Short title; table of contents

(a)

Short title

This Act may be cited as the

Foreign Investment Review Monitoring and Commitment Tracking Oversight Board Act

or the FIRM Commitment Tracking Oversight Board Act. (b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

Sec. 3. Foreign Investment Review Authority.

Sec. 4. Identification of covered foreign investment commitments.

Sec. 5. Notice requirements.

Sec. 6. Review of investments.

Sec. 7. Mediation and prohibition authority.

Sec. 8. Application of Federal ethics and transparency laws.

Sec. 9. Fulfillment of covered foreign investment commitments.

Sec. 10. Reporting requirements.

Definitions

In this Act: (1)

Covered foreign investment commitment

The term covered foreign investment commitment means a commitment by a foreign country to invest in the United States made— (A)as part of a trade agreement; (B)in response to tariffs, embargoes, or other punitive trade measures imposed or having the potential to be imposed pursuant to— (i)section 122, 201, 232, 301, or 406 of the Trade Act of 1974; or (ii)any other trade or economic authority of the United States; or (C)as a result of negotiations or solicitations with representatives of the executive branch or any individual acting on behalf of or at the behest of the executive branch, including any persons affiliated with the executive branch. (2)

Covered investment

The term covered investment means an investment intended by the person making the investment, the government of the country in which such person is located, or the United States Government to count towards a covered foreign investment commitment. (3)

Family member

With respect to an individual, the term family member has the meaning given that term in section 9832(d) of the Internal Revenue Code of 1986. (4)

FIRA

The term FIRA means the Foreign Investment Review Authority. (5)

Net economic benefit

With respect to an investment, the investment provides a net economic benefit to the United States if the investment— (A)promotes domestic growth and production; (B)creates and retains quality jobs in the United States; (C)creates and retains jobs that are accessible to workers without a college degree, such as through a registered apprenticeship program or other workforce training program; (D)does not contribute to creating greater global or domestic excess capacity in the applicable sector of the economy; (E)does not undermine existing businesses in the United States, including by undermining such businesses’ ability to compete domestically or internationally; and (F) creates integrated demand for domestically-sourced materials and does not primarily promote the creation or continuance of an assembly facility utilizing foreign-produced components. (6)

Obligation date

With respect to a covered foreign investment commitment, the obligation date is the date on which the commitment is made. (7)

Person

The term person— (A)has the meaning given that term in section 1 of title 1, United States Code; and (B)includes an entity or government. (8)

Qualified investment

The term qualified investment means an investment that qualifies to count towards a covered foreign investment commitment, as determined by FIRA under section 6. (9)

Quality job

With respect to an investment, the term quality job means a job— (A)that provides at least 30 hours of work per week; (B)that is a job with compensation that— (i) is equal to or exceeds the compensation of existing similarly-situated jobs in the United States; (ii)except with respect to a managerial job, includes a wage that is higher than the median wage of the State in which the job is located (or, if not located in a State, the nearest State); and (iii)includes comprehensive health care, defined benefit pension, and other family-sustaining benefits; and (C)located at a facility in the United States where the employer— (i)ensures neutrality in any union organizing drive; and (ii)with respect to an investment where the investing person has a union or employees works council at any facility in the home country of the person, provides similar opportunities to employees located at such United States facility as are provided at the facility in the home country. (10)

Registered apprenticeship program

The term registered apprenticeship program means an apprenticeship registered under the Act of August 16, 1937 (commonly known as the National Apprenticeship Act; 50 Stat. 664, chapter 663; 29 U.S.C. 50 et seq.) that meets the standards of subpart A of part 29 and part 30 of title 29, Code of Federal Regulations. (11)

State

The term State means each of the several States, the District of Columbia, and each territory of the United States.

Foreign Investment Review Authority

(a)

Establishment

There is established the Foreign Investment Review Authority. (b)

Board of directors

(1)

Members

The head of FIRA shall be a board of directors consisting of the following: (A) The Chair, who shall be appointed by the President, by and with the advice and consent of the Senate. (B)A designee of the Secretary of Commerce. (C)A designee of the Attorney General. (D)A designee of the Secretary of Labor. (E)Four members appointed by the President, by and with the advice and consent of the Senate, from among individuals who are not of the same political party as the President. (2)

Term

Each member of the board of directors of FIRA shall serve a 4-year term. (c)

Conflicts of interest

FIRA shall establish conflict of interest requirements applicable to the members of the board of directors and the employees of FIRA that ensure there are no conflicts of interest regarding the review of investments by FIRA. (d)

Office of the Chief Ethics Officer

(1)

In general

There is established within FIRA the Office of the Chief Ethics Officer, which shall be headed by the Chief Ethics Officer. (2)

Appointment

The Chief Ethics Officer shall be appointed by FIRA, subject to the advice and consent of the Senate. (3)

Term

The Chief Ethics Officer shall serve a 6-year term. (4)

Removal authority

The Chief Ethics Officer may only be removed for gross misconduct. (e)

Public Oversight Board

(1)

Establishment

There is established within the Office of the Chief Ethics Officer a Public Oversight Board. (2)

Members

The Public Oversight Board shall consist of the following: (A)One member appointed by the Speaker of the House of Representatives. (B)One member appointed by the Minority Leader of the House of Representatives. (C)One member appointed by the Majority Leader of the Senate. (D)One member appointed by the Minority Leader of the Senate. (E)One member representing organized labor organizations, appointed by the members appointed under subparagraphs (A) through (D). (3)

Term

The term of a member of the Public Oversight Board shall be 3 years, and an individual may not serve as a member of the Public Oversight Board for more than one term in any 10-year period. (f)

Complaint process

(1)

In general

The Chief Ethics Officer shall establish a method for persons to submit complaints to the Chief Ethics Officer or Public Oversight Board. Both the Officer and the Board shall create mechanisms for such complaints to be received by identified persons or anonymous persons. (2)

Deadline for response

The Chief Ethics Officer and the Public Oversight Board shall respond to each complaint received under this subsection within the 30-day period beginning on the date the complaint was received, and such response shall include a substantive adjudication as to the merits of the complaint. (g)

Rulemaking authority

FIRA may issue such rules as may be necessary to carry out this Act.

Identification of covered foreign investment commitments

(a)

In general

FIRA shall identify all covered foreign investment commitments and make available to the public on a website— (1)a list of such commitments, including the name of the investing person (including any beneficial owners thereof), the name of the person receiving the investment (including any beneficial owners thereof), and the location of the commitment; (2)the amount of each such commitment; (3)the obligation date of each such commitment; (4)activities performed under any qualified investments with respect to each such commitment; (5)any potential or actual conflicts of interests examined or identified in the context of— (A)each such commitment; and (B)any qualified investment with respect to each such commitment; and (6)any other relevant information specified by the board of directors of FIRA. (b)

Initial covered foreign investment commitments

On the date of enactment of this Act, the following covered foreign investment commitments shall be deemed to exist: (1)A covered foreign investment commitment by the People’s Republic of China by the U.S.-China Board of Trade or Board of Investment or any comparable institution, whether formal or informal in nature, in an amount and with an obligation date as determined by FIRA. (2)A covered foreign investment commitment by Japan in the amount of $550,000,000,000, with the obligation date of the date of enactment of this Act. (3)A covered foreign investment commitment by South Korea in the amount of $350,000,000,000, with the obligation date of the date of enactment of this Act. (4)A covered foreign investment commitment by Taiwan in the amount of $500,000,000,000 with the obligation date of the date of enactment of this Act.

Notice requirements

(a)

Investor notice requirement

(1)

In general

Each person making an investment that the person believes is a covered investment shall— (A)at the beginning of the investment— (i)notify FIRA in writing of the investment; (ii)notify FIRA in writing of the covered foreign investment commitment to which the covered investment relates; and (iii)provide FIRA in writing with— (I)a list of the owners of the person making the investment, including beneficial owners thereof; (II)a list of the owners of the person receiving the investment, including beneficial owners thereof; (III)a list of any financial advisers involved in making the investment; (IV)a list of any persons participating in the financing or underwriting of the investment; and (V)a list of any other interested parties to the investment; and (B)provide FIRA with written quarterly updates on the investment until the investment is complete. (2)

Requirement applicable to all covered investments

Any person making an investment that FIRA determines is a covered investment shall be subject to the requirements under paragraph (1) regardless of whether the person believes the investment is a covered investment. (3)

Exception for certain unavailable information

If a person is required to provide information under paragraph (1)(A)(iii) that the person does not have at the time the person is required to provide the information, the person may instead provide FIRA with such information not later than 5 days after the information becomes known to such person. (4)

Attestation requirement

With respect to each notice and update required under this subsection, both a senior official of the person making the investment and a senior official of the recipient of the investment shall file a signed attestation stating whether— (A)the investment provides a net economic benefit to the United States; (B)with respect to each element of the net economic benefit definition described in subparagraphs (A) through (F) of section 2(5), the investment meets such element; and (C)the persons making, receiving, or negotiating the investment have complied with any applicable ethics and transparency rules issued under section 8. (b)

Disclosures by senior Government officials

The President, Vice President, and each cabinet level official shall file a disclosure with FIRA if they determine or have reason to believe that they or any family member is a beneficiary of any covered investment or any investment that they believe is a covered investment. (c)

Distribution of notices

FIRA shall ensure that the Chief Ethics Officer and the Public Oversight Board have real-time access to all notices, updates, attestations, and disclosures made under this section. (d)

Civil penalty

In addition to such other penalties that may be available, including section 1001 of title 18, United States Code, any person that fails to make a notice, update, or attestation, required under this section, or who knowingly fails to file a disclosure required under this section, or commits a material misstatement or omission in connection with the foregoing, shall be subject to— (1)in the case of a notice, update, or attestation required under this section, a fine in an amount not to exceed 10 percent of the value of the investment; or (2)in the case of a disclosure required under this section, a fine in an amount not to exceed 10 percent of the value of the undisclosed interest.

Review of investments

(a)

In general

(1)

In general

In accordance with this section, FIRA shall review investments to determine— (A)which investments are covered investments; and (B)which investments qualify as a qualified investment. (2)

Review

(A)

Required review of certain investments

If a person making or receiving an investment, a foreign government, the President, or the head of a Federal agency notifies FIRA that an investment is a covered investment, FIRA shall determine— (i)whether such investment is a covered investment; and (ii)whether such investment is a qualified investment. (B)

Identification of other investments

(i)

By FIRA

FIRA may review any investment that FIRA identifies as possibly being a covered investment or qualified investment. (ii)

Petition process

FIRA shall establish a petition process under which interested parties may petition FIRA to review a specific investment. (iii)

Standard of review for undeclared investments

With respect to an investment for which FIRA was not provided notice under section 5 and that FIRA has determined is a covered investment, the parties to the investment may provide evidence to FIRA that the investment is not a covered investment and FIRA shall revoke the determination if the parties prove by clear and convincing evidence that the investment is not a covered investment. (b)

Qualified investment determination

(1)

In general

FIRA may only determine that a covered investment is a qualified investment if— (A)the Chief Ethics Officer determines that the parties to the investment have complied with any applicable ethics and transparency rules issued under section 8 or otherwise required under this Act; (B)FIRA determines that the investment provides a net economic benefit to the United States; and (C)the investment is not prohibited from being a qualified investment under paragraph (3). (2)

Heightened review of certain investments

FIRA shall provide heightened review for a investment if the person making or receiving the investment is located in a covered nation, as such term is defined in section 4872(f) of title 10, United States Code. (3)

Prohibition on certain investments

An investment is not a qualified investment if— (A)the person making or receiving the investment is itself, is a subsidiary or parent company of, or is otherwise directly or indirectly controlled by— (i)an entity listed on the UFLPA Entity List maintained by the Department of Homeland Security pursuant to the Uyghur Forced Labor Prevention Act; (ii)an entity subject to an active, modified, or partially modified Withhold Release Order issued by the U.S. Customs and Border Protection; or (iii)a person or entity with respect to which an entity described in clause (i) or (ii) holds a stake of fifteen percent or greater; (B)the investment violates or could reasonably lead to a violation of a Federal ethics law, including section 208 of title 18, United States Code; (C)FIRA determines that the investment more likely than not was entered into based on a foreign government’s or foreign government official’s desire to confer a personal financial benefit on a government official in the United States; or (D)the investment allows for subsequent investments using all or part of the original investment and delegates the decision-making authority for such subsequent investments to another person, unless such other person executes a binding agreement to comply with the same requirements of this Act with respect to such subsequent investments as are applicable to a qualified investment. (4)

Exception for certain investments

FIRA may determine that an investment is a qualified investment under paragraph (1) without determining that the investment provides a net economic benefit to the United States if it is an investment in— (A) bonds issued by the Federal Government, a State, or any subdivision of a State; or (B) a diversified fund of publicly-traded securities that tracks a major market index. (5)

Investors subject to certain orders

(A)

In general

Notwithstanding paragraph (1), if FIRA determines that the person making an investment or the person receiving an investment is subject to a Federal antidumping duty order, countervailing duty order, or court order in connection with the violation of Federal intellectual property laws— (i)FIRA may not determine that such investment is a qualified investment unless FIRA enters into a mitigation agreement with the person subject to such order; and (ii)FIRA shall revoke such a determination if FIRA determines that— (I)the person has failed to comply with the mitigation agreement; or (II)the person is continuing the violation with respect to which the order was issued. (B)

Mitigation agreement terms

In entering into any mitigation agreement under this paragraph, FIRA shall ensure the agreement includes an appropriate penalty clause, which may require the payment of a penalty, the divestment of property related to the investment, or the unwinding of the investment. (C)

Review of mitigation agreements

FIRA shall review any mitigation agreement entered into under this paragraph not less often than quarterly. (c)

Treatment of charitable donations

A charitable donation to an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code is not a covered investment or a qualified investment. (d)

Right To appeal determinations and mitigation agreements

(1)

Appeal with FIRA

(A)

In general

A person receiving an investment may appeal a determination under this section that the investment is or is not a qualified investment or the terms of a mitigation agreement proposed by FIRA by filing an appeal with FIRA. (B)

Limitation

Notwithstanding subparagraph (A), a determination by FIRA that an investment is not a qualified investment may only be appealed based on a claim of a factual error or a procedural or due process violation. (C)

Supermajority decision required

In an appeal made pursuant to subparagraph (A), FIRA may only overturn the determination or terms of the mitigation agreement by a vote of at least 6 members of the board of directors. (2)

Appeal of determinations with United States district court

A determination by FIRA under this section that an investment is or is not a qualified investment, including with respect to the reasonableness of FIRA’s determination with respect to factors such as net economic benefit or the creation of quality jobs or FIRA’s compliance or noncompliance with procedural safeguards under this Act, may be challenged in a United States district court of competent jurisdiction by— (A) the person receiving the investment; (B) the Chief Ethics Officer; (C) a member of the Public Oversight Board; and (D) any person harmed by the investment or who faces a tangible risk of being harmed by the investment. (e)

Petition for redetermination

A person making a covered investment that FIRA has determined is not a qualified investment may, if the investor makes material changes to the investment proposal, petition FIRA for a redetermination of whether the covered investment is a qualified investment. (f)

Review period for qualified investments

FIRA shall continue to review a qualified investment for a 30-day period beginning on the date that FIRA determines the investment is a qualified investment in order to assess the net economic benefit to the United States provided by the qualified investment, including jobs created by the qualified investment. (g)

Public notice

FIRA shall maintain a public website with a list of all investments that FIRA has reviewed and, with respect to each investment, stating whether FIRA has determined it is a covered investment, a qualified investment, both, or neither. (h)

Interagency consultations

In carrying out this section— (1)FIRA may consult with any Federal agency; and (2)a Federal agency shall reasonably cooperate with FIRA with any information requested by FIRA to assist in FIRA’s duties prescribed under this section, subject to such safeguards as may be necessary to protect classified or law enforcement information.

Mediation and prohibition authority

(a)

Mandatory mediation authority

With respect to each covered investment that FIRA determines is not a qualified investment, FIRA may require mediation between FIRA and the person making the covered investment in order to agree on new terms for the investment that would allow FIRA to determine that the investment is a qualified investment. (b)

Prohibition authority

FIRA may suspend or prohibit any covered investment that is not a qualified investment.

Application of Federal ethics and transparency laws

(a)

Application to parties to covered investments

FIRA shall issue rules to apply the Federal ethics and transparency laws to any person (including a Federal agency or foreign government) making, receiving, or negotiating a covered investment or an investment that the person believes is a covered investment, but only to the extent such person is taking actions in connection with such investment. (b)

Specific laws

The Federal ethics and transparency laws described in subsection (a) shall, at a minimum, include the following: (1)Chapter 131 of title 5, United States Code. (2)Subchapter III of chapter 73 of title 5, United States Code. (3)Sections 201, 203, 205, 207, 208, and 209 of title 18, United States Code. (4)Section 2635.502 of title 5, Code of Federal Regulations. (5)Sections 552 and 552b of title 5, United States Code.

Fulfillment of covered foreign investment commitments

(a)

Public notice

FIRA shall maintain, and regularly update, on the website described in section 4(a), a calculation of the amount of all qualified investments related to a covered foreign investment commitment. (b)

Failure To fulfill covered foreign investment commitments

If, after the end of the 4-year period beginning on the obligation date of a covered foreign investment commitment, the amount of qualified investments related to such covered foreign investment commitment is less than the covered foreign investment commitment amount, the President shall enter into negotiations with the country that made the covered foreign investment commitment to address the deficit.

10.

Reporting requirements

(a)

Annual report to Congress

(1)

In general

FIRA shall issue an annual report to the Congress containing— (A)information on the investments reviewed by FIRA; and (B)any trends or risks identified by FIRA. (2)

Classification

Each report required under paragraph (1) shall be in unclassified form, but may include a classified annex. (b)

Semiannual report to the public

FIRA shall issue a semiannual public report containing the following: (1)The progress made in implementing this Act and identifying qualified investments. (2)An identification of the jobs created by qualified investments, including, for each such investment— (A)the compensation provided by such jobs; (B)unionization information related to such jobs; and (C)whether foreign employees have been brought into the United States to work directly at a facility funded by the investment or through a contractor. (3)An identification of the inputs used in any production facility resulting from a qualified investment and the origination of such inputs. (4)With respect to mitigation agreements entered into by FIRA— (A)the compliance of the other parties to the mitigation agreement with the terms of the agreement; and (B)any actions taken by FIRA to enforce the terms of a mitigation agreement. (c)

Quarterly report by the Chief Ethics Office

The Chief Ethics Officer shall issue a quarterly report to Congress, and make such report available to the public online, containing a list of all complaints received by the Chief Ethics Office of Public Oversight Board and the resolution of each such complaint.