side of the United States, that, as of the date of the 
publication, has a direct investment in, or is con-
ducting, business operations in Sudan’s power pro-
duction, mineral extraction, oil-related, or military 
equipment industries, subject to paragraph (2). To 
the extent practicable, the list shall include a de-
scription of the investment made by each such per-
son, including the dollar value, intended purpose, 
and status of the investment, as of the date of the 
publication. 
(2) EXCEPTIONS.—The Secretary of the Treas-
ury shall exclude a person from the list if all of the 
business operations by reason of which the person 
would otherwise be included on the list— 
(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 ex-
pressly exempted under Federal law from the 
requirement to be conducted under such a li-
cense; 
(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 edu-
cation; 
(F) are conducted by a person that has 
also undertaken significant humanitarian ef-
forts as described in section 10(14)(B); 
(G) have been voluntarily suspended; or 
(H) will cease within 1 year after the 
adoption of a formal plan to cease the oper-
ations, as determined by the Secretary. 
(3) CONSIDERATION OF SCRUTINIZED BUSINESS 
OPERATIONS.—The 
Secretary 
of 
the 
Treasury 
should give serious consideration to including on the 
list any company that has a scrutinized business op-
eration with respect to Sudan (within the meaning 
of section 10(4)). 
(4) PRIOR
NOTICE
TO
PERSONS.—The Sec-
retary of the Treasury shall, at least 30 days before 
the list is published under paragraph (1), notify 
each person that the Secretary intends to include on 
the list.
(5) DELAY
IN
INCLUDING
PERSONS
ON
THE 
LIST.—After notifying a person under paragraph 
(4), the Secretary of the Treasury may delay includ-
ing that person on the list for up to 60 days if the 
Secretary determines and certifies to the Congress 
that the person has taken specific and effective ac-
tions to terminate the involvement of the person in 
the activities that resulted in the notification under 
paragraph (4). 
(6) REMOVAL OF PERSONS FROM THE LIST.— 
The Secretary of the Treasury may remove a person 
from the list before the next publication of the list 
under paragraph (1) if the Secretary determines 
that the person no longer has a direct investment in 
or is no longer conducting business operations as de-
scribed in paragraph (1). 
(7) ADVANCE NOTICE TO CONGRESS.—Not later 
than 30 days (or, in the case of the first such list, 
60 days) before the date by which paragraph (1) re-
quires the list to be published, the Secretary of the 
Treasury shall submit to the Committees on Finan-
cial Services, on Education and Labor, and on Over-
sight and Government Reform of the House of Rep-
resentatives and the Committees on Banking, Hous-
ing, and Urban Affairs, on Health, Education,
Labor, and Pensions, and on Homeland Security 
and Governmental Affairs of the Senate a copy of 
the list which the Secretary intends to publish under 
paragraph (1). 
(b) PUBLICATION ON WEBSITE.—The Secretary of 
the Treasury shall ensure that the list is published on an 
appropriate, publicly accessible government website, up-
dating the list as necessary to take into account any per-
son removed from the list under subsection (a)(6). 
(c) DEFINITION.—In this section, the term ‘‘invest-
ment’’ has the meaning given in section 4(b)(3). 
SEC. 4. AUTHORITY OF STATE AND LOCAL GOVERNMENTS 
TO DIVEST FROM CERTAIN COMPANIES DI-
RECTLY INVESTED IN CERTAIN SUDANESE 
SECTORS. 
(a) STATEMENT OF POLICY.—It is the policy of the 
United States to support the decision of any State or local 
government to divest from, and to prohibit the investment 
of assets controlled by the State or local government in, 
persons on— 
(1) the list most recently published under sec-
tion 3(a)(1), as modified under section 3(a)(6); or 
(2) any list developed by the State or local gov-
ernment for the purpose of divestment from certain
persons described in subsection (b)(1)(B) of this sec-
tion. 
(b) AUTHORITY TO DIVEST.— 
(1) IN GENERAL.—Notwithstanding any other 
provision of law, a State or local government may 
adopt and enforce measures to divest the assets of 
the State or local government from, or prohibit in-
vestment of the assets of the State or local govern-
ment in— 
(A) persons that are included on the list 
most recently published under section 3(a)(1) of 
this Act, as modified under section 3(a)(6) of 
this Act; or 
(B) persons having a direct investment in, 
or carrying on a trade or business (within the 
meaning of section 162 of the Internal Revenue 
Code of 1986) in Sudan or with the Govern-
ment of Sudan, if the measures require the 
State or local government, as the case may be, 
to the maximum extent practicable, to— 
(i) provide written notice to each per-
son to whom the measures are to be ap-
plied; and 
(ii) not apply the measures to a per-
son—
(I) before the end of the 90-day 
period beginning with the date written 
notice is provided to the person pursu-
ant to clause (i); or 
(II) if the person demonstrates to 
the State or local government, as the 
case may be, that the person is no 
longer involved in the activities by 
reason of which the measures would 
otherwise be applied to the person. 
(2) APPLICABILITY.—This subsection applies to 
measures adopted by a State or local government be-
fore, on, or after the date of the enactment of this 
Act. 
(3) DEFINITIONS.—In this subsection: 
(A) INVESTMENT.—The ‘‘investment’’ of 
assets includes— 
(i) a commitment or contribution of 
assets; and 
(ii) a loan or other extension of credit 
of assets. 
(B) ASSETS.—The term ‘‘assets’’ refers to 
public monies and includes any pension, retire-
ment, annuity, or endowment fund, or similar
instrument, that is controlled, directly or indi-
rectly, by a State or local government. 
(c) PREEMPTION.—A measure of a State or local gov-
ernment that is authorized by subsection (b) is not pre-
empted by any Federal law or regulation. 
SEC. 5. SENSE OF THE CONGRESS. 
It is the sense of the Congress that a divestment 
measure authorized under section 4 or a measure author-
ized under section 9 to prohibit State or local contracts 
would not violate the United States Constitution because 
such a measure— 
(1) is not pre-empted under the Supremacy 
Clause; 
(2) is authorized by the Congress as an appro-
priate measure with regard to interstate or foreign 
commerce; and 
(3) is authorized by the Congress as a measure 
that promotes the foreign policy of the United 
States. 
SEC. 6. SAFE HARBOR FOR CHANGES OF INVESTMENT 
POLICIES BY ASSET MANAGERS. 
Section 13 of the Investment Company Act of 1940 
(15 U.S.C. 80a–13) is amended by adding at the end the 
following new subsection:
‘‘(c) SAFE HARBOR FOR CHANGES IN INVESTMENT 
POLICIES.—Notwithstanding any other provision of Fed-
eral or State law, no person may bring any civil, criminal, 
or administrative action against any registered investment 
company or person providing services to such registered 
investment company (including its investment adviser), or 
any employee, officer, or director thereof, based solely 
upon the investment company divesting from, or avoiding 
investing in, securities issued by companies that are in-
cluded on the list most recently published under section 
3(a)(1) of the Darfur Accountability and Divestment Act, 
as modified under section 3(a)(6) of that Act. For pur-
poses of this subsection the term ‘person’ shall include the 
Federal government, and any State or political subdivision 
of a State.’’. 
SEC. 7. SAFE HARBOR FOR CHANGES OF INVESTMENT 
POLICIES BY EMPLOYEE BENEFIT PLANS. 
Section 404 of the Employee Retirement Income Se-
curity Act of 1974 (29 U.S.C. 1104) is amended by adding 
at the end the following new subsection: 
‘‘(n) No person shall be treated as breaching any of 
the responsibilities, obligations, or duties imposed upon fi-
duciaries by this title for divesting plan assets from, or 
avoiding investing plan assets in, persons that are included 
on the list most recently published under section 3(a)(1)
of the Darfur Accountability and Divestment Act, as 
modified under section 3(a)(6) of such Act. Any divesti-
ture of plan assets from, or avoidance of investing plan 
assets in, persons that are included on such list shall be 
treated as in accordance with this title and the documents 
and instruments governing the plan.’’. 
SEC. 8. PROHIBITION ON UNITED STATES GOVERNMENT 
CONTRACTS. 
(a) PROHIBITION.—Notwithstanding any other provi-
sion of law, the Government of the United States shall 
not enter into or renew a contract for the procurement 
of goods or services with persons that are included on the 
list most recently published under section 3(a)(1), as 
modified under section 3(a)(6). 
(b) WAIVER AUTHORITY.—The President may waive 
the prohibition in subsection (a) on a case-by-case basis 
if the President determines and certifies in writing to the 
Congress that it is important to the national security in-
terests of the United States to do so. 
SEC. 9. AUTHORITY OF STATE AND LOCAL GOVERNMENTS 
TO PROHIBIT CONTRACTS. 
(a) STATEMENT OF POLICY.—It is the policy of the 
United States to support the decision of any State or local 
government to prohibit the State or local government, as
the case may be, from entering into or renewing a contract 
as described in subsection (b). 
(b) AUTHORITY
TO PROHIBIT CONTRACTS.—Not-
withstanding any other provision of law, a State or local 
government may adopt and enforce measures to prohibit 
the State or local government, as the case may be, from 
entering into or renewing a contract for the procurement 
of goods or services with persons that are included on the 
list most recently published under section 3(a)(1), as 
modified under section 3(a)(6). 
SEC. 10. DEFINITIONS. 
For purposes of this Act: 
(1) PERSON.—The term ‘‘person’’, except in 
paragraph (6), means— 
(A) a natural person as well as a corpora-
tion, company, business association, partner-
ship, society, trust, any other nongovernmental 
entity, organization, or group; 
(B) any governmental entity or instrumen-
tality of a government, including a multilateral 
development institution (as defined in section 
1701(c)(3) of the International Financial Insti-
tutions Act); and
(C) any successor, subunit, or subsidiary of 
any entity described in subparagraph (A) or 
(B). 
(2) STATE.—The term ‘‘State’’ includes 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. 
(3) STATE OR LOCAL GOVERNMENT.— 
(A) IN
GENERAL.—The term ‘‘State or 
local government’’ includes— 
(i) any State and any agency or in-
strumentality thereof; 
(ii) any local government within a 
State, and any agency or instrumentality 
thereof; 
(iii) any other governmental instru-
mentality; and 
(iv) any public institution of higher 
education. 
(B) PUBLIC INSTITUTION OF HIGHER EDU-
CATION.—The term ‘‘public institution of high-
er education’’ means a public institution of 
higher education within the meaning of the 
Higher Education Act of 1965.
(4) SCRUTINIZED
BUSINESS
OPERATION.—A 
company has a scrutinized business operation with 
respect to Sudan if— 
(A)(i) the company has business operations 
that involve contracts with or provision of sup-
plies or services to— 
(I) the Government of Sudan; 
(II) a company in which the Govern-
ment of Sudan has any direct or indirect 
equity share; 
(III) a consortium or project commis-
sioned by the Government of Sudan; or 
(IV) a company involved in a consor-
tium or project commissioned by the Gov-
ernment of Sudan; and 
(ii)(I)(aa) more than 10 percent of the rev-
enues or assets of the company that are linked 
to Sudan involve oil-related activities or mineral 
extraction activities; 
(bb) less than 75 percent of the revenues 
or assets of the company that are linked to 
Sudan involve contracts with, or provision of 
oil-related or mineral extracting products or 
services to the regional government of southern
Sudan or a project or consortium created exclu-
sively by that regional government; and 
(cc) the company has failed to take sub-
stantial action with respect to the business op-
erations referred to in clause (i) of this sub-
paragraph or as described in subparagraph (B) 
or (C) of paragraph (14); or 
(II)(aa) more than 10 percent of the reve-
nues or assets of the company that are linked 
to Sudan involve power production activities; 
(bb) less than 75 percent of the power pro-
duction activities of the company include 
projects whose intent is to provide power or 
electricity to the marginalized populations of 
Sudan; and 
(cc) the company has failed to take sub-
stantial action with respect to the business op-
erations referred to in clause (i) of this sub-
paragraph or as described in subparagraph (B) 
or (C) of paragraph (14); 
(B) the company supplies military equip-
ment in Sudan, unless the company clearly 
shows that—
(i) the military equipment cannot be 
used to facilitate offensive military actions 
in Sudan; or 
(ii) the company implements rigorous 
and verifiable safeguards to prevent use of 
the equipment by forces actively partici-
pating 
in 
armed 
conflict, 
including 
through— 
(I) post-sale tracking of the 
equipment by the company; 
(II) certification from a reputable 
and objective third party that such 
equipment is not being used by a 
party participating in armed conflict 
in Sudan; or 
(III) sale of the equipment solely 
to the regional government of south-
ern Sudan or any internationally rec-
ognized peacekeeping force or humani-
tarian organization; or 
(C) the Secretary of the Treasury has de-
termined that the company has been complicit 
in the Darfur genocide. 
(5) BUSINESS OPERATIONS.—The term ‘‘busi-
ness operations’’ means engaging in commerce in
any form in Sudan, including by acquiring, devel-
oping, maintaining, owning, selling, possessing, leas-
ing, or operating equipment, facilities, personnel, 
products, services, personal property, real property, 
or any other apparatus of business or commerce. 
(6) COMPANY.—The term ‘‘company’’ means 
any natural person, legal person, sole proprietorship, 
organization, association, corporation, partnership, 
firm, joint venture, franchisor, franchisee, financial 
institution, utility, public franchise, trust, enterprise, 
limited partnership, limited liability partnership, lim-
ited liability company, or other business entity or as-
sociation, including all wholly-owned subsidiaries, 
majority-owned subsidiaries, parent companies, or 
affiliates of such business entities or associations, 
that exists for profit-making purposes. 
(7) COMPLICIT.—The term ‘‘complicit’’ means 
has taken actions in the preceding 20 months which 
have directly supported or promoted the genocidal 
campaign in Darfur, including preventing Darfur’s 
victimized population from communicating with each 
other, encouraging Sudanese citizens to speak out 
against an internationally approved security force 
for Darfur, actively working to deny, cover up, or
alter evidence of human rights abuses in Darfur, or 
other similar actions. 
(8) GOVERNMENT OF SUDAN.—The term ‘‘Gov-
ernment of Sudan’’ means the government in Khar-
toum, 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 Na-
tional Unity Government agreed upon in the Com-
prehensive Peace Agreement for Sudan), and does 
not include the regional government of southern 
Sudan. 
(9) MARGINALIZED POPULATIONS OF SUDAN.— 
The term ‘‘marginalized populations of Sudan’’ in-
cludes— 
(A) the portion of the population in the 
Darfur region that has been victimized; 
(B) the portion of the population of south-
ern Sudan victimized by Sudan’s North-South 
civil war; 
(C) the Beja, Rashidiya, and other simi-
larly affected groups of eastern Sudan; 
(D) the Nubian and other similarly af-
fected groups in Sudan’s Abyei, Southern Blue 
Nile, and Nuba Mountain regions; and
(E) the Amri, Hamadab, Manasir, and 
other similarly affected groups of northern 
Sudan. 
(10) MILITARY EQUIPMENT.—The term ‘‘mili-
tary 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 di-
rectly or indirectly to any force actively partici-
pating in armed conflict in Sudan. 
(11) MINERAL EXTRACTION ACTIVITIES.—The 
term ‘‘mineral extraction activities’’ includes— 
(A) 
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, tung-
sten, uranium, and zinc, and 
(B) facilitating any activity described in 
subparagraph (A), including by providing sup-
plies or services in support of the activity. 
(12) OIL-RELATED ACTIVITIES.—
(A) IN GENERAL.—Except as provided in 
subparagraph (B), the term ‘‘oil-related activi-
ties’’ includes— 
(i) exporting, extracting, producing, 
refining, processing, exploring for, trans-
porting, selling, or trading oil; 
(ii) constructing, maintaining, or op-
erating a pipeline, refinery, or other oilfield 
infrastructure; and 
(iii) facilitating any activity described 
in clause (i) or (ii), including by providing 
supplies or services in support of the activ-
ity. 
(B) SPECIAL RULES.— 
(i) A company that is involved in the 
retail sale of gasoline or related consumer 
products in Sudan but is not involved in 
any other activity described in subpara-
graph (A) shall not be considered to be in-
volved in an oil-related activity. 
(ii) A company that is involved in 
leasing, or that owns, rights to an oil block 
in Sudan but is not involved in any other 
activity described in subparagraph (A)
shall not be considered to be involved in an 
oil-related activity. 
(13) POWER
PRODUCTION
ACTIVITIES.—The 
term ‘‘power production activities’’ means— 
(A) any business operation that involves a 
project commissioned by the National Elec-
tricity Corporation of Sudan or other similar 
Government of Sudan entity whose purpose is 
to facilitate power generation and delivery, in-
cluding establishing power-generating plants or 
hydroelectric dams, selling or installing compo-
nents for the project, providing service con-
tracts related to the installation or maintenance 
of the project; and 
(B) facilitating an activity described in 
subparagraph (A), including by providing sup-
plies or services in support of the activity. 
(14) SUBSTANTIAL ACTION.—The term ‘‘sub-
stantial action’’ means— 
(A) adopting, publicizing, and imple-
menting a formal plan to cease scrutinized busi-
ness operations within 1 year after the date of 
the enactment of this Act, and refraining from 
any new scrutinized business operations;