[House Report 119-129]
[From the U.S. Government Publishing Office]
119th Congress } { Rept. 119-129
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
AGRICULTURAL RISK REVIEW ACT OF 2025
_______
June 3, 2025.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hill of Arkansas, from the Committee on Financial Services,
submitted the following
R E P O R T
[To accompany H.R. 1713]
[Including cost estimate of the Congressional Budget Office]
The Committee on Financial Services, to whom was referred
the bill (H.R. 1713) to amend the Defense Production Act of
1950 to include the Secretary of Agriculture as a member of the
Committee on Foreign Investment in the United States, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Committee Consideration.......................................... 3
Related Hearings................................................. 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 7
Performance Goals and Objectives................................. 7
Committee Cost Estimate.......................................... 7
New Budget Authority and CBO Cost Estimate....................... 7
Unfunded Mandates Statement...................................... 7
Earmark Statement................................................ 9
Federal Advisory Committee Act Statement......................... 9
Applicability to the Legislative Branch.......................... 9
Duplication of Federal Programs.................................. 9
Section-by-Section Analysis of the Legislation................... 9
Changes in Existing Law Made by the Bill, as Reported............ 9
Committee Letters................................................ 44
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Agricultural Risk Review Act of
2025''.
SEC. 2. INCLUSION OF THE SECRETARY OF AGRICULTURE ON THE COMMITTEE ON
FOREIGN INVESTMENT IN THE UNITED STATES.
Section 721(k) of the Defense Production Act of 1950 (50 U.S.C.
4565(k)) is amended by adding at the end the following:
``(8) Inclusion of the secretary of agriculture.--The
Secretary of Agriculture shall be a member of the Committee
with respect to a covered transaction that involves--
``(A) agricultural land;
``(B) agriculture biotechnology; or
``(C) the agriculture industry, including
agricultural transportation, storage, and
processing.''.
SEC. 3. CONSIDERATION OF CERTAIN AGRICULTURAL LAND TRANSACTIONS.
Section 721(b)(1) of the Defense Production Act of 1950 (50 U.S.C.
4565(b)(1)) is amended by adding at the end the following:
``(I) Consideration of certain agricultural land
transactions.--
``(i) In general.--After receiving
notification from the Secretary of Agriculture
of a reportable agricultural land transaction,
the Committee shall determine--
``(I) whether the transaction is a
covered transaction; and
``(II) if the Committee determines
that the transaction is a covered
transaction, whether the Committee
should initiate a review pursuant to
subparagraph (D), or take another
action authorized under this section,
with respect to the reportable
agricultural land transaction.
``(ii) Reportable agricultural land
transaction.--In this subparagraph, the term
`reportable agricultural land transaction'
means a transaction--
``(I) that the Secretary of
Agriculture has reason to believe is a
covered transaction, based on
information from or in cooperation with
the intelligence community;
``(II) that involves the acquisition
of an interest in agricultural land by
a foreign person of the People's
Republic of China, the Democratic
People's Republic of Korea, the Russian
Federation, or the Islamic Republic of
Iran; and
``(III) with respect to which a
person is required to submit a report
to the Secretary of Agriculture under
section 2(a) of the Agricultural
Foreign Investment Disclosure Act of
1978.
``(iii) Sunset.--The requirements under this
subparagraph shall terminate, with respect to a
foreign person of the respective foreign
country, on the date that the People's Republic
of China, the Democratic People's Republic of
Korea, the Russian Federation, or the Islamic
Republic of Iran, as the case may be, is
removed from the list of foreign adversaries in
section 791.4 of title 15, Code of Federal
Regulations.''.
Purpose and Summary
Introduced on February 27, 2025, by Representative Frank
Lucas (OK-03), H.R. 1713, the Agricultural Risk Review Act of
2025, would formally add the Secretary of the Department of
Agriculture to the Committee on Foreign Investment of the
United States (CFIUS) for the purposes of covered transactions
related to agriculture. The bill would also require CFIUS to
examine transactions referred to it by the Secretary of
Agriculture that involve acquisitions by foreign persons from
China, Russia, North Korea, or Iran.
Background and Need for Legislation
The Secretary of Agriculture is an official CFIUS member
for agricultural transactions, but the Secretary's status is
established under an annual appropriations rider. H.R. 1713
would make this participation a permanent statutory
requirement. It would also establish new coordination between
CFIUS and the Department of Agriculture, which already monitors
foreign land purchases under the Agricultural Foreign
Investment Disclosure Act. This will allow CFIUS to obtain a
greater understanding of covered transactions and respond more
effectively to purchases involving countries of concern.
Committee Consideration
119TH CONGRESS
On February 27, 2025, Representative Frank Lucas (R-OK)
introduced H.R. 1713, the Agricultural Risk Review Act of 2025.
Representatives Jill N. Tokuda (D-HI), Andy Barr (R-KY),
Zachary Nunn (R-IA), David Rouzer (R-NC), Monica De La Cruz (R-
TX), John W. Rose (R-TN), Emanuel Cleaver (D-MO), Stephen F.
Lynch (D-MA), Sharice Davids (D-KS), Brittany Pettersen (D-CO),
David Scott (D-GA), Daniel Webster (R-FL), Tracey Mann (R-KS),
Josh Riley (D-NY), Donald G. Davis (D-NC), Pete Sessions (R-
TX), Kim Schrier (D-WA), Ron Estes (R-KS), Jimmy Panetta (D-
CA), and Derek Schmidt (R-KS) were added subsequently as
cosponsors. The bill was referred to the Committee on Financial
Services, and in addition to the Committees on Energy and
Commerce, and Foreign Affairs. The bill was attached to the
February 25, 2025, titled ``Examining Policies to Counter
China.''
On March 5, 2025, the Committee on Financial Services met
in open session to consider, among others, H.R. 1713. The
Committee ordered H.R. 1713, as amended, to be reported
favorably to the House of Representatives.
Related Hearings
Pursuant to clause 3(c)(6) of rule XIII of the Rules of the
House of Representatives, the following hearing was used to
develop H.R. 1713:
The Full Committee held a hearing on February 25, 2025,
entitled ``Examining Policies to Counter China.'' A discussion
draft version of the bill was considered in this hearing. The
following witnesses testified: Mr. John Miller, Senior Vice
President of Policy, Trust, Data, and Technology, and General
Counsel, Information Technology Industry Council; Mr. Nicholas
McMurray, Managing Director of International and Nuclear
Policy, ClearPath; Mr. John Cassara, retired United States
Treasury Department Special Agent; Mr. Martin Muhleisen,
Nonresident Senior Fellow at the GAO Economic Center at the
Atlantic Council; and Dr. Rush Doshi, C.V. Starr Senior Fellow
for Asian Studies, and Director of the China Strategy
Initiative at the Council on Foreign Relations, and an
assistant professor at Georgetown University.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
On March 5, 2025, the Committee ordered H.R. 1713, as
amended, to be reported favorably to the House by a recorded
vote of 48 yeas and 0 nays, a quorum being present. (Record
Vote No. FC-015).
The Committee considered the following amendments to H.R.
1713:
Representative Lucas offered an Amendment in
the Nature of a Substitute that made technical changes,
which was adopted in a recorded vote of 48 yeas and 0
nays, a quorum being present. (Record Vote No. FC-014).
Representative Joyce Beatty (D-OH) offered
an Amendment (No.1) that would delay the effective date
of the legislation until companies subject to
beneficial ownership reporting requirements under 31
U.S.C. Sec. 5336 have submitted legally mandated
reports. The amendment was withdrawn.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
Pursuant to clause 3(c) of rule XIII of the Rules of the
House of Representatives, the findings and recommendations of
the Committee, based on oversight activities under clause
2(b)(1) of rule X of the Rules of the House of Representatives,
are incorporated in the descriptive portions of this report.
Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the goal of H.R. 1713 is to increase
CFIUS scrutiny of covered transactions related to agriculture,
and specifically to examine transactions referred to it by the
Secretary of Agriculture that involve acquisitions by foreign
persons from China, Russia, North Korea, or Iran.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 1713.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when, as with the present report,
the Committee adopts as its own the cost estimate for the bill
prepared by the Director of the Congressional Budget Office.
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee adopts as its
own the cost estimate for the bill prepared by the Director of
the Congressional Budget Office.
Unfunded Mandates Statement
Pursuant to Section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended
by Section 101(a)(2) of the Unfunded Mandates Reform Act of
1995, Pub. L. No. 104-4), the Committee adopts as its own the
cost estimate prepared by the Director of the Congressional
Budget Office (CBO) pursuant to section 402 of the
Congressional Budget and Impoundment Control Act of 1974.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 1713 would require the Department of Agriculture
(USDA) to notify the Committee on Foreign Investment in the
United States (CFIUS) of any agricultural land purchased by a
foreign investor that may raise national security concerns.
CFIUS, an interagency committee, reviews potential national
security threats of foreign investment in the United States.
The committee would determine whether the transactions qualify
as covered transactions under its authority and take
appropriate action based on that determination. The bill also
would add USDA to CFIUS.
Under current law, foreign investors are required to
disclose to USDA their acquisition or disposal of agricultural
land. Although USDA does not currently assess land transactions
for national security risks, it does provide agencies in the
intelligence community with information on land purchased by
investors from certain countries. Using information from USDA
and CFIUS about staffing requirements for similar notification
and review activities, CBO estimates that implementing H.R.
1713 would cost $10 million over the 2025-2030 period. Any
related spending would be subject to the availability of
appropriated funds.
USDA currently participates in CFIUS investigations related
to agricultural investment upon request. Therefore, CBO
estimates that the costs to add USDA to the committee would not
be significant over the 2025-2030 period.
CBO has not reviewed H.R. 1713 for intergovernmental or
private-sector mandates. Section4 of the Unfunded Mandates
Reform Act excludes from the application of that act any
legislative provisions that are necessary for national
security. CBO has determined that the provisions of the Defense
Production Act of 1950, as amended by the bill, would fall
under that exclusion.
The CBO staff contacts for this estimate are Caroline
Dorminey and Matthew Pickford (for federal costs) and Brandon
Lever (for mandates). The estimate was reviewed by H. Samuel
Papenfuss, Deputy Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
Earmark Statement
With respect to clause 9 of rule XXI of the Rules of the
House of Representatives, the Committee has carefully reviewed
the provisions of the resolution and states that the provisions
of the bill do not contain any congressional earmarks, limited
tax benefits, or limited tariff benefits within the meaning of
the rule.
Federal Advisory Committee Act Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to the Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of the bill establishes or reauthorizes a program of
the Federal Government known to be duplicative of another
Federal program, including any program that was included in a
report to Congress pursuant to section 21 of the Public Law
111-139 or the most recent Catalog of Federal Domestic
Assistance.
Section-by-Section Analysis of the Legislation
The following is a section-by-section analysis of H.R.
1713, the Agricultural Risk Review Act of 2025:
Section 1. Short title
Section 1 provides the short title is the ``Agricultural
Risk Review Act of 2025.''
Section 2. Inclusion of the Secretary of Agriculture on CFIUS
Section 2 adds the Secretary of Agriculture to CFIUS for
covered transactions that involve agricultural land,
agricultural biotechnology, or the agricultural industry.
Section 3. Consideration of certain agricultural land transactions
Section 3 amends the Defense Production Act of 1950 to
include land transactions as reportable events.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
DEFENSE PRODUCTION ACT OF 1950
* * * * * * *
TITLE VII--GENERAL PROVISIONS
* * * * * * *
authority to review certain mergers, acquisitions, and takeovers
Sec. 721. (a) Definitions.--For purposes of this section, the
following definitions shall apply:
(1) Clarification.--The term ``national security''
shall be construed so as to include those issues
relating to ``homeland security'', including its
application to critical infrastructure.
(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,
direct or indirect, whether exercised or not exercised,
to determine, direct, or decide important matters
affecting an entity, subject to regulations prescribed
by the Committee.
(4) Covered transaction.--
(A) In general.--Except as otherwise
provided, the term ``covered transaction''
means--
(i) any transaction described in
subparagraph (B)(i); and
(ii) any transaction described in
clauses (ii) through (v) of
subparagraph (B) that is proposed,
pending, or completed on or after the
effective date set forth in section
1727 of the Foreign Investment Risk
Review Modernization Act of 2018.
(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, including such a merger,
acquisition, or takeover carried out
through a joint venture.
(ii) Subject to subparagraphs (C) and
(E), the purchase or lease by, or a
concession to, a foreign person of
private or public real estate that--
(I) is located in the United
States;
(II)(aa) is, is located
within, or will function as
part of, an air or maritime
port; or
(bb)(AA) is in close
proximity to a United States
military installation or
another facility or property of
the United States Government
that is sensitive for reasons
relating to national security;
(BB) could reasonably
provide the foreign
person the ability to
collect intelligence on
activities being
conducted at such an
installation, facility,
or property; or
(CC) could otherwise
expose national
security activities at
such an installation,
facility, or property
to the risk of foreign
surveillance; and
(III) meets such other
criteria as the Committee
prescribes by regulation,
except that such criteria may
not expand the categories of
real estate to which this
clause applies beyond the
categories described in
subclause (II).
(iii) Any other investment, subject
to regulations prescribed under
subparagraphs (D) and (E), by a foreign
person in any unaffiliated United
States business that--
(I) owns, operates,
manufactures, supplies, or
services critical
infrastructure;
(II) produces, designs,
tests, manufactures,
fabricates, or develops one or
more critical technologies; or
(III) maintains or collects
sensitive personal data of
United States citizens that may
be exploited in a manner that
threatens national security.
(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) 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) Real estate transactions.--
(i) Exception for certain real estate
transactions.--A real estate purchase,
lease, or concession described in
subparagraph (B)(ii) does not include a
purchase, lease, or concession of--
(I) a single ``housing
unit'', as defined by the
Census Bureau; or
(II) real estate in
``urbanized areas'', as defined
by the Census Bureau in the
most recent census, except as
otherwise prescribed by the
Committee in regulations in
consultation with the Secretary
of Defense.
(ii) Definition of close proximity.--
With respect to a real estate purchase,
lease, or concession described in
subparagraph (B)(ii)(II)(bb)(AA), the
Committee shall prescribe regulations
to ensure that the term ``close
proximity'' refers only to a distance
or distances within which the purchase,
lease, or concession of real estate
could pose a national security risk in
connection with a United States
military installation or another
facility or property of the United
States Government described in that
subparagraph.
(D) Other investments.--
(i) Other investment defined.--For
purposes of subparagraph (B)(iii), the
term ``other investment'' means an
investment, direct or indirect, by a
foreign person in a United States
business described in that subparagraph
that is not an investment described in
subparagraph (B)(i) and that affords
the foreign person--
(I) access to any material
nonpublic technical information
in the possession of the United
States business;
(II) 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 a
position on the board of
directors or equivalent
governing body; or
(III) any involvement, other
than through voting of shares,
in substantive decisionmaking
of the United States business
regarding--
(aa) the use,
development,
acquisition,
safekeeping, or release
of sensitive personal
data of United States
citizens maintained or
collected by the United
States business;
(bb) the use,
development
acquisition, or release
of critical
technologies; or
(cc) the management,
operation, manufacture,
or supply of critical
infrastructure.
(ii) Material nonpublic technical
information defined.--
(I) In general.--For purposes
of clause (i)(I), and subject
to regulations prescribed by
the Committee, the term
``material nonpublic technical
information'' means information
that--
(aa) provides
knowledge, know-how, or
understanding, not
available in the public
domain, of the design,
location, or operation
of critical
infrastructure; or
(bb) is not available
in the public domain,
and is necessary to
design, fabricate,
develop, test, produce,
or manufacture critical
technologies, including
processes, techniques,
or methods.
(II) Exemption for financial
information.--Notwithstanding
subclause (I), for purposes of
this subparagraph, the term
``material nonpublic technical
information'' does not include
financial information regarding
the performance of a United
States business.
(iii) Regulations.--
(I) In general.--The
Committee shall prescribe
regulations providing guidance
on the types of transactions
that the Committee considers to
be ``other investment'' for
purposes of subparagraph
(B)(iii).
(II) United States businesses
that own, operate, manufacture,
supply, or service critical
infrastructure.--The
regulations prescribed by the
Committee with respect to an
investment described in
subparagraph (B)(iii)(I)
shall--
(aa) specify the
critical infrastructure
subject to that
subparagraph based on
criteria intended to
limit application of
that subparagraph to
the subset of critical
infrastructure that is
likely to be of
importance to the
national security of
the United States; and
(bb) enumerate
specific types and
examples of such
critical
infrastructure.
(iv) Specific clarification for
investment funds.--
(I) Treatment of certain
investment fund investments.--
Notwithstanding clause (i)(II)
and subject to regulations
prescribed by the Committee, an
indirect investment by a
foreign person in a United
States business described in
subparagraph (B)(iii) through
an investment fund that affords
the foreign person (or a
designee of the foreign person)
membership as a limited partner
or equivalent on an advisory
board or a committee of the
fund shall not be considered an
``other investment'' for
purposes of subparagraph
(B)(iii) if--
(aa) the fund is
managed exclusively by
a general partner, a
managing member, or an
equivalent;
(bb) the general
partner, managing
member, or equivalent
is not a foreign
person;
(cc) the advisory
board or committee does
not have the ability to
approve, disapprove, or
otherwise control--
(AA)
investment
decisions of
the fund; or
(BB)
decisions made
by the general
partner,
managing
member, or
equivalent
related to
entities in
which the fund
is invested;
(dd) the foreign
person does not
otherwise have the
ability to control the
fund, including the
authority--
(AA) to
approve,
disapprove, or
otherwise
control
investment
decisions of
the fund;
(BB) to
approve,
disapprove, or
otherwise
control
decisions made
by the general
partner,
managing
member, or
equivalent
related to
entities in
which the fund
is invested; or
(CC) to
unilaterally
dismiss,
prevent the
dismissal of,
select, or
determine the
compensation of
the general
partner,
managing
member, or
equivalent;
(ee) the foreign
person does not have
access to material
nonpublic technical
information as a result
of its participation on
the advisory board or
committee; and
(ff) the investment
otherwise meets the
requirements of this
subparagraph.
(II) Treatment of certain
waivers.--
(aa) In general.--For
the purposes of items
(cc) and (dd) of
subclause (I) and
except as provided in
item (bb), a waiver of
a potential conflict of
interest, a waiver of
an allocation
limitation, or a
similar activity,
applicable to a
transaction pursuant to
the terms of an
agreement governing an
investment fund shall
not be considered to
constitute control of
investment decisions of
the fund or decisions
relating to entities in
which the fund is
invested.
(bb) Exception.--The
Committee may prescribe
regulations providing
for exceptions to item
(aa) for extraordinary
circumstances.
(v) Exception for air carriers.--For
purposes of subparagraph (B)(iii), the
term ``other investment'' does not
include an investment involving an air
carrier, as defined in section
40102(a)(2) of title 49, United States
Code, that holds a certificate issued
under section 41102 of that title.
(vi) Rule of construction.--Any
definition of ``critical
infrastructure'' established under any
provision of law other than this
section shall not be determinative for
purposes of this section.
(E) Country specification.--The Committee
shall prescribe regulations that further define
the term ``foreign person'' for purposes of
clauses (ii) and (iii) of subparagraph (B). In
prescribing such regulations, the Committee
shall specify criteria to limit the application
of such clauses to the investments of certain
categories of foreign persons. Such criteria
shall take into consideration how a foreign
person is connected to a foreign country or
foreign government, and whether the connection
may affect the national security of the United
States.
(F) 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.
(5) 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.
(6) Critical technologies.--
(A) In general.--The term ``critical
technologies'' means 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) Emerging and foundational
technologies controlled pursuant to
section 1758 of the Export Control
Reform Act of 2018.
(B) Recommendations.--
(i) In general.--The chairperson may
recommend technologies for
identification under the interagency
process set forth in section 1758(a) of
the Export Control Reform Act of 2018.
(ii) Matters informing
recommendations.--Recommendations by
the chairperson under clause (i) shall
draw upon information arising from
reviews and investigations conducted
under subsection (b), notices submitted
under subsection (b)(1)(C)(i),
declarations filed under subsection
(b)(1)(C)(v), and non-notified and non-
declared transactions identified under
subsection (b)(1)(H).
(7) 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.
(8) 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)).
(9) Investment.--The term ``investment'' means the
acquisition of equity interest, including contingent
equity interest, as further defined in regulations
prescribed by the Committee.
(10) Lead agency.--The term ``lead agency'' means the
agency or agencies designated as the lead agency or
agencies pursuant to subsection (k)(5).
(11) Party.--The term ``party'' has the meaning given
that term in regulations prescribed by the Committee.
(12) United states.--The term ``United States'' means
the several States, the District of Columbia, and any
territory or possession of the United States.
(13) United States business.--The term ``United
States business'' means a person engaged in interstate
commerce in the United States.
(b) National Security Reviews and Investigations.--
(1) National security reviews.--
(A) In general.--Upon receiving written
notification under subparagraph (C) of any
covered transaction, or pursuant to a
unilateral notification initiated under
subparagraph (D) with respect to any covered
transaction, the President, acting through the
Committee--
(i) shall review the covered
transaction to determine the effects of
the transaction on the national
security of the United States; and
(ii) shall consider the factors
specified in subsection (f) for such
purpose, as appropriate.
(B) Control by foreign government.--If the
Committee determines that the covered
transaction is a foreign government-controlled
transaction, the Committee shall conduct an
investigation of the transaction under
paragraph (2).
(C) Written notice.--
(i) In general.--
(I) In general.--Any party or
parties to any covered
transaction may initiate a
review of the transaction under
this paragraph by submitting a
written notice of the
transaction to the Chairperson
of the Committee.
(II) Comments and
acceptance.--
(aa) In general.--
Subject to item (cc),
the Committee shall
provide comments on a
draft or formal written
notice or accept a
formal written notice
submitted under
subclause (I) with
respect to a covered
transaction not later
than the date that is
10 business days after
the date of submission
of the draft or formal
written notice.
(bb) Completeness.--
If the Committee
determines that a draft
or formal written
notice described in
item (aa) is not
complete, the Committee
shall notify the party
or parties to the
transaction in writing
that the notice is not
complete and provide an
explanation of all
material respects in
which the notice is
incomplete.
(cc) Stipulations
required.--The timing
requirement under item
(aa) shall apply only
in a case in which the
parties stipulate under
clause (vi) that the
transaction is a
covered transaction.
(ii) Withdrawal of notice.--No
covered transaction for which a notice
was submitted under clause (i) may be
withdrawn from review, unless a written
request for such withdrawal is
submitted to the Committee by any party
to the transaction and approved by the
Committee.
(iii) Continuing discussions.--A
request for withdrawal under clause
(ii) shall not be construed to preclude
any party to the covered transaction
from continuing informal discussions
with the Committee or any member
thereof regarding possible resubmission
for review pursuant to this paragraph.
(iv) Inclusion of partnership and
side agreements.--The Committee may
require a written notice submitted
under clause (i) to include a copy of
any partnership agreements, integration
agreements, or other side agreements
relating to the transaction, as
specified in regulations prescribed by
the Committee.
(v) Declarations for certain covered
transactions.--
(I) In general.--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) 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.
(III) Committee response to
declaration.--
(aa) In general.--
Upon receiving a
declaration under this
clause with respect to
a covered transaction,
the Committee may, at
the discretion of the
Committee--
(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 take
action under item (aa)
not later than 30 days
after 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.
(IV) Mandatory
declarations.--
(aa) Regulations.--
The Committee shall
prescribe regulations
specifying the types of
covered transactions
for which the Committee
requires a declaration
under this subclause.
(bb) Certain covered
transactions with
foreign government
interests.--
(AA) In
general.--
Except as
provided in
subitem (BB),
the parties to
a covered
transaction
shall submit a
declaration
described in
subclause (I)
with respect to
the transaction
if the
transaction
involves an
investment that
results in the
acquisition,
directly or
indirectly, of
a substantial
interest in a
United States
business
described in
subsection
(a)(4)(B)(iii)
by a foreign
person in which
a foreign
government has,
directly or
indirectly, a
substantial
interest.
(BB)
Substantial
interest
defined.--In
this item, the
term
``substantial
interest'' has
the meaning
given that term
in regulations
which the
Committee shall
prescribe. In
developing
those
regulations,
the Committee
shall consider
the means by
which a foreign
government
could influence
the actions of
a foreign
person,
including
through board
membership,
ownership
interest, or
shareholder
rights. An
interest that
is excluded
under
subparagraph
(D) of
subsection
(a)(4) from the
term ``other
investment'' as
used in
subparagraph
(B)(iii) of
that subsection
or that is less
than a 10
percent voting
interest shall
not be
considered a
substantial
interest.
(CC)
Waiver.--The
Committee may
waive, with
respect to a
foreign person,
the requirement
under subitem
(AA) for the
submission of a
declaration
described in
subclause (I)
if the
Committee
determines that
the foreign
person
demonstrates
that the
investments of
the foreign
person are not
directed by a
foreign
government and
the foreign
person has a
history of
cooperation
with the
Committee.
(cc) Other
declarations required
by committee.--The
Committee may 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, that
involves a United
States business
described in subsection
(a)(4)(B)(iii)(II).
(dd) Exception.--The
submission of a
declaration described
in subclause (I) shall
not be required
pursuant to this
subclause with respect
to an investment by an
investment fund if--
(AA) the fund
is managed
exclusively by
a general
partner, a
managing
member, or an
equivalent;
(BB) the
general
partner,
managing
member, or
equivalent is
not a foreign
person; and
(CC) the
investment fund
satisfies, with
respect to any
foreign person
with membership
as a limited
partner on an
advisory board
or a committee
of the fund,
the criteria
specified in
items (cc) and
(dd) of
subsection
(a)(4)(D)(iv).
(ee) 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).
(ff) Timing and
refiling of
submission.--
(AA) In
general.--In
the regulations
prescribed
under item
(aa), the
Committee may
not require a
declaration to
be submitted
under this
subclause with
respect to a
covered
transaction
more than 45
days before the
completion of
the
transaction.
(BB) Refiling
of
declaration.--Th
e Committee may
not request or
recommend that
a declaration
submitted under
this subclause
be withdrawn
and refiled,
except to
permit parties
to a covered
transaction to
correct
material errors
or omissions in
the declaration
submitted with
respect to that
transaction.
(gg) Penalties.--The
Committee may impose a
penalty pursuant to
subsection (h)(3) with
respect to a party that
fails to comply with
this subclause.
(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.
(D) Unilateral initiation of review.--Subject
to subparagraph (G), the President or the
Committee may initiate a review under
subparagraph (A) of--
(i) any covered transaction (other
than a covered transaction described in
subparagraph (E));
(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
(iii) any covered transaction
described in subparagraph (E), if--
(I) any party to the
transaction or the entity
resulting from consummation of
the transaction materially
breaches a mitigation agreement
or condition described in
subsection (l)(3)(A);
(II) such breach is certified
to the Committee by the lead
department or agency monitoring
and enforcing such agreement or
condition as a material breach;
and
(III) the Committee
determines that there are no
other adequate and appropriate
remedies or enforcement tools
available to address such
breach.
(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.
(F) Timing.--Any review under this paragraph
shall be completed before the end of the 45-day
period beginning on the date of the acceptance
of written notice under subparagraph (C) by the
chairperson, or beginning on the date of the
initiation of the review in accordance with
subparagraph (D), as applicable.
(G) Limit on delegation of certain
authority.--The authority of the Committee to
initiate a review under subparagraph (D) may
not be delegated to any person, other than the
Deputy Secretary or an appropriate Under
Secretary of the department or agency
represented on the Committee.
(H) Identification of non-notified and non-
declared transactions.--The Committee shall
establish a process 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.
(I) Consideration of certain agricultural
land transactions.--
(i) In general.--After receiving
notification from the Secretary of
Agriculture of a reportable
agricultural land transaction, the
Committee shall determine--
(I) whether the transaction
is a covered transaction; and
(II) if the Committee
determines that the transaction
is a covered transaction,
whether the Committee should
initiate a review pursuant to
subparagraph (D), or take
another action authorized under
this section, with respect to
the reportable agricultural
land transaction.
(ii) Reportable agricultural land
transaction.--In this subparagraph, the
term ``reportable agricultural land
transaction'' means a transaction--
(I) that the Secretary of
Agriculture has reason to
believe is a covered
transaction, based on
information from or in
cooperation with the
intelligence community;
(II) that involves the
acquisition of an interest in
agricultural land by a foreign
person of the People's Republic
of China, the Democratic
People's Republic of Korea, the
Russian Federation, or the
Islamic Republic of Iran; and
(III) with respect to which a
person is required to submit a
report to the Secretary of
Agriculture under section 2(a)
of the Agricultural Foreign
Investment Disclosure Act of
1978.
(iii) Sunset.--The requirements under
this subparagraph shall terminate, with
respect to a foreign person of the
respective foreign country, on the date
that the People's Republic of China,
the Democratic People's Republic of
Korea, the Russian Federation, or the
Islamic Republic of Iran, as the case
may be, is removed from the list of
foreign adversaries in section 791.4 of
title 15, Code of Federal Regulations.
(2) National security investigations.--
(A) In general.--In each case described in
subparagraph (B), the Committee shall
immediately conduct an investigation of the
effects of a covered transaction on the
national security of the United States, and
take any necessary actions in connection with
the transaction to protect the national
security of the United States.
(B) Applicability.--Subparagraph (A) shall
apply in each case in which--
(i) a review of a covered transaction
under paragraph (1) results in a
determination that--
(I) the transaction threatens
to impair the national security
of the United States and the
risk has not been mitigated
during or prior to the review
of a covered transaction under
paragraph (1);
(II) the transaction is a
foreign government-controlled
transaction; or
(III) the transaction would
result in control of any
critical infrastructure of or
within the United States by or
on behalf of any foreign
person, if the Committee
determines that the transaction
could impair national security,
and that such impairment to
national security has not been
mitigated by assurances
provided or renewed with the
approval of the Committee, as
described in subsection (l),
during the review period under
paragraph (1); or
(ii) the lead agency recommends, and
the Committee concurs, that an
investigation be undertaken.
(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 15-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.
(D) Exception.--
(i) In general.--Notwithstanding
subparagraph (B)(i), an investigation
of a foreign government-controlled
transaction described in subclause (II)
of subparagraph (B)(i) or a transaction
involving critical infrastructure
described in subclause (III) of
subparagraph (B)(i) shall not be
required under this paragraph, if the
Secretary of the Treasury and the head
of the lead agency jointly determine,
on the basis of the review of the
transaction under paragraph (1), that
the transaction will not impair the
national security of the United States.
(ii) Nondelegation.--The authority of
the Secretary or the head of an agency
referred to in clause (i) may not be
delegated to any person, other than the
Deputy Secretary of the Treasury or the
deputy head (or the equivalent thereof)
of the lead agency, respectively.
(E) Guidance on certain transactions with
national security implications.--The
Chairperson shall, not later than 180 days
after the effective date of the Foreign
Investment and National Security Act of 2007,
publish in the Federal Register guidance on the
types of transactions that the Committee has
reviewed and that have presented national
security considerations, including transactions
that may constitute covered transactions that
would result in control of critical
infrastructure relating to United States
national security by a foreign government or an
entity controlled by or acting on behalf of a
foreign government.
(3) Certifications to congress.--
(A) Certified notice at completion of review
or assessment.--Upon completion of a review
under this subsection that concludes action
under this section, or upon the Committee
making a notification under paragraph
(1)(C)(v)(III)(aa)(DD), the chairperson and the
head of the lead agency shall transmit a
certified notice to the members of Congress
specified in subparagraph (C)(iii).
(B) Certified report at completion of
investigation.--As soon as is practicable after
completion of an investigation under subsection
(b) that concludes action under this section,
the chairperson and the head of the lead agency
shall transmit to the members of Congress
specified in subparagraph (C)(iii) a certified
written report (consistent with the
requirements of subsection (c)) on the results
of the investigation, unless the matter under
investigation has been sent to the President
for decision.
(C) Certification procedures.--
(i) In general.--Each certified
notice and report required under
subparagraphs (A) and (B),
respectively, shall be submitted to the
members of Congress specified in clause
(iii), and shall include--
(I) a description of the
actions taken by the Committee
with respect to the
transaction;
(II) a certification that all
relevant national security
factors have received full
consideration; and
(III) whether the transaction
is described under clause (i),
(ii), (iii), (iv), or (v) of
subsection (a)(4)(B).
(ii) Content of certification.--Each
certified notice and report required
under subparagraphs (A) and (B),
respectively, shall be signed by the
chairperson and the head of the lead
agency, and shall state that, in the
determination of the Committee, there
are no unresolved national security
concerns with the transaction that is
the subject of the notice or report.
(iii) Members of congress.--Each
certified notice and report required
under subparagraphs (A) and (B),
respectively, shall be transmitted--
(I) to the Majority Leader
and the Minority Leader of the
Senate;
(II) to the chair and ranking
member of the Committee on
Banking, Housing, and Urban
Affairs of the Senate and of
any committee of the Senate
having oversight over the lead
agency;
(III) to the Speaker and the
Minority Leader of the House of
Representatives;
(IV) to the chair and ranking
member of the Committee on
Financial Services of the House
of Representatives and of any
committee of the House of
Representatives having
oversight over the lead agency;
and
(V) with respect to covered
transactions involving critical
infrastructure, to the members
of the Senate from the State in
which the principal place of
business of the acquired United
States person is located, and
the member from the
Congressional District in which
such principal place of
business is located.
(iv) Signatures; limit on
delegation.--
(I) In general.--Each
certified notice and report
required under subparagraphs
(A) and (B), respectively,
shall be signed by the
chairperson and the head of the
lead agency, which signature
requirement may only be
delegated in accordance with
subclause (II).
(II) Delegation of
certifications.--
(aa) In general.--
Subject to item (bb),
the chairperson, in
consultation with the
Committee, may
determine the level of
official to whom the
signature requirement
under subclause (I) for
the chairperson and the
head of the lead agency
may be delegated. The
level of official to
whom the signature
requirement may be
delegated may differ
based on any factor
relating to a
transaction that the
chairperson, in
consultation with the
Committee, deems
appropriate, including
the type or value of
the transaction.
(bb) Limitation on
delegation with respect
to certain
transactions.--The
signature requirement
under subclause (I) may
be delegated not below
the level of the
Assistant Secretary of
the Treasury or an
equivalent official of
the lead agency.
(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).
(4) Analysis by director of national intelligence.--
(A) Analysis required.--
(i) In general.--Except as provided
in subparagraph (B), 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
community.--The Director shall seek and
incorporate into the analysis required
by clause (i) the views of all affected
or appropriate agencies of the
intelligence community 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.
(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)(4)(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 for purposes of this
subparagraph.
(C) Timing.--The analysis required under
subparagraph (A) shall be provided by the
Director of National Intelligence to the
Committee not later than 30 days after the date
on which notice of the transaction is accepted
by the Committee under paragraph (1)(C), but
such analysis may be supplemented or amended,
as the Director considers necessary or
appropriate, or upon a request for additional
information by the Committee. The Director may
begin the analysis at any time prior to
acceptance of the notice, in accordance with
otherwise applicable law.
(D) Interaction with intelligence
community.--The Director of National
Intelligence shall ensure that the intelligence
community remains engaged in the collection,
analysis, and dissemination to the Committee of
any additional relevant information that may
become available during the course of any
investigation conducted under subsection (b)
with respect to a transaction.
(E) Independent role of director.--The
Director of National Intelligence shall be a
nonvoting, ex officio member of the Committee,
and shall be provided with all notices received
by the Committee under paragraph (1)(C)
regarding covered transactions, but shall serve
no policy role on the Committee, other than to
provide analysis under subparagraphs (A) and
(C) in connection with a covered transaction.
(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 plans under subsection (l)(6)) with
respect to the transaction.
(5) Submission of additional information.--No
provision of this subsection shall be construed as
prohibiting any party to a covered transaction from
submitting additional information concerning the
transaction, including any proposed restructuring of
the transaction or any modifications to any agreements
in connection with the transaction, while any review or
investigation of the transaction is ongoing.
(6) Notice of results to parties.--The Committee
shall notify the parties to a covered transaction of
the results of a review or investigation under this
section, promptly upon completion of all action under
this section.
(7) Regulations.--Regulations prescribed under this
section shall include standard procedures for--
(A) submitting any notice of a covered
transaction to the Committee;
(B) submitting a request to withdraw a
covered transaction from review;
(C) resubmitting a notice of a covered
transaction that was previously withdrawn from
review; and
(D) providing notice of the results of a
review or investigation to the parties to the
covered transaction, upon completion of all
action under this section.
(8) Tolling of deadlines during lapse in
appropriations.--Any deadline or time limitation under
this subsection shall be tolled during a lapse in
appropriations.
(c) Confidentiality of Information.--
(1) In general.--Except as provided in paragraph (2),
any information or documentary material filed with the
President or the President's designee pursuant to this
section shall be exempt from disclosure under section
552 of title 5, United States Code, and no such
information or documentary material may be made public.
(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 Congress or any duly
authorized committee or subcommittee of
Congress.
(C) Information important to the national
security analysis or actions of the Committee
to any domestic governmental entity, or to any
foreign governmental entity of a United States
ally or partner, under the exclusive direction
and authorization of the chairperson, only to
the extent necessary for national security
purposes, and subject to appropriate
confidentiality and classification
requirements.
(D) Information that the parties have
consented to be disclosed to third parties.
(3) Cooperation with allies and partners.--
(A) In general.--The chairperson, in
consultation with other members of the
Committee, should establish a formal process
for the exchange of information under paragraph
(2)(C) with governments of countries that are
allies or partners of the United States, in the
discretion of the chairperson, to protect the
national security of the United States and
those countries.
(B) Requirements.--The process established
under subparagraph (A) should, in the
discretion of the chairperson--
(i) be designed to facilitate the
harmonization of action with respect to
trends in investment and technology
that could pose risks to the national
security of the United States and
countries that are allies or partners
of the United States;
(ii) provide for the sharing of
information with respect to specific
technologies and entities acquiring
such technologies as appropriate to
ensure national security; and
(iii) include consultations and
meetings with representatives of the
governments of such countries on a
recurring basis.
(d) Action by the President.--
(1) In general.--Subject to paragraph (4), the
President may take such action for such time as the
President considers appropriate to suspend or prohibit
any covered transaction that threatens to impair the
national security of the United States.
(2) Announcement by the president.--The President
shall announce the decision on whether or not to take
action pursuant to paragraph (1) 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).
(3) Enforcement.--The President may direct the
Attorney General of the United States to seek
appropriate relief, including divestment relief, in the
district courts of the United States, in order to
implement and enforce this subsection.
(4) Findings of the president.--The President may
exercise the authority conferred by paragraph (1), only
if the President finds that--
(A) there is credible evidence that leads the
President to believe that a foreign person that
would acquire an interest in a United States
business or its assets as a result of the
covered transaction might take action that
threatens to impair the national security; and
(B) provisions of law, other than this
section and the International Emergency
Economic Powers Act, do not, in the judgment of
the President, provide adequate and appropriate
authority for the President to protect the
national security in the matter before the
President.
(5) Factors to be considered.--For purposes of
determining whether to take action under paragraph (1),
the President shall consider, among other factors each
of the factors described in subsection (f), as
appropriate.
(e) Actions and Findings Nonreviewable.--
(1) In general.--The actions of the President under
paragraph (1) of subsection (d) and the findings of the
President under paragraph (4) of subsection (d) shall
not be subject to judicial review.
(2) Civil actions.--A civil action challenging an
action or finding under this section may be brought
only in the United States Court of Appeals for the
District of Columbia Circuit.
(3) Procedures for review of privileged
information.--If a civil action challenging an action
or finding under this section is brought, and the court
determines that protected information in the
administrative record, including classified or other
information subject to privilege or protections under
any provision of law, is necessary to resolve the
challenge, that information shall be submitted ex parte
and in camera to the court and the court shall maintain
that information under seal.
(4) Applicability of use of information provisions.--
The use of information provisions of sections 106, 305,
405, and 706 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1806, 1825, 1845, and 1881e)
shall not apply in a civil action brought under this
subsection.
(f) Factors To Be Considered.--For purposes of this section,
the President or the President's designee may, taking into
account the requirements of national security, consider--
(1) domestic production needed for projected national
defense requirements,
(2) the capability and capacity of domestic
industries to meet national defense requirements,
including the availability of human resources,
products, technology, materials, and other supplies and
services,
(3) the control of domestic industries and commercial
activity by foreign citizens as it affects the
capability and capacity of the United States to meet
the requirements of national security,
(4) the potential effects of the proposed or pending
transaction on sales of military goods, equipment, or
technology to any country--
(A) identified by the Secretary of State--
(i) under section 6(j) of the Export
Administration Act of 1979, as a
country that supports terrorism;
(ii) under section 6(l) of the Export
Administration Act of 1979, as a
country of concern regarding missile
proliferation; or
(iii) under section 6(m) of the
Export Administration Act of 1979, as a
country of concern regarding the
proliferation of chemical and
biological weapons;
(B) identified by the Secretary of Defense as
posing a potential regional military threat to
the interests of the United States; or
(C) listed under section 309(c) of the
Nuclear Non-Proliferation Act of 1978 on the
``Nuclear Non-Proliferation-Special Country
List'' (15 C.F.R. Part 778, Supplement No. 4)
or any successor list;
(5) the potential effects of the proposed or pending
transaction on United States international
technological leadership in areas affecting United
States national security;
(6) the potential national security-related effects
on United States critical infrastructure, including
major energy assets;
(7) the potential national security-related effects
on United States critical technologies;
(8) whether the covered transaction is a foreign
government-controlled transaction, as determined under
subsection (b)(1)(B);
(9) as appropriate, and particularly with respect to
transactions requiring an investigation under
subsection (b)(1)(B), a review of the current
assessment of--
(A) the adherence of the subject country to
nonproliferation control regimes, including
treaties and multilateral supply guidelines,
which shall draw on, but not be limited to, the
annual report on ``Adherence to and Compliance
with Arms Control, Nonproliferation and
Disarmament Agreements and Commitments''
required by section 403 of the Arms Control and
Disarmament Act;
(B) the relationship of such country with the
United States, specifically on its record on
cooperating in counter-terrorism efforts, which
shall draw on, but not be limited to, the
report of the President to Congress under
section 7120 of the Intelligence Reform and
Terrorism Prevention Act of 2004; and
(C) the potential for transshipment or
diversion of technologies with military
applications, including an analysis of national
export control laws and regulations;
(10) the long-term projection of United States
requirements for sources of energy and other critical
resources and material; and
(11) such other factors as the President or the
Committee may determine to be appropriate, generally or
in connection with a specific review or investigation.
(g) Additional Information to Congress; Confidentiality.--
(1) Briefing requirement on request.--The Committee
shall, upon request from any Member of Congress
specified in subsection (b)(3)(C)(iii), promptly
provide briefings on a covered transaction for which
all action has concluded under this section, or on
compliance with a mitigation agreement or condition
imposed with respect to such transaction, on a
classified basis, if deemed necessary by the
sensitivity of the information. Briefings under this
paragraph may be provided to the congressional staff of
such a Member of Congress having appropriate security
clearance.
(2) Application of confidentiality provisions.--
(A) In general.--The disclosure of
information under this subsection shall be
consistent with the requirements of subsection
(c). Members of Congress and staff of either
House of Congress or any committee of Congress,
shall be subject to the same limitations on
disclosure of information as are applicable
under subsection (c).
(B) Proprietary information.--Proprietary
information which can be associated with a
particular party to a covered transaction shall
be furnished in accordance with subparagraph
(A) only to a committee of Congress, and only
when the committee provides assurances of
confidentiality, unless such party otherwise
consents in writing to such disclosure.
(h) Regulations.--
(1) In general.--The President shall direct, subject
to notice and comment, the issuance of regulations to
carry out this section.
(2) Content.--Regulations issued under this
subsection shall--
(A) provide for the imposition of civil
penalties for any violation of this section,
including any mitigation agreement entered
into, conditions imposed, or order issued
pursuant to this section;
(B) to the extent possible--
(i) minimize paperwork burdens; and
(ii) coordinate reporting
requirements under this section with
reporting requirements under any other
provision of Federal law;
(C) provide for an appropriate role for the
Secretary of Labor with respect to mitigation
agreements; and
(D) provide that, in any review or
investigation of a covered transaction
conducted by the Committee under subsection
(b), the Committee should--
(i) consider the factors specified in
subsection (f); and
(ii) as appropriate, require parties
to provide to the Committee the
information necessary to consider such
factors.
(i) Effect on Other Law.--No provision of this section shall
be construed as altering or affecting any other authority,
process, regulation, investigation, enforcement measure, or
review provided by or established under any other provision of
Federal law, including the International Emergency Economic
Powers Act, or any other authority of the President or the
Congress under the Constitution of the United States.
(j) Technology Risk Assessments.--In any case in which an
assessment of the risk of diversion of defense critical
technology is performed by a designee of the President, a copy
of such assessment shall be provided to any other designee of
the President responsible for reviewing or investigating a
transaction under this section.
(k) Committee on Foreign Investment in the United States.--
(1) Establishment.--The Committee on Foreign
Investment in the United States, established pursuant
to Executive Order No. 11858, shall be a multi agency
committee to carry out this section and such other
assignments as the President may designate.
(2) Membership.--The Committee shall be comprised of
the following members or the designee of any such
member:
(A) The Secretary of the Treasury.
(B) The Secretary of Homeland Security.
(C) The Secretary of Commerce.
(D) The Secretary of Defense.
(E) The Secretary of State.
(F) The Attorney General of the United
States.
(G) The Secretary of Energy.
(H) The Secretary of Labor (nonvoting, ex
officio).
(I) The Director of National Intelligence
(nonvoting, ex officio).
(J) The heads of any other executive
department, agency, or office, as the President
determines appropriate, generally or on a case-
by-case basis.
(3) Chairperson.--The Secretary of the Treasury shall
serve as the chairperson of the Committee.
(4) Hiring authority.--
(A) Senior officials.--
(i) In general.--Each member of the
Committee shall designate an Assistant
Secretary, or an equivalent official,
who is appointed by the President, by
and with the advice and consent of the
Senate, to carry out such duties
related to the Committee as the member
of the Committee may delegate.
(ii) Department of the treasury.--
(I) In general.--There shall
be established in the Office of
International Affairs at the
Department of the Treasury 2
additional positions of
Assistant Secretary of the
Treasury, who shall be
appointed by the President, by
and with the advice and consent
of the Senate, to carry out
such duties related to the
Committee as the Secretary of
the Treasury may delegate,
consistent with this section.
(II) Assistant secretary for
investment security.--One of
the positions of Assistant
Secretary of the Treasury
authorized under subclause (I)
shall be the Assistant
Secretary for Investment
Security, whose duties shall be
principally related to the
Committee, as delegated by the
Secretary of the Treasury under
this section.
(B) 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. The primary responsibility of
positions authorized under the preceding
sentence shall be to administer this section.
(5) Designation of lead agency.--The Secretary of the
Treasury shall designate, as appropriate, a member or
members of the Committee to be the lead agency or
agencies on behalf of the Committee--
(A) for each covered transaction, and for
negotiating any mitigation agreements or other
conditions necessary to protect national
security; and
(B) for all matters related to the monitoring
of the completed transaction, to ensure
compliance with such agreements or conditions
and with this section.
(6) Other members.--The chairperson shall consult
with the heads of such other Federal departments,
agencies, and independent establishments in any review
or investigation under subsection (a), as the
chairperson determines to be appropriate, on the basis
of the facts and circumstances of the covered
transaction under review or investigation (or the
designee of any such department or agency head).
(7) Meetings.--The Committee shall meet upon the
direction of the President or upon the call of the
chairperson, without regard to section 552b of title 5,
United States Code (if otherwise applicable).
(8) Inclusion of the secretary of agriculture.--The
Secretary of Agriculture shall be a member of the
Committee with respect to a covered transaction that
involves--
(A) agricultural land;
(B) agriculture biotechnology; or
(C) the agriculture industry, including
agricultural transportation, storage, and
processing.
(l) Actions by the Committee to Address National Security
Risks.--
(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).
(3) Mitigation.--
(A) Agreements and conditions.--
(i) In general.--The Committee or a
lead agency may, on behalf of the
Committee, negotiate, enter into or
impose, and enforce any agreement or
condition with any party to the covered
transaction in order to mitigate any
risk to the national security of the
United States that arises as a result
of the covered transaction.
(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.
(B) Treatment of outdated agreements or
conditions.--The chairperson and the head of
the lead agency shall periodically review the
appropriateness of an agreement or condition
imposed under subparagraph (A) and terminate,
phase out, or otherwise amend the agreement or
condition if a threat no longer requires
mitigation through the agreement or condition.
(C) Limitations.--An agreement may not be
entered into or condition imposed under
subparagraph (A) with respect to a covered
transaction unless the Committee determines
that the agreement or condition resolves the
national security concerns posed by the
transaction, taking into consideration whether
the agreement or condition is reasonably
calculated to--
(i) be effective;
(ii) allow for compliance with the
terms of the agreement or condition in
an appropriately verifiable way; and
(iii) enable effective monitoring of
compliance with and enforcement of the
terms of the agreement or condition.
(D) Jurisdiction.--The provisions of section
706(b) shall apply to any mitigation agreement
entered into or condition imposed under
subparagraph (A).
(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 an assessment of the threat,
vulnerabilities, and consequences to national
security related to the transaction.
(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 or contribute to 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.
(C) Definitions.--For purposes of
subparagraph (A), the terms ``threat'',
``vulnerabilities'', and ``consequences to
national security'' shall have the meanings
given those terms by the Committee by
regulation.
(5) Tracking authority for withdrawn notices.--
(A) In general.--If any written notice of a
covered transaction that was submitted to the
Committee under this section is withdrawn
before any review or investigation by the
Committee under subsection (b) is completed,
the Committee shall establish, as appropriate--
(i) interim protections to address
specific concerns with such transaction
that have been raised in connection
with any such review or investigation
pending any resubmission of any written
notice under this section with respect
to such transaction and further action
by the President under this section;
(ii) specific time frames for
resubmitting any such written notice;
and
(iii) a process for tracking any
actions that may be taken by any party
to the transaction, in connection with
the transaction, before the notice
referred to in clause (ii) is
resubmitted.
(B) Designation of agency.--The lead agency,
other than any entity of the intelligence
community, shall, on behalf of the Committee,
ensure that the requirements of subparagraph
(A) with respect to any covered transaction
that is subject to such subparagraph are met.
(6) Negotiation, modification, monitoring, and
enforcement.--
(A) Designation of lead agency.--The lead
agency shall negotiate, modify, monitor, and
enforce, on behalf of the Committee, any
agreement entered into or condition imposed
under paragraph (3) with respect to a covered
transaction, based on the expertise with and
knowledge of the issues related to such
transaction on the part of the designated
department or agency. 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) Reporting by designated agency.--The lead
agency in connection with any agreement entered
into or condition imposed with respect to a
covered transaction shall--
(i) provide periodic reports to the
Committee on any material modification
to any such agreement or condition
imposed with respect to the
transaction; and
(ii) ensure that any material
modification to any such agreement or
condition is reported to the Director
of National Intelligence, the Attorney
General of the United States, and any
other Federal department or agency that
may have a material interest in such
modification.
(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) 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 a written notice under
clause (i) of subsection (b)(1)(C) or a
declaration under clause (v) of that
subsection with respect to a 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 to initiate a review of the
transaction 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) Successors and assigns.--Any agreement or
condition entered into or imposed under
paragraph (3)(A) shall be considered binding on
all successors and assigns unless and until the
agreement or condition terminates on its own
terms or is otherwise terminated by the
Committee in its sole discretion.
(G) Additional compliance measures.--Subject
to subparagraphs (A) through (F), 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.
(m) Annual Report to Congress.--
(1) In general.--The chairperson shall transmit a
report to the chairman and ranking member of the
committee of jurisdiction in the Senate and the House
of Representatives, before July 31 of each year on all
of the reviews and investigations of covered
transactions completed under subsection (b) during the
12-month period covered by the report.
(2) Contents of report relating to covered
transactions.--The annual report under paragraph (1)
shall contain the following information, with respect
to each covered transaction, for the reporting period:
(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) Specific, cumulative, and, as
appropriate, trend information on the numbers
of filings, investigations, withdrawals, and
decisions or actions by the President under
this section.
(C) Cumulative and, as appropriate, trend
information on the business sectors involved in
the filings which have been made, and the
countries from which the investments have
originated.
(D) Information on whether companies that
withdrew notices to the Committee in accordance
with subsection (b)(1)(C)(ii) have later
refiled such notices, or, alternatively,
abandoned the transaction.
(E) The types of security arrangements and
conditions the Committee has used to mitigate
national security concerns about a transaction,
including a discussion of the methods that the
Committee and any lead agency are using to
determine compliance with such arrangements or
conditions.
(F) A detailed discussion of all perceived
adverse effects of covered transactions on the
national security or critical infrastructure of
the United States that the Committee will take
into account in its deliberations during the
period before delivery of the next report, to
the extent possible.
(G) Statistics on compliance plans conducted
and actions taken by the Committee under
subsection (l)(6), including subparagraph (D)
of that subsection, during that period, a
general assessment of the compliance of parties
with agreements entered into and conditions
imposed under subsection (l)(3)(A) that are in
effect during that period, including a
description of any actions taken by the
Committee to impose penalties or initiate a
unilateral review pursuant to subsection
(b)(1)(D)(iii), and any recommendations for
improving the enforcement of such agreements
and conditions.
(H) Cumulative and, as appropriate, trend
information on the number of declarations filed
under subsection (b)(1)(C)(v), the actions
taken by the Committee in response to those
declarations, the business sectors involved in
those declarations, and the countries involved
in those declarations.
(I) A description of--
(i) the methods used by the Committee
to identify non-notified and non-
declared transactions under subsection
(b)(1)(H);
(ii) potential methods to improve
such identification and the resources
required to do so; and
(iii) the number of transactions
identified through the process
established under that subsection
during the reporting period and the
number of such transactions flagged for
further review.
(J) A summary of the hiring practices and
policies of the Committee pursuant to
subsection (k)(4).
(K) A list of the waivers granted by the
Committee under subsection
(b)(1)(C)(v)(IV)(bb)(CC).
(3) Contents of report relating to critical
technologies.--In order to assist Congress in its
oversight responsibilities with respect to this
section, the President and such agencies as the
President shall designate shall include in the annual
report submitted under paragraph (1)--
(A) an evaluation of whether there is
credible evidence of a coordinated strategy by
1 or more countries or companies to acquire
United States companies involved in research,
development, or production of critical
technologies for which the United States is a
leading producer;
(B) an evaluation of whether there are
industrial espionage activities directed or
directly assisted by foreign governments
against private United States companies aimed
at obtaining commercial secrets related to
critical technologies; and
(C) a description of the technologies
recommended by the chairperson under subsection
(a)(6)(B) for identification under the
interagency process set forth in section
1758(a) of the Export Control Reform Act of
2018.
(4) Form of report.--
(A) In general.--All appropriate portions of
the annual report under paragraph (1) may be
classified. An unclassified version of the
report, as appropriate, consistent with
safeguarding national security and privacy,
shall be made available to the public.
(B) Inclusion in classified version.--If the
Committee recommends that the President suspend
or prohibit a covered transaction because the
transaction threatens to impair the national
security of the United States, the Committee
shall, in the classified version of the report
required under paragraph (1), notify Congress
of the recommendation and, upon request,
provide a classified briefing on the
recommendation.
(C) Inclusions in unclassified version.--The
unclassified version of the report required
under paragraph (1) shall include, with respect
to covered transactions for the reporting
period--
(i) the number of notices submitted
under subsection (b)(1)(C)(i);
(ii) the number of declarations
submitted under subsection (b)(1)(C)(v)
and the number of such declarations
that were required under subclause (IV)
of that subsection;
(iii) the number of declarations
submitted under subsection (b)(1)(C)(v)
for which the Committee required
resubmission as notices under
subsection (b)(1)(C)(i);
(iv) the average number of days that
elapsed between submission of a
declaration under subsection
(b)(1)(C)(v) and the acceptance of the
declaration by the Committee;
(v) the median and average number of
days that elapsed between acceptance of
a declaration by the Committee and a
response described in subsection
(b)(1)(C)(v)(III);
(vi) information on the time it took
the Committee to provide comments on,
or to accept, notices submitted under
subsection (b)(1)(C)(i), including--
(I) the average number of
business days that elapsed
between the date of submission
of a draft notice and the date
on which the Committee provided
written comments on the draft
notice;
(II) the average number of
business days that elapsed
between the date of submission
of a formal written notice and
the date on which the Committee
accepted or provided written
comments on the formal written
notice; and
(III) if the average number
of business days for a response
by the Committee reported under
subclause (I) or (II) exceeded
10 business days--
(aa) an explanation
of the causes of such
delays, including
whether such delays are
caused by resource
shortages, unusual
fluctuations in the
volume of notices,
transaction
characteristics, or
other factors; and
(bb) an explanation
of the steps that the
Committee anticipates
taking to mitigate the
causes of such delays
and otherwise to
improve the ability of
the Committee to
provide comments on, or
to accept, notices
within 10 business
days;
(vii) the number of reviews or
investigations conducted under
subsection (b);
(viii) the number of investigations
that were subject to an extension under
subsection (b)(2)(C)(ii);
(ix) information on the duration of
those reviews and investigations,
including the median and average number
of days required to complete those
reviews and investigations;
(x) the number of notices submitted
under subsection (b)(1)(C)(i) and
declarations submitted under subsection
(b)(1)(C)(v) that were rejected by the
Committee;
(xi) the number of such notices and
declarations that were withdrawn by a
party to the covered transaction;
(xii) the number of such withdrawals
that were followed by the submission of
a subsequent such notice or declaration
relating to a substantially similar
covered transaction; and
(xiii) such other specific,
cumulative, or trend information that
the Committee determines is advisable
to provide for an assessment of the
time required for reviews and
investigations of covered transactions
under this section.
(n) Certification of Notices and Assurances.--
(1) In general.--Each notice, and any followup
information, submitted under this section and
regulations prescribed under this section to the
President or the Committee by a party to a covered
transaction, and any information submitted by any such
party in connection with any action for which a report
is required pursuant to paragraph (6)(B) of subsection
(l), with respect to the implementation of any
mitigation agreement or condition described in
paragraph (3)(A) of subsection (l), or any material
change in circumstances, shall be accompanied by a
written statement by the chief executive officer or the
designee of the person required to submit such notice
or information certifying that, to the best of the
knowledge and belief of that person--
(A) the notice or information submitted fully
complies with the requirements of this section
or such regulation, agreement, or condition;
and
(B) the notice or information is accurate and
complete in all material respects.
(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 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.
(o) Testimony.--
(1) In general.--Not later than March 31 of each
year, the chairperson, or the designee of the
chairperson, shall appear before the Committee on
Financial Services of the House of Representatives and
the Committee on Banking, Housing, and Urban Affairs of
the Senate to present testimony on--
(A) anticipated resources necessary for
operations of the Committee in the following
fiscal year at each of the departments or
agencies represented on the Committee;
(B) the adequacy of appropriations for the
Committee in the current and the previous
fiscal year to--
(i) ensure that thorough reviews and
investigations are completed as
expeditiously as possible;
(ii) monitor and enforce mitigation
agreements; and
(iii) identify covered transactions
for which a notice under clause (i) of
subsection (b)(1)(C) or a declaration
under clause (v) of that subsection was
not submitted to the Committee;
(C) management efforts to strengthen the
ability of the Committee to meet the
requirements of this section; and
(D) activities of the Committee undertaken in
order to--
(i) educate the business community,
with a particular focus on the
technology sector and other sectors of
importance to national security, on the
goals and operations of the Committee;
(ii) disseminate to the governments
of countries that are allies or
partners of the United States best
practices of the Committee that--
(I) strengthen national
security reviews of relevant
investment transactions; and
(II) expedite such reviews
when appropriate; and
(iii) promote openness to foreign
investment, consistent with national
security considerations.
(2) Sunset.--This subsection shall have no force or
effect on or after the date that is 7 years after the
date of the enactment of the Foreign Investment Risk
Review Modernization Act of 2018.
(p) 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''), to be administered by the chairperson.
(2) Authorization of appropriations for the
committee.--There are authorized to be appropriated to
the Fund for each of fiscal years 2019 through 2023
$20,000,000 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). The
total amount of fees collected under this
paragraph may not exceed the costs of
administering this section.
(B) Determination of amount of fee.--
(i) In general.--The amount of the
fee to be assessed under subparagraph
(A) with respect to a covered
transaction--
(I) may not exceed an amount
equal to the lesser of--
(aa) 1 percent of the
value of the
transaction; or
(bb) $300,000,
adjusted annually for
inflation pursuant to
regulations prescribed
by the Committee; and
(II) shall be based on the
value of the transaction,
taking into account--
(aa) the effect of
the fee on small
business concerns (as
defined in section 3 of
the Small Business Act
(15 U.S.C. 632));
(bb) the expenses of
the Committee
associated with
conducting activities
under this section;
(cc) the effect of
the fee on foreign
investment; and
(dd) such other
matters as the
Committee considers
appropriate.
(ii) Updates.--The Committee shall
periodically reconsider and adjust the
amount of the fee to be assessed under
subparagraph (A) with respect to a
covered transaction to ensure that the
amount of the fee does not exceed the
costs of administering this section and
otherwise remains appropriate.
(C) Deposit and availability of fees.--
Notwithstanding section 3302 of title 31,
United States Code, fees collected under
subparagraph (A) shall--
(i) be deposited into the Fund solely
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.
(D) Study on prioritization fee.--
(i) In general.--Not later than 270
days after the date of the enactment of
the Foreign Investment Risk Review
Modernization Act of 2018, the
chairperson, in consultation with the
Committee, shall complete a study of
the feasibility and merits of
establishing a fee or fee scale to
prioritize the timing of the response
of the Committee to a draft or formal
written notice during the period before
the Committee accepts the formal
written notice under subsection
(b)(1)(C)(i), in the event that the
Committee is unable to respond during
the time required by subclause (II) of
that subsection because of an unusually
large influx of notices, or for other
reasons.
(ii) Submission to congress.--After
completing the study required by clause
(i), the chairperson, or a designee of
the chairperson, shall submit to the
Committee on Banking, Housing, and
Urban Affairs of the Senate and the
Committee on Financial Services of the
House of Representatives a report on
the findings of the study.
(4) Transfer of funds.--To the extent provided in
advance in appropriations Acts, 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.
(q) 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 identifying 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.
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