[Congressional Record Volume 167, Number 88 (Thursday, May 20, 2021)]
[Senate]
[Pages S3289-S3291]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1871. Mr. CORNYN (for himself and Mr. Coons) submitted an 
amendment intended to be proposed to amendment SA 1502 proposed by Mr. 
Schumer to the bill S. 1260, to establish a new Directorate for 
Technology and Innovation in the National Science Foundation, to 
establish a regional technology hub program, to require a strategy and 
report on economic security, science, research, innovation, 
manufacturing, and job creation, to establish a critical supply chain 
resiliency program, and for other purposes; which was ordered to lie on 
the table; as follows:

       At the end of title III of division F, add the following:

     SEC. 6302. 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) Short Title.--This section may be cited as the 
     ``Stopping and Excluding Chinese Rip-offs and Exports with 
     United States

[[Page S3290]]

     Trade Secrets Act of 2021'' or the ``SECRETS Act of 2021''.
       (b) 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 exclude from the United 
     States 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.
       ``(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 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.--The Director of 
     National Intelligence shall serve as an ex officio, nonvoting 
     member of the Committee.
       ``(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.--
       ``(A) Referral to commission.--The Committee shall--
       ``(i) 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
       ``(ii) submit to the Commission a report including those 
     allegations.
       ``(B) Analysis by director of national intelligence.--
       ``(i) In general.--As part of the review conducted under 
     subparagraph (A), the Director of National Intelligence shall 
     expeditiously carry out a thorough analysis of any 
     allegations under such subparagraph and shall incorporate the 
     views of appropriate intelligence agencies with respect to 
     those allegations.
       ``(ii) Timing.--

       ``(I) In general.--Not later than 20 days after the date on 
     which the Committee begins review of the allegations under 
     subparagraph (A), the Director of National Intelligence shall 
     submit to the Committee the analysis required under clause 
     (i).
       ``(II) Supplementation or amendment.--Any analysis 
     submitted under subclause (I) may be supplemented or amended 
     as the Director of National Intelligence considers necessary 
     or appropriate or upon request by the Committee for 
     additional information.
       ``(III) Beginning of analysis before review.--The Director 
     of National Intelligence may begin an analysis under clause 
     (i) of allegations under subparagraph (A) before review by 
     the Committee of the allegations, in accordance with 
     applicable law.

       ``(iii) Independent role of director of national 
     intelligence.--The Director of National Intelligence shall be 
     provided with all notices received by the Committee regarding 
     allegations under subparagraph (A) but shall serve no policy 
     role on the Committee other than to provide analysis unless 
     serving on the Committee under paragraph (2)(A)(vi).
       ``(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)(A)(ii) 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.--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).
       ``(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 an 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.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     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 the owner of the trade secret with 
     respect to which the investigation or hearing is connected, 
     may not be disclosed except under a protective order issued 
     pursuant to regulations prescribed by the Commission that 
     authorizes limited disclosure of such information.
       ``(B) Exceptions.--The Commission may establish exceptions 
     to the prohibition on disclosure under subparagraph (A), such 
     as exceptions similar to the exceptions under section 
     337(n)(2).
       ``(6) Publication of results.--Not later than 30 days after 
     a determination under paragraph (1), the Commission shall 
     publish notice of its determination 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)(A) 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 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

[[Page S3291]]

     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 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 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) Regulations.--The Commission may prescribe such 
     regulations as the Commission considers necessary and 
     appropriate to carry out this section.
       ``(i) Authorization of Appropriations.--There is authorized 
     to be appropriated such sums as may be necessary to carry out 
     this section.
       ``(j) Definitions.--In this section:
       ``(1) Article.--The term `article' includes any article or 
     component of an article, including digital or physical 
     articles.
       ``(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)(A), 
     means a person named in the allegation or otherwise 
     identified by the Commission as having a material interest 
     with respect to the allegation.''.
       (c) 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.''.
                                 ______