subparagraphs (A) through (E), the Committee shall
develop and agree upon methods for evaluating
compliance with any agreement entered into or condition
imposed with respect to a covered transaction that will
allow the Committee to adequately ensure compliance
without unnecessarily diverting Committee resources
from assessing any new covered transaction for which a
written notice under clause (i) of subsection (b)(1)(C)
or declaration under clause (v) of that subsection has
been filed, and if necessary, reaching a mitigation
agreement with or imposing a condition on a party to
such covered transaction or any covered transaction for
which a review has been reopened for any reason.''.
SEC. 17. MODIFICATION OF ANNUAL REPORT.
Section 721(m) of the Defense Production Act of 1950 (50 U.S.C.
4565(m)) is amended--
(1) in paragraph (1), by striking ``committee'' and all
that follows through ``Representatives,'' and inserting
``appropriate congressional committees'';
(2) in paragraph (2)--
(A) by amending subparagraph (A) to read as
follows:
``(A) A list of all notices filed and all reviews
or investigations of covered transactions completed
during the period, with--
``(i) a description of the outcome of each
review or investigation, including whether an
agreement was entered into or condition was
imposed under subsection (l)(3)(A) with respect
to the transaction being reviewed or
investigated, and whether the President took
any action under this section with respect to
that transaction;
``(ii) basic information on each party to
each such transaction;
``(iii) the nature of the business
activities or products of the United States
business with which the transaction was entered
into or intended to be entered into; and
``(iv) information about any withdrawal
from the process.'';
(B) by adding at the end the following:
``(G) Statistics on compliance reviews conducted
and actions taken by the Committee under subsection
(l)(6), including subparagraph (D) of that subsection,
during that period and a description of any actions
taken by the Committee to impose penalties or initiate
a unilateral review pursuant to subsection
(b)(1)(D)(iii)(I).'';
(3) in paragraph (3)--
(A) by striking ``critical technologies'' and all
that follows through ``In order to assist'' and
inserting ``critical technologies.--In order to
assist'';
(B) by striking subparagraph (B); and
(C) by redesignating clauses (i) and (ii) as
subparagraphs (A) and (B), respectively, and by moving
such subparagraphs, as so redesignated, 2 ems to the
left; and
(4) by adding at the end the following:
``(4) Biennial intelligence community report.--
``(A) In general.--The Director of National
Intelligence shall transmit to the chairperson, for
inclusion in a classified portion of each report
required to be submitted under paragraph (1) during
calendar year 2018 and every even-numbered year
thereafter, the report of the interagency group
established under subparagraph (C).
``(B) Elements.--The report referred to in
subparagraph (A) shall include an identification,
analysis, and explanation of the following:
``(i) Any current or projected major
threats to the national security of the United
States with respect to foreign investment.
``(ii) Any strategies used by countries of
special concern to utilize foreign investment
to target the acquisition of critical
technologies, critical materials, or critical
infrastructure.
``(iii) Any economic espionage efforts
directed at the United States by a foreign
country, particularly a country of special
concern.
``(C) Intelligence community interagency working
group.--The Director of National Intelligence--
``(i) shall establish an interagency
working group, composed of representatives of
elements of the intelligence community, to
prepare the report required under this
paragraph;
``(ii) shall serve as the chairperson of
the interagency working group; and
``(iii) may consult with and seek input
from any member of the Committee, as the
Director considers necessary.
``(5) Classification; availability of report.--
``(A) Classification.--All appropriate portions of
the annual report required by paragraph (1) may be
classified.
``(B) Public availability of unclassified
version.--An unclassified version of the report
required by paragraph (1), as appropriate and
consistent with safeguarding national security and
privacy, shall be made available to the public.
Information regarding trade secrets or business
confidential information may be included in the
classified version and may not be made available to the
public in the unclassified version.
``(C) Exceptions to freedom of information act.--
The exceptions to subsection (a) of section 552 of
title 5, United States Code, provided for under
subsection (b) of that section shall apply with respect
to the report required by paragraph (1).
``(6) Appropriate congressional committees defined.--In
this subsection, the term `appropriate congressional
committees' means--
``(A) the Committee on Banking, Housing, and Urban
Affairs, the Select Committee on Intelligence, the
Committee on Armed Services, the Committee on the
Judiciary, and the Committee on Homeland Security and
Governmental Affairs of the Senate; and
``(B) the Committee on Financial Services, the
Permanent Select Committee on Intelligence, the
Committee on Armed Services, the Committee on the
Judiciary, and the Committee on Homeland Security of
the House of Representatives.''.
SEC. 18. CERTIFICATION OF NOTICES AND INFORMATION.
Section 721(n) of the Defense Production Act of 1950 (50 U.S.C.
4565(n)) is amended--
(1) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively, and by moving such
subparagraphs, as so redesignated, 2 ems to the right;
(2) by striking ``Each notice'' and inserting the
following:
``(1) In general.--Each notice''; and
(3) by adding at the end the following:
``(2) Effect of failure to submit.--The Committee may not
complete a review under this section of a covered transaction
and may recommend to the President that the President suspend
or prohibit the transaction or require divestment under
subsection (d) if the Committee determines that a party to the
transaction has--
``(A) failed to submit a statement required by
paragraph (1); or
``(B) included false or misleading information in a
notice or information described in paragraph (1) or
omitted material information from such notice or
information.
``(3) Applicability of law on fraud and false statements.--
The Committee shall prescribe regulations expressly providing
for the application of section 1001 of title 18, United States
Code, to all information provided to the Committee under this
section by any party to a covered transaction.''.
SEC. 19. FUNDING.
Section 721 of the Defense Production Act of 1950 (50 U.S.C. 4565)
is amended by adding at the end the following:
``(o) Funding.--
``(1) Establishment of fund.--There is established in the
Treasury of the United States a fund, to be known as the
`Committee on Foreign Investment in the United States Fund' (in
this subsection referred to as the `Fund').
``(2) Appropriation of funds for the committee.--There are
authorized to be appropriated to the Fund such sums as may be
necessary to perform the functions of the Committee.
``(3) Filing fees.--
``(A) In general.--The Committee may assess and
collect a fee in an amount determined by the Committee
in regulations, to the extent provided in advance in
appropriations Acts, without regard to section 9701 of
title 31, United States Code, and subject to
subparagraph (B), with respect to each covered
transaction for which a written notice is submitted to
the Committee under subsection (b)(1)(C)(i).
``(B) Limitation on amount of fee.--The amount of
the fee determined under subparagraph (A) with respect
to a covered transaction described in that subparagraph
may not exceed an amount equal to the lesser of--
``(i) 1 percent of the value of the
transaction; or
``(ii) $300,000, adjusted annually for
inflation pursuant to regulations prescribed by
the Committee.
``(C) Deposit and availability of fees.--
Notwithstanding section 3302 of title 31, United States
Code, fees collected under subparagraph (A) shall--
``(i) be deposited as offsetting
collections into the Fund for use in carrying
out activities under this section;
``(ii) to the extent and in the amounts
provided in advance in appropriations Acts, be
available to the chairperson;
``(iii) remain available until expended;
and
``(iv) be in addition to any appropriations
made available to the members of the Committee.
``(4) Transfer of funds.--The chairperson may transfer any
amounts in the Fund to any other department or agency
represented on the Committee for the purpose of addressing
emerging needs in carrying out activities under this section.
Amounts so transferred shall be in addition to any other
amounts available to that department or agency for that
purpose.''.
SEC. 20. CENTRALIZATION OF CERTAIN COMMITTEE FUNCTIONS.
Section 721 of the Defense Production Act of 1950 (50 U.S.C. 4565),
as amended by section 19, is further amended by adding at the end the
following:
``(p) Centralization of Certain Committee Functions.--
``(1) In general.--The chairperson, in consultation with
the Committee, may centralize certain functions of the
Committee within the Department of the Treasury for the purpose
of enhancing interagency coordination and collaboration in
carrying out the functions of the Committee under this section.
``(2) Functions.--Functions that may be centralized under
paragraph (1) include monitoring non-notified and non-declared
transactions pursuant to subsection (b)(1)(H), and other
functions as determined by the chairperson and the Committee.
``(3) Rule of construction.--Nothing in this section shall
be construed as limiting the authority of any department or
agency represented on the Committee to represent its own
interests before the Committee.''.
SEC. 21. UNIFIED BUDGET REQUEST.
Section 721 of the Defense Production Act of 1950 (50 U.S.C. 4565),
as amended by sections 19 and 20, is further amended by adding at the
end the following:
``(q) Unified Budget Request.--
``(1) In general.--The President may include, in the budget
of the Department of the Treasury for a fiscal year (as
submitted to Congress with the budget of the President under
section 1105(a) of title 31, United States Code), a unified
request for funding of all operations under this section
conducted by some or all of the departments and agencies
represented on the Committee.
``(2) Form of budget request.--A unified request under
paragraph (1) should be detailed and include the amounts
requested for each department or agency represented on the
Committee to carry out the functions of that department or
agency under this section.''.
SEC. 22. SPECIAL HIRING AUTHORITY.
Section 721 of the Defense Production Act of 1950 (50 U.S.C. 4565),
as amended by sections 19, 20, and 21, is further amended by adding at
the end the following:
``(r) Special Hiring Authority.--The heads of the departments and
agencies represented on the Committee may appoint, without regard to
the provisions of sections 3309 through 3318 of title 5, United States
Code, candidates directly to positions in the competitive service (as
defined in section 2102 of that title) in their respective departments
and agencies to administer this section.''.
SEC. 23. CONFORMING AMENDMENTS.
Section 721 of the Defense Production Act of 1950 (50 U.S.C. 4565),
as amended by this Act, is further amended--
(1) in subsection (b)(2)(B)(i)(I), by striking ``that
threat'' and inserting ``the risk''; and
(2) in subsection (d)(4)(A), by striking ``the foreign
interest exercising control'' and inserting ``a foreign person
that would acquire an interest in a United States business or
its assets as a result of the covered transaction''.
SEC. 24. ASSESSMENT OF NEED FOR ADDITIONAL RESOURCES FOR COMMITTEE.
The President shall--
(1) determine whether and to what extent the expansion of
the responsibilities of the Committee on Foreign Investment in
the United States pursuant to the amendments made by this Act
necessitates additional resources for the Committee and members
of the Committee to perform their functions under section 721
of the Defense Production Act of 1950, as amended by this Act;
and
(2) if the President determines that additional resources
are necessary, include in the budget of the President for
fiscal year 2019 submitted to Congress under section 1105(a) of
title 31, United States Code, a request for such additional
resources.
SEC. 25. AUTHORIZATION FOR DEFENSE ADVANCED RESEARCH PROJECTS AGENCY TO
LIMIT FOREIGN ACCESS TO TECHNOLOGY THROUGH CONTRACTS AND
GRANT AGREEMENTS.
(a) In General.--The Director of the Defense Advanced Research
Projects Agency, or a designee of the Director, may include in any
contract or grant agreement that the Director enters into with a
person, and that is funded by that Agency, a provision that--
(1) limits access by any foreign person to technology that
is the subject of the contract or grant agreement under terms
defined by the Director, including by limiting such access to
specific periods of time; and
(2) in a case in which the person violates the prohibition
described in paragraph (1), requires the person to return all
amounts that the person received from the Agency under the
contract or grant agreement.
(b) Treatment of Returned Funds.--Any amounts returned to the
Defense Advanced Research Projects Agency under subsection (a)(2) shall
be credited to the same appropriations account from which payment of
such amounts was originally made under the contract or grant agreement
described in subsection (a).
(c) Exercise of Authority.--The Director, or the designee of the
Director, may exercise the authority provided by this section without
the need for further approval by, or regulatory implementation within,
the Department of Defense.
SEC. 26. EFFECTIVE DATE.
(a) Immediate Applicability of Certain Provisions.--The following
shall take effect on the date of the enactment of this Act and apply
with respect to any covered transaction the review or investigation of
which is initiated under section 721 of the Defense Production Act of
1950 on or after such date of enactment:
(1) Sections 4, 6, 8, 12, 13, 14, 15, 18, 20, 21, 22, 24,
and 25 and the amendments made by those sections.
(2) Section 11 and the amendments made by that section
(except for clause (iii) of section 721(b)(4)(A) of the Defense
Production Act of 1950, as added by section 11).
(3) Paragraphs (5)(C)(iv), (7), and (14) of subsection (a)
of section 721 of the Defense Production Act of 1950, as
amended by section 3.
(4) Section 721(m)(4) of the Defense Production Act of
1950, as amended by section 17.
(b) Delayed Applicability of Certain Provisions.--
(1) In general.--Any provision of or amendment made by this
Act not specified in subsection (a) shall--
(A) take effect on the date that is 30 days after
publication in the Federal Register of a determination
by the chairperson of the Committee on Foreign
Investment in the United States that the regulations,
organizational structure, personnel, and other
resources necessary to administer the new provisions
are in place; and
(B) apply with respect to any covered transaction
the review or investigation of which is initiated under
section 721 of the Defense Production Act of 1950 on or
after the date described in subparagraph (A).
(2) Nondelegation of determination.--The determination of
the chairperson of the Committee on Foreign Investment in the
United States under paragraph (1)(A) may not be delegated.
(c) Authorization for Pilot Programs.--
(1) In general.--Beginning on the date of the enactment of
this Act and ending on the date described in subsection
(b)(1)(A), the Committee on Foreign Investment in the United
States may, at its discretion, conduct one or more pilot
programs to implement any authority provided pursuant to any
provision of or amendment made by this Act not specified in
subsection (a).
(2) Publication in federal register.--A pilot program may
not commence until the date that is 30 days after publication
in the Federal Register of a determination by the chairperson
of the Committee of the scope of and procedures for the pilot
program. That determination may not be delegated.
SEC. 27. SEVERABILITY.
If any provision of this Act or an amendment made by this Act, or
the application of such a provision or amendment to any person or
circumstance, is held to be invalid, the application of that provision
or amendment to other persons or circumstances and the remainder of the
provisions of this Act and the amendments made by this Act, shall not
be affected thereby.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Financial Services, and in addition to the Committees on Energy and Commerce, Foreign Affairs, Intelligence (Permanent Select), Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Financial Services, and in addition to the Committees on Energy and Commerce, Foreign Affairs, Intelligence (Permanent Select), Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Financial Services, and in addition to the Committees on Energy and Commerce, Foreign Affairs, Intelligence (Permanent Select), Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Financial Services, and in addition to the Committees on Energy and Commerce, Foreign Affairs, Intelligence (Permanent Select), Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Financial Services, and in addition to the Committees on Energy and Commerce, Foreign Affairs, Intelligence (Permanent Select), Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
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Referred to the Committee on Financial Services, and in addition to the Committees on Energy and Commerce, Foreign Affairs, Intelligence (Permanent Select), Armed Services, and the Budget, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Digital Commerce and Consumer Protection.
Hearings Held by the Subcommittee on Monetary Policy and Trade Prior to Referral.