[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2400 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2400

  To transfer authority to review certain mergers, acquisitions, and 
 takeovers of United States entities by foreign entities to a designee 
 established within the Department of Homeland Security, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 13, 2006

 Ms. Collins (for herself, Mr. Lieberman, Mr. Coleman, Mr. Akaka, Mr. 
 Talent, and Mr. Graham) introduced the following bill; which was read 
  twice and referred to the Committee on Banking, Housing, and Urban 
                                Affairs

_______________________________________________________________________

                                 A BILL


 
  To transfer authority to review certain mergers, acquisitions, and 
 takeovers of United States entities by foreign entities to a designee 
 established within the Department of Homeland Security, 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. TRANSFER OF AUTHORITY TO REVIEW CERTAIN MERGERS, 
              ACQUISITIONS, AND TAKEOVERS.

    (a) Repeal of Defense Production Act Provision.--Section 721 of the 
Defense Production Act of 1950 (50 U.S.C. App. 2170) is repealed.
    (b) Transfer to Homeland Security.--Title II of the Homeland 
Security Act of 2002 (6U.S.C. 121 et seq.) is amended by adding at the 
end the following:

 Subtitle E--Review of Mergers, Acquisitions, and Takeovers by Foreign 
                                Entities



``SEC. 241. AUTHORITY TO REVIEW CERTAIN MERGERS, ACQUISITIONS, AND 
              TAKEOVERS.

    ``(a) Review and Investigation.--
            ``(1) In general.--The President or the President's 
        designee may undertake an investigation to determine the 
        effects on national security or homeland security of mergers, 
        acquisitions, and takeovers proposed or pending on or after the 
        date of enactment of this section by or with foreign persons 
        which could result in foreign control of persons engaged in 
        interstate commerce in the United States.
            ``(2) Review.--For purposes of determining whether to 
        undertake an investigation under this subsection, the President 
        or the President's designee shall conduct a review of the 
        proposed or pending merger, acquisition, or takeover, which 
        review shall be completed not later than 30 days after the date 
        of receipt by the President or the President's designee of 
        written notification of the proposed or pending merger, 
        acquisition, or takeover.
            ``(3) Timing.--If it is determined that an investigation 
        should be undertaken under this subsection, such 
        investigation--
                    ``(A) shall commence at such time as the 
                determination is made under paragraph (2), and not 
                later than 30 days after the date of receipt by the 
                President or the President's designee of written 
                notification of the proposed or pending merger, 
                acquisition, or takeover, as prescribed by regulations 
                promulgated pursuant to this section; and
                    ``(B) shall be completed not later than 45 days 
                after the date of its commencement.
            ``(4) Intelligence assessment reports.--With respect to any 
        investigation undertaken under this subsection, the Director of 
        National Intelligence shall create a report that consolidates 
        the intelligence findings, assessments, and concerns of each of 
        the relevant members of the intelligence community. Such report 
        shall be considered as part of the investigation, provided to 
        all members of the Committee, and included as part of any 
        recommendation to the President.
    ``(b) Mandatory Investigations.--
            ``(1) In general.--The President or the President's 
        designee shall undertake an investigation, as described in 
        subsection (a)(1), 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 would 
        result in control of a person engaged in interstate commerce in 
        the United States.
            ``(2) Timing.--An investigation undertaken under this 
        subsection--
                    ``(A) shall commence not later than 30 days after 
                the date of receipt by the President or the President's 
                designee of written notification of the proposed or 
                pending merger, acquisition, or takeover, as prescribed 
                by regulations promulgated pursuant to this section; 
                and
                    ``(B) shall be completed not later than 45 days 
                after the date of its commencement.
    ``(c) Committee for Secure Commerce.--
            ``(1) Establishment.--There is established the Committee 
        for Secure Commerce, which shall serve as the President's 
        designee for purposes of this section.
            ``(2) Chairperson.--The Secretary, or the designee thereof, 
        shall serve as the chairperson of the Committee.
            ``(3) Vice chairs.--The Secretary of Defense, or the 
        designee thereof, and the Secretary of the Treasury, or the 
        designee thereof, shall serve as vice chairs of the Committee.
            ``(4) Membership.--The standing members of the Committee 
        shall--
                    ``(A) be made up of the heads of those executive 
                departments, agencies, and offices as the President 
                determines appropriate; and
                    ``(B) include the Director of National 
                Intelligence.
            ``(5) Assistance from other federal sources.--The 
        chairperson of the Committee may seek information and 
        assistance from any other department, agency, or office of the 
        Federal Government, and such department, agency, or office 
        shall provide such information or assistance, as the 
        chairperson determines necessary or appropriate to carry out 
        the duties of the Committee under this section.
            ``(6) Review process; documentation.--
                    ``(A) Committee review process.--The chairperson of 
                the Committee shall establish written processes and 
                procedures to be used by the Committee in conducting 
                reviews and investigations under this section in any 
                case in which the Committee is acting as the 
                President's designee, including a description of the 
                role and responsibilities of each of the member 
                departments, agencies, and offices in the investigation 
                of foreign investment in the United States.
                    ``(B) Departmental review process.--The head of 
                each department, agency, or office that serves as a 
                member of the Committee shall establish written 
                internal processes and procedures to be used by the 
                department, agency, or office in conducting reviews and 
                investigations under this section, and shall provide 
                such written procedures to the Committee.
            ``(7) Independent agency reviews required.--In any case in 
        which the Committee is acting as the President's designee under 
        this section, each member of the Committee shall conduct, 
        within the department, agency, or office of that member, an 
        independent review of each proposed merger, acquisition, or 
        takeover described in subsection (a) or (b), and shall timely 
        provide to the Committee written findings relating to each such 
        review.
            ``(8) Determinations not to conduct an investigation.--A 
        determination by the Committee not to conduct an investigation 
        under subsection (a) shall be made only after a review required 
        by subsection (a)(2), and shall be unanimous.
    ``(d) Action by the President.--
            ``(1) In general.--Subject to subsection (e), the President 
        may take such action for such time as the President considers 
        appropriate to suspend or prohibit any acquisition, merger, or 
        takeover of a person engaged in interstate commerce in the 
        United States proposed or pending on or after the date of 
        enactment of this section, by or with a foreign person so that 
        such control will not threaten to impair the national security 
        or homeland security.
            ``(2) Announcement by the president.--The President shall 
        announce the decision to take action pursuant to this 
        subsection not later than 15 days after the investigation 
        described in subsection (a) is completed. The President may 
        direct the Attorney General to seek appropriate relief, 
        including divestment relief, in the district courts of the 
        United States in order to implement and enforce this section.
    ``(e) Findings of the President.--The President may exercise the 
authority conferred by subsection (d) only if the President finds 
that--
            ``(1) there is credible evidence that leads the President 
        to believe that the foreign interest exercising control might 
        take action that threatens to impair the national security or 
        homeland security; and
            ``(2) provisions of law, other than this section and the 
        International Emergency Economic Powers Act, do not, in the 
        judgment of the President, provide adequate and appropriate 
        authority for the President to protect the national security or 
        homeland security in the matter before the President.
    ``(f) Actions and Findings Nonreviewable.--The actions of the 
President under subsection (d) and the findings of the President under 
subsection (e) shall not be subject to judicial review.
    ``(g) Factors to Be Considered.--For purposes of this section, the 
President or the President's designee shall, taking into account the 
requirements of national security and homeland security, consider among 
other factors--
            ``(1) critical infrastructure, the control of which is 
        important to homeland security;
            ``(2) domestic production needed for projected national 
        defense and homeland security requirements;
            ``(3) the capability and capacity of domestic industries to 
        meet national defense requirements, including the availability 
        of human resources, products, technology, materials, and other 
        supplies and services;
            ``(4) the control of domestic industries and commercial 
        activity by foreign citizens as it affects the capability and 
        capacity of the United States to meet the requirements of 
        national security or homeland security;
            ``(5) the potential effects of the proposed or pending 
        transaction on sales of military goods, equipment, or 
        technology to any country--
                    ``(A) identified by the Secretary of State--
                            ``(i) under section 6(j) of the Export 
                        Administration Act of 1979, as a country that 
                        supports terrorism;
                            ``(ii) under section 6(l) of the Export 
                        Administration Act of 1979, as a country of 
                        concern regarding missile proliferation; or
                            ``(iii) under section 6(m) of the Export 
                        Administration Act of 1979, as a country of 
                        concern regarding the proliferation of chemical 
                        and biological weapons; or
                    ``(B) listed under section 309(c) of the Nuclear 
                Non-Proliferation Act of 1978, on the `Nuclear Non-
                Proliferation-Special Country List' (15 C.F.R. Part 
                778, Supplement No. 4) or any successor list; and
            ``(6) the potential effects of the proposed or pending 
        transaction on United States international technological 
        leadership in areas affecting United States national security 
        or homeland security.
    ``(h) Confidentiality of Information.--Any information or 
documentary material filed with the President or the President's 
designee pursuant to this section shall be exempt from disclosure under 
section 552 of title 5, United States Code, and no such information or 
documentary material may be made public, except as may be relevant to 
any administrative or judicial action or proceeding. Nothing in this 
subsection shall be construed to prevent disclosure to either House of 
Congress or to any duly authorized committee or subcommittee of 
Congress.
    ``(i) Reports to Congress.--
            ``(1) Reports on investigation.--The President, or the 
        President's designee, shall immediately upon completion of an 
        investigation under subsection (a) or (b) transmit to the 
        members of Congress specified in paragraph (3) a written report 
        of the results of the investigation, before any determination 
        by the President on whether or not to take action under 
        subsection (d), including a detailed explanation of the 
        findings made under subsection (e), details of any legally 
        binding assurances provided by the foreign entity that were 
        negotiated as a condition for approval, and the factors 
        considered under subsection (g). Such report shall be prepared 
        in a manner that is consistent with the requirements of 
        subsection (h).
            ``(2) Quarterly submissions.--The President, or the 
        President's designee, shall transmit to the members of the 
        Congress specified in paragraph (3) on a quarterly basis, a 
        detailed summary and analysis of each merger, acquisition, or 
        takeover that is being reviewed, was reviewed during the 
        preceding 90-day period, or is likely to be reviewed in the 
        coming quarter by the President or the Committee under 
        subsection (a) or (b). Each such summary and analysis shall be 
        submitted in unclassified form, with classified annexes, as the 
        Secretary determines are required to protect company 
        proprietary information and other sensitive information. Each 
        such summary and analysis shall include an appendix detailing 
        dissenting views.
            ``(3) Members of congress.--The reports required by this 
        subsection shall be transmitted to--
                    ``(A) the Majority Leader and the Minority Leader 
                of the Senate;
                    ``(B) the chairs and ranking members of the 
                Committee on Homeland Security and Government Affairs, 
                the Committee on Armed Services, and the Committee on 
                Banking, Housing, and Urban Affairs of the Senate;
                    ``(C) the Speaker and the Minority Leader of the 
                House of Representatives; and
                    ``(D) the chairs and ranking members of the 
                Committee on Homeland Security, the Committee on Armed 
                Services, and the Committee on Financial Services of 
                the House of Representatives.
    ``(j) Regulations.--The Secretary shall issue regulations to carry 
out this section. Such regulations shall, to the extent possible, 
minimize paperwork burdens and shall to the extent possible coordinate 
reporting requirements under this section with reporting requirements 
under any other provision of Federal law.
    ``(k) Effect on Other Law.--Nothing in this section shall be 
construed to alter or affect any existing power, process, regulation, 
investigation, enforcement measure, or review provided by any other 
provision of law.
    ``(l) Technology Risk Assessments.--In any case in which an 
assessment of the risk of diversion of a critical technology is 
performed by a person designated by the President for such purpose, a 
copy of such assessment shall be provided to each member of the 
Committee for purposes of reviewing or investigating a merger, 
acquisition, or takeover under this section.
    ``(m) Quadrennial Report.--
            ``(1) In general.--In order to assist the Congress in its 
        oversight responsibilities with respect to this section, the 
        President and such agencies as the President shall designate 
        shall complete and furnish to the Congress, not later than 1 
        year after the date of enactment of this section and every 4 
        years thereafter, a report which--
                    ``(A) evaluates whether there is credible evidence 
                of a coordinated strategy by 1 or more countries or 
                companies to acquire critical infrastructure within the 
                United States or United States companies involved in 
                research, development, or production of critical 
                technologies for which the United States is a leading 
                producer; and
                    ``(B) evaluates whether there are industrial 
                espionage activities directed or directly assisted by 
                foreign governments against private United States 
                companies aimed at obtaining commercial secrets related 
                to critical technologies or critical infrastructure.
            ``(2) Release of unclassified study.--The report required 
        by this subsection may be classified. An unclassified version 
        of the report shall be made available to the public.
    ``(n) Exemption.--Notwithstanding any other provision of law, the 
provisions of section 872 do not apply to the Committee or with respect 
to any provision of this subtitle.
    ``(o) Definitions.--As used in this section--
            ``(1) the term `critical technologies' means technologies 
        identified under title VI of the National Science and 
        Technology Policy, Organization, and Priorities Act of 1976, or 
        other critical technology, critical components, or critical 
        technology items essential to national defense identified 
        pursuant to this section;
            ``(2) the term `Committee' means the Committee for Secure 
        Commerce, established under subsection (c);
            ``(3) the term `foreign person' means any foreign 
        organization or any individual resident in a foreign country or 
        any organization or individual owned or controlled by such an 
        organization or individual; and
            ``(4) the term `intelligence community' has the same 
        meaning as in section 3 of the National Security Act of 1947 
        (50 U.S.C. 401a).''.
                                 <all>