[Congressional Record Volume 167, Number 194 (Thursday, November 4, 2021)]
[Senate]
[Pages S7936-S7938]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 4434. Mr. CORNYN (for himself, Mr. Coons, Mr. Young, and Mr. 
Leahy) submitted an amendment intended to be proposed to amendment SA 
3867 submitted by Mr. Reed and intended to be proposed to the bill H.R. 
4350, to authorize appropriations for fiscal year 2022 for military 
activities of the Department of Defense, for military construction, and 
for defense activities of the Department of Energy, to prescribe 
military personnel strengths for such fiscal year, and for other 
purposes; which was ordered to lie on the table; as follows:

        At the end of subtitle G of title X, add the following:

     SEC. 1064. 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 Commercial Ripoffs and Espionage 
     with U.S. Trade Secrets'' 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:

[[Page S7937]]

  


     ``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 (in this section referred to as a 
     `covered article').
       ``(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--
       ``(A) shall 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) shall, 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 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 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, at its sole discretion, 
     may extend, modify, or terminate a determination under 
     paragraph (1) for good cause and as necessary and 
     appropriate, as determined by the Commission 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 request in 
     writing from 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

[[Page S7938]]

     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) issue an order directing 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 30-
     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) Exclusion of covered articles.--
       ``(A) Notification.--Upon expiration of the 30-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 issued under subsection (a) with respect to covered 
     articles only after an affirmative extension of the order is 
     issued under subsection (c)(3) in accordance with the 
     procedures under subsection (c)(2).
       ``(B) Revisitation of exclusion.--The Commission may modify 
     or rescind an exclusion order issued under subsection (a) 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 the Commission 
     determines that there has been a clear and convincing showing 
     to the Commission from an interested person that such a 
     modification or rescission should be made.
       ``(e) Judicial Review.--
       ``(1) In general.--Any person adversely affected by a final 
     modification or rescission determination by the Commission 
     under subsection (d)(5) may appeal such determination only--
       ``(A) in the United States Court of Appeals for the Federal 
     Circuit; and
       ``(B) not later than 60 days after that determination has 
     become final.
       ``(2) No other judicial review.--Except as authorized under 
     paragraph (1), the determinations of the Commission under 
     this section and any exclusion from entry or delivery or 
     demand for redelivery in connection with the enforcement of 
     an order by the Commission under this section may not be 
     reviewed by any court, including for constitutional claims, 
     whether by action in the nature of mandamus or otherwise.
       ``(3) Procedures for review of privileged information.--If 
     an appeal is brought under paragraph (1) and the 
     administrative record contains classified or other 
     information subject to privilege or protections under law, 
     that information shall be submitted confidentially to the 
     court and the court shall maintain that information under 
     seal.
       ``(4) 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 to an 
     appeal under paragraph (1).
       ``(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 are 
     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.
       ``(2) 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.
       ``(3) 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.''.
       (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.''.
       (d) Conforming Amendment.--Section 514(a)(4) of the Tariff 
     Act of 1930 (19 U.S.C. 1514(a)(4)) is amended by striking ``a 
     determination appealable under section 337 of this Act'' and 
     inserting ``in connection with the enforcement of an order of 
     the United States International Trade Commission issued under 
     section 342''.
                                 ______