Foreign Investment and Economic Security Act of 2017

Foreign Investment and Economic Security Act of 2017

This bill amends the Defense Production Act of 1950 to provide for: (1) national security reviews of transactions involving the construction of a new facility in the United States by any foreign person (currently, national security reviews are conducted only for certain mergers, acquisitions, or takeovers by or with a foreign person); and (2) net U.S. benefit reviews of new construction, mergers, acquisitions, or takeovers by or with a foreign person.

The bill makes net benefit reviews mandatory for transactions that meet specified Clayton Act requirements.

The Committee on Foreign Investment in the United States (CFIUS) shall consider a transaction's effect on: (1) employment, resource processing, utilization of parts and services produced in or imported into the United States, and exports; (2) industrial efficiency, technological development, technology transfers, and product innovation; (3) domestic or foreign competition; (4) compatibility with national industrial and economic policies; and (5) public health, safety, and the environment.

In the case of a net benefit determination concerning a foreign government-influenced transaction, the CFIUS must consider:

• the governance and commercial orientation of the foreign person engaging in such transaction;
• the extent to which the foreign person is owned, controlled, or influenced by the foreign government; and
• adherence to U.S. law and corporate governance standards, engagement of the foreign country with the Securities and Exchange Commission and the Public Company Accounting Oversight Board, and the likelihood of commercial operation.

The bill prohibits transactions that the President determines are not of net U.S. benefit and bars judicial review of such determinations.

The bill also revises the composition of the CFIUS for the purpose of carrying out net benefit determinations.

The term "foreign government-controlled transaction" is revised to include a person with access to below-market loans or other financing from a foreign government.