S.Amdt. 1871

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.''.
______