[Congressional Record Volume 164, Number 93 (Wednesday, June 6, 2018)]
[Senate]
[Pages S3233-S3234]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2312. Mr. BROWN (for himself and Mr. Grassley) submitted an
amendment intended to be proposed by him to the bill H.R. 5515, to
authorize appropriations for fiscal year 2019 for military activities
of the Department of Defense, for military construction, and for
defense activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other purposes; which
was ordered to lie on the table; as follows:
At the end of title XVII, add the following:
SEC. 1734. AUTHORITY TO REVIEW TRANSACTIONS FOR ECONOMIC
EFFECT ON THE UNITED STATES.
(a) In General.--The Trade Act of 1974 (19 U.S.C. 2102 et
seq.) is amended by adding at the end the following:
``TITLE X--AUTHORITY TO REVIEW TRANSACTIONS FOR ECONOMIC EFFECT ON THE
UNITED STATES
``SEC. 1001. DEFINITIONS.
``In this title:
``(1) Control.--The term `control' means the power, whether
direct or indirect and whether or not exercised, through the
ownership of a majority or a dominant minority of the total
outstanding voting interest in an entity, representation on
the board of directors of an entity, proxy voting on the
board of directors of an entity, a special share in the
entity, a contractual arrangement with the entity, a formal
or informal arrangement to act in concert with an entity, or
any other means, to determine, direct, make decisions, or
cause decisions to be made, with respect to important matters
affecting the entity.
``(2) Covered transaction.--The term `covered transaction'
means any merger, acquisition, takeover, or investment, or
the establishment of a new entity, by or with any person,
that--
``(A) is proposed or pending after the date of the
enactment of the John S. McCain National Defense
Authorization Act for Fiscal Year 2019; and
``(B) could result in foreign control of any person that--
``(i) is engaged in interstate commerce in the United
States; and
``(ii)(I) in the case of a transaction involving a state-
owned enterprise, is valued at $50,000,000 or more; and
``(II) in the case of any other transaction, is valued at
$1,000,000,000 or more.
``(3) Person.--The term `person' means an individual or
entity.
``(4) Secretary.--The term `Secretary' means the Secretary
of Commerce.
``(5) State-owned enterprise.--The term `state-owned
enterprise' means--
``(A) an entity that is owned by, controlled by, or under
the influence of, a national, provincial, or local government
in a foreign country or an agency of such a government; or
``(B) an individual acting under the direction or the
influence of a government or agency described in subparagraph
(A).
``SEC. 1002. AUTHORITY TO REVIEW TRANSACTIONS FOR ECONOMIC
EFFECT ON THE UNITED STATES.
``(a) Mandatory Notification by Parties.--Each party to a
covered transaction shall submit a written notification of
the transaction to the Secretary.
``(b) Review.--
``(1) In general.--Upon receiving written notification of a
covered transaction under subsection (a), the Secretary
shall--
``(A) review the transaction to determine the economic
effect of the transaction on the United States, based on the
factors described in subsection (d); and
``(B) based on the results of the review, take appropriate
action under subsection (c) with respect to the transaction.
``(2) Unilateral initiation of review.--The Secretary may
initiate a review under paragraph (1) of a covered
transaction for which written notification is not submitted
under subsection (a).
``(3) Initiation of review by request from congress.--The
Secretary shall initiate a review under paragraph (1) of a
covered transaction (determined without regard to the value
of the transaction under section 1001(2)(B)(ii)) if the
chairperson and the ranking member of the Committee on
Finance of the Senate or the Committee on Ways and Means of
the House of Representatives requests the Secretary to review
the transaction.
``(4) Notification to united states trade representative.--
Upon receiving a written notification of a transaction under
subsection (a) or initiating a review of a transaction under
paragraph (2) or (3), as the case may be, the Secretary shall
notify the United States Trade Representative.
``(c) Action.--
``(1) Action after initial review.--Not later than 15 days
after receiving a written notification of a transaction under
subsection (a) or initiating a review of a transaction under
paragraph (2) or (3) of subsection (b), as the case may be,
the Secretary shall--
``(A) approve the transaction; or
``(B) inform the parties to the transaction that the
Secretary requires additional time to conduct a more thorough
review of the transaction.
``(2) Action after extended review.--
``(A) In general.--Subject to subparagraph (B), if the
Secretary informs the parties to a transaction under
paragraph (1)(B) that the Secretary requires additional time
to conduct a more thorough review, the Secretary shall, not
later than 45 days after receiving the written notification
of the transaction under subsection (a) or initiating a
review of the transaction under paragraph (2) or (3) of
subsection (b), as the case may be--
``(i) complete that review; and
``(ii) approve the transaction, prohibit the transaction,
or require the parties to the transaction to modify the
transaction and resubmit the modified transaction to the
Secretary for review under this section.
``(B) Extension of deadline.--The Secretary may extend the
deadline under subparagraph (A) with respect to the review of
a transaction by not more than 15 days.
``(3) Cases of inaccurate or inadequate information.--The
Secretary may prohibit a transaction under this subsection if
the Secretary determines that any party to the transaction
provides to the Secretary inaccurate or inadequate
information in response to inquiries of the Secretary as part
of a review of the transaction under subsection (b).
``(4) Public availability of decision.--Each decision under
this subsection to approve, prohibit, or allow for
modification of a transaction, and a justification for each
such decision, shall be made available to the public.
``(d) Factors to Be Considered.--In taking action with
respect to a transaction
[[Page S3234]]
under subsection (c), the Secretary shall consider any
economic factors the Secretary considers relevant,
including--
``(1) the long-term strategic economic interests of the
United States;
``(2) the history of distortive trade practices in each
country in which a foreign party to the transaction is
domiciled, as informed by the report of the United States
Trade Representative required by subsection (h);
``(3) control and ownership of each foreign person that is
a party to the transaction;
``(4) impact on the domestic industry, taking into
consideration any pattern of foreign investment in the
domestic industry; and
``(5) any other factors the Secretary considers
appropriate.
``(e) Public Comments.--The Secretary shall--
``(1) make available to the public each written
notification of a covered transaction submitted under
subsection (a) and notify the public if the Secretary
initiates a review under paragraph (2) or (3) of subsection
(b) with respect to a transaction; and
``(2) in the case of a transaction that the Secretary
determines under subsection (c)(1)(B) requires additional
time for review, provide a period for public comment on the
transaction of not more than 10 days.
``(f) Consultations.--The Secretary shall consult with the
heads of such other Federal agencies (or the designees of
such heads) in any review under this section as the Secretary
determines to be appropriate, on the basis of the facts and
circumstances of the transaction under review.
``(g) Request for Assistance From International Trade
Commission.--The Secretary may request assistance from the
United States International Trade Commission with respect to
any of the analysis needed to conduct a review of a
transaction under this section.
``(h) Report by United States Trade Representative.--Not
later than 10 days after the Secretary receives a written
notification of a transaction under subsection (a) or
initiates a review of a transaction under paragraph (2) or
(3) of subsection (b), as the case may be, the United States
Trade Representative shall submit to the Secretary a report
with respect to the transaction that includes, with respect
to any country in which a party to the transaction is
domiciled--
``(1) a description of the history of and current issues
affecting the trading relationship between the United States
and that country;
``(2) an assessment of the extent to which that trading
relationship is reciprocal; and
``(3) information relevant to that country from annual
reports of the Office of the United States Trade
Representative, including--
``(A) the National Trade Estimate under section 181(b);
``(B) the report required by section 182 (commonly referred
to as the `Special 301 Report'); and
``(C) the report on trade enforcement priorities required
by section 310.
``(i) Coordination With Committee on Foreign Investment in
the United States.--
``(1) In general.--In the case of a transaction undergoing
review under this section and section 721 of the Defense
Production Act of 1950 (50 U.S.C. 4565), the Secretary shall
coordinate with the Secretary of the Treasury with respect to
those reviews.
``(2) Review of national security concerns.--Review of any
threat posed by a transaction to the national security of the
United States shall be conducted by the Committee on Foreign
Investment in the United States under section 721 of the
Defense Production Act of 1950 and not under this section.
``SEC. 1003. ANNUAL REPORT ON TRANSACTIONS REVIEWED.
``Not later than one year after the date of the enactment
of the John S. McCain National Defense Authorization Act for
Fiscal Year 2019, and annually thereafter, the Secretary
shall submit to Congress a report on transactions reviewed
under section 1002 that includes--
``(1) a summary of the results of the transactions reviewed
by the Secretary, including--
``(A) how many of such reviews were completed in the 15-day
period provided for under section 1002(c)(1) and how many of
such reviews required longer to complete; and
``(B) how many of such transactions were prohibited; and
``(2) an analysis of foreign direct investment by
industrial sectors, by country of investor, and by type of
transaction.
``SEC. 1004. PROHIBITION ON USE OF TAXPAYER DOLLARS TO
ENCOURAGE INVESTMENT IN THE UNITED STATES BY
CERTAIN STATE-OWNED ENTERPRISES.
``No funds may be obligated or expended in any fiscal year
by the head of any Federal agency to encourage investment in
the United States by any state-owned enterprise that does not
operate according to market considerations.
``SEC. 1005. CONSISTENCY WITH OBLIGATIONS UNDER INTERNATIONAL
AGREEMENTS.
``This title shall be applied in a manner consistent with
the obligations of the United States under international
agreements.
``SEC. 1006. REGULATIONS.
``Not later than 270 days after the date of the enactment
of the John S. McCain National Defense Authorization Act for
Fiscal Year 2019, the Secretary of Commerce shall issue
regulations to carry out this title.''.
(b) Clerical Amendment.--The table of contents for the
Trade Act of 1974 is amended by adding at the end the
following:
``TITLE X--AUTHORITY TO REVIEW TRANSACTIONS FOR ECONOMIC EFFECT ON THE
UNITED STATES
``Sec. 1001. Definitions.
``Sec. 1002. Authority to review transactions for economic effect on
the United States.
``Sec. 1003. Annual report on transactions reviewed.
``Sec. 1004. Prohibition on use of taxpayer dollars to encourage
investment in the United States by certain state-owned
enterprises.
``Sec. 1005. Consistency with obligations under international
agreements.
``Sec. 1006. Regulations.''.
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