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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2067 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  1st Session
                                S. 2067

  To amend the Tariff Act of 1930 to provide procedures for national 
security exclusion from the United States of articles or components of 
articles that contain, were produced using, benefit from, or use trade 
secrets misappropriated or acquired through improper means by a foreign 
       agent or foreign instrumentality, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             June 15, 2021

   Mr. Cornyn (for himself, Mr. Coons, and Mr. Young) introduced the 
 following bill; which was read twice and referred to the Committee on 
                                Finance

_______________________________________________________________________

                                 A BILL

 
  To amend the Tariff Act of 1930 to provide procedures for national 
security exclusion from the United States of articles or components of 
articles that contain, were produced using, benefit from, or use trade 
secrets misappropriated or acquired through improper means by a foreign 
       agent or foreign instrumentality, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Stopping and Excluding Chinese Rip-
offs and Exports with United States Trade Secrets Act of 2021'' or the 
``SECRETS Act of 2021''.

SEC. 2. NATIONAL SECURITY EXCLUSION FOR ARTICLES OR COMPONENTS OF 
              ARTICLES THAT CONTAIN, WERE PRODUCED USING, BENEFIT FROM, 
              OR USE TRADE SECRETS MISAPPROPRIATED OR ACQUIRED THROUGH 
              IMPROPER MEANS BY A FOREIGN AGENT OR FOREIGN 
              INSTRUMENTALITY.

    (a) National Security Exclusion.--Title III of the Tariff Act of 
1930 is amended by inserting after section 341 (19 U.S.C. 1341) the 
following:

``SEC. 342. NATIONAL SECURITY EXCLUSION FOR ARTICLES OR COMPONENTS OF 
              ARTICLES THAT CONTAIN, WERE PRODUCED USING, BENEFIT FROM, 
              OR USE TRADE SECRETS MISAPPROPRIATED OR ACQUIRED THROUGH 
              IMPROPER MEANS BY A FOREIGN AGENT OR FOREIGN 
              INSTRUMENTALITY.

    ``(a) In General.--Upon a determination under subsection (c)(1), 
and subject to the procedures required under subsection (d), the 
Commission shall direct the exclusion from the United States of, on the 
basis of national security, imports of articles that contain, were 
produced using, benefit from, or use any trade secret acquired through 
improper means or misappropriation by a foreign agent or foreign 
instrumentality.
    ``(b) Interagency Committee on Trade Secrets.--
            ``(1) In general.--There is established an Interagency 
        Committee on Trade Secrets (in this section referred to as the 
        `Committee') to carry out the review and submission of 
        allegations under paragraph (5) and such other duties as the 
        President may designate as necessary to carry out this section.
            ``(2) Membership.--
                    ``(A) In general.--The Committee shall be comprised 
                of the following voting members (or the designee of any 
                such member):
                            ``(i) The Secretary of the Treasury.
                            ``(ii) The Secretary of Homeland Security.
                            ``(iii) The Secretary of Commerce.
                            ``(iv) The Attorney General.
                            ``(v) The Intellectual Property Enforcement 
                        Coordinator.
                            ``(vi) The United States Trade 
                        Representative.
                            ``(vii) The head of such other Federal 
                        agency or other executive office as the 
                        President determines appropriate, generally or 
                        on a case-by-case basis.
                    ``(B) Director of national intelligence.--
                            ``(i) In general.--The Director of National 
                        Intelligence shall serve as an ex officio, 
                        nonvoting member of the Committee.
                            ``(ii) Notice.--The Director of National 
                        Intelligence shall be provided with all notices 
                        received by the Committee regarding allegations 
                        under paragraph (5) but shall serve no policy 
                        role on the Committee other than to provide 
                        analysis unless serving on the Committee under 
                        subparagraph (A)(vii).
            ``(3) Chairperson.--The Attorney General shall serve as the 
        chairperson of the Committee.
            ``(4) Meetings.--The Committee shall meet upon the 
        direction of the President or upon the call of the chairperson, 
        without regard to section 552b of title 5, United States Code 
        (if otherwise applicable).
            ``(5) Unfair trade practice review.--The Committee shall--
                    ``(A) review upon complaint under oath by the owner 
                of a trade secret or on its own initiative any 
                allegations that an article imported or to be imported 
                into the United States is a covered article; and
                    ``(B) if the Committee decides to proceed with 
                those allegations, submit to the Commission a report 
                including those allegations.
    ``(c) Ex Parte Preliminary Review, Investigation, and 
Determination.--
            ``(1) Ex parte preliminary review.--Not later than 30 days 
        after receipt of an allegation contained in a report under 
        subsection (b)(5)(B) with respect to an article imported or to 
        be imported into the United States, the Commission shall 
        conduct a confidential, ex parte, preliminary review to 
        determine whether there is a reasonable indication the article 
        is more likely than not a covered article.
            ``(2) Investigation.--
                    ``(A) In general.--Not later than 150 days after an 
                affirmative determination under paragraph (1), the 
                Commission shall conduct an ex parte, in-depth 
                investigation, which may include a hearing at the 
                discretion of the Commission, to consider if that 
                determination should be extended under paragraph (3).
                    ``(B) Analysis by director of national 
                intelligence.--
                            ``(i) In general.--As part of an 
                        investigation conducted under subparagraph (A) 
                        with respect to an allegation contained in a 
                        report under subsection (b)(5)(B), the Director 
                        of National Intelligence, at the request of the 
                        Commission, shall expeditiously carry out a 
                        thorough analysis of the allegation and shall 
                        incorporate the views of appropriate 
                        intelligence agencies with respect to the 
                        allegation.
                            ``(ii) Timing.--Not later than 20 days 
                        after the date on which the Commission begins 
                        an investigation under subparagraph (A), the 
                        Director of National Intelligence shall submit 
                        to the Commission the analysis requested under 
                        clause (i).
                            ``(iii) Supplementation or amendment.--Any 
                        analysis submitted under clause (i) may be 
                        supplemented or amended as the Director of 
                        National Intelligence considers necessary or 
                        appropriate or upon request by the Commission 
                        for additional information.
                            ``(iv) Beginning of analysis before 
                        investigation.--The Director of National 
                        Intelligence may begin an analysis under clause 
                        (i) of an allegation contained in a report 
                        under subsection (b)(5)(B) before investigation 
                        by the Commission of the allegation under 
                        subparagraph (A), in accordance with applicable 
                        law.
            ``(3) Extension, modification, or termination.--
                    ``(A) In general.--The Commission may extend, 
                modify, or terminate a determination under paragraph 
                (1) for good cause and as necessary and appropriate, as 
                determined by the Commission in consultation with the 
                Committee and based on the findings of the 
                investigation conducted under paragraph (2).
                    ``(B) Reconsideration.--The Commission shall 
                reconsider any extension, modification, or termination 
                under subparagraph (A) of a determination under 
                paragraph (1) upon the request of the Committee.
            ``(4) Consideration.--In conducting a preliminary review 
        under paragraph (1) or an investigation under paragraph (2) 
        with respect to an article, the Commission may consider the 
        following:
                    ``(A) If the article contains, was produced using, 
                benefits from, or uses any trade secret acquired 
                through improper means or misappropriation by a foreign 
                agent or foreign instrumentality.
                    ``(B) The national security and policy interests of 
                the United States, as established by the Committee for 
                purposes of this section.
            ``(5) Disclosure of confidential information.--
                    ``(A) In general.--Information submitted to the 
                Commission or exchanged among the interested persons in 
                connection with a preliminary review under paragraph 
                (1) or an investigation under paragraph (2), including 
                by the owner of the trade secret with respect to which 
                the review or investigation is connected, may not be 
                disclosed (except under a protective order issued under 
                regulations of the Commission that authorizes limited 
                disclosure of such information) to any person other 
                than a person described in subparagraph (B).
                    ``(B) Exception.--Notwithstanding the prohibition 
                under subparagraph (A), information described in that 
                subparagraph may be disclosed to--
                            ``(i) an officer or employee of the 
                        Commission who is directly concerned with--
                                    ``(I) carrying out the preliminary 
                                review, investigation, or related 
                                proceeding in connection with which the 
                                information is submitted;
                                    ``(II) the administration or 
                                enforcement of a national security 
                                exclusion order issued under subsection 
                                (d);
                                    ``(III) a proceeding for the 
                                modification or rescission of a 
                                national security exclusion order 
                                issued under subsection (d); or
                                    ``(IV) maintaining the 
                                administrative record of the 
                                preliminary review, investigation, or 
                                related proceeding;
                            ``(ii) an officer or employee of the United 
                        States Government who is directly involved in 
                        the review under subsection (d)(2); or
                            ``(iii) an officer or employee of U.S. 
                        Customs and Border Protection who is directly 
                        involved in administering an exclusion from 
                        entry under subsection (d) resulting from the 
                        preliminary review, investigation, or related 
                        proceeding in connection with which the 
                        information is submitted.
            ``(6) Publication of results.--Not later than 30 days after 
        a determination under paragraph (1) or an extension under 
        paragraph (3), the Commission shall publish notice of the 
        determination or extension, as the case may be, in the Federal 
        Register.
            ``(7) Designation of lead agency from committee.--
                    ``(A) In general.--The Attorney General shall 
                designate, as appropriate, a Federal agency or agencies 
                represented on the Committee to be the lead agency or 
                agencies on behalf of the Committee for each action 
                under paragraphs (1) through (3).
                    ``(B) Duties.--The duties of the lead agency or 
                agencies designated under subparagraph (A), with 
                respect to an action under paragraphs (1) through (3), 
                shall include assisting in the action and coordinating 
                activity between the Committee and the Commission.
            ``(8) Consultation.--
                    ``(A) In general.--In conducting an action under 
                paragraphs (1) through (3), the Commission shall 
                consult with the heads of such other Federal agencies 
                (or their designees) as the Commission determines 
                appropriate on the basis of the facts and circumstances 
                of the action.
                    ``(B) Cooperation.--The heads of Federal agencies 
                consulted under subparagraph (A) for an action, and the 
                agency or agencies designated under paragraph (7)(A), 
                shall cooperate with the Commission in conducting the 
                action, including by--
                            ``(i) producing documents and witnesses for 
                        testimony; and
                            ``(ii) assisting with any complaint or 
                        report or any analysis by the Committee.
            ``(9) Interaction with intelligence community.--The 
        Director of National Intelligence shall ensure that the 
        intelligence community (as defined in section 3 of the National 
        Security Act of 1947 (50 U.S.C. 3003)) remains engaged in the 
        collection, analysis, and dissemination to the Commission of 
        any additional relevant information that may become available 
        during the course of any action conducted under paragraphs (1) 
        through (3).
            ``(10) Rule of construction regarding submission of 
        additional information.--Nothing in this subsection shall be 
        construed as prohibiting any interested person to an allegation 
        described in subsection (b)(5) from submitting additional 
        information concerning the allegation while an action under 
        paragraphs (1) through (3) with respect to the allegation is 
        ongoing.
    ``(d) Procedures for National Security Exclusion.--
            ``(1) In general.--If the Commission determines under 
        subsection (c)(1) that it is more likely than not that an 
        article to be imported into the United States is a covered 
        article, not later than 30 days after receipt of the allegation 
        described in that subsection with respect to that 
        determination, the Commission shall--
                    ``(A) direct through an order that the article 
                concerned be excluded from entry into the United States 
                under subsection (a); and
                    ``(B) notify the President of that determination.
            ``(2) Presidential review.--If, before the end of the 15-
        day period beginning on the day after the date on which the 
        President is notified under paragraph (1)(B) of the 
        determination of the Commission under subsection (c)(1), the 
        President disapproves of that determination and notifies the 
        Commission of that disapproval, effective on the date of that 
        notice, that determination shall have no force or effect.
            ``(3) Action by secretary of the treasury.--
                    ``(A) Notification.--Upon expiration of the 15-day 
                period described in paragraph (2), or notification from 
                the President of approval of the determination of the 
                Commission under subsection (c)(1) before the 
                expiration of that period, the Commission shall notify 
                the Secretary of the Treasury and the Secretary of 
                Homeland Security of its action under subsection (a) to 
                direct the exclusion of covered articles from entry.
                    ``(B) Refusal of entry.--Upon receipt of notice 
                under subparagraph (A) regarding the exclusion of 
                covered articles from entry, the Secretary of the 
                Treasury and the Secretary of Homeland Security shall 
                refuse the entry of those articles.
            ``(4) Continuation in effect.--Any exclusion from entry of 
        covered articles under subsection (a) shall continue in effect 
        until the Commission--
                    ``(A) determines that the conditions that led to 
                such exclusion from entry do not exist; and
                    ``(B) notifies the Secretary of the Treasury and 
                the Secretary of Homeland Security of that 
                determination.
            ``(5) Modification or rescission.--
                    ``(A) In general.--An interested person may 
                petition the Commission for a modification or 
                rescission of an exclusion order under subsection (a).
                    ``(B) Revisitation of exclusion.--The Commission 
                may modify or rescind the exclusion at any time at the 
                discretion of the Commission.
                    ``(C) Burden of proof.--The burden of proof in any 
                proceeding before the Commission regarding a petition 
                made by an interested person under subparagraph (A) 
                shall be on the interested person.
                    ``(D) Relief.--A modification or rescission for 
                which a petition is made under subparagraph (A) may be 
                granted by the Commission--
                            ``(i) on the basis of new evidence or 
                        evidence that could not have been presented at 
                        the prior proceeding; or
                            ``(ii) on grounds that would permit relief 
                        from a judgment or order under the Federal 
                        Rules of Civil Procedure.
                    ``(E) Evidentiary standard.--A modification or 
                rescission may be made under subparagraph (A) if an 
                interested person provides to the Commission clear and 
                convincing evidence that such a modification or 
                rescission should be made.
    ``(e) Civil Actions.--
            ``(1) In general.--A civil action challenging a 
        determination by the Commission under subsection (a) may be 
        brought only--
                    ``(A) in the United States Court of Appeals for the 
                Federal Circuit; and
                    ``(B) not later than 60 days after a petition for 
                modification or rescission under subsection (d)(5) with 
                respect to that determination has been conclusively 
                decided.
            ``(2) Procedures for review of privileged information.--If 
        a civil action challenging an determination under subsection 
        (a) is brought under paragraph (1) and the court determines 
        that protected information in the administrative record, 
        including classified or other information subject to privilege 
        or protections under law, is necessary to resolve the 
        challenge, that information shall be submitted ex parte and in 
        camera to the court and the court shall maintain that 
        information under seal.
            ``(3) Applicability of use of information provisions.--The 
        use of information provisions of sections 106, 305, 405, and 
        706 of the Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1806, 1825, 1845, and 1881e) shall not apply in a civil 
        action challenging an investigation or determination under this 
        subsection.
    ``(f) Inapplicability of the Administrative Procedure Act.--
            ``(1) In general.--The requirements of subchapter II of 
        chapter 5 of title 5, United States Code, shall not apply to--
                    ``(A) an action conducted by the Commission under 
                paragraphs (1) through (3) of subsection (c); or
                    ``(B) the procedures for exclusion under paragraphs 
                (4) and (5) of subsection (d).
            ``(2) Adjudication.--Any adjudication under this section 
        shall not be subject to the requirements of sections 554, 556, 
        and 557 of title 5, United States Code.
    ``(g) Freedom of Information Act Exception.--Section 552 of title 
5, United States Code (commonly referred to as the `Freedom of 
Information Act'), shall not apply to the activities conducted under 
this section.
    ``(h) Exclusion.--Any exclusion under this section shall not be 
subject to section 1581 of title 28, United States Code.
    ``(i) Regulations.--The Commission may prescribe such regulations 
as the Commission considers necessary and appropriate to carry out this 
section.
    ``(j) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.
    ``(k) Definitions.--In this section:
            ``(1) Article.--The term `article' includes any article or 
        component of an article.
            ``(2) Covered article.--The term `covered article' means an 
        article subject to exclusion from the United States under 
        subsection (a).
            ``(3) Foreign agent; foreign instrumentality; improper 
        means; misappropriation; owner; trade secret.--The terms 
        `foreign agent', `foreign instrumentality', `improper means', 
        `misappropriation', `owner', and `trade secret' have the 
        meanings given those terms in section 1839 of title 18, United 
        States Code.
            ``(4) Interested person.--The term `interested person', 
        with respect to an allegation under subsection (b)(5), means a 
        person named in the allegation or otherwise identified by the 
        Commission as having a material interest with respect to the 
        allegation.''.
    (b) Clerical Amendment.--The table of contents for the Tariff Act 
of 1930 is amended by inserting after the item relating to section 341 
the following:

``Sec. 342. National security exclusion for articles or components of 
                            articles that contain, were produced using, 
                            benefit from, or use trade secrets 
                            misappropriated or acquired through 
                            improper means by a foreign agent or 
                            foreign instrumentality.''.
                                 <all>
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