Sec. 202. Prohibition on misappropriating U.S. trade secrets
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Chapter 90 of title 18, United States Code, is amended by adding at the end the following: In this section— the term critical technology has the meaning given the term critical technologies in section 721 of the Defense Production Act of 1950 ( 50 U.S.C. 4565 ); the term designated Federal agency means— the Department of Homeland Security; U.S. Customs and Border Protection; the Department of Commerce; the Securities and Exchange Commission; the Export-Import Bank of the United States; the Department of State; and the United States Patent and Trademark Office; the term foreign person means a person that is not a United States person; the term International Trade Commission means the United States International Trade Commission; the term offending foreign person means a foreign person— who misappropriates a trade secret; and with respect to whom a petition submitted under subsection (b)(1) satisfies the requirements under that subsection, as determined by the Attorney General; the term person means— an individual; and a corporation, business association, partnership, society, or trust, any other nongovernmental entity, organization, or group, and any governmental entity operating as a business enterprise; and the term United States person means— a United States citizen or an alien lawfully admitted for permanent residence to the United States; a corporation or other legal entity that is organized under the laws of the United States, any State or territory thereof, or the District of Columbia; and a corporation or other legal entity— organized under the laws of a jurisdiction outside of the United States; and with respect to which a United States person described in subparagraph
(A)or (B)— holds more than 50 percent of the equity interest by vote or value; holds a majority of seats on the board of directors; or otherwise controls the actions, policies, or personnel decisions. If an owner of a trade secret, who is a United States person, wishes to have the Attorney General or the head of the applicable designated Federal agency apply a penalty under subsection
(c)to a foreign person who has misappropriated the trade secret, the owner shall submit to the Attorney General a petition demonstrating that— a court has entered a temporary restraining order, preliminary injunction, or final judgment under section 1836 of this title against the foreign person for misappropriating a trade secret of the owner; the International Trade Commission has issued a temporary exclusion order or final exclusion order under section 337 of the Tariff Act of 1930 ( 19 U.S.C. 1337 ) against the foreign person for misappropriating a trade secret of the owner; or an indictment has been issued under section 1831 or 1832 of this title against the foreign person for misappropriating a trade secret of the owner; the trade secret described in the applicable clause of subparagraph
(A)involves or is a component of critical technology; and the remedies available to the owner under section 1836 of this title or section 337 of the Tariff Act of 1930 ( 19 U.S.C. 1337 ), as applicable, are unlikely to provide complete relief to the owner because the foreign person has used or is reasonably likely to use the misappropriated trade secret in the home country of the foreign person or a third country, such that activities of the foreign person relevant to the determinations under subparagraph
(A)take place outside the United States. Not later than 60 days after the date on which an owner who is a United States person submits a petition to the Attorney General under paragraph (1), the Attorney General shall determine whether the petition satisfies the requirements under that paragraph. If the Attorney General determines under paragraph
(2)that a petition satisfies the requirements under paragraph (1), the Attorney General shall so notify the head of each designated Federal agency not later than 30 days after the date of the determination. It is the sense of Congress that if the Attorney General determines under paragraph
(2)that a petition relating to a foreign person satisfies the requirements under paragraph (1), the Attorney General and the head of each designated Federal agency should impose 1 or more penalties on the foreign person under subsection (c), to the extent that the penalties are applicable. Subject to paragraphs
(2)and (3), not later than 90 days after the date on which the Attorney General provides notice to the head of each designated Federal agency under subsection (b)(3) with respect to an offending foreign person, the Attorney General or the head of a designated Federal agency, as applicable, may impose 1 or more of the following penalties on the offending foreign person: The Commissioner of U.S. Customs and Border Protection may exclude from entry into the United States any articles produced by the offending foreign person. The Secretary of Commerce may refuse to issue any specific license, or grant any other specific permission or authority, for the export, reexport, or in-country transfer of items to the offending foreign person under the Export Control Reform Act of 2018 ( 50 U.S.C. 4801 et seq.). The Secretary of State may refuse to issue any license or other approval for the export of defense articles or defense services to the offending foreign person under the Arms Export Control Act ( 22 U.S.C. 2751 et seq.). The Secretary of Commerce may add the offending foreign person to one of the following lists maintained by the Bureau of Industry and Secretary of the Department of Commerce: The Entity List set forth in Supplement No. 4 to part 744 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations. The Denied Persons List maintained pursuant to section 764.3 of the Export Administration Regulations. The Secretary of the Treasury may add the offending foreign person to the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury. The Securities and Exchange Commission may determine whether the use by the offending foreign person of the misappropriated trade secret is a reportable material condition in any filing by the offending foreign person required under applicable securities laws of the United States. The Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office may prohibit the offending foreign person from applying for patent protection, being listed as an inventor on a patent application, or continuing a patent application under title 35, United States Code. The Export-Import Bank of the United States may refuse to approve the issuance of any guarantee, insurance, extension of credit, or participation in the extension of credit in connection with the export of any goods or services to the offending foreign person. The Secretary of State may deny a visa application, and the Secretary of Homeland Security may deny an application for admission to the United States, of any alien that the applicable Secretary determines is a corporate officer or principal of, or a shareholder with a controlling interest in, the offending foreign person. The Attorney General or the head of a designated Federal agency— may not procure, or enter into a contract for the procurement of, any goods or services from the offending foreign person; may prohibit, pursuant to notice issued by the Attorney General, a United States person from knowingly investing in or purchasing significant amounts of equity or debt instruments of the offending foreign person; may impose on a principal executive officer of the offending foreign person, or on an individual performing similar functions and with similar authorities as such an officer, any penalty under this subsection that could be imposed on the offending foreign person; and may impose on the offending foreign person any other penalty authorized under any provision of Federal law, as determined appropriate. If a court enters a temporary restraining order or preliminary injunction under section 1836 of this title against an offending foreign person for misappropriating a trade secret, the International Trade Commission issues a temporary exclusion order under section 337 of the Tariff Act of 1930 ( 19 U.S.C. 1337 ) against an offending foreign person for misappropriating a trade secret, or an indictment is issued under section 1831 or 1832 of this title against an offending foreign person for misappropriating a trade secret, the Attorney General or the head of a designated Federal agency may impose a penalty under paragraph
(1)on the offending foreign person during the period during which the temporary restraining order, preliminary injunction, temporary exclusion order, or indictment remains in effect. If a court enters a final judgment under section 1836 of this title against an offending foreign person for misappropriating a trade secret, the International Trade Commission issues a final exclusion order under section 337 of the Tariff Act of 1930 ( 19 U.S.C. 1337 ) against an offending foreign person for misappropriating a trade secret, or an offending foreign person is convicted under section 1831or 1832 of this title of misappropriating a trade secret, the Attorney General or the head of a designated Federal agency may permanently impose a penalty under paragraph
(1)on the foreign person. If the Attorney General or the head of a designated Federal agency imposes a temporary penalty under paragraph (2)(A) or a permanent penalty under paragraph (2)(B) on an offending foreign person, the offending foreign person may submit to the Attorney General or the head of the designated Federal agency a petition for the revocation or modification of the penalty— not later 45 days after the date on which the penalty is imposed; or in the case of a permanent penalty, if the final judgment, final exclusion order, or conviction upon which the permanent penalty is based is reversed on appeal or otherwise vacated, not later than 45 days after the date of the reversal or vacatur. An offending foreign person shall include in a petition submitted under subparagraph
(A)a full written statement in support of the position of the offending foreign person, including a precise statement of why— an insufficient basis exists for the penalty; or the circumstances resulting in the penalty no longer apply. An offending foreign person may, in a petition submitted under subparagraph (A), propose remedial steps that would negate the basis for the penalty. The Attorney General or the head of a designated Federal agency, as applicable, shall make a determination with respect to a petition submitted under subparagraph (A). Not later than 1 year after the date of enactment of this section, and each year thereafter, the Attorney General, in coordination with the head of each designated Federal agency, shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that— with respect to the preceding year— identifies foreign countries, state-owned and state-controlled entities, and other persons that engaged in the misappropriation of trade secrets owned by United States persons; describes any strategy used by a foreign country to undertake misappropriation of trade secrets owned by United States persons; identifies categories of technologies developed by, or trade secrets owned by, United States persons that were targeted for misappropriation; lists legal actions taken under section 1836 of this title, section 337 of the Tariff Act of 1930 ( 19 U.S.C. 1337 ), or section 1831 or 1832 of this title— against an offending foreign person who misappropriated a trade secret owned by a United States person; and as a result of which the products of the offending foreign person described in subclause
(I)may never enter the United States; and describes progress made in decreasing the prevalence of misappropriation of trade secrets owned by United States persons; and recommends strategies to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives to decrease the misappropriation by foreign persons of trade secrets owned by United States persons. A report submitted under paragraph
(1)shall be submitted in unclassified form but may contain a classified annex. . The table of sections for chapter 90 of title 18, United States Code, is amended by adding at the end the following: 1840. Applicability to foreign persons. .
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Sec. 202
Prohibition on misappropriating U.S. trade secrets
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