[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6530 Introduced in House (IH)]
110th CONGRESS
2d Session
H. R. 6530
To amend United States trade laws to eliminate foreign barriers to
exports of United States goods and services, to restore rights under
trade remedy laws, to strengthen enforcement of United States
intellectual property rights and health and safety laws at United
States borders, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 17, 2008
Mr. Rangel (for himself and Mr. Levin) introduced the following bill;
which was referred to the Committee on Ways and Means, and in addition
to the Committees on Rules and Homeland Security, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To amend United States trade laws to eliminate foreign barriers to
exports of United States goods and services, to restore rights under
trade remedy laws, to strengthen enforcement of United States
intellectual property rights and health and safety laws at United
States borders, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Trade Enforcement
Act of 2008''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title and table of contents.
TITLE I--ELIMINATION OF FOREIGN BARRIERS TO EXPORTS OF U.S. GOODS AND
SERVICES
Sec. 101. Identification of trade expansion priorities.
Sec. 102. Office of the Congressional Trade Enforcer.
Sec. 103. Appointment of General Counsel of the U.S. Trade
Representative.
Sec. 104. Identification of countries that maintain unfair technical
barriers to trade or unfair sanitary or
phytosanitary measures.
TITLE II--RESTORATION OF RIGHTS UNDER TRADE REMEDY LAWS
Sec. 201. Application of countervailing duties to nonmarket economy
countries and strengthening application of
the law.
Sec. 202. Treatment of individual business enterprises in nonmarket
economy countries.
Sec. 203. Revocation of nonmarket economy country status.
Sec. 204. WTO Appellate Body rulings requiring offsets for non-dumped
comparisons.
Sec. 205. Role of WTO Appellate Body rulings in the WTO dispute
settlement system.
Sec. 206. Clarification regarding material injury by reason of imports
of subject merchandise.
Sec. 207. Standard for presidential action on ITC finding of market
disruption.
Sec. 208. Application of amendments to goods from Canada and Mexico.
Sec. 209. Rule of construction.
TITLE III--ENFORCEMENT OF HEALTH AND SAFETY LAWS AND INTELLECTUAL
PROPERTY RIGHTS AT U.S. BORDERS
Subtitle A--Import Safety
Sec. 301. Definitions.
Sec. 302. Obtaining data on goods destined for importation into the
United States.
Sec. 303. Interagency coordination.
Sec. 304. Development of import safety program.
Sec. 305. Information exchange process.
Sec. 306. Training.
Sec. 307. Sanctions on certain suppliers.
Sec. 308. Report to Congress.
Subtitle B--Strengthening Enforcement of Intellectual Property Rights
at U.S. Borders
Chapter 1--Coordination of Enforcement of Intellectual Property Rights
Sec. 311. Definitions.
Sec. 312. Director of Intellectual Property Rights Enforcement.
Sec. 313. Strategic plan for the enforcement of intellectual property
rights.
Sec. 314. CBP and ICE coordinators.
Chapter 2--Regulatory and Policy Improvements Against Counterfeiting
and Piracy
Sec. 321. In general.
Sec. 322. Identification of certain unlawful goods.
Sec. 323. Training in new technologies.
Sec. 324. Disclosure of information and samples of shipments to
intellectual property owners.
Sec. 325. Improvements to recordation process.
Sec. 326. Identification of low-risk shippers.
Sec. 327. ``Watch List'' database.
Sec. 328. Civil fines for importation of pirated or counterfeit goods.
Chapter 3--Training Enhancements
Sec. 331. International training and technical assistance enhancements.
Chapter 4--New Legal Tools for Border Enforcement
Sec. 341. Expanded prohibitions on importation or exportation of
counterfeit or pirated goods.
Sec. 342. Declarations regarding counterfeit and infringing
merchandise.
Chapter 5--Regulatory Authority
Sec. 351. Regulatory authority.
Subtitle C--Administrative Provisions
Sec. 361. Definitions.
Sec. 362. Advisory Committee on Import Safety and Intellectual Property
Enforcement.
Sec. 363. Staffing enhancements at CBP.
Sec. 364. Staffing enhancements at ICE.
Subtitle D--Authorization of Appropriations
Sec. 371. Authorization of appropriations.
TITLE I--ELIMINATION OF FOREIGN BARRIERS TO EXPORTS OF U.S. GOODS AND
SERVICES
SEC. 101. IDENTIFICATION OF TRADE EXPANSION PRIORITIES.
(a) Identification of Trade Expansion Priorities.--Section 310 of
the Trade Act of 1974 is amended to read as follows:
``SEC. 310. IDENTIFICATION OF TRADE EXPANSION PRIORITIES.
``(a) Identification.--
``(1) Identification and report.--Within 30 days after the
submission in each calendar year of the report required by
section 181(b), the Trade Representative shall--
``(A) review United States trade expansion
priorities;
``(B) identify priority foreign country practices
the elimination of which is likely to have the most
significant potential to increase United States
exports, either directly or through the establishment
of a beneficial precedent; and
``(C) submit to the Congressional Trade Enforcer,
the Committee on Finance of the Senate, and the
Committee on Ways and Means of the House of
Representatives and publish in the Federal Register a
report on the priority foreign country practices so
identified.
``(2) Factors.--In identifying priority foreign country
practices under paragraph (1), the Trade Representative shall
take into account all relevant factors, including--
``(A) the major barriers and trade distorting
practices described in the National Trade Estimate
Report required under section 181(b);
``(B) the trade agreements to which a foreign
country is a party and its compliance with those
agreements;
``(C) the medium- and long-term implications of
foreign government procurement plans; and
``(D) the international competitive position and
export potential of United States products and
services.
``(3) Contents of report.--The Trade Representative may
include in the report, if appropriate--
``(A) a description of foreign country practices
that may in the future warrant identification as
priority foreign country practices; and
``(B) a statement about other foreign country
practices that were not identified because they are
already being addressed by provisions of United States
trade law, by existing bilateral trade agreements, or
as part of trade negotiations with other countries, and
because progress is being made toward the elimination
of such practices.
``(b) Initiation of Consultations.--By no later than the date that
is 21 days after the date on which a report is submitted to the
Congressional Trade Enforcer and the appropriate congressional
committees under subsection (a)(1)(C), the Trade Representative should
seek consultations with each foreign country identified in the report
as engaging in priority foreign country practices for the purpose of
reaching a satisfactory resolution of such priority practices.
``(c) Initiation of Investigation.--If the Trade Representative
seeks consultations under subsection (b) and a satisfactory resolution
of the priority foreign country practices involved has not been reached
within 90 days after the date on which a report is submitted to the
appropriate congressional committees under subsection (a)(1), the Trade
Representative shall initiate under section 302(b)(1) an investigation
under this chapter with respect to such priority foreign country
practices.
``(d) Agreements for the Elimination of Barriers.--In the
consultations with a foreign country that the Trade Representative is
required to request under section 303(a) with respect to an
investigation initiated by reason of subsection (c), the Trade
Representative shall seek to negotiate an agreement that provides for
the elimination of the practices that are the subject of the
investigation as quickly as possible or, if elimination of the
practices is not feasible, an agreement that provides for compensatory
trade benefits.
``(e) Reports.--The Trade Representative shall include in the
semiannual report required by section 309(3) a report on the status of
any investigations initiated pursuant to subsection (c) and, where
appropriate, the extent to which such investigations have led to
increased opportunities for the export of products and services of the
United States.
``(f) Definition.--For purposes of this section, the term
`Congressional Trade Enforcer' means the head of the Office of the
Congressional Trade Enforcer established under section 102 of the Trade
Enforcement Act of 2008.''.
(b) Conforming Amendment.--The item relating to section 310 in the
table of contents of the Trade Act of 1974 is amended to read as
follows:
``Sec. 310. Identification of trade expansion priorities.''.
SEC. 102. OFFICE OF THE CONGRESSIONAL TRADE ENFORCER.
(a) Establishment.--There is established in the legislative branch
an Office of the Congressional Trade Enforcer (in this section referred
to as the ``Office'').
(b) Congressional Trade Enforcer.--
(1) Appointment and terms.--The head of the Office shall be
a Congressional Trade Enforcer, who shall be appointed to a
term of 2 years beginning on the first day of each new
Congress. Appointments in odd-numbered Congresses shall be made
by the Speaker of the House of Representatives, in consultation
with the minority leader of the House of Representatives, the
majority leader of the Senate, and the minority leader of the
Senate, after considering recommendations received from the
Committee on Ways and Means of the House of Representatives and
the Committee on Finance of the Senate. Appointments in even-
numbered Congresses shall be made by the majority leader of the
Senate, in consultation with the minority leader of the Senate,
the Speaker of the House of Representatives, and the minority
leader of the House of Representatives, after considering
recommendations received from the Committee on Finance of the
Senate and the Committee on Ways and Means of the House of
Representatives. The Congressional Trade Enforcer shall be
appointed without regard to political affiliation and solely on
the basis of fitness to perform the functions described in
subsection (d).
(2) Continued service.--An individual may serve as the
Congressional Trade Enforcer for more than one term, and the
person making the appointment under paragraph (1) should look
favorably upon reappointing the individual serving as the
Congressional Trade Enforcer. An individual serving as
Congressional Trade Enforcer at the expiration of a term may
continue to serve until a successor is appointed. The
Congressional Trade Enforcer may be removed by either the House
of Representatives or the Senate by resolution.
(3) Compensation.--The Congressional Trade Enforcer shall
receive compensation at an annual rate of pay that is equal to
the lower of--
(A) the highest annual rate of compensation of any
officer of the Senate; or
(B) the highest annual rate of compensation of any
officer of the House of Representatives.
(c) Personnel.--The Congressional Trade Enforcer shall appoint and
fix the compensation of such personnel as may be necessary to carry out
the functions described in subsection (d). All personnel of the Office
shall be appointed without regard to political affiliation and solely
on the basis of their fitness to perform their duties. The
Congressional Trade Enforcer may prescribe the duties and
responsibilities of the personnel of the Office, and delegate to them
authority to perform any of the duties, powers, and functions imposed
on the Office. For purposes of pay (other than the pay of the
Congressional Trade Enforcer) and employment benefits, rights, and
privileges, all personnel of the Office shall be treated as if they
were employees of the House of Representatives.
(d) Purpose and Functions.--
(1) Purpose.--The purpose of the Congressional Trade
Enforcer shall be to ensure compliance by trading partners of
the United States with trade agreements to which the United
States and such trading partners are parties.
(2) Functions; actions by ustr.--
(A) In general.--The Congressional Trade Enforcer
shall have the authority to investigate foreign trade
practices that are barriers to United States exports
and issue indictments in cases where such practices
violate any of the Uruguay Round Agreements or any
bilateral or regional trade agreement to which the
United States is a party.
(B) Submission of indictments.--The Congressional
Trade Enforcer shall submit indictments referred to in
subparagraph (A) to the Committee on Ways and Means of
the House of Representatives, the Committee on Finance
of the Senate, and the United States Trade
Representative.
(C) Action pursuant to indictment.--Within 30 days
after receiving an indictment under subparagraph (B),
the Trade Representative should commence dispute
resolution procedures in the appropriate forum against
the country or countries that are the subject of the
indictment unless--
(i) before the date of filing, the foreign
country or countries involved enter into an
agreement with the United States to eliminate
the practice that is inconsistent with its
international obligations; or
(ii) in extraordinary cases, the filing of
the case would cause serious harm to the
national security of the United States.
(D) Report.--If the Trade Representative does not
commence dispute resolution procedures under
subparagraph (C) pursuant to an indictment under
subparagraph (B), the Trade Representative shall, not
later than 60 days after receiving the indictment,
submit to the Committee on Ways and Means of the House
of Representatives and the Committee on Finance of the
Senate a report containing the reasons therefor and
shall publish notice of the decision, together with a
summary of such reasons, in the Federal Register.
(3) Vote by congressional committees.--During the 60-day
period after the Trade Representative submits a report under
subparagraph (D), the Committee on Ways and Means of the House
of Representatives and the Committee on Finance of the Senate
may each vote to indicate the agreement or disagreement of the
committee with the decision of the Trade Representative not to
commence dispute resolution procedures.
(4) Definitions.--In this subsection:
(A) Indictment.--The term ``indictment'' means a
formal written analysis setting forth the legal
explanation of the manner in which a foreign trade
practice of a country or countries violates any of the
Uruguay Round Agreements or any bilateral or regional
trade agreement to which the United States is a party.
(B) Uruguay round agreements.--The term ``Uruguay
Round Agreements'' means any of the agreements approved
by the Congress under section 101(a)(1) of the Uruguay
Round Agreements Act (19 U.S.C. 3511(a)(1)).
(e) Office of Market Access Assistance.--
(1) Establishment.--There is established in the Office of
the Congressional Trade Enforcer an Office of Market Access
Assistance.
(2) Functions.--The Office of Market Access Assistance
shall provide technical and legal assistance and advice to
eligible small businesses to enable such small businesses to
prepare and file petitions (other than those which, in the
opinion of the Office of Market Access Assistance, are
frivolous) under section 302 of the Trade Act of 1974.
(3) Definition.--In this subsection, the term ``eligible
small business'' means any business concern which, in the
judgment of the Office of Market Access Assistance, due to its
small size, has neither adequate internal resources nor
financial ability to obtain qualified outside assistance in
preparing and filing petitions and complaints under section 302
of the Trade Act of 1974. In determining whether a business
concern is an ``eligible small business,'' the Office of Market
Access Assistance may consult with the Administrator of the
Small Business Administration and the heads of other
appropriate Federal departments and agencies.
(f) Relationship to Executive Branch.--The Congressional Trade
Enforcer is authorized to secure information, data, estimates, and
statistics directly from the various departments, agencies, and
establishments of the executive branch of Government and the regulatory
agencies and commissions of the Government. All such departments,
agencies, establishments, and regulatory agencies and commissions shall
furnish the Congressional Trade Enforcer with any available material
that the Congressional Trade Enforcer determines to be necessary in the
performance of the functions of the Office. The Congressional Trade
Enforcer is also authorized, upon agreement with the head of any such
department, agency, establishment, or regulatory agency or commission,
to use its services, facilities, and personnel, with or without
reimbursement; and the head of each such department, agency,
establishment, or regulatory agency or commission is authorized to
provide to the Office such services, facilities, and personnel.
(g) Relationship to Other Agencies of Congress.--In carrying out
the functions of the Office, and for the purpose of coordinating the
operations of the Office with those of other congressional agencies
with a view to using most effectively the information, services, and
capabilities of all such agencies in carrying out the responsibilities
assigned to each, the Congressional Trade Enforcer is authorized to
obtain information, data, estimates, and statistics developed by the
Government Accountability Office and the Library of Congress, and (upon
agreement with them) to use their services, facilities, and personnel,
with or without reimbursement. The Comptroller General and the
Librarian of Congress are authorized to provide the Office with the
information, data, estimates, and statistics, and the services,
facilities, and personnel, referred to in the preceding sentence.
(h) Authorizations of Appropriations.--There are authorized to be
appropriated to the Office such sums as may be necessary for each
fiscal year to carry out this section.
SEC. 103. APPOINTMENT OF GENERAL COUNSEL OF THE U.S. TRADE
REPRESENTATIVE.
(a) Establishment of Position.--Section 141(b)(2) of the Trade Act
of 1974 (19 U.S.C. 2171(b)(2)) is amended to read as follows:
``(2) There shall be in the Office 3 Deputy United States Trade
Representatives, 1 Chief Agriculture Negotiator, and 1 General Counsel.
The 3 Deputy United States Trade Representatives, the Chief Agriculture
Negotiator, and the General Counsel shall be appointed by the
President, by and with the advice and consent of the Senate. As an
exercise of the rulemaking of the Senate, any nomination of a Deputy
United States Trade Representative, the Chief Agricultural Negotiator,
or the General Counsel submitted to the Senate for its advice and
consent, and referred to a committee, shall be referred to the
Committee on Finance. Each Deputy United States Trade Representative,
the Chief Agricultural Negotiator, and the General Counsel shall hold
office at the pleasure of the President and shall have the rank of
Ambassador.''.
(b) Functions of Position.--Section 141(c) of the Trade Act of 1974
(19 U.S.C. 2171(c)) is amended--
(1) by aligning paragraph (5) with paragraph (4); and
(2) by adding at the end the following new paragraph:
``(6) The principal function of the General Counsel shall be to
ensure that United States trading partners comply with trade agreements
to which the United States and such trading partners are parties
(including by investigating and prosecuting disputes before the World
Trade Organization and pursuant to other trade agreements to which the
United States is a party), to defend the United States in dispute
settlement proceedings under such trade agreements, and otherwise to
provide legal advice to the United States Trade Representative. The
General Counsel shall perform such other functions as the United States
Trade Representative may direct.''.
(c) Compensation.--Section 5314 of title 5, United States Code, is
amended by inserting after ``Chief Agricultural Negotiator'' the
following:
``General Counsel.''.
SEC. 104. IDENTIFICATION OF COUNTRIES THAT MAINTAIN UNFAIR TECHNICAL
BARRIERS TO TRADE OR UNFAIR SANITARY OR PHYTOSANITARY
MEASURES.
(a) Identification Required.--
(1) In general.--Chapter 8 of title I of the Trade Act of
1974 is amended by adding at the end the following:
``SEC. 183. IDENTIFICATION OF COUNTRIES THAT MAINTAIN UNFAIR TECHNICAL
BARRIERS TO TRADE OR UNFAIR SANITARY OR PHYTOSANITARY
MEASURES.
``(a) In General.--Not later than the date that is 30 days after
the date on which the annual report is required to be submitted to
Congressional committees under section 181(b), the United States Trade
Representative (in this section referred to as the `Trade
Representative') shall identify--
``(1) those foreign countries that maintain technical
barriers to trade, or sanitary or phytosanitary measures, that
deny fair and equitable market access to United States
products; and
``(2) those foreign countries identified under paragraph
(1) that are determined by the Trade Representative to be
priority foreign countries.
``(b) Special Rules for Identifications.--
``(1) Criteria.--In identifying priority foreign countries
under subsection (a)(2), the Trade Representative shall
identify only those foreign countries--
``(A) that have the most onerous or egregious acts,
policies, or practices that deny fair and equitable
market access to United States products;
``(B) whose acts, policies, or practices described
in subparagraph (A) have the greatest adverse impact
(actual or potential) on the relevant United States
products; and
``(C) that are not--
``(i) entering into good faith
negotiations, or
``(ii) making significant progress in
bilateral or multilateral negotiations,
to provide fair and equitable market access to United
States products.
``(2) Consultation and consideration requirements.--In
identifying priority foreign countries under subsection (a)(2),
the Trade Representative shall--
``(A) consult with the Secretary of Commerce, the
Secretary of Agriculture, the Administrator of the Food
and Drug Administration, and the heads of other
appropriate Federal agencies; and
``(B) take into account information provided by
such other sources as may be available to the Trade
Representative and such information as may be submitted
to the Trade Representative by interested persons,
including information contained in reports submitted
under section 181(b) and petitions submitted under
section 302.
``(3) Consideration of historical factors.--In identifying
foreign countries under paragraphs (1) and (2) of subsection
(a), the Trade Representative shall take into account--
``(A) the history of unfair technical barriers to
trade and unfair sanitary or phytosanitary measures of
the foreign country, including any previous
identification under subsection (a)(2); and
``(B) the history of efforts of the United States,
and the response of the foreign country, to remove
unfair technical barriers to trade, or sanitary or
phytosanitary measures, that deny fair and equitable
market access to United States products.
``(c) Revocations and Additional Identifications.--
``(1) Authority to act at any time.--If information
available to the Trade Representative indicates that such
action is appropriate, the Trade Representative may at any
time--
``(A) revoke the identification of any foreign
country as a priority foreign country under this
section; or
``(B) identify any foreign country as a priority
foreign country under this section.
``(2) Revocation reports.--The Trade Representative shall
include in the semiannual report submitted to the Congress
under section 309(3) a detailed explanation of the reasons for
the revocation under paragraph (1) of the identification of any
foreign country as a priority foreign country under this
section.
``(d) Definitions.--In this section:
``(1) Sanitary or phytosanitary measure.--The term
`sanitary or phytosanitary measure' means a sanitary or
phytosanitary measure as defined by Annex A of the Agreement on
the Application of Sanitary and Phytosanitary Measures
(described in section 101(d)(3) of the Uruguay Round Agreements
Act (19 U.S.C. 3511(d)(3)).
``(2) Technical barriers to trade.--The term `technical
barriers to trade' means technical regulations, standards, and
conformity assessment procedures as defined by Annex 1 of the
Agreement on Technical Barriers to Trade (described in section
101(d)(5) of the Uruguay Round Agreements Act (19 U.S.C.
3511(d)(5)).
``(3) Denial of fair and equitable market access.--
``(A) In general.--A technical barrier to trade or
a sanitary or phytosanitary measure may deny fair and
equitable market access to United States products
regardless of whether it is in violation of, or
inconsistent with, the international legal rights of
the United States.
``(B) Examples of unfair and inequitable technical
barriers to trade.--A technical barrier to trade that
denies fair and equitable market access to United
States products may include, but is not limited to, one
that--
``(i) is more restrictive than necessary to
achieve a legitimate objective of the foreign
country, or are applied more strictly than
necessary;
``(ii) is not based on international
standards, and there is no basis to conclude
that the international standards would be an
ineffective or inappropriate means for the
fulfilment of the legitimate objectives
pursued;
``(iii) fails to give positive
consideration to equivalent technical
regulations of the United States that
adequately fulfil the objectives of the
regulations of the foreign country;
``(iv) establishes requirements in terms of
design or descriptive characteristics, rather
than performance;
``(v) is not transparent, such as a measure
that is not published or does not provide
meaningful opportunity for comment; or
``(vi) unjustifiably discriminates or has
the effect of discriminating between imported
and domestically produced products, or products
imported from different countries.
``(C) Examples of unfair and inequitable sanitary
or phytosanitary measures.--A sanitary or phytosanitary
measure that denies fair and equitable market access to
United States products may include, but is not limited
to, one that--
``(i) is not based on scientific principles
or is maintained without sufficient scientific
evidence;
``(ii) discriminates arbitrarily or
unjustifiably where identical or similar
conditions prevail, or is applied in a manner
that would constitute a disguised restriction
on international trade;
``(iii) is not based on an assessment of
the risks to human, animal, or plant life or
health, or does not take into account risk
assessment techniques developed by any relevant
international organizations; or
``(iv) is not transparent, such as a
measure that is not published or does not
provide meaningful opportunity for comment.
``(e) Publication.--The Trade Representative shall publish in the
Federal Register a list of foreign countries identified under
subsection (a) and shall make such revisions to the list as may be
required by reason of action under subsection (c).
``(f) Annual Report.--The Trade Representative shall, not later
than the date by which countries are identified under subsection (a),
transmit to the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate, a report on
the actions taken under this section during the 12 months preceding
such report, and the reasons for such actions, including a description
of progress made toward ensuring that technical barriers to trade and
sanitary or phytosanitary measures do not deny fair and equitable
market access for United States products.''.
(2) Clerical amendment.--The table of contents for the
Trade Act of 1974 is amended by inserting after the item
relating to section 182 the following:
``Sec. 183. Identification of countries that maintain unfair technical
barriers to trade or unfair sanitary or
phytosanitary measures.''.
(b) Actions by United States Trade Representative.-- Section
301(d)(3)(B) of the Trade Act of 1974 (19 U.S.C. 2411(d)(3)(B)) is
amended--
(1) in clause (ii), by striking ``or'' at the end;
(2) in clause (iii), by striking the period at the end and
inserting ``or''; and
(3) by adding at the end the following:
``(iv) are technical barriers to trade, or sanitary
or phytosanitary measures, that deny fair and equitable
market access to United States products.''.
(c) Initiation of Investigations.--Section 302(b) of the Trade Act
of 1974 (19 U.S.C. 2412(b)) is amended--
(1) in subparagraph (A), in the matter preceding clause
(i), by inserting ``or 183(a)(2)'' after ``section 182(a)(2);''
(2) in subparagraph (D), by inserting ``concerning
intellectual property rights that is'' after ``any
investigation''; and
(3) by adding at the end the following:
``(E) The Trade Representative shall consult with the
Secretary of Commerce, the Secretary of Agriculture, the
Administrator of the Food and Drug Administration, and the
heads of other appropriate Federal agencies, during any
investigation concerning technical barriers to trade or
sanitary or phytosanitary measures that is initiated under this
chapter by reason of subparagraph (A).''.
TITLE II--RESTORATION OF RIGHTS UNDER TRADE REMEDY LAWS
SEC. 201. APPLICATION OF COUNTERVAILING DUTIES TO NONMARKET ECONOMY
COUNTRIES AND STRENGTHENING APPLICATION OF THE LAW.
(a) Application of Countervailing Duties to Nonmarket Economies.--
Section 701(a)(1) of the Tariff Act of 1930 (19 U.S.C. 1671(a)(1)) is
amended by inserting ``(including a nonmarket economy country)'' after
``country'' each place it appears.
(b) Recognition of Countervailable Subsidies in Nonmarket Economy
Countries.--Section 771(5)(C) of the Tariff Act of 1930 (19 U.S.C.
1677(5)(E)) is amended to read as follows:
``(C) Other factors.--(i) The determination of
whether a subsidy exists shall be made without regard
to--
``(I) whether the recipient of the
subsidy is publicly or privately owned;
``(II) whether the subsidy is
provided directly or indirectly on the
manufacture, production, or export of
merchandise; and
``(III)(aa) whether the country is
a nonmarket economy country, or
``(bb) the level of economic
reforms in a country that is a
nonmarket economy country,
at the time the subsidy is provided.
``(ii) The administering authority is not
required to consider the effect of the subsidy
in determining whether a subsidy exists under
this paragraph.''.
(c) Use of Alternate Methodologies Involving China.--Section
771(5)(E) of the Tariff Act of 1930 (19 U.S.C. 1677(5)(E)) is amended
by adding at the end the following:
``If the administering authority encounters special
difficulties in identifying and calculating the amount
of a benefit under clauses (i) through (iv) with
respect to an investigation or review involving the
People's Republic of China, irrespective of whether the
administering authority determines that China is a
nonmarket economy country under paragraph (18) of this
section, the administering authority shall use
methodologies to identify and calculate the amount of
the benefit that take into account the possibility that
terms and conditions prevailing in China may not always
be available as appropriate benchmarks. In applying
such methodologies, where practicable, the
administering authority should take into account and
adjust terms and conditions prevailing in China before
using terms and conditions prevailing outside of China.
If the administering authority has determined that
China is a nonmarket economy country under paragraph
(18) of this section, the administering authority shall
presume that special difficulties exist in calculating
the amount of a benefit under clauses (i) through (iv)
with respect to an investigation or review involving
China and that it is not practicable to take into
account and adjust terms and conditions prevailing in
China, and the administering authority shall use terms
and conditions prevailing outside of China.''.
(d) Subsidies Provided to State-Owned Enterprises in the People's
Republic of China.--Section 771(5A) of the Tariff Act of 1930 (19
U.S.C. 1677(5A)) is amended by adding at the end the following:
``For purposes of this paragraph, subsidies provided to state-
owned enterprises in the People's Republic of China shall be
deemed to be specific if, inter alia, state-owned enterprises
are the predominant recipients of such subsidies or state-owned
enterprises receive disproportionately large amounts of such
subsidies.''.
(e) Antidumping Provisions Not Affected.--The amendments made by
this section shall not affect the status of a country as a nonmarket
economy country for the purposes of any matter relating to antidumping
duties under subtitle B of title VII of the Tariff Act of 1930 (19
U.S.C. 1673 et seq.).
(f) Effective Date.--The amendments made by this section apply to
petitions filed under section 702 of the Tariff Act of 1930 (19 U.S.C.
1671a) on or after October 1, 2006.
SEC. 202. TREATMENT OF INDIVIDUAL BUSINESS ENTERPRISES IN NONMARKET
ECONOMY COUNTRIES.
Section 771(18) of the Tariff Act of 1930 (19 U.S.C. 1677(18)) is
amended--
(1) by redesignating subparagraphs (D) and (E) as
subparagraph (E) and (F), respectively; and
(2) by inserting after subparagraph (C) the following:
``(D) Treatment of individual business
enterprises.--The administering authority shall not
consider requests for market economy treatment at the
individual business enterprise level in an antidumping
proceeding involving a foreign country determined to be
a nonmarket economy country.''.
SEC. 203. REVOCATION OF NONMARKET ECONOMY COUNTRY STATUS.
(a) Amendment of Definition of ``Nonmarket Economy Country''.--
Section 771(18)(C)(i) of the Tariff Act of 1930 (19 U.S.C.
1677(18)(C)(i)) is amended to read as follows:
``(i) Any determination that a foreign
country is a nonmarket economy country shall
remain in effect until--
``(I) the administering authority
makes a final determination to revoke
the determination under subparagraph
(A); and
``(II) a joint resolution is
enacted into law pursuant to
subsections (b) through (i) of section
103 of the Trade Enforcement Act of
2008.''.
(b) Notification by President; Joint Resolution.--Whenever the
administering authority (as such term is defined in section 771(1) of
the Tariff Act of 1930 (19 U.S.C. 1677(1)) makes a final determination
under section 771(18)(C)(i)(I) of the Tariff Act of 1930 (as added by
subsection (a) of this section) to revoke the determination that a
foreign country is a nonmarket economy country--
(1) the President shall notify the Committee on Finance of
the Senate and the Committee on Ways and Means of the House of
Representatives of the administering authority's final
determination not later than 10 days after the publication of
the final determination in the Federal Register;
(2) the President shall transmit to the Congress a request
that a joint resolution be introduced pursuant to this section;
and
(3) a joint resolution shall be introduced in the Congress
pursuant to this section.
(c) Definition.--For purposes of this section, the term ``joint
resolution'' means only a joint resolution of the 2 Houses of the
Congress, the matter after the resolving clause of which is as follows:
``That the Congress approves the change of nonmarket economy status
with respect to the products of _____ transmitted by the President to
the Congress on _____.'', the first blank space being filled in with
the name of the country with respect to which a determination has been
made under section 771(18)(C)(i) of the Tariff Act of 1930 (19 U.S.C.
1677(18)(C)(i)), and the second blank space being filled with the date
on which the President notified the Committee on Finance of the Senate
and the Committee on Ways and Means of the House of Representatives
under subsection (b)(1).
(d) Introduction.--A joint resolution shall be introduced (by
request) in the House of Representatives by the majority leader of the
House, for himself, or by Members of the House designated by the
majority leader of the House, and shall be introduced (by request) in
the Senate by the majority leader of the Senate, for himself, or by
Members of the Senate designated by the majority leader of the Senate.
(e) Amendments Prohibited.--No amendment to a joint resolution
shall be in order in either the House of Representatives or the Senate,
and no motion to suspend the application of this subsection shall be in
order in either House, nor shall it be in order in either House for the
presiding officer to entertain a request to suspend the application of
this subsection by unanimous consent.
(f) Period for Committee and Floor Consideration.--
(1) In general.--If the committee or committees of either
House to which a joint resolution has been referred have not
reported the joint resolution at the close of the 45th day
after its introduction, such committee or committees shall be
automatically discharged from further consideration of the
joint resolution and it shall be placed on the appropriate
calendar. A vote on final passage of the joint resolution shall
be taken in each House on or before the close of the 15th day
after the joint resolution is reported by the committee or
committees of that House to which it was referred, or after
such committee or committees have been discharged from further
consideration of the joint resolution. If, prior to the passage
by one House of a joint resolution of that House, that House
receives the same joint resolution from the other House, then--
(A) the procedure in that House shall be the same
as if no joint resolution had been received from the
other House, but
(B) the vote on final passage shall be on the joint
resolution of the other House.
(2) Computation of days.--For purposes of paragraph (1), in
computing a number of days in either House, there shall be
excluded any day on which that House is not in session.
(g) Floor Consideration in the House.--
(1) Motion privileged.--A motion in the House of
Representatives to proceed to the consideration of a joint
resolution shall be highly privileged and not debatable. An
amendment to the motion shall not be in order, nor shall it be
in order to move to reconsider the vote by which the motion is
agreed to or disagreed to.
(2) Debate limited.--Debate in the House of Representatives
on a joint resolution shall be limited to not more than 20
hours, which shall be divided equally between those favoring
and those opposing the joint resolution. A motion further to
limit debate shall not be debatable. It shall not be in order
to move to recommit a joint resolution or to move to reconsider
the vote by which a joint resolution is agreed to or disagreed
to.
(3) Motions to postpone.--Motions to postpone, made in the
House of Representatives with respect to the consideration of a
joint resolution, and motions to proceed to the consideration
of other business, shall be decided without debate.
(4) Appeals.--All appeals from the decisions of the Chair
relating to the application of the Rules of the House of
Representatives to the procedure relating to a joint resolution
shall be decided without debate.
(5) Other rules.--Except to the extent specifically
provided in the preceding provisions of this subsection,
consideration of a joint resolution shall be governed by the
Rules of the House of Representatives applicable to other bills
and resolutions in similar circumstances.
(h) Floor Consideration in the Senate.--
(1) Motion privileged.--A motion in the Senate to proceed
to the consideration of a joint resolution shall be privileged
and not debatable. An amendment to the motion shall not be in
order, nor shall it be in order to move to reconsider the vote
by which the motion is agreed to or disagreed to.
(2) Debate limited.--Debate in the Senate on a joint
resolution, and all debatable motions and appeals in connection
therewith, shall be limited to not more than 20 hours. The time
shall be equally divided between, and controlled by, the
majority leader and the minority leader or their designees.
(3) Control of debate.--Debate in the Senate on any
debatable motion or appeal in connection with a joint
resolution shall be limited to not more than 1 hour, to be
equally divided between, and controlled by, the mover and the
manager of the joint resolution, except that in the event the
manager of the joint resolution is in favor of any such motion
or appeal, the time in opposition thereto shall be controlled
by the minority leader or his designee. Such leaders, or either
of them, may, from time under their control on the passage of a
joint resolution, allot additional time to any Senator during
the consideration of any debatable motion or appeal.
(4) Other motions.--A motion in the Senate to further limit
debate is not debatable. A motion to recommit a joint
resolution is not in order.
(i) Rules of House of Representatives and Senate.--Subsections (c)
through (h) are enacted by the Congress--
(1) as an exercise of the rulemaking power of the House of
Representatives and the Senate, respectively, and as such
subsections (c) through (h) are deemed a part of the rules of
each House, respectively, but applicable only with respect to
the procedure to be followed in that House in the case of joint
resolutions described in subsection (c), and subsections (c)
through (h) supersede other rules only to the extent that they
are inconsistent therewith; and
(2) with full recognition of the constitutional right of
either House to change the rules (so far as relating to the
procedure of that House) at any time, in the same manner and to
the same extent as in the case of any other rule of that House.
SEC. 204. WTO APPELLATE BODY RULINGS REQUIRING OFFSETS FOR NON-DUMPED
COMPARISONS.
(a) Findings.--Congress finds the following:
(1) The Contracting Parties of the General Agreements on
Tariffs and Trade agreed in 1947, and the Members of the World
Trade Organization (WTO) reaffirmed in 1994, that dumping, by
which products of one country are introduced into the commerce
of another country at less than fair value, ``is to be
condemned'' if it causes or threatens material injury to, or
materially retards the establishment of, a domestic industry.
(2) Since the adoption of the first United States
antidumping law in 1921, the United States has treated groups
of sales that are above ``fair value'' as not dumped (i.e.,
having a dumping margin of zero). Virtually every other
government that applies antidumping measures has used a similar
practice of ``zeroing'' sales above fair value.
(3) In a series of recent dispute settlement proceedings,
the WTO Appellate Body has repeatedly overturned the rulings of
several panels of antidumping experts that have found that the
longstanding practice of zeroing is not inconsistent with the
WTO agreements. The WTO Appellate Body has found that the
United States is required to recognize ``negative dumping''
(the amount by which certain groups of sales may exceed ``fair
value'') and thereby imposed a new mandate that the United
States must offset dumped sales.
(4) The United States has described these decisions of the
WTO Appellate Body as ``devoid of legal merit,'' ``fatally
flawed,'' and ``very troubling.''
(5) Despite these criticisms, the U.S. Department of
Commerce implemented the recommendations of the WTO Appellate
Body by creating mandatory offsets for dumping with respect to
certain comparisons made in antidumping investigations,
effective February 22, 2007. The Department of Commerce did not
make any other modifications to its methodologies to ensure
that dumping is addressed fully and in all instances under
United States antidumping law.
(b) Sense of Congress.--It is the sense of Congress that--
(1) in negotiations and dispute settlement proceedings at
the WTO, the United States should--
(A) restore the balance between rights and
obligations that was struck during the Uruguay Round of
Multilateral Trade Negotiations, as reflected in the
Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994, including
by eliminating the requirement to offset dumped sales
with non-dumped sales; and
(B) preserve the ability of the United States to
enforce rigorously its trade laws, including the
antidumping, countervailing duty, and safeguard laws;
(2) the Department of Commerce should revisit its decision
to modify its methodology in antidumping investigations with
respect to the calculation of the weighted-average dumping
margin, effective February 22, 2007;
(3) a revised modification should seek to ensure that 100
percent of dumping is addressed under United States antidumping
duty law and practice, while also ensuring that the United
States complies with its WTO obligations.
(c) Requirements for Agency Action.--
(1) Changes in antidumping methodology.--The Department of
Commerce may not implement any revised methodology in
antidumping investigations with respect to the calculation of
weighted-average dumping margins unless and until the
procedures set forth in section 123(g)(1) of the Uruguay Round
Agreements Act (19 U.S.C. 3533(g)(1)) have been followed and
completed.
(2) Effective date of modification.--A final rule or other
modification to which paragraph (1) applies may not go into
effect before the end of the 60-day period beginning on the
date on which consultations under section 123(g)(1)(E) of the
Uruguay Round Agreements Act (19 U.S.C. 3533(g)(1)(E)) begin.
(3) Vote by congressional committees.--During the 60-day
period described in paragraph (2), the Committee on Ways and
Means of the House of Representatives and the Committee on
Finance of the Senate may vote to indicate the agreement or
disagreement of the committee with the proposed contents of the
final rule or other modification. Any such vote shall not be
binding on the department or agency which is implementing the
rule or other modification.
(d) Grace Period for Original Modification.--The final modification
announced in ``Antidumping Proceedings: Calculation of the Weighted-
Average Dumping Margin During an Antidumping Investigation; Final
Modification,'' 71 Fed. Reg. 77722 (December 27, 2006) shall remain in
force until March 1, 2009. On that date, the Department of Commerce
shall return to the methodology it applied before adopting the Final
Modification, unless or until it issues a Revised Modification, in
accordance with the procedures described in subsection (c).
SEC. 205. ROLE OF WTO APPELLATE BODY RULINGS IN THE WTO DISPUTE
SETTLEMENT SYSTEM.
(a) Findings.--Congress finds the following:
(1) The United States and other members of the World Trade
Organization made clear when they established the World Trade
Organization that the text of the WTO agreements, and not
interpretations of those agreements by the Appellate Body or
any other international tribunal, establishes the rights and
obligations of WTO members. The WTO members determined that
``in their findings and recommendations, the panel and
Appellate Body cannot add to or diminish the rights and
obligations'' in the text of an agreement. Instead, a dispute
settlement panel is to make an ``objective assessment of the
matter before it, including an objective assessment of the
facts of the case and the applicability of and conformity with
the relevant covered agreements''. The WTO members themselves,
by a three-fourths majority, have the ``exclusive authority''
to adopt binding interpretations of the WTO agreements.
(2) Accordingly, in 1996, the WTO Appellate Body stated
that past dispute settlement decisions ``create legitimate
expectations among WTO Members, and, therefore, should be taken
into account where they are relevant to any dispute. However,
they are not binding, except with respect to resolving the
particular dispute between the parties to that dispute.''.
(3) In 2008, however, the Appellate Body criticized a
dispute settlement panel for conducting its own objective
assessment of a legal issue and refusing to follow the
Appellate Body's past interpretations of provisions of WTO
agreements. The Appellate Body stated that it was ``deeply
concerned about the Panel's decision to depart from well-
established Appellate Body jurisprudence clarifying the
interpretation of the same legal issues''.
(4) The notion that a dispute settlement panel is obligated
to follow Appellate Body precedent, rather than its own
objective assessment of the relevant WTO agreements, is
inconsistent with the text of those agreements and ultimately
may have a chilling effect on future negotiations to further
open markets and strengthen the global trading system.
(b) Sense of Congress.--It is the sense of the Congress that the
United States should state unequivocally that--
(1) it in inconsistent with the express mandate of limited
authority to the WTO Appellate Body under the Understanding on
Rules and Procedures Governing the Settlement of Disputes for
the Appellate Body to establish a new legal standard that
dispute settlement panels must apply in deciding cases; and
(2) a dispute settlement panel is obligated to follow the
text of an agreement negotiated by the WTO members themselves,
and not the ``jurisprudence'' of the WTO Appellate Body.
(c) Definitions.--In this section:
(1) WTO agreements.--The term ``WTO agreements'' means the
agreements approved by the Congress under section 101(a)(1) of
the Uruguay Round Agreements Act (19 U.S.C. 3511(a)(1)).
(2) WTO member.--The term ``WTO member'' has the meaning
given that term in section 2 of the Uruguay Round Agreements
Act (19 U.S.C. 3501).
(3) Appellate body; dispute settlement panel.--The terms
``Appellate Body'' and ``dispute settlement panel'' have the
meanings given those terms in section 121 of the Uruguay Round
Agreements Act (19 U.S.C. 3531).
(4) Understanding on rules and procedures governing the
settlement of disputes.--The term ``Understanding on Rules and
Procedures Governing the Settlement of Disputes'' means the
agreement described in section 101(d)(16) of the Uruguay Round
Agreements Act (19 U.S.C. 3511(d)(16)).
SEC. 206. CLARIFICATION REGARDING MATERIAL INJURY BY REASON OF IMPORTS
OF SUBJECT MERCHANDISE.
Section 771(7) of the Tariff Act of 1930 (19 U.S.C. 1677(7)) is
amended by adding at the end the following:
``(J) Additional requirements.--In evaluating
whether there is material injury, or threat thereof, by
reason of imports of the subject merchandise, the
Commission shall make its determination without regard
to--
``(i) whether other imports would have
replaced or are likely to replace subject
imports if an order were issued or a suspension
agreement were accepted under this title; or
``(ii) the effect of a potential order or
suspension agreement on the domestic industry,
except with respect to any finding required by
subparagraph (F)(ii).''.
SEC. 207. STANDARD FOR PRESIDENTIAL ACTION ON ITC FINDING OF MARKET
DISRUPTION.
Section 421 of the Trade Act of 1974 (19 U.S.C. 2451) is amended--
(1) in subsection (a)--
(A) by inserting ``any'' before ``increased
duties''; and
(B) by striking ``, to the extent and for such
period'' and all that follows to the end period and
inserting ``recommended by the International Trade
Commission'';
(2) in subsection (e), in the second sentence, by striking
``agreed upon by either group'' and all that follows to the end
period and inserting ``shall be considered an affirmative
determination under subsection (b)'';
(3) in subsection (f)--
(A) in the heading, by striking ``on Proposed
Remedies'' and inserting ``for Relief'';
(B) in the first sentence--
(i) by striking ``the President or Trade
Representative may consider as'' and inserting
``is to be considered''; and
(ii) by striking ``the Commission shall
propose'' and inserting ``the Commission shall
recommend''; and
(C) in the second sentence, by striking ``proposed
action'' and inserting ``recommended action'';
(4) in subsection (g)(2)(B)--
(A) by striking ``or may be considered by the
President or the Trade Representative as'' and
inserting ``or if the determination is considered to
be''; and
(B) by striking ``on proposed remedies'' and
inserting ``for relief'';
(5) in subsection (h)--
(A) in the heading, by striking ``Proposed Measure
and Recommendation to the President'' and inserting
``Recommended Relief and Report by Trade
Representative'';
(B) in paragraph (1)--
(i) by striking ``measure proposed by the
Trade Representative to be taken pursuant to
subsection (a)'' and inserting ``relief
recommended by the Commission under subsection
(f)''; and
(ii) by striking ``proposed measure'' and
inserting ``recommended relief'';
(C) in paragraph (2), by striking ``on the measure
proposed by the Trade Representative'' and all that
follows to the end period and inserting ``, shall
transmit a report to the President recommending what
action to take under subsection (k)''; and
(D) by adding at the end the following new
paragraph:
``(3) The Trade Representative, after submitting a report to the
President under paragraph (2), shall promptly make the report available
to the public, excluding any proprietary or confidential information.
The Trade Representative shall publish a summary of the report in the
Federal Register.'';
(6) in subsection (i)--
(A) in the flush sentence at the end of paragraph
(1), by striking ``agreed upon by either group'' and
all that follows to the end period and inserting
``shall be considered an affirmative determination of
the Commission''; and
(B) by striking paragraphs (2), (3), and (4), and
inserting the following:
``(2) On the date on which the Commission completes its
determinations under paragraph (1), the Commission shall transmit a
report on the determinations to the President and the Trade
Representative, including the reasons for its determinations. If the
determinations under paragraph (1) are affirmative or if the
determinations are considered to be affirmative under paragraph (1),
the Commission shall include in its report its recommendations on
provisional relief to be taken to prevent or remedy the market
disruption. Only those members of the Commission who agreed to the
affirmative determinations under paragraph (1) are eligible to vote on
the recommended provisional relief to prevent or remedy market
disruption. Members of the Commission who did not agree to the
affirmative determinations may submit, in the report, dissenting or
separate views regarding the determination and any recommendation of
provisional relief referred to in this paragraph.
``(3) The provisional relief referred to in paragraph (2) may
include--
``(A) the imposition of or increase in any duty;
``(B) any modification, or imposition of any quantitative
restriction on the importation of any article into the United
States; or
``(C) any combination of actions under subparagraph (A) or
(B).
``(4) If the determinations under paragraph (1) are affirmative or
if the determinations are considered to be affirmative under paragraph
(1), the Trade Representative shall, within 10 days after receipt of
the Commission's report, transmit a report to the President
recommending what action to take with respect to provisional relief
under subsection (k).
``(5)(A) The President shall proclaim any provisional relief
recommended by the Commission not later than 10 days after the date the
President receives the report described in paragraph (4) from the Trade
Representative.
``(B) Any provisional relief proclaimed by the President pursuant
to a determination of critical circumstances shall remain in effect for
a period not to exceed 200 days.
``(C) Provisional relief shall cease to apply upon the effective
date of relief proclaimed under subsection (a), upon a decision by the
President not to provide such relief under subsection (k), or upon a
negative determination by the Commission under subsection (b).'';
(7) in subsection (j)--
(A) in paragraph (1), by striking ``which the Trade
Representative considers to be'' and inserting ``that
is considered to be''; and
(B) by striking paragraph (2) and inserting the
following:
``(2) If no agreement is reached with the People's Republic of
China pursuant to consultations under paragraph (1) in the time
required for Presidential action under subsection (k), or if the
President determines that an agreement reached pursuant to such
consultations is not preventing or remedying the market disruption at
issue in the time required for Presidential action under subsection
(k), the President shall provide import relief in accordance with
subsection (a).'';
(8) in subsection (k)--
(A) in the heading, by striking ``Standard for
Presidential Action'' and inserting ``Timing for
Presidential Action; Exceptions'';
(B) in paragraph (1), by striking ``a
recommendation from the Trade Representative'' and all
that follows to the end period and inserting ``a report
from the Trade Representative under subsection (h)(2),
the President shall, pursuant to subsection (a),
proclaim the relief recommended by the Commission'';
and
(C) by amending paragraph (2) to read as follows:
``(2) The President may decline to proclaim relief pursuant to
subsection (a), may proclaim relief pursuant to subsection (a) that
differs from the relief recommended by the Commission, may decline to
proclaim provisional relief pursuant to subsection (i), or may proclaim
provisional relief pursuant to subsection (i) that differs from the
relief recommended by the Commission--
``(A) only in extraordinary cases; and
``(B) only if the President determines that providing
relief or provisional relief pursuant to subsection (a) or (i)
or providing relief recommended by the Commission pursuant to
subsection (a) or (i) would cause serious harm to the economic
interests or to the national security of the of the United
States.'';
(9) in subsection (l), by amending paragraph (1) to read as
follows:
``(1) The President's decision under subsection (k) shall be
submitted to the Committee on Finance of the Senate and the Committee
on Ways and Means of the House of Representatives and shall be
published in the Federal Register within 15 days of the decision. In
the submission to the committees and in publication in the Federal
Register, the President shall include the reasons for the decision and
the scope and duration of any action taken. If the President takes
action that differs from the action recommended by the Commission under
subsection (f) or declines to take action pursuant to subsection
(k)(2), the President shall state in detail the reasons for such action
or inaction.'';
(10) by redesignating subsections (m) through (o) as
subsections (n) through (p), respectively;
(11) by inserting after subsection (l) the following new
subsection:
``(m) Implementation of Action Recommended by Commission.--(1) If
the President takes action that differs from the action recommended by
the Commission under subsection (f) or declines to take action pursuant
to subsection (k)(2)(B)(i), the action recommended by the Commission
under subsection (f) shall take effect (as provided in subsection
(n)(2)) upon the enactment of a joint resolution described in paragraph
(2) within the 90-day period beginning on the date on which the
President's decision is transmitted to the Congress pursuant to
subsection (l).
``(2) For purposes of this section, the term `joint resolution'
means a joint resolution of the 2 Houses of the Congress, the sole
matter after the resolving clause of which is as follows: `That the
Congress does not approve the action taken by, or the determination of,
the President under section 421 of the Trade Act of 1974, notice of
which was transmitted to the Congress on ______.', with the blank space
being filled with the appropriate case number and date.
``(3) The provisions of section 152(b), (c), (d), (e), and (f) of
the Trade Act of 1974 (19 U.S.C. 2192(b), (c), (d), (e), and (f)) shall
apply to joint resolutions under this section.'';
(12) in subsection (n), as redesignated, by striking
``Import relief under this section'' and all that follows to
the end period and inserting the following:
``(1) Except as provided in paragraph (2), import relief under this
section shall take effect not later than 15 days after the President's
determination to provide such relief.
``(2) If the action recommended by the Commission takes effect
pursuant to subsection (m), the President shall, within 15 days after
the date of the enactment of the joint resolution referred to in
subsection (m), proclaim the action recommended by the Commission under
subsection (f). Such action shall take effect not later than 15 days
after the date of the President's proclamation.'';
(13) in subsection (o), as redesignated--
(A) in paragraph (1), by striking ``6-month'' and
inserting ``1-year''; and
(B) in paragraph (3), by inserting ``or (m)'' after
``subsection (k)''; and
(14) in subsection (p), as redesignated--
(A) in paragraph (1), by inserting ``or (m)'' after
``subsection (k);''; and
(B) in paragraph (3), by striking ``subsection
(m)'' and inserting ``subsection (n)''.
SEC. 208. APPLICATION OF AMENDMENTS TO GOODS FROM CANADA AND MEXICO.
Pursuant to section 1902 of the North American Free Trade Agreement
and section 408 of the North American Free Trade Agreement
Implementation Act (19 U.S.C. 3438), any amendments made by this title
to title VII of the Tariff Act of 1930 shall apply to goods from Canada
and Mexico.
SEC. 209. RULE OF CONSTRUCTION.
The amendments made by this title shall not be construed to affect
the interpretation of any provision of law amended by such sections as
such provisions of law were in effect on the day before the date of the
enactment of this Act.
TITLE III--ENFORCEMENT OF HEALTH AND SAFETY LAWS AND INTELLECTUAL
PROPERTY RIGHTS AT U.S. BORDERS
Subtitle A--Import Safety
SEC. 301. DEFINITIONS.
In this subtitle:
(1) Commissioner.--Except as otherwise provided, the term
``Commissioner'' means the Commissioner responsible for U.S.
Customs and Border Protection.
(2) International supply chain.--The term ``international
supply chain'' means the end-to-end process for transporting
goods to or from the United States beginning with the point of
origin (including manufacturer, supplier, or vendor) through
the point of distribution to the destination.
(3) Relevant departments and agencies.--The term ``relevant
departments or agencies'' means--
(A) the Department of Agriculture;
(B) the Department of Commerce;
(C) the Department of Health and Human Services;
(D) the Department of Homeland Security;
(E) the Department of Transportation;
(F) the Consumer Product Safety Commission;
(G) the Environmental Protection Agency;
(H) the Federal Trade Commission; and
(I) any other appropriate department or agency, as
determined by the Secretary, acting through the
Commissioner, with responsibilities regarding the
health or safety of goods.
(4) Secretary.--Except as otherwise provided, the term
``Secretary'' means the Secretary of the Treasury.
SEC. 302. OBTAINING DATA ON GOODS DESTINED FOR IMPORTATION INTO THE
UNITED STATES.
(a) Uniform System to Uniquely Identify Imports and Participants in
the International Supply Chain.--
(1) Establishment.--The Secretary, acting through the
Commissioner, shall, in consultation with the heads of the
relevant departments and agencies, establish a government-wide,
uniform data system to uniquely identify all goods imported or
destined for importation into the United States and, with
respect to such goods, all importers of record, foreign
manufacturers, foreign processing facilities, foreign
exporters, foreign suppliers, and ultimate consignees. The
system shall contain unique identifiers for each participant in
the international supply chain. The unique identifiers shall be
incorporated into the International Trade Data System
established under section 411(d) of the Tariff Act of 1930 and
into the Automated Commercial Environment, so as to permit
departments and agencies to share and exchange authorized data
on such goods, importers, manufacturers, facilities, exporters,
and suppliers.
(2) Timing and reports.--The Secretary, acting through the
Commissioner, shall--
(A) establish the uniform system under paragraph
(1) not later than one year after the date of the
enactment of this Act; and
(B) report to the Congress, not later than the end
of the 120-day period beginning on such date of
enactment, and each 120-day period thereafter until the
uniform system has been established, on the progress in
establishing the uniform system.
(b) Cargo Information.--Section 343(a) of the Trade Act of 2002 (19
U.S.C. 2071 note) is amended--
(1) in paragraph (2), by striking the period and inserting
the following: ``and, in the case of cargo destined for
importation into the United States, to ensure that the cargo
complies with those requirements imposed by the laws and
regulations of the United States with respect to health and
safety that are administered by the Department of Agriculture,
the Department of Health and Human Services, the Department of
Transportation, the Environmental Protection Agency, the
Consumer Product Safety Commission, the Federal Trade
Commission, and other relevant departments and agencies of the
United States.''; and
(2) in paragraph (3)(F), by inserting after ``cargo safety
and security'' the following: ``, for ensuring that imported
goods comply with requirements under the laws and regulations
of the United States relating to health and safety, as
described in paragraph (2), and for targeting by U.S. Customs
and Border Protection of cargo for failure to comply with such
requirements''.
(c) Development of Health and Safety Rule Sets for Automated
Targeting System.--The Secretary, acting through the Commissioner,
shall consult with the heads of the relevant departments and agencies
to develop rule sets for identifying, including through the Automated
Targeting System, cargo that violates laws or regulations of the United
States with respect to health or safety that are administered by the
relevant departments and agencies.
(d) Reports on International Trade Data System.--Section
411(d)(4)(B) of the Tariff Act of 1930 (19 U.S.C. 1411(d)(4)(B)) is
amended by inserting before the semicolon the following: ``, in
particular the progress of the United States Customs and Border
Protection, the Department of Health and Human Services, the Department
of Transportation, the Environmental Protection Agency, the Consumer
Product Safety Commission, the Federal Trade Commission, and other
appropriate departments and agencies in implementing ITDS''.
SEC. 303. INTERAGENCY COORDINATION.
(a) Access to ACE.--The Commissioner shall ensure that appropriate
officials of the relevant departments and agencies have access to the
Automated Commercial Environment for purposes of identifying cargo
destined for importation into the United States as ``high risk'' with
respect to public health or safety under the laws administered by those
departments and agencies.
(b) Communication and Response Protocols.--The Secretary, acting
through the Commissioner, shall take the necessary steps to implement
protocols with the heads of the relevant departments and agencies that
ensure rapid communication with and response by those departments and
agencies upon the discovery of goods destined for importation into the
United States that may pose a risk to public health or safety.
(c) Interdepartmental Procedures; Leveraging of Resources at Ports
of Entry.--The Secretary, acting through the Commissioner, shall, in
consultation with the heads of the relevant departments and agencies--
(1) develop uniform interagency procedures, where
appropriate, for clearing and controlling imported goods at
ports of entry, including procedures to streamline the entry
process and facilitate the exchange of information and
intelligence, processing of samples, providing training (where
necessary) to keep the relevant departments and agencies
updated on import requirements at the border, and other forms
of interagency cooperation; and
(2) take the necessary steps so that, in order to ensure
that imported cargo does not pose risks to the public health or
safety under laws administered by the relevant departments and
agencies, personnel of the relevant department or agency or
U.S. Customs and Border Protection officers are available to
inspect and sample the cargo at the port of entry in the United
States.
The Secretary shall enter into such arrangements as are appropriate to
ensure that U.S. Customs and Border Protection officers are authorized
to inspect and sample cargo under paragraph (2).
SEC. 304. DEVELOPMENT OF IMPORT SAFETY PROGRAM.
(a) Establishment.--The Secretary, acting through the Commissioner,
shall, in consultation with the Advisory Committee on Import Safety and
Intellectual Property Rights Enforcement established pursuant to
section 361 of this Act, establish a voluntary government-private
sector program (to be known as the ``Import Safety Program'') to ensure
that all goods in the international supply chain do not pose risks to
public health or safety, and to facilitate the movement of such goods
through the international supply chain. Under the program--
(1) eligible entities described in subsection (d)
voluntarily agree to abide by the minimum requirements under
subsection (b); and
(2) the Secretary agrees to expedite the movement of the
goods of such persons through the inspection process and to
provide other benefits to participants meeting or exceeding the
requirements of the Import Safety Program.
(b) Minimum Requirements.--
(1) In general.--The Secretary, acting through the
Commissioner, shall establish the minimum requirements for
eligible entities described in subsection (d) seeking to
participate in the Import Safety Program and review such
requirements at least once every year and update such
requirements as necessary. In establishing such requirements,
the Secretary shall--
(A) require that each such eligible entity applying
be a participant in the C-TPAT program under subtitle B
of title II of the SAFE Port Act (in this section
referred to as ``C-TPAT''; 6 U.S.C. 961 et seq.); and
(B) incorporate standards for the following:
(i) Controls for ensuring the eligible
entity's compliance with health and safety
standards under the laws and regulations of the
United States for goods moved by the eligible
entity through the international supply chain.
(ii) Tracking and maintaining records on
goods moved by the eligible entity through the
international supply chain.
(iii) Documentation of controls referred to
in clause (i), including maintenance of testing
results.
(iv) Access by the Secretary to the
eligible entity's business records for review.
(v) Access by the Secretary to vendor and
supplier information.
(vi) Such other factors as the Secretary
determines are necessary.
(2) Specific requirements.--An applicant seeking to
participate in the Import Safety Program must--
(A) demonstrate a history of moving cargo in the
international supply chain in compliance with health
and safety standards under the laws and regulations of
the United States;
(B) have procedures in place to ensure that the
cargo is not subject to an Import Alert of the Food and
Drug Administration or to any voluntary or mandatory
recall imposed because of a potential risk to public
health or safety;
(C) have in place internal controls and product-
testing regimes to ensure compliance with health and
safety standards under the laws and regulations of the
United States, including compliance by the applicant's
suppliers with such health and safety standards; and
(D) conduct an assessment of its supply chain based
upon health and safety criteria established by the
Secretary, acting through the Commissioner.
(c) Coordination.--The Secretary shall coordinate with the heads of
the relevant departments and agencies for purposes of verifying the
compliance of imported goods with health and safety standards under
subsection (b)(1)(B)(i).
(d) Eligible Entities.--Importers, producers, sellers, ultimate
consignees, and other entities in the international supply chain and
intermodal transportation system are eligible to apply to voluntarily
enter into the Import Safety Program.
(e) Validation.--The Secretary, acting through the Commissioner,
shall validate the compliance of each participant in the Import Safety
Program with the requirements under this section. Such validation
shall, to the extent practicable, be completed no later than 1 year
after the applicant is accepted into the Import Safety Program, in
accordance with a schedule and guidelines that the Secretary, acting
through the Commissioner, shall establish.
(f) Revalidation.--The Secretary, acting through the Commissioner,
shall develop and implement--
(1) a revalidation process for all participants in the
Import Safety Program that shall be conducted not less
frequently than once during each 5-year period after the
initial validation under subsection (e); and
(2) an annual plan for revalidation that includes--
(A) performance measures;
(B) an assessment of the personnel needed to
perform the revalidations; and
(C) the number of participants that will be
revalidated during the following year.
SEC. 305. INFORMATION EXCHANGE PROCESS.
The Secretary, acting through the Commissioner, shall work with
importers and other interested persons and other entities in the
private and public sectors to develop a process through which--
(1) persons and other entities in the private and public
sectors can report critical information relating to the safety
of imported goods in a timely manner at one virtual location
through existing information-sharing systems; and
(2) the Secretary can share such information with private
and public entities, consistent with the protection of business
confidential information.
SEC. 306. TRAINING.
The Secretary, acting through the Commissioner, shall ensure that
U.S. Customs and Border Protection personnel receive appropriate
training in order to carry out this subtitle and the amendments made by
this subtitle.
SEC. 307. SANCTIONS ON CERTAIN SUPPLIERS.
(a) List of Suppliers With Inadmissable Imported Products.--Upon
the development of unique identifiers under section 302(a), the
Secretary, acting through the Commissioner, shall establish and
maintain a list of importers of record, foreign manufacturers, foreign
processing facilities, foreign exporters, and foreign suppliers whose
imported products have been determined to be inadmissible into the
United States or have been the subject of recalls in the United States
because of violations of health or safety standards.
(b) Sanctions.--
(1) In general.--The Secretary, acting through the
Commissioner, shall establish sanctions to be imposed on
entities on the list described in subsection (a), taking into
account the number of occurrences on which the products of the
entity concerned have been determined to be inadmissible or
have been the subject of recalls in the United States and the
severity of the violation of law that was the basis for such
determination or recall. Such sanctions shall include the
following:
(A) In the case of a first occurrence, an increase
in the bond required to be posted for imports of the
products of the entity concerned.
(B) Increased inspection of up to 100 percent of
the products of the entity concerned, in the case of a
second occurrence of a violation within 6 months after
the first occurrence of the same violation; and
(C) A prohibition on imports of the products of an
entity whose products have repeatedly been the subject
of such a determination or recall, or in a case in
which the products concerned caused bodily injury or
death, for a period of time determined by the
Secretary, acting through the Commissioner, but
generally not less than 6 months or until the relevant
department or agency with the authority to determine
the admissibility of the products verifies that the
banned products are in compliance with the relevant
health or safety standards. Products subject to the
prohibition shall be the same type of products as those
determined to be inadmissible or subject to the recall,
and any other type of product that is subject to the
same standard as the one violated by the entity.
(2) Determination of ``repeatedly''.--In determining under
paragraph (1)(C) whether the products of an entity have
``repeatedly'' been the subject of a determination of
inadmissibility or recall, the Secretary, acting through the
Commissioner, shall take into account not only the number of
such determinations but the seriousness of any such
determination.
(c) Availability to Public.--
(1) In general.--The Secretary, acting through the
Commissioner, shall make public, including through the official
website of U.S. Customs and Border Protection and, as
appropriate, any other Federal department or agency website
relating to health or safety matters, the names of all
importers of record, foreign manufacturers, foreign processing
facilities, foreign exporters, and foreign suppliers who have
been made subject to a prohibition on imports under subsection
(b)(2) that has become final under subsection (f), and the
products that are subject to the prohibition. If an entity
subject to such a prohibition files, in the appropriate Federal
court, an appeal of the determination of the Secretary imposing
the prohibition, such appeal shall also be made public in
accordance with the preceding sentence.
(2) Updating.--The information made public under paragraph
(1) shall be updated as frequently as necessary to keep the
information current.
(d) Alert System in ACE.--The Commissioner shall establish in the
Automated Commercial Environment an alert system notifying the relevant
departments and agencies of the identity of all importers of record,
foreign manufacturers, foreign processing facilities, foreign
exporters, and foreign suppliers described in subsections (a) and (b).
(e) Mitigating Actions.--The Secretary, acting through the
Commissioner, in consultation with the heads of the relevant
departments and agencies, shall establish actions that an entity that
is on the list established under subsection (a) or is subject to a
sanction under subsection (b) may take to warrant removal from the list
or removal of the sanction, as the case may be.
(f) Administrative Appeal.--Any importer of record, foreign
manufacturer, foreign processing facility, foreign exporter, or foreign
supplier may appeal a decision of the Secretary under subsection (a) or
(b) by filing the appeal not later than 30 days after the date of the
decision. The Secretary shall issue a determination on the appeal not
later than 90 days after the appeal is filed. The Secretary shall issue
regulations establishing procedures for the appeals process under this
subsection not later than 18 months after the date of the enactment of
this Act.
SEC. 308. REPORT TO CONGRESS.
The Secretary, acting through the Commissioner, shall submit to the
Congress, not later than September 30 of each year, a report on the
actions taken to carry out this subtitle.
Subtitle B--Strengthening Enforcement of Intellectual Property Rights
at U.S. Borders
CHAPTER 1--COORDINATION OF ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
SEC. 311. DEFINITIONS.
In this subtitle:
(1) Assistant secretary for ice.--The term ``Assistant
Secretary for ICE'' means the Assistant Secretary for U.S.
Immigration and Customs Enforcement.
(2) Commissioner.--The term ``Commissioner'' means the
Commissioner responsible for U.S. Customs and Border
Protection.
(3) Counterfeiting; counterfeit goods.--
(A) Counterfeiting.--The term ``counterfeiting''
means activities related to production of or
trafficking in goods, including packaging, that bear a
spurious mark or designation that is identical to or
substantially indistinguishable from a mark or
designation protected under the trademark laws or
related legislation.
(B) Counterfeit goods.--The term ``counterfeit
goods'' means those goods described in subparagraph
(A).
(4) CBP.--The term ``CBP'' means U.S. Customs and Border
Protection.
(5) Director.--The term ``Director'' means the Director of
Intellectual Property Rights Enforcement of the Department of
the Treasury established in section 312.
(6) Enforcement of intellectual property rights.--The term
``enforcement of intellectual property rights'' means
activities to enforce copyrights, patents, trademarks, and
other forms of intellectual property, including activities to
control counterfeiting and piracy, and activities to enforce
exclusion orders issued by the United States International
Trade Commission by reason of any of subparagraphs (B) through
(E) of subsection (a)(1) of section 337 of the Tariff Act of
1930 (19 U.S.C. 1337(a)(1)(B) through (E)).
(7) Exclusion order.--The term ``exclusion order'' means an
order of the United States International Trade Commission
issued under section 337(d) of the Tariff Act of 1930 to
exclude goods from entry into the United States.
(8) ICE.--The term ``ICE'' means U.S. Immigration and
Customs Enforcement.
(9) Piracy; pirated goods.--
(A) Piracy.--The term ``piracy'' means activities
related to production of or trafficking in unauthorized
copies or phonorecords of works protected under
copyright law or related legislation.
(B) Pirated goods.--The term ``pirated goods''
means those copies or phonorecords described in
subparagraph (A).
SEC. 312. DIRECTOR OF INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT.
(a) Establishment.--There is established within the Department of
the Treasury the position of Director of Intellectual Property Rights
Enforcement.
(b) Appointment.--The Director shall be appointed by the Secretary
of the Treasury, and shall be responsible to and shall report directly
to the Deputy Secretary of the Treasury.
(c) Duties.--The Director shall--
(1) coordinate all activities of the Department of the
Treasury involving the enforcement of intellectual property
rights, with particular reference to the activities of CBP and
ICE;
(2) oversee the development and implementation of the
strategic plan for the enforcement of intellectual property
rights required under section 314;
(3) coordinate the policy and regulatory changes set forth
in chapter 4;
(4) serve as staff representative of the Department of the
Treasury in interagency bodies with responsibility for
coordination of activities involving the enforcement of
intellectual property rights;
(5) conduct an evaluation of the effectiveness of the
organizational structure of CBP for reducing the entry into the
United States of counterfeit or pirated goods, goods in
violation of exclusion orders, and other goods in violation of
other intellectual property rights; and
(6) carry out other duties, as assigned by the Secretary or
Deputy Secretary of the Treasury, to improve the effectiveness
of the efforts of the Department of the Treasury under the laws
within its jurisdiction with respect to enforcement of
intellectual property rights.
SEC. 313. STRATEGIC PLAN FOR THE ENFORCEMENT OF INTELLECTUAL PROPERTY
RIGHTS.
(a) In General.--The Director shall develop, for approval by the
Deputy Secretary of the Treasury, an annual strategic plan for the
enforcement of intellectual property rights.
(b) Consultation.--In developing the annual strategic plan required
under subsection (a), the Director shall consult with--
(1) the CBP coordinator of intellectual property
enforcement activities and the ICE coordinator of intellectual
property enforcement authorities appointed under section 315;
(2) all other entities within the Department of the
Treasury with expertise and experience in the enforcement of
intellectual property rights;
(3) the Advisory Committee;
(4) other agencies of the executive branch engaged in the
enforcement of intellectual property rights, including any
officials designated to coordinate such enforcement efforts on
an interagency basis; and
(5) officials from foreign law enforcement agencies and
international organizations, including the World Customs
Organization, with experience and expertise in border control
measures relating to the enforcement of intellectual property
rights.
(c) Contents of Plan.--The annual strategic plan shall set forth
objectives, goals, and strategies for more effective use of the
authorities of CBP and ICE relating to the enforcement of intellectual
property rights, and shall--
(1) provide for specific measurement of the current
effectiveness of enforcement tools, including targeting,
examination, post-entry auditing, and penalty actions;
(2) give priority to those enforcement tools determined
under paragraph (1) to be most effective;
(3) identify best practices, both in the United States and
abroad, in the enforcement of intellectual property rights,
taking into account the practices of enforcement authorities of
other countries, and implement those practices;
(4) identify and apply the specific performance measures to
be used to evaluate the progress of CBP and ICE in improving
the effectiveness of its efforts relating to the enforcement of
intellectual property rights;
(5) address border control programs administered by CBP and
ICE at ports of entry for passengers and freight, and at points
of entry for postal and courier services, as well as for goods
in transit through United States ports and in the process of
being exported from the United States;
(6) recommend the optimal feasible allocation of human,
financial, physical, and technological resources that CBP and
ICE should use to achieve the goals of the annual strategic
plan;
(7) report on the key activities of CBP and ICE during the
preceding year in the enforcement of intellectual property
rights ; and
(8) contain such other information as the Director
considers appropriate to convey what CBP and ICE will do, over
the ensuing year, with respect to the enforcement of
intellectual property rights and reduce the costs that
violations of intellectual property rights impose on the United
States economy and public safety.
(d) Submission to Congress.--Upon the approval by the Deputy
Secretary of the Treasury of the annual strategic plan, after ensuring
its consistency with relevant interagency strategic plans for the
enforcement of intellectual property rights, the Deputy Secretary of
the Treasury shall transmit the annual strategic plan to the Committee
on Finance of the Senate and the Committee on Ways and Means of the
House of Representatives, along with any recommendations of the
Department of the Treasury for statutory changes or funding
authorizations needed to improve the effectiveness of the Department's
efforts in the enforcement of intellectual property rights.
(e) Timing.--The Deputy Secretary of the Treasury shall submit the
annual strategic plan under subsection (d) not later than 180 days
after the date of the enactment of this Act and annually thereafter.
SEC. 314. CBP AND ICE COORDINATORS.
(a) CBP Coordinators.--
(1) Appointment.--The Commissioner shall appoint a CBP
coordinator of intellectual property rights enforcement
activities (in this chapter referred to as the ``CBP
Coordinator''), who shall report directly to the Commissioner.
(2) Duties.--The CBP Coordinator shall--
(A) assist the Director of Intellectual Property
Rights Enforcement of the Department of the Treasury in
the development of the annual strategic plan, and
coordinate the implementation of those aspects of the
plan that involve CBP;
(B) coordinate all efforts, at all ports of entry
and elsewhere, carried out by CBP in the enforcement of
intellectual property rights, including training and
staffing;
(C) supervise the implementation of those aspects
of the regulatory and policy reforms set out in this
title that involve CBP; and
(D) carry out such other duties, as assigned by the
Commissioner, the purpose of which is to improve the
performance of CBP in the enforcement of intellectual
property rights.
(b) ICE Coordinator.--
(1) Appointment.--The Assistant Secretary for United States
Immigration and Customs Enforcement shall appoint an ICE
coordinator of intellectual property enforcement activities
(referred to in this chapter as the ``ICE Coordinator''), who
shall report directly to the Assistant Secretary for ICE.
(2) Duties.--The ICE Coordinator shall--
(A) assist the Director of Intellectual Property
Rights Enforcement of the Department of the Treasury in
the development of the annual strategic plan, and
coordinate the implementation of those aspects of the
plan that involve ICE;
(B) coordinate all efforts carried out by ICE the
enforcement of intellectual property rights, including
training and staffing;
(C) supervise the implementation of those aspects
of the regulatory and policy reforms set out in this
title that involve ICE; and
(D) carry out such other duties, as assigned by the
Assistant Secretary for ICE, the purpose which is to
improve the performance of ICE in the enforcement of
intellectual property rights.
CHAPTER 2--REGULATORY AND POLICY IMPROVEMENTS AGAINST COUNTERFEITING
AND PIRACY
SEC. 321. IN GENERAL.
(a) Commissioner's Responsibilities.--The Commissioner, acting
through the CBP Coordinator, shall undertake the initiatives provided
in this chapter.
(b) CBP Coordinator's Responsibilities.--Except as otherwise
provided in this chapter, the CBP Coordinator shall--
(1) prepare an annual report on activities carried out
under this chapter; and
(2) provide the annual report to the Director of
Intellectual Property Rights Enforcement of the Department of
the Treasury in a timely manner that will permit its inclusion
in the annual strategic plan prepared under section 314.
SEC. 322. IDENTIFICATION OF CERTAIN UNLAWFUL GOODS.
(a) In General.--The Secretary of the Treasury, acting through the
Commissioner, shall accelerate efforts to apply risk assessment
modeling techniques to border enforcement activities to combat
counterfeiting and piracy. These efforts shall include, but not be
limited to--
(1) preparing a report and evaluation on CBP's pilot
project in risk assessment modeling with respect to shipments
of counterfeit or pirated products;
(2) expanding the pilot project to include development of a
rule set for the Automated Targeting System; and
(3) developing a plan for the development, testing,
evaluation, and continuous improvement of risk assessment
modeling techniques for purposes of targeting goods that
violate intellectual property rights.
(b) Inclusion in Strategic Plan.--The report specified in
subsection (a)(1), and the plan specified in subsection (a)(3), shall
be included in the annual strategic plan that is prepared under section
314.
SEC. 323. TRAINING IN NEW TECHNOLOGIES.
(a) Training of Personnel.--The Commissioner shall consult with the
Advisory Committee to determine the feasibility of training CBP
personnel in the use of new technological means for detecting and
identifying, at ports of entry, counterfeit and pirated goods, and
goods that are the subject of exclusion orders, whether for entry into
the United States or in transit to other destinations.
(b) Identification of Technologies and Sources of Training.--In
consultation with the Advisory Committee, the Commissioner shall
identify--
(1) new technologies with the cost-effective capability to
detect and identify goods described in subsection (a) at ports
of entry, and
(2) economical sources of training CBP personnel in using
such new technologies.
to the extent such training is determined to be feasible under
subsection (a).
(c) Regulatory and Policy Changes.--The United States Government
Accountability Office shall provide to the Congress a report analyzing
the costs and benefits of allowing necessary regulatory and policy
changes to enable the receipt of donations of hardware, software,
equipment, and similar technologies, and the acceptance of training and
other support services, from the private sector, to facilitate the
achievement of the purposes of this section.
SEC. 324. DISCLOSURE OF INFORMATION AND SAMPLES OF SHIPMENTS TO
INTELLECTUAL PROPERTY OWNERS.
The Commissioner shall make the necessary regulatory and policy
changes to--
(1) increase disclosure to owners of copyrights ,
trademarks, patents, and other forms of intellectual property
of information about shipments of goods that have been detained
at ports of entry on suspicion that their importation into, or
transit through, the United States would violate the
intellectual property rights of the owners of those rights,
including--
(A) disclosure of the identities and contact
information of all parties involved in the shipments,
including importers, exporters, declarants, consignees,
freight forwarders, and warehouse owners;
(B) providing documents relating to the shipments;
and
(C) identifying points of origin and destination of
the shipments; and
(2) improve the process of making available to
representatives of owners of copyrights, trademarks, patents,
and other forms of intellectual property, in an efficient and
cost-effective manner, samples of shipments of goods suspected
of infringing intellectual property rights, for the purpose of
inspection or analysis.
SEC. 325. IMPROVEMENTS TO RECORDATION PROCESS.
(a) Improvements in Recordation Process.--The Commissioner shall
make the necessary regulatory and policy changes to ensure that the
system for recordation of copyrights, trademarks, and other forms of
intellectual property that may be subject to recordation does not
impede the rapid seizure of goods that infringe the rights of the
owners of such copyrights, trademarks, and other forms of intellectual
property.
(b) Simultaneous Recordation.--
(1) In general.--In consultation with the Under Secretary
of Commerce for Intellectual Property and Director of the
United States Patent and Trademark Office, and the Register of
Copyrights, the Commissioner shall provide a system whereby
trademarks may be recorded with CBP simultaneously with the
issuance of trademark registration, and whereby copyrights of
audiovisual works and sound recordings may be recorded with CBP
simultaneously with the filing of an application for a
certificate of copyright registration or an application for
registration of another intellectual property right under title
17, United States Code.
(2) Definitions.--In this subsection, the terms
``audiovisual works'' and ``sound recordings'' have the
meanings given those terms in section 101 of title 17, United
States Code.
SEC. 326. IDENTIFICATION OF LOW-RISK SHIPPERS.
(a) Voluntary Certification Program.--The Commissioner shall create
a voluntary certification program, comparable to the Import Safety
Program established under section 304, for low-risk shippers that have
taken specific measures to strengthen and protect their supply chains
to prevent the infiltration of counterfeit and pirated goods, goods
that are the subject to exclusions orders, and goods that violate other
forms of intellectual property rights.
(b) Self Certifications; Verifications.--The program under
subsection (a) shall generally operate on a self-certification basis,
except that the Commissioner shall identify any circumstances in which
third party verifications and attestations are required for inclusion
in the program, which may include importations from the People's
Republic of China.
(c) Expedited Movement.--The Commissioner shall create incentives
for shippers to participate in the certification program, including
providing expedited movement of the goods of the shippers through the
customs inspection process.
(d) Definition.--In this section, the term ``international supply
chain'' has the meaning given that term in section 301.
SEC. 327. ``WATCH LIST'' DATABASE.
(a) In General.--The Commissioner shall prepare a plan for the
implementation of a ``Watch List'' database of importers, shippers,
freight forwarders, and other participants in the import, export, and
transshipment process, whose activities merit additional scrutiny at
ports of entry with respect to the risk of importation or transshipment
of counterfeit or pirated goods and goods that are the subject to
exclusions orders.
(b) Working Groups.--The Commissioner shall consult with the
Advisory Committee on the development of criteria for the ``Watch
List'' database.
(c) Information Sources.--The plan under subsection (a) shall
identify legitimate information sources for the database from within
CBP, from other law enforcement sources, and from the private sector.
(d) Criteria for Access to Database.--The plan under subsection (a)
shall specify criteria under which the database should be made
available to qualified CBP and other law enforcement officers, for
intelligence purposes, and for use in flagging and diverting for
enhanced scrutiny shipments to ports of entry that are associated with
entities listed in the database.
(e) Other Matters.--The plan under subsection (a) shall identify
any regulatory or policy changes that the Department of the Treasury
would make in order to bring the database into operation, as well as
any recommendations for needed changes to legislation to make the
database more effective. The plan shall also include budget estimates
for implementation and operation of the database, and for evaluation of
its effectiveness, and a timetable for such implementation.
(f) Timing.--The Commissioner shall complete the plan in a timely
fashion that will permit its inclusion in the first annual strategic
plan prepared under section 314.
SEC. 328. CIVIL FINES FOR IMPORTATION OF PIRATED OR COUNTERFEIT GOODS.
(a) Limitation on Mitigation, Dismissal, and Vacation of Fines.--
Unless otherwise ordered by a court of competent jurisdiction, any
civil fine imposed pursuant to section 526(f) of the Tariff Act of 1930
(19 U.S.C. 1526(f))--
(1) may not be mitigated, except pursuant to regulations
issued by the Commissioner; and
(2) may not be dismissed or vacated, except pursuant to
regulations issued by the Commissioner that require the
specific approval of the Commissioner or the Commissioner's
designee for such dismissal or vacation.
(b) Extraordinary Cases.--In issuing regulations under subsection
(a), the Commissioner shall ensure that the mitigation, dismissal, or
vacation of civil fines for involvement in the importation,
exportation, or transshipment of pirated or counterfeit goods is
limited to extraordinary cases in which the interests of justice will
clearly be served by such action.
(c) Report to Congress.--The Commissioner shall, not later than 180
days after the date of the enactment of this Act, report to the
Committee on Finance of the Senate and the Committee on Ways and Means
of the House of Representatives on the following:
(1) Whether CBP currently has the authority to employ
effective collection techniques for collecting civil fines it
imposes on participants in the importation, exportation, or
transshipment of pirated or counterfeit goods.
(2) If CBP lacks such authority, the Commissioner's
recommendations for legislation to provide CBP with such
authority.
(3) If CBP has such authority, how CBP is using such
authority, and with what results in terms of increased
collections of fines imposed.
(4) The Commissioner's recommendations on whether, in
specific cases, copyright or trademark owners should be
authorized to pursue and collect fines imposed because of
activities that infringe their intellectual property rights,
and whether such copyright or trademark owners should be
allowed to retain some or all of the funds that they collect.
(5) Any other recommendations for statutory, regulatory, or
policy changes not under the control of CBP that would improve
the ability of CBP to impose civil fines, at deterrent levels,
on participants in trafficking in counterfeit or pirated goods,
and to collect the fines imposed.
(d) Definition.--As used in subsection (c), the term ``effective
collection techniques'' includes--
(1) confiscation of the proceeds of acts for which civil
fines can be imposed;
(2) seizure of and execution upon property acquired with
such proceeds;
(3) imposition of liens on the real or personal property of
persons upon whom civil fines are imposed;
(4) use of bonds to secure full payment of fines;
(5) piercing the corporate veil of corporations upon which
civil fines are imposed, in order to satisfy the fine from the
assets of natural persons or of other legal persons; and
(6) engaging private sector entities to collect civil fines
imposed.
CHAPTER 3--TRAINING ENHANCEMENTS
SEC. 331. INTERNATIONAL TRAINING AND TECHNICAL ASSISTANCE ENHANCEMENTS.
The Secretary of the Treasury shall take the necessary steps--
(1) to increase staffing and resources of offices of CBP
and ICE engaged in providing training and technical assistance
to the customs services and enforcement agencies of other
countries in order to improve the effectiveness of such foreign
services and agencies in detecting, intercepting, and imposing
deterrent penalties upon the export, import, or transshipment
of counterfeit or pirated goods, goods that are the subject to
exclusions orders, and goods that violate other forms of
intellectual property rights;
(2) to ensure that the Director, in order to make the most
efficient and effective use of training and technical
assistance resources--
(A) coordinates the international training and
technical assistance activities of CBP and ICE as part
of the Director's coordination responsibilities under
subsections (a)(3) and (b)(3) of section 312;
(B) gives priority to such activities in those
countries where such programs can be carried out most
effectively and with the greatest benefit to protecting
the intellectual property rights of United States right
holders;
(C) takes steps to minimize duplication, overlap,
or inconsistency of international training and
technical assistance efforts; and
(D) coordinates such activities of the Department
of the Treasury with international training and
technical assistance activities against counterfeiting
and piracy carried out by other agencies, and enhances
the participation of Department of the Treasury
personnel in interagency training and technical
assistance activities in this field.
CHAPTER 4--NEW LEGAL TOOLS FOR BORDER ENFORCEMENT
SEC. 341. EXPANDED PROHIBITIONS ON IMPORTATION OR EXPORTATION OF
COUNTERFEIT OR PIRATED GOODS.
Section 526 of the Tariff Act of 1930 (19 U.S.C. 1526) is amended--
(1) in the section heading, by inserting ``or protected by
copyright'' after ``trademark'';
(2) in subsection (e), by inserting ``or exported from the
United States'' after ``imported into the United States'';
(3) in subsection (f), by striking paragraph (1) and
inserting the following:
``(1) Any person who engages in, directs, assists
financially or otherwise, or aids and abets the importation or
exportation of merchandise that is seized under subsection (e)
of this section, or under regulations issued pursuant to
section 603(c) of title 17, United States Code, shall be
subject to a civil fine.''; and
(4) in subsection (f)--
(A) by redesignating paragraph (4) as paragraph
(5); and
(B) by inserting after paragraph (3) the following:
``(4) When the seizure giving rise to the civil fine is made under
circumstances indicating that the importation or exportation was for
the purpose of sale or public distribution of the good seized, the
maximum fine amounts set forth in paragraphs (2) and (3) shall be
tripled.''.
SEC. 342. DECLARATIONS REGARDING COUNTERFEIT AND INFRINGING
MERCHANDISE.
(a) Declarations.--Section 485(a) of the Tariff Act of 1930 (19
U.S.C. 1485(a)), is amended--
(1) in paragraph (1), by striking ``Whether'' and inserting
``whether'';
(2) in paragraph (2), by striking ``That'' and inserting
``that'';
(3) in paragraph (3)--
(A) by striking ``That'' and inserting ``that'';
and
(B) by striking ``and'' after the semicolon;
(4) in paragraph (4)--
(A) by striking ``That'' and inserting ``that'';
and
(B) by striking the period and inserting a
semicolon; and
(5) by adding at the end the following:
``(5) that the merchandise being imported does not bear a
mark that is counterfeit as that term is defined in section 45
of the of July 5, 1946 (commonly referred to as the `Trademark
Act of 1946'; 15 U.S.C. 1127);
``(6) that the merchandise is not an infringing copy or
phonorecord or one whose making would have constituted an
infringement of copyright if title 17, United States Code, had
applied; and
``(7) that the merchandise does not violate--
``(A) does not violate an exclusion order of the
United States International Trade Commission under
section 337(d) by reason of any of subparagraphs (B)
through (E) of subsection (a)(1) of section 337; or
``(B) infringe any other intellectual property
right not covered by subparagraph (A) or by paragraph
(5) or (6).''.
(b) Regulations.--The Secretary of the Treasury shall issue
regulations requiring that the declarations required by paragraphs (5),
(6), and (7) of section 485(a) of the Tariff Act of 1930 be made by all
persons arriving in the United States with respect to articles carried
on their person or contained in their baggage.
CHAPTER 5--REGULATORY AUTHORITY
SEC. 351. REGULATORY AUTHORITY.
The Secretary may issue such regulations as are necessary to carry
out this subtitle.
Subtitle C--Administrative Provisions
SEC. 361. DEFINITIONS.
In this subtitle:
(1) Assistant secretary for ice.--The term ``Assistant
Secretary for ICE'' means the Assistant Secretary for U.S.
Immigration and Customs Enforcement.
(2) Commissioner.--The term ``Commissioner'' means the
Commissioner responsible for U.S. Customs and Border
Protection.
(3) CBP.--The term ``CBP'' means U.S. Customs and Border
Protection.
(4) ICE.--The term ``ICE'' means U.S. Immigration and
Customs Enforcement.
(5) Secretary.--The term ``Secretary'' means the Secretary
of the Treasury.
SEC. 362. ADVISORY COMMITTEE ON IMPORT SAFETY AND INTELLECTUAL PROPERTY
ENFORCEMENT.
(a) Establishment.--
(1) In general.--The Secretary, acting through the
Commissioner and the Assistant Secretary for ICE, shall
establish an advisory committee which shall be known as the
``Advisory Committee on Import Safety and Intellectual Property
Rights Enforcement'' (in this title referred to as the
``Advisory Committee)''.
(2) Membership.--The Advisory Committee shall consist of 20
members appointed by the Secretary. In making appointments to
the Advisory Committee, the Secretary shall ensure that--
(A) the membership of the Advisory Committee is
representative of the individuals and organizations
affected by the enforcement of health or safety and
intellectual property rights by CBP and ICE;
(B) at least one member of the Advisory Committee
is a representative of organized labor;
(C) at least one member of the Advisory Committee
is a representative of consumer groups; and
(D) a majority of the members of the Advisory
Committee do not belong to the same political party.
(b) Duties.--The Advisory Committee shall--
(1) provide advice to the Secretary, the Commissioner, and
the Assistant Secretary for ICE on all matters involving the
enforcement of import safety and intellectual property rights
by CBP and ICE; and
(2) submit an annual report to the Committee on Finance of
the Senate and the Committee on Ways and Means of the House of
Representatives that shall--
(A) describe the operations of the Advisory
Committee during the preceding year; and
(B) set forth any recommendations of the Advisory
Committee regarding the enforcement of intellectual
property rights by CBP and ICE.
(c) Presiding Officers.--The Commissioner and the Assistant
Secretary for ICE shall preside over meetings of the Advisory
Committee.
SEC. 363. STAFFING ENHANCEMENTS AT CBP.
(a) Authorization of Appropriations.--There are authorized to be
appropriated to CBP such funds as may be necessary for additional
personnel (as determined in accordance with the Resource Allocation
Model established pursuant to section 301(h) of the Customs Procedural
Reform and Simplification Act of 1978 (19 U.S.C. 2075(h)) to carry out
the additional responsibilities of CBP under this title regarding the
importation, transshipment, and exportation of counterfeit or pirated
goods, goods that are the subject to exclusions orders, goods that
violate other forms of intellectual property rights, and goods that
violate United States health or safety laws.
(b) Amendment.--Section 301(h)(1) of the Customs Procedural Reform
and Simplification Act of 1978 (19 U.S.C. 2075(h)) is amended--
(1) in subparagraph (F), by striking ``and'' at the end;
(2) in subparagraph (G), by striking the period at the end
and inserting ``; and''; and
(3) by adding at the end the following:
``(H) enforcing provisions of law relating to
health and safety.''.
SEC. 364. STAFFING ENHANCEMENTS AT ICE.
There are authorized to be appropriated to ICE such funds as may be
necessary for additional personnel to carry out the additional
responsibilities of ICE under this title regarding the enforcement of
United States health and safety laws and the enforcement of
intellectual property rights, including for developing and implementing
a training program with respect to United States health and safety laws
and intellectual property rights for each ICE attache office around the
World.
Subtitle D--Authorization of Appropriations
SEC. 371. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for each fiscal year such
sums as may be necessary to carry out this title and the amendments
made by this title.
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