[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 2271 Enrolled Bill (ENR)]
:\SENENR\s2271--enr.xml [file 1 of 1]
S.2271
One Hundred Tenth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Thursday,
the fourth day of January, two thousand and seven
An Act
To authorize State and local governments to divest assets in companies
that conduct business operations in Sudan, to prohibit United States
Government contracts with such companies, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

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This Act may be cited as the ``Sudan Accountability and Divestment
Act of 2007''.

95cb04d4deb48d9bd7748a1f88ea2e3cf6c57aad468518d6c371386994d3ed78

In this Act:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Banking, Housing, and Urban Affairs,
the Committee on Foreign Relations, and the Select Committee on
Intelligence of the Senate; and
(B) the Committee on Financial Services, the Committee on
Foreign Affairs, and the Permanent Select Committee on
Intelligence of the House of Representatives.
(2) Business operations.--The term ``business operations''
means engaging in commerce in any form in Sudan, including by
acquiring, developing, maintaining, owning, selling, possessing,
leasing, or operating equipment, facilities, personnel, products,
services, personal property, real property, or any other apparatus
of business or commerce.
(3) Executive agency.--The term ``executive agency'' has the
meaning given the term in section 4 of the Office of Federal
Procurement Policy Act (41 U.S.C. 403).
(4) Government of sudan.--The term ``Government of Sudan''--
(A) means the government in Khartoum, Sudan, which is led
by the National Congress Party (formerly known as the National
Islamic Front) or any successor government formed on or after
October 13, 2006 (including the coalition National Unity
Government agreed upon in the Comprehensive Peace Agreement for
Sudan); and
(B) does not include the regional government of southern
Sudan.
(5) Marginalized populations of sudan.--The term ``marginalized
populations of Sudan'' refers to--
(A) adversely affected groups in regions authorized to
receive assistance under section 8(c) of the Darfur Peace and
Accountability Act (Public Law 109-344; 50 U.S.C. 1701 note);
and
(B) marginalized areas in Northern Sudan described in
section 4(9) of such Act.
(6) Military equipment.--The term ``military equipment''
means--
(A) weapons, arms, military supplies, and equipment that
readily may be used for military purposes, including radar
systems or military-grade transport vehicles; or
(B) supplies or services sold or provided directly or
indirectly to any force actively participating in armed
conflict in Sudan.
(7) Mineral extraction activities.--The term ``mineral
extraction activities'' means exploring, extracting, processing,
transporting, or wholesale selling or trading of elemental minerals
or associated metal alloys or oxides (ore), including gold, copper,
chromium, chromite, diamonds, iron, iron ore, silver, tungsten,
uranium, and zinc.
(8) Oil-related activities.--
(A) In general.--Except as provided in subparagraph (B),
the term ``oil-related activities'' means--
(i) exporting, extracting, producing, refining,
processing, exploring for, transporting, selling, or
trading oil; and
(ii) constructing, maintaining, or operating a
pipeline, refinery, or other oilfield infrastructure.
(B) Exclusions.--A person shall not be considered to be
involved in an oil-related activity if--
(i) the person is involved in the retail sale of
gasoline or related consumer products in Sudan but is not
involved in any other activity described in subparagraph
(A); or
(ii) the person is involved in leasing, or owns, rights
to an oil block in Sudan but is not involved in any other
activity described in subparagraph (A).
(9) Person.--The term ``person'' means--
(A) a natural person, corporation, company, business
association, partnership, society, trust, any other
nongovernmental entity, organization, or group;
(B) any governmental entity or instrumentality of a
government, including a multilateral development institution
(as defined in section 1701(c)(3) of the International
Financial Institutions Act (22 U.S.C. 262r(c)(3))); and
(C) any successor, subunit, parent company or subsidiary of
any entity described in subparagraph (A) or (B).
(10) Power production activities.--The term ``power production
activities'' means any business operation that involves a project
commissioned by the National Electricity Corporation of Sudan or
other similar entity of the Government of Sudan whose purpose is to
facilitate power generation and delivery, including establishing
power-generating plants or hydroelectric dams, selling or
installing components for the project, or providing service
contracts related to the installation or maintenance of the
project.
(11) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto Rico,
the United States Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands.
(12) State or local government.--The term ``State or local
government'' includes--
(A) any State and any agency or instrumentality thereof;
(B) any local government within a State, and any agency or
instrumentality thereof;
(C) any other governmental instrumentality; and
(D) any public institution of higher education within the
meaning of the Higher Education Act of 1965 (20 U.S.C. 1001 et
seq.).

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COMPANIES DIRECTLY INVESTED IN CERTAIN SUDANESE SECTORS.
(a) Sense of Congress.--It is the sense of Congress that the United
States Government should support the decision of any State or local
government to divest from, or to prohibit the investment of assets of
the State or local government in, a person that the State or local
government determines poses a financial or reputational risk.
(b) Authority To Divest.--Notwithstanding any other provision of
law, a State or local government may adopt and enforce measures that
meet the requirements of subsection (e) to divest the assets of the
State or local government from, or prohibit investment of the assets of
the State or local government in, persons that the State or local
government determines, using credible information available to the
public, are conducting or have direct investments in business
operations described in subsection (d).
(c) Notice to Department of Justice.--Not later than 30 days after
adopting a measure pursuant to subsection (b), a State or local
government shall submit written notice to the Attorney General
describing the measure.
(d) Business Operations Described.--
(1) In general.--Business operations described in this
subsection are business operations in Sudan that include power
production activities, mineral extraction activities, oil-related
activities, or the production of military equipment.
(2) Exceptions.--Business operations described in this
subsection do not include business operations that the person
conducting the business operations can demonstrate--
(A) are conducted under contract directly and exclusively
with the regional government of southern Sudan;
(B) are conducted under a license from the Office of
Foreign Assets Control, or are expressly exempted under Federal
law from the requirement to be conducted under such a license;
(C) consist of providing goods or services to marginalized
populations of Sudan;
(D) consist of providing goods or services to an
internationally recognized peacekeeping force or humanitarian
organization;
(E) consist of providing goods or services that are used
only to promote health or education; or
(F) have been voluntarily suspended.
(e) Requirements.--Any measure taken by a State or local government
under subsection (b) shall meet the following requirements:
(1) Notice.--The State or local government shall provide
written notice and an opportunity to comment in writing to each
person to whom a measure is to be applied.
(2) Timing.--The measure shall apply to a person not earlier
than the date that is 90 days after the date on which written
notice is provided to the person under paragraph (1).
(3) Applicability.--The measure shall not apply to a person
that demonstrates to the State or local government that the person
does not conduct or have direct investments in business operations
described in subsection (d).
(4) Sense of congress on avoiding erroneous targeting.--It is
the sense of Congress that a State or local government should not
adopt a measure under subsection (b) with respect to a person
unless the State or local government has made every effort to avoid
erroneously targeting the person and has verified that the person
conducts or has direct investments in business operations described
in subsection (d).
(f) Definitions.--In this section:
(1) Investment.--The ``investment'' of assets, with respect to
a State or local government, includes--
(A) a commitment or contribution of assets;
(B) a loan or other extension of credit of assets; and
(C) the entry into or renewal of a contract for goods or
services.
(2) Assets.--
(A) In general.--Except as provided in subparagraph (B),
the term ``assets'' refers to public monies and includes any
pension, retirement, annuity, or endowment fund, or similar
instrument, that is controlled by a State or local government.
(B) Exception.--The term ``assets'' does not include
employee benefit plans covered by title I of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1001 et
seq.).
(g) Nonpreemption.--A measure of a State or local government
authorized under subsection (b) is not preempted by any Federal law or
regulation.
(h) Effective Date.--
(1) In general.--Except as provided in paragraph (2), this
section applies to measures adopted by a State or local government
before, on, or after the date of the enactment of this Act.
(2) Notice requirements.--Subsections (c) and (e) apply to
measures adopted by a State or local government on or after the
date of the enactment of this Act.

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MANAGERS.
(a) In General.--Section 13 of the Investment Company Act of 1940
(15 U.S.C. 80a-13) is amended by adding at the end the following:
``(c) Limitation on Actions.--
``(1) In general.--Notwithstanding any other provision of
Federal or State law, no person may bring any civil, criminal, or
administrative action against any registered investment company, or
any employee, officer, director, or investment adviser thereof,
based solely upon the investment company divesting from, or
avoiding investing in, securities issued by persons that the
investment company determines, using credible information that is
available to the public, conduct or have direct investments in
business operations in Sudan described in section 3(d) of the Sudan
Accountability and Divestment Act of 2007.
``(2) Applicability.--
``(A) Actions for breaches of fiduciary duties.--Paragraph
(1) does not prevent a person from bringing an action based on
a breach of a fiduciary duty owed to that person with respect
to a divestment or non-investment decision, other than as
described in paragraph (1).
``(B) Disclosures.--Paragraph (1) shall not apply to a
registered investment company, or any employee, officer,
director, or investment adviser thereof, unless the investment
company makes disclosures in accordance with regulations
prescribed by the Commission.
``(3) Person defined.--For purposes of this subsection the term
`person' includes the Federal Government and any State or political
subdivision of a State.''.
(b) SEC Regulations.--Not later than 120 days after the date of the
enactment of this Act, the Securities and Exchange Commission shall
prescribe regulations, in the public interest and for the protection of
investors, to require disclosure by each registered investment company
that divests itself of securities in accordance with section 13(c) of
the Investment Company Act of 1940. Such rules shall require the
disclosure to be included in the next periodic report filed with the
Commission under section 30 of such Act (15 U.S.C. 80a-29) following
such divestiture.

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It is the sense of Congress that a fiduciary of an employee benefit
plan, as defined in section 3(3) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1002(3)), may divest plan assets from,
or avoid investing plan assets in, any person the fiduciary determines
is conducting or has direct investments in business operations in Sudan
described in section 3(d) of this Act, without breaching the
responsibilities, obligations, or duties imposed upon the fiduciary by
section 404 of the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1104), if--
(1) the fiduciary makes such determination using credible
information that is available to the public; and
(2) such divestment or avoidance of investment is conducted in
accordance with section 2509.94-1 of title 29, Code of Federal
Regulations (as in effect on the day before the date of the
enactment of this Act).

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(a) Certification Requirement.--The head of each executive agency
shall ensure that each contract entered into by such executive agency
for the procurement of goods or services includes a clause that
requires the contractor to certify to the contracting officer that the
contractor does not conduct business operations in Sudan described in
section 3(d).
(b) Remedies.--
(1) In general.--The head of an executive agency may impose
remedies as provided in this subsection if the head of the
executive agency determines that the contractor has submitted a
false certification under subsection (a) after the date the Federal
Acquisition Regulation is amended under subsection (e) to implement
the requirements of this section.
(2) Termination.--The head of an executive agency may terminate
a covered contract upon the determination of a false certification
under paragraph (1).
(3) Suspension and debarment.--The head of an executive agency
may debar or suspend a contractor from eligibility for Federal
contracts upon the determination of a false certification under
paragraph (1). The debarment period may not exceed 3 years.
(4) Inclusion on list of parties excluded from federal
procurement and nonprocurement programs.--The Administrator of
General Services shall include on the List of Parties Excluded from
Federal Procurement and Nonprocurement Programs maintained by the
Administrator under part 9 of the Federal Acquisition Regulation
issued under section 25 of the Office of Federal Procurement Policy
Act (41 U.S.C. 421) each contractor that is debarred, suspended,
proposed for debarment or suspension, or declared ineligible by the
head of an executive agency on the basis of a determination of a
false certification under paragraph (1).
(5) Rule of construction.--This section shall not be construed
to limit the use of other remedies available to the head of an
executive agency or any other official of the Federal Government on
the basis of a determination of a false certification under
paragraph (1).
(c) Waiver.--
(1) In general.--The President may waive the requirement of
subsection (a) on a case-by-case basis if the President determines
and certifies in writing to the appropriate congressional
committees that it is in the national interest to do so.
(2) Reporting requirement.--Not later than April 15, 2008, and
semi-annually thereafter, the Administrator for Federal Procurement
Policy shall submit to the appropriate congressional committees a
report on waivers granted under paragraph (1).
(d) Implementation Through the Federal Acquisition Regulation.--Not
later than 120 days after the date of the enactment of this Act, the
Federal Acquisition Regulatory Council shall amend the Federal
Acquisition Regulation issued pursuant to section 25 of the Office of
Federal Procurement Policy Act (41 U.S.C. 421) to provide for the
implementation of the requirements of this section.
(e) Report.--Not later than one year after the date the Federal
Acquisition Regulation is amended under subsection (e) to implement the
requirements of this section, the Administrator of General Services,
with the assistance of other executive agencies, shall submit to the
Office of Management and Budget and the appropriate congressional
committees a report on the actions taken under this section.

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It is the sense of Congress that the governments of all other
countries should adopt measures, similar to those contained in this
Act, to publicize the activities of all persons that, through their
financial dealings, knowingly or unknowingly enable the Government of
Sudan to continue to oppress and commit genocide against people in the
Darfur region and other regions of Sudan, and to authorize divestment
from, and the avoidance of further investment in, such persons.

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It is the sense of Congress that the President should--
(1) continue to work with other members of the international
community, including the Permanent Members of the United Nations
Security Council, the African Union, the European Union, the Arab
League, and the Government of Sudan to facilitate the urgent
deployment of a peacekeeping force to Sudan; and
(2) bring before the United Nations Security Council, and call
for a vote on, a resolution requiring meaningful multilateral
sanctions against the Government of Sudan in response to its acts
of genocide against the people of Darfur and its continued refusal
to allow the implementation of a peacekeeping force in Sudan.

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UNITED STATES.
It is the sense of Congress that nothing in this Act--
(1) conflicts with the international obligations or commitments
of the United States; or
(2) affects article VI, clause 2, of the Constitution of the
United States.

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(a) In General.--The Secretary of State and the Secretary of the
Treasury shall submit to the appropriate congressional committees a
report assessing the effectiveness of sanctions imposed with respect to
Sudan at the time the Secretary of State and the Secretary of the
Treasury submits reports required under--
(1) the Sudan Peace Act (Public Law 107-245; 50 U.S.C. 1701
note);
(2) the Comprehensive Peace in Sudan Act of 2004 (Public Law
108-497; 50 U.S.C. 1701 note); and
(3) the Darfur Peace and Accountability Act of 2006 (Public Law
109-344; 50 U.S.C. 1701 note).
(b) Additional Report by the Secretary of the Treasury.--The
Secretary of the Treasury shall submit to the appropriate congressional
committees a report assessing the effectiveness of sanctions imposed
with respect to Sudan under the International Emergency Economic Powers
Act (50 U.S.C. 1701 et seq.) at the time the President submits the
reports required by section 204(c) of such Act (50 U.S.C. 1703(c)) with
respect to Executive Order 13,067 (50 U.S.C. 1701 note; relating to
blocking property of persons in connection with the conflict in Sudan's
region of Darfur).
(c) Contents.--The reports required by subsections (a) and (b)
shall include--
(1) a description of each sanction imposed under a law or
executive order described in subsection (a) or (b);
(2) the name of the person subject to the sanction, if any; and
(3) whether or not the person subject to the sanction is also
subject to sanctions imposed by the United Nations.

26d8f14576e989c5c8b07eb0a5e7a3c34fae78f9ca36cfd5016450af98be0b38

Section 6305 of the U.S. Troop Readiness, Veterans' Care, Katrina
Recovery, and Iraq Accountability Appropriations Act, 2007 (Public Law
110-28; 121 Stat. 172) is repealed.

21734958dd039b759fe95063e150b48acf387f914e89bbdf75f3d2a2fda360e5

The provisions of sections 3, 4, 5, 6, and 10 shall terminate 30
days after the date on which the President has certified to Congress
that the Government of Sudan has honored its commitments to--
(1) abide by United Nations Security Council Resolution 1769
(2007);
(2) cease attacks on civilians;
(3) demobilize and demilitarize the Janjaweed and associated
militias;
(4) grant free and unfettered access for delivery of
humanitarian assistance; and
(5) allow for the safe and voluntary return of refugees and
internally displaced persons.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

9213d3818055a7dd1d22183a7bcfe6d6103970704a7aeaaf2e46a646638a7194

Sudan Accountability and Divestment Act of 2007 — S. 2271

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