USA - US Federal level (Proposed Bill) Combating BDS Law

Not enacted into law

SEC. 401. SHORT TITLE.
This title may be cited as the “Combating BDS Act of 2019”.

SEC. 402. NONPREEMPTION OF MEASURES BY STATE AND LOCAL GOVERNMENTS TO DIVEST FROM ENTITIES THAT ENGAGE IN CERTAIN BOYCOTT, DIVESTMENT, OR SANCTIONS ACTIVITIES TARGETING ISRAEL OR PERSONS DOING BUSINESS IN ISRAEL OR ISRAELI-CONTROLLED TERRITORIES.

(a) STATE AND LOCAL MEASURES.—Notwithstanding any other provision of law, a State or local government may adopt and enforce measures that meet the requirements of subsection (c) to divest the assets of the State or local government from, prohibit investment of the assets of the State or local government in, or restrict contracting by the State or local government for goods and services with—
(1) an entity that the State or local government determines, using credible information available to the public, knowingly engages in an activity described in subsection (b);
(2) a successor entity or subunit of an entity described in paragraph (1); or
(3) an entity that owns or controls or is owned or controlled by an entity described in paragraph (1).

(b) ACTIVITIES DESCRIBED.—An activity described in this subsection is a commerce-related or investment-related boycott, divestment, or sanctions activity in the course of interstate or international commerce that is intended to penalize, inflict economic harm on, or otherwise limit commercial relations with Israel or persons doing business in Israel or Israeli-controlled territories for purposes of coercing political action by, or imposing policy positions on, the Government of Israel.

(c) REQUIREMENTS.—A State or local government that seeks to adopt or enforce a measure under subsection (a) shall meet the following requirements:
(1) NOTICE.—The State or local government shall provide written notice—
(A) in the case of a measure relating to divestment or investment, to each entity to which the measure is to be applied; and
(B) in the case of a measure relating to contracting, of the restrictions imposed by the measure to each prospective contractor before entering into a contract.

(2) TIMING.—A measure relating to divestment or investment shall apply to an entity not earlier than the date that is 90 days after the date on which written notice is provided to the entity under paragraph (1).

(3) OPPORTUNITY FOR COMMENT.—In the case of a measure relating to divestment or investment, the State or local government shall provide an opportunity to comment in writing to each entity to which the measure is to be applied. If the entity demonstrates to the State or local government that neither the entity nor any entity related to the entity as described in paragraph (2) or (3) of subsection (a) has knowingly engaged in an activity described in subsection (b), the measure shall not apply to the entity.

(4) DISCLOSURE IN CONTRACTING MEASURES.—The State or local government may require, in a measure relating to contracting, that a prospective contractor disclose whether the prospective contractor or any entity related to the prospective contractor as described in paragraph (2) or (3) of subsection (a) knowingly engages in any activity described in subsection (b) before entering into a contract.

(5) 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 (a) with respect to an entity unless the State or local government has made every effort to avoid erroneously targeting the entity and has verified that the entity engages in an activity described in subsection (b).

(d) NOTICE TO DEPARTMENT OF JUSTICE.—
(1) IN GENERAL.—Except as provided in paragraph (2), not later than 30 days after adopting a measure described in subsection (a), the State or local government that adopted the measure shall submit written notice to the Attorney General describing the measure.

(2) EXISTING MEASURES.—With respect to measures described in subsection (a) adopted before the date of the enactment of this Act, the State or local government that adopted the measure shall submit written notice to the Attorney General describing the measure not later than 30 days after the date of the enactment of this Act.
(e) NONPREEMPTION.—A measure of a State or local government that is consistent with subsection (a) is not preempted by any Federal law.
(f) PRIOR ENACTED MEASURES.—

(1) IN GENERAL.—Notwithstanding any other provision of this section or any other provision of law, and except as provided in paragraph (2), a State or local government may enforce a measure described in subsection (a) adopted by the State or local government before the date of the enactment of this Act without regard to the requirements of subsection (c).

(2) APPLICATION OF NOTICE AND OPPORTUNITY FOR COMMENT.—Enforcement of a measure described in paragraph (1) shall be subject to the requirements of subsection (c) on and after the date that is 2 years after the date of the enactment of this Act.
(g) RULES OF CONSTRUCTION.—

(1) AUTHORITY OF STATES.—Nothing in this section shall be construed to abridge the authority of a State to issue and enforce rules governing the safety, soundness, and solvency of a financial institution subject to its jurisdiction or the business of insurance pursuant to the Act of March 9, 1945 (59 Stat. 33, chapter 20; 15 U.S.C. 1011 et seq.) (commonly known as the “McCarran-Ferguson Act”).

(2) POLICY OF THE UNITED STATES.—Nothing in this section shall be construed to alter the established policy of the United States concerning final status issues associated with the Arab-Israeli conflict, including border delineation, that can only be resolved through direct negotiations between the parties.
(h) DEFINITIONS.—In this section:

(1) ASSETS.—
(A) IN GENERAL.—Except as provided in subparagraph (B), the term “assets” means 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.).

(2) ENTITY.—The term “entity” includes—
(A) any corporation, company, business association, partnership, or trust; and
(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))).

(3) INVESTMENT.—The term “investment” includes—
(A) a commitment or contribution of funds or property;
(B) a loan or other extension of credit; and
(C) the entry into or renewal of a contract for goods or services.

(4) KNOWINGLY.—The term “knowingly”, with respect to conduct, a circumstance, or a result, means that a person has actual knowledge, or should have known, of the conduct, the circumstance, or the result.

(5) STATE.—The term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the United States Virgin Islands, and any other territory or possession of the United States.

(6) 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; and
(C) any other governmental instrumentality of a State or locality.
SEC. 403. SAFE HARBOR FOR CHANGES OF INVESTMENT POLICIES BY ASSET MANAGERS.
Section 13(c)(1) of the Investment Company Act of 1940 (15 U.S.C. 80a–13(c)(1)) is amended—
(1) in subparagraph (A), by striking “; or” and inserting a semicolon;
(2) in subparagraph (B), by striking the period at the end and inserting “; or”; and
(3) by adding at the end the following:
“(C) knowingly engage in any activity described in section 402(b) of the Combating BDS Act of 2019”..”.
SEC. 404. SENSE OF CONGRESS REGARDING CERTAIN ERISA PLAN INVESTMENTS.
It is the sense of Congress that—
(1) 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 knowingly engages in any activity described in section 2(b), if—
(A) the fiduciary makes that determination using credible information that is available to the public; and
(B) the fiduciary prudently determines that the result of that divestment or avoidance of investment would not be expected to provide the employee benefit plan with—
(i) a lower rate of return than alternative investments with commensurate degrees of risk; or
(ii) a higher degree of risk than alternative investments with commensurate rates of return; and
(2) by divesting assets or avoiding the investment of assets as described in paragraph (1), the fiduciary is not breaching the responsibilities, obligations, or duties imposed upon the fiduciary by subparagraph (A) or (B) of section 404(a)(1) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1104(a)(1)).
SEC. 405. RULE OF CONSTRUCTION.
Nothing in this title shall be construed to infringe upon any right protected under the First Amendment to the Constitution of the United States.
SEC. 406. CLARIFICATION OF DEADLINE FOR REPORT ON ESTABLISHING AN ENTERPRISE FUND FOR JORDAN.
For purposes of section 205(a), the term “establishment of the United States Development Finance Corporation” means the end of the transition period, as defined in section 1461 of the Better Utilization of Investments Leading to Development Act of 2018 (division F of Public Law 115–254).
SEC. 407. FORM OF REPORT ON THE COOPERATION OF THE UNITED STATES AND ISRAEL WITH RESPECT TO COUNTERING UNMANNED AERIAL SYSTEMS.
The report required under section 123(d) shall be submitted in unclassified form, but may include a classified annex.
SEC. 408. SENSE OF SENATE ON WITHDRAWALS OF UNITED STATES FORCES FROM SYRIA AND AFGHANISTAN.
(a) FINDINGS.—The Senate makes the following findings:

(1) The foreign terrorist organization al Qaeda, responsible for the attacks of September 11, 2001, maintains a presence in Afghanistan.

(2) The Islamic State of Iraq and al Sham, better known by its acronym ISIS, flourished in the chaos unleashed by the civil war in Syria and at one point controlled extensive territory in Iraq and Syria.

(3) Al Qaeda, ISIS, and their affiliates have murdered thousands of innocent civilians.

(4) Al Qaeda, ISIS, and their affiliates have proven resilient and have regrouped when the United States and its partners have withdrawn from the fight against them.
(b) SENSE OF SENATE.—The Senate—

(1) acknowledges that the United States military and our partners have made significant progress in the campaign against al Qaeda and the Islamic State of Iraq and al Sham (ISIS), and honors the contributions and sacrifice of the members of the United States Armed Forces who have served on the front lines of this fight;

(2) recognizes the continuing threat to the homeland and our allies posed by al Qaeda and ISIS, which maintain an ability to operate in Syria and Afghanistan;

(3) expresses concern that Iran has supported the Taliban in Afghanistan and Hizballah and the Assad regime in Syria, and has sought to frustrate diplomatic efforts to resolve conflicts in these two countries;

(4) recognizes the positive role the United States and its partners have played in Syria and Afghanistan fighting terrorist groups, countering Iranian aggression, deterring the further use of chemical weapons, and protecting human rights;

(5) warns that a precipitous withdrawal of United States forces from the on-going fight against these groups, without effective, countervailing efforts to secure gains in Syria and Afghanistan, could allow terrorists to regroup, destabilize critical regions, and create vacuums that could be filled by Iran or Russia, to the detriment of United States interests and those of our allies;

(6) recognizes that al Qaeda and ISIS pose a global threat, which merits increased international contributions to the counterterrorism, diplomatic, and stabilization efforts underway in Syria and Afghanistan;

(7) recognizes that diplomatic efforts to secure peaceful, negotiated solutions to the conflicts in Syria and Afghanistan are necessary to long-term stability and counterterrorism efforts in the Middle East and South Asia;

(8) acknowledges the progress made by Special Representative Khalilzad in his efforts to promote reconciliation in Afghanistan;

(9) calls upon the Administration to conduct a thorough review of the military and diplomatic strategies in Syria and Afghanistan, including an assessment of the risk that withdrawal from those countries could strengthen the power and influence of Russia and Iran in the Middle East and South Asia and undermine diplomatic efforts toward negotiated, peaceful solutions;

(10) requests that the Administration, as part of this review, solicit the views of Israel, our regional partners, and other key troop-contributing nations in the fight against al Qaeda and ISIS;

(11) reiterates support for international diplomatic efforts to facilitate peaceful, negotiated resolutions to the on-going conflicts in Syria and Afghanistan on terms that respect the rights of innocent civilians and deny safe havens to terrorists;

(12) calls upon the Administration to pursue a strategy that sets the conditions for the long-term defeat of al Qaeda and ISIS, as well as the protection of regional partners and allies, while ensuring that Iran cannot dominate the region or threaten Israel;

(13) encourages close collaboration between the Executive Branch and the Legislative Branch to ensure continuing strong, bipartisan support for United States military operations in Syria and Afghanistan; and

(14) calls upon the Administration to certify that conditions have been met for the enduring defeat of al Qaeda and ISIS before initiating any significant withdrawal of United States forces from Syria or Afghanistan.

(c) RULE OF CONSTRUCTION.—Nothing in this section shall be construed as a declaration of war or an authorization of the use of military force.

Passed the Senate February 5, 2019.