S.Amdt. 4434

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''.
______