[Congressional Record Volume 167, Number 194 (Thursday, November 4, 2021)]
[Senate]
[Pages S7944-S7945]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 4451. Mr. INHOFE submitted an amendment intended to be proposed to 
amendment SA 3867 submitted by Mr. Reed and intended to be proposed to 
the bill H.R. 4350, to authorize appropriations for fiscal year 2022 
for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes; which was ordered to lie on the table; as follows:

        At the end of subtitle G of title X, add the following:

     SEC. 1064. 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:

[[Page S7945]]

       ``(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.

       ``(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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