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Introduced in Senate (03/07/2023)
[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 686 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 686
To authorize the Secretary of Commerce to review and prohibit certain
transactions between persons in the United States and foreign
adversaries, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 7, 2023
Mr. Warner (for himself, Mr. Thune, Ms. Baldwin, Mrs. Fischer, Mr.
Manchin, Mr. Moran, Mr. Bennet, Mr. Sullivan, Mrs. Gillibrand, Ms.
Collins, Mr. Heinrich, Mr. Romney, and Mrs. Capito) introduced the
following bill; which was read twice and referred to the Committee on
Commerce, Science, and Transportation
_______________________________________________________________________
A BILL
To authorize the Secretary of Commerce to review and prohibit certain
transactions between persons in the United States and foreign
adversaries, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Restricting the Emergence of
Security Threats that Risk Information and Communications Technology
Act'' or the ``RESTRICT Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Classified national security information.--The term
``classified national security information'' means information
that has been determined pursuant to Executive Order 13526 (50
U.S.C. 3161 note; relating to classified national security
information) or any predecessor or successor order, to require
protection against unauthorized disclosure, and is marked to
indicate such classified status if in documentary form.
(2) Controlling holding.--The term ``controlling holding''
means a holding with the power, whether direct or indirect and
whether exercised or not exercised, to determine, direct, or
decide important matters affecting an entity.
(3) Covered holding.--The term ``covered holding''--
(A) means, regardless of how or when such holding
was or will be obtained or otherwise come to have been
held, a controlling holding held, directly or
indirectly, in an ICTS covered holding entity by--
(i) a foreign adversary;
(ii) an entity subject to the jurisdiction
of, or organized under the laws of, a foreign
adversary; or
(iii) an entity owned, directed, or
controlled by an entity described in
subparagraphs (i) or (ii); and
(B) includes any other holding, the structure of
which is designed or intended to evade or circumvent
the application of this Act, subject to regulations
prescribed by the Secretary.
(4) Covered transaction.--
(A) In general.--The term ``covered transaction''
means a transaction in which an entity described in
subparagraph (B) has any interest (including through an
interest in a contract for the provision of the
technology or service), or any class of such
transactions.
(B) Covered entities.--The entities described in
this subparagraph are:
(i) a foreign adversary;
(ii) an entity subject to the jurisdiction
of, or organized under the laws of, a foreign
adversary; and
(iii) an entity owned, directed, or
controlled by a person described in
subparagraph (A) or (B).
(C) Non-evasion.--The term ``covered transaction''
includes any other transaction, the structure of which
is designed or intended to evade or circumvent the
application of this Act, subject to regulations
prescribed by the Secretary.
(D) Timing.--The term ``covered transaction''
includes a current, past, or potential future
transaction.
(5) Critical infrastructure.--The term ``critical
infrastructure'' has the meaning given the term in section
1016(e) of the USA PATRIOT Act (42 U.S.C. 5195c(e)).
(6) Entity.--The term ``entity'' means any of the
following, whether established in the United States or outside
of the United States:
(A) A firm.
(B) A government, government agency, government
department, or government commission.
(C) A labor union.
(D) A fraternal or social organization.
(E) A partnership.
(F) A trust.
(G) A joint venture.
(H) A corporation.
(I) A group, subgroup, or other association or
organization whether or not organized for profit.
(7) Executive department and agency.--The term ``executive
department and agency'' has the meaning given the term
``Executive agency'' in section 105 of title 5, United States
Code.
(8) Foreign adversary.--The term ``foreign adversary''--
(A) means any foreign government or regime,
determined by the Secretary, pursuant to sections 3 and
5, to have engaged in a long-term pattern or serious
instances of conduct significantly adverse to the
national security of the United States or the security
and safety of United States persons; and
(B) includes, unless removed by the Secretary
pursuant to section 6--
(i) the People's Republic of China,
including the Hong Kong Special Administrative
Region and Macao Special Administrative Region;
(ii) the Republic of Cuba;
(iii) the Islamic Republic of Iran;
(iv) the Democratic People's Republic of
Korea;
(v) the Russian Federation; and
(vi) the Bolivarian Republic of Venezuela
under the regime of Nicolas Maduro Moros.
(9) Holding.--The term ``holding''--
(A) means--
(i) an equity interest;
(ii) a stock;
(iii) a security;
(iv) a share;
(v) a partnership interest;
(vi) an interest in a limited liability
company;
(vii) a membership interest; or
(viii) any participation, right, or other
equivalent, however designated and of any
character; and
(B) includes, without limitation, any security
convertible into an ownership interest and right,
warrant, or option to acquire ownership interests.
(10) ICTS covered holding entity.--The term ``ICTS covered
holding entity'' means any entity that--
(A) owns, controls, or manages information and
communications technology products or services; and
(B)(i) has not less than 1,000,000 United States-
based annual active users at any point during the year
period preceding the date on which the covered holding
is referred to the President; or
(ii) for which more than 1,000,000 units have been
sold to persons in the United States before the date on
which the covered holding is referred to the President.
(11) Information and communications technology products or
services.--The term ``information and communications technology
products or services'' means any hardware, software, or other
product or service primarily intended to fulfill or enable the
function of information or data processing, storage, retrieval,
or communication by electronic means, including transmission,
storage, and display.
(12) Mitigation measure.--The term ``mitigation measure''
means a measure agreed to in an agreement between any relevant
party and the Federal Government, or ordered by the Federal
Government and of which any relevant party has been notified,
in any matter addressed under this Act to address any risk
arising from a covered transaction or associated with a covered
holding.
(13) Person.--The term ``person'' means a natural person,
including a citizen or national of the United States or of any
foreign country.
(14) Relevant executive department and agency heads.--The
term ``relevant executive department and agency heads'' means--
(A) the Secretary of Treasury;
(B) the Secretary of State;
(C) the Secretary of Defense;
(D) the Attorney General;
(E) the Secretary of Homeland Security;
(F) the United States Trade Representative;
(G) the Director of National Intelligence;
(H) the Administrator of General Services;
(I) the Chairman of the Federal Communications
Commission; and
(J) the heads of other executive departments and
agencies, as appropriate.
(15) Relevant committees of congress.--The term ``relevant
committees of Congress'' means--
(A) the Committee on Commerce, Science, and
Transportation, the Committee on the Judiciary, the
Committee on Homeland Security and Governmental
Affairs, the Committee on Foreign Relations, the
Committee on Banking, Housing, and Urban Affairs, the
Committee on Armed Services, the Committee on Rules and
Administration, and the Select Committee on
Intelligence of the Senate; and
(B) the Committee on Energy and Commerce, the
Committee on the Judiciary, the Committee on Homeland
Security, the Committee on Oversight and
Accountability, the Committee on Foreign Affairs, the
Committee on Armed Services, the Committee on House
Administration, and the Permanent Select Committee on
Intelligence of the House of Representatives.
(16) Secretary.--The term ``Secretary'' means the Secretary
of Commerce.
(17) Transaction.--The term ``transaction'' means any
acquisition, importation, transfer, installation, dealing in,
or use of any information and communications technology product
or service, including ongoing activities such as managed
services, data transmission, software updates, repairs, or the
provision of data hosting services, or a class of such
transactions.
SEC. 3. ADDRESSING INFORMATION AND COMMUNICATION TECHNOLOGY PRODUCTS
AND SERVICES THAT POSE UNDUE OR UNACCEPTABLE RISK.
(a) In General.--The Secretary, in consultation with the relevant
executive department and agency heads, is authorized to and shall take
action to identify, deter, disrupt, prevent, prohibit, investigate, or
otherwise mitigate, including by negotiating, entering into, or
imposing, and enforcing any mitigation measure to address any risk
arising from any covered transaction by any person, or with respect to
any property, subject to the jurisdiction of the United States that the
Secretary determines--
(1) poses an undue or unacceptable risk of--
(A) sabotage or subversion of the design,
integrity, manufacturing, production, distribution,
installation, operation, or maintenance of information
and communications technology products and services in
the United States;
(B) catastrophic effects on the security or
resilience of the critical infrastructure or digital
economy of the United States;
(C) interfering in, or altering the result or
reported result of a Federal election, as determined in
coordination with the Attorney General, the Director of
National Intelligence, the Secretary of Treasury, and
the Federal Election Commission; or
(D) coercive or criminal activities by a foreign
adversary that are designed to undermine democratic
processes and institutions or steer policy and
regulatory decisions in favor of the strategic
objectives of a foreign adversary to the detriment of
the national security of the United States, as
determined in coordination with the Attorney General,
the Director of National Intelligence, the Secretary of
Treasury, and the Federal Election Commission; or
(2) otherwise poses an undue or unacceptable risk to the
national security of the United States or the safety of United
States persons.
(b) Procedure.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Secretary, in consultation with the
relevant executive department and agency heads, shall review
any transaction described in subsection (a) to--
(A) determine, not later than 180 days after the
date on which the Secretary initiates such review, if
such transaction poses an undue or unacceptable risk
under subsection (a)(2) and qualifies as a covered
transaction; and
(B) with respect to a transaction found to pose an
undue or unacceptable risk and qualify as a covered
transaction, determine whether--
(i) the covered transaction should be
prohibited; or
(ii) any other action should be taken to
mitigate the effects of the covered
transaction.
(2) Published explanations.--If practicable, and consistent
with the national security and law enforcement interests of the
United States, in coordination and in cooperation with the
Director of National Intelligence, the Secretary shall publish
information in a declassified form to explain how a covered
transaction that the Secretary denied or otherwise mitigated
under paragraph (1) meets the criteria established under
subsection (a) or section 4(a).
(3) Certain administrative procedure requirements
inapplicable.--Section 553 of title 5, United State Code, shall
not apply to any regulation promulgated pursuant to paragraph
(1).
SEC. 4. ADDRESSING INFORMATION AND COMMUNICATIONS TECHNOLOGY PRODUCTS
AND SERVICES HOLDINGS THAT POSE UNDUE OR UNACCEPTABLE
RISK.
(a) In General.--The Secretary shall identify and refer to the
President any covered holding that the Secretary determines, in
consultation with the relevant executive department and agency heads,
poses an undue or unacceptable risk to the national security of the
United States or the security and safety of United States persons.
(b) Procedure.--
(1) Review and referral.--The Secretary shall, by
regulation, establish procedures by which the Secretary, in
consultation with the relevant executive department and agency
heads, shall--
(A) conduct reviews of holdings to determine if
such holdings constitute covered holdings that pose an
undue or unacceptable risk under subsection (a); and
(B) refer to the President covered holdings that
are determined under subsection (a) to pose an undue or
unacceptable risk.
(2) Referrals prior to establishment of regulations.--At
any time preceding the issuance of regulations or establishment
of procedures under subparagraph (1), the Secretary may
identify and refer to the President a holding determined to be
a covered holding under subsection (a) for action by the
President pursuant to subsection (c) if the Secretary, in the
sole and unreviewable discretion of the Secretary, determines
that such referral would be in the interest of national
security.
(3) Administrative procedure requirements inapplicable.--
Subchapter II of chapter 5, and chapter 7, of title 5, United
States Code (commonly known as the ``Administrative Procedure
Act'') shall not apply to any referral by the Secretary to the
President of a covered holding.
(c) Action by the President.--
(1) In general.--Subject to section 13, with respect to any
covered holding referred to the President under subsection (a),
if the President determines that the covered holding poses an
undue or unacceptable risk to the national security of the
United States or the security and safety of United States
persons, the President may take such action as the President
considers appropriate to compel divestment of, or otherwise
mitigate the risk associated with, such covered holding to the
full extent the covered holding is subject to the jurisdiction
of the United States, with respect to--
(A) the United States operations, assets, or
property of the entity in which the covered holding is
held, or of any products or services owned, controlled,
designed, developed, manufactured, or supplied by the
entity are used in the United States;
(B) any tangible or intangible assets, wherever
located, are used to support or enable use of the
product or software of the entity in the United States;
and
(C) any data obtained or derived from use of the
product or software of the entity in the United States.
(2) Non-delegable authority.--The authority to compel
divestment of a covered holding under paragraph (1) may only be
exercised by the President and may not be delegated to any
other individual, except as described in paragraph (4).
(3) Announcement.--If the President determines that action
is required pursuant to paragraph (1), the President shall
announce the decision not later than 30 days after the date on
which the Secretary refers the covered holding to the President
pursuant to subsection (a).
(4) Enforcement of divestment.--The President may direct
the Attorney General to seek appropriate relief, including
divestment relief, in the district courts of the United States
in order to implement and enforce this subsection.
SEC. 5. CONSIDERATIONS.
(a) Priority Information and Communications Technology Areas.--In
carrying out sections 3 and 4, the Secretary shall prioritize
evaluation of--
(1) information and communications technology products or
services used by a party to a covered transaction in a sector
designated as critical infrastructure in Policy Directive 21
(February 12, 2013; relating to critical infrastructure
security and resilience);
(2) software, hardware, or any other product or service
integral to telecommunications products and services,
including--
(A) wireless local area networks;
(B) mobile networks;
(C) satellite payloads;
(D) satellite operations and control;
(E) cable access points;
(F) wireline access points;
(G) core networking systems;
(H) long-, short-, and back-haul networks; or
(I) edge computer platforms;
(3) any software, hardware, or any other product or service
integral to data hosting or computing service that uses,
processes, or retains, or is expected to use, process, or
retain, sensitive personal data with respect to greater than
1,000,000 persons in the United States at any point during the
year period preceding the date on which the covered transaction
is referred to the Secretary for review or the Secretary
initiates review of the covered transaction, including--
(A) internet hosting services;
(B) cloud-based or distributed computing and data
storage;
(C) machine learning, predictive analytics, and
data science products and services, including those
involving the provision of services to assist a party
utilize, manage, or maintain open-source software;
(D) managed services; and
(E) content delivery services;
(4) internet- or network-enabled sensors, webcams, end-
point surveillance or monitoring devices, modems and home
networking devices if greater than 1,000,000 units have been
sold to persons in the United States at any point during the
year period preceding the date on which the covered transaction
is referred to the Secretary for review or the Secretary
initiates review of the covered transaction;
(5) unmanned vehicles, including drones and other aerials
systems, autonomous or semi-autonomous vehicles, or any other
product or service integral to the provision, maintenance, or
management of such products or services;
(6) software designed or used primarily for connecting with
and communicating via the internet that is in use by greater
than 1,000,000 persons in the United States at any point during
the year period preceding the date on which the covered
transaction is referred to the Secretary for review or the
Secretary initiates review of the covered transaction,
including--
(A) desktop applications;
(B) mobile applications;
(C) gaming applications;
(D) payment applications; or
(E) web-based applications; or
(7) information and communications technology products and
services integral to--
(A) artificial intelligence and machine learning;
(B) quantum key distribution;
(C) quantum communications;
(D) quantum computing;
(E) post-quantum cryptography;
(F) autonomous systems;
(G) advanced robotics;
(H) biotechnology;
(I) synthetic biology;
(J) computational biology; and
(K) e-commerce technology and services, including
any electronic techniques for accomplishing business
transactions, online retail, internet-enabled
logistics, internet-enabled payment technology, and
online marketplaces.
(b) Considerations Relating to Undue and Unacceptable Risks.--In
determining whether a covered transaction poses an undue or
unacceptable risk under section 3(a) or 4(a), the Secretary--
(1) shall, as the Secretary determines appropriate and in
consultation with appropriate agency heads, consider, where
available--
(A) any removal or exclusion order issued by the
Secretary of Homeland Security, the Secretary of
Defense, or the Director of National Intelligence
pursuant to recommendations of the Federal Acquisition
Security Council pursuant to section 1323 of title 41,
United States Code;
(B) any order or license revocation issued by the
Federal Communications Commission with respect to a
transacting party, or any consent decree imposed by the
Federal Trade Commission with respect to a transacting
party;
(C) any relevant provision of the Defense Federal
Acquisition Regulation and the Federal Acquisition
Regulation, and the respective supplements to those
regulations;
(D) any actual or potential threats to the
execution of a national critical function identified by
the Director of the Cybersecurity and Infrastructure
Security Agency;
(E) the nature, degree, and likelihood of
consequence to the public and private sectors of the
United States that would occur if vulnerabilities of
the information and communications technologies
services supply chain were to be exploited; and
(F) any other source of information that the
Secretary determines appropriate; and
(2) may consider, where available, any relevant threat
assessment or report prepared by the Director of National
Intelligence completed or conducted at the request of the
Secretary.
SEC. 6. DESIGNATION OF FOREIGN ADVERSARIES.
(a) In General.--
(1) Designation.--The Secretary may, in consultation with
the Director of National Intelligence, designate any foreign
government or regime as a foreign adversary if the Secretary
finds that the foreign government or regime is engaged in a
long-term pattern or serious instances of conduct significantly
adverse to the national security of the United States or
security and safety of United States persons.
(2) Removal of designation.--The Secretary may, in
consultation with the Director of National Intelligence, remove
the designation of any foreign government or regime as a
foreign adversary, including any foreign government or regime
identified in section 2(8), if the Secretary finds that the
foreign government or regime is no longer engaged in a long-
term pattern or serious instances of conduct significantly
adverse to the national or economic security of the United
States or security and safety of United States persons in a
manner that would warrant designation as a foreign adversary.
(b) Notice.--Not later than 15 days before the date on which the
Secretary makes or removes a designation under subsection (a), the
Secretary shall, by classified communication, notify the President pro
tempore, Majority Leader, and Minority Leader of the Senate, the
Speaker and Minority Leader of the House of Representatives, and the
relevant committees of Congress, in writing, of the intent to designate
a foreign government or regime as a foreign adversary under this
section, together with the findings made under subsection (a) with
respect to the foreign government or regime and the factual basis
therefor.
SEC. 7. RESOLUTION OF DISAPPROVAL OF DESIGNATION OR REMOVAL OF
DESIGNATION OF A FOREIGN ADVERSARY.
(a) Definition.--In this section--
(1) the term ``covered joint resolution'' means a joint
resolution of disapproval of designation or a joint resolution
of disapproval of removal of designation;
(2) the term ``joint resolution of disapproval of
designation'' means a joint resolution the matter after the
resolving clause of which is as follows: ``That Congress
disapproves the designation by the Secretary of Commerce of ___
as a foreign adversary for purposes of the Securing the
Information and Communications Technology and Services Supply
Chain Act of 2023, and such designation shall have no force or
effect until the Secretary of Commerce provides specific
evidence to the relevant committees of Congress regarding the
removal of designation under section 6(a) of that Act.'' (The
blank space being appropriately filled in with the name of the
foreign person of which the Secretary has designated as a
foreign adversary of for purposes of this Act); and
(3) the term ``joint resolution of disapproval of removal
of designation'' means a joint resolution the matter after the
resolving clause of which is as follows: ``That Congress
disapproves the removal of designation by the Secretary of
Commerce of ___ as a foreign adversary for purposes of the
Securing the Information and Communications Technology and
Services Supply Chain Act of 2023, and such removal shall have
no force or effect until the Secretary of Commerce provides
specific evidence to the relevant committees of Congress
regarding the removal of designation under section 6(a) of that
Act.'' (The blank space being appropriately filled in with the
name of the foreign government or regime of which the Secretary
has removed the designation as a foreign adversary of for
purposes of this Act).
(b) Expedited Consideration of Legislation.--
(1) Initiation.--In the event the Secretary designates a
foreign government or regime as a foreign adversary or removes
such designation as a foreign adversary, a joint resolution of
disapproval of designation or a joint resolution of disapproval
of removal of designation, as applicable, that is introduced
during the 60-calendar day period thereafter shall be entitled
to expedited consideration pursuant to this subsection.
(2) Introduction.--During the 60-calendar day period
provided for in paragraph (1), a covered joint resolution may
be introduced--
(A) in the Senate, by the Majority Leader (or the
designee of the Majority Leader) or the Minority Leader
(or the designee of the Minority Leader); and
(B) in the House of Representatives, by the Speaker
or the Minority Leader.
(3) Floor consideration in house of representatives.--
(A) Reporting and discharge.--If a relevant
committee of the House to which a covered joint
resolution has been referred has not reported such
covered joint resolution within 10 legislative days
after the date of referral, that committee shall be
discharged from further consideration thereof.
(B) Proceeding to consideration.--Beginning on the
third legislative day after each committee to which
covered joint resolution has been referred reports the
covered joint resolution to the House or has been
discharged from further consideration thereof, it shall
be in order to move to proceed to consider the covered
joint resolution in the House. All points of order
against the motion are waived. Such a motion shall not
be in order after the House has disposed of a motion to
proceed on the covered joint resolution with regard to
the same agreement. The previous question shall be
considered as ordered on the motion to its adoption
without intervening motion. The motion shall not be
debatable. A motion to reconsider the vote by which the
motion is disposed of shall not be in order.
(C) Consideration.--The covered joint resolution
shall be considered as read. All points of order
against the covered joint resolution and against its
consideration are waived. The previous question shall
be considered as ordered on the covered joint
resolution to final passage without intervening motion
except 2 hours of debate equally divided and controlled
by the sponsor of the covered joint resolution (or a
designee) and an opponent. A motion to reconsider the
vote on passage of the covered joint resolution shall
not be in order.
(4) Consideration in the senate.--
(A) Committee referral.--A covered joint resolution
introduced in the Senate shall be referred to the
relevant committees of the Senate.
(B) Reporting and discharge.--If a relevant
committee of the Senate has not reported such covered
joint resolution within 10 session days after the date
of referral of such legislation, that committee shall
be discharged from further consideration of such
legislation and the covered joint resolution shall be
placed on the appropriate calendar.
(C) Proceeding to consideration.--Notwithstanding
Rule XXII of the Standing Rules of the Senate, it is in
order at any time after each committee authorized to
consider covered joint resolution reports it to the
Senate or has been discharged from its consideration
(even though a previous motion to the same effect has
been disagreed to) to move to proceed to the
consideration of the covered joint resolution, and all
points of order against covered joint resolution (and
against consideration of the covered joint resolution)
are waived. The motion to proceed is not debatable. The
motion is not subject to a motion to postpone. A motion
to reconsider the vote by which the motion is agreed to
or disagreed to shall not be in order. If a motion to
proceed to the consideration of the covered joint
resolution is agreed to, the covered joint resolution
shall remain the unfinished business until disposed of.
(D) Debate.--Debate on covered joint resolution,
and on all debatable motions and appeals in connection
therewith, shall be limited to not more than 10 hours,
which shall be divided equally between the majority and
minority leaders or their designees. A motion to
further limit debate is in order and not debatable. An
amendment to, or a motion to postpone, or a motion to
proceed to the consideration of other business, or a
motion to recommit the covered joint resolution is not
in order.
(E) Vote on passage.--The vote on passage shall
occur immediately following the conclusion of the
debate on the covered joint resolution and a single
quorum call at the conclusion of the debate, if
requested in accordance with the rules of the Senate.
(F) Rulings of the chair on procedure.--Appeals
from the decisions of the Chair relating to the
application of the rules of the Senate, as the case may
be, to the procedure relating to a covered joint
resolution shall be decided without debate.
(G) Consideration of veto messages.--Debate in the
Senate of any veto message with respect to a covered
joint resolution, including all debatable motions and
appeals in connection with such covered joint
resolution, shall be limited to 10 hours, to be equally
divided between, and controlled by, the Majority Leader
and the Minority Leader or their designees.
(5) Rules relating to senate and house of
representatives.--
(A) Coordination with action by other house.--If,
before the passage by one House of a covered joint
resolution of that House, that House receives a covered
joint resolution from the other House, then the
following procedures shall apply:
(i) The covered joint resolution of the
other House shall not be referred to a
committee.
(ii) With respect to covered joint
resolution of the House receiving the
legislation--
(I) the procedure in that House
shall be the same as if no covered
joint resolution had been received from
the other House; but
(II) the vote on passage shall be
on the covered joint resolution of the
other House.
(B) Treatment of a covered joint resolution of
other house.--If one House fails to introduce a covered
joint resolution under this section, the covered joint
resolution of the other House shall be entitled to
expedited floor procedures under this section.
(C) Treatment of companion measures.--If, following
passage of the covered joint resolution in the Senate,
the Senate then receives a companion measure from the
House of Representatives, the companion measure shall
not be debatable.
(c) Rules of Senate and House of Representatives.--Subsection (b)
is enacted by Congress--
(1) as an exercise of the rulemaking power of the Senate
and the House of Representatives, respectively, and as such are
deemed a part of the rules of each House, respectively, but
applicable only with respect to the procedure to be followed in
that House in the case of legislation described in those
sections, and supersede other rules only to the extent that
they are inconsistent with such rules; and
(2) with full recognition of the constitutional right of
either House to change the rules (so far as relating to the
procedure of that House) at any time, in the same manner, and
to the same extent as in the case of any other rule of that
House.
(d) Effect of Covered Joint Resolution.--
(1) Joint resolutions of disapproval of designation.--A
joint resolution of disapproval of designation that is enacted
in accordance with this section shall remove the designation as
a foreign adversary of a foreign government or regime that is
the subject of the joint resolution of disapproval of
designation for purposes of this Act.
(2) Joint resolutions of disapproval of removal of
designation.--A joint resolution of disapproval of removal of
designation that is enacted in accordance with this section
shall prohibit the removal of designation as a foreign
adversary of a foreign government or regime that is the subject
of the joint resolution of disapproval of removal of
designation for purposes of this Act.
SEC. 8. IMPLEMENTING AUTHORITIES.
(a) Regulations.--In carrying out the responsibilities under this
Act, the Secretary may establish such rules, regulations, and
procedures as the Secretary considers appropriate.
(b) Classes of Transactions.--In conducting reviews, promulgating
regulations, implementing prohibitions or other mitigation measures, or
otherwise carrying out the responsibilities under this Act, the
Secretary may take action with respect to both individual covered
transactions and classes of covered transactions.
(c) Other Authorities.--
(1) In general.--The Secretary may issue guidance,
including advisory opinions, and establish procedures to carry
out this Act.
(2) Lists of foreign persons.--The Secretary may create
lists of foreign persons that may be subject to prohibitions or
restrictions and related mechanisms to revise and update such
lists periodically.
(3) Additional authority.--The Secretary may undertake any
other action as necessary to carry out the responsibilities
under this Act that is not otherwise prohibited by law.
(d) Advisory Committees.--The Secretary may appoint technical
advisory committees to advise the Secretary in carrying out the
responsibilities under this Act. Chapter 10 of part 1 of title 5,
United States Code, shall not apply to any meeting of such an advisory
committee held pursuant to this subsection.
SEC. 9. INFORMATION TO BE FURNISHED.
(a) In General.--The Secretary may require any party to a
transaction or holding under review or investigation pursuant to this
Act to furnish under oath, in the form of reports or otherwise, at any
time as may be required by the Secretary, complete information relative
to any act, transaction, or holding, subject to the provisions of this
Act.
(b) Authority.--In carrying out this Act, the Secretary may--
(1) require that information or reports required to be
submitted under subsection (a) include the production of any
documents relating to any act, transaction, or property
relating to a transaction or holding under review or
investigation;
(2) require information or reports required to be submitted
under subsection (a) before, during, or after consummation of a
transaction or holding under review or investigation; and
(3) conduct investigations, hold hearings, administer
oaths, examine witnesses, receive evidence, take depositions,
and require by subpoena the attendance and testimony of
witnesses and the production of any documents relating to any
transaction or holding under review or investigation,
regardless of whether any report has been required or filed in
connection therewith, including through another person or
agency.
(c) Format.--Any person producing any document to the Secretary
pursuant to this section shall produce the document in a format useable
to the Department of Commerce, which may be detailed in the request for
documents or otherwise agreed to by the parties.
(d) Confidentiality and Disclosure of Information.--
(1) In general.--Subject to paragraph (2), any information
or document not otherwise publicly or commercially available
that has been submitted to the Secretary under this Act shall
not be released publicly except to the extent required by
Federal law.
(2) Disclosure.--Not withstanding paragraph (1), the
Secretary may disclose information or documents that are not
otherwise publicly or commercially available in the following
circumstances:
(A) Pursuant to an administrative or judicial
proceeding, including any judicial review under section
12.
(B) Pursuant to an Act of Congress.
(C) Pursuant to a request from a relevant committee
of Congress.
(D) Pursuant to a request from any Federal, State,
or local governmental entity, or to any foreign
government entity of a United States ally or partner,
if such request is important to the national security
analysis or actions of the Secretary, but only to the
extent necessary for national security purposes, and
subject to appropriate confidentiality and
classification requirements.
(E) If any party to whom the information or
documents pertain consents to such disclosure.
(F) If the Secretary determines, in the sole and
unreviewable discretion of the Secretary, that the
release of such information is in the national interest
of the United States.
(G) Any other purpose authorized by Federal law.
SEC. 10. ENFORCEMENT.
(a) Investigations.--
(1) In general.--The President shall rely on, including by
delegation, the Secretary, and the heads of other Federal
agencies, as appropriate, to conduct investigations of
violations of any authorization, order, mitigation measure,
regulation, or prohibition issued under this Act.
(2) Actions by designees.--In conducting investigations
described in paragraph (1), designated officers or employees of
Federal agencies described that paragraph may, to the extent
necessary or appropriate to enforce this Act, exercise such
authority as is conferred upon them by any other Federal law,
subject to policies and procedures approved by the Attorney
General.
(b) Permitted Activities.--Officers and employees of agencies
authorized to conduct investigations under subsection (a) may--
(1) inspect, search, detain, seize, or impose temporary
denial orders with respect to items, in any form, or
conveyances on which it is believed that there are items that
have been, are being, or are about to be imported into the
United States in violation of this Act or any other applicable
Federal law;
(2) require, inspect, and obtain books, records, and any
other information from any person subject to the provisions of
this Act or other applicable Federal law;
(3) administer oaths or affirmations and, by subpoena,
require any person to appear and testify or to appear and
produce books, records, and other writings, or both; and
(4) obtain court orders and issue legal process to the
extent authorized under chapters 119, 121, and 206 of title 18,
United States Code, or any other applicable Federal law.
(c) Enforcement of Subpoenas.--In the case of contumacy by, or
refusal to obey a subpoena issued to, any person under subsection
(b)(3), a district court of the United States, after notice to such
person and a hearing, shall have jurisdiction to issue an order
requiring such person to appear and give testimony or to appear and
produce books, records, and other writings, regardless of format, that
are the subject of the subpoena. Any failure to obey such order of the
court may be punished by such court as a contempt thereof.
(d) Actions by the Attorney General.--The Attorney General may
bring an action in an appropriate district court of the United States
for appropriate relief, including declaratory and injunctive, or
divestment relief, against any person who violates this Act or any
regulation, order, direction, mitigation measure, prohibition, or other
authorization or directive issued under this Act. In any such action,
the limitations as described under section 12(b) shall apply.
SEC. 11. PENALTIES.
(a) Unlawful Acts.--
(1) In general.--It shall be unlawful for a person to
violate, attempt to violate, conspire to violate, or cause a
violation of any regulation, order, direction, mitigation
measure, prohibition, or other authorization or directive
issued under this Act, including any of the unlawful acts
described in paragraph (2).
(2) Specific unlawful acts.--The unlawful acts described in
this paragraph are the following:
(A) No person may engage in any conduct prohibited
by or contrary to, or refrain from engaging in any
conduct required by any regulation, order, direction,
mitigation measure, prohibition, or other authorization
or directive issued under this Act.
(B) No person may cause or aid, abet, counsel,
command, induce, procure, permit, or approve the doing
of any act prohibited by, or the omission of any act
required by any regulation, order, direction,
mitigation measure, prohibition, or other authorization
or directive issued under, this Act.
(C) No person may solicit or attempt a violation of
any regulation, order, direction, mitigation measure,
prohibition, or authorization or directive issued under
this Act.
(D) No person may conspire or act in concert with 1
or more other person in any manner or for any purpose
to bring about or to do any act that constitutes a
violation of any regulation, order, direction,
mitigation measure, prohibition, or other authorization
or directive issued under this Act.
(E) No person may, whether directly or indirectly
through any other person, make any false or misleading
representation, statement, or certification, or falsify
or conceal any material fact, to the Department of
Commerce or any official of any other executive
department or agency--
(i) in the course of an investigation or
other action subject to this Act, or any
regulation, order, direction, mitigation
measure, prohibition, or other authorization or
directive issued thereunder; or
(ii) in connection with the preparation,
submission, issuance, use, or maintenance of
any report filed or required to be filed
pursuant to this Act, or any regulation, order,
direction, mitigation measure, prohibition, or
other authorization or directive issued
thereunder.
(F) No person may engage in any transaction or take
any other action with intent to evade the provisions of
this Act, or any regulation, order, direction,
mitigation measure, prohibition, or other authorization
or directive issued thereunder.
(G) No person may fail or refuse to comply with any
reporting or recordkeeping requirement of this Act, or
any regulation, order, direction, mitigation measure,
prohibition, or other authorization or directive issued
thereunder.
(H) Except as specifically authorized in this
subchapter, any regulation, order, direction,
mitigation measure, or other authorization or directive
issued thereunder or in writing by the Department of
Commerce, no person may alter any order, direction,
mitigation measure, or other authorization or directive
issued under this Act or any related regulation.
(3) Additional requirements.--
(A) Continuation of effect.--For purposes of
paragraph (2)(E), any representation, statement, or
certification made by any person shall be deemed to be
continuing in effect until the person notifies the
Department of Commerce or relevant executive department
or agency in accordance with subparagraph (B).
(B) Notification.--Any person who makes a
representation, statement, or certification to the
Department of Commerce or any official of any other
executive department or agency relating to any order,
direction, mitigation measure, prohibition, or other
authorization or directive issued under this Act shall
notify the Department of Commerce or the relevant
executive department or agency, in writing, of any
change of any material fact or intention from that
previously represented, stated, or certified,
immediately upon receipt of any information that would
lead a reasonably prudent person to know that a change
of material fact or intention had occurred or may occur
in the future.
(b) Civil Penalties.--The Secretary may impose the following civil
penalties on a person for each violation by that person of this Act or
any regulation, order, direction, mitigation measure, prohibition, or
other authorization issued under this Act:
(1) A fine of not more than $250,000 or an amount that is
twice the value of the transaction that is the basis of the
violation with respect to which the penalty is imposed,
whichever is greater.
(2) Revocation of any mitigation measure or authorization
issued under this Act to the person.
(c) Criminal Penalties.--
(1) In general.--A person who willfully commits, willfully
attempts to commit, or willfully conspires to commit, or aids
or abets in the commission of an unlawful act described in
subsection (a) shall, upon conviction, be fined not more than
$1,000,000, or if a natural person, may be imprisoned for not
more than 20 years, or both.
(2) Civil forfeiture.--
(A) Forfeiture.--
(i) In general.--Any property, real or
personal, tangible or intangible, used or
intended to be used, in any manner, to commit
or facilitate a violation or attempted
violation described in paragraph (1) shall be
subject to forfeiture to the United States.
(ii) Proceeds.--Any property, real or
personal, tangible or intangible, constituting
or traceable to the gross proceeds taken,
obtained, or retained, in connection with or as
a result of a violation or attempted violation
described in paragraph (1) shall be subject to
forfeiture to the United States.
(B) Procedure.--Seizures and forfeitures under this
subsection shall be governed by the provisions of
chapter 46 of title 18, United States Code, relating to
civil forfeitures, except that such duties as are
imposed on the Secretary of Treasury under the customs
laws described in section 981(d) of title 18, United
States Code, shall be performed by such officers,
agents, and other persons as may be designated for that
purpose by the Secretary of Homeland Security or the
Attorney General.
(3) Criminal forfeiture.--
(A) Forfeiture.--Any person who is convicted under
paragraph (1) shall, in addition to any other penalty,
forfeit to the United States--
(i) any property, real or personal,
tangible or intangible, used or intended to be
used, in any manner, to commit or facilitate
the violation or attempted violation of
paragraph (1); and
(ii) any property, real or personal,
tangible or intangible, constituting or
traceable to the gross proceeds taken,
obtained, or retained, in connection with or as
a result of the violation.
(B) Procedure.--The criminal forfeiture of property
under this paragraph, including any seizure and
disposition of the property, and any related judicial
proceeding, shall be governed by the provisions of
section 413 of the Controlled Substances Act (21 U.S.C.
853), except subsections (a) and (d) of that section.
SEC. 12. JUDICIAL REVIEW.
(a) Definition.--In this section, the term ``classified
information''--
(1) has the meaning given the term in section 1(a) of the
Classified Information Procedures Act (18 U.S.C. App.); and
(2) includes--
(A) any information or material that has been
determined by the Federal Government pursuant to an
Executive order, statute, or regulation to require
protection against unauthorized disclosure for reasons
of national security; and
(B) any restricted data, as defined in section 11
of the Atomic Energy Act of 1954 (42 U.S.C. 2014).
(b) Administrative and Judicial Review.--Notwithstanding any other
provision of law, actions taken by the President and the Secretary, and
the findings of the President and the Secretary, under this Act shall
not be subject to administrative review or judicial review in any
Federal court, except as otherwise provided in this section. Actions
taken by the Secretary under this Act shall not be subject to sections
551, 553 through 559, and 701 through 707 of title 5, United States
Code.
(c) Petitions.--
(1) In general.--Not later than 60 days after the Secretary
takes action under section 3(a), or the President takes action
under section 4(c), an aggrieved person may apply for review by
filing a petition for review in the United States Court of
Appeals for the District of Columbia Circuit.
(2) Standard of review.--The court shall not disturb any
action taken by the Secretary under section 3(a), or by the
President under section 4(c), unless the petitioner
demonstrates that the action is unconstitutional or in patent
violation of a clear and mandatory statutory command.
(d) Exclusive Jurisdiction.--The United States Court of Appeals for
the District of Columbia Circuit shall have exclusive jurisdiction over
claims arising under this Act against the United States, any executive
department or agency, or any component or official of an executive
department or agency, subject to review by the Supreme Court of the
United States under section 1254 of title 28, United States Code.
(e) Administrative Record and Procedure.--
(1) In general.--The procedures described in this
subsection shall apply to the review of a petition for review
under this section.
(2) Filing of record.--The United States shall file with
the court an administrative record, which shall consist of the
information that the appropriate official relied upon in taking
a final action under this Act.
(3) Unclassified, nonprivileged information.--All
unclassified information contained in the administrative record
filed pursuant to paragraph (2) that is not otherwise
privileged or subject to statutory protections shall be
provided to the petitioner with appropriate protections for any
privileged or confidential trade secrets and commercial or
financial information.
(4) In camera and ex parte review.--The following
information may be included in the administrative record and
shall be submitted only to the court ex parte and in camera:
(A) Sensitive security information, as defined by
section 1520.5 of title 49, Code of Federal
Regulations.
(B) Privileged law enforcement information.
(C) Information obtained or derived from any
activity authorized under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.),
except that, with respect to such information,
subsections (c), (e), (f), (g), and (h) of section 106
(50 U.S.C. 1806), subsections (d), (f), (g), (h), and
(i) of section 305 (50 U.S.C. 1825), subsections (c),
(e), (f), (g), and (h) of section 405 (50 U.S.C. 1845),
and section 706 (50 U.S.C. 1881e) of that Act shall not
apply.
(D) Information subject to privilege or protections
under any other provision of law, including the
Currency and Foreign Transactions Reporting Act of 1970
(31 U.S.C. 5311 et seq.).
(5) Information under seal.--Any information that is part
of the administrative record filed ex parte and in camera under
paragraph (4), or cited by the court in any decision, shall be
treated by the court consistent with the provisions of this
section. In no event shall such information be released to the
petitioner or as part of the public record.
(6) Return.--After the expiration of the time to seek
further review, or the conclusion of further proceedings, the
court shall return the administrative record, including any and
all copies, to the United States.
(f) Exclusive Remedy.--A determination by the court under this
section shall be the exclusive judicial remedy for any claim described
in this section against the United States, any executive department or
agency, or any component or official of any such executive department
or agency.
(g) Rule of Construction.--Nothing in this section shall be
construed as limiting, superseding, or preventing the invocation of,
any privileges or defenses that are otherwise available at law or in
equity to protect against the disclosure of information.
SEC. 13. RELATIONSHIP TO OTHER LAWS.
(a) In General.--Except as expressly provided herein, nothing in
this Act shall be construed to alter or affect any other authority,
process, regulation, investigation, enforcement measure, or review
provided by or established under any other provision of Federal law,
including the Federal Acquisition Regulation or the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), or any other
authority of the President or Congress under the Constitution of the
United States.
(b) Relationship to Section 721 of the Defense Production Act of
1950.--
(1) In general.--Notwithstanding section 721(d)(4)(B) of
the Defense Production Act of 1950 (50 U.S.C. 4565(d)(4)(B)),
nothing in this Act shall prevent or preclude the President or
the Committee on Foreign Investment in the United States from
exercising any authority under section 721 of the Defense
Production Act of 1950 (50 U.S.C. 4565 et seq.), as would be
available in the absence of this Act.
(2) Authority of the president.--The President may not
exercise any authority under section 4 with respect to a
covered holding that directly resulted from a transaction if--
(A) the Committee on Foreign Investment in the
United States reviewed the transaction (or a broader
transaction that included the transaction) as a covered
transaction (as defined in section 721(a)(4) of the
Defense Production Act of 1950 (50 U.S.C. 4565(a)(4))
and its implementing regulations; and
(B) under section 721 of the Defense Production Act
of 1950 (50 U.S.C. 4565)--
(i) the Committee on Foreign Investment in
the United States cleared the transaction and
notified the parties to the transaction (or a
broader transaction that included the
transaction) that the Committee on Foreign
Investment in the United States completed all
action with respect to the transaction (or a
broader transaction that included the
transaction); or
(ii) the President announced a decision
declining to take action with respect to the
transaction (or a broader transaction that
included the transaction).
(3) Coordination.--The Secretary shall address coordination
with respect to review by the Committee on Foreign Investment
in the United States in implementing the procedures under this
Act.
(c) Limitation of Authority of the Secretary.--The Secretary may
not initiate a review of any transaction that involves the acquisition
of an information and communications technology product or service by a
United States person as a party to a transaction--
(1) authorized under a United States government-industrial
security program; or
(2) to meet an articulable national security or law
enforcement requirement.
SEC. 14. TRANSITION.
All delegations, rules, regulations, orders, determinations,
licenses, or other forms of administrative action taken by the
Secretary made, issued, conducted, or allowed to become effective under
Executive Order 13873 of May 19, 2019 and the International Emergency
Economic Powers Act (50 U.S.C. 1701 et seq.), including regulations
issued under part 7 of subtitle A of title 15, Code of Federal
Regulations, and are in effect as of the date of enactment of this Act,
shall continue in effect according to their terms and as if made,
issued, conducted, or allowed to become effective pursuant to the
authority of this Act, until modified, superseded, set aside, or
revoked under the authority of this Act, without regard to any
restriction or limitation under the International Emergency Economic
Powers Act (50 U.S.C. 1701 et seq.).
SEC. 15. MISCELLANEOUS.
(a) Paperwork Reduction Act.--The requirements of chapter 35 of
title 44, United States Code (commonly referred to as the ``Paperwork
Reduction Act''), shall not apply to any action by the Secretary to
implement this Act.
(b) Appointment of Candidates.--To expedite the ability of the
Secretary to implement this Act, the Secretary may appoint, without
regard to the provisions of sections 3309 through 3318 of title 5,
United States Code, candidates directly to positions in the competitive
service (as defined in section 212 of that title).
(c) Administrative Procedures.--Except with respect to a civil
penalty imposed pursuant to section 9(b) of this Act, the functions
exercised under this Act shall not be subject to sections 551, 553
through 559, and 701 through 706 of title 5, United States Code.
(d) Protected Information in Civil Actions.--If a civil action
challenging an action or finding under this Act is brought, and the
court determines that protected information in the administrative
record, including classified or other information subject to privilege
or protections under any provision of law, is necessary to resolve the
action, that information shall be submitted ex parte and in camera to
the court and the court shall maintain that information under seal.
This subsection does not confer or imply any right to judicial review.
(e) Applicability of Use of Information Provisions.--The use of
information provisions of sections 106, 305, 405, and 706 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806, 1825,
1845, and 1881e) shall not apply in a civil action brought under this
Act.
(f) No Right of Access.--
(1) In general.--No provision of this Act shall be
construed to create a right to obtain access to information in
the possession of the Federal Government that was considered in
making a determination under this Act that a transaction is a
covered transaction or interest or to prohibit, mitigate, or
take action against a covered transaction or interest,
including any classified national security information or
sensitive but unclassified information.
(2) Inapplicability of foia.--Any information submitted to
the Federal Government by a party to a covered transaction in
accordance with this Act, as well as any information the
Federal Government may create relating to review of the covered
transaction, is exempt from disclosure under section 552 of
title 5, United States Code (commonly referred to as the
``Freedom of Information Act'').
SEC. 16. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance is held to be invalid, the remainder of
this Act, and the application of the remaining provisions of this Act
to any person or circumstance, shall not be affected.
SEC. 17. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act.
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