[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3136 Introduced in House (IH)]
<DOC>
118th CONGRESS
1st Session
H. R. 3136
To require notification and review of United States investment in
foreign countries that may threaten the national security of the United
States, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 9, 2023
Ms. DeLauro (for herself, Mr. Pascrell, and Mr. Fitzpatrick) introduced
the following bill; which was referred to the Committee on Ways and
Means
_______________________________________________________________________
A BILL
To require notification and review of United States investment in
foreign countries that may threaten the national security of the United
States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Critical Capabilities
Defense Act of 2023''.
SEC. 2. PROTECTION OF NATIONAL CRITICAL CAPABILITIES.
The Trade Act of 1974 (19 U.S.C. 2101 et seq.) is amended by adding
at the end the following:
``TITLE X--PROTECTION OF NATIONAL CRITICAL CAPABILITIES
``SEC. 1001. DEFINITIONS.
``In this title:
``(1) Appropriate congressional committees.--The term
`appropriate congressional committees' means--
``(A) the Committee on Finance, the Committee on
Banking, Housing, and Urban Affairs, the Select
Committee on Intelligence, and the Committee on Foreign
Relations of the Senate; and
``(B) the Committee on Ways and Means, the
Committee on Financial Services, the Permanent Select
Committee on Intelligence, and the Committee on Foreign
Affairs of the House of Representatives.
``(2) Country of concern.--The term `country of concern'
means, subject to such regulations as may be prescribed in
accordance with section 1008, any country the government of
which is engaged in a long-term pattern or serious instances of
conduct significantly adverse to the national security of the
United States or the security and safety of United States
persons, such as the People's Republic of China, the Russian
Federation, Iran, North Korea, Cuba, and the regime of Nicolas
Maduro in Venezuela.
``(3) Covered activity.--
``(A) In general.--Subject to such regulations as
may be prescribed in accordance with section 1008, and
except as provided in subparagraph (B), the term
`covered activity' means any activity engaged in by a
United States person in a national critical
capabilities sector that involves--
``(i) an acquisition of an equity interest
or contingent equity interest, or monetary
capital contribution, in a covered foreign
entity, directly or indirectly, by contractual
commitment or otherwise, with the goal of
generating income or gain;
``(ii) an arrangement for an interest in
the short- or long-term debt obligations of a
covered foreign entity that includes government
rights that are characteristic of an equity
investment, management, or other important
rights;
``(iii) the establishment of a wholly owned
subsidiary in a country of concern, such as a
greenfield investment, for the purpose of
production, design, testing, manufacturing,
fabrication, development, or research related
to one or more national critical capabilities
sectors;
``(iv) the establishment of a joint venture
in a country of concern or with a covered
foreign entity for the purpose of production,
design, testing, manufacturing, fabrication,
development, or research involving one or more
national critical capabilities sectors, or
other contractual or other commitments
involving a covered foreign entity to jointly
research and develop new innovation, including
through the transfer of capital or intellectual
property or other business proprietary
information;
``(v) the acquisition by a United States
person with a covered foreign entity of--
``(I) operational cooperation, such
as through supply or support
arrangements;
``(II) the right to board
representation (as an observer, even if
limited, or as a member) or an
executive role (as may be defined
through regulation) in a covered
foreign entity;
``(III) the ability to direct or
influence such operational decisions as
may be defined through such
regulations;
``(IV) formal governance
representation in any operating
affiliate, like a portfolio company, of
a covered foreign entity; or
``(V) a new relationship to share
or provide business services, such as
but not limited to financial services,
marketing services, maintenance, or
assembly functions, related to a
national critical capabilities sector;
``(vi) any activity by a recipient or
beneficiary of financial assistance, including
grants, tax incentives, or other types of
funding, with respect to a covered foreign
entity or a country of concern;
``(vii) any activity with respect to a
covered foreign entity or a country of concern
by an entity that benefits from annual
procurement of more than an amount to be
determined in regulations prescribed in
accordance with section 1008 in goods or
services by a United States national security
agency; or
``(viii) except as provided in subparagraph
(B), any other transaction involving a country
of concern or with a covered foreign entity
defined in regulations prescribed in accordance
with section 1008.
``(B) Exceptions.--The term `covered activity' does
not include--
``(i) any transaction the value of which
the Committee determines is de minimis;
``(ii) any category of transactions that
the Committee determines is in the national
interest of the United States, as may be
defined in regulations prescribed in accordance
with section 1008; or
``(iii) any ordinary business transaction
as may be defined in such regulations.
``(4) Covered foreign entity.--
``(A) In general.--Subject to regulations
prescribed in accordance with section 1008, and except
as provided in subparagraph (B), the term `covered
foreign entity' means--
``(i) any entity that is incorporated in,
has a principal place of business in, or is
organized under the laws of a country of
concern;
``(ii) any entity the equity securities of
which are primarily traded on one or more
exchanges in a country of concern;
``(iii) any entity in which any covered
foreign entity holds, individually or in the
aggregate, directly or indirectly, an ownership
interest of greater than 50 percent; or
``(iv) any other entity that is not a
United States person and that meets such
criteria as may be specified by the Committee
in such regulations.
``(B) Exception.--The term `covered foreign entity'
does not include any entity described in subparagraph
(A) that can demonstrate that a majority of the equity
interest in the entity is ultimately owned by--
``(i) nationals of the United States; or
``(ii) nationals of such countries (other
than countries of concern) as are identified
for purposes of this subparagraph pursuant to
regulations prescribed in accordance with
section 1008.
``(5) National critical capabilities sector.--Subject to
regulations prescribed in accordance with section 1008, the
term `national critical capabilities sector' includes sectors
within the following areas, as specified in such regulations:
``(A) Semiconductor manufacturing and advanced
packaging.
``(B) Large-capacity batteries.
``(C) Critical minerals and materials.
``(D) Artificial intelligence.
``(E) Quantum information science and technology.
``(F) Active pharmaceutical ingredients.
``(G) Automobile manufacturing.
``(H) Any other sector as may be--
``(i) determined by the President to be a
national critical capabilities sector based on
the significance of the sector to the national
security of the United States; and
``(ii) included in such definition by the
President through such regulations.
``(6) Party.--The term `party', with respect to an
activity, has the meaning given that term in regulations
prescribed in accordance with section 1008.
``(7) United states.--The term `United States' means the
several States, the District of Columbia, and any territory or
possession of the United States.
``(8) United states person.--The term `United States
person' means--
``(A) an individual who is a citizen or national of
the United States or an alien lawfully admitted for
permanent residence in the United States; and
``(B) any corporation, partnership, or other entity
organized under the laws of the United States or the
laws of any jurisdiction within the United States.
``SEC. 1002. ADMINISTRATION OF UNITED STATES INVESTMENT NOTIFICATION,
REVIEW, AND PROHIBITION AUTHORITY.
``(a) Establishment of Committee on National Critical
Capabilities.--
``(1) In general.--The President shall establish an
interagency committee to administer this title, to be known as
the `Committee on National Critical Capabilities' (in this
title referred to as the `Committee').
``(2) Delegation.--The President may delegate the
requirement under paragraph (1), and all or any portion of the
authorities and functions under this title, to the head of an
Executive department (as defined in section 101 of title 5,
United States Code).
``(b) Membership.--The following agencies shall be represented on
the Committee:
``(1) The Office of the United States Trade Representative.
``(2) The Department of Commerce.
``(3) The Department of State.
``(4) The Department of the Treasury.
``(5) The Department of Homeland Security.
``(6) The Department of Defense.
``(7) The Office of Science and Technology Policy.
``(8) The Department of Justice.
``(9) The Department of Energy.
``(10) The Department of Health and Human Services.
``(11) The Department of Agriculture.
``(12) The Department of Labor.
``(13) The Office of the Director of National Intelligence.
``(14) Any other Federal agency the President determines
appropriate, generally, or on a case-by-case basis.
``(c) Designation as Voting Members.--The heads of the agencies
specified in subsection (b) shall be voting members of the Committee.
``(d) Chairperson.--The head of the Executive department to which
the President delegates authority under subsection (a) shall serve as
the chairperson of the Committee.
``(e) Consultations.--In carrying out the duties of the chairperson
of the Committee, the chairperson shall consult with the United States
Trade Representative, the Secretary of Defense, the Secretary of
Commerce, the Secretary of State, and the Secretary of the Treasury.
``SEC. 1003. MANDATORY NOTIFICATION OF COVERED ACTIVITIES; REVIEW AND
ACTIONS TO MITIGATE RISK.
``(a) Mandatory Notification.--
``(1) In general.--Subject to regulations prescribed in
accordance with section 1008, beginning on the date that is 90
days after such regulations take effect, a United States person
that plans to engage in a covered activity shall submit to the
Committee a complete written notification of the activity not
later than 90 days before the anticipated initiation date of
the activity.
``(2) Circulation of notification.--
``(A) In general.--The Committee shall, upon
receipt of a notification under paragraph (1), promptly
inspect the notification for completeness, and, if
complete, immediately circulate the notification to
each agency specified in section 1002(b).
``(B) Incomplete notifications.--If a notification
submitted under paragraph (1) is incomplete, the
Committee shall , unilaterally or at request of any
member of the Committee, promptly inform the United
States person that submits the notification that the
notification is not complete and provide an explanation
of relevant material respects in which the notification
is not complete.
``(C) Referral to attorney general.--If the
Committee has reason to believe that a covered activity
that is the subject of a notification submitted under
paragraph (1) may be prohibited under this title or
regulations prescribed in accordance with section 1008,
the President may refer the notification to the
Attorney General for such action as the Attorney
General may determine to be proper.
``(b) Review.--
``(1) In general.--Subject to regulations prescribed in
accordance with section 1008, the Committee may, beginning on
the date that is 180 days after the date on which such
regulations take effect, review a covered activity that is the
subject of a notification under subsection (a) to determine if
the activity poses a risk to the national security of the
United States, including by considering factors specified in
section 1004.
``(2) Notice of review.--Not later than 45 days after
receipt of a complete notification under subsection (a), the
Committee shall notify the United States person that submitted
the notification of the decision of the Committee with respect
to whether to initiate a review under paragraph (1) of the
covered activity that is the subject of the notification.
``(3) Initiation of unilateral review.--The Committee may
initiate a unilateral review under paragraph (1) of a covered
activity for which notification is not submitted under
subsection (a).
``(c) Mitigation.--
``(1) In general.--If the Committee has reason to believe
that a covered activity that is the subject of a notification
under subsection (a) or with respect to which the Committee
initiates a unilateral review under subsection (b)(3) poses a
risk to the national security of the United States, the
Committee may negotiate, enter into or impose, and enforce any
agreement or condition with any party to the covered activity
in order to mitigate any risk to the national security of the
United States that arises as a result of the covered activity.
``(2) Abandonment of activities.--If a party to a covered
activity has voluntarily chosen to abandon the activity, the
Committee may negotiate, enter into or impose, and enforce any
agreement or condition with any party to the covered activity
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 activity.
``(3) Agreements and conditions relating to completed
activities.--While the Committee is conducting a review of a
covered activity under subsection (b), the Committee may
negotiate, enter into or impose, and enforce any agreement or
condition with any party to the covered activity in order to
mitigate any interim risk to the national security of the
United States that may arise as a result of the covered
activity until such time that the Committee has completed
action with respect to the covered activity under this title.
``(4) Treatment of outdated agreements or conditions.--The
Committee shall periodically review the appropriateness of an
agreement or condition imposed under paragraph (1), (2), or (3)
in mitigating the risk identified under subsection (b)(1) and
terminate, phase out, or otherwise amend the agreement or
condition if a risk no longer requires mitigation through the
agreement or condition.
``(5) Jurisdiction.--The provisions of section 706(b) shall
apply to any mitigation agreement entered into or condition
imposed under paragraph (1), (2), or (3).
``(d) Unilateral Action by the Committee To Mitigate Risk Posed by
a Covered Activity.--
``(1) In general.--Subject to paragraphs (2) and (4), the
Committee may take such action for such time as the Committee
considers appropriate to address any risk to the national
security of the United States posed by a covered activity that
is the subject of a notification under subsection (a) or with
respect to which the Committee initiates a unilateral review
under subsection (b)(3), including--
``(A) approving the covered activity subject to a
mitigation agreement entered into or conditions imposed
under subsection (c); or
``(B) if the Committee attempts to mitigate the
risk under subsection (c) and determines that
mitigation is inadequate to protect the national
security of the United States, prohibiting the covered
activity.
``(2) Seeking alternative enforcement.--The Committee shall
consider other existing measures to address any risk described
in paragraph (1) before taking any action under this subsection
with respect to the covered activity.
``(3) Announcement by committee.--Not later than 90 days
after the date on which the Committee initiates a review under
subsection (b), the Committee shall announce the decision of
the Committee with respect to whether the Committee plans to
take action pursuant to paragraph (1).
``(4) Findings by committee.--The Committee may exercise
the authority under paragraph (1) with respect to a covered
activity only if the Committee finds that--
``(A) there is credible evidence that leads the
Committee to believe that the covered activity poses a
risk to the national security of the United States; and
``(B) provisions of law (other than this subsection
and the International Emergency Economic Powers Act (50
U.S.C. 1701 et seq.)) do not, in the judgment of the
Committee provide adequate and appropriate authority
for the Committee to protect the national security with
respect to the covered activity.
``(5) Factors to be considered.--For purposes of
determining whether to take action under paragraph (1), the
Committee shall consider, among other factors, each of the
factors described in section 1004, as appropriate.
``(6) Public disclosure.--The Committee shall publish in
the Federal Register a notice of each exercise of the authority
under paragraph (1).
``(e) Authority To Prohibit and Regulate Covered Activities.--
``(1) Authority.--
``(A) In general.--Subject to regulations
prescribed in accordance with section 1008, and except
as provided by paragraph (2), the Committee may, on or
after the date of the enactment of this title, prohibit
or regulate any covered activity or category of covered
activities by any person, or with respect to any
property, subject to the jurisdiction of the United
States.
``(B) Criteria.--In exercising the authority under
subparagraph (A) with respect to a covered activity or
category of covered activities, the President may use--
``(i) criteria based on--
``(I) the nature of the covered
activity or category of covered
activities;
``(II) the nature of the covered
foreign entity involved in the covered
activity or category of covered
activities, including the country of
concern associated with the covered
foreign entity; or
``(III) the nature of the national
critical capabilities sector involved
in the covered activity or category of
covered activities; or
``(ii) such other criteria as the Committee
determines may result in a covered activity or
category of covered activities posing a risk to
the national security of the United States.
``(2) Exceptions.--The Committee, pursuant to regulations
prescribed in accordance with section 1008--
``(A) may not prohibit under paragraph (1) a
covered activity or category of covered activities for
the conduct of the official business of the Federal
Government, the United Nations, or international
financial institutions or multilateral development
banks (including their specialized agencies, programs,
funds, and related organizations), or by employees,
grantees, or contractors thereof; and
``(B) may authorize orders, directives, or licenses
to permit a covered activity otherwise prohibited under
paragraph (1), as the Committee determines appropriate.
``(f) Confidentiality of Information.--
``(1) In general.--Except as provided in paragraph (2), any
information or documentary material and any information or
materials derived from such information or documentary
materials filed with the Committee 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.--The exemption from disclosure provided
by paragraph (1) shall not prevent 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 President to any
domestic governmental entity, or to any foreign
governmental entity of an ally or partner of the United
States, under the exclusive direction and authorization
of the President, 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.
``(g) Recordkeeping.--In taking action under this section with
respect to a covered activity, the Committee may require any person--
``(1) to keep a full record of, and to furnish under oath,
in the form of reports or otherwise, complete information
relative to the covered activity before, during, or after the
completion of the covered activity, or as may be otherwise
necessary to enforce the provisions of this title; and
``(2) to produce any books of account, records, contracts,
letters, memoranda, or other papers relative to the covered
activity in the custody or control of the person.
``SEC. 1004. FACTORS TO BE CONSIDERED.
``The Committee, in reviewing and making a determination with
respect to a covered activity under section 1003, shall consider any
factors relating to the national security of the United States that the
Committee considers relevant, which may include--
``(1) the economic, intelligence, military, health, or
agricultural interests of the United States;
``(2) the history of distortive or predatory trade-related
practices in each country in which a covered activity occurs;
``(3) control and beneficial ownership (as determined in
accordance with section 847 of the National Defense
Authorization Act for Fiscal Year 2020 (Public Law 116-92; 10
U.S.C. 4819 note)) of each covered foreign entity that is a
party to the covered activity;
``(4) the impact on the domestic industry and resulting
resiliency, including the domestic human capital and supply
chains, taking into consideration any pattern of foreign
investment in the domestic industry;
``(5) whether the covered activity could, directly or
indirectly, support, enhance, or enable the capabilities of a
country of concern or a covered foreign entity; and
``(6) any additional national security factors identified
in regulations prescribed in accordance with section 1008.
``SEC. 1005. SUPPLY CHAIN SENSITIVITIES.
``The Committee shall determine the sensitivities and risks for
sourcing of goods, materials, and technologies needed for national
critical capabilities sectors in the United States, in accordance with
the following:
``(1) The sourcing of least concern shall be for goods,
materials, and technologies sourced, and supply chains housed,
in whole within countries that are allies of the United States.
``(2) The sourcing of greater concern shall be for goods,
materials, and technologies sourced, and supply chains housed
in part within countries of concern or from a covered foreign
entity but for which substitute production is available from
elsewhere at required scale to meet the needs of the United
States, including in terms of surge capacity.
``(3) The sourcing of greatest concern shall be for goods,
materials, and technologies sourced, and supply chains housed,
wholly or in part, in countries of concern or from a covered
foreign entity and for which substitute production is
unavailable elsewhere at required scale.
``SEC. 1006. REPORTING REQUIREMENTS.
``(a) In General.--Not later than 360 days after the date on which
the regulations prescribed under section 1008 take effect, and not less
frequently than every 90 days thereafter, the Committee shall submit to
the appropriate congressional committees a report--
``(1) on the determination under section 1005 with respect
to sensitivities and risks for sourcing of goods, materials,
and technologies described in that section;
``(2) providing, for the year preceding submission of the
report--
``(A) a summary of the notifications received under
subsection (a) of section 1003 and reviews conducted
pursuant to such notifications;
``(B) a summary of reviews initiated under
paragraph (1) or (3) of subsection (b) of that section;
``(C) a description of reviews during which the
Committee determined no action was required; and
``(D) a summary of--
``(i) mitigation agreements entered into
and conditions imposed under subsection (c) of
that section; and
``(ii) other existing, relevant mitigation
measures that could be used to mitigate the
risk; and
``(3) assessing the overall impact of such reviews on
national critical capabilities sectors, which may include
recommendations on--
``(A) expansion of Federal programs to support or
protect the production or supply of national critical
capabilities sectors in the United States, including
the potential of existing legal authorities to address
any related national security concerns;
``(B) investments to enhance national critical
capabilities sectors and reduce dependency on countries
of concern; and
``(C) the continuation, expansion, or modification
of the Committee.
``(b) Report on Sectors.--Not less frequently than annually, the
Committee shall submit to the appropriate congressional committees a
report describing--
``(1) the sectors determined by the President to be
national critical capabilities sectors under section
1001(5)(H); and
``(2) the reasons why each such sector was determined to be
a national critical capabilities sector.
``(c) Form of Report.--Each report required by this section shall
be submitted in unclassified form, but may include a classified annex.
``SEC. 1007. PENALTIES AND ENFORCEMENT.
``(a) Penalties.--
``(1) Unlawful acts.--Subject to regulations prescribed in
accordance with section 1008, it shall be unlawful--
``(A) to engage in a covered activity prohibited
under this title or pursuant to such regulations;
``(B) to fail to submit a notification under
subsection (a) of section 1003 with respect to a
covered activity or to submit other information as
required by the Committee;
``(C) to make a material misstatement or to omit a
material fact in any information submitted to the
Committee under this title;
``(D) to breach or violate a mitigation agreement
entered into or condition imposed under subsection (c)
of that section; or
``(E) to engage in any activity that evades or
avoids, has the purpose of evading or avoiding, causes
a violation of, or attempts to violate a prohibition
under this title or pursuant to such regulations.
``(2) Civil penalties.--A civil penalty may be imposed on
any person who commits an unlawful act described in paragraph
(1) in an amount not to exceed the greater of--
``(A) $250,000; or
``(B) an amount that is twice the amount of the
covered activity that is the basis of the violation
with respect to which the penalty is imposed.
``(b) Enforcement.--The President may direct the Attorney General
to seek appropriate relief, including divestment relief, in the
district courts of the United States, in order to implement and enforce
this title.
``SEC. 1008. REQUIREMENT FOR REGULATIONS.
``(a) In General.--Not later than 360 days after the date of the
enactment of this title, the Committee shall finalize regulations to
carry out this title.
``(b) Elements.--Regulations prescribed to carry out this title
shall include specific examples of the types of--
``(1) activities that will be considered to be covered
activities; and
``(2) the specific sectors and subsectors that may be
considered to be national critical capabilities sectors, at the
discretion of the Committee.
``(c) Requirements for Certain Regulations.--
``(1) In general.--The Committee shall prescribe
regulations further defining the terms used in this title,
including `covered activity', `covered foreign entity', and
`party', in accordance with subchapter II of chapter 5 and
chapter 7 of title 5, United States Code (commonly known as the
`Administrative Procedure Act').
``(2) Modifications to countries of concern.--The Committee
shall prescribe regulations with respect to modifying the
definition of the term `country of concern'. Such regulations
shall establish a process for removing from the definition of
that term a country that no longer meets the criteria under
section 1001(2).
``(d) Public Participation in Rulemaking.--The provisions of
section 709 shall apply to any regulations issued under this title.
``SEC. 1009. JUDICIAL REVIEW.
``(a) In General.--Except as provided in this section, and
notwithstanding any other provision of law, an action taken under this
title, or any action taken by an Executive department (as defined in
section 101 of title 5, United States Code) to implement such an
action, shall not be subject to administrative review or judicial
review, including bid protests before the Government Accountability
Office or in any Federal court.
``(b) Civil Actions.--A civil action challenging an action or
finding under this title may be brought only in the United States Court
of Appeals for the District of Columbia Circuit. Not later than 60 days
after a party is notified of an action by the Committee under this
title, the party may file a petition for judicial review in the United
States Court of Appeals for the District of Columbia claiming that the
action is unlawful.
``(c) Standard of Review.--The court shall hold an action unlawful
in response to a petition that the court finds to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.
``(d) Exclusive Jurisdiction and Remedy.--The United States Court
of Appeals for the District of Columbia Circuit shall have exclusive
jurisdiction over claims arising under this title against the United
States, any United States department or agency, or any component or
official of any such department or agency, subject to review by the
Supreme Court of the United States under section 1254 of title 28,
United States Code. A determination by the court under this section
shall be the exclusive judicial remedy for any claim described in this
section against the United States, any United States department or
agency, or any component or official of any such department or agency.
``(e) Administrative Record and Procedures.--
``(1) In general.--The procedures described in this
subsection shall apply to the review of a petition under this
section.
``(2) Administrative record.--
``(A) Filing of record.--The United States shall
file with the court an administrative record, which
shall consist of the information that the Committee
relied upon in taking an action under this title.
``(B) Unclassified, nonprivileged information.--All
unclassified information contained in the
administrative record that is not otherwise privileged
or subject to statutory protections shall be provided
to the petitioner with appropriate protections for any
privileged or confidential trade secrets and commercial
or financial information.
``(C) In camera and ex parte.--The following
information may be included in the administrative
record and shall be submitted only to the court ex
parte and in camera:
``(i) Classified information.
``(ii) Sensitive security information, as
defined by section 1520.5 of title 49, Code of
Federal Regulations (or any successor
regulation).
``(iii) Privileged law enforcement
information.
``(iv) Information obtained or derived from
any activity authorized under the Foreign
Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.), except that, with respect
to such information, subsections (c), (e), (f),
(g), and (h) of section 106 (50 U.S.C. 1806),
subsections (d), (f), (g), (h), and (i) of
section 305 (50 U.S.C. 1825), subsections (c),
(e), (f), (g), and (h) of section 405 (50
U.S.C. 1845), and section 706 (50 U.S.C. 1881e)
of that Act shall not apply.
``(v) Information subject to privilege or
protections under any other provision of law.
``(D) Under seal.--Any information that is part of
the administrative record filed ex parte and in camera
under subparagraph (C), or cited by the court in any
decision, shall be treated by the court consistent with
the provisions of this paragraph and shall remain under
seal and preserved in the records of the court to be
made available consistent with those provisions in the
event of further proceedings. In no event shall such
information be released to the petitioner or as part of
the public record.
``(f) Return.--After the expiration of the time to seek further
review, or the conclusion of further proceedings, the court shall
return the administrative record, including any and all copies, to the
United States.
``(g) Rule of Construction.--Nothing in this section shall be
construed as limiting, superseding, or preventing the invocation of,
any privileges or defenses that are otherwise available at law or in
equity to protect against the disclosure of information.
``(h) Definitions.--In this subsection, the term `classified
information'--
``(1) has the meaning given that term in section 1(a) of
the Classified Information Procedures Act (18 U.S.C. App.); and
``(2) includes--
``(A) any information or material that has been
determined by the United States Government pursuant to
an Executive order, statute, or regulation to require
protection against unauthorized disclosure for reasons
of national security; and
``(B) any Restricted Data, as defined in section 11
of the Atomic Energy Act of 1954 (42 U.S.C. 2014).
``SEC. 1010. MULTILATERAL ENGAGEMENT AND COORDINATION.
``(a) In General.--The President, in coordination with the United
States Trade Representative, the Secretary of Commerce, the Secretary
of State, and the Secretary of the Treasury, shall--
``(1) in coordination and consultation with relevant
Federal agencies, conduct bilateral and multilateral engagement
with the governments of countries that are allies and partners
of the United States to secure coordination of protocols and
procedures with respect to covered activities with countries of
concern and covered foreign entities; and
``(2) upon adoption of protocols and procedures described
in paragraph (1), work with those governments to establish
mechanisms for sharing information, including trends, with
respect to such activities.
``(b) Strategy for Development of Outbound Review Mechanisms.--The
Committee, in consultation with the Attorney General, shall--
``(1) develop a strategy to work with countries that are
allies and partners of the United States to develop mechanisms
comparable to this title for the review of covered activities;
and
``(2) provide technical assistance to those countries with
respect to the development of those mechanisms.
``SEC. 1011. AUTHORIZATION OF APPROPRIATIONS.
``(a) In General.--There are authorized to be appropriated such
sums as may be necessary to carry out this title, including to provide
outreach to industry and persons affected by this title.
``(b) Hiring Authority.--The head of any agency specified in
section 1002(b) 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 that agency. The primary responsibility of
individuals in positions authorized under the preceding sentence shall
be to administer this title.
``SEC. 1012. RULE OF CONSTRUCTION WITH RESPECT TO FREE AND FAIR
COMMERCE.
``Nothing in this title may be construed to restrain or deter
foreign investment in the United States, United States investment
abroad, or trade in goods or services, if such investment and trade do
not pose a risk to the national security of the United States.''.
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