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S. 2067: SECRETS Act of 2021


The text of the bill below is as of Jun 15, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 2067

IN THE SENATE OF THE UNITED STATES

June 15, 2021

(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 misappropriated or acquired through improper means by a foreign agent or foreign instrumentality, and for other purposes.

1.

Short title

This Act may be cited as the Stopping and Excluding Chinese Rip-offs and Exports with United States Trade Secrets Act of 2021 or the SECRETS Act of 2021.

2.

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)

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:

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.

(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 shall—

(A)

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)

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 there is a reasonable indication 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, 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).

(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 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 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 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 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 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)

Exclusion

Any exclusion under this section shall not be subject to section 1581 of title 28, United States Code.

(i)

Regulations

The Commission may prescribe such regulations as the Commission considers necessary and appropriate to carry out this section.

(j)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this section.

(k)

Definitions

In this section:

(1)

Article

The term article includes any article or component of an article.

(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), means a person named in the allegation or otherwise identified by the Commission as having a material interest with respect to the allegation.

.

(b)

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.

.