22 USC 6442 - Non-state actor designations

Collapse to view only § 6442a. Non-state actor designations

§ 6441. Presidential actions in response to violations of religious freedom
§ 6442. Presidential actions in response to particularly severe violations of religious freedom
§ 6442a. Non-state actor designations
§ 6443. Consultations
§ 6444. Report to Congress
§ 6445. Description of Presidential actions
§ 6446. Effects on existing contracts
§ 6447. Presidential waiver
§ 6448. Publication in Federal Register
§ 6449. Termination of Presidential actions
§ 6450. Preclusion of judicial review

§ 6441. Presidential actions in response to violations of religious freedom

(a) Response to violations of religious freedom

(1) In general

(A) United States policy

It shall be the policy of the United States—

(i) to oppose violations of religious freedom that are or have been engaged in or tolerated by the governments of foreign countries; and

(ii) to promote the right to freedom of religion in those countries through the actions described in subsection (b).

(B) Requirement of Presidential action

For each foreign country the government of which engages in or tolerates violations of religious freedom, the President shall oppose such violations and promote the right to freedom of religion in that country through the actions described in subsection (b).

(2) Basis of actions

Each action taken under paragraph (1)(B) shall be based upon information regarding violations of religious freedom, as described in the latest Country Reports on Human Rights Practices, the Annual Report and Executive Summary, and on any other evidence available, and shall take into account any findings or recommendations by the Commission with respect to the foreign country.

(b) Presidential actions

(1) In general

Subject to paragraphs (2) and (3), the President, in consultation with the Secretary of State, the Ambassador at Large, the Special Adviser, and the Commission, shall, as expeditiously as practicable in response to the violations described in subsection (a) by the government of a foreign country—

(A) take one or more of the actions described in paragraphs (1) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto) with respect to such country; or

(B) negotiate and enter into a binding agreement with the government of such country, as described in section 6445(c) of this title.

(2) Deadline for actions

Not later than September 1 of each year, the President shall take action under any of paragraphs (1) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto) with respect to each foreign country the government of which has engaged in or tolerated violations of religious freedom at any time since September 1 of the preceding year, except that in the case of action under any of paragraphs (9) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto)—

(A) the action may only be taken after the requirements of sections 6443 and 6444 of this title have been satisfied; and

(B) the September 1 limitation shall not apply.

(3) Authority for delay of Presidential actions

The President may delay action under paragraph (2) described in any of paragraphs (9) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto) if he determines and certifies to Congress that a single, additional period of time, not to exceed 90 days, is necessary pursuant to the same provisions applying to countries of particular concern for religious freedom under section 6442(c)(3) of this title.

(1) In general

In carrying out subsection (b), the President shall—

(A) take the action or actions that most appropriately respond to the nature and severity of the violations of religious freedom;

(B) seek to the fullest extent possible to target action as narrowly as practicable with respect to the agency or instrumentality of the foreign government, or specific officials thereof, that are responsible for such violations; and

(C) when appropriate, make every reasonable effort to conclude a binding agreement concerning the cessation of such violations in countries with which the United States has diplomatic relations.

(2) Guidelines for Presidential actions

In addition to the guidelines under paragraph (1), the President, in determining whether to take a Presidential action under paragraphs (9) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto), shall seek to minimize any adverse impact on—

(A) the population of the country whose government is targeted by the Presidential action or actions; and

(B) the humanitarian activities of United States and foreign nongovernmental organizations in such country.

(Pub. L. 105–292, title IV, § 401, Oct. 27, 1998, 112 Stat. 2800.)

§ 6442. Presidential actions in response to particularly severe violations of religious freedom

(a) Response to particularly severe violations of religious freedom

(1) United States policy

It shall be the policy of the United States—

(A) to oppose particularly severe violations of religious freedom that are or have been engaged in or tolerated by the governments of foreign countries; and

(B) to promote the right to freedom of religion in those countries through the actions described in subsection (c).

(2) Requirement of Presidential action

Whenever the President determines that the government of a foreign country has engaged in or tolerated particularly severe violations of religious freedom, the President shall oppose such violations and promote the right to religious freedom through one or more of the actions described in subsection (c).

(b) Designations of countries of particular concern for religious freedom

(1) Annual review

(A) In general

Not later than 90 days after the date on which each Annual Report is submitted under section 6412(b) of this title, the President shall—

(i) review the status of religious freedom in each foreign country to determine whether the government of that country has engaged in or tolerated particularly severe violations of religious freedom in each such country during the preceding 12 months or longer;

(ii) designate each country the government of which has engaged in or tolerated violations described in clause (i) as a country of particular concern for religious freedom; and

(iii) designate each country that engaged in or tolerated severe violations of religious freedom during the previous year, but does not meet, in the opinion of the President at the time of publication of the Annual Report, all of the criteria described in section 6402(15) of this title for designation under clause (ii) as being placed on a “Special Watch List”.

(B) Basis of review

Each review conducted under subparagraph (A) shall be based upon information contained in the latest Country Reports on Human Rights Practices, the Annual Report, and on any other evidence available and shall take into account any findings or recommendations by the Commission with respect to the foreign country.

Any review under subparagraph (A) of a foreign country may take place singly or jointly with the review of one or more countries and may take place at any time before the date on which each Annual Report is submitted under section 6412(b) of this title.

(2) Determinations of responsible parties

For the government of each country designated as a country of particular concern for religious freedom under paragraph (1)(A), the President shall seek to determine the agency or instrumentality thereof and the specific officials thereof that are responsible for the particularly severe violations of religious freedom engaged in or tolerated by that government in order to appropriately target Presidential actions under this section in response.

(3) Congressional notification

(A) In general

Whenever the President designates a country as a country of particular concern for religious freedom under paragraph (1)(A)(ii), the President, not later than 90 days after such designation, shall submit to the appropriate congressional committees—

(i) the designation of the country, signed by the President;

(ii) the identification, if any, of responsible parties determined under paragraph (2); and

(iii) a description of the actions taken under subsection (c), the purposes of the actions taken, and the effectiveness of the actions taken.

(B) Removal of designation

A country that is designated as a country of particular concern for religious freedom under paragraph (1)(A)(ii) shall retain such designation until the President determines and reports to the appropriate congressional committees that the country should no longer be so designated.

(4) Effect on designation as country of particular concern

The presence or absence of a country from the Special Watch List in any given year shall not preclude the designation of such country as a country of particular concern for religious freedom under paragraph (1)(A)(ii) in any such year.

(1) In general

Subject to paragraphs (2), (3), (4), and (5) with respect to each country of particular concern for religious freedom designated under subsection (b)(1)(A), the President shall, after the requirements of sections 6443 and 6444 of this title have been satisfied, but not later than 90 days (or 180 days in case of a delay under paragraph (3)) after the date of designation of the country under that subsection, carry out one or more of the following actions under subparagraph (A) or subparagraph (B):

(A) Presidential actions

One or more of the Presidential actions described in paragraphs (9) through (15) of section 6445(a) of this title, as determined by the President.

(B) Commensurate actions

Commensurate action in substitution to any action described in subparagraph (A).

(2) Substitution of binding agreements

(A) In general

In lieu of carrying out action under paragraph (1), the President may conclude a binding agreement with the respective foreign government as described in section 6445(c) of this title. The existence of a binding agreement under this paragraph with a foreign government may be considered by the President prior to making any determination or taking any action under this subchapter.

(B) Statutory construction

Nothing in this paragraph may be construed to authorize the entry of the United States into an agreement covering matters outside the scope of violations of religious freedom.

(3) Authority for delay of Presidential actions

If, on or before the date that the President is required (but for this paragraph) to take action under paragraph (1), the President determines and certifies to Congress that a single, additional period of time not to exceed 90 days is necessary—

(A) for a continuation of negotiations that have been commenced with the government of that country to bring about a cessation of the violations by the foreign country;

(B) for a continuation of multilateral negotiations into which the United States has entered to bring about a cessation of the violations by the foreign country;

(C)

(i) for a review of corrective action taken by the foreign country after designation of such country as a country of particular concern; or

(ii) in anticipation that corrective action will be taken by the foreign country during the 90-day period,

then the President shall not be required to take action until the expiration of that period of time.

(4) Exception for ongoing Presidential action under this chapter

The President shall not be required to take action pursuant to this subsection in the case of a country of particular concern for religious freedom, if with respect to such country—

(A) the President has taken action pursuant to this chapter in a preceding year;

(B) such action is in effect at the time the country is designated as a country of particular concern for religious freedom under this section; and

(C) the President reports to Congress the information described in section 6444(a)(1), (2), (3), and (4) of this title regarding the actions in effect with respect to the country.

(5) Exception for ongoing, multiple, broad-based sanctions in response to human rights violations

(d) Statutory construction

A determination under this chapter, or any amendment made by this chapter, that a foreign country has engaged in or tolerated particularly severe violations of religious freedom shall not be construed to require the termination of assistance or other activities with respect to that country under any other provision of law, including section 2151n or 2304 of this title.

(Pub. L. 105–292, title IV, § 402, Oct. 27, 1998, 112 Stat. 2802; Pub. L. 106–55, § 2(a), Aug. 17, 1999, 113 Stat. 405; Pub. L. 114–281, title III, § 302, Dec. 16, 2016, 130 Stat. 1434.)

§ 6442a. Non-state actor designations

(a) In generalThe President, concurrent with the annual foreign country review required under section 402(b)(1)(A) of the International Religious Freedom Act of 1998 (22 U.S.C. 6442(b)(1)(A)), shall—

(1) review and identify any non-state actors operating in any such reviewed country or surrounding region that have engaged in particularly severe violations of religious freedom; and

(2) designate, in a manner consistent with such Act [22 U.S.C. 6401 et seq.], each such non-state actor as an entity of particular concern for religious freedom.

(b) Report

Whenever the President designates a non-state actor under subsection (a) as an entity of particular concern for religious freedom, the President, as soon as practicable after the designation is made, shall submit a report to the appropriate congressional committees that describes the reasons for such designation.

The President should take specific actions, when practicable, to address severe violations of religious freedom of non-state actors that are designated under subsection (a)(2).

(d) Department of State annual report

The Secretary of State should include information detailing the reasons the President designated a non-state actor as an entity of particular concern for religious freedom under subsection (a) in the Annual Report required under section 102(b)(1) of the International Religious Freedom Act of 1998 (22 U.S.C. 6412(b)(1)).

(e) Sense of CongressIt is the sense of Congress that—

(1) the Secretary of State should work with Congress and the U.S. Commission on International Religious Freedom—

(A) to create new political, financial, and diplomatic tools to address severe violations of religious freedom by non-state actors; and

(B) to update the actions the President can take under section 405 of the International Religious Freedom Act of 1998 (22 U.S.C. 6445);

(2) governments must ultimately be held accountable for the abuses that occur in their territories; and

(3) any actions the President takes after designating a non-state actor as an entity of particular concern should also involve high-level diplomacy with the government of the country in which the non-state actor is operating.

(f) Determinations of responsible parties

In order to appropriately target Presidential actions under the International Religious Freedom Act of 1998 (22 U.S.C. 6401 et seq.), the President, with respect to each non-state actor designated as an entity of particular concern for religious freedom under subsection (a), shall seek to determine, to the extent practicable, the specific officials or members that are responsible for the particularly severe violations of religious freedom engaged in or tolerated by such non-state actor.

(g) Definitions

In this section, the terms “appropriate congressional committees”, “non-state actor”, and “particularly severe violations of religious freedom” have the meanings given such terms in section 3 of the International Religious Freedom Act of 1998 (22 U.S.C. 6402), as amended by section 3 of this Act.

(Pub. L. 114–281, title III, § 301, Dec. 16, 2016, 130 Stat. 1433.)

§ 6443. Consultations

(a) In general

As soon as practicable after the President decides to take action under section 6441 of this title in response to violations of religious freedom and the President decides to take action under paragraphs (9) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto) with respect to that country, or not later than 90 days after the President designates a country as a country of particular concern for religious freedom under section 6442 of this title, as the case may be, the President shall carry out the consultations required in this section.

(b) Duty to consult with foreign governments prior to taking Presidential actions

(1) In general

The President shall—

(A) request consultation with the government of such country regarding the violations giving rise to designation of that country as a country of particular concern for religious freedom or to Presidential action under section 6441 of this title; and

(B) if agreed to, enter into such consultations, privately or publicly.

(2) Use of multilateral fora

If the President determines it to be appropriate, such consultations may be sought and may occur in a multilateral forum, but, in any event, the President shall consult with appropriate foreign governments for the purposes of achieving a coordinated international policy on actions that may be taken with respect to a country described in subsection (a), prior to implementing any such action.

(3) Election of nondisclosure of negotiations to public

If negotiations are undertaken or an agreement is concluded with a foreign government regarding steps to cease the pattern of violations by that government, and if public disclosure of such negotiations or agreement would jeopardize the negotiations or the implementation of such agreement, as the case may be, the President may refrain from disclosing such negotiations and such agreement to the public, except that the President shall inform the appropriate congressional committees of the nature and extent of such negotiations and any agreement reached.

The President should consult with appropriate humanitarian and religious organizations concerning the potential impact of United States policies to promote freedom of religion in countries described in subsection (a).

(d) Duty to consult with United States interested parties

The President shall, as appropriate, consult with United States interested parties as to the potential impact of intended Presidential action or actions in countries described in subsection (a) on economic or other interests of the United States.

(Pub. L. 105–292, title IV, § 403, Oct. 27, 1998, 112 Stat. 2804.)

§ 6444. Report to Congress

(a) In general

Subject to subsection (b), not later than 90 days after the President decides to take action under section 6441 of this title in response to violations of religious freedom and the President decides to take action under paragraphs (9) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto) with respect to that country, or not later than 90 days after the President designates a country as a country of particular concern for religious freedom under section 6442 of this title, as the case may be, the President shall submit a report to Congress containing the following:

(1) Identification of Presidential actions

An identification of the Presidential action or actions described in paragraphs (9) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto) to be taken with respect to the foreign country.

(2) Description of violations

A description of the violations giving rise to the Presidential action or actions to be taken.

(3) Purpose of Presidential actions

A description of the purpose of the Presidential action or actions.

(4) Evaluation

(A) Description

An evaluation, in consultation with the Secretary of State, the Ambassador at Large, the Commission, the Special Adviser, the parties described in section 6443(c) and (d) of this title, and whoever else the President deems appropriate, of—

(i) the impact upon the foreign government;

(ii) the impact upon the population of the country;

(iii) the impact upon the United States economy and other interested parties; and

(iv) the impact on the advancement of United States interests in democracy, human rights, and security, and a description of policy tools being applied in the country, including programs that target democratic stability, economic growth, and counterterrorism.

(B) Authority to withhold disclosure

The President may withhold part or all of such evaluation from the public but shall provide the entire evaluation to Congress.

(5) Statement of policy options

A statement that noneconomic policy options designed to bring about cessation of the particularly severe violations of religious freedom have reasonably been exhausted, including the consultations required in section 6443 of this title.

(6) Description of multilateral negotiations

A description of multilateral negotiations sought or carried out, if appropriate and applicable.

(b) Delay in transmittal of report

If, on or before the date that the President is required (but for this subsection) to submit a report under subsection (a) to Congress, the President determines and certifies to Congress that a single, additional period of time not to exceed 90 days is necessary pursuant to section 6441(b)(3) or 6442(c)(3) of this title, then the President shall not be required to submit the report to Congress until the expiration of that period of time.

(Pub. L. 105–292, title IV, § 404, Oct. 27, 1998, 112 Stat. 2805; Pub. L. 114–281, title III, § 303, Dec. 16, 2016, 130 Stat. 1435.)

§ 6445. Description of Presidential actions

(a) Description of Presidential actionsExcept as provided in subsection (d), the Presidential actions referred to in this subsection are the following:

(1) A private demarche.

(2) An official public demarche.

(3) A public condemnation.

(4) A public condemnation within one or more multilateral fora.

(5) The delay or cancellation of one or more scientific exchanges.

(6) The delay or cancellation of one or more cultural exchanges.

(7) The denial of one or more working, official, or state visits.

(8) The delay or cancellation of one or more working, official, or state visits.

(9) The withdrawal, limitation, or suspension of United States development assistance in accordance with section 2151n of this title.

(10) Directing the Export-Import Bank of the United States, the United States International Development Finance Corporation, or the Trade and Development Agency not to approve the issuance of any (or a specified number of) guarantees, insurance, extensions of credit, or participations in the extension of credit with respect to the specific government, agency, instrumentality, or official found or determined by the President to be responsible for violations under section 6441 or 6442 of this title.

(11) The withdrawal, limitation, or suspension of United States security assistance in accordance with section 2304 of this title.

(12) Consistent with section 262d of this title, directing the United States executive directors of international financial institutions to oppose and vote against loans primarily benefiting the specific foreign government, agency, instrumentality, or official found or determined by the President to be responsible for violations under section 6441 or 6442 of this title.

(13) Ordering the heads of the appropriate United States agencies not to issue any (or a specified number of) specific licenses, and not to grant any other specific authority (or a specified number of authorities), to export any goods or technology to the specific foreign government, agency, instrumentality, or official found or determined by the President to be responsible for violations under section 6441 or 6442 of this title, under—

(A) the Export Administration Act of 1979;

(B) the Arms Export Control Act [22 U.S.C. 2751 et seq.];

(D) any other statute that requires the prior review and approval of the United States Government as a condition for the export or reexport of goods or services.

(14) Prohibiting any United States financial institution from making loans or providing credits totaling more than $10,000,000 in any 12-month period to the specific foreign government, agency, instrumentality, or official found or determined by the President to be responsible for violations under section 6441 or 6442 of this title.

(15) Prohibiting the United States Government from procuring, or entering into any contract for the procurement of, any goods or services from the foreign government, entities, or officials found or determined by the President to be responsible for violations under section 6441 or 6442 of this title.

(b) Commensurate action

Except as provided in subsection (d), the President may substitute any other action authorized by law for any action described in paragraphs (1) through (15) of subsection (a) if such action is commensurate in effect to the action substituted and if the action would further the policy of the United States set forth in section 6401(b) of this title. The President shall seek to take all appropriate and feasible actions authorized by law to obtain the cessation of the violations. If commensurate action is taken, the President shall report such action, together with an explanation for taking such action, to the appropriate congressional committees.

The President may negotiate and enter into a binding agreement with a foreign government that obligates such government to cease, or take substantial steps to address and phase out, the act, policy, or practice constituting the violation of religious freedom. The entry into force of a binding agreement for the cessation of the violations shall be a primary objective for the President in responding to a foreign government that has engaged in or tolerated particularly severe violations of religious freedom.

(d) Exceptions

Any action taken pursuant to subsection (a) or (b) may not prohibit or restrict the provision of medicine, medical equipment or supplies, food, or other humanitarian assistance.

(Pub. L. 105–292, title IV, § 405, Oct. 27, 1998, 112 Stat. 2806; Pub. L. 115–254, div. F, title VI, § 1470(o), Oct. 5, 2018, 132 Stat. 3518.)

§ 6446. Effects on existing contractsThe President shall not be required to apply or maintain any Presidential action under this part—

(1) in the case of procurement of defense articles or defense services—

(A) under existing contracts or subcontracts, including the exercise of options for production quantities, to satisfy requirements essential to the national security of the United States;

(B) if the President determines in writing and so reports to Congress that the person or other entity to which the Presidential action would otherwise be applied is a sole source supplier of the defense articles or services, that the defense articles or services are essential, and that alternative sources are not readily or reasonably available; or

(C) if the President determines in writing and so reports to Congress that such articles or services are essential to the national security under defense coproduction agreements; or

(2) to products or services provided under contracts entered into before the date on which the President publishes his intention to take the Presidential action.

(Pub. L. 105–292, title IV, § 406, Oct. 27, 1998, 112 Stat. 2808.)

§ 6447. Presidential waiver

(a) In general

Subject to subsection (c), the President may waive, for a single, 180-day period, the application of any of the actions described in paragraphs (9) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto) with respect to a country, if the President determines and so reports to the appropriate congressional committees that—

(1) the exercise of such waiver authority would further the purposes of this chapter; or

(2) the important national interest of the United States requires the exercise of such waiver authority.

(b) Additional authority

Subject to subsection (c), the President may waive, for any additional specified period of time after the 180-day period described in subsection (a), the application of any of the actions described in paragraphs (9) through (15) of section 6445(a) of this title (or a commensurate substitute action) with respect to a country, if the President determines and reports to the appropriate congressional committees that—

(1) the respective foreign government has ceased the violations giving rise to the Presidential action; or

(2) the important national interest of the United States requires the exercise of such waiver authority.

Not later than the date of the exercise of a waiver under subsection (a) or (b), the President shall notify the appropriate congressional committees of the waiver or the intention to exercise the waiver, together with a detailed justification thereof.

(d) Sense of Congress

It is the sense of Congress that—

(1) ongoing and persistent waivers of the application of any of the actions described in paragraphs (9) through (15) of section 6445(a) of this title (or commensurate substitute action) with respect to a country do not fulfill the purposes of this chapter; and

(2) because the promotion of religious freedom is an important interest of United States foreign policy, the President, the Secretary of State, and other executive branch officials, in consultation with Congress, should seek to find ways to address existing violations, on a case-by-case basis, through the actions described in section 6445 of this title or other commensurate substitute action.

(Pub. L. 105–292, title IV, § 407, Oct. 27, 1998, 112 Stat. 2808; Pub. L. 114–281, title III, § 304, Dec. 16, 2016, 130 Stat. 1435.)

§ 6448. Publication in Federal Register

(a) In general

Subject to subsection (b), the President shall cause to be published in the Federal Register the following:

(1) Determinations of governments, officials, and entities of particular concern

Any designation of a country of particular concern for religious freedom under section 6442(b)(1) of this title, together with, when applicable and to the extent practicable, the identities of the officials or entities determined to be responsible for the violations under section 6442(b)(2) of this title. Any designation of a non-state actor as an entity of particular concern for religious freedom under section 6442a of this title and, if applicable and to the extent practicable, the identities of individuals determined to be responsible for violations described in subsection (f) of such section.

(2) Presidential actions

A description of any Presidential action under paragraphs (9) through (15) of section 6445(a) of this title (or commensurate action in substitution thereto) and the effective date of the Presidential action.

(3) Delays in transmittal of Presidential action reports

Any delay in transmittal of a Presidential action report, as described in section 6444(b) of this title.

(4) Waivers

Any waiver under section 6447 of this title.

(b) Limited disclosure of information

The President may limit publication of information under this section in the same manner and to the same extent as the President may limit the publication of findings and determinations described in section 2414(c) of this title, if the President determines that the publication of information under this section—

(1) would be harmful to the national security of the United States; or

(2) would not further the purposes of this chapter.

(Pub. L. 105–292, title IV, § 408, Oct. 27, 1998, 112 Stat. 2808; Pub. L. 114–281, title III, § 305, Dec. 16, 2016, 130 Stat. 1436.)

§ 6449. Termination of Presidential actions

Any Presidential action taken under this chapter with respect to a foreign country shall terminate on the earlier of the following dates:

(1) Termination date

Within 2 years of the effective date of the Presidential action unless expressly reauthorized by law.

(2) Foreign government actions

Upon the determination by the President, in consultation with the Commission, and certification to Congress that the foreign government has ceased or taken substantial and verifiable steps to cease the particularly severe violations of religious freedom.

(Pub. L. 105–292, title IV, § 409, Oct. 27, 1998, 112 Stat. 2809.)

§ 6450. Preclusion of judicial review

No court shall have jurisdiction to review any Presidential determination or agency action under this chapter or any amendment made by this chapter.

(Pub. L. 105–292, title IV, § 410, Oct. 27, 1998, 112 Stat. 2809.)