Stop Stealing our Chips Act
Officially: “Stop Stealing our Chips Act” Read the full text
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Section 1Short title
This section says the Act may be called the 'Stop Stealing our Chips Act.'
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1. Short title This Act may be cited as the Stop Stealing our Chips Act .
Section 2Findings
This section lists three findings by Congress: that violations of United States export control laws, especially the diversion of leading edge artificial intelligence chips into countries that are adversaries of the United States, threaten the national security of the United States; that individuals who accurately report violations of export control laws play a significant role in helping authorities identify and address such threats; and that an incentive program rewarding whistleblowers can significantly improve enforcement by encouraging individuals to provide high-value information about potential violations.
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2. Findings Congress finds the following: (1) Violations of the export control laws of the United States, especially the diversion of leading-edge artificial intelligence chips into countries that are adversaries of the United States, threaten the national security of the United States. (2) Individuals who accurately report violations of United States export control laws play a significant role in helping authorities identify and mitigate such threats. (3) An incentive program that rewards whistleblowers can significantly enhance enforcement efforts by encouraging individuals to provide high-value information on potential violations.
Section 3Establishment of Whistleblower Incentive Program and Whistleblower Protections
This section would insert a new section, numbered 1761A, into the Export Control Reform Act of 2018 right after the existing section 1761. The new section creates a whistleblower incentive program and whistleblower protections for people who report export control violations, and it sets up a dedicated fund to pay for both. It defines two key terms. 'Original information' means information that meets all of the following: it comes from the whistleblower's own independent knowledge or analysis; the Secretary did not already know it from another source; it is not based solely on an allegation already made in a judicial or administrative hearing, a government report, hearing, audit, or investigation, or in news media, unless the whistleblower was the source of that original allegation; and the whistleblower gives it to the Secretary voluntarily, without the Secretary or any other government official asking for it. 'Whistleblower' means any individual, including someone who is not a United States citizen, who gives the Secretary information about a possible violation of the export control part of the law or of a related regulation, order, license, or other authorization; two or more individuals who jointly provide such information together count as a whistleblower too. The term does not include a federal employee acting within the scope of the employee's duties, or an individual on the Treasury Department's Office of Foreign Assets Control list of specially designated nationals and blocked persons.
Within 120 days after enactment, the Secretary would have to set up a whistleblower incentive program to reward individuals whose original information leads to fines being imposed on people or entities that violate, attempt to violate, conspire to violate, or cause a violation of the export control part or a related regulation, order, license, or authorization. Within that same 120 days, the Secretary would also have to build and maintain a secure, publicly accessible online portal for submitting this kind of information. As an alternative to the portal, a whistleblower could submit a report anonymously, including through an attorney, though the Secretary could require the whistleblower's identity to be disclosed before paying an award. When the Secretary receives a report, the Secretary would have 60 days to decide whether it is credible and, if so, to open a formal investigation. Unless the Secretary decides the investigation is particularly complex, the Secretary would have to finish it within 180 days of opening it. The Secretary would have to update the whistleblower on the status of the report, and of any investigation, within 30 days of the report being submitted and at least every 30 days after that, though the Secretary could leave out information that could compromise an ongoing investigation. The Secretary could also bar an individual from submitting further reports if that individual had already submitted multiple reports that the Secretary found were not credible.
The Secretary could pay an award to a whistleblower whose original information led to a fine being imposed on a violator. But the Secretary could not pay an award if the whistleblower obtained the information through certain disqualifying roles: acting as an officer, director, trustee, or partner of an entity that handles that violator's internal legal-violation processes; working as an employee of an entity that does compliance or internal audit work for the violator; working as an employee of a public accounting firm and obtaining the information while working on an engagement required by federal securities laws, other than specific audits; or obtaining the information through any means that violates federal or state criminal law. These disqualifications would not apply if the whistleblower reasonably believed reporting the information to the Secretary was necessary to stop conduct likely to cause significant financial harm, or reasonably believed the entity was obstructing an investigation into the misconduct, or if at least 120 days had passed since the whistleblower gave the information to the entity's audit committee, chief legal officer, chief compliance officer or their equivalent, or to the whistleblower's own supervisor. Any award would have to total at least 10 percent and no more than 30 percent of the amount of the fine actually collected; if two or more individuals jointly submitted the report, the award would be split equally among them. In setting the award amount, the Secretary would have to consider how accurate, relevant, timely, and useful the information was. By the time the online portal is complete, the Secretary would also have to develop and carry out a plan to publicize the whistleblower incentive program, paying for it out of funds authorized to be appropriated to the Bureau of Industry and Security (an authorization ceiling, not money already on hand).
The new section would also bar an employer from discharging, demoting, suspending, threatening, harassing directly or indirectly, or otherwise discriminating against a whistleblower in the terms or conditions of employment because the whistleblower lawfully reported violations to the employer or to a law enforcement agency, provided information to the Secretary under this section, or initiated, testified in, or assisted an investigation or a judicial or administrative action based on that information. This protection would not apply to someone who reports information knowing it is false. A whistleblower who claims this protection was violated could sue in the appropriate United States district court, and a subpoena for a witness at the resulting trial or hearing could be served anywhere in the United States. Such a lawsuit would have to be filed within 6 years of the violation or, if that is later, within 3 years of when the employee knew or reasonably should have known the facts underlying the claim, but never more than 10 years after the violation occurred under any circumstance. A whistleblower who won such a case would be entitled to reinstatement at the same seniority level the whistleblower would otherwise have had, twice the back pay owed with interest, and payment of litigation costs, expert witness fees, and reasonable attorneys' fees.
The Secretary and any officer or employee of the Department of Commerce would generally be barred from disclosing information, including information a whistleblower provided, that could reasonably be expected to reveal the whistleblower's identity, except as allowed under the Privacy Act (5 U.S.C. 552a), or unless disclosure to a defendant or respondent becomes required in a public proceeding brought by the Secretary or by one of the government entities described below. For purposes of the Freedom of Information Act, this confidentiality requirement would count as a statute that exempts the information from disclosure. Nothing in the new section would limit the Attorney General's ability to present such evidence to a grand jury or share it with potential witnesses or defendants during an ongoing criminal investigation. At the Secretary's discretion, and only when the Secretary determines it is necessary to carry out the purposes of the export control part or a related regulation, order, license, or authorization, the confidential information could be shared, without losing its confidential status, with a federal law enforcement agency, a national security agency, an appropriate regulatory authority, a self-regulatory organization, or a foreign law enforcement authority. The federal law enforcement agency, national security agency, regulatory authority, and self-regulatory organization would each have to keep the information confidential under the same standard that applies to the Secretary, while a foreign law enforcement authority would have to keep it confidential under whatever assurances the Secretary determines are appropriate.
The new section would also create, within 90 days after enactment, a fund in the United States Treasury called the Export Compliance Accountability Fund. At the end of each fiscal year, any money in the Fund left over after that year's expenses are paid would be transferred to the Treasury's general fund. Without needing a further appropriation or being limited to a single fiscal year, the Fund would be available to the Secretary to pay whistleblower awards; to fund activities supporting the program, including reviewing and investigating whistleblower reports, providing training and education on the confidentiality requirement, and record keeping the Secretary considers necessary; and, once all outstanding awards have been paid, to pay for enforcement of the export control part or a related regulation, order, license, or authorization. Any fine the Secretary collects on or after enactment, in a judicial or administrative action that depends on or was started because of original information from a whistleblower, would be deposited into or credited to the Fund. Until the Fund is established and has received deposits, the Secretary would pay any expenses arising under this new section out of amounts otherwise available to the Bureau of Industry and Security.
This section would also amend section 1402(b)(1)(B) of the Victims of Crime Act of 1984 (34 U.S.C. 20101(b)(1)(B)), which lists items in a series. It would change the punctuation at the end of clause (iii) from '; and' to a plain semicolon, change the punctuation at the end of clause (iv) from a semicolon to '; and', and add a new clause (v) that reads: 'the Export Compliance Accountability Fund pursuant to section 1761A(e) of the Export Control Reform Act of 2018.'
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3. Establishment of Whistleblower Incentive Program and Whistleblower Protections (a) In general The Export Control Reform Act of 2018 ( 50 U.S.C. 4801 et seq. ) is amended by inserting after section 1761 the following: 1761A. Whistleblower Incentives and Protections (a) Definitions In this section: (1) Original information The term original information means information that is— (A) derived from the independent knowledge or analysis of a whistleblower; (B) not known to the Secretary from any other source; (C) not exclusively derived from an allegation made in a judicial or administrative hearing, a governmental report, hearing, audit, or investigation, or from news media, unless the whistleblower is the source of such allegation; and (D) provided to the Secretary voluntarily, without any request from the Secretary or any other government official. (2) Whistleblower (A) In general The term whistleblower means, except as provided by subparagraph (B), any individual (including an individual who is not a United States citizen) who provides, or 2 or more such individuals acting jointly who provide, to the Secretary information relating to a possible violation of this part or of any regulation, order, license, or other authorization issued under this part. (B) Exclusions The term whistleblower does not include— (i) a Federal employee acting within the scope of the duties of the employee; or (ii) an individual on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury. (b) Whistleblower Incentive Program (1) Establishment Not later than 120 days after the date of the enactment of this section, the Secretary shall establish a whistleblower incentive program to reward individuals who provide original information that leads to the imposition of fines under this part on persons that violate, attempt to violate, conspire to violate, or cause a violation of this part or any regulation, order, license, or other authorization issued under this part. (2) Whistleblower reports (A) Online portal Not later than 120 days after the date of the enactment of this section, the Secretary shall develop, implement, and maintain a secure portal, on a website accessible to the public, for the reporting of original information relating to persons that violate, attempt to violate, conspire to violate, or cause a violation of this part or any regulation, order, license, or other authorization issued under this part. (B) Anonymity (i) In general As an alternative to submission through the portal required by subparagraph (A), an individual may submit a report of original information under this subsection anonymously, including through an attorney. (ii) Exception The Secretary may require that the identity of an individual be disclosed for the individual to receive an award under paragraph (3). (C) Expedited review (i) Initial review Not later than 60 days after the date of receipt of a report from a whistleblower, the Secretary shall— (I) determine whether the report is credible; and (II) if credible, initiate a formal investigation of the allegations contained in the report. (ii) Investigation Unless the Secretary determines that the investigation is particularly complex, the Secretary shall conclude the investigation not later than 180 days after the date on which a formal investigation has been initiated under clause (i). (iii) Notification (I) In general The Secretary shall update the whistleblower on the status of a report and, if applicable, the related investigation not later than 30 days after the date on which the whistleblower submitted the report and not less frequently than every 30 days thereafter. (II) Sensitive information The Secretary may omit from the updates required by subclause (I) any information that could compromise an ongoing investigation. (D) Avoidance of frivolous reports The Secretary may prohibit an individual from making reports under this subsection if the individual has previously submitted multiple reports under this subsection that the Secretary determined under subparagraph (C)(i) were not credible. (3) Awards (A) Eligibility Subject to subparagraph (B), the Secretary may pay an award or awards to any whistleblower who provided original information that led to the imposition of a fine under this part on a person or persons that violated, attempted to violate, conspired to violate, or caused a violation of this part or any regulation, order, license, or other authorization issued under this part. (B) Disqualification (i) In general Subject to clause (ii), the Secretary may not pay an award or awards to any whistleblower who provides original information with respect to a person or persons that violated, attempted to violate, conspired to violate, or caused a violation of this part or any regulation, order, license, or other authorization issued under this part, if such information was obtained through— (I) the role of the whistleblower as— (aa) an officer, director, trustee, or partner of an entity that handles internal processes for legal violations for the person or persons; (bb) an employee of an entity that conducts compliance or internal audits for the person or persons; (cc) an employee of a public accounting firm if the information was obtained while working on an engagement required by Federal securities laws, other than specific audits; or (II) any means that violates Federal or State criminal law. (ii) Exceptions Clause (i) shall not apply if— (I) the whistleblower had a reasonable basis to believe that disclosing the original information to the Secretary was necessary to stop conduct likely to cause significant financial harm; (II) the whistleblower had a reasonable basis to believe that the relevant entity was obstructing an investigation into the misconduct; or (III) not less than 120 days have elapsed since the whistleblower provided the information to the audit committee, chief legal officer, chief compliance officer (or their equivalent) of the relevant entity or the supervisor of the whistleblower. (C) Amount (i) In general An award issued under subparagraph (A) shall be— (I) not less than 10 percent, in total, of the amount collected of the fine imposed under this part; and (II) not more than 30 percent, in total, of the amount collected of that fine. (ii) Jointly submitted report In the case of a report that was submitted jointly by 2 or more individuals, any award issued under subparagraph (A) shall be split equally among the individuals. (D) Determination The Secretary shall determine the amount of an award made under subparagraph (A) taking into account, with respect to the information provided— (i) accuracy; (ii) relevance; (iii) timeliness; and (iv) usefulness. (4) Publication (A) In general Not later than the date on which the online portal required by paragraph (2)(A) is complete, the Secretary shall develop and implement a plan to publicize the whistleblower incentive program established by paragraph (1). (B) Funding The Secretary shall pay any expenses incurred under subparagraph (A) from amounts authorized to be appropriated to the Bureau of Industry and Security. (c) Protection of whistleblowers (1) Prohibition against retaliation (A) In general Except as provided in subparagraph (B), no employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against a whistleblower in the terms and conditions of employment because of a lawful act done by the whistleblower— (i) in reporting violations to the employer or to a law enforcement agency; (ii) in providing information to the Secretary in accordance with this section; or (iii) in initiating, testifying in, or assisting in any investigation or judicial or administrative action based upon or related to such information. (B) Exception The protection against retaliation established by subparagraph (A) shall not apply to any individual who reports information under this section knowing that such information is false. (C) Enforcement (i) Cause of action An individual who alleges discharge or other discrimination in violation of subparagraph (A) may bring an action under this paragraph in the appropriate district court of the United States for the relief provided in subparagraph (D). (ii) Subpoenas A subpoena requiring the attendance of a witness at a trial or hearing conducted under this subparagraph may be served at any place in the United States. (iii) Statute of limitations (I) In general An action under this subparagraph shall not be entertained if commenced more than— (aa) 6 years after the date of the violation of subparagraph (A) occurred; or (bb) 3 years after the date when facts material to the right of action are known or reasonably should have been known by the employee alleging a violation of subparagraph (A). (II) Required action within 10 years Notwithstanding subclause (I), an action under this subparagraph may not in any circumstance be brought more than 10 years after the date on which the violation occurs. (D) Relief Relief for an individual prevailing in an action brought under subparagraph (C) shall include— (i) reinstatement with the same seniority status that the individual would have had, but for the discrimination; (ii) 2 times the amount of back pay otherwise owed to the individual, with interest; and (iii) compensation for litigation costs, expert witness fees, and reasonable attorneys' fees. (2) Confidentiality (A) In general Except as provided in subparagraphs (B) and (C), the Secretary and any officer or employee of the Department of Commerce shall not disclose any information, including information provided by a whistleblower to the Secretary, that could reasonably be expected to reveal the identity of the whistleblower, except in accordance with the provisions of section 552a of title 5, United States Code, unless and until required to be disclosed to a defendant or respondent in connection with a public proceeding instituted by the Secretary or any entity described in subparagraph (D). (B) Exempted statute For purposes of section 552 of title 5, United States Code, this paragraph shall be considered a statute described in subsection (b)(3)(B) of such section. (C) Rule of construction Nothing in this section is intended to limit, or shall be construed to limit, the ability of the Attorney General to present such evidence to a grand jury or to share such evidence with potential witnesses or defendants in the course of an ongoing criminal investigation. (D) Availability to government agencies (i) In general Without the loss of its status as confidential in the hands of the Secretary, all information referred to in subparagraph (A) may, in the discretion of the Secretary, when determined by the Secretary to be necessary to accomplish the purposes of this part or any regulation, order, license, or other authorization issued under this part, be made available to— (I) a Federal law enforcement agency; (II) a national security agency; (III) an appropriate regulatory authority; (IV) a self-regulatory organization; and (V) a foreign law enforcement authority. (ii) Confidentiality (I) In general Each of the entities described in subclauses (I) through (IV) of clause (i) shall maintain such information as confidential in accordance with the requirements established under subparagraph (A). (II) Foreign authorities Each of the entities described in clause (i)(V) shall maintain such information in accordance with such assurances of confidentiality as the Secretary determines appropriate. (d) Export Compliance Accountability Fund (1) Establishment Not later than 90 days after the date of the enactment of this section, there shall be established in the Treasury of the United States a fund to be known as the Export Compliance Accountability Fund (in this subsection referred to as the Fund ). (2) Availability At the end of each fiscal year, any amounts deposited into the Fund under paragraph (3) that remain in the Fund after the payment, for that fiscal year, of all expenses under paragraph (3) shall be transferred to the general fund of the Treasury. (3) Use of Fund The Fund shall be available to the Secretary, without further appropriation or fiscal year limitation, for— (A) paying awards to whistleblowers as provided in subsection (b)(3); (B) funding activities that support the whistleblower incentive program and whistleblower protections, including— (i) reviewing and investigating whistleblower reports; (ii) providing training and education on compliance with the confidentiality requirement under subsection (c)(2); and (iii) record keeping, as considered necessary by the Secretary; and (C) if all outstanding awards under subsection (b)(3) have been paid, expenses related to enforcement of this part or any regulation, order, license, or other authorization issued under this part. (4) Deposits and credits There shall be deposited into or credited to the Fund an amount equal to any fine collected by the Secretary on or after the date of the enactment of this section in any judicial or administrative action brought by the Secretary that depends on or was initiated because of original information submitted by a whistleblower. (e) Initial funding The Secretary shall pay, from amounts otherwise available to the Bureau of Industry and Security, any expenses incurred under this section before the Export Compliance Accountability Fund is established under subsection (d) and has received deposits under paragraph (3) of that subsection. . (b) Conforming amendment Section 1402(b)(1)(B) of the Victims of Crime Act of 1984 ( 34 U.S.C. 20101(b)(1)(B) ) is amended— (1) in clause (iii), by striking ; and and inserting a semicolon; (2) in clause (iv), by striking the semicolon and inserting ; and ; and (3) by adding at the end the following; (v) the Export Compliance Accountability Fund pursuant to section 1761A(e) of the Export Control Reform Act of 2018. .
Where it is
In the Senate.