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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. | |
<all> |
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