II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Stopping and Exclud5 ing Chinese Rip-offs and Exports with United States 


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1 Trade Secrets Act of 2021’’ or the ‘‘SECRETS Act of 

2 2021’’. 

3 SEC. 2. NATIONAL SECURITY EXCLUSION FOR ARTICLES OR 

4 COMPONENTS OF ARTICLES THAT CONTAIN, 

5 WERE PRODUCED USING, BENEFIT FROM, OR 

6 USE TRADE SECRETS MISAPPROPRIATED OR 

7 ACQUIRED THROUGH IMPROPER MEANS BY A 

8 FOREIGN AGENT OR FOREIGN INSTRUMEN9 TALITY. 

10 (a) NATIONAL SECURITY EXCLUSION.—Title III of 

11 the Tariff Act of 1930 is amended by inserting after sec12 tion 341 (19 U.S.C. 1341) the following: 

13 ‘‘SEC. 342. NATIONAL SECURITY EXCLUSION FOR ARTICLES 

14 OR COMPONENTS OF ARTICLES THAT CON15 TAIN, WERE PRODUCED USING, BENEFIT 

16 FROM, OR USE TRADE SECRETS MISAPPRO17 PRIATED OR ACQUIRED THROUGH IM18 PROPER MEANS BY A FOREIGN AGENT OR 

19 FOREIGN INSTRUMENTALITY. 

20 ‘‘(a) IN GENERAL.—Upon a determination under 

21 subsection (c)(1), and subject to the procedures required 

22 under subsection (d), the Commission shall direct the ex23 clusion from the United States of, on the basis of national 

24 security, imports of articles that contain, were produced 

25 using, benefit from, or use any trade secret acquired 


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1 through improper means or misappropriation by a foreign 

2 agent or foreign instrumentality. 

3 ‘‘(b) INTERAGENCY COMMITTEE ON TRADE SE4 CRETS.— 

5 ‘‘(1) IN GENERAL.—There is established an 

6 Interagency Committee on Trade Secrets (in this 

7 section referred to as the ‘Committee’) to carry out 

8 the review and submission of allegations under para9 graph (5) and such other duties as the President 

10 may designate as necessary to carry out this section. 

11 ‘‘(2) MEMBERSHIP.— 

12 ‘‘(A) IN GENERAL.—The Committee shall 

13 be comprised of the following voting members 

14 (or the designee of any such member): 

15 ‘‘(i) The Secretary of the Treasury. 

16 ‘‘(ii) The Secretary of Homeland Se17 curity. 

18 ‘‘(iii) The Secretary of Commerce. 

19 ‘‘(iv) The Attorney General. 

20 ‘‘(v) The Intellectual Property En21 forcement Coordinator. 

22 ‘‘(vi) The United States Trade Rep23 resentative. 

24 ‘‘(vii) The head of such other Federal 

25 agency or other executive office as the 


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1 President determines appropriate, gen2 erally or on a case-by-case basis. 

3 ‘‘(B) DIRECTOR OF NATIONAL INTEL4 LIGENCE.— 

5 ‘‘(i) IN GENERAL.—The Director of 

6 National Intelligence shall serve as an ex 

7 officio, nonvoting member of the Com8 mittee. 

9 ‘‘(ii) NOTICE.—The Director of Na10 tional Intelligence shall be provided with 

11 all notices received by the Committee re12 garding allegations under paragraph (5) 

13 but shall serve no policy role on the Com14 mittee other than to provide analysis un15 less serving on the Committee under sub16 paragraph (A)(vii). 

17 ‘‘(3) CHAIRPERSON.—The Attorney General 

18 shall serve as the chairperson of the Committee. 

19 ‘‘(4) MEETINGS.—The Committee shall meet 

20 upon the direction of the President or upon the call 

21 of the chairperson, without regard to section 552b of 

22 title 5, United States Code (if otherwise applicable). 

23 ‘‘(5) UNFAIR TRADE PRACTICE REVIEW.—The 

24 Committee shall— 


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1 ‘‘(A) review upon complaint under oath by 

2 the owner of a trade secret or on its own initia3 tive any allegations that an article imported or 

4 to be imported into the United States is a cov5 ered article; and 

6 ‘‘(B) if the Committee decides to proceed 

7 with those allegations, submit to the Commis8 sion a report including those allegations. 

9 ‘‘(c) EX PARTE PRELIMINARY REVIEW, INVESTIGA10 TION, AND DETERMINATION.— 

11 ‘‘(1) EX PARTE PRELIMINARY REVIEW.—Not 

12 later than 30 days after receipt of an allegation con13 tained in a report under subsection (b)(5)(B) with 

14 respect to an article imported or to be imported into 

15 the United States, the Commission shall conduct a 

16 confidential, ex parte, preliminary review to deter17 mine whether there is a reasonable indication the ar18 ticle is more likely than not a covered article. 

19 ‘‘(2) INVESTIGATION.— 

20 ‘‘(A) IN GENERAL.—Not later than 150 

21 days after an affirmative determination under 

22 paragraph (1), the Commission shall conduct 

23 an ex parte, in-depth investigation, which may 

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1 mission, to consider if that determination 

2 should be extended under paragraph (3). 

3 ‘‘(B) ANALYSIS BY DIRECTOR OF NA4 TIONAL INTELLIGENCE.— 

5 ‘‘(i) IN GENERAL.—As part of an in6 vestigation conducted under subparagraph 

7 (A) with respect to an allegation contained 

8 in a report under subsection (b)(5)(B), the 

9 Director of National Intelligence, at the re10 quest of the Commission, shall expedi11 tiously carry out a thorough analysis of the 

12 allegation and shall incorporate the views 

13 of appropriate intelligence agencies with 

14 respect to the allegation. 

15 ‘‘(ii) TIMING.—Not later than 20 days 

16 after the date on which the Commission 

17 begins an investigation under subpara18 graph (A), the Director of National Intel19 ligence shall submit to the Commission the 

20 analysis requested under clause (i). 

21 ‘‘(iii) SUPPLEMENTATION OR AMEND22 MENT.—Any analysis submitted under 

23 clause (i) may be supplemented or amend24 ed as the Director of National Intelligence 

25 considers necessary or appropriate or upon 


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1 request by the Commission for additional 

2 information. 

3 ‘‘(iv) BEGINNING OF ANALYSIS BE4 FORE INVESTIGATION.—The Director of 

5 National Intelligence may begin an anal6 ysis under clause (i) of an allegation con7 tained in a report under subsection 

8 (b)(5)(B) before investigation by the Com9 mission of the allegation under subpara10 graph (A), in accordance with applicable 

11 law. 

12 ‘‘(3) EXTENSION, MODIFICATION, OR TERMI13 NATION.— 

14 ‘‘(A) IN GENERAL.—The Commission may 

15 extend, modify, or terminate a determination 

16 under paragraph (1) for good cause and as nec17 essary and appropriate, as determined by the 

18 Commission in consultation with the Committee 

19 and based on the findings of the investigation 

20 conducted under paragraph (2). 

21 ‘‘(B) RECONSIDERATION.—The Commis22 sion shall reconsider any extension, modifica23 tion, or termination under subparagraph (A) of 

24 a determination under paragraph (1) upon the 

25 request of the Committee. 


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1 ‘‘(4) CONSIDERATION.—In conducting a pre2 liminary review under paragraph (1) or an investiga3 tion under paragraph (2) with respect to an article, 

4 the Commission may consider the following: 

5 ‘‘(A) If the article contains, was produced 

6 using, benefits from, or uses any trade secret 

7 acquired through improper means or misappro8 priation by a foreign agent or foreign instru9 mentality. 

10 ‘‘(B) The national security and policy in11 terests of the United States, as established by 

12 the Committee for purposes of this section. 

13 ‘‘(5) DISCLOSURE OF CONFIDENTIAL INFORMA14 TION.— 

15 ‘‘(A) IN GENERAL.—Information submitted 

16 to the Commission or exchanged among the in17 terested persons in connection with a prelimi18 nary review under paragraph (1) or an inves19 tigation under paragraph (2), including by the 

20 owner of the trade secret with respect to which 

21 the review or investigation is connected, may 

22 not be disclosed (except under a protective 

23 order issued under regulations of the Commis24 sion that authorizes limited disclosure of such 


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1 information) to any person other than a person 

2 described in subparagraph (B). 

3 ‘‘(B) EXCEPTION.—Notwithstanding the 

4 prohibition under subparagraph (A), informa5 tion described in that subparagraph may be dis6 closed to— 

7 ‘‘(i) an officer or employee of the 

8 Commission who is directly concerned 

9 with— 

10 ‘‘(I) carrying out the preliminary 

11 review, investigation, or related pro12 ceeding in connection with which the 

13 information is submitted; 

14 ‘‘(II) the administration or en15 forcement of a national security exclu16 sion order issued under subsection 

17 (d); 

18 ‘‘(III) a proceeding for the modi19 fication or rescission of a national se20 curity exclusion order issued under 

21 subsection (d); or 

22 ‘‘(IV) maintaining the adminis23 trative record of the preliminary re24 view, investigation, or related pro25 ceeding; 


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1 ‘‘(ii) an officer or employee of the 

2 United States Government who is directly 

3 involved in the review under subsection 

4 (d)(2); or 

5 ‘‘(iii) an officer or employee of U.S. 

6 Customs and Border Protection who is di7 rectly involved in administering an exclu8 sion from entry under subsection (d) re9 sulting from the preliminary review, inves10 tigation, or related proceeding in connec11 tion with which the information is sub12 mitted. 

13 ‘‘(6) PUBLICATION OF RESULTS.—Not later 

14 than 30 days after a determination under paragraph 

15 (1) or an extension under paragraph (3), the Com16 mission shall publish notice of the determination or 

17 extension, as the case may be, in the Federal Reg18 ister. 

19 ‘‘(7) DESIGNATION OF LEAD AGENCY FROM

20 COMMITTEE.— 

21 ‘‘(A) IN GENERAL.—The Attorney General 

22 shall designate, as appropriate, a Federal agen23 cy or agencies represented on the Committee to 

24 be the lead agency or agencies on behalf of the 


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1 Committee for each action under paragraphs 

2 (1) through (3). 

3 ‘‘(B) DUTIES.—The duties of the lead 

4 agency or agencies designated under subpara5 graph (A), with respect to an action under 

6 paragraphs (1) through (3), shall include assist7 ing in the action and coordinating activity be8 tween the Committee and the Commission. 

9 ‘‘(8) CONSULTATION.— 

10 ‘‘(A) IN GENERAL.—In conducting an ac11 tion under paragraphs (1) through (3), the 

12 Commission shall consult with the heads of 

13 such other Federal agencies (or their designees) 

14 as the Commission determines appropriate on 

15 the basis of the facts and circumstances of the 

16 action. 

17 ‘‘(B) COOPERATION.—The heads of Fed18 eral agencies consulted under subparagraph (A) 

19 for an action, and the agency or agencies des20 ignated under paragraph (7)(A), shall cooperate 

21 with the Commission in conducting the action, 

22 including by— 

23 ‘‘(i) producing documents and wit24 nesses for testimony; and 


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1 ‘‘(ii) assisting with any complaint or 

2 report or any analysis by the Committee. 

3 ‘‘(9) INTERACTION WITH INTELLIGENCE COM4 MUNITY.—The Director of National Intelligence 

5 shall ensure that the intelligence community (as de6 fined in section 3 of the National Security Act of 

7 1947 (50 U.S.C. 3003)) remains engaged in the col8 lection, analysis, and dissemination to the Commis9 sion of any additional relevant information that may 

10 become available during the course of any action 

11 conducted under paragraphs (1) through (3). 

12 ‘‘(10) RULE OF CONSTRUCTION REGARDING

13 SUBMISSION OF ADDITIONAL INFORMATION.—Noth14 ing in this subsection shall be construed as prohib15 iting any interested person to an allegation described 

16 in subsection (b)(5) from submitting additional in17 formation concerning the allegation while an action 

18 under paragraphs (1) through (3) with respect to 

19 the allegation is ongoing. 

20 ‘‘(d) PROCEDURES FOR NATIONAL SECURITY EX21 CLUSION.— 

22 ‘‘(1) IN GENERAL.—If the Commission deter23 mines under subsection (c)(1) that it is more likely 

24 than not that an article to be imported into the 

25 United States is a covered article, not later than 30 


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1 days after receipt of the allegation described in that 

2 subsection with respect to that determination, the 

3 Commission shall— 

4 ‘‘(A) direct through an order that the arti5 cle concerned be excluded from entry into the 

6 United States under subsection (a); and 

7 ‘‘(B) notify the President of that deter8 mination. 

9 ‘‘(2) PRESIDENTIAL REVIEW.—If, before the 

10 end of the 15-day period beginning on the day after 

11 the date on which the President is notified under 

12 paragraph (1)(B) of the determination of the Com13 mission under subsection (c)(1), the President dis14 approves of that determination and notifies the 

15 Commission of that disapproval, effective on the 

16 date of that notice, that determination shall have no 

17 force or effect. 

18 ‘‘(3) ACTION BY SECRETARY OF THE TREAS19 URY.— 

20 ‘‘(A) NOTIFICATION.—Upon expiration of 

21 the 15-day period described in paragraph (2), 

22 or notification from the President of approval 

23 of the determination of the Commission under 

24 subsection (c)(1) before the expiration of that 

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1 retary of the Treasury and the Secretary of 

2 Homeland Security of its action under sub3 section (a) to direct the exclusion of covered ar4 ticles from entry. 

5 ‘‘(B) REFUSAL OF ENTRY.—Upon receipt 

6 of notice under subparagraph (A) regarding the 

7 exclusion of covered articles from entry, the 

8 Secretary of the Treasury and the Secretary of 

9 Homeland Security shall refuse the entry of 

10 those articles. 

11 ‘‘(4) CONTINUATION IN EFFECT.—Any exclu12 sion from entry of covered articles under subsection 

13 (a) shall continue in effect until the Commission— 

14 ‘‘(A) determines that the conditions that 

15 led to such exclusion from entry do not exist; 

16 and 

17 ‘‘(B) notifies the Secretary of the Treasury 

18 and the Secretary of Homeland Security of that 

19 determination. 

20 ‘‘(5) MODIFICATION OR RESCISSION.— 

21 ‘‘(A) IN GENERAL.—An interested person 

22 may petition the Commission for a modification 

23 or rescission of an exclusion order under sub24 section (a). 


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1 ‘‘(B) REVISITATION OF EXCLUSION.—The 

2 Commission may modify or rescind the exclu3 sion at any time at the discretion of the Com4 mission. 

5 ‘‘(C) BURDEN OF PROOF.—The burden of 

6 proof in any proceeding before the Commission 

7 regarding a petition made by an interested per8 son under subparagraph (A) shall be on the in9 terested person. 

10 ‘‘(D) RELIEF.—A modification or rescis11 sion for which a petition is made under sub12 paragraph (A) may be granted by the Commis13 sion— 

14 ‘‘(i) on the basis of new evidence or 

15 evidence that could not have been pre16 sented at the prior proceeding; or 

17 ‘‘(ii) on grounds that would permit re18 lief from a judgment or order under the 

19 Federal Rules of Civil Procedure. 

20 ‘‘(E) EVIDENTIARY STANDARD.—A modi21 fication or rescission may be made under sub22 paragraph (A) if an interested person provides 

23 to the Commission clear and convincing evi24 dence that such a modification or rescission 

25 should be made. 


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1 ‘‘(e) CIVIL ACTIONS.— 

2 ‘‘(1) IN GENERAL.—A civil action challenging a 

3 determination by the Commission under subsection 

4 (a) may be brought only— 

5 ‘‘(A) in the United States Court of Appeals 

6 for the Federal Circuit; and 

7 ‘‘(B) not later than 60 days after a peti8 tion for modification or rescission under sub9 section (d)(5) with respect to that determina10 tion has been conclusively decided. 

11 ‘‘(2) PROCEDURES FOR REVIEW OF PRIVILEGED

12 INFORMATION.—If a civil action challenging an de13 termination under subsection (a) is brought under 

14 paragraph (1) and the court determines that pro15 tected information in the administrative record, in16 cluding classified or other information subject to 

17 privilege or protections under law, is necessary to re18 solve the challenge, that information shall be sub19 mitted ex parte and in camera to the court and the 

20 court shall maintain that information under seal. 

21 ‘‘(3) APPLICABILITY OF USE OF INFORMATION

22 PROVISIONS.—The use of information provisions of 

23 sections 106, 305, 405, and 706 of the Foreign In24 telligence Surveillance Act of 1978 (50 U.S.C. 1806, 

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1 tion challenging an investigation or determination 

2 under this subsection. 

3 ‘‘(f) INAPPLICABILITY OF THE ADMINISTRATIVE

4 PROCEDURE ACT.— 

5 ‘‘(1) IN GENERAL.—The requirements of sub6 chapter II of chapter 5 of title 5, United States 

7 Code, shall not apply to— 

8 ‘‘(A) an action conducted by the Commis9 sion under paragraphs (1) through (3) of sub10 section (c); or 

11 ‘‘(B) the procedures for exclusion under 

12 paragraphs (4) and (5) of subsection (d). 

13 ‘‘(2) ADJUDICATION.—Any adjudication under 

14 this section shall not be subject to the requirements 

15 of sections 554, 556, and 557 of title 5, United 

16 States Code. 

17 ‘‘(g) FREEDOM OF INFORMATION ACT EXCEPTION.— 

18 Section 552 of title 5, United States Code (commonly re19 ferred to as the ‘Freedom of Information Act’), shall not 

20 apply to the activities conducted under this section. 

21 ‘‘(h) EXCLUSION.—Any exclusion under this section 

22 shall not be subject to section 1581 of title 28, United 

23 States Code. 


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1 ‘‘(i) REGULATIONS.—The Commission may prescribe 

2 such regulations as the Commission considers necessary 

3 and appropriate to carry out this section. 

4 ‘‘(j) AUTHORIZATION OF APPROPRIATIONS.—There 

5 are authorized to be appropriated such sums as may be 

6 necessary to carry out this section. 

7 ‘‘(k) DEFINITIONS.—In this section: 

8 ‘‘(1) ARTICLE.—The term ‘article’ includes any 

9 article or component of an article. 

10 ‘‘(2) COVERED ARTICLE.—The term ‘covered 

11 article’ means an article subject to exclusion from 

12 the United States under subsection (a). 

13 ‘‘(3) FOREIGN AGENT; FOREIGN INSTRUMEN14 TALITY; IMPROPER MEANS; MISAPPROPRIATION; 

15 OWNER; TRADE SECRET.—The terms ‘foreign agent’, 

16 ‘foreign instrumentality’, ‘improper means’, ‘mis17 appropriation’, ‘owner’, and ‘trade secret’ have the 

18 meanings given those terms in section 1839 of title 

19 18, United States Code. 

20 ‘‘(4) INTERESTED PERSON.—The term ‘inter21 ested person’, with respect to an allegation under 

22 subsection (b)(5), means a person named in the alle23 gation or otherwise identified by the Commission as 

24 having a material interest with respect to the allega25 tion.’’. 


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1 (b) CLERICAL AMENDMENT.—The table of contents 

2 for the Tariff Act of 1930 is amended by inserting after 

3 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.’’. 

Æ 


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