[Congressional Record Volume 167, Number 90 (Monday, May 24, 2021)]
[Senate]
[Pages S3349-S3350]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1932. Mr. INHOFE (for himself, Mr. Coons, and Mr. Cornyn)
submitted an amendment intended to be proposed to amendment SA 1502
proposed by Mr. Schumer to the bill S. 1260, to establish a new
Directorate for Technology and Innovation in the National Science
Foundation, to establish a regional technology hub program, to require
a strategy and report on economic security, science, research,
innovation, manufacturing, and job creation, to establish a critical
supply chain resiliency program, and for other purposes; which was
ordered to lie on the table; as follows:
At the end of title III of division F, add the following:
SEC. 6302. ADDRESSING THREATS TO NATIONAL SECURITY WITH
RESPECT TO WIRELESS COMMUNICATIONS RESEARCH AND
DEVELOPMENT.
(a) In General.--Chapter 4 of title II of the Trade
Expansion Act of 1962 (19 U.S.C. 1862 et seq.) is amended by
adding at the end the following:
``SEC. 234. STATEMENT OF POLICY.
``It is the policy of the United States--
``(1) to ensure the continued strength and leadership of
the United States with respect to the research and
development of key technologies for future wireless
telecommunications standards and infrastructure;
``(2) that the national security of the United States
requires the United States to maintain its leadership in the
research and development of key technologies for future
wireless telecommunications standards and infrastructure; and
``(3) that the national security and foreign policy of the
United States requires that the importation of items that
use, without a license, a claimed invention protected by a
patent that is essential for the implementation of a wireless
communications standard and is held by a United States
person, be controlled to ensure the achievement of the
policies described in paragraphs (1) and (2).
``SEC. 235. LIST OF FOREIGN ENTITIES THAT THREATEN NATIONAL
SECURITY WITH RESPECT TO WIRELESS
COMMUNICATIONS RESEARCH AND DEVELOPMENT.
``(a) In General.--The Secretary of Commerce (in this
section referred to as the `Secretary') shall establish and
maintain a list of each foreign entity that the Secretary
determines--
``(1)(A) uses, without a license, a claimed invention
protected by a patent that is essential for the
implementation of a wireless communications standard and is
held by a covered person; and
``(B) is a person of concern or has as its ultimate parent
a person of concern; or
``(2) is a successor to an entity described in paragraph
(1).
``(b) Watch List.--
``(1) In general.--The Secretary shall establish and
maintain a watch list of each foreign entity--
``(A)(i) that is a person of concern or has as its ultimate
parent a person of concern; and
``(ii) with respect to which a covered person has made the
demonstration described in paragraph (2) in a petition
submitted to the Secretary for the inclusion of the entity on
the list; or
``(B) that is a successor to an entity described in
subparagraph (A).
``(2) Demonstration described.--
``(A) In general.--A covered person has made a
demonstration described in this paragraph if the person has
reasonably demonstrated to the Secretary that--
``(i) the person owns at least one unexpired patent that is
essential for the implementation of a wireless communications
standard;
``(ii) a foreign entity that is a person of concern, or has
as its ultimate parent a person of concern, has been, for a
period of more than 180 days, selling wireless communications
devices in or into the United States, directly or indirectly,
that are claimed, labeled, marketed, or advertised as
complying with that standard;
``(iii) the covered person has offered to the foreign
entity or any of its affiliates--
``(I) a license to the person's portfolio of patents that
are essential to that standard; or
``(II) to enter into binding arbitration to resolve the
terms of such a license; and
``(iv) the foreign entity has not executed a license
agreement or an agreement to enter into such arbitration, as
the case may be, by the date that is 180 days after the
covered person made such an offer.
``(B) Demonstration of essentiality.--A covered person may
demonstrate under subparagraph (A)(i) that the person owns at
least one unexpired patent that is essential for the
implementation of a wireless communications standard by
providing to the Secretary any of the following:
``(i) A decision by a court or arbitral tribunal that a
patent owned by the person is essential for the
implementation of that standard.
``(ii) A determination by an independent patent evaluator
not hired by the person that a patent owned by the person is
essential for the implementation of that standard.
``(iii) A showing that wireless communications device
manufacturers together accounting for a significant portion
of the United States or world market for such devices have
entered into agreements for licenses to the person's
portfolio of patents that are essential for the
implementation of that standard.
``(iv) A showing that the person has previously granted
licenses to the foreign entity described in subparagraph
(A)(ii) or any of its affiliates with respect to a reasonably
similar portfolio of the person's patents that are essential
for the implementation of that standard.
``(C) Accounting of wireless communications device
market.--A showing described in subparagraph (B)(iii) may be
made either by including or excluding wireless communications
device manufacturers that are persons of concern.
``(3) Procedures.--
``(A) Adding a foreign entity to the watch list.--
``(i) In general.--The Secretary may add a foreign entity
to the watch list under paragraph (1) only after notice and
opportunity for an agency hearing on the record in accordance
with (except as provided in clause (ii)) sections 554 through
557 of title 5, United States Code.
``(ii) Matters considered at hearing.--An agency hearing
conducted under clause (i)--
``(I) shall be limited to consideration of--
``(aa) whether the demonstration described in paragraph (2)
has been reasonably made; and
``(bb) the amount of bond to be required in accordance with
section 236; and
``(II) may not include the presentation or consideration of
legal or equitable defenses or counterclaims.
[[Page S3350]]
``(B) Administrative procedure.--Except as provided in
subparagraph (A), the functions exercised under this section
and section 236 shall not be subject to sections 551, 553
through 559, or 701 through 706 of title 5, United States
Code.
``(c) Movement Between Lists.--A foreign entity on the
watch list required by subsection (b)(1) may be moved to the
list required by subsection (a), pursuant to procedures
established by the Secretary, on or after the date that is
one year after being included on the watch list if the
foreign entity is not able to reasonably demonstrate that it
has entered into a patent license agreement or a binding
arbitration agreement with each covered person that has made
the demonstration described in subsection (b)(2) with respect
to the entity.
``(d) Removal From Lists.--A foreign entity on the list
required by subsection (a) or on the watch list required by
subsection (b)(1) may petition the Secretary to be removed
from that list on the basis that the conditions that led to
the inclusion of the foreign entity on the list no longer
exist. The burden of proof shall be on the foreign entity.
``(e) Definitions.--In this section:
``(1) Affiliate.--The term `affiliate', with respect to an
entity, means any entity that owns or controls, is owned or
controlled by, or is under common ownership or control with,
the entity.
``(2) Country of concern.--The term `country of concern'
means a country with respect to which the Secretary
determines that--
``(A) persons in the country persistently use, without
obtaining a license, patents--
``(i) essential to the implementation of wireless
communications standards; and
``(ii) held by a covered person; and
``(B) that use of patents poses a threat to--
``(i) the ability of the United States to maintain a
wireless communications research and development
infrastructure; and
``(ii) the national security of the United States, pursuant
to the policy set forth in section 234.
``(3) Covered person.--The term `covered person' means--
``(A) a covered United States person; or
``(B) an affiliate of a covered United States person--
``(i) headquartered in, or organized under the laws of, a
country that is a member of the European Union or the North
Atlantic Treaty Organization; and
``(ii) engaged in wireless communications research and
development.
``(4) Covered united states person.--The term `covered
United States person' means a United States person engaged in
wireless communications research and development in the
United States.
``(5) Person of concern.--The term `person of concern'
means a person that is--
``(A) an individual who is a citizen or national (as
defined in section 101(a) of the Immigration and Nationality
Act (8 U.S.C. 1101(a))) of a country of concern; or
``(B) an entity that is headquartered in, or organized
under the laws of, a country of concern.
``(6) United states person.--The term `United States
person' means--
``(A) an individual who is a United States citizen or an
alien lawfully admitted for permanent residence to the United
States;
``(B) an entity organized under the laws of the United
States or any jurisdiction within the United States,
including a foreign branch of such an entity; or
``(C) any person in the United States.
``(7) Wireless communications standard.--The term `wireless
communications standard' means--
``(A) a cellular wireless telecommunications standard,
including such a standard promulgated by the 3rd Generation
Partnership Project (commonly known as `3GPP') or the 3rd
Generation Partnership Project 2 (commonly known as `3GPP2');
or
``(B) a wireless local area network standard, including
such a standard designated as IEEE 802.11 as developed by the
Institute of Electrical and Electronics Engineers (commonly
known as the `IEEE').
``SEC. 236. IMPORT SANCTIONS WITH RESPECT TO CERTAIN FOREIGN
ENTITIES THAT THREATEN NATIONAL SECURITY.
``(a) In General.--Any foreign entity on the list required
by section 235(a) may be subject to such controls on the
importing of goods or technology into the United States as
the President may prescribe.
``(b) Entry Under Bond.--
``(1) In general.--Unless otherwise prescribed by the
President, a product described in paragraph (2) may not enter
the United States except under bond prescribed by the
Secretary of Commerce in an amount determined by the
Secretary to be sufficient to protect from injury a covered
United States person that made the demonstration described in
section 235(b)(2) with respect to the entity that has been
selling the product directly or indirectly in or into the
United States.
``(2) Products described.--A product described in this
paragraph is a wireless communications device--
``(A) produced or sold by--
``(i) a foreign entity on the watch list required by
section 235(b);
``(ii) a successor of such an entity; or
``(iii) an affiliate of an entity described in clause (i)
or (ii); and
``(B) that is claimed, labeled, marketed, or advertised as
complying with a wireless communications standard that was
the basis for the inclusion of the foreign entity on the
watch list.
``(c) Forfeiture of Bond.--
``(1) In general.--If a foreign entity on the watch list
required by section 235(b) is moved to the list required by
section 235(a) and becomes subject to controls under
subsection (a), a bond paid under subsection (b) shall be
forfeited to a covered United States person that made the
demonstration described in section 235(b)(2) with respect to
the entity.
``(2) Terms and conditions.--The Secretary of Commerce
shall prescribe the procedures and any terms or conditions
under which bonds will be forfeited under paragraph (1).
``(d) Non-interest-bearing Bonds.--A bond under this
section shall be non-interest-bearing.
``(e) Definitions.--In this section, the terms `affiliate'
and `covered United States person' have the meanings given
those terms in section 235(d).''.
(b) Controls on Imports of Goods or Technology Against
Persons That Raise National Security Concerns.--Section 233
of the Trade Expansion Act of 1962 (19 U.S.C. 1864) is
amended to read as follows:
``SEC. 233. IMPORT SANCTIONS FOR EXPORT VIOLATIONS.
``(a) In General.--A person described in subsection (b) may
be subject to such controls on the importing of goods or
technology into the United States as the President may
prescribe.
``(b) Persons Described.--A person described in this
subsection is a person that--
``(1) violates any national security export control imposed
under section 1755 of the Export Control Reform Act of 2018
(50 U.S.C. 4814) or any regulation, order, or license issued
under that section; or
``(2) raises a national security concern under--
``(A) section 235 or any regulation, order, or license
issued under that section; or
``(B) the Export Control Reform Act of 2018 (50 U.S.C. 4801
et seq.) or any regulation, order, or license issued under
that Act.''.
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