II Calendar No. 107 112th CONGRESS 1st Session S. 1228 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.
1.
Short title
This Act may be cited as the Combating Military Counterfeits Act of 2011.
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 expected 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 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— (A)means the good or service— (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; (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 (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 (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 (B)shall not apply to— (i)the identification of a good or service in a manner that is unlikely to cause confusion, to cause mistake, or to deceive; or (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 (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)
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. (2)
Requirements
In amending the Federal Sentencing Guidelines and policy statements under paragraph (1), 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 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; (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. (3)
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.
1.
Short title
This Act may be cited as the Combating Military Counterfeits Act of 2011.
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.
July 21, 2011 Reported with an amendment