II 

116TH CONGRESS 

2D SESSION S. 5049 

To require reviews of United States investment in foreign countries that 

may threaten national critical capabilities and to improve the use of 

authorities under the Defense Production Act of 1950, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 17, 2020 

Mr. CASEY introduced the following bill; which was read twice and referred 

to the Committee on Banking, Housing, and Urban Affairs 

A BILL 

To require reviews of United States investment in foreign 

countries that may threaten national critical capabilities 

and to improve the use of authorities under the Defense 

Production Act of 1950, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘National Critical Capa5 bilities Defense Act of 2020’’. 


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1 SEC. 2. NATIONAL CRITICAL CAPABILITIES REVIEWS. 

2 The Defense Production Act of 1950 (50 U.S.C. 

3 4501 et seq.) is amended by adding at the end the fol4 lowing: 

5 ‘‘TITLE VIII—NATIONAL CRIT6 ICAL CAPABILITIES REVIEWS 

7 ‘‘SEC. 801. DEFINITIONS. 

8 ‘‘In this title: 

9 ‘‘(1) APPROPRIATE CONGRESSIONAL COMMIT10 TEES.—The term ‘appropriate congressional com11 mittees’ means— 

12 ‘‘(A) the Committee on Armed Services, 

13 the Committee on Banking, Housing, and 

14 Urban Affairs, the Committee on Commerce, 

15 Science, and Transportation, the Committee on 

16 Finance, the Committee on Health, Education, 

17 Labor, and Pensions, and the Committee on 

18 Homeland Security and Governmental Affairs 

19 of the Senate; and 

20 ‘‘(B) the Committee on Armed Services, 

21 the Committee on Education and Labor, the 

22 Committee on Financial Services, the Com23 mittee on Homeland Security, the Committee 

24 on Transportation and Infrastructure, and the 

25 Committee on Ways and Means of the House of 

26 Representatives. 


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1 ‘‘(2) COMMISSION.—The term ‘Commission’ 

2 means the commission established under section 

3 803. 

4 ‘‘(3) COMMITTEE.—The term ‘Committee’ 

5 means the Committee on National Critical Capabili6 ties established under section 802. 

7 ‘‘(4) CONTROL.—The term ‘control’ means the 

8 power, direct or indirect, whether exercised or not 

9 exercised, to determine, direct, or decide important 

10 matters affecting an entity, subject to regulations 

11 prescribed by the Committee. 

12 ‘‘(5) COUNTRY OF CONCERN.—The term ‘coun13 try of concern’ has the meaning given that term in 

14 regulations prescribed by the Committee. 

15 ‘‘(6) COVERED TRANSACTION.— 

16 ‘‘(A) IN GENERAL.—Except as otherwise 

17 provided, the term ‘covered transaction’ means 

18 any of the following forms of outbound invest19 ment, proposed or pending on or after the date 

20 of the enactment of this title: 

21 ‘‘(i) Any merger, acquisition, or take22 over of a foreign person by or with a 

23 United States business that could result in 

24 a threat to one or more national critical 

25 capabilities, including such a merger, acVerDate Sep 11 2014 02:14 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S5049.IS S5049

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1 quisition, or takeover carried out through a 

2 joint venture. 

3 ‘‘(ii) Any other investment, subject to 

4 regulations prescribed under subparagraph 

5 (B), by a United States business in a for6 eign person that— 

7 ‘‘(I) owns, operates, manufac8 tures, supplies, or services national 

9 critical capabilities; or 

10 ‘‘(II) produces, designs, tests, 

11 manufactures, fabricates, or develops 

12 one or more national critical capabili13 ties. 

14 ‘‘(iii) Any change in the rights that a 

15 United States business has with respect to 

16 a foreign person in which the United 

17 States business has an investment, if that 

18 change could result in— 

19 ‘‘(I) a threat to one or more na20 tional critical capabilities; or 

21 ‘‘(II) an investment described in 

22 clause (ii). 

23 ‘‘(iv) Any other transaction, transfer, 

24 agreement, or arrangement, the structure 

25 of which is designed or intended to evade 


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1 or circumvent the application of this title, 

2 subject to regulations prescribed by the 

3 Committee. 

4 ‘‘(B) OTHER INVESTMENTS.— 

5 ‘‘(i) OTHER INVESTMENT DEFINED.— 

6 For purposes of subparagraph (A)(ii), the 

7 term ‘other investment’ means an invest8 ment, direct or indirect, by a United States 

9 business in a foreign person described in 

10 that subparagraph that is not an invest11 ment described in subparagraph (A)(i) and 

12 that— 

13 ‘‘(I) affords the foreign person— 

14 ‘‘(aa) the ability to shift to a 

15 foreign country any material non16 public technical information re17 lated to national critical capabili18 ties in the possession of the 

19 United States business; 

20 ‘‘(bb) membership or ob21 server rights on the board of di22 rectors or equivalent governing 

23 body of the United States busi24 ness or the right to nominate an 

25 individual to a position on the 


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1 board of directors or equivalent 

2 governing body; or 

3 ‘‘(cc) any involvement, other 

4 than through voting of shares, in 

5 substantive decision making of 

6 the United States business re7 garding— 

8 ‘‘(AA) the use, develop9 ment, acquisition, safe10 keeping, or release of sen11 sitive personal data of 

12 United States citizens main13 tained or collected by the 

14 United States business; 

15 ‘‘(BB) a shift to a for16 eign country of production, 

17 development acquisition, or 

18 release of national critical 

19 capabilities; 

20 ‘‘(CC) a shift to a for21 eign county of the manage22 ment, operation, manufac23 ture, or supply of national 

24 critical capabilities; or 


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1 ‘‘(DD) the transfer of 

2 knowledge from the United 

3 States business by any 

4 means, including the train5 ing of an employee under an 

6 agreement, either written or 

7 verbal, under which the em8 ployee is expected to acquire 

9 such knowledge and later 

10 the such knowledge with an 

11 entity in a foreign country; 

12 ‘‘(II) results in a shift in produc13 tion from the United States to a for14 eign country; or 

15 ‘‘(III) results in the establish16 ment of a new entity in a foreign 

17 country. 

18 ‘‘(ii) MATERIAL NONPUBLIC TECH19 NICAL INFORMATION DEFINED.— 

20 ‘‘(I) IN GENERAL.—For purposes 

21 of clause (i)(I), and subject to regula22 tions prescribed by the Committee, 

23 the term ‘material nonpublic technical 

24 information’ means information 

25 that— 


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1 ‘‘(aa) relates to the knowl2 edge, know-how, or under3 standing, not available in the 

4 public domain, of the design, lo5 cation, or operation of national 

6 critical capabilities; or 

7 ‘‘(bb) is not available in the 

8 public domain, and is necessary 

9 to design, fabricate, develop, test, 

10 produce, or manufacture national 

11 critical capabilities, including 

12 processes, techniques, or meth13 ods. 

14 ‘‘(II) EXEMPTION FOR FINAN15 CIAL INFORMATION.—Notwith16 standing subclause (I), for purposes of 

17 this subparagraph, the term ‘material 

18 nonpublic technical information’ does 

19 not include financial information re20 garding the performance of a foreign 

21 person. 

22 ‘‘(iii) REGULATIONS.— 

23 ‘‘(I) IN GENERAL.—The Com24 mittee shall prescribe regulations pro25 viding guidance on the types of transVerDate Sep 11 2014 02:14 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S5049.IS S5049

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1 actions that the Committee considers 

2 to be ‘other investment’ for purposes 

3 of subparagraph (A)(ii). 

4 ‘‘(II) UNITED STATES BUSI5 NESSES THAT OWN, OPERATE, MANU6 FACTURE, SUPPLY, OR SERVICE NA7 TIONAL CRITICAL CAPABILITIES.—The 

8 regulations prescribed by the Com9 mittee with respect to an investment 

10 described in subparagraph (A)(ii)(I) 

11 shall— 

12 ‘‘(aa) specify the national 

13 critical capabilities subject to 

14 that subparagraph based on cri15 teria intended to limit application 

16 of that subparagraph to the sub17 set of national critical capabilities 

18 that is likely to be of importance 

19 to the national security of the 

20 United States; and 

21 ‘‘(bb) enumerate specific 

22 types and examples of such capa23 bilities. 

24 ‘‘(7) FOREIGN PERSON.—The term ‘foreign per25 son’ means— 


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1 ‘‘(A) an individual who is not a United 

2 States citizen or an alien lawfully admitted for 

3 permanent residence to the United States; or 

4 ‘‘(B) an entity that is not organized under 

5 the laws of the United States or of any jurisdic6 tion within the United States, including such an 

7 entity— 

8 ‘‘(i) owned or controlled by a United 

9 States business; or 

10 ‘‘(ii) owned or controlled by the gov11 ernment of a foreign country. 

12 ‘‘(8) NATIONAL CRITICAL CAPABILITIES.—The 

13 term ‘national critical capabilities’, subject to regula14 tions prescribed by the Committee— 

15 ‘‘(A) means systems and assets, whether 

16 physical or virtual, so vital to the United States 

17 that the inability to develop such systems and 

18 assets or the incapacity or destruction of such 

19 systems or assets would have a debilitating im20 pact on national security; and 

21 ‘‘(B) includes the following: 

22 ‘‘(i) The production, in sufficient 

23 quantities, of any of the following articles: 

24 ‘‘(I) Medical supplies, medicines, 

25 and personal protective equipment. 


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1 ‘‘(II) Articles critical to the 

2 maintenance of the national electrical 

3 grid. 

4 ‘‘(III) Articles critical to infra5 structure construction after a natural 

6 or manmade disaster. 

7 ‘‘(IV) Any other articles the 

8 Committee considers appropriate, in9 cluding articles recommended by the 

10 Commission under section 806(c). 

11 ‘‘(ii) The supply chains for the pro12 duction of such articles. 

13 ‘‘(iii) The supply chain for the De14 partment of Defense. 

15 ‘‘(iv) Any other supply chain the Com16 mittee considers appropriate, including 

17 supply chains recommended by the Com18 mission under section 806(c). 

19 ‘‘(v) Services critical to the production 

20 of articles described in clause (i) or a sup21 ply chain described in clause (ii), (iii), or 

22 (iv). 

23 ‘‘(vi) Medical services. 

24 ‘‘(vii) Services critical to the mainte25 nance of the national electrical grid. 


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1 ‘‘(viii) Services critical to infrastruc2 ture construction after a natural or man3 made disaster. 

4 ‘‘(9) NATIONAL SECURITY.—The term ‘national 

5 security’— 

6 ‘‘(A) has the meaning given that term in 

7 section 721; and 

8 ‘‘(B) includes agricultural security, health 

9 security, homeland security, infrastructure secu10 rity, and natural resources security. 

11 ‘‘(10) PARTY.—The term ‘party’, with respect 

12 to a transaction, has the meaning given that term in 

13 regulations prescribed by the Committee. 

14 ‘‘(11) UNITED STATES.—The term ‘United 

15 States’ means the several States, the District of Co16 lumbia, and any territory or possession of the 

17 United States. 

18 ‘‘(12) UNITED STATES BUSINESS.—The term 

19 ‘United States business’ means a person engaged in 

20 interstate commerce in the United States. 

21 ‘‘SEC. 802. COMMITTEE ON NATIONAL CRITICAL CAPABILI22 TIES. 

23 ‘‘(a) IN GENERAL.—There is established a com24 mittee, to be known as the ‘Committee on National CritVerDate Sep 11 2014 02:14 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S5049.IS S5049

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1 ical Capabilities’, which shall carry out this title and such 

2 other assignments as the President may designate. 

3 ‘‘(b) MEMBERSHIP.— 

4 ‘‘(1) IN GENERAL.—The Committee shall be 

5 comprised of the head, or a designee of the head, of 

6 each of the following: 

7 ‘‘(A) The Office of Science and Technology 

8 Policy. 

9 ‘‘(B) The Department of the Treasury. 

10 ‘‘(C) The Department of Homeland Secu11 rity. 

12 ‘‘(D) The Department of Commerce. 

13 ‘‘(E) The Department of Defense. 

14 ‘‘(F) The Department of State. 

15 ‘‘(G) The Department of Justice. 

16 ‘‘(H) The Department of Energy. 

17 ‘‘(I) The Department of Health and 

18 Human Services. 

19 ‘‘(J) The Department of Agriculture. 

20 ‘‘(K) The Department of Labor. 

21 ‘‘(L) The Federal Emergency Management 

22 Agency. 

23 ‘‘(M) The National Institute of Standards 

24 and Technology. 


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1 ‘‘(N) The Centers for Disease Control and 

2 Prevention. 

3 ‘‘(O) The National Institute of Allergy and 

4 Infectious Diseases. 

5 ‘‘(P) Any other Federal agency the Presi6 dent determines appropriate, generally or on a 

7 case-by-case basis. 

8 ‘‘(2) EX OFFICIO MEMBER.—In addition the 

9 members of the Committee specified in paragraph 

10 (1), the Director of National Intelligence shall be a 

11 nonvoting, ex officio member of the Committee. 

12 ‘‘(c) CO-CHAIRS.—The Secretary of Homeland Secu13 rity and the Secretary of Commerce shall serve as the co14 chairs of the Committee. 

15 ‘‘(d) DESIGNATION OF OFFICIALS TO CARRY OUT

16 DUTIES RELATED TO COMMITTEE.—The head of each 

17 agency represented on the Committee shall designate an 

18 official, at or equivalent to the level of Assistant Secretary 

19 in the Department of the Treasury, who is appointed by 

20 the President, by and with the advice and consent of the 

21 Senate, to carry out such duties related to the Committee 

22 as the head of the agency may assign. 

23 ‘‘SEC. 803. REVIEW OF COVERED TRANSACTIONS. 

24 ‘‘(a) MANDATORY NOTIFICATION.—A United States 

25 business that engages in a covered transaction shall subVerDate Sep 11 2014 02:14 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S5049.IS S5049

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1 mit a written notification of the transaction to the Com2 mittee. 

3 ‘‘(b) REVIEW.— 

4 ‘‘(1) IN GENERAL.—Not later than 60 days 

5 after receiving written notification under subsection 

6 (a) of a covered transaction, the Committee shall— 

7 ‘‘(A) review the transaction to determine if 

8 the transaction is likely to result in a threat to 

9 one or more national critical capabilities, con10 sidering factors specified in section 805(a); and 

11 ‘‘(B) if the Committee determines under 

12 subparagraph (A) that the transaction poses a 

13 threat described in that subparagraph, rec14 ommend to the President that appropriate ac15 tion be taken to address or mitigate that threat, 

16 such as— 

17 ‘‘(i) procurement by the Federal Gov18 ernment of articles and services described 

19 in section 801(a)(8)(B) produced or sup20 plied in the United States; 

21 ‘‘(ii) use of authorities under title I or 

22 III to increase the production and supply 

23 of such articles and services in the United 

24 States; 


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1 ‘‘(iii) the use or establishment of Fed2 eral programs to support the production or 

3 supply of such articles and services in the 

4 United States; 

5 ‘‘(iv) the initiation of an investigation 

6 under section 232 of the Trade Expansion 

7 Act of 1962 (19 U.S.C. 1862) with respect 

8 to such articles; or 

9 ‘‘(v) such other actions as the Com10 mittee considers appropriate. 

11 ‘‘(2) UNILATERAL INITIATION OF REVIEW.— 

12 The Committee may initiate a review under para13 graph (1) of a covered transaction for which written 

14 notification is not submitted under subsection (a). 

15 ‘‘(3) INITIATION OF REVIEW BY REQUEST FROM

16 CONGRESS.—The Committee shall initiate a review 

17 under paragraph (1) of a covered transaction if the 

18 chairperson and the ranking member of any of the 

19 appropriate congressional committees request the 

20 Committee to review the transaction. 

21 ‘‘(c) AUTHORITY TO SUSPEND TRANSACTIONS.— 

22 ‘‘(1) IN GENERAL.—Except as provided in para23 graph (3), the Committee may suspend or prohibit, 

24 in accordance with paragraph (4), a proposed or 

25 pending covered transaction described in paragraph 


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1 (2) for such time as the covered transaction is under 

2 review under this section. 

3 ‘‘(2) TRANSACTIONS DESCRIBED.—A covered 

4 transaction is described in this paragraph if the 

5 Committee determines that the transaction poses a 

6 threat to one or more national critical capabilities. 

7 ‘‘(3) EXCEPTION.—The Committee may not 

8 suspend or prohibit a covered transaction under 

9 paragraph (1) if the transaction is related to an arti10 cle or service the supply chain for which is housed 

11 wholly within the United States or countries that are 

12 allies of the United States. 

13 ‘‘(4) PROCEDURES.—The Committee may sus14 pend or prohibit a proposed or pending covered 

15 transaction under paragraph (1) if— 

16 ‘‘(A) the motion to suspend or prohibit the 

transaction is be raised by not less than 1 17 ⁄3 of 

18 the members of the Committee; and 

‘‘(B) not less than 3 19 ⁄5 of the members of 

20 the Committee vote in favor of the motion. 

21 ‘‘SEC. 804. ACTION BY THE PRESIDENT. 

22 ‘‘(a) IN GENERAL.—Subject to subsection (d), the 

23 President may take such action for such time as the Presi24 dent considers appropriate to suspend or prohibit any covVerDate Sep 11 2014 02:14 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S5049.IS S5049

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1 ered transaction that poses a threat to one or more na2 tional critical capabilities. 

3 ‘‘(b) ANNOUNCEMENT BY THE PRESIDENT.—The 

4 President shall announce the decision on whether or not 

5 to take action pursuant to subsection (a) with respect to 

6 a covered transaction not later than 15 days after the ear7 lier of the date on which the review of the transaction 

8 under section 803 is completed. 

9 ‘‘(c) ENFORCEMENT.—The President may direct the 

10 Attorney General of the United States to seek appropriate 

11 relief, including divestment relief, in the district courts of 

12 the United States, in order to implement and enforce this 

13 section. 

14 ‘‘(d) FINDINGS OF THE PRESIDENT.—The President 

15 may exercise the authority conferred by subsection (a) 

16 with respect to a covered transaction only if the President 

17 finds that— 

18 ‘‘(1) there is credible evidence that leads the 

19 President to believe that the transaction poses a 

20 threat to one or more national critical capabilities; 

21 and 

22 ‘‘(2) provisions of law (other than this section) 

23 do not, in the judgment of the President, provide 

24 adequate and appropriate authority for the Presi25 dent to protect such capabilities. 


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1 ‘‘(e) FACTORS TO BE CONSIDERED.—For purposes 

2 of determining whether to take action under subsection 

3 (a), the President shall consider, among other factors each 

4 of the factors described in section 805(a), as appropriate. 

5 ‘‘SEC. 805. FACTORS TO BE CONSIDERED. 

6 ‘‘(a) IN GENERAL.—The Committee, in reviewing 

7 and making a determination with respect to a covered 

8 transaction under section 803, and the President, in deter9 mining whether to take action under section 804 with re10 spect to a covered transaction, shall consider any factors 

11 relating to national critical capabilities that the Committee 

12 or the President considers relevant, including— 

13 ‘‘(1) the long-term strategic economic, national 

14 security, and crisis preparedness interests of the 

15 United States; 

16 ‘‘(2) the history of distortive trade practices in 

17 each country in which a foreign party to the trans18 action is domiciled; 

19 ‘‘(3) control and beneficial ownership (as deter20 mined in accordance with section 847 of the Na21 tional Defense Authorization Act for Fiscal Year 

22 2020 (Public Law 116–92)) of each foreign person 

23 that is a party to the transaction; and 

24 ‘‘(4) impact on the domestic industry and re25 sulting resiliency, including the domestic skills base, 


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1 taking into consideration any pattern of foreign in2 vestment in the domestic industry. 

3 ‘‘(b) SUPPLY CHAIN SENSITIVITIES.—The Com4 mittee shall determine the sensitivities and national secu5 rity risks for sourcing of articles described in section 

6 801(a)(8)(B)(i), in accordance with the following: 

7 ‘‘(1) The sourcing of least concern shall be arti8 cles the supply chains for which are housed in whole 

9 within North America. 

10 ‘‘(2) The sourcing of lesser concern shall be ar11 ticles the supply chains for which are housed in 

12 whole within countries that are allies of the United 

13 States. 

14 ‘‘(3) The sourcing of greater concern shall be 

15 articles the supply chains for which are housed in 

16 part within countries of concern. 

17 ‘‘(4) The sourcing of greatest concern shall be 

18 articles the supply chains for which are housed or 

19 substantially dependent on resources from countries 

20 of concern. 

21 ‘‘SEC. 806. CONGRESSIONAL COMMISSION. 

22 ‘‘(a) ESTABLISHMENT OF COMMISSION.—There is es23 tablished a congressional commission, which shall— 

24 ‘‘(1) review the activities of the Committee an25 nually; and 


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1 ‘‘(2) make recommendations with respect to in2 dustries to be reviewed. 

3 ‘‘(b) MEMBERSHIP.—The Commission shall be com4 prised of the following: 

5 ‘‘(1) Three Members of the Senate from the 

6 majority party, appointed by the majority leader of 

7 the Senate. 

8 ‘‘(2) Three Members of the Senate from the mi9 nority party, appointed by the minority leader of the 

10 Senate. 

11 ‘‘(3) Three Members of the House of Rep12 resentatives from the majority party, appointed by 

13 the Speaker of the House. 

14 ‘‘(4) Three Members of the House of Rep15 resentatives from the minority party, appointed by 

16 the minority leader of the House. 

17 ‘‘(5) Three individuals representing workers 

18 and labor organizations, appointed by the chair19 person of the policy advisory committee on labor es20 tablished under section 135(c)(1) of the Trade Act 

21 of 1974 (19 U.S.C. 2155(c)(1)). 

22 ‘‘(6) Three individuals with expertise in domes23 tic manufacturing and supply chains, appointed by 

24 the chairperson of the committee referred to in para25 graph (5). 


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1 ‘‘(c) REVIEW OF INDUSTRIES.— 

2 ‘‘(1) IN GENERAL.—The Commission shall— 

3 ‘‘(A) conduct a review of— 

4 ‘‘(i) the industries specified in para5 graph (2); and 

6 ‘‘(ii) all industries identified by Fed7 eral Emergency Management Agency as 

8 carrying out emergency support functions; 

9 and 

10 ‘‘(B) not later than 2 years after the date 

11 of the enactment of the National Critical Capa12 bilities Defense Act of 2020, submit to the 

13 Committee recommendations with respect to ad14 ditional articles, supply chains, and services to 

15 be included in the definition of ‘national critical 

16 capabilities’ under section 801(a)(8). 

17 ‘‘(2) INDUSTRIES SPECIFIED.—The industries 

18 specified in this subsection are the following: 

19 ‘‘(A) Energy. 

20 ‘‘(B) Medical. 

21 ‘‘(C) Communications, including electronic 

22 and communications components. 

23 ‘‘(D) Defense. 

24 ‘‘(E) Transportation. 

25 ‘‘(F) Aerospace. 


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1 ‘‘(G) Robotics. 

2 ‘‘(H) Artificial intelligence. 

3 ‘‘(I) Semiconductors. 

4 ‘‘(J) Shipbuilding. 

5 ‘‘(K) Water, including water purification. 

6 ‘‘(d) APPLICATION OF FEDERAL ADVISORY COM7 MITTEE ACT.—The provisions of the Federal Advisory 

8 Committee Act (5 U.S.C. App.) shall not apply with re9 spect to the Commission. 

10 ‘‘SEC. 807. INCLUSION OF ADDITIONAL ARTICLES, SUPPLY 

11 CHAINS, AND SERVICES IN DEFINITION OF 

12 NATIONAL CRITICAL CAPABILITIES. 

13 ‘‘(a) PROPOSAL BY COMMITTEE.—Not later than 60 

14 days after receiving the recommendations of the Commis15 sion under section 806(c)(1)(B), the Committee shall sub16 mit to Congress a list of additional articles, supply chains, 

17 and services the Committee proposes for inclusion in the 

18 definition of ‘national critical capabilities’ under section 

19 801(a)(8). 

20 ‘‘(b) EFFECTIVENESS OF PROPOSAL.—The proposal 

21 of the Committee under subsection (a) with respect to ad22 ditional articles, supply chains, and services to include in 

23 the definition of ‘national critical capabilities’ under sec24 tion 801(a)(8) shall take effect on the date that is 45 days 

25 after the Committee submits the proposal to Congress unVerDate Sep 11 2014 02:14 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S5049.IS S5049

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1 less there is enacted into law a joint resolution dis2 approving the proposal before that date. 

3 ‘‘SEC. 808. REPORTING REQUIREMENTS. 

4 ‘‘(a) ANNUAL REPORT TO CONGRESS.— 

5 ‘‘(1) IN GENERAL.—Not later than 90 days 

6 after the date of the enactment of the National Crit7 ical Capabilities Defense Act of 2020, and annually 

8 thereafter, the Committee shall submit to the Com9 mission and the appropriate congressional commit10 tees a report— 

11 ‘‘(A) on the determination under section 

12 805(b) with respect to sensitivities and national 

13 security risks for sourcing of articles described 

14 in section 801(a)(8)(B)(i); 

15 ‘‘(B) describing, for the year preceding 

16 submission of the report— 

17 ‘‘(i) the notifications received under 

18 subsection (a) of section 803 and reviews 

19 conducted pursuant to such notifications; 

20 ‘‘(ii) reviews initiated under para21 graph (2) or (3) of subsection (b) of that 

22 section; 

23 ‘‘(iii) actions recommended by the 

24 Committee under subsection (b)(1)(B) of 


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1 that section as a result of such reviews; 

2 and 

3 ‘‘(iv) reviews during which the Com4 mittee determined no action was required; 

5 and 

6 ‘‘(C) assessing the overall impact of such 

7 reviews on national critical capabilities. 

8 ‘‘(2) FORM OF REPORT.—The report required 

9 by paragraph (1) shall be submitted in unclassified 

10 form but may include a classified annex. 

11 ‘‘(b) USE OF TITLE III AUTHORITIES.—Not later 

12 than 180 days after the date of the enactment of the Na13 tional Critical Capabilities Defense Act of 2020, the Com14 mittee shall submit to Congress a report that includes rec15 ommendations relating to use the authorities under title 

16 III to make investments to enhance national critical capa17 bilities and reduce dependency on materials and services 

18 imported from foreign countries. 

19 ‘‘SEC. 809. REQUIREMENTS RELATED TO GOVERNMENT 

20 PROCUREMENT. 

21 ‘‘(a) IN GENERAL.—Not later than 90 days after the 

22 date of the enactment of the National Critical Capabilities 

23 Defense Act of 2020, the Federal Acquisition Regulation 

24 shall be revised to require each person that is a prospective 

25 contractor for an executive agency to disclose— 


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1 ‘‘(1) the supply chains the person would use to 

2 carry out the contract and the extent to which the 

3 person would depend on materials and services im4 ported from foreign countries, including the percent5 age of such materials and services imported from 

6 countries of concern; and 

7 ‘‘(2) a good faith estimate of the effect of the 

8 contract on employment by the person in the United 

9 States. 

10 ‘‘(b) MATERIALITY.—The head of an executive agen11 cy shall consider the failure of a person to make the disclo12 sures required by subsection (a) to be material deter13 minants in awarding a contract to that person. 

14 ‘‘(c) APPLICABILITY.—The revisions to the Federal 

15 Acquisition Regulation required under subsection (a) shall 

16 apply with respect to contracts for which solicitations are 

17 issued on or after the date that is 90 days after the date 

18 of the enactment of the National Critical Capabilities De19 fense Act of 2020. 

20 ‘‘(d) DEFINITIONS.—In this section: 

21 ‘‘(1) EXECUTIVE AGENCY.—The term ‘executive 

22 agency’ has the meaning given that term in section 

23 133 of title 41, United States Code. 

24 ‘‘(2) FEDERAL ACQUISITION REGULATION.— 

25 The term ‘Federal Acquisition Regulation’ means 


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1 the regulation issued pursuant to section 1303(a)(1) 

2 of title 41, United States Code.’’. 

3 SEC. 3. USE OF AUTHORITIES UNDER TITLE VII OF THE DE4 FENSE PRODUCTION ACT OF 1950 FOR PRO5 DUCTION AND DISTRIBUTION OF A SARS– 

6 COV–2 VACCINE. 

7 Not later than 90 days after the date of the enact8 ment of this Act, the President shall, pursuant to section 

9 708(c) of the Defense Production Act of 1950 (50 U.S.C. 

10 4558(c)), conduct consultations with representatives of in11 dustry to provide for the making of voluntary agreements 

12 and plans of action to coordinate the production and dis13 tribution of a vaccine for the SARS–CoV–2 virus. 

14 SEC. 4. EXECUTIVE DIRECTOR OF DEFENSE PRODUCTION 

15 ACT COMMITTEE. 

16 Section 722(c) of the Defense Production Act of 1950 

17 (50 U.S.C. 4567(c)) is amended to read as follows: 

18 ‘‘(c) EXECUTIVE DIRECTOR.— 

19 ‘‘(1) IN GENERAL.—The President shall ap20 point an Executive Director of the Committee (in 

21 this subsection referred to as the ‘Executive Direc22 tor’), who shall— 

23 ‘‘(A) be responsible to the Chairperson of 

24 the Committee; and 


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1 ‘‘(B) carry out such activities relating to 

2 the Committee as the Chairperson may assign. 

3 ‘‘(2) COMPENSATION.—For pay periods begin4 ning on or after the date on which each Chairperson 

5 is appointed, funds for the pay of the Executive Di6 rector shall be paid from amounts appropriated for 

7 the salaries and expenses account of the agency of 

8 the Chairperson of the Committee. The Executive 

9 Director shall be compensated at a rate of pay 

10 equivalent to that of a Deputy Assistant Secretary 

11 (or a comparable position) of the agency of the 

12 Chairperson.’’. 

13 SEC. 5. REPORTING BY ENTITIES RECEIVING FINANCIAL 

14 ASSISTANCE RELATING TO COVID–19 RE15 SPONSE EFFORTS. 

16 (a) IN GENERAL.—Not later than one year after the 

17 date of the enactment of this Act, and 5 years after such 

18 date of enactment, any entity that receives more than 

19 $50,000,000 in direct or indirect financial assistance from 

20 the Federal Government related to the response to the 

21 coronavirus disease 2019 (commonly referred to as 

22 ‘‘COVID–19’’), including such assistance provided under, 

23 or treated as provided under, the Internal Revenue Code 

24 of 1986, or provided under title III of the Defense Produc25 tion Act of 1950 (50 U.S.C. 4531 et seq.), shall submit 


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1 to the appropriate congressional committees a report that 

2 discloses— 

3 (1)(A) the value of property, plant, and equip4 ment investments of the entity in the United States; 

5 (B) the number of individuals employed by the 

6 entity in the United States; and 

7 (C) the production and capacity production ca8 pacity of the entity in the United States; and 

9 (2)(A) the value of property, plant, and equip10 ment investments of the entity in foreign countries; 

11 (B) the number of individuals employed by the 

12 entity in foreign countries; and 

13 (C) the production and capacity production ca14 pacity of the entity in foreign countries. 

15 (b) PENALTIES AND FEDERAL ASSISTANCE

16 CLAWBACK.— 

17 (1) IN GENERAL.—An entity described in sub18 section (a) shall pay a penalty to the United States 

19 in an amount the Secretary of the Treasury deter20 mines is equivalent to the amount, if any, by which 

21 investments of the entity described in subsection 

22 (a)(2)(A) exceed the amount of investments of the 

23 entity described in subsection (a)(1)(A). 

24 (2) LIMITATION.—The amount of a penalty im25 posed under paragraph (1) on an entity may not exVerDate Sep 11 2014 02:14 Jan 10, 2021 Jkt 019200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S5049.IS S5049

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1 ceed 5 times the amount of direct or indirect finan2 cial assistance described in subsection (a) received 

3 by the entity from the Federal Government. 

4 (c) APPROPRIATE CONGRESSIONAL COMMITTEES DE5 FINED.—In this section, the term ‘‘appropriate congres6 sional committees’’ means 

7 (1) the Committee on Homeland Security and 

8 Governmental Affairs, the Committee on Finance, 

9 the Committee on Banking, Housing, and Urban Af10 fairs, and the Committee on Appropriations, and the 

11 Committee on Health, Education, Labor, and Pen12 sions of the Senate; and 

13 (2) the Committee on Homeland Security, the 

14 Committee on Ways and Means, the Committee on 

15 Financial Services, the Committee on Appropria16 tions, and the Committee on Education and Labor 

17 of the House of Representatives. 

Æ 


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