[Congressional Record Volume 163, Number 182 (Wednesday, November 8, 2017)]
[Senate]
[Pages S7111-S7118]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN (for himself, Mrs. Feinstein, Mr. Burr, Mr. Peters, 
        Mr. Rubio, Ms. Klobuchar, Mr. Scott, Mr. Barrasso, Mr. Manchin, 
        and Mr. Lankford):
  S. 2098. 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; to the Committee 
on Banking, Housing, and Urban Affairs.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2098

       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;

[[Page S7112]]

       ``(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

[[Page S7113]]

     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.

[[Page S7114]]

       ``(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.--

[[Page S7115]]

       ``(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

[[Page S7116]]

     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.--

[[Page S7117]]

       ``(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

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     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.
                                 ______