[Congressional Record Volume 169, Number 123 (Tuesday, July 18, 2023)]
[Senate]
[Pages S3069-S3072]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 891. Mr. RUBIO submitted an amendment intended to be proposed by 
him to the bill S. 2226, to authorize appropriations for fiscal year 
2024 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 appropriate place, insert the following:

     SEC. ___. COUNTERING CORPORATE CORRUPTION IN THE PEOPLE'S 
                   REPUBLIC OF CHINA.

       (a) Findings.--Congress finds the following:
       (1) In section 1 of the National Security Study Memorandum 
     issued on June 3, 2021 (relating to establishing the fight 
     against corruption as a core United States national security 
     interest), President Joseph R. Biden, Jr., established 
     countering corruption as a core United States national 
     security interest.
       (2) The practices of the Chinese Communist Party, the 
     Government of the People's Republic of China, and 
     instrumentalities of the Government of the People's Republic 
     of China pose a unique challenge to the enforcement of 
     section 30A of the Securities Exchange Act of 1934 (15 U.S.C. 
     78dd-1) and sections 104 and 104A of the Foreign Corrupt 
     Practices Act of 1977 (15 U.S.C. 78dd-2, 78dd-3) (referred to 
     collectively in this subsection as the ``corporate anti-
     corruption laws'').
       (3) The Chinese Communist Party, the Government of the 
     People's Republic of China, and instrumentalities of the 
     Government of the People's Republic of China routinely 
     frustrate the enforcement of the corporate anti-corruption 
     laws by leveraging access to the markets of the People's 
     Republic of China to cause companies that are subject to the 
     corporate anti-corruption laws to improperly provide valuable 
     benefits to those entities in the form of principally 
     nonmonetary actions (referred to collectively in this 
     subsection as ``corporate actions currying favor with the 
     Chinese Communist Party''), which include--
       (A) the hiring, promotion, or retention of Chinese 
     Communist Party officials and children of those officials, 
     such as the unlawful practices admitted to by certain 
     entities subject to the corporate anti-corruption laws in 
     what are commonly known as the ``princelings'' settlements;
       (B) political advocacy on behalf of the goals and policies 
     of the Chinese Communist Party in the People's Republic of 
     China, the United States, and the rest of the world, 
     including by--
       (i) assisting in the denial, obfuscation, or excusal of--

       (I) genocide and other atrocities committed by the Chinese 
     Communist Party, the Government of the People's Republic of 
     China, and instrumentalities of the Government of the 
     People's Republic of China;
       (II) the extrajudicial detainment, subjection to forced 
     labor, torture, and political indoctrination of, and other 
     severe human rights abuses with respect to, Uyghurs, Kazakhs, 
     Kyrgyz, and members of other predominantly Muslim ethnic 
     groups by the Government of the People's Republic of China in 
     the Xinjiang Uyghur Autonomous Region of China (or comparable 
     treatment of members of other ethnic, religious, and 
     political groups who reside elsewhere in the People's 
     Republic of China);
       (III) censorship or other activities with respect to Hong 
     Kong that--

       (aa) prohibit, limit, or penalize the exercise of freedom 
     of expression or assembly by the citizens of Hong Kong; or
       (bb) limit access to free and independent print, online, or 
     broadcast media; and

       (IV) the extrajudicial rendition, arbitrary detention, or 
     torture of any individual in Hong Kong or other gross 
     violations of internationally recognized human rights in Hong 
     Kong; and

       (ii) supporting, legitimizing, or recognizing the unlawful 
     territorial claims of the Government of the People's Republic 
     of China in Taiwan, Tibet, Korea, the South China Sea, the 
     East China Sea, and other locations in which such claims are 
     contested; and
       (C) investments without reasonable business purposes in 
     industries targeted for support by the Chinese Communist 
     Party, the Government of the People's Republic of China, or 
     instrumentalities of the Government of the People's Republic 
     of China, including by entering into a joint venture with 
     such an instrumentality or an entity affiliated with such an 
     instrumentality.
       (4) Corporate actions currying favor with the Chinese 
     Communist Party are valuable to officials of the Chinese 
     Communist Party, the Government of the People's Republic of 
     China, and instrumentalities of the Government of the 
     People's Republic of China, and constitute payments of value 
     for the purposes of subsection (a) of each of the corporate 
     anti-corruption laws, because those actions are--
       (A) directly or indirectly financially valuable to those 
     officials due to--
       (i) the extent of corruption in the People's Republic of 
     China;
       (ii) the reliance of the economy of the People's Republic 
     of China on state-owned enterprises; and
       (iii) the integration of the party-state with business 
     enterprises in the People's Republic of China; and
       (B) valuable to the interests of the Chinese Communist 
     Party, and officials of that Party, in a manner that is 
     distinct from any independent economic or public interest 
     rationale for those actions.
       (5) Corporate actions currying favor with the Chinese 
     Communist Party are taken corruptly for the purposes of each 
     of the corporate anti-corruption laws because those actions--
       (A) have no reasonable business purpose unrelated to 
     obtaining or retaining business within the People's Republic 
     of China and instead relate to--
       (i) accessing markets within the jurisdiction of the 
     People's Republic of China; or
       (ii) avoiding injury threatened by the Chinese Communist 
     Party, the Government of the People's Republic of China, or 
     instrumentalities of the Government of the People's Republic 
     of China; and
       (B) are morally wrongful to the extent that those actions 
     contribute to denying, obfuscating, or excusing--
       (i) genocide and other atrocities; and
       (ii) the extrajudicial detainment, subjection to forced 
     labor, torture, and political indoctrination of, and other 
     severe human rights abuses with respect to, individuals by 
     the Chinese Communist Party, the Government of the People's 
     Republic of China, or instrumentalities of the Government of 
     the People's Republic of China.
       (6) Despite the public and prominent undertaking of 
     corporate actions currying favor with the Chinese Communist 
     Party by individuals and entities that are subject to the 
     corporate anti-corruption laws, the Federal Government has 
     undertaken little enforcement with respect to those corporate 
     actions due to an apparent difficulty in demonstrating that 
     the actions are corrupt, or of value to a foreign official, 
     because of the principally nonmonetary nature of those 
     actions.
       (7) In addition to undermining the public interest in the 
     enforcement of the corporate anti-corruption laws in the 
     manner described in paragraphs (2) through (6), corporate 
     actions currying favor with the Chinese Communist Party 
     undermine the public interest in the enforcement of the laws 
     of the United States, including--
       (A) sections 4 and 5 of the Act entitled ``An Act to ensure 
     that goods made with forced labor in the Xinjiang Autonomous 
     Region of the People's Republic of China do not enter the 
     United States market, and for other purposes'', approved 
     December 23, 2021 (Public Law 117-78; 135 Stat. 1525) 
     (referred to in this subsection as the ``Uyghur Forced Labor 
     Prevention Act'') (including the amendment made by section 5 
     of that Act), by--
       (i) reducing the awareness of entities subject to, or 
     potentially subject to, that Act regarding the application of 
     that Act to activities in the Xinjiang Autonomous Region

[[Page S3070]]

     of the People's Republic of China or elsewhere in the 
     People's Republic of China;
       (ii) aiding and abetting violations of that Act; and
       (iii) reducing the information available to law enforcement 
     officials in the United States regarding the activities 
     described in clause (i); and
       (B) United States sanctions laws with respect to persons 
     and entities in the People's Republic of China (collectively 
     referred to in this subsection as the ``sanctions laws of the 
     United States'')--
       (i) including--

       (I) section 1237 of the Strom Thurmond National Defense 
     Authorization Act for Fiscal Year 1999 (Public Law 105-261; 
     50 U.S.C. 1701 note);
       (II) sections 4 and 5 of the Uyghur Forced Labor Prevention 
     Act (including the amendment made by section 5 of that Act);
       (III) the Global Magnitsky Human Rights Accountability Act 
     (subtitle F of title XII of Public Law 114-328; 22 U.S.C. 
     2656 note);
       (IV) Executive Order 13818 (50 U.S.C. 1701 note; relating 
     to blocking the property of persons involved in serious human 
     rights abuse or corruption), as amended on or after the date 
     of enactment of this Act;
       (V) Executive Order 13959 (50 U.S.C. 1701 note; relating to 
     addressing the threat from securities investments that 
     finance Communist Chinese military companies), as amended 
     before, on, or after the date of enactment of this Act and as 
     superseded in part before, on, or after the date of enactment 
     of this Act; and
       (VI) Executive Order 14032 (50 U.S.C. 1701 note; relating 
     to addressing the threat from securities investments that 
     finance certain companies of the People's Republic of China), 
     as amended before, on, or after the date of enactment of this 
     Act; and

       (ii) by facilitating investment in, or transactions with, 
     entities in which investment is, or with which transactions 
     are, prohibited under the sanctions laws of the United States 
     by--

       (I) providing principally nonmonetary benefits of value to 
     those entities, which, in turn, become financially valuable 
     to those entities in a manner that is directly traceable to 
     those benefits, such as with respect to raising capital from 
     international capital markets;
       (II) investing in, or transacting with, entities not 
     subject to the sanctions laws of the United States under 
     circumstances that suggest that those entities will, in turn, 
     invest in or transact with other entities that are subject to 
     the sanctions laws of the United States; and
       (III) reducing the information available to law enforcement 
     officials in the United States for the purpose of enforcing 
     the sanctions laws of the United States.

       (8) The requirements of this section, and the amendments 
     made by this section, are justified by--
       (A) the public interest in mitigating the threats to the 
     enforcement of the corporate anti-corruption laws, and the 
     sanctions laws of the United States, that are posed by the 
     Chinese Communist Party, the Government of the People's 
     Republic of China, and instrumentalities of the Government of 
     the People's Republic of China;
       (B) the foreign policy interests achieved by this section 
     and the amendments made by this section; and
       (C) the fact that those requirements--
       (i) are confined to the specific conduct of entities and 
     persons subject to the corporate anti-corruption laws based 
     on observable patterns of behavior demonstrated by those 
     entities and persons; and
       (ii) do not subject any entity or person described in 
     clause (i) to any criminal penalty.
       (b) Amendments Regarding Prohibited Foreign Trade 
     Practices.--
       (1) Issuers.--
       (A) In general.--Section 30A of the Securities Exchange Act 
     of 1934 (15 U.S.C. 78dd-1) is amended--
       (i) in subsection (f), by adding at the end the following:
       ``(4) The term `covered investment'--
       ``(A) means any direct or indirect contribution or 
     commitment of assets, including any--
       ``(i) acquisition of an equity interest or convertible 
     equity interest; or
       ``(ii) loan or other debt interest; and
       ``(B) does not include a transaction in goods or services, 
     or any related party transaction, with a wholly owned 
     subsidiary of an entity--
       ``(i) that is incorporated in a jurisdiction of the United 
     States; or
       ``(ii) the principal place of business of which is in the 
     United States.''; and
       (ii) by adding at the end the following:
       ``(h) Application.--For the purposes of this section--
       ``(1) an action that is taken corruptly includes an action 
     that serves to--
       ``(A) deny, obfuscate, or excuse that a third party has 
     committed, or assist a third party in committing--
       ``(i) the extrajudicial detainment, subjection to forced 
     labor, torture, and political indoctrination of, and other 
     severe human rights abuses with respect to, Uyghurs, Kazakhs, 
     Kyrgyz, and members of other predominantly Muslim ethnic 
     groups by the Government of the People's Republic of China in 
     the Xinjiang Uyghur Autonomous Region of China (or comparable 
     treatment of members of other ethnic, religious, and 
     political groups who reside elsewhere in the People's 
     Republic of China);
       ``(ii) censorship, or another activity, by the Chinese 
     Communist Party, the Government of the People's Republic of 
     China, or instrumentalities of the Government of the People's 
     Republic of China with respect to Hong Kong that--

       ``(I) prohibits, limits, or penalizes the exercise of 
     freedom of expression or assembly by citizens of Hong Kong; 
     or
       ``(II) limits access to free and independent print, online, 
     or broadcast media; or

       ``(iii) the extrajudicial rendition, arbitrary detention, 
     or torture of any individual in Hong Kong or other gross 
     violations of internationally recognized human rights in Hong 
     Kong;
       ``(B) support, legitimize, or recognize the territorial 
     claims of the Government of the People's Republic of China in 
     Taiwan, Tibet, Korea, the South China Sea, the East China 
     Sea, or another location in which such a claim is contested;
       ``(C) express political advocacy in favor of the Chinese 
     Communist Party, the system of governance of that Party, or 
     any official of that Party; or
       ``(D) make a covered investment--
       ``(i) in partnership with the Belt and Road Initiative of 
     the Government of the People's Republic of China; or
       ``(ii) in any entity (including a parent, subsidiary, or 
     affiliate of, or another entity controlled by an entity) that 
     is--

       ``(I)(aa) affiliated with the Chinese Communist Party, the 
     Government of the People's Republic of China, or 
     instrumentalities of the Government of the People's Republic 
     of China; and
       ``(bb) involved in the development, production, or sale of 
     emerging or foundational technology identified pursuant to 
     section 1758 of the Export Controls Act of 2018 (50 U.S.C. 
     4817); or
       ``(II) on the Entity List maintained by the Bureau of 
     Industry and Security of the Department of Commerce and set 
     forth in Supplement No. 4 to part 744 of title 15, Code of 
     Federal Regulations; and

       ``(2) an action described in paragraph (1) is made with 
     respect to a foreign official, or any foreign political party 
     or official thereof, if, among other reasons, the action is 
     taken in response to--
       ``(A) a request of any foreign official, or any foreign 
     political party or official thereof, as applicable;
       ``(B) an injury or threat of injury, by means of economic 
     coercion, to the applicable issuer, or to an officer, 
     director, employee, or agent of the applicable issuer, made 
     by any foreign official or any foreign political party or 
     official thereof; or
       ``(C) a material action or announcement, including with 
     respect to policy, by the Chinese Communist Party, the 
     Government of the People's Republic of China, or 
     instrumentalities of the Government of the People's Republic 
     of China from which the action would rationally follow.
       ``(i) Special Rules.--Notwithstanding any other provision 
     of this section, with respect to a violation of subsection 
     (a) or (g) that is based on an action taken corruptly as 
     described in any of subparagraphs (A) through (D) of 
     subsection (h)(1)--
       ``(1) the affirmative defenses under subsection (c) shall 
     not be available;
       ``(2) it shall be an affirmative defense to actions under 
     subsection (a) or (g) that the payment, gift, offer, or 
     promise of anything of value that was made, as of the date on 
     which it was made, had a reasonable business purpose, which 
     does not include a purpose relating to--
       ``(A) advertising, marketing, or public relations; or
       ``(B) entering into or obtaining any agreement, license, 
     permit, or other arrangement with respect to market access to 
     a jurisdiction of a government;
       ``(3) notwithstanding section 32--
       ``(A) only a penalty described in subsection (c)(1)(B) or 
     (c)(2)(B) of that section may apply with respect to the 
     violation; and
       ``(B) the minimum amount of the civil penalty assessed for 
     the violation shall be 3 times the amount of the penalty 
     described in subsection (c)(1)(B) or (c)(2)(B) of that 
     section, as applicable; and
       ``(4) in an action brought with respect to the violation, 
     evidence that the action taken by the applicable issuer (or 
     the officer, director, employee, or agent of the issuer, or 
     stockholder acting on behalf of such issuer) was directly or 
     indirectly inconsistent with the policies of the issuer, 
     including any representation to the Federal Government by the 
     issuer, shall be admissible to prove that the action taken by 
     the issuer (or officer, director, employee, agent, or 
     stockholder) was taken corruptly for the purposes of 
     subsection (a) or (g), as applicable.''.
       (B) Rule of construction.--Nothing in subsection (h) of 
     section 30A of the Securities Exchange Act of 1934 (15 U.S.C. 
     78dd-1), as added by subparagraph (A) of this paragraph, may 
     be construed to expand the meaning of the term ``corruptly'', 
     ``to any foreign official'', or ``to any foreign political 
     party or official thereof'' for the purposes of such section 
     30A, except for the clarification that the term includes an 
     action that is taken as described in paragraph (1) or (2) of 
     such subsection (h), as applicable.
       (2) Domestic concerns.--
       (A) In general.--Section 104 of the Foreign Corrupt 
     Practices Act of 1977 (15 U.S.C. 78dd-2) is amended--
       (i) in subsection (h), by adding at the end the following:
       ``(6) The term `covered investment'--

[[Page S3071]]

       ``(A) means any direct or indirect contribution or 
     commitment of assets, including any--
       ``(i) acquisition of an equity interest or convertible 
     equity interest; or
       ``(ii) loan or other debt interest; and
       ``(B) does not include a transaction in goods or services, 
     or any related party transaction, with a wholly owned 
     subsidiary of an entity--
       ``(i) that is incorporated in a jurisdiction of the United 
     States; or
       ``(ii) the principal place of business of which is in the 
     United States.''; and
       (ii) by adding at the end the following:
       ``(j) Application.--For the purposes of this section--
       ``(1) an action that is taken corruptly includes an action 
     that serves to--
       ``(A) deny, obfuscate, or excuse that a third party has 
     committed, or assist a third party in committing--
       ``(i) the extrajudicial detainment, subjection to forced 
     labor, torture, and political indoctrination of, and other 
     severe human rights abuses with respect to, Uyghurs, Kazakhs, 
     Kyrgyz, and members of other predominantly Muslim ethnic 
     groups by the Government of the People's Republic of China in 
     the Xinjiang Uyghur Autonomous Region of China (or comparable 
     treatment of members of other ethnic, religious, and 
     political groups who reside elsewhere in the People's 
     Republic of China);
       ``(ii) censorship, or another activity, by the Chinese 
     Communist Party, the Government of the People's Republic of 
     China, or instrumentalities of the Government of the People's 
     Republic of China with respect to Hong Kong that--

       ``(I) prohibits, limits, or penalizes the exercise of 
     freedom of expression or assembly by citizens of Hong Kong; 
     or
       ``(II) limits access to free and independent print, online, 
     or broadcast media; or

       ``(iii) the extrajudicial rendition, arbitrary detention, 
     or torture of any individual in Hong Kong or other gross 
     violations of internationally recognized human rights in Hong 
     Kong;
       ``(B) support, legitimize, or recognize the territorial 
     claims of the Government of the People's Republic of China in 
     Taiwan, Tibet, Korea, the South China Sea, the East China 
     Sea, or another location in which such a claim is contested;
       ``(C) express political advocacy in favor of the Chinese 
     Communist Party, the system of governance of that Party, or 
     any official of that Party; or
       ``(D) make a covered investment--
       ``(i) in partnership with the Belt and Road Initiative of 
     the Government of the People's Republic of China; or
       ``(ii) in any entity (including a parent, subsidiary, or 
     affiliate of, or another entity controlled by an entity) that 
     is--

       ``(I)(aa) affiliated with the Chinese Communist Party, the 
     Government of the People's Republic of China, or 
     instrumentalities of the Government of the People's Republic 
     of China; and
       ``(bb) involved in the development, production, or sale of 
     emerging or foundational technology identified pursuant to 
     section 1758 of the Export Controls Act of 2018 (50 U.S.C. 
     4817); or
       ``(II) on the Entity List maintained by the Bureau of 
     Industry and Security of the Department of Commerce and set 
     forth in Supplement No. 4 to part 744 of title 15, Code of 
     Federal Regulations; and

       ``(2) an action described in paragraph (1) is made with 
     respect to a foreign official, or any foreign political party 
     or official thereof, if, among other reasons, the action is 
     taken in response to--
       ``(A) a request of any foreign official, or any foreign 
     political party or official thereof, as applicable;
       ``(B) an injury or threat of injury, by means of economic 
     coercion, to the applicable domestic concern, or to an 
     officer, director, employee, or agent of the applicable 
     domestic concern, made by any foreign official or any foreign 
     political party or official thereof; or
       ``(C) a material action or announcement, including with 
     respect to policy, by the Chinese Communist Party, the 
     Government of the People's Republic of China, or 
     instrumentalities of the Government of the People's Republic 
     of China from which the action would rationally follow.
       ``(k) Special Rules.--Notwithstanding any other provision 
     of this section, with respect to a violation of subsection 
     (a) or (i) that is based on an action taken corruptly as 
     described in any of subparagraphs (A) through (D) of 
     subsection (j)(1)--
       ``(1) the affirmative defenses under subsection (c) shall 
     not be available;
       ``(2) it shall be an affirmative defense to actions under 
     subsection (a) or (i) that the payment, gift, offer, or 
     promise of anything of value that was made, as of the date on 
     which it was made, had a reasonable business purpose, which 
     does not include a purpose relating to--
       ``(A) advertising, marketing, or public relations; or
       ``(B) entering into or obtaining any agreement, license, 
     permit, or other arrangement with respect to market access to 
     a jurisdiction of a government;
       ``(3) notwithstanding any provision of subsection (g)--
       ``(A) only a penalty described in paragraph (1)(B) or 
     (2)(B) of that subsection may apply with respect to the 
     violation; and
       ``(B) the minimum amount of the civil penalty assessed for 
     the violation shall be 3 times the amount of the penalty 
     described in paragraph (1)(B) or (2)(B) of that subsection, 
     as applicable; and
       ``(4) in an action brought with respect to the violation, 
     evidence that the action taken by the applicable domestic 
     concern (or the officer, director, employee, or agent of the 
     domestic concern, or stockholder acting on behalf of such 
     domestic concern) was directly or indirectly inconsistent 
     with the policies of the domestic concern, including any 
     representation to the Federal Government by the domestic 
     concern, shall be admissible to prove that the action taken 
     by the domestic concern (or officer, director, employee, 
     agent, or stockholder) was taken corruptly for the purposes 
     of subsection (a) or (i), as applicable.''.
       (B) Rule of construction.--Nothing in subsection (j) of 
     section 104 of the Foreign Corrupt Practices Act of 1977 (15 
     U.S.C. 78dd-2), as added by subparagraph (A) of this 
     paragraph, may be construed to expand the meaning of the term 
     ``corruptly'', ``to any foreign official'', or ``to any 
     foreign political party or official thereof'' for the 
     purposes of such section 104, except for the clarification 
     that the term includes an action that is taken as described 
     in paragraph (1) or (2) of such subsection (j), as 
     applicable.
       (3) Persons other than issuers or domestic concerns.--
       (A) In general.--Section 104A of the Foreign Corrupt 
     Practices Act of 1977 (15 U.S.C. 78dd-3) is amended--
       (i) in subsection (f), by adding at the end the following:
       ``(6) The term `covered investment'--
       ``(A) means any direct or indirect contribution or 
     commitment of assets, including any--
       ``(i) acquisition of an equity interest or convertible 
     equity interest; or
       ``(ii) loan or other debt interest; and
       ``(B) does not include a transaction in goods or services, 
     or any related party transaction, with a wholly owned 
     subsidiary of an entity--
       ``(i) that is incorporated in a jurisdiction of the United 
     States; or
       ``(ii) the principal place of business of which is in the 
     United States.''; and
       (ii) by adding at the end the following:
       ``(g) Application.--For the purposes of this section--
       ``(1) an action that is taken corruptly includes an action 
     that serves to--
       ``(A) deny, obfuscate, or excuse that a third party has 
     committed, or assist a third party in committing--
       ``(i) the extrajudicial detainment, subjection to forced 
     labor, torture, and political indoctrination of, and other 
     severe human rights abuses with respect to, Uyghurs, Kazakhs, 
     Kyrgyz, and members of other predominantly Muslim ethnic 
     groups by the Government of the People's Republic of China in 
     the Xinjiang Uyghur Autonomous Region of China (or comparable 
     treatment of members of other ethnic, religious, and 
     political groups who reside elsewhere in the People's 
     Republic of China);
       ``(ii) censorship, or another activity, by the Chinese 
     Communist Party, the Government of the People's Republic of 
     China, or instrumentalities of the Government of the People's 
     Republic of China with respect to Hong Kong that--

       ``(I) prohibits, limits, or penalizes the exercise of 
     freedom of expression or assembly by citizens of Hong Kong; 
     or
       ``(II) limits access to free and independent print, online, 
     or broadcast media; or

       ``(iii) the extrajudicial rendition, arbitrary detention, 
     or torture of any individual in Hong Kong or other gross 
     violations of internationally recognized human rights in Hong 
     Kong;
       ``(B) support, legitimize, or recognize the territorial 
     claims of the Government of the People's Republic of China in 
     Taiwan, Tibet, Korea, the South China Sea, the East China 
     Sea, or another location in which such a claim is contested;
       ``(C) express political advocacy in favor of the Chinese 
     Communist Party, the system of governance of that Party, or 
     any official of that Party; or
       ``(D) make a covered investment--
       ``(i) in partnership with the Belt and Road Initiative of 
     the Government of the People's Republic of China; or
       ``(ii) in any entity (including a parent, subsidiary, or 
     affiliate of, or another entity controlled by an entity) that 
     is--

       ``(I)(aa) affiliated with the Chinese Communist Party, the 
     Government of the People's Republic of China, or 
     instrumentalities of the Government of the People's Republic 
     of China; and
       ``(bb) involved in the development, production, or sale of 
     emerging or foundational technology identified pursuant to 
     section 1758 of the Export Controls Act of 2018 (50 U.S.C. 
     4817); or
       ``(II) on the Entity List maintained by the Bureau of 
     Industry and Security of the Department of Commerce and set 
     forth in Supplement No. 4 to part 744 of title 15, Code of 
     Federal Regulations; and

       ``(2) an action described in paragraph (1) is made with 
     respect to a foreign official, or any foreign political party 
     or official thereof, if, among other reasons, the action is 
     taken in response to--
       ``(A) a request of any foreign official, or any foreign 
     political party or official thereof, as applicable;

[[Page S3072]]

       ``(B) an injury or threat of injury, by means of economic 
     coercion, to the applicable person, or to an officer, 
     director, employee, or agent of the applicable person, made 
     by any foreign official or any foreign political party or 
     official thereof; or
       ``(C) a material action or announcement, including with 
     respect to policy, by the Chinese Communist Party, the 
     Government of the People's Republic of China, or 
     instrumentalities of the Government of the People's Republic 
     of China from which the action would rationally follow.
       ``(h) Special Rules.--Notwithstanding any other provision 
     of this section, with respect to a violation of subsection 
     (a) that is based on an action taken corruptly as described 
     in any of subparagraphs (A) through (D) of subsection 
     (g)(1)--
       ``(1) the affirmative defenses under subsection (c) shall 
     not be available;
       ``(2) it shall be an affirmative defense to actions under 
     subsection (a) that the payment, gift, offer, or promise of 
     anything of value that was made, as of the date on which it 
     was made, had a reasonable business purpose, which does not 
     include a purpose relating to--
       ``(A) advertising, marketing, or public relations; or
       ``(B) entering into or obtaining any agreement, license, 
     permit, or other arrangement with respect to market access to 
     a jurisdiction of a government;
       ``(3) notwithstanding any provision of subsection (e)--
       ``(A) only a penalty described in paragraph (1)(B) or 
     (2)(B) of that subsection may apply with respect to the 
     violation; and
       ``(B) the minimum amount of the civil penalty assessed for 
     the violation shall be 3 times the amount of the penalty 
     described in paragraph (1)(B) or (2)(B) of that subsection, 
     as applicable; and
       ``(4) in an action brought with respect to the violation, 
     evidence that the action taken by the applicable person was 
     directly or indirectly inconsistent with the policies of the 
     person, including any representation to the Federal 
     Government by the person, shall be admissible to prove that 
     the action taken by the person was taken corruptly for the 
     purposes of subsection (a).''.
       (B) Rule of construction.--Nothing in subsection (g) of 
     section 104A of the Foreign Corrupt Practices Act of 1977 (15 
     U.S.C. 78dd-3), as added by subparagraph (A) of this 
     paragraph, may be construed to expand the meaning of the term 
     ``corruptly'', ``to any foreign official'', or ``to any 
     foreign political party or official thereof'' for the 
     purposes of such section 104A, except for the clarification 
     that the term includes an action that is taken as described 
     in paragraph (1) or (2) of such subsection (g), as 
     applicable.
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