Protecting Americans from Corporate Human Rights Abusers Act

To establish a Chinese Corporate Human Rights Abusers List, and for other purposes. 1. Short title; table of contents; purpose (a) Short title This Act may be cited as the Protecting Americans from Corporate Human Rights Abusers Act (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents; purpose. Title I—Chinese Corporate Human Rights Abusers List Sec. 101. Findings. Sec. 102. Definitions; report on Chinese corporate human rights abusers with securities traded by United States persons. Sec. 103. Chinese Corporate Human Rights Abusers List; sanctions. Title II—Sanctions against Communist Chinese military companies, Chinese military companies, and Chinese military-industrial complex companies Sec. 201. Definitions. Sec. 202. Sanctions for communist Chinese military companies and Chinese military companies. Sec. 203. Limitation on judicial review. (c) Purpose The purpose of this Act is to codify into law the provisions of Executive Order 14032 of June 3, 2021 (86 Fed. Reg. 30145; relating to Addressing the Threat From Securities Investments That Finance Certain Companies of the People’s Republic of China), as in effect on the date of the enactment of this Act. I Chinese Corporate Human Rights Abusers List 101. Findings Congress finds the following: (1) In its 2020 report to Congress, the bipartisan United States-China Economic and Security Review Commission issued the following key findings: (A) As Beijing strategically opens its financial sector to secure foreign capital and global investment indices shift asset allocations toward Chinese securities, United States investors’ exposure to the unique and significant risks accumulated in China’s capital markets rises. These risks center around the opacity of China’s financial system and Beijing’s interference in market activity to advance its political objectives. (B) Increased financial exposure to China threatens to undermine the efforts of the United States to defend against China’s unfair economic practices and protect the policy interests of the United States. Several Chinese companies included in global investment indices are subject to United States export controls but not investment restrictions. This mismatch enables problematic Chinese companies to continue raising United States capital and reduces the strength with which the United States can defend against companies that threaten national security. (C) Beijing continues to deny United States audit regulators full visibility into the financials of U.S.-listed Chinese companies in line with United States accounting standards. These evasions from effective regulation and oversight, together with United States-listed Chinese companies’ complex ownership structures, deprive United States investors of both full transparency and the opportunity for legal redress in cases of accounting fraud, eroding the integrity of United States capital markets. (2) The Chinese Communist Party’s commitment to their Military-Civil Fusion development strategy, which supports the modernization goals of the People’s Liberation Army (PLA) by ensuring its access to advanced technologies and expertise acquired and developed by even those Chinese companies, universities, and research programs that appear to be civilian entities, remains a grave threat to the national security of the United States. (3) The efforts of the Government of the United States to stymie China’s utilization of United States capital markets is an ongoing, multi-agency, and decades-long effort. The colloquially titled Section 1237 List of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, as well as the Section 1260H List of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, both highlight companies who pose a serious threat to the national security of the United States. (4) On June 3, 2021, the Department of Defense released a list of 47 entities identified as Chinese military companies operating in the United States in accordance with section 1260H of the William M. ( Mac Public Law 116–283 (5) On January 14, 2021, the Department of Defense released the names of additional Communist Chinese military companies (6) On March 12, 2021, the United States District Court for the District of Columbia issued an order in Xiaomi Corporation v. Department of Defense (Case No. 1:21–cv–00280–RC) that forestalled the Defense Department’s designation of the Xiaomi Corporation as a Communist Chinese military company. On May 6, 2021, the Nasdaq-listed Luokung Technology Corporation became the second China-based company to avoid sanctions imposed under Executive Order 13959. These companies have been able to avoid sanctions because the Chinese Communist Party actively blocks United States Government agencies from obtaining information relevant to determining the ownership and control of China-based enterprises. (7) Several Chinese military or military related companies, as well as surveillance and technology companies, including Hikvision, a major manufacturer of video surveillance equipment, materially contribute to either the ongoing genocide in Xinjiang or to other gross violations of internationally recognized human rights across the People’s Republic of China (PRC). (8) On January 19, 2021, then-Secretary of State Michael R. Pompeo determined that the Chinese Communist Party (CCP) has committed genocide against the predominantly Muslim Uyghurs and other ethnic and religious minority groups in Xinjiang. (9) Then-Secretary Pompeo’s designation cited the State Department’s exhaustive documentation of CCP human rights abuses in Xinjiang, indicating that since at least March 2017, local authorities dramatically escalated their decades-long campaign of repression against Uyghur Muslims and members of other ethnic and religious minority groups, including ethnic Kazakhs and ethnic Kyrgyz (10) The genocide determination also cited the CCP’s regular dehumanization of the Uyghur people in Xinjiang, including by labeling them as malignant tumors communicable plague you can’t uproot all the weeds hidden among the crops in the field one-by-one; you need to spray chemicals to kill them all (11) On April 21, 2021, the United States House Committee on Foreign Affairs approved without objection H.R. 1155, which affirmed that the PRC, since 2017, has arbitrarily detained as many as 1.8 million Uyghurs, Kazakhs, Kyrgyz, and members of other Muslim minority groups in a system of extrajudicial mass internment camps, in addition to arbitrarily detaining many in formal prisons and detention centers, and has subjected detainees to forced labor, torture, political indoctrination, and other severe human rights abuses. (12) The State Department’s January 2021 genocide designation further cited the forced sterilization of Uyghur and other minority women, with the purpose of eliminating the minority population in Xinjiang. (13) Media reporting has documented widespread and systemic efforts by PRC authorities to force Uyghur women to take contraceptives or to subject them to sterilization or abortion, threatening to detain those who do not comply. (14) In many detention facilities and labor camps across the PRC, Falun Gong prisoners of conscience have at times comprised the majority of the population, and have been said to receive the longest sentences and the worst treatment, including torture. (15) The persecution and killing of religious and political prisoners for any purpose, including for the purpose of selling their organs for transplant, is an egregious and intolerable violation of the fundamental right to life. (16) On November 18, 2020, the United States House of Representatives approved without objection H. Res. 697, which affirms the cultural and religious significance of the goal of genuine autonomy for the people of Tibet and the deep bond between the American and Tibetan people (17) The Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 established, with respect to Tibet, the following sense of Congress: It is the policy of the United States to oppose aggression and other illegal uses of force by one country against the sovereignty of another as a manner of acquiring territory, and to condemn violations of international law, including the illegal occupation of one country by another. (18) Protecting United States capital markets against PRC-based companies that support the PLA’s modernization efforts or else aid and abet grotesque and barbaric violations of internationally recognized human rights is a national security imperative. (19) As argued by the Uyghur Human Rights Project: [It is] still legal for shareholders to make profits from ownership of these complicit Chinese companies, some of which are publicly traded, including through emerging markets 102. Definitions; report on Chinese corporate human rights abusers with securities traded by United States persons (a) Definitions In this title: (1) Affiliate The term affiliate (A) has the meaning given such term in section 230.405 of title 17, Code of Federal Regulations (as in effect on the date of the enactment of this Act); (B) means a person that is closely associated with another person typically in a dependent or subordinate position; or (C) means a person that has a common purpose or shared characteristics with another person. (2) Appropriate committees of Congress The term appropriate committees of Congress (A) the Committee on Foreign Relations, the Select Committee on Intelligence, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Armed Services of the Senate; and (B) the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, the Committee on Financial Services, and the Committee on Armed Services of the House of Representatives. (3) Covered entity The term covered entity (A) means an entity identified in the report required by subsection (b); and (B) includes any affiliate of such entity. (4) Entity The term entity (5) Person The term person (6) PRC The term PRC (7) Publicly traded securities The term publicly traded securities 15 U.S.C. 78 over-the-counter (8) Transaction The term transaction (9) United States person The term United States person (A) any United States citizen, permanent resident alien, or entity (including foreign branches) organized under the laws of the United States or any jurisdiction within the United States; or (B) any person in the United States. (b) Report (1) In general Not later than 180 days after the date of the enactment of this Act, and annually thereafter for 5 years, the Secretary of State, in consultation with the Director of National Intelligence and the Secretary of the Treasury, shall submit to the appropriate committees of Congress a report that describes the risks posed to the United States by the presence in United States capital markets of entities incorporated in the PRC, or entities owned, controlled, or are entitled to a share of the profits of entities incorporated in the PRC. (2) Matters to be included The report required by paragraph (1) shall— (A) identify entities described in paragraph (1)— (i) whose shares are publicly traded by United States persons; (ii) based on the factors for consideration described in paragraph (3), have knowingly and materially contributed to— (I) activities that both undermine and pose an unusual and extraordinary threat to the national security, foreign policy, or economy of the United States; (II) serious abuses of internationally recognized human rights; or (III) a substantially increased financial risk exposure for United States-based investors; (B) describe the activities of entities identified pursuant to subparagraph (A) and the implications of such activities for the United States; (C) develop policy recommendations for the United States Government, State governments, United States financial institutions, United States equity and debt exchanges, and other relevant stakeholders to address the risks posed by the presence in United States capital markets of entities identified pursuant to subparagraph (A); and (D) identify entities described in paragraph (1) that are included on the entity list. (3) Factors for consideration The factors for consideration described in this paragraph, with respect to an entity, are whether or the extent to which the entity— (A) has materially contributed to the development or manufacture, or sold or facilitated procurement by the People’s Liberation Army (PLA), of military equipment or component parts of such equipment; (B) has contributed to the construction and militarization of features in the South China Sea; (C) has been sanctioned by the United States or has been determined to have conducted business with sanctioned entities; (D) has engaged in an act or a series of acts of intellectual property theft; (E) has engaged in corporate or economic espionage; (F) has contributed to the proliferation of nuclear or missile technology in violation of United Nations Security Council resolutions or United States sanctions; (G) has contributed to the repression of distinct religious and ethnic groups, including in the Uyghur or Tibet Autonomous Regions; (H) has contributed to the repression of pro-democracy activists, journalists, and publishers in Hong Kong and throughout the PRC; (I) has contributed to the development of technologies that enable censorship directed or directly supported by the PRC government; (J) has failed to comply fully with— (i) the securities laws (as defined in section 3(a) of the Securities Exchange Act of 1934 ( 15 U.S.C. 78c (ii) a required audit by the Public Company Accounting Oversight Board; or (iii) a material risk disclosure requirement of the Securities and Exchange Commission; or (K) has contributed to other activities or behavior determined to be relevant by the President. (4) Form The report required by paragraph (1) shall be submitted in unclassified form, but may include a classified annex. (5) Publication The unclassified portion of the report required by paragraph (1) shall be made accessible to the public online through publication on a relevant United States Government website and in the Federal Register. (6) Entity list defined (A) In general In paragraph (2)(D), the term entity list (B) Export Administration Regulations defined In subparagraph (A), the term Export Administration Regulations 103. Chinese Corporate Human Rights Abusers List; sanctions (a) Chinese Corporate Human Rights Abusers List (1) In general The Secretary of State, acting through the Under Secretary of State for Civilian Security, Democracy, and Human Rights and the head of the Office of the Under Secretary of State for Arms Control and International Security, shall, based on the most recent information available, identify each covered entity that— (A) is engaged in, complicit in, or otherwise responsible for, directly or indirectly, gross violations of internationally recognized human rights or serious human rights abuses in the PRC; or (B) undermines or poses an unusual and extraordinary threat to the national security, foreign policy, or economy of the United States, or otherwise presents an increased financial risk exposure for United States-based investors. (2) List Not later than 180 days after the date of the enactment of this Act, and annually thereafter until December 31, 2030, the Secretary of State shall submit to appropriate committees of Congress a list, to be known as the Chinese Corporate Human Rights Abusers List (A) includes each covered entity identified pursuant to paragraph (1); and (B) includes, as applicable, an explanation as to why a covered entity that was previously identified pursuant to paragraph (1) is no longer so identified. (3) Form The list required by paragraph (2) shall be submitted in unclassified form, but may include a classified annex. (4) Publication The unclassified portion of the list required by paragraph (2) shall be made accessible to the public online through publication on a relevant United States Government website and in the Federal Register. (5) Transmission to other Federal officials The Secretary of State shall, concurrently with the submission of the list required by paragraph (2), transmit a copy of such list to the Secretary of the Treasury, and the Director of National Intelligence. The Secretary of State shall also transmit a copy of such list to the Director of the Office of Foreign Assets Control of the Department of the Treasury for immediate implementation of the sanctions described in subsection (b) against those covered entities included on such list. (6) Revisions to list The Secretary of State shall make additions or deletions to the most recent list required by paragraph (2) on an ongoing basis based on the latest information available. (7) Consultation The Secretary may consult with the head of any appropriate Federal department or agency in making the determinations described in paragraph (1) and shall transmit a copy of the list required by paragraph (2) to the head of any such Federal department or agency for purposes of such consultation. (b) Sanctions (1) In general The purchase or sale by a United States person of any publicly traded securities, or any publicly traded securities that are derivative of such securities or are designed to provide investment exposure to such securities, of any covered entity designated by the Secretary of State for placement on the Chinese Corporate Human Rights Abusers List is prohibited. (2) Effective date The prohibitions in paragraph (1) shall take effect: (A) Beginning at 12:01 a.m. eastern daylight time on August 2, 2021, with respect to any covered entity included on the list required by subsection (a)(2) on such date. (B) Beginning at 12:01 a.m. eastern daylight time on the date that is 60 days after the date of the determination in subsection (a) with respect to any covered entity subsequently included on the list required by subsection (a)(2). (3) Divestment The purchase or sale of publicly traded securities described in paragraph (1) made solely to effect the divestment, in whole or in part, of such securities by a United States person is permitted prior to: (A) 12:01 a.m. eastern daylight time on June 3, 2022, with respect to any covered entity included on the list required by subsection (a)(2) on such date. (B) 12:01 a.m. eastern daylight time on the date that is 365 days after the date of the determination in subsection (a) with respect to any covered entity subsequently included on the list required by subsection (a)(2). (4) Rule of application This subsection shall apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this Act, and notwithstanding any contract entered into or any license or permit granted before the date of this Act. (5) Evasion of sanctions (A) In general The following actions are prohibited: (i) Any transactions by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibitions set forth in this Act. (ii) Any conspiracy formed to violate any of the prohibitions set forth in this Act. (B) Penalties The authorization provided in paragraph (6) may be used to apply penalties provided for in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act ( 50 U.S.C. 1705 (6) Authorization (A) In general The Secretary of the Treasury, after consultation with the Secretary of State, the Secretary of Defense, the Director of National Intelligence, and the heads of other executive departments and agencies as deemed appropriate by the Secretary of the Treasury, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by the International Emergency Economic Powers Act, to carry out the purposes of this title. The Secretary of the Treasury may, consistent with applicable law, redelegate any of these functions within the Department of the Treasury. All departments and agencies shall take all appropriate measures within their authority to carry out the provisions of this Act. (B) Rules and regulations Rules and regulations issued pursuant to this Act may, among other things, establish procedures to license transactions otherwise prohibited pursuant to this Act. But prior to issuing any license under this Act, the Secretary of the Treasury shall consult with the Secretary of State, the Secretary of Defense, and the Director of National Intelligence. II Sanctions against Communist Chinese military companies, Chinese military companies, and Chinese military-industrial complex companies 201. Definitions In this title: (1) Affiliate The term affiliate (A) has the meaning given such term in section 230.405 of title 17, Code of Federal Regulations (as in effect on the date of the enactment of this Act); (B) means a person that is closely associated with another person typically in a dependent or subordinate position; or (C) means a person that has a common purpose or shared characteristics with another person. (2) Communist Chinese military company The term Communist Chinese military company (A) has the meaning given such term in section 1237 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 ( Public Law 105–261 50 U.S.C. 1701 (B) includes any affiliate of such company. (3) Chinese military company; military-civil fusion contributor The terms Chinese military company military-civil fusion contributor (A) have the meanings given such terms in section 1260H of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ( Public Law 116–283 (B) include any affiliate of such company or contributor. (4) Section 102 terms The terms person publicly traded security United States person (5) Section 1237 List The term Section 1237 List (6) Section 1260H List The term Section 1260H List 202. Sanctions for Communist Chinese military companies and Chinese military companies (a) Authorization The Secretary of Defense is authorized to include a covered entity on the Section 1237 List or the Section 1260H List. (b) Prohibitions (1) In general (A) Purchase or sale of certain securities prohibited The purchase or sale by a United States person of any publicly traded securities, or any publicly traded securities that are derivative of such securities or are designed to provide investment exposure to such securities, of any person described in subparagraph (B) is prohibited. (B) Persons described A person described in this subparagraph is— (i) a company designated by the Office of Foreign Assets Control on the Non-SDN Chinese Military-Industrial Complex Companies List, including any affiliate of such company; (ii) a Communist Chinese military company listed on the Section 1237 List; (iii) any person that was designated as a Communist Chinese military company on June 2, 2021, in accordance with section 1237(b) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 ( 50 U.S.C. 1701 (iv) a Chinese military company or a military-civil fusion contributor listed on the Section 1260H List. (2) Effective date The prohibitions in paragraph (1) shall take effect: (A) Beginning at 12:01 a.m. eastern daylight time on August 2, 2021, with respect to a person designated or listed on a List described in paragraph (1)(B) on such date. (B) With respect to a person not described in subparagraph (A), beginning at 12:01 a.m. eastern daylight time on the date that is 60 days after a person is designated or listed on a List described in paragraph (1)(B). (3) Divestment The purchase or sale of publicly traded securities described in subsection (b)(1) made solely to effect the divestment, in whole or in part, of such securities by a United States person is permitted prior to: (A) 12:01 a.m. eastern daylight time on June 3, 2022, with respect to any person described in paragraph (2)(A). (B) 12:01 a.m. eastern daylight time on the date that is 365 days after the date a person is designated or listed on a List described in paragraph (1)(B). (4) Rule of application This subsection shall apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this Act, and notwithstanding any contract entered into or any license or permit granted before the date of this Act. (5) Evasion of prohibitions (A) In general The following actions are prohibited: (i) Any transactions by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibitions set forth in this Act. (ii) Any conspiracy formed to violate any of the prohibitions set forth in this Act. (B) Penalties The authorization provided in subsection (e) may be used to apply penalties provided for in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act ( 50 U.S.C. 1705 (c) Revisions to lists The Secretary of Defense is authorized to make additions or deletions to the Section 1237 List and the Section 1260H List on an ongoing basis based on the latest information available. (d) Transmission to other Federal officials The Secretary of Defense shall, concurrently with the publication of the Section 1237 List and the Section 1260H List, transmit a copy of such lists to the Secretary of State, the Secretary of the Treasury, and the Director of National Intelligence. The Secretary of Defense shall also transmit a copy of lists to the Director of the Office of Foreign Assets Control of the Department of the Treasury for immediate implementation of the prohibitions described in subsection (b) against those covered entities included on such lists. (e) Authorization (1) In general The Secretary of the Treasury, after consultation with the Secretary of State, the Secretary of Defense, the Director of National Intelligence, and the heads of other executive departments and agencies as deemed appropriate by the Secretary of the Treasury, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by the International Emergency Economic Powers Act, to carry out the purposes of this section. The Secretary of the Treasury may, consistent with applicable law, redelegate any of these functions within the Department of the Treasury. All departments and agencies shall take all appropriate measures within their authority to carry out the provisions of this section. (2) Rules and regulations Rules and regulations issued pursuant to this section may, among other things, establish procedures to license transactions otherwise prohibited pursuant to this section. But prior to issuing any license under this section, the Secretary of the Treasury shall consult with the Secretary of State, the Secretary of Defense, and the Director of National Intelligence. 203. Limitation on judicial review (a) Decision by Secretary of State The decision of the Secretary of State as to any question regarding the inclusion of a covered entity on the list required by section 103(a) shall be final and conclusive and may not be reviewed by any other official or by any court, whether by action in the nature of mandamus or otherwise. (b) Decision by Secretary of Defense The decision of the Secretary of Defense as to any question regarding the inclusion of a Communist Chinese military company, a Chinese military company, or a military-civil fusion contributor on either the lists described in section 1237 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 ( Public Law 105–261 50 U.S.C. 1701 Public Law 116–283 (c) Decision by Secretary of the Treasury The decision of the Secretary of Treasury, after consultation with the Secretary of State and the Secretary of Defense, as to any question regarding the inclusion of an entity on the Office of Foreign Assets Control’s Non-SDN Chinese Military-Industrial Complex Companies List shall be final and conclusive and may not be reviewed by any other official or by any court, whether by action in the nature of mandamus or otherwise. (d) Rules and regulations promulgated by the Secretary of the Treasury The rules and regulations promulgated by the Secretary of the Treasury under sections 103(b)(6) and 202(e) shall be final and not subject to any further agency review or to judicial review by any court (including under chapter 7

Summary: Protecting Americans from Corporate Human Rights Abusers Act This bill prohibits transactions in the securities of certain Chinese entities. The Department of State must report to Congress a list identifying entities incorporated in China that have a presence in U.S. capital markets and (1) are responsible for or complicit in gross violations of human rights in China; (2) pose an unusual or extraordinary threat to U.S. national security, foreign policy, or economic interests; or (3) pose an increased financial risk exposure to U.S.-based investors. A U.S. entity or individual may not purchase or sell the publicly traded securities (or derivatives of such securities) of (1) the entities on the above list; or (2) certain entities that have been designated as Communist Chinese military companies or Chinese military-industrial complex companies. The bill provides certain exceptions for transactions that are made solely for the purpose of divesting in such securities. The bill prohibits judicial review of certain actions related to this bill, including a decision by the State Department to list a company as one that is responsible for gross human rights violations in China.