50 USC 4551 - Small business

Collapse to view only § 4551. Small business

§ 4551. Small business
§ 4552. Definitions
§ 4553. Civilian personnel
§ 4554. Regulations and orders
§ 4555. Investigations; records; reports; subpoenas; right to counsel
§ 4556. Jurisdiction of courts; injunctions; venue; process; effect of termination of provisions
§ 4557. Liability for compliance with invalid regulations; discrimination against orders or contracts affected by priorities or allocations
§ 4558. Voluntary agreements and plans of action for preparedness programs and expansion of production capacity and supply
§ 4559. Public participation in rulemaking
§ 4560. Employment of personnel; appointment policies; nucleus executive reserve; use of confidential information by employees; printing and distribution of reports
§ 4561. Authorization of appropriations; availability of funds
§ 4562. Territorial application of chapter
§ 4563. Separability
§ 4564. Termination of chapter
§ 4565. Authority to review certain mergers, acquisitions, and takeovers
§ 4566. Prohibition on purchase of United States defense contractors by entities controlled by foreign governments
§ 4567. Defense Production Act Committee
§ 4568. Annual report on impact of offsets

§ 4551. Small business

(a) Participation

(b) Administration of chapter

(d) Information

(e) Allocations under section 4511

(Sept. 8, 1950, ch. 932, title VII, § 701, 64 Stat. 815; July 31, 1951, ch. 275, title I, § 108, 65 Stat. 138; June 30, 1953, ch. 171, § 7, 67 Stat. 130; Aug. 9, 1955, ch. 655, §§ 4, 5, 69 Stat. 580; Pub. L. 96–294, title I, § 105(c), June 30, 1980, 94 Stat. 633; Pub. L. 102–558, title I, § 131, Oct. 28, 1992, 106 Stat. 4209.)

§ 4552. DefinitionsFor purposes of this chapter, the following definitions shall apply:

(1) Critical component

(2)

(3) Critical technology

(4) Critical technology item

(5) Defense contractorThe term “defense contractor” means any person who enters into a contract with the United States—

(A) to furnish materials, industrial resources, or a critical technology for the national defense; or

(B) to perform services for the national defense.

(6) Domestic industrial base

(7) Domestic source

(A) In generalExcept as provided in subparagraph (B), the term “domestic source” means a business concern—

(i) that performs in the United States or Canada substantially all of the research and development, engineering, manufacturing, and production activities required of such business concern under a contract with the United States relating to a critical component or a critical technology item; and

(ii) that procures from business concerns described in clause (i) substantially all of any components and assemblies required under a contract with the United States relating to a critical component or critical technology item.

(B) Domestic source for subchapter II

(i) In generalFor purposes of subchapter II, the term “domestic source” means a business concern that—(I) performs substantially all of the research and development, engineering, manufacturing, and production activities required of such business concern under a contract with the United States relating to a critical component or a critical technology item in—(aa) the United States or Canada; or(bb) subject to clause (ii), Australia or the United Kingdom; and(II) procures from business concerns described in subclause (I) substantially all of any components or assemblies required under a contract with the United States relating to a critical component or critical technology item.

(ii) Limitations on use of business concerns in Australia and United Kingdom(I) In general(II) National defense matter definedFor purposes of subclause (I), the term “national defense matter” is a matter relating to the development or production of—(aa) a defense article, as defined in section 301 of title 10; or(bb) materials critical to national security, as defined in section 98h–1(f) of this title.

(8) Facilities

(9) Foreign source

(10) Guaranteeing agency

(11) Homeland securityThe term “homeland security” includes efforts—

(A) to prevent terrorist attacks within the United States;

(B) to reduce the vulnerability of the United States to terrorism;

(D) to recover from a terrorist attack in the United States.

(12) Industrial resources

(13) MaterialsThe term “materials” includes—

(A) any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and

(B) any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items.

(14) National defense

(15) Person

(16) ServicesThe term “services” includes any effort that is needed for or incidental to—

(A) the development, production, processing, distribution, delivery, or use of an industrial resource or a critical technology item;

(B) the construction of facilities;

(D) other national defense programs and activities.

(17) Small business concern

(Sept. 8, 1950, ch. 932, title VII, § 702, 64 Stat. 815; June 30, 1953, ch. 171, § 8, 67 Stat. 130; Pub. L. 91–379, title I, § 102, Aug. 15, 1970, 84 Stat. 796; Pub. L. 102–558, title I, § 132, Oct. 28, 1992, 106 Stat. 4210; Pub. L. 103–337, div. C, title XXXIV, § 3411(b), Oct. 5, 1994, 108 Stat. 3110; Pub. L. 108–195, § 5, Dec. 19, 2003, 117 Stat. 2893; Pub. L. 111–67, § 8, Sept. 30, 2009, 123 Stat. 2017; Pub. L. 118–31, div. A, title X, § 1080(a), Dec. 22, 2023, 137 Stat. 415.)

§ 4553. Civilian personnel

Any officer or agency head may—

(1) appoint civilian personnel without regard to section 5331(b) of title 5 and without regard to the provisions of title 5 governing appointments in the competitive service; and

(2) fix the rate of basic pay for such personnel without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5 relating to classification and General Schedule pay rates,

except that no individual so appointed may receive pay in excess of the annual rate of basic pay payable for GS–18 of the General Schedule, as the President deems appropriate to carry out this chapter.

(Sept. 8, 1950, ch. 932, title VII, § 703, 64 Stat. 816; July 31, 1951, ch. 275, title I, § 109(a), (b), 65 Stat. 138; Pub. L. 102–558, title I, § 133, Oct. 28, 1992, 106 Stat. 4212.)

§ 4554. Regulations and orders

(a) In general

(b) Procurement regulations

(Sept. 8, 1950, ch. 932, title VII, § 704, 64 Stat. 816; July 31, 1951, ch. 275, title I, § 109(c), 65 Stat. 139; Pub. L. 102–558, title I, § 134, Oct. 28, 1992, 106 Stat. 4212.)

§ 4555. Investigations; records; reports; subpoenas; right to counsel

(a) Authority of President to obtain information; enforcement of subpoenas

(b) Production of documentary evidence; reimbursement of witnesses

(d) Protection of confidentiality; sanction for violation

(e) Right to record of testimony and representation by counsel

(Sept. 8, 1950, ch. 932, title VII, § 705, 64 Stat. 816; July 31, 1951, ch. 275, title I, § 109(d), 65 Stat. 139; June 30, 1952, ch. 530, title I, § 117, 66 Stat. 306; June 30, 1953, ch. 171, § 9, 67 Stat. 131; Pub. L. 91–452, title II, § 251, Oct. 15, 1970, 84 Stat. 931; Pub. L. 102–558, title I, § 142, Oct. 28, 1992, 106 Stat. 4217; Pub. L. 108–195, § 4, Dec. 19, 2003, 117 Stat. 2893.)

§ 4556. Jurisdiction of courts; injunctions; venue; process; effect of termination of provisions

(a) Whenever in the judgment of the President any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the President that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order, with or without such injunction or restraining order, shall be granted without bond.

(b) The district courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have jurisdiction of violations of this chapter or any rule, regulation, order, or subpena thereunder, and of all civil actions under this chapter to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, order, or subpena thereunder. Any criminal proceeding on account of any such violation may be brought in any district in which any act, failure to act, or transaction constituting the violation occurred. Any such civil action may be brought in any such district or in the district in which the defendant resides or transacts business. Process in such cases, criminal or civil, may be served in any district wherein the defendant resides or transacts business or wherever the defendant may be found; the subpena for witnesses who are required to attend a court in any district in such case may run into any other district. The termination of the authority granted in any subchapter or section of this chapter, or of any rule, regulation, or order issued thereunder, shall not operate to defeat any suit, action, or prosecution, whether theretofore or thereafter commenced, with respect to any right, liability, or offense incurred or committed prior to the termination date of such subchapter or of such rule, regulation, or order. No costs shall be assessed against the United States in any proceeding under this chapter. All litigation arising under this chapter or the regulations promulgated thereunder shall be under the supervision and control of the Attorney General.

(Sept. 8, 1950, ch. 932, title VII, § 706, 64 Stat. 817; July 31, 1951, ch. 275, title I, § 109(e), 65 Stat. 139.)

§ 4557. Liability for compliance with invalid regulations; discrimination against orders or contracts affected by priorities or allocations

No person shall be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with a rule, regulation, or order issued pursuant to this chapter, notwithstanding that any such rule, regulation, or order shall thereafter be declared by judicial or other competent authority to be invalid. No person shall discriminate against orders or contracts to which priority is assigned or for which materials or facilities are allocated under subchapter I of this chapter or under any rule, regulation, or order issued thereunder, by charging higher prices or by imposing different terms and conditions for such orders or contracts than for other generally comparable orders or contracts, or in any other manner.

(Sept. 8, 1950, ch. 932, title VII, § 707, 64 Stat. 818; June 30, 1952, ch. 530, title I, § 118, 66 Stat. 306.)

§ 4558. Voluntary agreements and plans of action for preparedness programs and expansion of production capacity and supply

(a) Immunity from civil and criminal liability or defense to action under antitrust laws; exceptions

(b) DefinitionsFor purposes of this chapter—

(1) Antitrust laws

(2) Plan of action

(1) Upon finding that conditions exist which may pose a direct threat to the national defense or its preparedness programs, the President may consult with representatives of industry, business, financing, agriculture, labor, and other interests in order to provide for the making by such persons, with the approval of the President, of voluntary agreements and plans of action to help provide for the national defense.

(2) The authority granted to the President in paragraph (1) and subsection (d) may be delegated by him (A) to individuals who are appointed by and with the advice and consent of the Senate, or are holding offices to which they have been appointed by and with the advice and consent of the Senate, (B) upon the condition that such individuals consult with the Attorney General and with the Federal Trade Commission not less than ten days before consulting with any persons under paragraph (1), and (C) upon the condition that such individuals obtain the prior approval of the Attorney General, after consultation by the Attorney General with the Federal Trade Commission, to consult under paragraph (1).

(3) Upon a determination by the President, on a nondelegable basis, that a specific voluntary agreement or plan of action is necessary to meet national defense requirements resulting from an event that degrades or destroys critical infrastructure—

(A) an individual that has been delegated authority under paragraph (1) with respect to such agreement or plan shall not be required to consult with the Attorney General or the Federal Trade Commission under paragraph (2)(B); and

(B) the President shall publish a rule in accordance with subsection (e)(2)(B) and publish notice in accordance with subsection (e)(3)(B) with respect to such agreement or plan as soon as is practicable under the circumstances.

(d) Advisory committees; establishment; applicable provisions; membership; notice and participation in meetings; verbatim transcript; availability to public

(1) To achieve the objectives of subsection (c)(1) of this section, the President or any individual designated pursuant to subsection (c)(2) may provide for the establishment of such advisory committees as he determines are necessary. In addition to the requirements specified in this section and except as provided in subsection (n), any such advisory committee shall be subject to the provisions of chapter 10 of title 5, whether or not such chapter or any of its provisions expire or terminate during the term of this chapter or of such committees, and in all cases such advisory committees shall be chaired by a Federal employee (other than an individual employed pursuant to section 3109 of title 5) and shall include representatives of the public. The Attorney General and the Federal Trade Commission shall have adequate advance notice of any meeting and may have an official representative attend and participate in any such meeting.

(2) A full and complete verbatim transcript shall be kept of such advisory committee meetings, and shall be taken and deposited, together with any agreement resulting therefrom, with the Attorney General and the Federal Trade Commission. Such transcript and agreement shall be made available for public inspection and copying, subject to the provisions of paragraphs (1), (3), and (4) of section 552(b) of title 5.

(e) Rules; promulgation by Presidential designees; consultation by Attorney General with Chairman of Federal Trade Commission; approval of Attorney General; procedures; incorporation of standards and procedures for development of agreements and plans of action

(1) The individual or individuals referred to in subsection (c)(2) shall, after approval of the Attorney General, after consultation by the Attorney General with the Chairman of the Federal Trade Commission, promulgate rules, in accordance with section 553 of title 5, incorporating standards and procedures by which voluntary agreements and plans of action may be developed and carried out.

(2) In addition to the requirements of section 553 of title 5—

(A) general notice of the proposed rulemaking referred to in paragraph (1) shall be published in the Federal Register, and such notice shall include—

(i) a statement of the time, place, and nature of the proposed rulemaking proceedings;

(ii) reference to the legal authority under which the rule is being proposed; and

(iii) either the terms of substance of the proposed rule or a description of the subjects and issues involved;

(B) the required publication of a rule shall be made not less than thirty days before its effective date; and

(C) the individual or individuals referred to in paragraph (1) shall give interested persons the right to petition for the issuance, amendment, or repeal of a rule.

(3) The rules promulgated pursuant to this subsection incorporating standards and procedures by which voluntary agreements may be developed shall provide, among other things, that—

(A) such agreements shall be developed at meetings which include—

(i) the Attorney General or his delegate,

(ii) the Chairman of the Federal Trade Commission or his delegate, and

(iii) an individual designated by the President in subsection (c)(2) or his delegate,

and which are chaired by the individual referred to in clause (iii);

(B) at least seven days prior to any such meeting, notice of the time, place, and nature of the meeting shall be published in the Federal Register;

(C) interested persons may submit written data and views concerning the proposed voluntary agreement, with or without opportunity for oral presentation;

(D) interested persons may attend any such meeting unless the individual designated by the President in subsection (c)(2) finds that the matter or matters to be discussed at such meeting falls within the purview of matters described in section 552b(c) of title 5;

(E) a full and verbatim transcript shall be made of any such meeting and shall be transmitted by the chairman of the meeting to the Attorney General and to the Chairman of the Federal Trade Commission;

(F) any voluntary agreement resulting from the meetings shall be transmitted by the chairman of the meetings to the Attorney General, the Chairman of the Federal Trade Commission, and the Congress; and

(G) any transcript referred to in subparagraph (E) and any voluntary agreement referred to in subparagraph (F) shall be available for public inspection and copying, subject to paragraphs (1), (3), and (4) of section 552(b) of title 5.

(f) Commencement of agreements and plans of action; expiration date; extensions

(1) A voluntary agreement or plan of action may not become effective unless and until—

(A) the individual referred to in subsection (c)(2) who is to administer the agreement or plan approves it and certifies, in writing, that the agreement or plan is necessary to carry out the purposes of subsection (c)(1) and submits a copy of such agreement or plan to the Congress; and

(B) the Attorney General (after consultation with the Chairman of the Federal Trade Commission) finds, in writing, that such purpose may not reasonably be achieved through a voluntary agreement or plan of action having less anticompetitive effects or without any voluntary agreement or plan of action and publishes such finding in the Federal Register.

(2) Each voluntary agreement or plan of action which becomes effective under paragraph (1) shall expire 5 years after the date it becomes effective (and at 5-year intervals thereafter, as the case may be), unless (immediately prior to such expiration date) the individual referred to in subsection (c)(2) who administers the agreement or plan and the Attorney General (after consultation with the Chairman of the Federal Trade Commission) make the certification or finding, as the case may be, described in paragraph (1) with respect to such voluntary agreement or plan of action and publish such certification or finding in the Federal Register, in which case, the voluntary agreement or plan of action may be extended for an additional period of 5 years.

(g) Monitoring of agreements and plans of action by Attorney General and Chairman of Federal Trade CommissionThe Attorney General and the Chairman of the Federal Trade Commission shall monitor the carrying out of any voluntary agreement or plan of action to assure—

(1) that the agreement or plan is carrying out the purposes of subsection (c)(1);

(2) that the agreement or plan is being carried out under rules promulgated pursuant to subsection (e);

(3) that the participants are acting in accordance with the terms of the agreement or plan; and

(4) the protection and fostering of competition and the prevention of anticompetitive practices and effects.

(h) Required provisions of rules for implementation of agreements and plans of actionThe rules promulgated under subsection (e) with respect to the carrying out of voluntary agreements and plans of action shall provide—

(1) for the maintenance, by participants in any voluntary agreement or plan of action, of documents, minutes of meetings, transcripts, records, and other data related to the carrying out of any voluntary agreement or plan of action;

(2) that participants in any voluntary agreement or plan of action agree, in writing, to make available to the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action, the Attorney General and the Chairman of the Federal Trade Commission for inspection and copying at reasonable times and upon reasonable notice any item maintained pursuant to paragraph (1);

(3) that any item made available to the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action, the Attorney General, or the Chairman of the Federal Trade Commission pursuant to paragraph (2) shall be available from such individual, the Attorney General, or the Chairman of the Federal Trade Commission, as the case may be, for public inspection and copying, subject to paragraph (1), (3), or (4) of section 552(b) of title 5;

(4) that the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action, the Attorney General, and the Chairman of the Federal Trade Commission, or their delegates, may attend meetings to carry out any voluntary agreement or plan of action;

(5) that a Federal employee (other than an individual employed pursuant to section 3109 of title 5) shall attend meetings to carry out any voluntary agreement or plan of action;

(6) that participants in any voluntary agreement or plan of action provide the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action, the Attorney General, and the Chairman of the Federal Trade Commission with adequate prior notice of the time, place, and nature of any meeting to be held to carry out the voluntary agreement or plan of action;

(7) for the attendance by interested persons of any meeting held to carry out any voluntary agreement or plan of action, unless the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action finds that the matter or matters to be discussed at such meeting falls within the purview of matters described in section 552b(c) of title 5;

(8) that the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action has published in the Federal Register prior notification of the time, place, and nature of any meeting held to carry out any voluntary agreement or plan of action, unless he finds that the matter or matters to be discussed at such meeting falls within the purview of matters described in section 552b(c) of title 5, in which case, notification of the time, place, and nature of such meeting shall be published in the Federal Register within ten days of the date of such meeting;

(9) that—

(A) the Attorney General (after consultation with the Chairman of the Federal Trade Commission and the individual designated by the President in subsection (c)(2) to administer a voluntary agreement or plan of action), or

(B) the individual designated by the President in subsection (c)(2) to administer a voluntary agreement or plan of action (after consultation with the Attorney General and the Chairman of the Federal Trade Commission),

may terminate or modify, in writing, the voluntary agreement or plan of action at any time, and that effective, immediately upon such termination or modification, any antitrust immunity conferred upon the participants in the voluntary agreement or plan of action by subsection (j) shall not apply to any act or omission occurring after the time of such termination or modification;

(10) that participants in any voluntary agreement or plan of action be reasonably representative of the appropriate industry or segment of such industry; and

(11) that the individual designated by the President in subsection (c)(2) to administer the voluntary agreement or plan of action shall provide prior written notification of the time, place, and nature of any meeting to carry out a voluntary agreement or plan of action to the Attorney General, the Chairman of the Federal Trade Commission and the Congress.

(i) Rules; promulgation by Attorney General and Chairman of Federal Trade Commission

(j) Defenses

(1) In generalSubject to paragraph (4), there shall be available as a defense for any person to any civil or criminal action brought under the antitrust laws (or any similar law of any State) with respect to any action taken to develop or carry out any voluntary agreement or plan of action under this section that—

(A) such action was taken—

(i) in the course of developing a voluntary agreement initiated by the President or a plan of action adopted under any such agreement; or

(ii) to carry out a voluntary agreement initiated by the President and approved in accordance with this section or a plan of action adopted under any such agreement, and

(B) such person—

(i) complied with the requirements of this section and any regulation prescribed under this section; and

(ii) acted in accordance with the terms of the voluntary agreement or plan of action.

(2) Scope of defense

(3) Burden of persuasion

(4) Exception for actions taken to violate the antitrust laws

(k) Surveys and studies by Attorney General and Federal Trade Commission; span; annual report to Congress and President by Attorney General

(l) Annual report to Congress and President by Presidential designees; contents

(m) Jurisdiction to enjoin statutory exemption or suspension and order for production of transcripts, etc.; procedures

(n) Exemption from chapter 10 of title 5Notwithstanding any other provision of law, chapter 10 of title 5 and any other provision of Federal law relating to advisory committees shall not apply to—

(1) the consultations referred to in subsection (c)(1); or

(2) any activity conducted under a voluntary agreement or plan of action approved pursuant to this section that complies with the requirements of this section.

(o) Preemption of contract law in emergencies

(Sept. 8, 1950, ch. 932, title VII, § 708, 64 Stat. 818; June 30, 1952, ch. 530, title I, § 116(c), 66 Stat. 305; Aug. 9, 1955, ch. 655, § 6, 69 Stat. 581; Pub. L. 87–305, § 5(b), Sept. 26, 1961, 75 Stat. 667; Pub. L. 91–151, title I, § 9, Dec. 23, 1969, 83 Stat. 376; Pub. L. 94–152, § 3, Dec. 16, 1975, 89 Stat. 810; Pub. L. 102–99, § 5, Aug. 17, 1991, 105 Stat. 487; Pub. L. 111–67, § 9, Sept. 30, 2009, 123 Stat. 2018; Pub. L. 117–286, § 4(a)(321), (322), Dec. 27, 2022, 136 Stat. 4341.)

§ 4559. Public participation in rulemaking

(a) Exemption from Administrative Procedure Act

(b) Opportunity for notice and comment

(1) In general

(2) Waiver for temporary provisions

The requirements of paragraph (1) may be waived, if—

(A) the officer authorized to issue the regulation finds that urgent and compelling circumstances make compliance with such requirements impracticable;

(B) the regulation is issued on a temporary basis; and

(C) the publication of such temporary regulation is accompanied by the finding made under subparagraph (A) (and a brief statement of the reasons for such finding) and an opportunity for public comment is provided for not less than 30 days before any regulation becomes final.

(3) Consideration of public comments

(Sept. 8, 1950, ch. 932, title VII, § 709, 64 Stat. 819; Pub. L. 102–558, title I, § 136(a), Oct. 28, 1992, 106 Stat. 4216.)

§ 4560. Employment of personnel; appointment policies; nucleus executive reserve; use of confidential information by employees; printing and distribution of reports

(a) Repealed. June 28, 1955, ch. 189, § 12(c)(1), 69 Stat. 180

(b) Presidential appointments

(1) The President is further authorized, to the extent he deems it necessary and appropriate in order to carry out the provisions of this chapter and subject to such regulations as he may issue, to employ persons of outstanding experience and ability without compensation;

(2) The President shall be guided in the exercise of the authority provided in this subsection by the following policies:

(i) So far as possible, operations under this chapter shall be carried on by full-time, salaried employees of the Government, and appointments under this authority shall be to advisory or consultative positions only.

(ii) Appointments to positions other than advisory or consultative may be made under this authority only when the requirements of the position are such that the incumbent must personally possess outstanding experience and ability not obtainable on a full-time, salaried basis.

(3) Appointees under this subsection shall, when policy matters are involved, be limited to advising appropriate full-time salaried Government officials who are responsible for making policy decisions.

(4) Appointments under this subsection shall be supported by written certification by the head of the employing department or agency—

(i) that the appointment is necessary and appropriate in order to carry out the provisions of this chapter;

(ii) that the duties of the position to which the appointment is being made require outstanding experience and ability;

(iii) that the appointee has the outstanding experience and ability required by the position; and

(iv) that the department or agency head has been unable to obtain a person with the qualifications necessary for the position on a full-time, salaried basis.

(5)Notice and financial disclosure requirements.—

(A)Public notice of appointment.—The head of any department or agency who appoints any individual under this subsection shall publish a notice of such appointment in the Federal Register, including the name of the appointee, the employing department or agency, the title of the appointee’s position, and the name of the appointee’s private employer.

(B)Financial disclosure.—Any individual appointed under this subsection who is not required to file a financial disclosure report pursuant to section 13103 of title 5, shall file a confidential financial disclosure report pursuant to section 13109 of title 5 with the appointing department or agency.

(6) The Director of the Office of Personnel Management shall carry out a biennial survey of appointments made under this subsection and shall report his or her findings to the President and make such recommendations as he or she may deem proper.

(7) Persons appointed under the authority of this subsection may be allowed reimbursement for travel, subsistence, and other necessary expenses incurred by them in carrying out the functions for which they were appointed in the same manner as persons employed intermittently in the Federal Government are allowed expenses under section 5703 of title 5.

(d) Utilization of other services

(e) Nucleus executive reserve

(f) Use of confidential information for speculation

(g) Printing and distribution of reports

(Sept. 8, 1950, ch. 932, title VII, § 710, 64 Stat. 819; July 31, 1951, ch. 275, title I, § 109(f), 65 Stat. 139; June 28, 1955, ch. 189, § 12(c)(1), 69 Stat. 180; Aug. 9, 1955, ch. 655, §§ 7, 8, 69 Stat. 582, 583; Pub. L. 94–152, § 5, Dec. 16, 1975, 89 Stat. 820; Pub. L. 102–558, title I, § 143, Oct. 28, 1992, 106 Stat. 4217; Pub. L. 111–67, § 10, Sept. 30, 2009, 123 Stat. 2019; Pub. L. 117–286, § 4(c)(47), Dec. 27, 2022, 136 Stat. 4359.)

§ 4561. Authorization of appropriations; availability of funds

There is authorized to be appropriated $133,000,000 for fiscal year 2015 and each fiscal year thereafter for the carrying out of the provisions and purposes of this chapter by the President and such agencies as he may designate or create. In addition to the appropriations authorized by the previous sentence, there is authorized to be appropriated $117,000,000 for each of fiscal years 2020 through 2024 to carry out subchapter II.

(Sept. 8, 1950, ch. 932, title VII, § 711, 64 Stat. 820; Pub. L. 93–426, § 3, Sept. 30, 1974, 88 Stat. 1167; Pub. L. 96–294, title I, § 105(a), June 30, 1980, 94 Stat. 632; Pub. L. 98–265, § 5, Apr. 17, 1984, 98 Stat. 151; Pub. L. 99–441, § 3, Oct. 3, 1986, 100 Stat. 1117; Pub. L. 101–137, § 9(b), Nov. 3, 1989, 103 Stat. 826; Pub. L. 102–99, § 3, Aug. 17, 1991, 105 Stat. 487; Pub. L. 102–558, title I, §§ 144, 152, 161, Oct. 28, 1992, 106 Stat. 4218, 4219; Pub. L. 104–64, § 3, Dec. 18, 1995, 109 Stat. 689; Pub. L. 105–261, div. A, title X, § 1072(b), Oct. 17, 1998, 112 Stat. 2137; Pub. L. 106–65, div. A, title X, § 1063(b), Oct. 5, 1999, 113 Stat. 769; Pub. L. 106–363, § 2, Oct. 27, 2000, 114 Stat. 1407; Pub. L. 107–47, § 3, Oct. 5, 2001, 115 Stat. 260; Pub. L. 108–195, § 2(b), Dec. 19, 2003, 117 Stat. 2892; Pub. L. 110–367, § 3, Oct. 8, 2008, 122 Stat. 4026; Pub. L. 111–67, § 2(b), Sept. 30, 2009, 123 Stat. 2007; Pub. L. 113–172, § 5, Sept. 26, 2014, 128 Stat. 1898; Pub. L. 116–92, div. A, title XVII, § 1705(a), Dec. 20, 2019, 133 Stat. 1797.)

§ 4562. Territorial application of chapter

The provisions of this chapter shall be applicable to the United States, its Territories and possessions, and the District of Columbia.

(Sept. 8, 1950, ch. 932, title VII, § 713, 64 Stat. 821.)

§ 4563. Separability

If any provision of this chapter or the application of such provision to any person or circumstances shall be held invalid, the remainder of the chapter, and the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

(Sept. 8, 1950, ch. 932, title VII, § 715, formerly § 714, 64 Stat. 821; renumbered § 715, July 31, 1951, ch. 275, title I, § 110(b), 65 Stat. 144.)

§ 4564. Termination of chapter

(a) Termination

(b) Continuation of agencies

(d) Conditions on recovery of certain cooperative payments

(Sept. 8, 1950, ch. 932, title VII, § 717, formerly § 716, 64 Stat. 822; June 30, 1951, ch. 198, § 1, 65 Stat. 110; renumbered § 717, July 31, 1951, ch. 275, title I, §§ 110(b), 111, 65 Stat. 144; June 30, 1952, ch. 530, title I, §§ 120, 121(b), 66 Stat. 306; June 30, 1953, ch. 170, § 20, 67 Stat. 126; June 30, 1953, ch. 171, §§ 11, 12, 67 Stat. 131; June 30, 1955, ch. 251, § 5, 69 Stat. 225; Aug. 9, 1955, ch. 655, § 10, 69 Stat. 583; June 29, 1956, ch. 474, § 1, 70 Stat. 408; Pub. L. 85–471, June 28, 1958, 72 Stat. 241; Pub. L. 86–560, § 1, June 30, 1960, 74 Stat. 282; Pub. L. 87–505, June 28, 1962, 76 Stat. 112; Pub. L. 88–343, § 1, June 30, 1964, 78 Stat. 235; Pub. L. 89–482, § 1, June 30, 1966, 80 Stat. 235; Pub. L. 90–370, § 1, July 1, 1968, 82 Stat. 279; Pub. L. 91–300, June 30, 1970, 84 Stat. 367; Pub. L. 91–371, Aug. 1, 1970, 84 Stat. 694; Pub. L. 91–379, title I, § 101, Aug. 15, 1970, 84 Stat. 796; Pub. L. 92–15, § 2, May 18, 1971, 85 Stat. 38; Pub. L. 92–325, § 2, June 30, 1972, 86 Stat. 390; Pub. L. 93–323, June 30, 1974, 88 Stat. 280; Pub. L. 93–367, Aug. 7, 1974, 88 Stat. 419; Pub. L. 93–426, § 4, Sept. 30, 1974, 88 Stat. 1167; Pub. L. 94–42, § 1, June 28, 1975, 89 Stat. 232; Pub. L. 94–100, § 1, Oct. 1, 1975, 89 Stat. 483; Pub. L. 94–152, § 2, Dec. 16, 1975, 89 Stat. 810; Pub. L. 95–37, § 2, June 1, 1977, 91 Stat. 178; Pub. L. 96–77, Sept. 29, 1979, 93 Stat. 588; Pub. L. 96–188, Jan. 28, 1980, 94 Stat. 3; Pub. L. 96–225, Apr. 3, 1980, 94 Stat. 310; Pub. L. 96–250, May 26, 1980, 94 Stat. 371; Pub. L. 96–294, title I, § 105(b), June 30, 1980, 94 Stat. 633; Pub. L. 97–47, § 1, Sept. 30, 1981, 95 Stat. 954; Pub. L. 97–336, Oct. 15, 1982, 96 Stat. 1630; Pub. L. 98–12, Mar. 29, 1983, 97 Stat. 53; Pub. L. 98–181, title I [title VII, § 703], Nov. 30, 1983, 97 Stat. 1267; Pub. L. 98–265, § 2, Apr. 17, 1984, 98 Stat. 149; Pub. L. 99–441, § 2, Oct. 3, 1986, 100 Stat. 1117; Pub. L. 101–137, § 9(a), Nov. 3, 1989, 103 Stat. 826; Pub. L. 101–351, § 1, Aug. 9, 1990, 104 Stat. 404; Pub. L. 101–407, § 1, Oct. 4, 1990, 104 Stat. 882; Pub. L. 101–411, § 1, Oct. 6, 1990, 104 Stat. 893; Pub. L. 102–99, §§ 2, 8, Aug. 17, 1991, 105 Stat. 487, 490; Pub. L. 102–193, § 1, Dec. 6, 1991, 105 Stat. 1593; Pub. L. 102–558, title I, § 162, Oct. 28, 1992, 106 Stat. 4219; Pub. L. 104–64, § 2, Dec. 18, 1995, 109 Stat. 689; Pub. L. 105–261, div. A, title X, § 1072(a), Oct. 17, 1998, 112 Stat. 2137; Pub. L. 106–65, div. A, title X, § 1063(a), Oct. 5, 1999, 113 Stat. 769; Pub. L. 106–363, § 1, Oct. 27, 2000, 114 Stat. 1407; Pub. L. 107–47, § 2, Oct. 5, 2001, 115 Stat. 260; Pub. L. 108–195, § 2(a), Dec. 19, 2003, 117 Stat. 2892; Pub. L. 110–367, § 2, Oct. 8, 2008, 122 Stat. 4026; Pub. L. 111–67, § 2(a)(1), Sept. 30, 2009, 123 Stat. 2006; Pub. L. 113–172, § 1, Sept. 26, 2014, 128 Stat. 1896; Pub. L. 115–232, div. A, title XVII, § 1791, Aug. 13, 2018, 132 Stat. 2238.)

§ 4565. Authority to review certain mergers, acquisitions, and takeovers

(a) DefinitionsIn this section:

(1) Clarification

(2) Committee; chairperson

(3) Control

(4) Covered transaction

(A) In generalExcept as otherwise provided, the term “covered transaction” means—

(i) any transaction described in subparagraph (B)(i); and

(ii) any transaction described in clauses (ii) through (v) of subparagraph (B) that is proposed, pending, or completed on or after the effective date set forth in section 1727 of the Foreign Investment Risk Review Modernization Act of 2018.

(B) Transactions describedA transaction described in this subparagraph is any of the following:

(i) Any merger, acquisition, or takeover that is proposed or pending after August 23, 1988, by or with any foreign person that could result in foreign control of any United States business, including such a merger, acquisition, or takeover carried out through a joint venture.

(ii) Subject to subparagraphs (C) and (E), the purchase or lease by, or a concession to, a foreign person of private or public real estate that—(I) is located in the United States;(II)(aa) is, is located within, or will function as part of, an air or maritime port; or(bb)(AA) is in close proximity to a United States military installation or another facility or property of the United States Government that is sensitive for reasons relating to national security;(BB) could reasonably provide the foreign person the ability to collect intelligence on activities being conducted at such an installation, facility, or property; or(CC) could otherwise expose national security activities at such an installation, facility, or property to the risk of foreign surveillance; and(III) meets such other criteria as the Committee prescribes by regulation, except that such criteria may not expand the categories of real estate to which this clause applies beyond the categories described in subclause (II).

(iii) Any other investment, subject to regulations prescribed under subparagraphs (D) and (E), by a foreign person in any unaffiliated United States business that—(I) owns, operates, manufactures, supplies, or services critical infrastructure;(II) produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies; or(III) maintains or collects sensitive personal data of United States citizens that may be exploited in a manner that threatens national security.

(iv) Any change in the rights that a foreign person has with respect to a United States business in which the foreign person has an investment, if that change could result in—(I) foreign control of the United States business; or(II) an investment described in clause (iii).

(v) Any other transaction, transfer, agreement, or arrangement, the structure of which is designed or intended to evade or circumvent the application of this section, subject to regulations prescribed by the Committee.

(i) Exception for certain real estate transactionsA real estate purchase, lease, or concession described in subparagraph (B)(ii) does not include a purchase, lease, or concession of—(I) a single “housing unit”, as defined by the Census Bureau; or(II) real estate in “urbanized areas”, as defined by the Census Bureau in the most recent census, except as otherwise prescribed by the Committee in regulations in consultation with the Secretary of Defense.

(ii) Definition of close proximity

(D) Other investments

(i) Other investment definedFor purposes of subparagraph (B)(iii), the term “other investment” means an investment, direct or indirect, by a foreign person in a United States business described in that subparagraph that is not an investment described in subparagraph (B)(i) and that affords the foreign person—(I) access to any material nonpublic technical information in the possession of the United States business;(II) membership or observer rights on the board of directors or equivalent governing body of the United States business or the right to nominate an individual to a position on the board of directors or equivalent governing body; or(III) any involvement, other than through voting of shares, in substantive decisionmaking of the United States business regarding—(aa) the use, development, acquisition, safekeeping, or release of sensitive personal data of United States citizens maintained or collected by the United States business;(bb) the use, development acquisition, or release of critical technologies; or(cc) the management, operation, manufacture, or supply of critical infrastructure.

(ii) Material nonpublic technical information defined(I) In generalFor purposes of clause (i)(I), and subject to regulations prescribed by the Committee, the term “material nonpublic technical information” means information that—(aa) provides knowledge, know-how, or understanding, not available in the public domain, of the design, location, or operation of critical infrastructure; or(bb) is not available in the public domain, and is necessary to design, fabricate, develop, test, produce, or manufacture critical technologies, including processes, techniques, or methods.(II) Exemption for financial information

(iii) Regulations(I) In general(II) United States businesses that own, operate, manufacture, supply, or service critical infrastructureThe regulations prescribed by the Committee with respect to an investment described in subparagraph (B)(iii)(I) shall—(aa) specify the critical infrastructure subject to that subparagraph based on criteria intended to limit application of that subparagraph to the subset of critical infrastructure that is likely to be of importance to the national security of the United States; and(bb) enumerate specific types and examples of such critical infrastructure.

(iv) Specific clarification for investment funds(I) Treatment of certain investment fund investmentsNotwithstanding clause (i)(II) and subject to regulations prescribed by the Committee, an indirect investment by a foreign person in a United States business described in subparagraph (B)(iii) through an investment fund that affords the foreign person (or a designee of the foreign person) membership as a limited partner or equivalent on an advisory board or a committee of the fund shall not be considered an “other investment” for purposes of subparagraph (B)(iii) if—(aa) the fund is managed exclusively by a general partner, a managing member, or an equivalent;(bb) the general partner, managing member, or equivalent is not a foreign person;(cc) the advisory board or committee does not have the ability to approve, disapprove, or otherwise control—(AA) investment decisions of the fund; or(BB) decisions made by the general partner, managing member, or equivalent related to entities in which the fund is invested;(dd) the foreign person does not otherwise have the ability to control the fund, including the authority—(AA) to approve, disapprove, or otherwise control investment decisions of the fund;(BB) to approve, disapprove, or otherwise control decisions made by the general partner, managing member, or equivalent related to entities in which the fund is invested; or(CC) to unilaterally dismiss, prevent the dismissal of, select, or determine the compensation of the general partner, managing member, or equivalent;(ee) the foreign person does not have access to material nonpublic technical information as a result of its participation on the advisory board or committee; and(ff) the investment otherwise meets the requirements of this subparagraph.(II) Treatment of certain waivers(aa) In general(bb) Exception

(v) Exception for air carriers

(vi) Rule of construction

(E) Country specification

(F) Transfers of certain assets pursuant to bankruptcy proceedings or other defaults

(5) Critical infrastructure

(6) Critical technologies

(A) In generalThe term “critical technologies” means the following:

(i) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations.

(ii) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled—(I) pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or(II) for reasons relating to regional stability or surreptitious listening.

(iii) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities).

(iv) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material).

(v) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code.

(vi) Emerging and foundational technologies controlled pursuant to section 4817 of this title.

(B) Recommendations

(i) In general

(ii) Matters informing recommendations

(7) Foreign government-controlled transaction

(8) Intelligence community

(9) Investment

(10) Lead agency

(11) Party

(12) United States

(13) United States business

(b) National security reviews and investigations

(1) National security reviews

(A) In generalUpon receiving written notification under subparagraph (C) of any covered transaction, or pursuant to a unilateral notification initiated under subparagraph (D) with respect to any covered transaction, the President, acting through the Committee—

(i) shall review the covered transaction to determine the effects of the transaction on the national security of the United States; and

(ii) shall consider the factors specified in subsection (f) for such purpose, as appropriate.

(B) Control by foreign government

(i) In general(I) In general(II) Comments and acceptance(aa) In general(bb) Completeness(cc) Stipulations required

(ii) Withdrawal of notice

(iii) Continuing discussions

(iv) Inclusion of partnership and side agreements

(v) Declarations for certain covered transactions(I) In general(II) Regulations(III) Committee response to declaration(aa) In generalUpon receiving a declaration under this clause with respect to a covered transaction, the Committee may, at the discretion of the Committee—(AA) request that the parties to the transaction file a written notice under clause (i);(BB) inform the parties to the transaction that the Committee is not able to complete action under this section with respect to the transaction on the basis of the declaration and that the parties may file a written notice under clause (i) to seek written notification from the Committee that the Committee has completed all action under this section with respect to the transaction;(CC) initiate a unilateral review of the transaction under subparagraph (D); or(DD) notify the parties in writing that the Committee has completed all action under this section with respect to the transaction.(bb) Timing(cc) Rule of construction(IV) Mandatory declarations(aa) Regulations(bb) Certain covered transactions with foreign government interests (AA) In general (BB) Substantial interest defined (CC) Waiver(cc) Other declarations required by Committee(dd) ExceptionThe submission of a declaration described in subclause (I) shall not be required pursuant to this subclause with respect to an investment by an investment fund if—(AA) the fund is managed exclusively by a general partner, a managing member, or an equivalent;(BB) the general partner, managing member, or equivalent is not a foreign person; and(CC) the investment fund satisfies, with respect to any foreign person with membership as a limited partner on an advisory board or a committee of the fund, the criteria specified in items (cc) and (dd) of subsection (a)(4)(D)(iv).(ee) Submission of written notice as an alternative(ff) Timing and refiling of submission (AA) In general (BB) Refiling of declaration(gg) Penalties

(vi) Stipulations regarding transactions(I) In generalIn a written notice submitted under clause (i) or a declaration submitted under clause (v) with respect to a transaction, a party to the transaction may—(aa) stipulate that the transaction is a covered transaction; and(bb) if the party stipulates that the transaction is a covered transaction under item (aa), stipulate that the transaction is a foreign government-controlled transaction.(II) Basis for stipulation

(D) Unilateral initiation of reviewSubject to subparagraph (G), the President or the Committee may initiate a review under subparagraph (A) of—

(i) any covered transaction (other than a covered transaction described in subparagraph (E));

(ii) any covered transaction described in subparagraph (E), if any party to the transaction submitted false or misleading material information to the Committee in connection with the Committee’s consideration of the transaction or omitted material information, including material documents, from information submitted to the Committee; or

(iii) any covered transaction described in subparagraph (E), if—(I) any party to the transaction or the entity resulting from consummation of the transaction materially breaches a mitigation agreement or condition described in subsection (l)(3)(A);(II) such breach is certified to the Committee by the lead department or agency monitoring and enforcing such agreement or condition as a material breach; and(III) the Committee determines that there are no other adequate and appropriate remedies or enforcement tools available to address such breach.

(E) Covered transactions describedA covered transaction is described in this subparagraph if—

(i) the Committee has informed the parties to the transaction in writing that the Committee has completed all action under this section with respect to the transaction; or

(ii) the President has announced a decision not to exercise the President’s authority under subsection (d) with respect to the transaction.

(F) Timing

(G) Limit on delegation of certain authority

(H) Identification of non-notified and non-declared transactionsThe Committee shall establish a process to identify covered transactions for which—

(i) a notice under clause (i) of subparagraph (C) or a declaration under clause (v) of that subparagraph is not submitted to the Committee; and

(ii) information is reasonably available.

(2) National security investigations

(A) In general

(B) ApplicabilitySubparagraph (A) shall apply in each case in which—

(i) a review of a covered transaction under paragraph (1) results in a determination that—(I) the transaction threatens to impair the national security of the United States and the risk has not been mitigated during or prior to the review of a covered transaction under paragraph (1);(II) the transaction is a foreign government-controlled transaction; or(III) the transaction would result in control of any critical infrastructure of or within the United States by or on behalf of any foreign person, if the Committee determines that the transaction could impair national security, and that such impairment to national security has not been mitigated by assurances provided or renewed with the approval of the Committee, as described in subsection (l), during the review period under paragraph (1); or

(ii) the lead agency recommends, and the Committee concurs, that an investigation be undertaken.

(i) In general

(ii) Extension for extraordinary circumstances(I) In general(II) Nondelegation(III) Notification to parties

(D) Exception

(i) In general

(ii) Nondelegation

(E) Guidance on certain transactions with national security implications

(3) Certifications to Congress

(A) Certified notice at completion of review or assessment

(B) Certified report at completion of investigation

(i) In generalEach certified notice and report required under subparagraphs (A) and (B), respectively, shall be submitted to the members of Congress specified in clause (iii), and shall include—(I) a description of the actions taken by the Committee with respect to the transaction;(II) a certification that all relevant national security factors have received full consideration; and(III) whether the transaction is described under clause (i), (ii), (iii), (iv), or (v) of subsection (a)(4)(B).

(ii) Content of certification

(iii) Members of CongressEach certified notice and report required under subparagraphs (A) and (B), respectively, shall be transmitted—(I) to the Majority Leader and the Minority Leader of the Senate;(II) to the chair and ranking member of the Committee on Banking, Housing, and Urban Affairs of the Senate and of any committee of the Senate having oversight over the lead agency;(III) to the Speaker and the Minority Leader of the House of Representatives;(IV) to the chair and ranking member of the Committee on Financial Services of the House of Representatives and of any committee of the House of Representatives having oversight over the lead agency; and(V) with respect to covered transactions involving critical infrastructure, to the members of the Senate from the State in which the principal place of business of the acquired United States person is located, and the member from the Congressional District in which such principal place of business is located.

(iv) Signatures; limit on delegation(I) In general(II) Delegation of certifications(aa) In general(bb) Limitation on delegation with respect to certain transactions

(v) Authority to consolidate documents

(4) Analysis by Director of National Intelligence

(A) Analysis required

(i) In general

(ii) Views of intelligence community

(iii) Updates

(iv) Independence and objectivity

(B) Basic threat information

(i) In general

(ii) Covered transaction describedA covered transaction is described in this clause if—(I) the transaction is described in subsection (a)(4)(B)(ii);(II) the Director of National Intelligence has completed an analysis pursuant to subparagraph (A) involving each foreign person that is a party to the transaction during the 12 months preceding the review or investigation of the transaction under this section; or(III) the transaction otherwise meets criteria agreed upon by the Committee and the Director for purposes of this subparagraph.

(D) Interaction with intelligence community

(E) Independent role of Director

(F) Assessment of operational impact

(G) Submission to Congress

(5) Submission of additional information

(6) Notice of results to parties

(7) RegulationsRegulations prescribed under this section shall include standard procedures for—

(A) submitting any notice of a covered transaction to the Committee;

(B) submitting a request to withdraw a covered transaction from review;

(D) providing notice of the results of a review or investigation to the parties to the covered transaction, upon completion of all action under this section.

(8) Tolling of deadlines during lapse in appropriations

(1) In general

(2) ExceptionsParagraph (1) shall not prohibit the disclosure of the following:

(A) Information relevant to any administrative or judicial action or proceeding.

(B) Information to Congress or any duly authorized committee or subcommittee of Congress.

(C) Information important to the national security analysis or actions of the Committee to any domestic governmental entity, or to any foreign governmental entity of a United States ally or partner, under the exclusive direction and authorization of the chairperson, only to the extent necessary for national security purposes, and subject to appropriate confidentiality and classification requirements.

(D) Information that the parties have consented to be disclosed to third parties.

(3) Cooperation with allies and partners

(A) In general

(B) RequirementsThe process established under subparagraph (A) should, in the discretion of the chairperson—

(i) be designed to facilitate the harmonization of action with respect to trends in investment and technology that could pose risks to the national security of the United States and countries that are allies or partners of the United States;

(ii) provide for the sharing of information with respect to specific technologies and entities acquiring such technologies as appropriate to ensure national security; and

(iii) include consultations and meetings with representatives of the governments of such countries on a recurring basis.

(d) Action by the President

(1) In general

(2) Announcement by the PresidentThe President shall announce the decision on whether or not to take action pursuant to paragraph (1) with respect to a covered transaction not later than 15 days after the earlier of—

(A) the date on which the investigation of the transaction under subsection (b) is completed; or

(B) the date on which the Committee otherwise refers the transaction to the President under subsection (l)(2).

(3) Enforcement

(4) Findings of the PresidentThe President may exercise the authority conferred by paragraph (1), only if the President finds that—

(A) there is credible evidence that leads the President to believe that a foreign person that would acquire an interest in a United States business or its assets as a result of the covered transaction might take action that threatens to impair the national security; and

(B) provisions of law, other than this section and the International Emergency Economic Powers Act [50 U.S.C. 1701 et seq.], do not, in the judgment of the President, provide adequate and appropriate authority for the President to protect the national security in the matter before the President.

(5) Factors to be considered

(e) Actions and findings nonreviewable

(1) In general

(2) Civil actions

(3) Procedures for review of privileged information

(4) Applicability of use of information provisions

(f) Factors to be consideredFor purposes of this section, the President or the President’s designee may, taking into account the requirements of national security, consider—

(1) domestic production needed for projected national defense requirements,

(2) the capability and capacity of domestic industries to meet national defense requirements, including the availability of human resources, products, technology, materials, and other supplies and services,

(3) the control of domestic industries and commercial activity by foreign citizens as it affects the capability and capacity of the United States to meet the requirements of national security,

(4) the potential effects of the proposed or pending transaction on sales of military goods, equipment, or technology to any country—

(A) identified by the Secretary of State—

(i) under section 4605(j) 1

1 See References in Text note below.

of this title, as a country that supports terrorism;

(ii) under section 4605(l) 1 of this title, as a country of concern regarding missile proliferation; or

(iii) under section 4605(m) 1 of this title, as a country of concern regarding the proliferation of chemical and biological weapons;

(B) identified by the Secretary of Defense as posing a potential regional military threat to the interests of the United States; or

(C) listed under section 2139a(c) of title 42 on the “Nuclear Non-Proliferation-Special Country List” (15 C.F.R. Part 778, Supplement No. 4) or any successor list;

(5) the potential effects of the proposed or pending transaction on United States international technological leadership in areas affecting United States national security;

(6) the potential national security-related effects on United States critical infrastructure, including major energy assets;

(7) the potential national security-related effects on United States critical technologies;

(8) whether the covered transaction is a foreign government-controlled transaction, as determined under subsection (b)(1)(B);

(9) as appropriate, and particularly with respect to transactions requiring an investigation under subsection (b)(1)(B), a review of the current assessment of—

(A) the adherence of the subject country to nonproliferation control regimes, including treaties and multilateral supply guidelines, which shall draw on, but not be limited to, the annual report on “Adherence to and Compliance with Arms Control, Nonproliferation and Disarmament Agreements and Commitments” required by section 2593a of title 22;

(B) the relationship of such country with the United States, specifically on its record on cooperating in counter-terrorism efforts, which shall draw on, but not be limited to, the report of the President to Congress under section 7120 of the Intelligence Reform and Terrorism Prevention Act of 2004; and

(C) the potential for transshipment or diversion of technologies with military applications, including an analysis of national export control laws and regulations;

(10) the long-term projection of United States requirements for sources of energy and other critical resources and material; and

(11) such other factors as the President or the Committee may determine to be appropriate, generally or in connection with a specific review or investigation.

(g) Additional information to Congress; confidentiality

(1) Briefing requirement on request

(2) Application of confidentiality provisions

(A) In general

(B) Proprietary information

(h) Regulations

(1) In general

(2) ContentRegulations issued under this subsection shall—

(A) provide for the imposition of civil penalties for any violation of this section, including any mitigation agreement entered into, conditions imposed, or order issued pursuant to this section;

(B) to the extent possible—

(i) minimize paperwork burdens; and

(ii) coordinate reporting requirements under this section with reporting requirements under any other provision of Federal law;

(D) provide that, in any review or investigation of a covered transaction conducted by the Committee under subsection (b), the Committee should—

(i) consider the factors specified in subsection (f); and

(ii) as appropriate, require parties to provide to the Committee the information necessary to consider such factors.

(i) Effect on other law

(j) Technology risk assessments

(k) Committee on Foreign Investment in the United States

(1) Establishment

(2) MembershipThe Committee shall be comprised of the following members or the designee of any such member:

(A) The Secretary of the Treasury.

(B) The Secretary of Homeland Security.

(D) The Secretary of Defense.

(E) The Secretary of State.

(F) The Attorney General of the United States.

(G) The Secretary of Energy.

(H) The Secretary of Labor (nonvoting, ex officio).

(I) The Director of National Intelligence (nonvoting, ex officio).

(J) The heads of any other executive department, agency, or office, as the President determines appropriate, generally or on a case-by-case basis.

(3) Chairperson

(4) Hiring authority

(A) Senior officials

(i) In general

(ii) Department of the Treasury(I) In general(II) Assistant Secretary for Investment Security

(B) Special hiring authority

(5) Designation of lead agencyThe Secretary of the Treasury shall designate, as appropriate, a member or members of the Committee to be the lead agency or agencies on behalf of the Committee—

(A) for each covered transaction, and for negotiating any mitigation agreements or other conditions necessary to protect national security; and

(B) for all matters related to the monitoring of the completed transaction, to ensure compliance with such agreements or conditions and with this section.

(6) Other members

(7) Meetings

(l) Actions by the Committee to address national security risks

(1) Suspension of transactions

(2) Referral to President

(3) Mitigation

(A) Agreements and conditions

(i) In general

(ii) Abandonment of transactions

(iii) Agreements and conditions relating to completed transactions

(B) Treatment of outdated agreements or conditions

(C) LimitationsAn agreement may not be entered into or condition imposed under subparagraph (A) with respect to a covered transaction unless the Committee determines that the agreement or condition resolves the national security concerns posed by the transaction, taking into consideration whether the agreement or condition is reasonably calculated to—

(i) be effective;

(ii) allow for compliance with the terms of the agreement or condition in an appropriately verifiable way; and

(iii) enable effective monitoring of compliance with and enforcement of the terms of the agreement or condition.

(D) Jurisdiction

(4) Risk-based analysis required

(A) In general

(B) Actions of members of the Committee

(i) In general

(ii) Failure to reach consensusIf the Committee fails to reach consensus with respect to a recommendation under clause (i) regarding a covered transaction, the members of the Committee who support an alternative recommendation shall produce—(I) a written statement justifying the alternative recommendation; and(II) as appropriate, a risk-based analysis that supports the alternative recommendation.

(5) Tracking authority for withdrawn notices

(A) In generalIf any written notice of a covered transaction that was submitted to the Committee under this section is withdrawn before any review or investigation by the Committee under subsection (b) is completed, the Committee shall establish, as appropriate—

(i) interim protections to address specific concerns with such transaction that have been raised in connection with any such review or investigation pending any resubmission of any written notice under this section with respect to such transaction and further action by the President under this section;

(ii) specific time frames for resubmitting any such written notice; and

(iii) a process for tracking any actions that may be taken by any party to the transaction, in connection with the transaction, before the notice referred to in clause (ii) is resubmitted.

(B) Designation of agency

(6) Negotiation, modification, monitoring, and enforcement

(A) Designation of lead agency

(B) Reporting by designated agencyThe lead agency in connection with any agreement entered into or condition imposed with respect to a covered transaction shall—

(i) provide periodic reports to the Committee on any material modification to any such agreement or condition imposed with respect to the transaction; and

(ii) ensure that any material modification to any such agreement or condition is reported to the Director of National Intelligence, the Attorney General of the United States, and any other Federal department or agency that may have a material interest in such modification.

(i) In general

(ii) ElementsEach plan required by clause (i) with respect to an agreement entered into under paragraph (3)(A) shall include an explanation of—(I) which member of the Committee will have primary responsibility for monitoring compliance with the agreement;(II) how compliance with the agreement will be monitored;(III) how frequently compliance reviews will be conducted;(IV) whether an independent entity will be utilized under subparagraph (E) to conduct compliance reviews; and(V) what actions will be taken if the parties fail to cooperate regarding monitoring compliance with the agreement.

(D) Effect of lack of complianceIf, at any time after a mitigation agreement or condition is entered into or imposed under paragraph (3)(A), the Committee or lead agency, as the case may be, determines that a party or parties to the agreement or condition are not in compliance with the terms of the agreement or condition, the Committee or lead agency may, in addition to the authority of the Committee to impose penalties pursuant to subsection (h)(3) and to unilaterally initiate a review of any covered transaction under subsection (b)(1)(D)(iii)—

(i) negotiate a plan of action for the party or parties to remediate the lack of compliance, with failure to abide by the plan or otherwise remediate the lack of compliance serving as the basis for the Committee to find a material breach of the agreement or condition;

(ii) require that the party or parties submit a written notice under clause (i) of subsection (b)(1)(C) or a declaration under clause (v) of that subsection with respect to a covered transaction initiated after the date of the determination of noncompliance and before the date that is 5 years after the date of the determination to the Committee to initiate a review of the transaction under subsection (b); or

(iii) seek injunctive relief.

(E) Use of independent entities to monitor compliance

(F) Successors and assigns

(G) Additional compliance measures

(m) Annual report to Congress

(1) In general

(2) Contents of report relating to covered transactionsThe annual report under paragraph (1) shall contain the following information, with respect to each covered transaction, for the reporting period:

(A) A list of all notices filed and all reviews or investigations of covered transactions completed during the period, with—

(i) a description of the outcome of each review or investigation, including whether an agreement was entered into or condition was imposed under subsection (l)(3)(A) with respect to the transaction being reviewed or investigated, and whether the President took any action under this section with respect to that transaction;

(ii) basic information on each party to each such transaction;

(iii) the nature of the business activities or products of the United States business with which the transaction was entered into or intended to be entered into; and

(iv) information about any withdrawal from the process.

(B) Specific, cumulative, and, as appropriate, trend information on the numbers of filings, investigations, withdrawals, and decisions or actions by the President under this section.

(C) Cumulative and, as appropriate, trend information on the business sectors involved in the filings which have been made, and the countries from which the investments have originated.

(D) Information on whether companies that withdrew notices to the Committee in accordance with subsection (b)(1)(C)(ii) have later refiled such notices, or, alternatively, abandoned the transaction.

(E) The types of security arrangements and conditions the Committee has used to mitigate national security concerns about a transaction, including a discussion of the methods that the Committee and any lead agency are using to determine compliance with such arrangements or conditions.

(F) A detailed discussion of all perceived adverse effects of covered transactions on the national security or critical infrastructure of the United States that the Committee will take into account in its deliberations during the period before delivery of the next report, to the extent possible.

(G) Statistics on compliance plans conducted and actions taken by the Committee under subsection (l)(6), including subparagraph (D) of that subsection, during that period, a general assessment of the compliance of parties with agreements entered into and conditions imposed under subsection (l)(3)(A) that are in effect during that period, including a description of any actions taken by the Committee to impose penalties or initiate a unilateral review pursuant to subsection (b)(1)(D)(iii), and any recommendations for improving the enforcement of such agreements and conditions.

(H) Cumulative and, as appropriate, trend information on the number of declarations filed under subsection (b)(1)(C)(v), the actions taken by the Committee in response to those declarations, the business sectors involved in those declarations, and the countries involved in those declarations.

(I) A description of—

(i) the methods used by the Committee to identify non-notified and non-declared transactions under subsection (b)(1)(H);

(ii) potential methods to improve such identification and the resources required to do so; and

(iii) the number of transactions identified through the process established under that subsection during the reporting period and the number of such transactions flagged for further review.

(J) A summary of the hiring practices and policies of the Committee pursuant to subsection (k)(4).

(K) A list of the waivers granted by the Committee under subsection (b)(1)(C)(v)(IV)(bb)(CC).

(3) Contents of report relating to critical technologiesIn order to assist Congress in its oversight responsibilities with respect to this section, the President and such agencies as the President shall designate shall include in the annual report submitted under paragraph (1)—

(A) an evaluation of whether there is credible evidence of a coordinated strategy by 1 or more countries or companies to acquire United States companies involved in research, development, or production of critical technologies for which the United States is a leading producer;

(B) an evaluation of whether there are industrial espionage activities directed or directly assisted by foreign governments against private United States companies aimed at obtaining commercial secrets related to critical technologies; and

(C) a description of the technologies recommended by the chairperson under subsection (a)(6)(B) for identification under the interagency process set forth in section 4817(a) of this title.

(4) Form of report

(A) In general

(B) Inclusion in classified version

(C) Inclusions in unclassified versionThe unclassified version of the report required under paragraph (1) shall include, with respect to covered transactions for the reporting period—

(i) the number of notices submitted under subsection (b)(1)(C)(i);

(ii) the number of declarations submitted under subsection (b)(1)(C)(v) and the number of such declarations that were required under subclause (IV) of that subsection;

(iii) the number of declarations submitted under subsection (b)(1)(C)(v) for which the Committee required resubmission as notices under subsection (b)(1)(C)(i);

(iv) the average number of days that elapsed between submission of a declaration under subsection (b)(1)(C)(v) and the acceptance of the declaration by the Committee;

(v) the median and average number of days that elapsed between acceptance of a declaration by the Committee and a response described in subsection (b)(1)(C)(v)(III);

(vi) information on the time it took the Committee to provide comments on, or to accept, notices submitted under subsection (b)(1)(C)(i), including—(I) the average number of business days that elapsed between the date of submission of a draft notice and the date on which the Committee provided written comments on the draft notice;(II) the average number of business days that elapsed between the date of submission of a formal written notice and the date on which the Committee accepted or provided written comments on the formal written notice; and(III) if the average number of business days for a response by the Committee reported under subclause (I) or (II) exceeded 10 business days—(aa) an explanation of the causes of such delays, including whether such delays are caused by resource shortages, unusual fluctuations in the volume of notices, transaction characteristics, or other factors; and(bb) an explanation of the steps that the Committee anticipates taking to mitigate the causes of such delays and otherwise to improve the ability of the Committee to provide comments on, or to accept, notices within 10 business days;

(vii) the number of reviews or investigations conducted under subsection (b);

(viii) the number of investigations that were subject to an extension under subsection (b)(2)(C)(ii);

(ix) information on the duration of those reviews and investigations, including the median and average number of days required to complete those reviews and investigations;

(x) the number of notices submitted under subsection (b)(1)(C)(i) and declarations submitted under subsection (b)(1)(C)(v) that were rejected by the Committee;

(xi) the number of such notices and declarations that were withdrawn by a party to the covered transaction;

(xii) the number of such withdrawals that were followed by the submission of a subsequent such notice or declaration relating to a substantially similar covered transaction; and

(xiii) such other specific, cumulative, or trend information that the Committee determines is advisable to provide for an assessment of the time required for reviews and investigations of covered transactions under this section.

(n) Certification of notices and assurances

(1) In generalEach notice, and any followup information, submitted under this section and regulations prescribed under this section to the President or the Committee by a party to a covered transaction, and any information submitted by any such party in connection with any action for which a report is required pursuant to paragraph (6)(B) of subsection (l), with respect to the implementation of any mitigation agreement or condition described in paragraph (3)(A) of subsection (l), or any material change in circumstances, shall be accompanied by a written statement by the chief executive officer or the designee of the person required to submit such notice or information certifying that, to the best of the knowledge and belief of that person—

(A) the notice or information submitted fully complies with the requirements of this section or such regulation, agreement, or condition; and

(B) the notice or information is accurate and complete in all material respects.

(2) Effect of failure to submitThe Committee may not complete a review under this section of a covered transaction and may recommend to the President that the President suspend or prohibit the transaction under subsection (d) if the Committee determines that a party to the transaction has—

(A) failed to submit a statement required by paragraph (1); or

(B) included false or misleading information in a notice or information described in paragraph (1) or omitted material information from such notice or information.

(3) Applicability of law on fraud and false statements

(o) Testimony

(1) In generalNot later than March 31 of each year, the chairperson, or the designee of the chairperson, shall appear before the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate to present testimony on—

(A) anticipated resources necessary for operations of the Committee in the following fiscal year at each of the departments or agencies represented on the Committee;

(B) the adequacy of appropriations for the Committee in the current and the previous fiscal year to—

(i) ensure that thorough reviews and investigations are completed as expeditiously as possible;

(ii) monitor and enforce mitigation agreements; and

(iii) identify covered transactions for which a notice under clause (i) of subsection (b)(1)(C) or a declaration under clause (v) of that subsection was not submitted to the Committee;

(D) activities of the Committee undertaken in order to—

(i) educate the business community, with a particular focus on the technology sector and other sectors of importance to national security, on the goals and operations of the Committee;

(ii) disseminate to the governments of countries that are allies or partners of the United States best practices of the Committee that—(I) strengthen national security reviews of relevant investment transactions; and(II) expedite such reviews when appropriate; and

(iii) promote openness to foreign investment, consistent with national security considerations.

(2) Sunset

(p) Funding

(1) Establishment of Fund

(2) Authorization of appropriations for the Committee

(3) Filing fees

(A) In general

(B) Determination of amount of fee

(i) In generalThe amount of the fee to be assessed under subparagraph (A) with respect to a covered transaction—(I) may not exceed an amount equal to the lesser of—(aa) 1 percent of the value of the transaction; or(bb) $300,000, adjusted annually for inflation pursuant to regulations prescribed by the Committee; and(II) shall be based on the value of the transaction, taking into account—(aa) the effect of the fee on small business concerns (as defined in section 632 of title 15);(bb) the expenses of the Committee associated with conducting activities under this section;(cc) the effect of the fee on foreign investment; and(dd) such other matters as the Committee considers appropriate.

(ii) Updates

(C) Deposit and availability of feesNotwithstanding section 3302 of title 31, fees collected under subparagraph (A) shall—

(i) be deposited into the Fund solely for use in carrying out activities under this section;

(ii) to the extent and in the amounts provided in advance in appropriations Acts, be available to the chairperson;

(iii) remain available until expended; and

(iv) be in addition to any appropriations made available to the members of the Committee.

(D) Study on prioritization fee

(i) In general

(ii) Submission to Congress

(4) Transfer of funds

(q) Centralization of certain Committee functions

(1) In general

(2) Functions

(3) Rule of construction

(Sept. 8, 1950, ch. 932, title VII, § 721, as added Pub. L. 100–418, title V, § 5021, Aug. 23, 1988, 102 Stat. 1425; amended Pub. L. 102–484, div. A, title VIII, § 837(a)–(c), (e), Oct. 23, 1992, 106 Stat. 2463–2465; Pub. L. 102–558, title I, § 163, Oct. 28, 1992, 106 Stat. 4219; Pub. L. 103–359, title VIII, § 809(d), Oct. 14, 1994, 108 Stat. 3454; Pub. L. 110–49, §§ 2–7(b), 8–10, July 26, 2007, 121 Stat. 246, 252–257, 259; Pub. L. 115–232, div. A, title XVII, §§ 1703–1717(a), 1718, 1719(a), 1720, 1721(c), 1723–1725, Aug. 13, 2018, 132 Stat. 2177–2193, 2197, 2202, 2204–2206; Pub. L. 116–283, div. H, title XCVII, § 9721(a), Jan. 1, 2021, 134 Stat. 4839.)

§ 4566. Prohibition on purchase of United States defense contractors by entities controlled by foreign governments

(a) In generalNo entity controlled by a foreign government may merge with, acquire, or take over a company engaged in interstate commerce in the United States that—

(1) is performing a Department of Defense contract, or a Department of Energy contract under a national security program, that cannot be performed satisfactorily unless that company is given access to information in a proscribed category of information; or

(2) during the previous fiscal year, was awarded—

(A) Department of Defense prime contracts in an aggregate amount in excess of $500,000,000; or

(B) Department of Energy prime contracts under national security programs in an aggregate amount in excess of $500,000,000.

(b) Inapplicability to certain cases

(1) The term “entity controlled by a foreign government” includes—

(A) any domestic or foreign organization or corporation that is effectively owned or controlled by a foreign government; and

(B) any individual acting on behalf of a foreign government,

as determined by the President.

(2) The term “proscribed category of information” means a category of information that—

(A) with respect to Department of Defense contracts—

(i) includes special access information;

(ii) is determined by the Secretary of Defense to include information the disclosure of which to an entity controlled by a foreign government is not in the national security interests of the United States; and

(iii) is defined in regulations prescribed by the Secretary of Defense for the purposes of this section; and

(B) with respect to Department of Energy contracts—

(i) is determined by the Secretary of Energy to include information described in subparagraph (A)(ii); and

(ii) is defined in regulations prescribed by the Secretary of Energy for the purposes of this section.

(Pub. L. 102–484, div. A, title VIII, § 835, Oct. 23, 1992, 106 Stat. 2461.)

§ 4567. Defense Production Act Committee

(a) Committee established

(b) Membership

(1)In general.—The members of the Committee shall be—

(A) the head of each Federal agency to which the President has delegated authority under this chapter; and

(B) the Chairperson of the Council of Economic Advisors.

(2) The Chairperson of the Committee shall be the head of the agency to which the President has delegated primary responsibility for government-wide coordination of the authorities in this chapter.

(c) Coordination of Committee activitiesThe Chairperson shall appoint one person to coordinate all of the activities of the Committee, and such person shall—

(1) be a full-time employee of the Federal Government;

(2) report to the Chairperson; and

(3) carry out such activities relating to the Committee as the Chairperson may determine appropriate.

(d) ReportThe Committee shall issue a report each year by March 31 to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives a report signed by the Chairperson that contains—

(1) a description of the contingency planning by each department, agency, or independent establishment of the Federal Government to which the President has delegated authority under this chapter for events that might require the use of the priorities and allocations authorities;

(2) recommendations for the effective use of the priorities and allocations authorities in this chapter in a manner consistent with the statement of policy under section 4502(b) of this title;

(3) recommendations for legislation actions, as appropriate, to support the effective use of the priorities and allocations authorities in this chapter;

(4) recommendations for improving information sharing between departments, agencies, and independent establishments of the Federal Government relating to the use of the priorities and allocations authorities in this chapter;

(5) up-to-date copies of the rules described under section 4511(d)(1) of this title; and

(6) short attestations signed by each member of the Committee stating their concurrence in the report.

(e) Chapter 10 of title 5

(Sept. 8, 1950, ch. 932, title VII, § 722, as added Pub. L. 102–558, title I, § 135, Oct. 28, 1992, 106 Stat. 4212; amended Pub. L. 109–295, title VI, § 612(c), Oct. 4, 2006, 120 Stat. 1410; Pub. L. 111–67, § 11, Sept. 30, 2009, 123 Stat. 2019; Pub. L. 113–172, § 2, Sept. 26, 2014, 128 Stat. 1896; Pub. L. 117–286, § 4(a)(323), Dec. 27, 2022, 136 Stat. 4341.)

§ 4568. Annual report on impact of offsets

(a) Report required

(1) In general

(2) Duties of the Secretary of Commerce

The Secretary of Commerce (hereafter in this subsection referred to as the “Secretary”) shall—

(A) prepare the report required by paragraph (1);

(B) consult with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, and the United States Trade Representative in connection with the preparation of such report; and

(b) Interagency studies and related data

(1) Purpose of report

Each report required under subsection (a) shall identify the cumulative effects of offset agreements on—

(A) the full range of domestic defense productive capability (with special attention paid to the firms serving as lower-tier subcontractors or suppliers); and

(B) the domestic defense technology base as a consequence of the technology transfers associated with such offset agreements.

(2) Use of data

(1) In general

(2) Regulations

(d) Contents of report

(1) In general

Each report under subsection (a) shall include—

(A) a net assessment of the elements of the industrial base and technology base covered by the report;

(B) recommendations for appropriate remedial action under the authority of this chapter, or other law or regulations;

(C) a summary of the findings and recommendations of any interagency studies conducted during the reporting period under subsection (b);

(D) a summary of offset arrangements concluded during the reporting period for which information has been furnished pursuant to subsection (c); and

(E) a summary and analysis of any bilateral and multilateral negotiations relating to the use of offsets completed during the reporting period.

(2) Alternative findings or recommendations

(e) Utilization of annual report in negotiations

(Sept. 8, 1950, ch. 932, title VII, § 723, as added Pub. L. 111–67, § 12(a), Sept. 30, 2009, 123 Stat. 2020.)