Review of investments

(a) In general (1) In general In accordance with this section, FIRA shall review investments to determine— (A) which investments are covered investments; and (B) which investments qualify as a qualified investment. (2) Review (A) Required review of certain investments If a person making or receiving an investment, a foreign government, the President, or the head of a Federal agency notifies FIRA that an investment is a covered investment, FIRA shall determine— (i) whether such investment is a covered investment; and (ii) whether such investment is a qualified investment. (B) Identification of other investments (i) By FIRA FIRA may review any investment that FIRA identifies as possibly being a covered investment or qualified investment. (ii) Petition process FIRA shall establish a petition process under which interested parties may petition FIRA to review a specific investment. (iii) Standard of review for undeclared investments With respect to an investment for which FIRA was not provided notice under section 5 and that FIRA has determined is a covered investment, the parties to the investment may provide evidence to FIRA that the investment is not a covered investment and FIRA shall revoke the determination if the parties prove by clear and convincing evidence that the investment is not a covered investment. (b) Qualified investment determination (1) In general FIRA may only determine that a covered investment is a qualified investment if— (A) the Chief Ethics Officer determines that the parties to the investment have complied with any applicable ethics and transparency rules issued under section 8 or otherwise required under this Act; (B) FIRA determines that the investment provides a net economic benefit to the United States; and (C) the investment is not prohibited from being a qualified investment under paragraph (3). (2) Heightened review of certain investments FIRA shall provide heightened review for a investment if the person making or receiving the investment is located in a covered nation, as such term is defined in section 4872(f) of title 10, United States Code. (3) Prohibition on certain investments An investment is not a qualified investment if— (A) the person making or receiving the investment is itself, is a subsidiary or parent company of, or is otherwise directly or indirectly controlled by— (i) an entity listed on the UFLPA Entity List maintained by the Department of Homeland Security pursuant to the Uyghur Forced Labor Prevention Act; (ii) an entity subject to an active, modified, or partially modified Withhold Release Order issued by the U.S. Customs and Border Protection; or (iii) a person or entity with respect to which an entity described in clause (i) or (ii) holds a stake of fifteen percent or greater; (B) the investment violates or could reasonably lead to a violation of a Federal ethics law, including section 208 of title 18, United States Code; (C) FIRA determines that the investment more likely than not was entered into based on a foreign government’s or foreign government official’s desire to confer a personal financial benefit on a government official in the United States; or (D) the investment allows for subsequent investments using all or part of the original investment and delegates the decision-making authority for such subsequent investments to another person, unless such other person executes a binding agreement to comply with the same requirements of this Act with respect to such subsequent investments as are applicable to a qualified investment. (4) Exception for certain investments FIRA may determine that an investment is a qualified investment under paragraph (1) without determining that the investment provides a net economic benefit to the United States if it is an investment in— (A) bonds issued by the Federal Government, a State, or any subdivision of a State; or (B) a diversified fund of publicly-traded securities that tracks a major market index. (5) Investors subject to certain orders (A) In general Notwithstanding paragraph (1), if FIRA determines that the person making an investment or the person receiving an investment is subject to a Federal antidumping duty order, countervailing duty order, or court order in connection with the violation of Federal intellectual property laws— (i) FIRA may not determine that such investment is a qualified investment unless FIRA enters into a mitigation agreement with the person subject to such order; and (ii) FIRA shall revoke such a determination if FIRA determines that— (I) the person has failed to comply with the mitigation agreement; or (II) the person is continuing the violation with respect to which the order was issued. (B) Mitigation agreement terms In entering into any mitigation agreement under this paragraph, FIRA shall ensure the agreement includes an appropriate penalty clause, which may require the payment of a penalty, the divestment of property related to the investment, or the unwinding of the investment. (C) Review of mitigation agreements FIRA shall review any mitigation agreement entered into under this paragraph not less often than quarterly. (c) Treatment of charitable donations A charitable donation to an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code is not a covered investment or a qualified investment. (d) Right To appeal determinations and mitigation agreements (1) Appeal with FIRA (A) In general A person receiving an investment may appeal a determination under this section that the investment is or is not a qualified investment or the terms of a mitigation agreement proposed by FIRA by filing an appeal with FIRA. (B) Limitation Notwithstanding subparagraph (A), a determination by FIRA that an investment is not a qualified investment may only be appealed based on a claim of a factual error or a procedural or due process violation. (C) Supermajority decision required In an appeal made pursuant to subparagraph (A), FIRA may only overturn the determination or terms of the mitigation agreement by a vote of at least 6 members of the board of directors. (2) Appeal of determinations with United States district court A determination by FIRA under this section that an investment is or is not a qualified investment, including with respect to the reasonableness of FIRA’s determination with respect to factors such as net economic benefit or the creation of quality jobs or FIRA’s compliance or noncompliance with procedural safeguards under this Act, may be challenged in a United States district court of competent jurisdiction by— (A) the person receiving the investment; (B) the Chief Ethics Officer; (C) a member of the Public Oversight Board; and (D) any person harmed by the investment or who faces a tangible risk of being harmed by the investment. (e) Petition for redetermination A person making a covered investment that FIRA has determined is not a qualified investment may, if the investor makes material changes to the investment proposal, petition FIRA for a redetermination of whether the covered investment is a qualified investment. (f) Review period for qualified investments FIRA shall continue to review a qualified investment for a 30-day period beginning on the date that FIRA determines the investment is a qualified investment in order to assess the net economic benefit to the United States provided by the qualified investment, including jobs created by the qualified investment. (g) Public notice FIRA shall maintain a public website with a list of all investments that FIRA has reviewed and, with respect to each investment, stating whether FIRA has determined it is a covered investment, a qualified investment, both, or neither. (h) Interagency consultations In carrying out this section— (1) FIRA may consult with any Federal agency; and (2) a Federal agency shall reasonably cooperate with FIRA with any information requested by FIRA to assist in FIRA’s duties prescribed under this section, subject to such safeguards as may be necessary to protect classified or law enforcement information.