[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1228 Reported in Senate (RS)]

                                                       Calendar No. 107
112th CONGRESS
  1st Session
                                S. 1228

   To prohibit trafficking in counterfeit military goods or services.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 16, 2011

  Mr. Whitehouse (for himself, Mr. Graham, Mr. Coons, Mr. McCain, Mr. 
     Blumenthal, Ms. Klobuchar, Mr. Kyl, Mr. Leahy, and Mr. Hatch) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

                             July 21, 2011

                Reported by Mr. Leahy, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
   To prohibit trafficking in counterfeit military goods or services.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Combating Military 
Counterfeits Act of 2011''.</DELETED>

<DELETED>SEC. 2. TRAFFICKING IN COUNTERFEIT MILITARY GOODS OR 
              SERVICES.</DELETED>

<DELETED>    (a) Trafficking in Counterfeit Military Goods or 
Services.--Section 2320 of title 18, United States Code, is amended--
</DELETED>
        <DELETED>    (1) in subsection (a), by adding at the end the 
        following:</DELETED>
        <DELETED>    ``(3) Military goods or services.--</DELETED>
                <DELETED>    ``(A) In general.--A person who commits an 
                offense under paragraph (1) shall be punished in 
                accordance with subparagraph (B) if--</DELETED>
                        <DELETED>    ``(i) the offense involved a good 
                        or service described in paragraph (1) that if 
                        it malfunctioned, failed, or was compromised, 
                        could reasonably be expected to cause--
                        </DELETED>
                                <DELETED>    ``(I) serious bodily 
                                injury or death;</DELETED>
                                <DELETED>    ``(II) disclosure of 
                                classified information;</DELETED>
                                <DELETED>    ``(III) impairment of 
                                combat operations; or</DELETED>
                                <DELETED>    ``(IV) other significant 
                                harm to a member of the Armed Forces or 
                                to national security; and</DELETED>
                        <DELETED>    ``(ii) the person had knowledge 
                        that the good or service is falsely identified 
                        as meeting military standards or is intended 
                        for use in a military or national security 
                        application.</DELETED>
                <DELETED>    ``(B) Penalties.--</DELETED>
                        <DELETED>    ``(i) Individual.--An individual 
                        who commits an offense described in 
                        subparagraph (A) shall be fined not more than 
                        $5,000,000, imprisoned for not more than 20 
                        years, or both.</DELETED>
                        <DELETED>    ``(ii) Person other than an 
                        individual.--A person other than an individual 
                        that commits an offense described in 
                        subparagraph (A) shall be fined not more than 
                        $15,000,000.</DELETED>
                <DELETED>    ``(C) Subsequent offenses.--</DELETED>
                        <DELETED>    ``(i) Individual.--An individual 
                        who commits an offense described in 
                        subparagraph (A) after the individual is 
                        convicted of an offense under subparagraph (A) 
                        shall be fined not more than $15,000,000, 
                        imprisoned not more than 30 years, or 
                        both.</DELETED>
                        <DELETED>    ``(ii) Person other than an 
                        individual.--A person other than an individual 
                        that commits an offense described in 
                        subparagraph (A) after the person is convicted 
                        of an offense under subparagraph (A) shall be 
                        fined not more than $30,000,000.''; 
                        and</DELETED>
        <DELETED>    (2) in subsection (e)--</DELETED>
                <DELETED>    (A) in paragraph (1), by striking the 
                period at the end and inserting a semicolon;</DELETED>
                <DELETED>    (B) in paragraph (3), by striking ``and'' 
                at the end;</DELETED>
                <DELETED>    (C) in paragraph (4), by striking the 
                period at the end and a semicolon; and</DELETED>
                <DELETED>    (D) by adding at the end the 
                following:</DELETED>
        <DELETED>    ``(5) the term `falsely identified as meeting 
        military standards' relating to a good or service--</DELETED>
                <DELETED>    ``(A) means the good or service--
                </DELETED>
                        <DELETED>    ``(i)(I) bears a label, tag, 
                        stamp, product code, phrase, or emblem of any 
                        kind that indicates that the good or service 
                        meets a standard, requirement, or specification 
                        issued by the Department of Defense, an Armed 
                        Force, or a reserve component;</DELETED>
                        <DELETED>    ``(II) is packaged in a wrapper, 
                        container, box, case, or packaging of any type 
                        or nature which bears a label, tag, stamp, 
                        product code, phrase, or emblem of any kind 
                        which indicates that the good or services meets 
                        a standard, requirement, or specification 
                        issued by the Department of Defense, an Armed 
                        Force, or a reserve component; or</DELETED>
                        <DELETED>    ``(III) is accompanied by or 
                        marketed with a certificate or other oral or 
                        written representation that the good or service 
                        meets a standard, requirement, or specification 
                        issued by the Department of Defense, an Armed 
                        Force, or a reserve component; and</DELETED>
                        <DELETED>    ``(ii) does not meet the standard, 
                        requirement, or specification of the Department 
                        of Defense, an Armed Force, or a reserve 
                        component that is indicated or represented in a 
                        manner described in clause (i); and</DELETED>
                <DELETED>    ``(B) shall not apply to--</DELETED>
                        <DELETED>    ``(i) the identification of a good 
                        or service in a manner that is unlikely to 
                        cause confusion, to cause mistake, or to 
                        deceive; or</DELETED>
                        <DELETED>    ``(ii) a good or service if the 
                        standard, requirement, or specification issued 
                        by the Department of Defense, an Armed Force, 
                        or a reserve component has only a de minimis 
                        relationship to national security or the safety 
                        of the members of the Armed Forces; 
                        and</DELETED>
        <DELETED>    ``(6) the term `use in a military or national 
        security application' means the use of a good or service, 
        independently, in conjunction with, or as a component of 
        another good or service--</DELETED>
                <DELETED>    ``(A) during the performance of the 
                official duties of the Armed Forces of the United 
                States or the reserve components of the Armed Forces; 
                or</DELETED>
                <DELETED>    ``(B) by the United States to perform or 
                directly support--</DELETED>
                        <DELETED>    ``(i) combat operations; 
                        or</DELETED>
                        <DELETED>    ``(ii) critical national defense 
                        or national security functions.''.</DELETED>
<DELETED>    (b) Sentencing Guidelines.--</DELETED>
        <DELETED>    (1) Directive.--The United States Sentencing 
        Commission shall review and, if appropriate, amend the Federal 
        sentencing guidelines and policy statements applicable to 
        persons convicted of an offense under section 2320(a) of title 
        18, United States Code, to reflect the intent of Congress that 
        penalties for such offenses be increased in comparison to those 
        provided on the day before the date of enactment of this Act 
        under the guidelines and policy statements.</DELETED>
        <DELETED>    (2) Requirements.--In amending the Federal 
        Sentencing Guidelines and policy statements under paragraph 
        (1), the United States Sentencing Commission shall--</DELETED>
                <DELETED>    (A) ensure that the guidelines and policy 
                statements, including section 2B5.3 of the Federal 
                Sentencing Guidelines (and any successor thereto), 
                reflect--</DELETED>
                        <DELETED>    (i) the serious nature of the 
                        offenses described in section 2320(a) of title 
                        18, United States Code;</DELETED>
                        <DELETED>    (ii) the need for an effective 
                        deterrent and appropriate punishment to prevent 
                        offenses under section 2320(a) of title 18, 
                        United States Code; and</DELETED>
                        <DELETED>    (iii) the effectiveness of 
                        incarceration in furthering the objectives 
                        described in clauses (i) and (ii);</DELETED>
                <DELETED>    (B) consider the extent to which the 
                guidelines appropriately account for the risk, even if 
                attenuated or unknown to the offender, to members of 
                the Armed Forces of the United States, military 
                readiness, and national security resulting from an 
                offense committed under section 2320(a) of title 18, 
                United States Code, including in instances involving a 
                limited value or quantity of goods or 
                services;</DELETED>
                <DELETED>    (C) ensure reasonable consistency with 
                other relevant directives and guidelines and Federal 
                statutes;</DELETED>
                <DELETED>    (D) make any necessary conforming changes 
                to the guidelines; and</DELETED>
                <DELETED>    (E) ensure that the guidelines relating to 
                offenses under section 2320(a) of title 18, United 
                States Code, adequately meet the purposes of 
                sentencing, as described in section 3553(a)(2) of title 
                18, United States Code.</DELETED>
        <DELETED>    (3) Emergency authority.--The United States 
        Sentencing Commission shall--</DELETED>
                <DELETED>    (A) promulgate the guidelines, policy 
                statements, or amendments provided for in this Act as 
                soon as practicable, and in any event not later than 
                180 days after the date of enactment of this Act, in 
                accordance with the procedure set forth in section 
                21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 
                note), as though the authority under that Act had not 
                expired; and</DELETED>
                <DELETED>    (B) pursuant to the emergency authority 
                provided under subparagraph (A), make such conforming 
                amendments to the Federal sentencing guidelines as the 
                Commission determines necessary to achieve consistency 
                with other guideline provisions and applicable 
                law.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Combating Military Counterfeits Act 
of 2011''.

SEC. 2. TRAFFICKING IN COUNTERFEIT MILITARY GOODS OR SERVICES.

    (a) Trafficking in Counterfeit Military Goods or Services.--Section 
2320 of title 18, United States Code, is amended--
            (1) in subsection (a), by adding at the end the following:
            ``(3) Military goods or services.--
                    ``(A) In general.--A person who commits an offense 
                under paragraph (1) shall be punished in accordance 
                with subparagraph (B) if--
                            ``(i) the offense involved a good or 
                        service described in paragraph (1) that if it 
                        malfunctioned, failed, or was compromised, 
                        could reasonably be foreseen to cause--
                                    ``(I) serious bodily injury or 
                                death;
                                    ``(II) disclosure of classified 
                                information;
                                    ``(III) impairment of combat 
                                operations; or
                                    ``(IV) other significant harm to a 
                                member of the Armed Forces or to 
                                national security; and
                            ``(ii) the person had knowledge that the 
                        good or service is falsely identified as 
                        meeting military standards or is intended for 
                        use in a military or national security 
                        application.
                    ``(B) Penalties.--
                            ``(i) Individual.--An individual who 
                        commits an offense described in subparagraph 
                        (A) shall be fined not more than $5,000,000, 
                        imprisoned for not more than 20 years, or both.
                            ``(ii) Person other than an individual.--A 
                        person other than an individual that commits an 
                        offense described in subparagraph (A) shall be 
                        fined not more than $15,000,000.
                    ``(C) Subsequent offenses.--
                            ``(i) Individual.--An individual who 
                        commits an offense described in subparagraph 
                        (A) after the individual is convicted of an 
                        offense under subparagraph (A) shall be fined 
                        not more than $15,000,000, imprisoned not more 
                        than 30 years, or both.
                            ``(ii) Person other than an individual.--A 
                        person other than an individual that commits an 
                        offense described in subparagraph (A) after the 
                        person is convicted of an offense under 
                        subparagraph (A) shall be fined not more than 
                        $30,000,000.''; and
            (2) in subsection (e)--
                    (A) in paragraph (1), by striking the period at the 
                end and inserting a semicolon;
                    (B) in paragraph (3), by striking ``and'' at the 
                end;
                    (C) in paragraph (4), by striking the period at the 
                end and inserting a semicolon; and
                    (D) by adding at the end the following:
            ``(5) the term `falsely identified as meeting military 
        standards' relating to a good or service means there is a 
        material misrepresentation that the good or service meets a 
        standard, requirement, or specification issued by the 
        Department of Defense, an Armed Force, or a reserve component; 
        and
            ``(6) the term `use in a military or national security 
        application' means the use of a good or service, independently, 
        in conjunction with, or as a component of another good or 
        service--
                    ``(A) during the performance of the official duties 
                of the Armed Forces of the United States or the reserve 
                components of the Armed Forces; or
                    ``(B) by the United States to perform or directly 
                support--
                            ``(i) combat operations; or
                            ``(ii) critical national defense or 
                        national security functions.''.
    (b) Sentencing Guidelines.--
            (1) Definition.--In this subsection, the term ``critical 
        infrastructure'' has the meaning given that term in application 
        note 13(A) of section 2B1.1 of the Federal Sentencing 
        Guidelines.
            (2) Directive.--The United States Sentencing Commission 
        shall review and, if appropriate, amend the Federal Sentencing 
        Guidelines and policy statements applicable to persons 
        convicted of an offense under section 2320(a) of title 18, 
        United States Code, to reflect the intent of Congress that 
        penalties for such offenses be increased for defendants that 
        sell infringing products to, or for the use by or for, the 
        Armed Forces or a Federal, State, or local law enforcement 
        agency or for use in critical infrastructure or in national 
        security applications.
            (3) Requirements.--In amending the Federal Sentencing 
        Guidelines and policy statements under paragraph (2), the 
        United States Sentencing Commission shall--
                    (A) ensure that the guidelines and policy 
                statements, including section 2B5.3 of the Federal 
                Sentencing Guidelines (and any successor thereto), 
                reflect--
                            (i) the serious nature of the offenses 
                        described in section 2320(a) of title 18, 
                        United States Code;
                            (ii) the need for an effective deterrent 
                        and appropriate punishment to prevent offenses 
                        under section 2320(a) of title 18, United 
                        States Code; and
                            (iii) the effectiveness of incarceration in 
                        furthering the objectives described in clauses 
                        (i) and (ii);
                    (B) consider an appropriate offense level 
                enhancement and minimum offense level for offenses that 
                involve a product used to maintain or operate critical 
                infrastructure, or used by or for an entity of the 
                Federal Government or a State or local government in 
                furtherance of the administration of justice, national 
                defense, or national security;
                    (C) ensure reasonable consistency with other 
                relevant directives and guidelines and Federal 
                statutes;
                    (D) make any necessary conforming changes to the 
                guidelines; and
                    (E) ensure that the guidelines relating to offenses 
                under section 2320(a) of title 18, United States Code, 
                adequately meet the purposes of sentencing, as 
                described in section 3553(a)(2) of title 18, United 
                States Code.
            (4) Emergency authority.--The United States Sentencing 
        Commission shall--
                    (A) promulgate the guidelines, policy statements, 
                or amendments provided for in this Act as soon as 
                practicable, and in any event not later than 180 days 
                after the date of enactment of this Act, in accordance 
                with the procedure set forth in section 21(a) of the 
                Sentencing Act of 1987 (28 U.S.C. 994 note), as though 
                the authority under that Act had not expired; and
                    (B) pursuant to the emergency authority provided 
                under subparagraph (A), make such conforming amendments 
                to the Federal Sentencing Guidelines as the Commission 
                determines necessary to achieve consistency with other 
                guideline provisions and applicable law.
                                                       Calendar No. 107

112th CONGRESS

  1st Session

                                S. 1228

_______________________________________________________________________

                                 A BILL

   To prohibit trafficking in counterfeit military goods or services.

_______________________________________________________________________

                             July 21, 2011

                       Reported with an amendment