National Critical Capabilities Defense Act of 2023

Subjects: Foreign Trade and International Finance


<html><body><pre>[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3136 Introduced in House (IH)]

&lt;DOC&gt;






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.''.
                                 &lt;all&gt;
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