[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2271 Enrolled Bill (ENR)]

:\SENENR\s2271--enr.xml [file 1 of 1]

        S.2271

                       One Hundred Tenth Congress

                                 of the

                        United States of America


                          AT THE FIRST SESSION

          Begun and held at the City of Washington on Thursday,
            the fourth day of January, two thousand and seven


                                 An Act


 
 To authorize State and local governments to divest assets in companies 
  that conduct business operations in Sudan, to prohibit United States 
    Government contracts with such companies, 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 ``Sudan Accountability and Divestment 
Act of 2007''.
SEC. 2. DEFINITIONS.
    In this Act:
        (1) Appropriate congressional committees.--The term 
    ``appropriate congressional committees'' means--
            (A) the Committee on Banking, Housing, and Urban Affairs, 
        the Committee on Foreign Relations, and the Select Committee on 
        Intelligence of the Senate; and
            (B) the Committee on Financial Services, the Committee on 
        Foreign Affairs, and the Permanent Select Committee on 
        Intelligence of the House of Representatives.
        (2) Business operations.--The term ``business operations'' 
    means engaging in commerce in any form in Sudan, including by 
    acquiring, developing, maintaining, owning, selling, possessing, 
    leasing, or operating equipment, facilities, personnel, products, 
    services, personal property, real property, or any other apparatus 
    of business or commerce.
        (3) Executive agency.--The term ``executive agency'' has the 
    meaning given the term in section 4 of the Office of Federal 
    Procurement Policy Act (41 U.S.C. 403).
        (4) Government of sudan.--The term ``Government of Sudan''--
            (A) means the government in Khartoum, Sudan, which is led 
        by the National Congress Party (formerly known as the National 
        Islamic Front) or any successor government formed on or after 
        October 13, 2006 (including the coalition National Unity 
        Government agreed upon in the Comprehensive Peace Agreement for 
        Sudan); and
            (B) does not include the regional government of southern 
        Sudan.
        (5) Marginalized populations of sudan.--The term ``marginalized 
    populations of Sudan'' refers to--
            (A) adversely affected groups in regions authorized to 
        receive assistance under section 8(c) of the Darfur Peace and 
        Accountability Act (Public Law 109-344; 50 U.S.C. 1701 note); 
        and
            (B) marginalized areas in Northern Sudan described in 
        section 4(9) of such Act.
        (6) Military equipment.--The term ``military equipment'' 
    means--
            (A) weapons, arms, military supplies, and equipment that 
        readily may be used for military purposes, including radar 
        systems or military-grade transport vehicles; or
            (B) supplies or services sold or provided directly or 
        indirectly to any force actively participating in armed 
        conflict in Sudan.
        (7) Mineral extraction activities.--The term ``mineral 
    extraction activities'' means exploring, extracting, processing, 
    transporting, or wholesale selling or trading of elemental minerals 
    or associated metal alloys or oxides (ore), including gold, copper, 
    chromium, chromite, diamonds, iron, iron ore, silver, tungsten, 
    uranium, and zinc.
        (8) Oil-related activities.--
            (A) In general.--Except as provided in subparagraph (B), 
        the term ``oil-related activities'' means--
                (i) exporting, extracting, producing, refining, 
            processing, exploring for, transporting, selling, or 
            trading oil; and
                (ii) constructing, maintaining, or operating a 
            pipeline, refinery, or other oilfield infrastructure.
            (B) Exclusions.--A person shall not be considered to be 
        involved in an oil-related activity if--
                (i) the person is involved in the retail sale of 
            gasoline or related consumer products in Sudan but is not 
            involved in any other activity described in subparagraph 
            (A); or
                (ii) the person is involved in leasing, or owns, rights 
            to an oil block in Sudan but is not involved in any other 
            activity described in subparagraph (A).
        (9) Person.--The term ``person'' means--
            (A) a natural person, corporation, company, business 
        association, partnership, society, trust, any other 
        nongovernmental entity, organization, or group;
            (B) any governmental entity or instrumentality of a 
        government, including a multilateral development institution 
        (as defined in section 1701(c)(3) of the International 
        Financial Institutions Act (22 U.S.C. 262r(c)(3))); and
            (C) any successor, subunit, parent company or subsidiary of 
        any entity described in subparagraph (A) or (B).
        (10) Power production activities.--The term ``power production 
    activities'' means any business operation that involves a project 
    commissioned by the National Electricity Corporation of Sudan or 
    other similar entity of the Government of Sudan whose purpose is to 
    facilitate power generation and delivery, including establishing 
    power-generating plants or hydroelectric dams, selling or 
    installing components for the project, or providing service 
    contracts related to the installation or maintenance of the 
    project.
        (11) State.--The term ``State'' means each of the several 
    States, the District of Columbia, the Commonwealth of Puerto Rico, 
    the United States Virgin Islands, Guam, American Samoa, and the 
    Commonwealth of the Northern Mariana Islands.
        (12) State or local government.--The term ``State or local 
    government'' includes--
            (A) any State and any agency or instrumentality thereof;
            (B) any local government within a State, and any agency or 
        instrumentality thereof;
            (C) any other governmental instrumentality; and
            (D) any public institution of higher education within the 
        meaning of the Higher Education Act of 1965 (20 U.S.C. 1001 et 
        seq.).
SEC. 3. AUTHORITY OF STATE AND LOCAL GOVERNMENTS TO DIVEST FROM CERTAIN 
COMPANIES DIRECTLY INVESTED IN CERTAIN SUDANESE SECTORS.
    (a) Sense of Congress.--It is the sense of Congress that the United 
States Government should support the decision of any State or local 
government to divest from, or to prohibit the investment of assets of 
the State or local government in, a person that the State or local 
government determines poses a financial or reputational risk.
    (b) Authority To Divest.--Notwithstanding any other provision of 
law, a State or local government may adopt and enforce measures that 
meet the requirements of subsection (e) to divest the assets of the 
State or local government from, or prohibit investment of the assets of 
the State or local government in, persons that the State or local 
government determines, using credible information available to the 
public, are conducting or have direct investments in business 
operations described in subsection (d).
    (c) Notice to Department of Justice.--Not later than 30 days after 
adopting a measure pursuant to subsection (b), a State or local 
government shall submit written notice to the Attorney General 
describing the measure.
    (d) Business Operations Described.--
        (1) In general.--Business operations described in this 
    subsection are business operations in Sudan that include power 
    production activities, mineral extraction activities, oil-related 
    activities, or the production of military equipment.
        (2) Exceptions.--Business operations described in this 
    subsection do not include business operations that the person 
    conducting the business operations can demonstrate--
            (A) are conducted under contract directly and exclusively 
        with the regional government of southern Sudan;
            (B) are conducted under a license from the Office of 
        Foreign Assets Control, or are expressly exempted under Federal 
        law from the requirement to be conducted under such a license;
            (C) consist of providing goods or services to marginalized 
        populations of Sudan;
            (D) consist of providing goods or services to an 
        internationally recognized peacekeeping force or humanitarian 
        organization;
            (E) consist of providing goods or services that are used 
        only to promote health or education; or
            (F) have been voluntarily suspended.
    (e) Requirements.--Any measure taken by a State or local government 
under subsection (b) shall meet the following requirements:
        (1) Notice.--The State or local government shall provide 
    written notice and an opportunity to comment in writing to each 
    person to whom a measure is to be applied.
        (2) Timing.--The measure shall apply to a person not earlier 
    than the date that is 90 days after the date on which written 
    notice is provided to the person under paragraph (1).
        (3) Applicability.--The measure shall not apply to a person 
    that demonstrates to the State or local government that the person 
    does not conduct or have direct investments in business operations 
    described in subsection (d).
        (4) Sense of congress on avoiding erroneous targeting.--It is 
    the sense of Congress that a State or local government should not 
    adopt a measure under subsection (b) with respect to a person 
    unless the State or local government has made every effort to avoid 
    erroneously targeting the person and has verified that the person 
    conducts or has direct investments in business operations described 
    in subsection (d).
    (f) Definitions.--In this section:
        (1) Investment.--The ``investment'' of assets, with respect to 
    a State or local government, includes--
            (A) a commitment or contribution of assets;
            (B) a loan or other extension of credit of assets; and
            (C) the entry into or renewal of a contract for goods or 
        services.
        (2) Assets.--
            (A) In general.--Except as provided in subparagraph (B), 
        the term ``assets'' refers to public monies and includes any 
        pension, retirement, annuity, or endowment fund, or similar 
        instrument, that is controlled by a State or local government.
            (B) Exception.--The term ``assets'' does not include 
        employee benefit plans covered by title I of the Employee 
        Retirement Income Security Act of 1974 (29 U.S.C. 1001 et 
        seq.).
    (g) Nonpreemption.--A measure of a State or local government 
authorized under subsection (b) is not preempted by any Federal law or 
regulation.
    (h) Effective Date.--
        (1) In general.--Except as provided in paragraph (2), this 
    section applies to measures adopted by a State or local government 
    before, on, or after the date of the enactment of this Act.
        (2) Notice requirements.--Subsections (c) and (e) apply to 
    measures adopted by a State or local government on or after the 
    date of the enactment of this Act.
SEC. 4. SAFE HARBOR FOR CHANGES OF INVESTMENT POLICIES BY ASSET 
MANAGERS.
    (a) In General.--Section 13 of the Investment Company Act of 1940 
(15 U.S.C. 80a-13) is amended by adding at the end the following:
    ``(c) Limitation on Actions.--
        ``(1) In general.--Notwithstanding any other provision of 
    Federal or State law, no person may bring any civil, criminal, or 
    administrative action against any registered investment company, or 
    any employee, officer, director, or investment adviser thereof, 
    based solely upon the investment company divesting from, or 
    avoiding investing in, securities issued by persons that the 
    investment company determines, using credible information that is 
    available to the public, conduct or have direct investments in 
    business operations in Sudan described in section 3(d) of the Sudan 
    Accountability and Divestment Act of 2007.
        ``(2) Applicability.--
            ``(A) Actions for breaches of fiduciary duties.--Paragraph 
        (1) does not prevent a person from bringing an action based on 
        a breach of a fiduciary duty owed to that person with respect 
        to a divestment or non-investment decision, other than as 
        described in paragraph (1).
            ``(B) Disclosures.--Paragraph (1) shall not apply to a 
        registered investment company, or any employee, officer, 
        director, or investment adviser thereof, unless the investment 
        company makes disclosures in accordance with regulations 
        prescribed by the Commission.
        ``(3) Person defined.--For purposes of this subsection the term 
    `person' includes the Federal Government and any State or political 
    subdivision of a State.''.
    (b) SEC Regulations.--Not later than 120 days after the date of the 
enactment of this Act, the Securities and Exchange Commission shall 
prescribe regulations, in the public interest and for the protection of 
investors, to require disclosure by each registered investment company 
that divests itself of securities in accordance with section 13(c) of 
the Investment Company Act of 1940. Such rules shall require the 
disclosure to be included in the next periodic report filed with the 
Commission under section 30 of such Act (15 U.S.C. 80a-29) following 
such divestiture.
SEC. 5. SENSE OF CONGRESS REGARDING CERTAIN ERISA PLAN INVESTMENTS.
    It is the sense of Congress that a fiduciary of an employee benefit 
plan, as defined in section 3(3) of the Employee Retirement Income 
Security Act of 1974 (29 U.S.C. 1002(3)), may divest plan assets from, 
or avoid investing plan assets in, any person the fiduciary determines 
is conducting or has direct investments in business operations in Sudan 
described in section 3(d) of this Act, without breaching the 
responsibilities, obligations, or duties imposed upon the fiduciary by 
section 404 of the Employee Retirement Income Security Act of 1974 (29 
U.S.C. 1104), if--
        (1) the fiduciary makes such determination using credible 
    information that is available to the public; and
        (2) such divestment or avoidance of investment is conducted in 
    accordance with section 2509.94-1 of title 29, Code of Federal 
    Regulations (as in effect on the day before the date of the 
    enactment of this Act).
SEC. 6. PROHIBITION ON UNITED STATES GOVERNMENT CONTRACTS.
    (a) Certification Requirement.--The head of each executive agency 
shall ensure that each contract entered into by such executive agency 
for the procurement of goods or services includes a clause that 
requires the contractor to certify to the contracting officer that the 
contractor does not conduct business operations in Sudan described in 
section 3(d).
    (b) Remedies.--
        (1) In general.--The head of an executive agency may impose 
    remedies as provided in this subsection if the head of the 
    executive agency determines that the contractor has submitted a 
    false certification under subsection (a) after the date the Federal 
    Acquisition Regulation is amended under subsection (e) to implement 
    the requirements of this section.
        (2) Termination.--The head of an executive agency may terminate 
    a covered contract upon the determination of a false certification 
    under paragraph (1).
        (3) Suspension and debarment.--The head of an executive agency 
    may debar or suspend a contractor from eligibility for Federal 
    contracts upon the determination of a false certification under 
    paragraph (1). The debarment period may not exceed 3 years.
        (4) Inclusion on list of parties excluded from federal 
    procurement and nonprocurement programs.--The Administrator of 
    General Services shall include on the List of Parties Excluded from 
    Federal Procurement and Nonprocurement Programs maintained by the 
    Administrator under part 9 of the Federal Acquisition Regulation 
    issued under section 25 of the Office of Federal Procurement Policy 
    Act (41 U.S.C. 421) each contractor that is debarred, suspended, 
    proposed for debarment or suspension, or declared ineligible by the 
    head of an executive agency on the basis of a determination of a 
    false certification under paragraph (1).
        (5) Rule of construction.--This section shall not be construed 
    to limit the use of other remedies available to the head of an 
    executive agency or any other official of the Federal Government on 
    the basis of a determination of a false certification under 
    paragraph (1).
    (c) Waiver.--
        (1) In general.--The President may waive the requirement of 
    subsection (a) on a case-by-case basis if the President determines 
    and certifies in writing to the appropriate congressional 
    committees that it is in the national interest to do so.
        (2) Reporting requirement.--Not later than April 15, 2008, and 
    semi-annually thereafter, the Administrator for Federal Procurement 
    Policy shall submit to the appropriate congressional committees a 
    report on waivers granted under paragraph (1).
    (d) Implementation Through the Federal Acquisition Regulation.--Not 
later than 120 days after the date of the enactment of this Act, the 
Federal Acquisition Regulatory Council shall amend the Federal 
Acquisition Regulation issued pursuant to section 25 of the Office of 
Federal Procurement Policy Act (41 U.S.C. 421) to provide for the 
implementation of the requirements of this section.
    (e) Report.--Not later than one year after the date the Federal 
Acquisition Regulation is amended under subsection (e) to implement the 
requirements of this section, the Administrator of General Services, 
with the assistance of other executive agencies, shall submit to the 
Office of Management and Budget and the appropriate congressional 
committees a report on the actions taken under this section.
SEC. 7. SENSE OF CONGRESS ON EFFORTS BY OTHER COUNTRIES.
    It is the sense of Congress that the governments of all other 
countries should adopt measures, similar to those contained in this 
Act, to publicize the activities of all persons that, through their 
financial dealings, knowingly or unknowingly enable the Government of 
Sudan to continue to oppress and commit genocide against people in the 
Darfur region and other regions of Sudan, and to authorize divestment 
from, and the avoidance of further investment in, such persons.
SEC. 8. SENSE OF CONGRESS ON PEACEKEEPING EFFORTS IN SUDAN.
    It is the sense of Congress that the President should--
        (1) continue to work with other members of the international 
    community, including the Permanent Members of the United Nations 
    Security Council, the African Union, the European Union, the Arab 
    League, and the Government of Sudan to facilitate the urgent 
    deployment of a peacekeeping force to Sudan; and
        (2) bring before the United Nations Security Council, and call 
    for a vote on, a resolution requiring meaningful multilateral 
    sanctions against the Government of Sudan in response to its acts 
    of genocide against the people of Darfur and its continued refusal 
    to allow the implementation of a peacekeeping force in Sudan.
SEC. 9. SENSE OF CONGRESS ON THE INTERNATIONAL OBLIGATIONS OF THE 
UNITED STATES.
    It is the sense of Congress that nothing in this Act--
        (1) conflicts with the international obligations or commitments 
    of the United States; or
        (2) affects article VI, clause 2, of the Constitution of the 
    United States.
  SEC. 10. REPORTS ON SANCTIONS IN SUPPORT OF PEACE IN DARFUR.
    (a) In General.--The Secretary of State and the Secretary of the 
Treasury shall submit to the appropriate congressional committees a 
report assessing the effectiveness of sanctions imposed with respect to 
Sudan at the time the Secretary of State and the Secretary of the 
Treasury submits reports required under--
        (1) the Sudan Peace Act (Public Law 107-245; 50 U.S.C. 1701 
    note);
        (2) the Comprehensive Peace in Sudan Act of 2004 (Public Law 
    108-497; 50 U.S.C. 1701 note); and
        (3) the Darfur Peace and Accountability Act of 2006 (Public Law 
    109-344; 50 U.S.C. 1701 note).
    (b) Additional Report by the Secretary of the Treasury.--The 
Secretary of the Treasury shall submit to the appropriate congressional 
committees a report assessing the effectiveness of sanctions imposed 
with respect to Sudan under the International Emergency Economic Powers 
Act (50 U.S.C. 1701 et seq.) at the time the President submits the 
reports required by section 204(c) of such Act (50 U.S.C. 1703(c)) with 
respect to Executive Order 13,067 (50 U.S.C. 1701 note; relating to 
blocking property of persons in connection with the conflict in Sudan's 
region of Darfur).
    (c) Contents.--The reports required by subsections (a) and (b) 
shall include--
        (1) a description of each sanction imposed under a law or 
    executive order described in subsection (a) or (b);
        (2) the name of the person subject to the sanction, if any; and
        (3) whether or not the person subject to the sanction is also 
    subject to sanctions imposed by the United Nations.
  SEC. 11. REPEAL OF REPORTING REQUIREMENT.
    Section 6305 of the U.S. Troop Readiness, Veterans' Care, Katrina 
Recovery, and Iraq Accountability Appropriations Act, 2007 (Public Law 
110-28; 121 Stat. 172) is repealed.
  SEC. 12. TERMINATION.
    The provisions of sections 3, 4, 5, 6, and 10 shall terminate 30 
days after the date on which the President has certified to Congress 
that the Government of Sudan has honored its commitments to--
        (1) abide by United Nations Security Council Resolution 1769 
    (2007);
        (2) cease attacks on civilians;
        (3) demobilize and demilitarize the Janjaweed and associated 
    militias;
        (4) grant free and unfettered access for delivery of 
    humanitarian assistance; and
        (5) allow for the safe and voluntary return of refugees and 
    internally displaced persons.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.