SECRETS Act of 2021

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 mis- appropriated 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Stopping and Exclud- 4 ing Chinese Rip-offs and Exports with United States 5 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 2 •S 2067 IS Trade Secrets Act of 2021’’ or the ‘‘SECRETS Act of 1 2021’’. 2 SEC. 2. NATIONAL SECURITY EXCLUSION FOR ARTICLES OR 3 COMPONENTS OF ARTICLES THAT CONTAIN, 4 WERE PRODUCED USING, BENEFIT FROM, OR 5 USE TRADE SECRETS MISAPPROPRIATED OR 6 ACQUIRED THROUGH IMPROPER MEANS BY A 7 FOREIGN AGENT OR FOREIGN INSTRUMEN- 8 TALITY. 9 (a) NATIONAL SECURITY EXCLUSION.—Title III of 10 the Tariff Act of 1930 is amended by inserting after sec- 11 tion 341 (19 U.S.C. 1341) the following: 12 ‘‘SEC. 342. NATIONAL SECURITY EXCLUSION FOR ARTICLES 13 OR COMPONENTS OF ARTICLES THAT CON- 14 TAIN, WERE PRODUCED USING, BENEFIT 15 FROM, OR USE TRADE SECRETS MISAPPRO- 16 PRIATED OR ACQUIRED THROUGH IM- 17 PROPER MEANS BY A FOREIGN AGENT OR 18 FOREIGN INSTRUMENTALITY. 19 ‘‘(a) IN GENERAL.—Upon a determination under 20 subsection (c)(1), and subject to the procedures required 21 under subsection (d), the Commission shall direct the ex- 22 clusion from the United States of, on the basis of national 23 security, imports of articles that contain, were produced 24 using, benefit from, or use any trade secret acquired 25 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 3 •S 2067 IS through improper means or misappropriation by a foreign 1 agent or foreign instrumentality. 2 ‘‘(b) INTERAGENCY COMMITTEE ON TRADE SE- 3 CRETS.— 4 ‘‘(1) IN GENERAL.—There is established an 5 Interagency Committee on Trade Secrets (in this 6 section referred to as the ‘Committee’) to carry out 7 the review and submission of allegations under para- 8 graph (5) and such other duties as the President 9 may designate as necessary to carry out this section. 10 ‘‘(2) MEMBERSHIP.— 11 ‘‘(A) IN GENERAL.—The Committee shall 12 be comprised of the following voting members 13 (or the designee of any such member): 14 ‘‘(i) The Secretary of the Treasury. 15 ‘‘(ii) The Secretary of Homeland Se- 16 curity. 17 ‘‘(iii) The Secretary of Commerce. 18 ‘‘(iv) The Attorney General. 19 ‘‘(v) The Intellectual Property En- 20 forcement Coordinator. 21 ‘‘(vi) The United States Trade Rep- 22 resentative. 23 ‘‘(vii) The head of such other Federal 24 agency or other executive office as the 25 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 4 •S 2067 IS President determines appropriate, gen- 1 erally or on a case-by-case basis. 2 ‘‘(B) DIRECTOR OF NATIONAL INTEL- 3 LIGENCE.— 4 ‘‘(i) IN GENERAL.—The Director of 5 National Intelligence shall serve as an ex 6 officio, nonvoting member of the Com- 7 mittee. 8 ‘‘(ii) NOTICE.—The Director of Na- 9 tional Intelligence shall be provided with 10 all notices received by the Committee re- 11 garding allegations under paragraph (5) 12 but shall serve no policy role on the Com- 13 mittee other than to provide analysis un- 14 less serving on the Committee under sub- 15 paragraph (A)(vii). 16 ‘‘(3) CHAIRPERSON.—The Attorney General 17 shall serve as the chairperson of the Committee. 18 ‘‘(4) MEETINGS.—The Committee shall meet 19 upon the direction of the President or upon the call 20 of the chairperson, without regard to section 552b of 21 title 5, United States Code (if otherwise applicable). 22 ‘‘(5) UNFAIR TRADE PRACTICE REVIEW.—The 23 Committee shall— 24 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 5 •S 2067 IS ‘‘(A) review upon complaint under oath by 1 the owner of a trade secret or on its own initia- 2 tive any allegations that an article imported or 3 to be imported into the United States is a cov- 4 ered article; and 5 ‘‘(B) if the Committee decides to proceed 6 with those allegations, submit to the Commis- 7 sion a report including those allegations. 8 ‘‘(c) EX PARTE PRELIMINARY REVIEW, INVESTIGA- 9 TION, AND DETERMINATION.— 10 ‘‘(1) EX PARTE PRELIMINARY REVIEW.—Not 11 later than 30 days after receipt of an allegation con- 12 tained in a report under subsection (b)(5)(B) with 13 respect to an article imported or to be imported into 14 the United States, the Commission shall conduct a 15 confidential, ex parte, preliminary review to deter- 16 mine whether there is a reasonable indication the ar- 17 ticle is more likely than not a covered article. 18 ‘‘(2) INVESTIGATION.— 19 ‘‘(A) IN GENERAL.—Not later than 150 20 days after an affirmative determination under 21 paragraph (1), the Commission shall conduct 22 an ex parte, in-depth investigation, which may 23 include a hearing at the discretion of the Com- 24 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 6 •S 2067 IS mission, to consider if that determination 1 should be extended under paragraph (3). 2 ‘‘(B) ANALYSIS BY DIRECTOR OF NA- 3 TIONAL INTELLIGENCE.— 4 ‘‘(i) IN GENERAL.—As part of an in- 5 vestigation conducted under subparagraph 6 (A) with respect to an allegation contained 7 in a report under subsection (b)(5)(B), the 8 Director of National Intelligence, at the re- 9 quest of the Commission, shall expedi- 10 tiously carry out a thorough analysis of the 11 allegation and shall incorporate the views 12 of appropriate intelligence agencies with 13 respect to the allegation. 14 ‘‘(ii) TIMING.—Not later than 20 days 15 after the date on which the Commission 16 begins an investigation under subpara- 17 graph (A), the Director of National Intel- 18 ligence shall submit to the Commission the 19 analysis requested under clause (i). 20 ‘‘(iii) SUPPLEMENTATION OR AMEND- 21 MENT.—Any analysis submitted under 22 clause (i) may be supplemented or amend- 23 ed as the Director of National Intelligence 24 considers necessary or appropriate or upon 25 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 7 •S 2067 IS request by the Commission for additional 1 information. 2 ‘‘(iv) BEGINNING OF ANALYSIS BE- 3 FORE INVESTIGATION.—The Director of 4 National Intelligence may begin an anal- 5 ysis under clause (i) of an allegation con- 6 tained in a report under subsection 7 (b)(5)(B) before investigation by the Com- 8 mission of the allegation under subpara- 9 graph (A), in accordance with applicable 10 law. 11 ‘‘(3) EXTENSION, MODIFICATION, OR TERMI- 12 NATION.— 13 ‘‘(A) IN GENERAL.—The Commission may 14 extend, modify, or terminate a determination 15 under paragraph (1) for good cause and as nec- 16 essary and appropriate, as determined by the 17 Commission in consultation with the Committee 18 and based on the findings of the investigation 19 conducted under paragraph (2). 20 ‘‘(B) RECONSIDERATION.—The Commis- 21 sion shall reconsider any extension, modifica- 22 tion, or termination under subparagraph (A) of 23 a determination under paragraph (1) upon the 24 request of the Committee. 25 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 8 •S 2067 IS ‘‘(4) CONSIDERATION.—In conducting a pre- 1 liminary review under paragraph (1) or an investiga- 2 tion under paragraph (2) with respect to an article, 3 the Commission may consider the following: 4 ‘‘(A) If the article contains, was produced 5 using, benefits from, or uses any trade secret 6 acquired through improper means or misappro- 7 priation by a foreign agent or foreign instru- 8 mentality. 9 ‘‘(B) The national security and policy in- 10 terests of the United States, as established by 11 the Committee for purposes of this section. 12 ‘‘(5) DISCLOSURE OF CONFIDENTIAL INFORMA- 13 TION.— 14 ‘‘(A) IN GENERAL.—Information submitted 15 to the Commission or exchanged among the in- 16 terested persons in connection with a prelimi- 17 nary review under paragraph (1) or an inves- 18 tigation under paragraph (2), including by the 19 owner of the trade secret with respect to which 20 the review or investigation is connected, may 21 not be disclosed (except under a protective 22 order issued under regulations of the Commis- 23 sion that authorizes limited disclosure of such 24 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 9 •S 2067 IS information) to any person other than a person 1 described in subparagraph (B). 2 ‘‘(B) EXCEPTION.—Notwithstanding the 3 prohibition under subparagraph (A), informa- 4 tion described in that subparagraph may be dis- 5 closed to— 6 ‘‘(i) an officer or employee of the 7 Commission who is directly concerned 8 with— 9 ‘‘(I) carrying out the preliminary 10 review, investigation, or related pro- 11 ceeding in connection with which the 12 information is submitted; 13 ‘‘(II) the administration or en- 14 forcement of a national security exclu- 15 sion order issued under subsection 16 (d); 17 ‘‘(III) a proceeding for the modi- 18 fication or rescission of a national se- 19 curity exclusion order issued under 20 subsection (d); or 21 ‘‘(IV) maintaining the adminis- 22 trative record of the preliminary re- 23 view, investigation, or related pro- 24 ceeding; 25 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 10 •S 2067 IS ‘‘(ii) an officer or employee of the 1 United States Government who is directly 2 involved in the review under subsection 3 (d)(2); or 4 ‘‘(iii) an officer or employee of U.S. 5 Customs and Border Protection who is di- 6 rectly involved in administering an exclu- 7 sion from entry under subsection (d) re- 8 sulting from the preliminary review, inves- 9 tigation, or related proceeding in connec- 10 tion with which the information is sub- 11 mitted. 12 ‘‘(6) PUBLICATION OF RESULTS.—Not later 13 than 30 days after a determination under paragraph 14 (1) or an extension under paragraph (3), the Com- 15 mission shall publish notice of the determination or 16 extension, as the case may be, in the Federal Reg- 17 ister. 18 ‘‘(7) DESIGNATION OF LEAD AGENCY FROM 19 COMMITTEE.— 20 ‘‘(A) IN GENERAL.—The Attorney General 21 shall designate, as appropriate, a Federal agen- 22 cy or agencies represented on the Committee to 23 be the lead agency or agencies on behalf of the 24 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 11 •S 2067 IS Committee for each action under paragraphs 1 (1) through (3). 2 ‘‘(B) DUTIES.—The duties of the lead 3 agency or agencies designated under subpara- 4 graph (A), with respect to an action under 5 paragraphs (1) through (3), shall include assist- 6 ing in the action and coordinating activity be- 7 tween the Committee and the Commission. 8 ‘‘(8) CONSULTATION.— 9 ‘‘(A) IN GENERAL.—In conducting an ac- 10 tion under paragraphs (1) through (3), the 11 Commission shall consult with the heads of 12 such other Federal agencies (or their designees) 13 as the Commission determines appropriate on 14 the basis of the facts and circumstances of the 15 action. 16 ‘‘(B) COOPERATION.—The heads of Fed- 17 eral agencies consulted under subparagraph (A) 18 for an action, and the agency or agencies des- 19 ignated under paragraph (7)(A), shall cooperate 20 with the Commission in conducting the action, 21 including by— 22 ‘‘(i) producing documents and wit- 23 nesses for testimony; and 24 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 12 •S 2067 IS ‘‘(ii) assisting with any complaint or 1 report or any analysis by the Committee. 2 ‘‘(9) INTERACTION WITH INTELLIGENCE COM- 3 MUNITY.—The Director of National Intelligence 4 shall ensure that the intelligence community (as de- 5 fined in section 3 of the National Security Act of 6 1947 (50 U.S.C. 3003)) remains engaged in the col- 7 lection, analysis, and dissemination to the Commis- 8 sion of any additional relevant information that may 9 become available during the course of any action 10 conducted under paragraphs (1) through (3). 11 ‘‘(10) RULE OF CONSTRUCTION REGARDING 12 SUBMISSION OF ADDITIONAL INFORMATION.—Noth- 13 ing in this subsection shall be construed as prohib- 14 iting any interested person to an allegation described 15 in subsection (b)(5) from submitting additional in- 16 formation concerning the allegation while an action 17 under paragraphs (1) through (3) with respect to 18 the allegation is ongoing. 19 ‘‘(d) PROCEDURES FOR NATIONAL SECURITY EX- 20 CLUSION.— 21 ‘‘(1) IN GENERAL.—If the Commission deter- 22 mines under subsection (c)(1) that it is more likely 23 than not that an article to be imported into the 24 United States is a covered article, not later than 30 25 VerDate Sep 11 2014 05:11 Jun 24, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2067.IS S2067 kjohnson on DSK79L0C42PROD with BILLS 13 •S 2067 IS days after receipt of the allegation described in that 1 subsection with respect to that determination, the 2 Commission shall— 3 ‘‘(A) direct through an order that the arti- 4 cle concerned be excluded from entry into the 5 United States under subsection (a); and 6 ‘‘(B) notify the President of that deter- 7 mination. 8 [Text 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