S. 2380

U.S. National Security Protection Act of 2006

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II

109th CONGRESS

2d Session

S. 2380

IN THE SENATE OF THE UNITED STATES

March 7, 2006

Mr. Dodd introduced the following bill; which was read twice and referred to the Committee on Banking, Housing, and Urban Affairs

A BILL

To add the heads of certain Federal intelligence agencies to the Committee on Foreign Investment in the United States, to require enhanced notification to Congress and for other purposes.

1.

Short title

This Act may be cited as the U.S. National Security Protection Act of 2006.

2.

Definitions

As used in this Act—

(1)

the term Committee on Foreign Investment in the United States or CFIUS means the committee established by the President under Executive Order 11858, May 7, 1975, and any successor thereto; and

(2)

the term intelligence community has the same meaning as in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

3.

Committee on foreign investment in the United States

(a)

CFIUS membership

(1)

Directors of National intelligence and central intelligence

Notwithstanding any other provision of law, the Director of National Intelligence and the Director of Central Intelligence shall be members of the Committee on Foreign Investment in the United States.

(2)

Vice chairs

The Secretary of Homeland Security and the Secretary of Defense shall serve as vice chairs of the Committee on Foreign Investment in the United States.

(b)

Subcommittee on Intelligence

Not later than 30 days after the date of enactment of this Act, the President shall establish within the Committee on Foreign Investment in the United States a Subcommittee on Intelligence, which shall be—

(1)

chaired by the Director of National Intelligence; and

(2)

comprised of the head of each member of the intelligence community.

4.

Subcommittee Review of CFIUS Investigations

Section 721 of the Defense Production Act of 1950 (50 U.S.C. App. 2170) is amended by adding at the end the following:

(l)

Intelligence Subcommittee Reviews of investigations

(1)

Pre-investigation review and comment

The Subcommittee on Intelligence of the Committee on Foreign Investment in the United States shall—

(A)

review information relating to a proposed merger, acquisition, or takeover, during the 15-day period following the date of receipt of such information, and before the commencement of any investigation under subsection (a) or (b); and

(B)

provide written comments on any determination by the President or CFIUS not to conduct an investigation under subsection (a).

(2)

Post-investigation review and comment

The Subcommittee on Intelligence of the Committee on Foreign Investment in the United States shall—

(A)

review each investigation conducted by the President or CFIUS under subsections (a) and (b); and

(B)

provide written comments on the results of each such investigation.

.

5.

Treatment of critical infrastructure as affecting national security

Section 721(b) of the Defense Production Act of 1950 (50 U.S.C. App. 2170(b)) is amended by inserting after commerce in the United States the following: , including any person that owns, controls, or operates any critical infrastructure, as defined in section 1016(e) of the USA PATRIOT Act (42 U.S.C. 5195c(e)),.

6.

Certification of national security determinations

(m)

Presidential or chair certification of threat determinations

(1)

In general

Notwithstanding any other provision of law, a final determination that an investigation under subsection (a) is not required with respect to a merger, acquisition, or takeover may be made only—

(A)

by the President, in any case in which the President is acting on the President's own behalf under subsection (a); or

(B)

by the Secretary of the Treasury, with the concurrence of the Secretary of Homeland Security and the Secretary of Defense, in their respective capacities as chair and vice chairs of CFIUS, in any case in which CFIUS is acting as the President's designee under subsection (a).

(2)

Certifications required

(A)

Presidential determinations

In any instance in which the President is acting on his or her own behalf under subsection (a), the President shall certify in writing to a final determination that an investigation under subsection (a) is not required with respect to a merger, acquisition, or takeover, and such certification requirement may not be delegated to any person.

(B)

CFIUS determinations

In any instance in which CFIUS is acting as the President's designee under subsection (a), the Secretary of the Treasury, the Secretary of Homeland Security, and the Secretary of Defense shall each certify in writing to a final determination that an investigation under subsection (a) is not required with respect to a merger, acquisition, or takeover, and such certification requirement may not be delegated to any person.

(3)

Nonconcurrence

If there is not concurrence among the chair and vice chairs of CFIUS for purposes of paragraph (1)(B), the President shall make the final determination that an investigation under subsection (a) is not required with respect to a merger, acquisition, or takeover, and the President shall certify such determination in writing.

.

7.

Mandatory submission of information

Section 721(c) of the Defense Production Act of 1950 (50 U.S.C. App. 2170(c)) is amended—

(1)

in the subsection heading, by striking Confidentiality of and inserting Submission of;

(2)

by striking Any information or documentary material filed and inserting the following:

(1)

Required submissions

Each person controlled by or acting on behalf of a foreign government or foreign person shall—

(A)

notify the President or the President's designee in writing of any proposed merger, acquisition, or takeover of any United States critical infrastructure (as defined in section 1016(e) of the USA PATRIOT Act (42 U.S.C. 5195c(e))); and

(B)

provide such information to the President or the President's designee with respect to such proposed transaction as may be necessary for purposes of this section.

(2)

Confidentiality of information

Any information or documentary material filed, either voluntarily or under paragraph (1),

.

8.

Notices of reviews and investigations and Quarterly reports required

Section 721 of the Defense Production Act of 1950 (50 U.S.C. App. 2170) is amended by adding at the end the following:

(n)

Notices of Reviews and investigations and quarterly Reports to Congress

(1)

Notices to congress

The President or the President's designee shall notify the appropriate committees of Congress—

(A)

not later than 15 days after the date of receipt of written notification of a proposed or pending merger, acquisition, or takeover described in subsection (a) or (b); and

(B)

at the commencement of each investigation under subsection (a) or (b).

(2)

Quarterly reports to congress

(A)

In general

The President shall, on a quarterly basis, submit to Congress a report on all mergers, acquisitions, and takeovers that were the subject of investigation or review under this section during the quarter, including any comments submitted under subsection (l)(2).

(B)

Form

Each report required under subparagraph (A) may be submitted in unclassified form, and may contain a classified annex.

.

9.

CFIUS as President's designee under defense production act

Section 721 of the Defense Production Act of 1950 (50 U.S.C. App. 2170) is amended by adding at the end the following:

(o)

Designee

Notwithstanding any other provision of law, the President's designee for purposes of this section shall be the Committee on Foreign Investment in the United States, established by order of the President in Executive Order 11858, May 7, 1975 (in this section referred to as CFIUS), or any successor thereto.

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