< Back to H.R. 5090 (100th Congress, 1987–1988)

Text of the United States-Canada Free-Trade Agreement Implementation Act of 1988

This bill was enacted after being signed by the President on September 28, 1988. The text of the bill below is as of Sep 28, 1988 (Passed Congress/Enrolled Bill).

PUBLIC LAW 100-449—SEPT. 28, 1988                               102 STAT. 1851

Public Law 100-449
100th Congress
                                     An Act
                                                                                      Sept. 28, 1988
           To implement the United States-Canada Free-Trade Agreement.
                                                                                       [H.R. 5090]
 Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,                                      United States-
                                                                                     Canada Free-
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.                                        Trade
 (a) SHORT TITLE.—This Act may be cited as the "United States-                       Agreement
Canada Free-Trade Agreement Implementation Act of 1988".                             Implementation
                                                                                     Act of 1988.
  (b) TABLE OF CONTENTS.—                                                            Exports.
Sec. 1. Short title and table of contents.                                           Imports.
Sec. 2. Purposes.                                                                    19 u s e 2112
                                                                                     note.
TITLE I—APPROVAL OF UNITED STATES-CANADA FREE-TRADE AGREE-
   MENT AND RELATIONSHIP OF AGREEMENT TO UNITED STATES LAW
Sec. 101. Approval of United States-Canada Free-Trade Agreement.
Sec. 102. Relationship of the £igreement to United States law.
Sec. 103. Consultation and lay-over requirements for, and effective date of, pro-
            claimed actions.
Sec. 104. Harmonized System.
Sec. 105. Implementing actions in anticipation of entry into force.
       TITLE II—TARIFF MODIFICATIONS, RULES OF ORIGIN, USER FEES,
        DRAWBACK, ENFORCEMENT, AND OTHER CUSTOMS PROVISIONS
Sec.   201. Tariff modifications.
Sec.   202. Rules of origin.
Sec.   203. Customs user fees.
Sec.   204. Drawback.
Sec.   205. Enforcement.
Sec.   206. Exemption from lottery ticket embargo.
Sec.   207. Production-based duty remission programs with respect to automotive
              products.
   TITLE III—APPLICATION OF AGREEMENT TO SECTORS AND SERVICES
Sec. 301. Agriculture.
Sec. 302. Relief from imports.
Sec. 303. Acts identified in national trade estimates.
Sec. 304. Negotiations regarding certain sectors; biennial reports.
Sec. 305. Energy.
Sec. 306. Lowered threshold for Grovemment procurement under Trade Agreements
            Act of 1979 in the case of certain Canadian products.
Sec. 307. Temporary entry for business persons.
Sec. 308. Amendment to section 5136 of the Revised Statutes.
Sec. 309. Steel products.
 TITLE IV—BINATIONAL PANEL DISPUTE SETTLEMENT IN ANTIDUMPING
                      AND COUNTERVAILING DUTY CASES
Sec. 401. Amendments to section 516A of the Tariff Act of 1930.
Sec. 402. Amendments to title 28, United States Code.
Sec. 403. Conforming amendments to the Tariff Act of 1930.
Sec. 404. Amendments to antidumping and countervailing duty law.
Sec. 405. Organizational and administrative provisions regarding the implementa*
            tion of chapters 18 and 19 of the Agreement.
Sec. 406. Authorization of appropriations for the Secretariat, the panels, and the
            committees.
Sec. 407. Testimony and production of papers in extraordinary chfdlenges.

102 STAT. 1852 PUBLIC LAW 100-449—SEPT. 28, 1988 Sec. 408. Requests for review of Canadian antidumping and countervailing duty determinations. Sec 409. Subsidies. Sec. 410. Termination of agreement. TITLE V—EFFECTIVE DATES AND SEVERABILITY Sec. 501. Effective dates. Sec. 502. Severability. 19 u s e 2112 SEC. 2. PURPOSES. ^°^' The purposes of this Act are— (1) to approve and implement the Free-Trade Agreement between the United Stat^ and Canada n^otiated under the authority of section 102 of the Trade Act of 1974; (2) to strengthen and develop economic relations between the United States and Canada for their mutual benefit; (3) to establish a free-trade area between the two nations through the reduction and elimination of barriers to trade in goods and services and to investment; and (4) to lay the foundation for further cooperation to expand and enhance the benefits of such Agreement. 19 u s e 2112 TITLE I—APPROVAL OF UNITED STATES- note. CANADA FREE-TRADE AGREEMENT AND RELATIONSHIP OF AGREEMENT TO UNITED STATES LAW SEC. 101. APPROVAL OF UNITED STATES-CANADA FREE-TRADE AGREEMENT. (a) APPROVAL OF AGREEMENT AND STATEMENT OF ADMINISTRATIVE ACTION.—Pursuant to sections 102 and 151 of the Trade Act of 1974 (19 U.S.C. 2112 and 2191), the Congress approves— (1) the United StatesOanada Free-Trade Agreement (herein- after in this Act referred to as the "Agreement") entered into on January 2, 1988, and submitted to the Congress on July 25, 1988; (2) the letters exchanged between the Governments of the United States and (Canada— (A) dated January 2,1988, relating to n^otiations regard- ing articles 301 (Rules of Origin) and 401 (Tariff Elimi- nation) of the Agreement, and (B) dated January 2,1988, relating to n^otiations regard- ing article 2008 (Plywood Standards) of the Agreement; and (3) the statement of administrative action proposed to imple- ment the Agreement that was submitted to the Congress on July 25,1988. President of U.S. (b) CONDITIONS FOR E N T R Y I N T O F O R C E OF THE AGREEMENT.—At such time as the President determines that Canada has taken measures necessary to comply with the obligations of the Agree- ment, the President is authorized to exchange notes with the Government of Canada providing for the entry into force, on or after January 1,1989, of the Agreement with respect to the United States, (c) REPORT ON CANADIAN PnAcncaES.—Within 60 dajrs after the date of the enactment of this Act (but not later than December 15, 1988), the United States Trade Representative shall submit to the
^J>^^ PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1853 Congress a report identifying, to the maximum extent practicable, major current Canadian practices (and the l ^ a l authority for such practices) that, in the opinion of the United States Trade Representative— (1) are not in conformity with the Agreement; and (2) require a change of Canadian law, regulation, policy, or practice to enable Canada to conform with its international obligations under the Agreement. SEC. 102. RELATIONSHIP OF THE AGREEMENT TO UNITED STATES LAW. (a) UNITED STATES LAWS TO PREVAIL IN CONFUCT.—No provision of the Agreement, nor the application of any such provision to any person or circumstance, which is in conflict with any law of the United States shall have effect. (b) RELATIONSHIP OF AGREEI«IENT TO STATE AND LOCAL LAW.— (1) The provisions of the Agreement prevail over— (A) any conflicting State law; and (B) any conflicting application of any State law to any person or circumstance; to the extent of the confUct. (2) Upon the enactment of this Act, the President shall, in President of U.S. accordance with section 306(cX2XA) of the Trade and Tariff Act of 1984 (19 U.S.C. 2114c), initiate consultations with the State governments on the implementation of the obligations of the United States under the Agreement. Such consultations shall be held— (A) through the intergovernmental policy advisory committees on trade established under such section for the purpose of achieving conformity of State laws and practices with the Agreement; and (B) with the individual States as necessary to deal with particular questions that may arise. (3) The United States may bring an action challenging any provision of State law,' or the application thereof to any person or circumstance, on the ground that the provision or application is inconsistent with the Agreement. (4) For purposes of this subsection, the term "State law" includes— (A) any law of a political subdivision of a State; and (B) any State law r^ulating or taxing the business of insurance. (c) EFFECT OF AcREEikfENT W I T H RESPECT TO PRIVATE REMEDIES.— No person other than the United States shall— (1) have any cause of action or defense under the Agreement or by virtue of congressional approval thereof, or (2) challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of the United States, any State, or any political subdivision of a State on the ground that such action or inaction is inconsistent with the Agreement. (d) INITIAL IMPLEMENTING REGULATIONS.—Initial r^ulations nec- essary or appropriate to carry out the actions proposed in the statement of administrative action submitted under section 101(aX3) to implement the Agreement shall, to the maximum extent feasible, be issued vdthin 1 year after the date of entry into force of the Agreement. In the case of any implementing action that takes effect after the date of entry into force of the Agreement, initial r^ula-
102 STAT. 1854 PUBLIC LAW 100-449—SEPT. 28, 1988 tions to c a n y out that action shall, to the maximum extent feasible, be issued within 1 year after such effective date. (e) CHANGES IN STATUTES To IMPLEMENT A REQUIREMENT, AMEND- MENT, OR RECOMMENDATION.—The provisions of section 3(c) of the Trade Agreements Act of 1979 (19 U.S.C. 2504(c)) shall apply as if the Agreement were an agreement approved under section 2(a) of that Act whenever the President determines that it is necessary or appropriate to amend, repeal, or enact a statute of the United States in order to implement any requirement of, amendment to, or rec- ommendation, finding or opinion under, the Agreement; but such provisions shall not apply to any bill to implement any such require- ment, amendment, recommendation, finding, or opinion that is submitted to the Congress after the close of the 30th month after the month in which the Agreement enters into force. SEC. 103. CONSULTATION AND LAY-OVER REQUIREMENTS FOR, AND EFFECTIVE DATE OF, PROCLAIMED ACTIONS. (a) CONSULTATION AND LAY-OVER REQUIREMENTS.—If a provision of this Act provides that the implementation of an action by the President by proclamation is subject to the consultation and lay-over requirements of this section, such action may be proclaimed only if— (1) the President has obtained advice regarding the proposed action from— (A) the appropriate advisory committees established under section 135 of the Trade Act of 1974, and (B) the United States International Trade Commission; Reports. (2) the President has submitted a report to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate that sets forth— (A) the action proposed to be proclaimed and the resisons therefor, and (B) the advice obtained under paragraph (1); (3) a period of at least 60 calendar days that begins on the first day on which the President has met the requirements of para- graphs (1) and (2) with respect to such action has expired; and (4) the President has consulted with such Committees regard- ing the proposed action during the period referred to in para- graph (3). Federal (b) EFFECTIVE DATE OF CERTAIN PROCLAIMED ACTIONS.—No action Register, proclaimed by the President under the authority of this Act, if such publication. action is not subject to the consultation and lay-over requirements under subsection (a), may take effect before the 15th day after the date on which the text of the proclamation is published in the Federal Register. SEC. 104. HARMONIZED SYSTEM. (a) DEFINITION.—As used in this Act, the term "Harmonized System" means the nomenclature system established under the International Convention on the Harmonized C!ommodity Descrip- tion and Coding System (done at Brussels on June 14, 1983, and the protocol thereto, done at Brussels on June 24, 1986) as implemented under United States law. Tariff Schedules (b) INTERIM APPUCATION OF T S U S . — T h e following apply if the of the U.S. International Convention, and the protocol thereto, referred to in subsection (a) are not implemented under United States law before the Agreement enters into force:
• -~'4g-«^ PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1855 (1) The President, subject to subsection (c), shall proclaim President of U.S. such modifications to the Teiriff Schedules of the United States (19 U.S.C. 1202) as may be necessary to give effect, until such time as such Convention and protocol are so implemented, to the rules of origin, schedule of rate reductions, and other provi- sions that would, but for the absence of such implementation, be proclaimed under the authority of this Act to, or in terms of, the Harmonized Sjrstem to implement the obligations of the United States under the Agreement. (2) Until such time as such Convention and protocol are so implemented, any reference in this Act to the nomenclature of such Convention and protocol shall be treated as a reference to the corresponding nomenclature of the Tariff Schedules of the United States as modified under paragraph (1). (c) RESTRICTIONS.— (1) No modification described in subsection ObXD that is to Federal take effect concurrently with the entry into force of the Agree- Register, ment may be proclaimed unless the text of the modification is publication. published in the Federal Register at least 30 days before the date of entry into force. (2) All modifications proclaimed under the authority of subsection (bXD after the Agreement enters into force with respect to the United States are subject to the consultation and lay-over requirements of section 103(a). SEC. 105. IMPLEMENTING ACTIONS IN ANTICIPATION OF ENTRY INTO FORCE. Subject to section 103 or 104(c), as appropriate, and any other applicable restriction or limitation in this Act on the proclaiming of actions or the issuing of r ^ u l a t i o n s to carry out this Act or any amendment made by this Act, after the date of the enactment of this Act— (1) the President may proclaim such actions; and (2) other appropriate officers of the United States Govern- ment may issue such r^ulations; as may be necessary to ensure that any provision of this Act, or amendment made by this Act, that takes effect on the date the Agreement enters into force is appropriately implemented on such date, but no such proclamation or regulation may have an effective date earlier than the date of entry into force. TITLE II—TARIFF MODIFICATIONS, 19 use 2112 RULES OF ORIGIN, USER FEES, DRAW- '^°*" BACK, ENFORCEMENT, AND OTHER CUSTOMS PROVISIONS SEC. 201. TARIFF MODIFICATIONS. (a) TARIFF MODIFICATIONS SPECIFIED IN THE AGREEMENT.—^The President may proclaim— (1) such modifications or continuance of any existing duty; (2) such continuance of existing duty-free or excise treatment; or (3) such additional duties;
102 STAT. 1856 PUBLIC LAW 100-449—SEPT. 28, 1988 as the President determines to be necessary or appropriate to carry out article 401 of the Agreement and the schedule of duty reductions with respect to Canada set forth in Annexes 401.2 and 401.7 to the Agreement, as approved under section lOl(aXl). For purposes of proclaiming necessary modifications under such Annex 401.2, any article covered under subheading 9813.00.05 (contained in the United States Schedule in such Annex) shall, unless such article is a drawback eligible good under section 204(a), be treated as being subject to any otherwise applicable customs duty if the article, or merchandise incorporating such article, is exported to Canada. (b) OTHER TARIFF MODIFICATIONS.—Subject to the consultation and lay-over requirements of section 103(a), the President may proclaim— (1) such modifications as the United States and Canada may agree to regarding the staging of any duty treatment set forth in Annexes 401.2 and 401.7 of the Agreement; (2) such modifications or continuance of any existing duty; (3) such continuance of existing duty-free or excise treatment; or (4) such additional duties; as the President determines to be necessary or appropriate to maintain the general level of reciprocal and mutually advantageous concessions with respect to Canada provided for by the Agreement. (c) MODIFICATIONS AFFECTING PLYWOOD.— (1) The Congress encourages the President to facilitate the preparation, and the implementation with Canada, of common performance standards for the use of softwood plywood and other structural panels in construction applications in the United States and Canada. President of U.S. (2) The President shall report to the Congress on the incorpo- Reports. ration of common plywood performance standards into building codes in the United States and Canada and may implement the provisions of article 2008 of the Agreement when he determines that the necessary conditions have been met. (3) Any tariff reduction undertaken pursuant to paragraph (2) shall be in equal annual increments ending January 1, 1998, unless those reductions commence after January 1, 1991. SEC. 202. RULES OF ORIGIN. (a) IN GENERAL.— (1) For purposes of implementing the tariff treatment con- templated under the Agreement, goods originate in the terri- tory of a Party if— (A) they are wholly obtained or produced in the territory of either Party or both Parties; or (B) they— (i) have been transformed in the territory of either Party or both Parties so as to be subject to a change in tariff classification as described in the Annex rules or to such other requirements as the Annex rules may provide when no change in tariff classifications occurs, and (ii) meet the other conditions set out in the Annex. (2) A good shall not be considered to originate in the territory of a party under paragraph (1)(B) merely by virtue of having undergone—
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1857 (A) simple packaging or, except as expressly provided by the Annex rules, combining operations; (B) mere dilution with water or another substance that does not materially alter the characteristics of the good; or (C) any process or work in respect of which it is estab- lished, or in respect of which the facts as ascertained clearly justify the presumption, that the sole object was to circumvent the provisions of chapter 3 of the Agreement. (3) Accessories, spare parts, or tools delivered with any piece Motor vehicles. of equipment, machinery, apparatus, or vehicle that form part of its standard equipment shall be treated as having the same origin as that equipment, machinery, apparatus, or vehicle if the quantities and values of such accessories, spare parts, or tools are customary for the equipment, machuiery, apparatus, or vehicle. (b) TRANSSHIPMENT.—(roods exported from the territory of one Party originate in the territory of that Party only if— (1) the goods meet the applicable requirements of subsection (a) and are shipped to the territory of the other Party without having entered the commerce of any third country; (2) the goods, if shipped through the territory of a third country, do not undergo any operation other than unloading, reloadmg, or any operation necessary to transport them to the territory of the other Party or to preserve them in good condi- tion; and (3) the documents related to the exportation and shipment of the goods from the territory of a Party show the territory of the other Party as their final destination. (c) INTERPRETATION.—In interpreting this section, the following apply: (1) Whenever the processing or assembly of goods in the territory of either Party or both Parties results in one of the changes in tarifT classification described in the Annex rules, such goods shall be considered to have been transformed in the territory of that Party and shall be treated as goods originating in the territory of that Party if^ (A) such processing or assembly occurs entirely within the territory of either Party or both Parties; and (B) such goods have not subsequently undergone any processing or assembly outside the territories of the Parties that improves the goods in condition or advances them in value. (2) Whenever the assembly of goods in the territory of a Party fails to result in a change of tariff classification because either— (A) the goods were imported into the territory of the Party in an unassembled or a disassembled form and were classified as unassembled or disassembled goods pursuant to General Rule of Interpretation 2(a) of the Harmonized System; or (B) the tariff subheading for the goods provides for both the goods themselves and their parts; such goods shall not be treated as goods originating in the territory of a Party. (3) Notwithstanding paragraph (2), goods described in that paragraph shall be considered to have been transformed in the
102 STAT. 1858 PUBLIC LAW 100-449—SEPT. 28, 1988 territory of a Party and be treated as goods originating in the territory of the Party if— (A) the value of materials originating in the territory of either Party or both Parties used or consumed in the production of the goods plus the direct cost of assembling the goods in the territory of either Party or both Parties constitute not less than 50 percent of the value of the goods when exported to the territory of the other Party; and (B) the goods have not subsequent to assembly undergone processing or further assembly in a third country and they meet the requirements of subsection (b). (4) The provisions of paragraph (3) shall not apply to goods of chapters 61-63 of the Harmonized System. (5) In making the determination required by paragraph (3XA) and in making the same or a similar determination when required by the Annex rules, where materials originating in the territory of either Party or both Parties and materials obtained or produced in a third country are used or consumed together in the production of goods in the territory of a Party, the value of materials originating in the territory of either Party or both Parties may be treated as such only to the extent that it is directly attributable to the goods under consideration. (6) In applying the Annex rules, a specific rule shall take precedence over a more general rule. President of U.S. (d) ANNEX RULES.— (1) The President is authorized to proclaim, as a part of the Harmonized System, the rules set forth under the heading "Rules" in Annex 301.2 of the Agreement. For purposes of carrying out this paragraph— (A) the phrase "headings 2207-2209" in paragraph 7 of section IV of such Annex 301.2 shall be treated as a ref- erence to headings 2203-2209; and (B) the phrase "any other heading" in paragraph 11 of section XV in such Annex 301.2 shall be treated as a reference to any other heading of chapter 74 of the Har- monized System. (2) Subject to the consultation and lay-over requirements of section 103, the President is authorized to proclaim such modi- fications to the rules as may from time-to-time be agreed to by the United States and Canada. (e) AUTOMOTIVE PRODUCTS.— President of U.S. (1) The President is authorized to proclaim such modifications to the definition of Canadian articles (relating to the adminis- tration of the Automotive Products Trade Act of 1965) in the general notes of the Harmonized System as may be necessary to conform that definition with chapter 3 of the Agreement. Regulations. (2) For purposes of administering the value requirement (as defined in section 304(cX3)) with respect to vehicles, the Sec- retary of the Treasury shall prescribe regulations governing the averaging of the value content of vehicles of the same class, or of sister vehicles, assembled in the same plant as an alternative to the calculation of the value content of each vehicle. (0 DEFINITIONS.—For purposes of this section: (1) The term "Annex ' means— (A) the interpretative guidelines set forth in subsection (c); and (B) the Annex rules.
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1859 (2) The term "Annex rules" means the rules proclaimed under subsection (d). (3) The term "direct cost of processing or direct cost of assem- bling" means the costs directly incurred in, or that can reason- ably be allocated to, the production of goods, including— (A) the cost of all labor, including benefits and on-the-job training, labor provided in connection with supervision, quality control, shipping, receiving, storage, packaging, management at the location of the process or assembly, and other like labor, whether provided by employees or independent contractors; (B) the cost of inspecting and testing the goods; (C) the cost of energy, fuel, dies, molds, tooling, and the depreciation and maintenance of machinery and equip- ment, without regard to whether they originate within the territory of a Party; (D) development, design, and engineering costs; (E) rent, mortgage interest, depreciation on buildings, property insurance premiums, maintenance, taxes and the cost of utilities for real property used in the production of goods; and (F) royalty, licensing, or other like payments for the right to the goods; but not including— (i) costs relating to the general expense of doing business, such as the cost of providing executive, finan- cial, sales, advertising, marketing, accounting and legal services, and insurance; (ii) brokerage charges relating to the importation and exportation of goods; (iii) the costs for telephone, mail, and other means of communication; (iv) packing costs for exporting the goods; (v) royalty payments related to a licensing agreement to distribute or sell the goods; (vi) rent, mortgage interest, depreciation on build- ings, property insurance premiums, maintenance, taxes, and the cost of utilities for real property used by personnel charged with administrative functions; or (vii) profit on the goods. (4) The term "goods wholly obtained or produced in the territory of either Party or both Parties" means— (A) mineral goods extracted in the territory of either Party or both Parties; (B) goods harvested in the territory of either Party or both Parties; (C) live animals born and raised in the territory of either Party or both Parties; (D) goods (fish, shellfish, and other marine life taken from the sea by vessels registered or recorded with a Party and flying its flag; (E) goods produced on board factory ships from the goods referred to in subparagraph (D) provided such factory ships are registered or recorded with that Party and fly its flag; (F) goods taken by a Party or a person of a Party from the seabed or beneath the seabed outside territorial waters, provided that Party has rights to exploit such seabed;
102 STAT. 1860 PUBLIC LAW 100-449—SEPT. 28, 1988 (G) goods taken from space, provided they are obtained by a Party or a person of a Party and not processed in a third country; (H) waste and scrap derived from manufacturing oper- ations and used goods, provided they were collected in the territory of either Party or both Parties and are fit only for the recovery of raw materials; and (I) goods produced in the territory of either Party or both Parties exclusively from goods referred to in subparagraphs (A) to (H) inclusive or from their derivatives, at any stage of production. (5) The term "materials" means goods, other than those included as part of the direct cost of processing or assembling, used or consumed in the production of other goods. (6) The term "Party" means Canada or the United States. (7) The term "territory" means— (A) with respect to Canada, the territory to which its customs laws apply, including any areas beyond the terri- torial seas of Canada within which, in accordance with international law and its domestic laws, Canada may exer- cise rights with respect to the seabed and subsoil and their natural resources; and (B) with respect to the United States— (i) the customs territory of the United States, which includes 4he fifty States, the District of Columbia and the Commonwealth of Puerto Rico, (ii) the foreign trade zones located in the United States, and the Commonwealth of Puerto Rico, and (iii) any area beyond the territorial seas of the United States within which, in accordance with international law and its domestic laws, the United States may exercise rights with respect to the seabed and subsoU and their natural resources. (8) The term "third country" means any country other than Canada or the United States or any territory not a part of the territory of either. (9) The term "value of materials originating in the territory of eitiier Party or both Parties" means the aggregate of— (A) the price paid by the producer of an exported good for materials originating in the territory of either Party or both Parties or for materials imported from a third country used or consumed in the production of such originating materials; and (B) when not included in that price, the following costs related thereto— (i) fi*eight, insurance, packing, and all other costs incurred in transporting any of the materials referred to in subparagraph (A) to the location of the producer; (ii) duties, taxes, and brokerage fees on such mate- rials paid in the territory of ei^er Party or both Parties; "^ (iii) the cost of waste or spoUage resulting from the use or consumption of such materials, less the value of renewable scrap or byproduct; and (iv) the value of goods and services relating to such materials determined in accordance with subparagraph 1(b) of article 8 of the Agreement on Implementation of
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1861 article VII of the General Agreement on Tariffs and Trade. (10) The term "value of the goods when exported to the territory of the other Party" means the aggregate of— (A) the price paid by the producer for all materials, whether or not the materials originate in either Party or both Parties, and, when not included in the price paid for the materials, the costs related to— (i) freight, insurance, packing, and all other costs incurred in transporting all materials to the location of the producer; (ii) duties, taxes, and brokerage fees on all materials psdd in the territory of either Party or both Parties; (iii) the cost of waste or spoilage resulting from the use or consumption of such materials, less the value of renewable scrap or byproduct; and (iv) the value of goods and services relating to all materials determined in accordance with subparagraph 1(b) of article 8 of the Agreement on Implementation of article VII of the Greneral Agreement on Tariffs and Trade; and (B) the direct cost of processing or the direct cost of assembling the goods. (g) SPECIAL PROVISION REGARDING APPUCATION OF RULES OF ORIGIN TO CJERTAIN APPAREL.—The Secretary of Commerce is au- Regulations. thorized to issue regulations governing the exportation to Canada of apparel products that are cut, or knit to shape, and sewn, or otherwise assembled, in either Party from fabric produced or ob- tained in a third country for the purpose of establishing which exports of such products shall be permitted to claim preferential tariff treatment under the rules of origin of the Agreement, to the extent that the Agreement provides for quantitative limits on the availability of preferential tariff treatment for such products. SEC. 203. CUSTOMS USER FEES. Section 13031(b) of the Consolidated Omnibus Reconciliation Act of 1985 (19 U.S.C. 58c(b)) is amended by adding at the end thereof the following new paragraph: "(10) The fee charged under subsection (aXlO) of this section with respect to goods of Canadian origin (as determined under section 202 of the United States-Canada Free-Trade Agreement Implementation Act of 1988) shall be in accordance with article 403 of the United States-Canada Free-Trade Agreement. Any service for which an exemption from such fee is provided by reason of this paragraph may not be funded with money contained in the Customs User Fee Account.". SEC. 204. DRAWBACK. (a) DEFINITION.—For purposes of this section, the term "drawback eligible goods" means— (1) goods provided for under paragraph 8 of article 404 of the Agreement; (2) goods provided for under paragraphs 4 and 5 of such article; and (3) goods other than those referred to in paragraphs (1) and (2) that the United States and Canada agree are not subject to paragraphs 1, 2, and 3 of such article.
102 STAT. 1862 PUBLIC LAW 100-449—SEPT. 28, 1988 No drawback may be paid with respect to countervailing duties or antidumping duties imposed on drawback eligible goods. President of U.S. (b) IMPLEMENTATION OF ARTICLE 404.—The President is authorized— (1) to proclaim the identity, in accordance with the nomen- clature of the Harmonized System, of goods referred to in subsection (aXD; and (2) subject to the consultation and lay-over requirements of section 103(a), to proclaim— (A) the identity, in accordance with the nomenclature of the Harmonized System, of goods referred to in subsection (a)(3); and (B) a delay in the taking effect of article 404 of the Agreement to a date later than January 1, 1994, with respect to any merchandise if the United States and Canada agree to the delay under paragraph 7 of such article. (c) CONSEQUENTIAL AMENDMENTS.— (1) BONDED MANUFACTURING WAREHOUSES.—Section 311 of the Tariff Act of 1930 (19 U.S.C. 1311) is amended by adding at the end thereof the following new paragraph: "No article manufactured in a bonded warehouse, except to the extent that such article is made from an article that is a drawback eligible good under section 204(a) of the United States-Canada Free- Trade Agreement Implementation Act of 1988, may be withdrawn from such warehouse for exportation to Canada on or after January 1, 1994, or such later date as may be proclaimed by the President under section 2040t>)(2)(B) of such Act of 1988, without payment of a duty on such imported merchandise in its condition, and at the rate of duty in effect, at the time of importation.". (2) BONDED SMELTING AND REFINING WAREHOUSES.—Section 312 of the Tariff Act of 1930 (19 U.S.C. 1312) is further amended— (A) by inserting after "exportation" in each of paragraphs (1) and (4) of subsection (b) the following: "(other than exportation to Canada on or after January 1, 1994, or such later date as may be proclaimed by the President under section 204(bX2XB) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, except to the extent that the metal-bearing materials were of Canadian origin as determined in accordance with section 202 of such Act of 1988)"; and (B) by inserting after "exportation" in subsection (d) the following: "(other than exportation to Canada on or after January 1, 1994, or such later date as may be proclaimed by the President under section 204(bX2XB) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, except to the extent that the product is a drawback eligible good under section 204(a) of such Act of 1988)". (3) DRAWBACK.—Section 313 of the Tariff Act of 1930 (19 U.S.C. 1313) is amended by adding at the end thereof the following new subsections: "(n) For purposes of subsections (a), (b), (f), (h), and (jX2), the shipment on or after January 1, 1994, or such later date as may be proclaimed by the President under section 204(bX2XB) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, to Canada of an article made from or substituted for, as appropriate,
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1863 a drawback eligible good under section 204(a) of such Act of 1988 does not constitute an exportation. "(o) For purposes of subsection (g), vessels built for Canadian Maritime account and ownership, or for the Government of Canada, may not affairs. be considered to be built for any foreign account and ownership, or for the government of any foreign country, except to the extent that the materials in such vessels are drawback eligible goods under section 204(a) of the United States-Canada Free-Trade Agreement Implementation Act of 1988.". (4) MANIPULATION IN WAREHOUSE.—The second sentence of section 562 of the Tariff Act of 1930 (19 U.S.C. 1562) is amended by striking out the proviso thereto and the colon preceding such proviso and inserting the following: "; except that upon permis- sion therefor being granted by the Secretary of the Treasury, and under customs supervision, at the expense of the proprietor, merchandise may be cleaned, sorted, repacked, or otherwise changed in condition, but not manufactured, in bonded ware- houses established for that purpose and be withdrawn there- from without payment of duties— "(1) for exportation to Canada, but on or after January 1, 1994, or such later date as may be proclaimed by the President under section 2040t)X2XB) of the United States- Canada Free-Trade Agreement Implementation Act of 1988, such exemption from the payment of duties applies only in the case of the exportation to Canada of merchandise that— "(A) is only cleaned, sorted, or repacked in a bonded warehouse, or "(B) is a drawback eligible good under section 204(a) of such Act of 1988; "(2) for exportation to any foreign country except Canada; and "(3) for shipment to the Virgin Islands, American Samoa, Territories, U.S. Wake Island, Midway Island, Kingman Reef, Johnston Island or the island of Guam. Merchandise may be withdrawn from bonded warehouse for consumption, or for exportation to Canada if the duty exemp- tion under paragraph (1) of the preceding sentence does not apply, upon the payment of duties accruing thereon, in its condition and quantity, and at its weight, at the time of with- drawal from warehouse, with such additions to or deductions from the final appraised value as may be necessary by reason of change in condition.". (5) FOREIGN TRADE ZONES.—Section 3(a) of the Act of June 18, 1934 (commonly known as the "Foreign Trade Zones Act"; 19 U.S.C. 81c) is further amended by adding before the period at the end thereof the following: "Provided, further, That with the exception of drawback eligible goods under section 204(a) of the United States-Canada Free-Trade Agreement Implementation Act of 1988, no article manufactured or otherwise changed in condition (except a change by cleaning, testing or repacking) shall be exported to Canada on or after January 1,1994, or such later date as may be proclaimed by the President under section 204(bX2)(B) of such Act of 1988, without the payment of a duty that shall be payable on the article in its condition and quan- tity, and at its weight, at the time of its exportation to Canada unless the privilege in the first proviso to this subsection was requested.".
102 STAT. 1864 PUBLIC LAW 100-449—SEPT. 28, 1988 SEC. 205. ENFORCEMENT. Records. (a) CERTIFICATIONS OF ORIGIN.— (1) Any person that certifies in writing that goods exported to Canada meet the rules of origin under section 202 of the United States-Canada Free-Trade Agreement Implementation Act of 1988 shall provide, upon request by any customs official, a copy of that certification. (2) Any person that fails to provide a copy of a certification requested under paragraph (1) shall be liable to the United States for a civil penalty not to exceed $10,000. Fraud. (3) Any person that certifies falsely that goods exported to Canada meet the rules of origin under such section 202 shall be liable to the United States for the same civil penalties provided under section 592 of the Tariff Act of 1930 (19 U.S.C. 1592) for a violation of section 592(a) of such Act by fraud, gross negligence, or negligence, as the case may be. The procedures and provi- sions of section 592 of such Act that are applicable to a violation under section 592(a) of such Act shall apply with respect to such false certification. (b) RECORDKEEPING REQUIREMENTS.—Section 508 of the Tariff Act of 1930 (19 U.S.C. 1508) is amended— (1) by redesignating subsections (b) and (c) as subsections (c) and (d), respectively; (2) by inserting "and (b)" after "(a)" in subsection (c), as so redesignated; (3) by adding after subsection (a) the following new subsection: "(b) Any person who exports, or who knowingly causes to be exported, any merchandise to Canada shall make, keep, and render for examination and inspection such records (including certifications of origin or copies thereof) which pertain to such exportations."; and (4) by adding at the end thereof the following new subsection: "(e) Any person who fails to retain records required by subsection (b) or the regulations issued to implement that subsection shall be liable to a civil penalty not to exceed $10,000.". SEC. 206. EXEMPTION FROM LOTTERY TICKET EMBARGO. Section 305(a) of the Tariff Act of 1930 (19 U.S.C. 1305(a)) is amended by striking out the period at the end of the first paragraph Effective date. and inserting the folloMring: ": Provided further. That effective January 1, 1993, this section shall not apply to any lottery ticket, printed paper that may be used as a lottery ticket, or advertisement of any lottery, that is printed in Canada for use in connection with a lottery conducted in the United States.". SEC. 207. PRODUCTION-BASED DUTY REMISSION PROGRAMS WITH RESPECT TO AUTOMOTIVE PRODUCTS. (a) USTR STUDY.—The United States Trade Representative shall— (1) undertake a study to determine whether any of the produc- tion-based duty remission programs of Canada with respect to automotive products is either— (A) inconsistent with the provisions of, or otherwise denies the benefits to the United States under, the General Agreement on Tariffs and Trade, or (B) being implemented inconsistently with the obligations under article 1002 of the Agreement not— (i) to expand the extent or the application, or
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1865 (ii) to extend the duration, of such programs; and (2) determine whether to initiate an investigation under sec- tion 302 of the Trade Act of 1974 with respect to any of such production-based duty remission programs. 0)) REPORT AND MONITORING.— (1) The United States Trade Representative shall submit a report to Congress no later than June 30,1989 (or no later than September 30, 1989, if the Trade Representative considers an extension to be necessary) containing— (A) the results of the study under subsection (aXD, as well as a description of the basis used for measuring and verify- ing compliance with the obligations referred to in subsec- tion (aXlXB); and (B) any determination made under subsection (aX2) and the reasons therefor. (2) Notwithstanding the submission of the report under para- graph (1), the Trade Representative shall continue to monitor the degree of compliance with the obligations referred to in subsection (aXlXB). TITLE III—APPLICATION OF AGREEMENT 19 u s e 2112 note. TO SECTORS AND SERVICES SEC. 301. AGRICULTURE. (a) SPECIAL TARIFF PROVISIONS FOR FRESH FRUITS AND VEGETABLES.— (1) The Secretary of Agriculture (hereafter in this section referred to as the "Secretary") may recommend to the President the imposition of a temporary duty on any Canadian fresh fruit or vegetable entered into the United States if the Secretary determines that both of the following conditions exist at the time that imposition of the duty is recommended: (A) For each of 5 consecutive working days the import price of the Canadian fresh fruit or vegetable is below 90 percent of the corresponding 5-year avergige monthly import price for such fruit or vegetable. (B) The planted acreage in the United States for the like fresh fruit or vegetable is no higher than the average planted acreage over the preceding 5 years, excluding the years with the highest and lowest acreage. For the purposes of applying this subpar^raph, any acreage increase attrib- uted directly to a reduction in the acreage that w£is planted to wine grapes as of October 4, 1987, shall be excluded. Whenever the Secretary makes a determination that the condi- Federal tions referred to in subparagraphs (A) and (B) regarding any Register, Canadian fresh fruit or vegetable exist, the Secretary shall Publication. promptly submit for publication in the Federal Register notice of the determination. (2) In determining whether to recommend the imposition of a temporary duty to the President under par£igraph (1), the Sec- retary shall consider whether the conditions in subparagraphs (A) and (B) of such paragraph have led to a distortion in trade between the United States and Canada of the fresh fruit or vegetable and, if so, whether the imposition of the duty is
102 STAT. 1866 PUBLIC LAW 100-449—SEPT. 28, 1988 appropriate, including consideration of whether it would signifi- cantly correct this distortion. President of U.S. (3) Not later than 7 days after receipt of a recommendation of the Secretary under paragraph (1), the President, after taking into account the national economic interests of the United States, shaU determine whether to impose a temporary duty on the Canadian fresh fruit or v^etable concerned. If the deter- mination is affirmative, the President shall proclaim the im- position and the rate of the temporary duty, but such duty shall not apply to the entry of articles that were in transit to the United States on the fost day on which the temporary duty is in effect. Termination (4) A temporary duty imposed under paragraph (3) shall cease date. to apply with respect to articles that are entered on or after the earlier of— (A) the day following the last of 5 consecutive working days with respect to which the Secretary determines that the point of shipment price in Canada for the Canadian fruit or v^etable concerned exceeds 90 percent of the corresponding 5-year average monthly import price; or (B) the 180th day after the date on which the temporary duty first took effect. (5) No temporary duty may be imposed under this subsection on a Canadian fresh fruit or vegetable during such time as import relief is provided with respect to such fresh fruit or v^etable under chapter 1 of title II of the Trade Act of 1974. (6) For purposes of this subsection: (A) The term "Canadian fresh fruit or vegetable" means any article originating in Canada (as determined in accord- ance with section 202) and classified within any of the following headings of the Harmonized S3rstem: (i) 07.01 (relating to potatoes, fresh or chilled); (ii) 07.02 (relating to tomatoes, fresh or chilled); (iii) 07.03 (relating to onions, shallots, garlic, leeks and other alliaceous vegetables, fresh or chilled); (iv) 07.04 (relating to cabbages, cauliflowers, kohlrabi, kale and similar edible brassicas, fresh or chilled); (v) 07.05 (relating to lettuce (lactuca sativa) and chic- ory (cichorium spp.), fresh or chilled); (vi) 07.06 (relating to carrots, salad beets or beetroot, salsify, celeriac, radishes and similar edible roots (excluding turnips), fresh or chilled); (vii) 07.07 (relating to cucumbers and gherkins, fresh or chilled); (viii) 07.08 (relating to leguminous vegetables, shelled or unshelled, fresh or chilled); (ix) 07.09 (relating to other v^etables (excluding truf- fles), fresh or chilled); (x) 08.06.10 (relating to grapes, fresh); (xi) 08.08.20 (relating to pears and quinces, fresh); (xii) 08.09 (relating to apricots, cherries, peaches (including nectarines), plums and sloes, fresh); and (xiii) 08.10 (relating to other fruit (excluding cran- berries and blueberries), fresh). (B) The term "corresponding 5-year average monthly import price" for a particular day means the average import price of a Canadian fresh fruit or v^etable, for the
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1867 calendar month in which that day occurs, for that month in each of the preceding 5 years, excluding the years with the highest and lowest monthly averages. (C) The term "import price" h£is the meaning given such term in article 711 of the Agreement. (D) The rate of a temporary duty imposed under this subsection with respect to a Canadian fresh fruit or vegeta- ble means a rate that, including the rate of any other duty in effect for such fruit or vegetable, does not exceed the lesser of— (i) the duty that was in effect for the fresh fruit or Tariff Schedules vegetable before January 1, 1989, under column one of oftheU.S. the Tariff Schedules of the United States for the ap- plicable season in which the temporary duty is applied; or (ii) the duty in effect for the fresh fruit or vegetable under column one of such Schedules, or column 1 (General) of the Harmonized System, at the time the temporary duty is applied. (7XA) The Secretary shall, to the extent practicable, admin- ister the provisions of this subsection to the 8-digit level of classification under the Harmonized System. (B) The Secretary may issue such regulations as may be necessary to implement the provisions of this subsection. (8) For purposes of assisting the Secretary in carrying out this suljsection, the Commissioner of Customs and the Director of the Bureau of Census shall cooperate in providing the Secretary with timely information and data relating to the importation of Canadian fresh fruits and vegetables. (9) The authority to impose temporary duties under this Termination subsection expires on the 20th anniversary of the date on which date. the Agreement enters into force. OJ) MEAT IMPORT ACT OF 1979.—The Meat Import Act of 1979 (19 U.S.C. 2253 note) is amended— (1) by inserting at the end of subsection (bX2) the following flush sentence: "Such term does not include any article described in subpara- graph (A), (B), or (C) originating in Canada (as determined in accordance with section 202 of the United States-Canada Free- Trade Agreement Implementation Act of 1988)."; (2) by striking out '^ 1,204,600,000" in subsection (c) and insert- ing "1,147,600,000"; (3) by striking out "1,250,000,000 pounds" in subsection (fXD and inserting "(A) 1,193,000,000 pounds if no import limitation on Canadian products is in effect under subsection (1), or (B) 1,250,000,000 pounds if an import limitation on Canadian prod- ucts is in effect under subsection (1)"; (4) by inserting "other than Canada" after "countries" each place it appears in subsection (i); and (5) by amending subsection (1) to read £is follows: "a) If the President— "(l)has— "(A) proclaimed limitations on meat articles under the preceding provisions of this section, or "(B) entered into one or more agreements other than with Canada regarding meat articles pursuant to section 204 of the Agricultural Act of 1956; and
102 STAT. 1868 PUBLIC LAW 100-449—SEPT. 28, 1988 "(2) determines that the Government of Canada has not taken equivalent action; the President may by proclamation limit the total quantities of articles described in subsection (bX2) (A), (B), and (C) and originating in Canada (as determined in accordance with section 202 of the United States-Canada Free-Trade Agreement Implementation Act of 1988) that may enter the United States. A limitation imposed under the preceding sentence shall be only to the extent that, and only for such period of time as, the President determines sufficient to prevent frustration of the limitations placed on meat articles imported from other countries under this section or actions taken with respect to meat articles under agreements negotiated pursuant to section 204 of the Agricultural Act of 1956.". (c) AGRICULTURAL ADJUSTMENT ACT.—Section 22(f) of the Agricul- tural Adjustment Act, as reenacted with amendments by the Agri- cultural Marketing Agreement Act of 1937 (7 U.S.C. 624(f)), is amended by inserting immediately after "section" the following: "; except that the President may, pursuant to articles 705.5 and 707 of the United States-Canada Free-Trade Agreement, exempt prod- ucts of Canada from any import restriction imposed under this section". Diseases. (d) IMPORTATION OP ANIMAL VACCINES.—The second sentence of Hazardous the eighth paragraph of the matter under the heading "BUREAU materials. OF ANIMAL INDUSTRY" of the Act of March 4,1913 (37 Stat. 832, chapter 145; 21 U.S.C. 152) is amended to read as follows: "The importation into the United States of any virus, serum, toxin, or analogous product for use in the treatment of domestic animals, and the importation of any worthless, contaminated, dangerous, or harmful virus, serum, toxin, or analogous product for use in the treatment of domestic animals, is prohibited without (1) a permit from the Secretary of Agriculture, or (2) in the case of an article originating in Canada, such permit or, in lieu of such permit, such certification by Canada as may be prescribed by the Secretary of Agriculture.". (e) IMPORTATION OP SEEDS.—Subsection (e) of section 302 of the Federal Seed Act (7 U.S.C. 1582(e)) is amended to read as follows: "(e) The provisions of this title requiring certain seeds to be stained shall not apply— "(1) to alfalfa or clover seed originating in Canada, or "(2) when seeds otherwise required to be stained will not be sold within the United States and will be used for seed produc- tion only by or for the importer or consignee and the importer of record or consignee files a statement in accordance with the rules and regulations prescribed under section 402 certifying that such seeds will be used only for seed production by or for the importer or consignee.". Hazardous (f) PLANT AND ANIMAL HEALTH REGULATIONS.— materials. (1) Section 103 of the Federal Plant Pest Act (7 U.S.C. 150bb) is amended— (A) in subsection (a), by striking out "No" and inserting in lieu thereof "Except as provided in subsection (c), no'; and (B) by adding at the end thereof the following new subsection: Pests and "(c) No person shall move any plant pest from Canada into or pesticides. through the United States or accept delivery of any plant pest moving from Canada into or through the United States, unless such
"a^f!.*? PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1869 movement is made in accordance with such regulations as the Secretary may promulgate under this section to prevent the dissemi- nation into the United States of plant pests.". (2) Section 104 of the Federal Plant Pest Act (7 U.S.C. 150cc) is amended— (A) in subsection (a), by striking out "Any letter" and inserting in lieu thereof "Except as provided in subsection 0>), any letter"; (B) by redesignating subsections 0)) and (c) as subsections (c) and (d), respectively; and (C) by inserting after subsection (a) the following new subsection: "OJ) Any letter, parcel, box, or other package from Canada Mail. containing any plant pest, whether sealed as letter-rate postal Pests and pesticides. matter or not, is declared to be nonmailable, and shall not know- ingly be conveyed in the mail or delivered from any post office or by any mail carrier, except in accordance with such regulations as the Secretary may promulgate under this section to prevent the dissemi- nation into the United States of plant pests.". (3) The Act of August 20, 1912 (37 Stat. 315, chapter 308; 7 U.S.C. 154 et seq.) is amended— (A) in the first section (7 U.S.C. 154), by striking out "Provided" the first place it appears and inserting in lieu thereof "Provided, That the Secretary of Agriculture may waive the permit requirement for nursery stock imported or offered for entry from Canada: Provided further'; and (B) by adding at the end of section 2 (7 U.S.C. 156) the following new sentence: "This section shall not apply to nursery stock that arrives from, or is imported from, Canada.". (4) Subsection (a) of section 4 of the Federal Noxious Weed Act of 1974 (7 U.S.C. 2803(a)) is amended to read as follows: "(a) No person shall knowingly move any noxious weed identified in a regulation promulgated by the Secretary into or through the United States or interstate, unless such movement is— "(1) from Canada, or authorized under general or specific permit from the Secretary; and "(2) made in accordance with such conditions as the Secretary may prescribe in the permit and in such regulations as the Secretary may prescribe under this Act to prevent the dissemi- nation into the United States, or interstate, of such noxious (5) Section 306 of the Tariff Act of 1930 (19 U.S.C. 1306) is amended by inserting after subsection (a) the following new subsection: "(b) Notwithstanding subsection (a), the Secretary of Agriculture Meat. may permit, subject to such terms and conditions as the Secretary of Diseases. Agriculture determines appropriate, the importation of cattle, sheep, or other ruminants, or swine (including embryos of such animals) or the fresh, chilled, or frozen meat of such animals from a region of Canada notwithstanding the existence of rinderpest or foot-and-mouth disease in Canada, if— "(1) the United States and Canada have entered into an agreement delineating the criteria for recognizing that a geo- graphical region of either country is free from rinderpest or foot-and-mouth disease; and 10-101 n—91—Part '.
102 STAT. 1870 PUBLIC LAW 100-449—SEPT. 28, 1988 "(2) the appropriate official of the government of Canada certifies that the region of Canada from which the animal or meat originated is free from rinderpest and foot-and-mouth disease.". SEC. 302. RELIEF FROM IMPORTS. (a) RELIEF FROM IMPORTS OF CANADIAN ARTICLES.— (1) A petition requesting action under this section for the purpose of adjusting to the obligations of the United States under the A^*eement may be filed with the United States International Trade Commission (hereafter in this section re- ferred to as the "Commission") by an entity, including a trade association, firm, certified or recognized union, or group of workers, which is representative of an industry. The Commis- sion shall transmit a copy of any petition filed under this paragraph to the United States Trade Representative. (2XA) Upon the filing of a petition under paragraph (1), the Commission shall promptly initiate an investigation to deter- mine whether, as a result of a reduction or elimination of a duty provided for under the United States-Canada Free-Trade Agree- ment, an article originating in Canada is being imported into the United States in such increased quantities, in absolute terms, and under such conditions, so that imports of such Canadian article, alone, constitute a substantial cause of serious injury to the domestic industry producing an article like, or directly competitive with, the imported article. (B) The provisions of— (i) paragraphs (2), (3), (4), (6), and (7) of subsection (b), other than paragraph (2XB), and Cii) subs6ctjioii (c) of section 201 of the Trade Act of 1974 (19 U.S.C. 2251), as in effect on June 1,1988, shaU apply with respect to any investiga- tion initiated under subparagraph (A). (C) By no later than the date that is 120 days after the date on which an investigation is initiated under subparagraph (A), the (Dommission shall make a determination under subparagraph (A) with respect to such investigation. (D) If the determination made by the (Dommission under subparagraph (A) with respect to imports of an article is affirmative, the Commission shall find and recommend to the President the amount of import relief that is necessary to remedy the injury found by the Commission in such affirmative determination, which shall be limited to that set forth in para- graph (3XC). Reports. (EXi) By no later than the date that is 30 da3rs after the date on which a determination is made under subparagraph (A) with respect to an investigation, the O)mmission shall submit to the President a report on the determination and the basis for the determination. The report shall include any dissenting or sepa- rate views and a transcript of the hearings and any briefs which were submitted to the Commission in the course of the inves- tigation initiated under subparagraph (A). (ii) Any finding made under subparagraph (D) shall be in- cluded in the report submitted to the President under clause (i). Public (F) Upon submitting a report to the President under subpara- information. graph (E), the Commission shall promptly make public such Classified report (with the exception of information which the O)minission information. Federal Register, publication.
•-^ W i W H ^ ^ I W f W ^ T - T ;4" " PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1871 determines to be confidential) and shall cause a summary thereof to be published in the Federal Register. (G) For purposes of this subsection— (i) The provisions of paragraphs (1), (2), and (3) of section 330(d) of the Tariff Act of 1930 (19 U.S.C. 1330(d)) shall be applied with respect to determinations and findings made under this paragraph as if such determinations and find- ings were made under section 201 of the Trade Act of 1974 (19 U.S.C. 2251). (ii) The determination of whether an article originates in Canada shall be made in accordance with section 202 (including any proclamations issued under section 202). (3XA) By no later than the date that is 30 days after the date President of U.S. on which the President receives the report of the Commission containing an affirmative determination made by the Commis- sion under paragraph (2XA), the President shall provide relief from imports of the article originating in Canada that is the subject of such determination to the extent that, and for such time (not to exceed 3 years) as the President determines to be necessary to remedy the injury found by the Commission. (B) The President is not required to provide import relief by reason of this paragraph if the President determines that the provision of such import relief is not in the national economic interest. (C) The import relief that the President is authorized to provide by reason of this paragraph with respect to an article originating in Canada is limited to— (i) the suspension of any further reductions provided for under the Agreement in the duty imposed on such article originating in Canada, (ii) an increase in the rate of duty imposed on such article originating in Canada to a level that does not exceed the lesser of— (I) the most-favored-nation rate of duty that is im- posed by the United States on such article from any other foreign country at the time such import relief is provided, or (II) the most-favored-nation rate of duty that is im- posed by the United States on such article from any other foreign country on the day before the date on which the Agreement enters into force, or (iii) in the case of a duty applied on a seasonal basis to such article originating in Canada, an increase in the rate of duty imposed on such article originating in Canada to a level that does not exceed the most-favored-nation rate of duty imposed by the United States on such article originat- ing in Canada for the corresponding season immediately prior to the date on which the Agreement enters into force. (4)(A) No investigation may be initiated under paragraph (2XA) with respect to any article for which import relief has been provided under this subsection. (B) No import relief may be provided under this subsection after the date that is 10 years after the date on which the Agreement enters into force. (5) For purposes of section 123 of the Trade Act of 1974 (19 U.S.C. 2133), any import relief provided by the President under
102 STAT. 1872 PUBLIC LAW 100-449—SEPT. 28, 1988 paragraph (3) shall be treated as action taken under chapter I of title II of such Act. Business and (b) R E U E F F R O M IMPORTS F R O M A L L COUNTRIES.— industry. dXA) If, in any investigation initiated under chapter 1 of title Reports. u of the Trade Act of 1974, the Commission makes an affirma- tive determination (or a determination which is treated as an affirmative determination under such chapter by reason of section 330(d) of the Tariff Act of 1930) that an article is being imported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic industry, the (Commission shall also find (and report to the President at the time such injury determination is submitted to the President), whether imports from Canada of the article that is the subject of such investigation are substan- tial and are contributing importantly to such injury or threat thereof. (B)(i) In determining under subparagraph (A) whether im- ports of an article from Canada are substantial, the ([!!ommission shedl not normally consider imports from Canada in the range of 5 to 10 percent or less of total imports of such article to be substantial. (ii) For purposes of this paragraph, the term "contributing importantly" means an important cause, but not necessarily the most important cause, of the serious injury or threat thereof caused by imports. (2XA) In determining whether to take action under chapter 1 of title II of the Trade Act of 1974 with respect to imports from Canada, the President shall determine whether imports from Canada of such article are substantial and contributing impor- tantly to the serious injury or threat of serious injury found by the (Commission. (B) In determining the nature and extent of action to be taken under chapter 1 of title II of the Trade Act of 1974, the Presi- dent shall exclude from such action imports from Canada if the President has made a negative determination under subpara- graph (A) regarding imports from Canada. (3XA) If, under paragraph (2XB), the President excludes im- ports from Canada from action taken under chapter 1 of title II of the Trade Act of 1974, the President may, if the President thereafter determines that a surge in imports from Canada of the article that is the subject of the action is undermining the effectiveness of the action, take appropriate action under such chapter with respect to such imports from Canada to include such imports in such action. (BXi) If, under paragraph (2)(B), the President excludes im- ports from Canada from action taken under chapter 1 of title II of the Trade Act of 1974, any entity, including a trade associa- tion, firm, certified or recognized union, or group of workers, that is representative of an industry for which such action is ' being taken under such chapter may request the Commission to conduct an investigation of imports from Canada of the article that is the subject of such action. (ii) Upon receiving a request under clause (i), the Commission shall conduct an investigation to determine whether a surge in imports from Canada of the article that is the subject of action being taken under chapter 1 of title II of the Trade Act of 1974 undermines the effectiveness of such action. The Commission
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1873 shall submit the findings of such investigation to the President by no later than the date that is 30 days after the date on which such request is received by the Commission. (C) For purposes of this paragraph, the term "surge" means a significant increcise in imports over the trend for a reasonable, recent base period for which data are available, (c) Any entity that is representative of an industry may submit a petition for relief under subsection (a), under chapter 1 of title II of the Trade Act of 1974, or under both subsection (a) and such chapter at the same time. If petitions are submitted by such an entity under subsection (a) and such chapter at the same time, the Commission shall consider such petitions jointly. SEC. 303. ACTS IDENTIFIED IN NATIONAL TRADE ESTIMATES. With respect to any act, policy, or practice of Canada that is identified in the annual report submitted under section 181 of the Trade Act of 1974 (19 U.S.C. 2241), the United States Trade Rep- resentative shall include— (1) information with respect to the action taken regarding such act, policy, or practice, including but not limited to— (A) any action under section 301 of the Trade Act of 1974 (including resolution through appropriate dispute settle- ment procedures), (B) any action under section 307 of the Trade and Tariff Act of 1984, and (C) negotiations or consultations, whether on a bilatered or multilateral basis; or (2) the reasons that no action was taken regarding such act, policy, or practice. SEC. 304. NEGOTIATIONS REGARDING CERTAIN SECTORS; BIENNIAL President of U.S. REPORTS. (a) IN GENERAL.— (1) The President is authorized to enter into negotiations with the Government of Canada for the purpose of concluding an agreement (including an agreement amending the Agreement) or agreements to— (A) liberalize trade in services in accordance with article 1405 of the Agreement; (B) liberalize investment rules; Securities. (C) improve the protection of intellectual property rights; Patents and (D) incroEise the value requirement applied for purposes trademarks. of determining whether an automotive product is treated as Motor vehicles. originating in Canada or the United States; and (E) liberalize government procurement practices, particu- Contracts. larly with regard to telecommunications. Communications (2) As an exercise of the foreign relations powers of the and tele- President under the Constitution, the President will enter into communications. Transportation. immediate consultations with the Government of Canada to Agriculture and obtain the exclusion from the transport rates established under agricultural Canada's Western Grain Transportation Act of agricultural commodities. goods that originate in Canada and are shipped via east coast ports for consumption in the United States. Ot») NEGOTIATING OBJECTIVES REGARDING SERVICES, INVESTMENT, AND INTELLECTUAL PROPERTY RIGHTS.—
102 STAT. 1874 PUBLIC LAW 100-449—SEPT. 28, 1988 (1) The objectives of the United States in negotiations con- ducted under subsection (aXlXA) to liberalize trade in services include— (A) with respect to developing services sectors not covered in the Agreement, the elimination of those tariff, nontariff, and subsidy trade distortions that have potential to affect significant bilateral trade; (B) the elimination or reduction of measures grand- fathered by the Agreement that deny or restrict national treatment in the provision of services; (C) the elimination of local presence requirements; and (D) the liberalization of government procurement of services. In conducting such negotiations, the President shall consult with the services advisory committees established under section 135 of the Trade Act of 1974 (19 U.S.C. 2155). (2) The objectives of the United States in any negotiations conducted under subsection (aXl)(B) to liberalize investment rules include— (A) the elimination of direct investment screening; (B) the extension of the principles of the Agreement to energy and cultural industries, to the extent such indus- tries are not currently covered by the Agreement; (C) the elimination of technology transfer requirements and other performance requirements not currently barred by the Agreement; and (D) the subjection of all investment disputes to dispute resolution under chapter 18 of the Agreement. In conducting such negotiations, the President shall consult with persons representing diverse interests in the United States in investment. (3) The objectives of the United States in any negotiations conducted under subsection (aXlXC) to improve the protection of intellectual property rights include— (A) the recognition and adequate protection of intellec- tual property, including copyrights, patents, process pat- ents, trademarks, mask works, and trade secrets; and (B) the establishment of dispute resolution procedures and binational enforcement of intellectual property standards. In conducting such negotiations, the President shall consult with persons representing diverse interests in the United States in intellectual property, (c) NEGOTIATING OBJECTIVES REGARDING AUTOMOTIVE PRODUCTS.— (1) In conducting negotiations under subsection (aXlXD) regarding the value requirement for automotive products, the President shall seek to conclude an agreement by no later than January 1, 1990, to increase the vgdue requirement from 50 percent to at least 60 percent. (2) The President is authorized, through January 1, 1999, to proclaim any agreed increase in the value requirement. (3) As used in this section, the term "value requirement" means the minimum percenta^ge of the value of an automotive product that must be accounted for by the value of the mate- rials in the product that originated in the United States or Csuiada, or both, plus the direct cost of processing or assembly
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1875 performed in the United States or Canada, or both, with respect to the product. (d) NEGOTIATION OF LIMITATION ON POTATO TRADE.— (1) During the 5-year period beginning on the date of enact- ment of this Act, the President is authorized to enter into negotiations with Canada for the purpose of obtaining an agree- ment to limit the exportation and importation of all potatoes between the United States and Canada, including seed potatoes, fresh, chilled or frozen potatoes, dried, desiccated or dehydrated potatoes, and potatoes otherwise prepared or preserved. Any agreement negotiated under this subsection shall provide for an annual limitation divided equally into each half of the year. (2) For the purpose of conducting negotiations under para- graph (1), the Secretary of Agriculture and the United States Trade Representative shall consult with representatives of the potato producing industry, including the Ad Hoc Potato Advisory Group and the United States/Canada Horticultural Industry Advisory Committee, to solicit their views on negotia- tions with Canada for reciprocal quantitative limits on the potato trade. (3) The President is authorized to direct the Secretary of the Treasury to— (A) carry out such actions as may be necessary or appro- priate to ensure the attainment of the objectives of any agreement that is entered into under this section; and (B) enforce any quantitative limitation, restriction, and other terms contained in the agreement. Such actions may include, but are not limited to, requirements Records, that valid export licenses or other documentation issued by a foreign government be presented as a condition for the entry into the United States of any article that is subject to the agreement. (4) The provisions of section 1204 of the Agriculture and Food Act of 1981 (7 U.S.C. 1736J) and the last sentence of section 812 of the Agricultural Act of 1970 (7 U.S.C. 612c-3) shall not apply in the case of actions taken pursuant to this subsection. (e) CANADIAN CONTROLS ON FISH.— (1) Within 30 days of the application by Canada of export controls on unprocessed fish under statutes exempted from the Agreement under article 1203, or the application of landing requirements for fish caught in Canadian waters, the President shall take appropriate action to enforce United States rights under the General Agreement on Tariffs and Trade that are retained in article 1205 of the Agreement. (2) In enforcing the United States rights referred to in para- graph (1), the President has discretion to— (A) bring a challenge to the offending CanadiEui practices before the GATT; (B) retaliate against such offending practices; (C) seek resolution directly with Canada; (D) refer the matter for dispute resolution to the Canada- United States Trade Commission; or (E) take other action that the President considers appro- priate to enforce such United States rights. (f) BIENNIAL REPORT.—The President shall submit to the Congress, at the close of each biennial period occurring after the date on which the Agreement enters into force, a report regarding—
102 STAT. 1876 PUBLIC LAW 100-449—SEPT 28, 1988 (1) the status of the negotiations regarding agreements that the President is authorized to enter into with Canada under this section; (2) the effectiveness and operation of any agreement entered into under section 304 that is in force with respect to the United States; (3) the effectiveness of operation of the Agreement generally; and (4) the actions taken by the United States and Canada to implement further the objectives of the Agreement. SEC. 305. ENERGY. (a) ALASKAN OIL.—Section 7(dXl) of the Export Administration Act of 1979 (50 U.S.C. App. 2406(dXl)) is amended— (1) by striking "or" before "(B)"; and Transportation. (2) by inserting after "reenters the United States" the follow- Maritime ing: ", or (C) is transported to Canada, to be consumed therein, affairs. in amounts not to exceed an annual average of 50,000 barrels per day, in addition to exports under subparagraphs (A) and (B), except that any ocean trsuisportation of such oil shall be by vessels documented under section 12106 of title 46, United States Code". (b) URANIUM.—Section 161(v) of the Atomic Energy Act of 1954 (42 U.S.C. 2201(v)) is amended by inserting "For purposes of this subsec- tion and of section 305 of Public Law 99-591 (100 Stat. 3341-209, 210), 'foreign origin' excludes source or special nuclear material originating in Canada." before "The Commission shall establish". SEC. 306. LOWERED THRESHOLD FOR GOVERNMENT PROCUREMENT UNDER TRADE AGREEMENTS ACT OF 1979 IN THE CASE OF CERTAIN CANADIAN PRODUCTS. Section 308(4) of the Trade Agreements Act of 1979 (19 U.S.C. 2518(4)) is amended by inserting after subparagraph (C) the follow- ing new subparagraph: "(D) LOWERED THRESHOLD FOR CERTAIN PRODUCTS AS A CONSEQUENCE OF UNITED STATES-CANADA FREE-TRADE AGREE- MENT.—Except as otherwise agreed by the United States and Canada under paragraph 3 of article 1304 of the United States-Canada Free-Trade Agreement, the term 'eligible product' includes a product or service of Canada having a contract value of $25,000 or more that would be covered for procurement by the United States under the GATT Agree- ment on CJovernment Procurement, but for the SDR thresh- old provided for in article I(l)(b) of the GATT Agreement on Government Procurement.". SEC. 307. TEMPORARY ENTRY FOR BUSINESS PERSONS. (a) NONIMMIGRANT TRADERS AND INVESTORS.—Upon a b a s i s of reciprocity secured by the United States^anada Free-Trade Agree- ment, a citizen of Canada, and the spouse and children of any such citizen if accompanying or following to join such citizen, may, if otherwise eligible for a visa and if otherwise admissible into the United States under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), be considered to be classifiable as a nonimmigrant under section 101(aX15XE) of such Act (8 U.S.C. 1101(aX15XE)) if entering solely for a purpose specified in Annex 1502.1 (United States of America), Part B—Traders and Investors, of such Agree-
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1877 ment, but only if any such purpose shall have been specified in such Annex as of the date of entry into force of such Agreement. (b) NONIMMIGRANT PROPESSIONAM.—Section 214 of the Immigra- tion and Nationality Act (8 U.S.C. 1184) is amended by adding at the end thereof the following new subsection: "(e) Notwithstanding any other provision of this Act, an alien who is a citizen of Canada and seeks to enter the United States under and pursuant to the provisions of Annex 1502.1 (United States of America), Part C—Professionals, of the United States-Canada Free- Trade Agreement to engage in business activities at a professional level as provided for therein may be admitted for such purpose under regulations of the Attorney General promulgated after con- sultation with the Secretaries of State and Labor.". SEC. 308. AMENDMENT TO SECTION 5136 OF THE REVISED STATUTES. Paragraph "Seventh" of section 5136 of the Revised Statutes (12 U.S.C. 24 (Seventh)) is amended by adding at the end thereof the following: "A national banking association may deal in, underwrite, and Banks and purchase for such association's own account qualified Canadian banking. government obligations to the same extent that such association Securities. may deal in, underwrite, and purchase for such association's own account obligations of the United States or general obligations of any State or of any political subdivision thereof. For purposes of this paragraph— "(1) the term 'qualified Canadian government obligations' means any debt obligation which is backed by Canada, any Province of Canada, or any political subdivision of any such Province to a degree which is comparable to the liability of the United States, any State, or any political subdivision thereof for any obligation which is backed by the full faith and credit of the United States, such State, or such political subdivision, and such term includes any debt obligation of any agent of Canada or any such Province or any political subdivision of such Prov- ince if— "(A) the obligation of the agent is assumed in such agent's capacity as agent for Canada or such Province or such political subdivision; and "(B) Canada, such Province, or such political subdivision on whose behalf such agent is acting with respect to such obligation is ultimately and unconditionally liable for such obligation; £md "(2) the term 'Province of Canada' means a Province of Canada and includes the Yukon Territory and the Northwest Territories and their successors.". SEC. 309. STEEL PRODUCTS. Nothing in this Act shall preclude any discussion or negotiation between the United States and Canada in order to conclude vol- untary restraint agreements or mutually agreed quantitative restrictions on the volume of steel products entering the United States from Canada.
102 STAT. 1878 PUBLIC LAW 100-449—SEPT. 28, 1988 19 use 2112 TITLE IV—BINATIONAL PANEL DISPUTE note SETTLEMENT IN ANTIDUMPING AND COUNTERVAILING DUTY CASES. SEC. 401. AMENDMENTS TO SECTION 516A OF THE TARIFF ACT OF 1930. (a) TIME LIMITS.—Section 516A(a) of the Tariff Act of 1930 (19 U.S.C. 1516a(a)) is amended by adding at the end thereof the follow- ing new paragraph. "(5) TIME UMITS IN CASES INVOLVING CANADIAN MERCHAN- DISE.—Notwithstanding any other provision of this subsection, in the case of a determination to which the provisions of subsection (g) apply, an action under this subsection may not be commenced, and the time limits for commencing an action under this subsection shall not begin to run, until the 31st day after— Federal "(A) the date of publication in the Federal Register of— Register, "(1) notice of any determination described in para- publication, graph (IXB) or a determination described in clause (ii) or (iii) of paragraph (2XB), or "(ii) an antidumping or countervailing duty order based upon any determination described in clause (i) of paragraph (2XB), or "(B) the date on which the Government of Canada re- ceives notice of a determination described in clause (vi) of paragraph (2XB).". (b) DEFINITIONS.—Section 516A(0 of the Tariff Act of 1930 (19 U.S.C. 1516a(0) is amended by adding at the end thereof the follow- ing new paragraphs: "(5) AGREEMENT.—The term 'Agreement' means the United Stat^-Canada Free-Trade Agreement. "(6) UNITED STATES SECRETARY.—The term 'United States Sec- retary' means the secretary provided for in paragraph 4 of article 1909 of the Agreement. "(7) CANADIAN SECRETARY.—The term 'Canadian Secretary' means the secretary provided for in paragraph 5 of article 1909 of the Agreement.". (c) REVIEW REGARDING CANADIAN MERCHANDISE.—Section 516A of the Tariff Act of 1930 (19 U.S.C. 1516a) is amended by adding at the end thereof the following new subsection: "(g) REVIEW OF COUNTERVAIUNG DUTY AND ANTIDUMPING DUTY DETERMINATIONS INVOLVING CANADIAN MERCHANDISE.— "(1) DEFINITION OF DETERMINATION.—For purposes of this subsection, the term 'determination' means a determination described in— "(A) paragraph (IXB) of subsection (a), or "(B) clause (i), (ii), (iii), or (vi) of paragraph (2XB) of subsection (a), if made in connection with a proceeding regarding a class or kind of Canadian merchandise, as determined by the admin- istering authority. "(2) EXCLUSIVE REVIEW OF DETERMINATION BY BINATIONAL PANELS.—If binational panel review of a determination is re- quested pursuant to article 1904 of the Agreement, then, except as provided in paragraphs (3) and (4)—
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1879 "(A) the determination is not reviewable under subsec- tion (a), and "(B) no court of the United States has power or jurisdic- tion to review the determination on any question of law or fact by an action in the nature of mandamus or otherwise. "(3) EXCEPTION TO EXCLUSIVE BINATIONAL PANEL REVIEW.— "(A) I N GENERAL.—A determination is reviewable under subsection (a) if the determination sought to be reviewed is— "(i) a determination as to which neither the United States nor Canada requested review by a binational panel pursuant to article 1904 of the Agreement, "(ii) a revised determination issued as a direct result of judicial review, commenced pursuant to subsection (a), if neither the United States nor Canada requested review of the original determination, or "(iii) a determination issued as a direct result of judicial review that was commenced pursuant to subsection (a) prior to the entry into force of the Agree- ment. "(B) SPECIAL RULE.—A determination described in subparagraph (AXi) is reviewable under subsection (a) only if the party seeking to commence review has provided timely notice of its intent to commence such review to the United States Secretary, the Canadian Secretary, all in- terested parties who were parties to the proceeding in connection with which the matter arises, and the admin- istering authority or the Commission, as appropriate. Such notice is provided timely if the notice is delivered by no later than the date that Is 20 days after the date described in subparagraph (A) or (B) of subsection (aX5) that is ap- plicable to such determination. Such notice shall contain Regulations. such information, and be in such form, manner, and style, as the administering authority, in consultation with the Commission, shall prescribe by regulations. "(4) EXCEPTION TO EXCLUSIVE BINATIONAL PANEL REVIEW FOR CONSTITUTIONAL ISSUES.— "(A) CONSTITUTIONALITY OF BINATIONAL PANEL REVIEW Courts, U.S. SYSTEM.—An action for declaratory judgment or injunctive District of relief, or both, regarding a determination on the grounds Columbia. that any provision of, or amendment made by, the United States-Canada Free-Trade Implementation Agreement Act of 1988 implementing the binational panel dispute settle- ment system under chapter 19 of the Agreement violates the Constitution may be brought in the United States Court of Appeals for the District of Columbia Circuit. Any action brought under this subparagraph shall be heard and deter- mined by a 3-judge court in accordance with section 2284 of title 28, United States Code. "(B) OTHER CONSTITUTIONAL REVIEW.—Review is available Courts, U.S. under subsection (a) with respect to a determination solely concerning a constitutional issue (other than an issue to which subparagraph (A) applies) arising under any law of the United States as enacted or applied. An action for review under this subparEigraph shall be assigned to a 3- jud judge panel of the United States Court of International Trc rade.
102 STAT. 1880 PUBLIC LAW 100-449—SEPT. 28, 1988 Federal "(C) COMMENCEMENT OF REVIEW.—Notwithstanding the Register, publication. time limits in subsection (a), within 30 days after the date of publication in the Federal Register of notice that binational panel review has been completed, an interested party who is a party to the proceeding in connection with which the matter arises may commence an action under subpara- graph (A) or (B) by filing an action in accordance with the rules of the court. "(D) TRANSFER OF ACTIONS TO APPROPRIATE COURT.— Whenever an action is filed in a court under subparagraph (A) or (B) and that court finds that the action should have been filed in the other court, the court in which the action was filed shall transfer the action to the other court and the action shall proceed as if it had been filed in the. court to which it is transferred on the date upon which it was actually filed in the court from which it is transferred. "(E) FRIVOLOUS CLAIMS.—Frivolous claims brought under subparagraph (A) or (B) are subject to dismissal and sanc- tions as provided under section 1927 of title 28, United States Code, and the Federal Rules of Civil Procedure. "(F) SECURITY.— "(i) SUBPARAGRAPH (A) ACTIONS.—The security requirements of rule 65(c) of the Federal Rules of Civil Procedure apply with respect to actions commenced under subparagraph (A). Courts, U.S. "(ii) SUBPARAGRAPH (B) ACTIONS.—No claim shall be heard, and no temporary restraining order or tem- porary or permanent injunction shall be issued, under an action commenced under subparagraph (B), unless the party seeking review first files an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense parties affected for any loss, expense, or damage caused by the improvident or erro- neous issuance of such order or injunction. If a court upholds the constitutionality of the determination in question in such action, the court shall award to a prevailing party fees and expenses, in addition to any costs incurred by that party, unless the court finds that the position of the other party was substantially justi- fied or that special circumstances make an award unjust. "(G) PANEL RECORD.—The record of proceedings before the binational panel shall not be considered part of the record for review pursuant to subparagraph (A) or (B). "(H) APPEAL TO SUPREME COURT OF COURT ORDERS ISSUED IN SUBPARAGRAPH (A) ACTIONS.—Notwithstanding any other provision of law, any final judgment of the United States Court of Appeals for the District of Columbia Circuit which is issued pursuant to an action brought under subparagraph (A) shall be reviewable by appeal directly to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 days after such order is entered; and the jurisdictional statement shall be filed within 30 days after such order is entered. No stay of an order issued pursuant to an action brought under subparagraph (A) may be issued by a single Justice of the Supreme Court.
•.-.rf»*-s*„l^ j'^/^^BgfcC?*"'''*"''"•""*'-- "^-"^ PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1881 '(5) LIQUIDATION OF ENTRIES.— "(A) APPUCATION.—In the case of a determination for which binational panel review is requested pursuant to article 1904 of the Agreement, the rules provided in this paragraph shall apply, notwithstanding the provisions of subsection (c). "(B) GENERAL RULE.—In the case of a determination for Federal which binational panel review is requested pursuant to Register, article 1904 of the Agreement, entries of merchandise cov- Publication. ered by such determination shall be liquidated in accord- ance with the determination of the administering authority or the Commission, if they are entered, or withdrawn from warehouse, for consumption on or before the date of publication in the Federal Register by the administering authority of notice of a final decision of a binational panel, or of an extraordinary challenge committee, not in har- mony with that determination. Such notice of a decision shall be published within 10 days of the date of the issuance of the panel or committee decision. "(C) SUSPENSION OF LIQUIDATION.— "(i) I N GENERAL.—Notwithstanding the provisions of subparagraph (B), in the case of a determination de- scribed in clause (iii) or (vi) of subsection (aX2XB) for which binational panel review is requested pursuant to article 1904 of the Agreement, the administering authority, upon request of an interested party who was a party to the proceeding in connection with which the matter arises and who is a participant in the binational panel review, shall order the continued suspension of liquidation of those entries of merchandise covered by the determination that are involved in the review pend- ing the final disposition of the review. "(ii) NOTICE.—At the same time as the interested party makes its request to the administering authority under clause (i), that party shall serve a copy of ite request on the United States Secretary, the Canadian Secretary, and all interested parties who were parties to the proceeding in connection with which the matter arises. "(iii) APPLICATION OF SUSPENSION.—If the interested party requesting continued suspension of liquidation under clause (i) is a foreign manufacturer, producer, or exporter, or a United States importer, the continued suspension of liquidation shall apply only to entries of merchandise manufactured, produced, exported, or im- ported by that particular manufacturer, producer, ex- porter, or importer. If the interested party requesting the continued suspension of liquidation under clause (i) is an interested party described in subparagraph (C), (D), (E), or (F) of section 771(9), the continued suspen- sion of liquidation shall apply only to entries which could be affected by a decision of the binational panel convened under chapter 19 of the Agreement. "(iv) JUDICIAL REVIEW.—Any action taken by the administering authority or the United States Customs Service under this subparagraph shall not be subject to judicial review, and no court of the United States shall
102 STAT. 1882 PUBLIC LAW 100-449—SEPT. 28, 1988 have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise. "(6) INJUNCTIVE REUEF.—Except for cases under paragraph (4XB), in the case of a determination for which binational panel review is requested pursuant to article 1904 of the Agreement, the provisions of subsection (cX2) shall not apply. "(7) IMPLEMENTATION OF INTERNATIONAL OBUGATIONS UNDER ARTICLE 1904.— "(A) I N GENERAL.—If a determination is referred to a binational panel or extraordinary challenge committee under the Agreement and the panel or committee makes a decision remanding the determination to the administering authority or the Commission, the administering authority or the Commission shall, within the period specified by the panel or committee, take action not inconsistent with the decision of the panel or committee. Any action taken by the administering authority or the Commission under this paragraph shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise. "(B) APPUCATION IF SUBPARAGRAPH (A) HELD UNCONSTITU- TIONAL.—In the event that the provisions of subparagraph (A) are held unconstitutional under the provisions of sub- paragraphs (A) and (H) of paragraph (4), the provisions of this subparagraph shall take effect. In such event, the President is authorized on behalf of the United States to accept, as a whole, the decision of a binational panel or extraordinary challenge committee remanding the deter- mination to the administering authority or the Commission within the period specified by the panel or committee. Upon acceptance by the President of such a decision, the admin- istering authority or the Commission shall, within the period specified by the panel or committee, take action not inconsistent with such decision. Any action taken by the President, the administering authority, or the Commission under this subparagraph shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such action on any question of law or fact by an action in the nature of mandamus or otherwise. "(8) REQUESTS FOR BINATIONAL PANEL REVIEW.— "(A) INTERESTED PARTY REQUESTS FOR BINATIONAL PANEL REVIEW.—An interested party who was a party to the proceeding in which a determination is made may request binational panel review of such determination by filing a request with the United States Secretary by no later than the date that is 30 days after the date described in subpara- graph (A) or (B) of subsection (aX5) that is applicable to such determination. Receipt of such request by the United States Secretary shall be deemed to be a request for binational panel review within the meaning of article 1904(4) of the Regulations. Agreement. Such request shall contain such information and be in such form, manner, and style as the administer- ing authority, in consultation with the Commission, shall prescribe by regulations.
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1883 "(B) SERVICE OF REQUEST FOR BINATIONAL PANEL REVIEW.— "(i) SERVICE BY INTERESTED PARTY.—If a request for Mail, binational panel review of a determination is filed under subparagraph (A), the party making the request shall serve a copy, by mail or personal service, on any other interested party who w£is a party to the proceed- ing in connection with which the matter arises, and on the administering authority or the Commission, as appropriate. (ii) SERVICE BY UNITED STATES SECRETARY.—If an interested party to the proceeding requests binational panel review of a determination by filing a request with the Canadian Secretary, the United States Sec- retary shall serve a copy of the request by mail on any other interested party who was a party to the proceed- ing in connection with which the matter arises, and on the administering authority or the Commission, as appropriate. "(C) LIMITATION ON REQUEST FOR BINATIONAL PANEL REVIEW.—Absent a request by an interested party under subparagraph (A), the United States may not request bi- national panel review under article 1904 of the Agreement of a determination. "(9) REPRESENTATION IN PANEL PROCEEDINGS.—In the case of binational panel proceedings convened under chapter 19 of the Agreement, the administering authority and the Commission shall be represented by attorneys who are employees of the administering authority or the Commission, respectively. In- terested parties who were parties to the proceeding in connec- tion with which the matter arises shall have the right to appear and be represented by counsel before the binational panel. "(10) NOTIFICATION OF CLASS OR KIND RUUNGS.—In the case of a determination which is described in paragraph (2XBXvi) of subsection (a) and which is subject to the provisions of para- graph (2), the administering authority, upon request, shall inform any interested person of the date on which the Govern- ment of Canada received notice of the determination under article 1904(4) of the Agreement.", (d) STANDARDS OF REVIEW.—Section 516A0)) of the Tariff Act of 1930 (19 U.S.C. 1516a(b)) is amended by adding a new paragraph (3) as follows: "(3) EFFECT OF DECISIONS BY UNITED STATES-CANADA BI- Courts, U.S. NATIONAL PANELS.—In making a decision in any action brought under subsection (a), a court of the United States is not bound by, but may take into consideration, a fingd decision of a bi- national panel or extraordinary challenge committee convened pursuEuit to article 1904 of the Agreement.". SEC. 402. AMENDMENTS TO TITLE 28, UNITED STATES CODE. (a) JURISDICTION OF COURT OF INTERNATIONAL TRADE.—Section 1581(i) of title 28, United States Code, is amended by adding at the end thereof the following flush sentence: "This subsection shall not confer jurisdiction over an antidumping or countervailing duty determination which is reviewable either by the Court of Inter- national Trade under section 516A(a) of the Tariff Act of 1930 or by a binational panel under article 1904 of the United States-Canada
102 STAT. 1884 PUBLIC LAW 100-449—SEPT. 28, 1988 Free-Trade Agreement and section 516A(g) of the Tariff Act of 1930.". (b) RELIEF IN COURT OF INTERNATIONAL TRADE.—Section 2643(c) of title 28, United States Code, is amended— (1) by striking out "and (4)" in paragraph (1) and inserting in Ueu thereof "(4), and (5)"; and (2) by adding at the end thereof the following new paragraph: "(5) In any civil action involving an antidumping or counter- vailing duty proceeding regarding a class or kmd of Ceuiadian merchandise, as determined by the administering authority, the Court of International Trade may not order declaratory relief.". (c) DECLARATORY JUDGMENTS.—Subsection (a) of section 2201 of title 28, United States Code, is amended— (1) by striking out "1954 or" and inserting in lieu thereof "1986,''; and (2) by inserting "or in any civil action involving an antidump- ing or countervailing duty proceeding regarding a class or kind of Canadian merchandise, as determined by the administering authority," after "of title 11,". (d) ACTIONS UNDER THE AGREEMENT.— (1) Chapter 95 of title 28, United States Code, is amended by inserting after section 1583 the following new section: '*§ 1584. Civil actions under the United States-Canada Free-Trade Agreement "The United States Court of International Trade shall have exclu- sive jurisdiction of any civil action which arises under section 777(d) of the Tariff Act of 1930 and is commenced by the United States to enforce administrative sanctions levied for violation of a protective order or an undertaking.". (2) The table of contents for chapter 95 of title 28, United States Code, is amended by inserting after the item relating to section 1583 the following new item: "1584. Civil actions under the United States-Canada Free-Trade Agreement". Ck)urts, U.S. SEC. 403. CONFORMING AMENDMENTS TO THE TARIFF ACT OF 1930. (a) Section 5020>) of the Tariff Act of 1930 (19 U.S.C. 1502(b)) is amended by striking out all after "recommending the same," and inserting in lieu thereof "a final decision of the United States (Dourt of International Trade, or a final decision of a binational panel pursuant to article 1904 of the United States-Canada Free-Trade (b) Section'5140)) of the Tariff Act of 1930 (19 U.S.C. 1514(b)) is amended by inserting ", or review by a binational panel of a determination to which section 516A(gX2) applies is commenced pursuant to section 516A(g) and article 1904 of the United States- Canada Free-Trade Agreement" after "International Trade". (c) Section 777 of the Tariff Act of 1930 (19 U.S.C. 1677f) is amended by adding at the end thereof the following new subsection: "(d) Disax)suRE OF PROPRIETARY INFORMATION UNDER PROTEC- TIVE ORDERS ISSUED PURSUANT TO THE UNFFED STATES-CANADA AGREEMENT.— Records. "(1) ISSUANCE OF PROTECTIVE ORDERS.— Classified "(A) IN GENERAL.—If binational panel review of a deter- information. mination under this title is requested pursuant to article 1904 of the United States-Canada Agreement, or an
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1885 extraordinary challenge committee is convened under Annex 1904.13 of the United States-Canada Agreement, the administering authority or the Commission, as appropriate, may make available to authorized persons, under a protec- tive order described in paragraph (2), a copy of all propri- etary material (but not privileged material as defined by the rules of procedure referred to in article 1904(14) of the United States-Canada Agreement) in the administrative record made during the proceeding in question. "(B) AUTHORIZED PERSONS.—For purposes of this subsec- tion, the term "authorized persons" means— "(i) the members of, and the appropriate staff of, the binational panel or the extraordinary challenge committee, as the case may be, and the Secretariat, "(ii) counsel for parties to such panel or conmiittee proceeding, and employees of such counsel, and "(iii) any officer or employee of the United States Government designated by the administering authority or the Commission, as appropriate, to whom disclosure is necessary in order to implement the United States- Canada Agreement with respect to such proceeding. "(C) REVIEW.—A decision concerning the disclosure or nondisclosure of material under protective order by the administering authority or the Commission shall not be subject to judicial review, and no court of the United States shall have power or jurisdiction to review such decision on any question of law or fact by an action in the nature of mandamus or otherwise. "(2) CONTENTS OF PROTECTIVE ORDER.—Each protective order issued under this subsection shall be in such form and contain such requirements as the administering authority or the Commission may determine by regulation to be appropriate. The administering authority and the Commission shall ensure that regulations issued pursuant to this paragraph shall be designed to provide an opportunity for participation in the binational panel proceeding equivalent to that available for judicial review of determinations by the administering author- ity or the Commission that are not subject to review by a binational panel. "(3) PROHIBITED ACTS.—It is unlawful for any person to vio- late, or to induce the violation of, any provision of a protective order issued under this subsection or to violate, or to induce the violation of, any provision of an undertaking entered into with an authorized agency of Canada to protect proprietary material during binational panel review pursuant to article 1904 of the United States-Canada Agreement. "(4) SANCTIONS FOR VIOLATION OF PROTECTIVE ORDERS.—Any person who is found by the administering authority or the Commission, as appropriate, after notice and an opportunity for a hearing in accordance with section 554 of title 5, United States Code, to have committed an act prohibited by paragraph (3) shall be liable to the United States for a civil penalty and shall be subject to such other administrative sanctions, including, but not limited to, debarment from practice before the administer- ing authority or the Commission, as the administering author- ity or the Commission determines to be appropriate. The amount of the civil penalty shall not exceed $100,()00 for each
102 STAT. 1886 PUBLIC LAW 100-449—SEPT. 28, 1988' violation. Each day of a continuing violation shall constitute a separate violation. The amount of such civil penalty and other sanctions shall be assessed by the administering authority or the Commission by written notice, except that assessment shall be made by the administering authority for violation, or induce- ment of a violation, of an undertaking entered into by any person with an authorized agency of Canada. Mail. "(5) REVIEW OF SANCTIONS.—Any person against whom sanc- tions are imposed under paragraph (4) may obtain review of such sanctions by filing a notice of appeal in the United States Court of International Trade within 30 days from the date of the order imposing the sanction and by simultaneously sending a copy of such notice by certified mail to the administering Records. authority or the Commission, as appropriate. The administering authority or the Commission shall promptly file in such court a certified copy of the record upon which such violation was found or such sanction imposed, as provided in section 2112 of title 28, United States Code. The findings and order of the administering authority or the Commission shall be set aside by the court only if the court finds that such findings and order are not supported by substantial evidence, as provided in section 706(2) of title 5, United States Code. "(6) ENFORCEMENT OF SANCTIONS.—If any person fails to pay an assessment of a civil penalty or to comply with other administrative sanctions after the order imposing such sanc- tions becomes a final and unappealable order, or after the United States Court of International Trade has entered final judgment in favor of the administering authority or the Commission, an action may be filed in such court to enforce the sanctions. In such action, the validity and appropriateness of the final order imposing the sanctions shall not be subject to review. Records. "(7) TESTIMONY AND PRODUCTION OF PAPERS.— "(A) AUTHORITY TO OBTAIN INFORMATION.—For the pur- pose of conducting any hearing and carrjdng out other functions and duties under this subsection, the administer- ing authority and the Commission, or their duly authorized agents— "(i) shall have access to and the right to copy any pertinent document, paper, or record in the possession of any individual, partnership, corporation, association, organization, or other entity, (ii) may summon witnesses, take testimony, and administer oaths, "(iii) and may require any individual or entity to produce pertinent documents, books, or records. Any member of the Commission, and any person so des- ignated by the administering authority, may sign subpoenas, and members and agents of the administering authority and the Commission, when authorized by the administering authority or the Commission, as appropriate, may administer oaths and affirmations, examine witnesses, take testimony, and receive evidence. "(B) WITNESSES AND EVIDENCE.—The attendance of wit- nesses who are authorized to be summoned, and the produc- tion of documentary evidence authorized to be ordered, under subparagraph (A) may be required from any place in
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1887 the United States at any designated place of hearing. In the case of disobedience to a subpoena issued under subpara- graph (A), an action may be filed in any district or terri- torial court of the United States to require the attendance and testimony of witnesses and the production of documen- tary evidence. Such court, within the jurisdiction of which such inquiry is carried on, may, in case of contumacy or refusal to obey a subpoena issued to any individual, part- nership, corporation, association, organization or other entity, issue any order requiring such individual or entity to appear before the administering authority or the Commission, or to produce documentary evidence if so or- dered or to give evidence concerning the matter in question. Any failure to obey such order of the court may be punished by the court as a contempt thereof. "(C) MANDAMUS.—Any court referred to in subparagraph (B) shall have jurisdiction to issue writs of mandamus commanding compliance with the provisions of this subsec- tion or any order of the administering authority or the Commission made in pursuance thereof. "(D) DEPOSITIONS.—For purposes of carrjdng out any func- tions or duties under this subsection, the administering authority or the Commission may order testimony to be taken by deposition. Such deposition may be taken before any person designated by the administering authority or Commission and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under the direction of such person, and shall then be subscribed by the deponent. Any individual, partnership, corporation, association, organization or other entity may be compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the administering authority or Commission, as provided in this paragraph. "(E) FEES AND MILEAGE OF WITNESSES.—Witnesses sum- moned before the administering authority or the Commis- sion shedl be paid the same fees and mileage that are paid witnesses in the courts of the United States.", (d) Section 771 of the Tariff Act of 1930 (19 U.S.C. 1677) is amended by adding at the end thereof the following new paragraph (18): "(18) UNITED STATES-CANADA AGREEMENT.—The term 'United States-Canada Agreement' means the United States-Canada Free-Trade Agreement.". SEC. 404. AMENDMENTS TO ANTIDUMPING AND COUNTERVAILING DUTY LAW. Any amendment enacted after the Agreement enters into force with respect to the United States that is made to— (1) section 303 or title VII of the Tariff Act of 1930, or any successor statute, or (2) any other statute which— (A) provides for judicial review of final determinations under such section, title, or statute, or (B) indicates the standard of review to be applied,
102 STAT. 1888 PUBLIC LAW 100-449—SEPT. 28, 1988 shall apply to Canada only to the extent speciHed in such amendment. Establishment. SEC. 405. ORGANIZATIONAL AND ADMINISTRATIVE PROVISIONS REGARD- ING THE IMPLEMENTATION OF CHAPTERS 18 AND 19 OF THE AGREEMENT. (a) APPOINTMENT OF INDIVIDUALS TO PANELS AND COMMITTEES.— (IXA) There is established within the interagency organiza- tion established under section 242 of the Trade Expansion Act of 1962 (19 U.S.C. 1872) an interagency group which shall— (i) be chaired by the United States Trade Representative (hereafter in this section referred to as the "Trade Rep- resentative"), and (ii) consist of such officers (or the designees thereof) of the (jfovemment of the United States as the Trade Representa- tive considers appropriate. (B) The interagency group established under subparagraph (A) shall, in a manner consistent with chapter 19 of the Agreement— (i) prepare by January 3 of each calendar year— (I) a list of individuals who are qualified to serve as members of binational panels convened under chapter 19 of the Agreement, and (II) a list of individuals who are qualified to serve on extraordinary challenge committees convened under such chapter, (ii) if the Trade Representative makes a request under paragraph (5XAXi) with respect to a final candidate list during any calendar year, prepare by July 1 of such cal- endar year a list of those individuals who are qualified to be added to that final candidate list, (iii) exercise oversight of the administration of the United States Secretariat that is authorized to be established under subsection (e), and (iv) make recommendations to the Trade Representative r ^ a r d i n g the convening of extraordinary challenge committees under chapter 19 of the Agreement. (2XA) The Trade Representative shall select individuals from the respective lists prepared by the interagency group under paragraph (l)(BXi) for placement on a preliminary candidate list of individuals eligible to serve as members of binational panels under Annex 1901.2 of the Agreement and a preliminary can- didate list of individuals eligible for selection as members of extraordinary challenge committees under Annex 1904.13 of the Agreement. (B) The selection of individuals for— (i) placement on lists prepared by the interagency group under clause (i) or (ii) of paragraph (IXB), (ii) placement on preliminary candidate lists under subparagraph (A), (iii) placement on final candidate lists under para- graph (3), (iv) placement by the Trade Representative on the rosters described in Annex 1901.2(1) and Annex 1904.13(1) of the Agreement, and
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1889 (v) appointment by the Trade Representative for service on binational panels and extraordinary challenge commit- tees convened under chapter 19 of the Agreement, shall be made on the basis of the criteria provided in Annex 1901.2(1) and Annex 1904.13(1) of the Agreement and shall be made without regard to political affiliation. (C) For purposes of applying section 1001 of title 18, United States Code, the written or oral responses of individuals to inquiries of the interagency group established under paragraph (1) or the Trade Representative regarding their personal and professional qualifications, and financial and other relevant interests, that bear on their suitability for the placements and appointments described in subparagraph (B), shall be treated as matters within the jurisdiction of an agency of the United States. (3XA) By no later than January 3 of each calendar year, the Trade Representative shall submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives (hereafter in this section referred to as the "appropriate Congressional Committees") the prelimi- nary candidate lists of those individuals selected by the Trade Representative under paragraph (2XA) to be candidates eligible to serve on binational panels or extraordinary challenge committees convened pursuant to chapter 19 of the Agreement during the 1-year period beginning on April 1 of such calendar year. (B) Upon submission of the preliminary candidate lists under subparagraph (A) to the appropriate (Congressional Ck)mmittees, the Trade Representative shall consult with the appropriate Congressional C!ommittees with regard to the individuals listed on the preliminary candidate lists. (C) TTie Trade Representative may add or delete individuals from the preliminary candidate lists submitted under subpara- graph (A) after consulting the appropriate Congressional (Committees with regard to such addition or deletion. The Trade Representative shall provide to the appropriate Congressional C!ommittees written notice of any addition or deletion of an individual from the preliminary candidate lists. (4XA) By no later than March 31 of each calendar year, the Trade Representative shall submit to the appropriate (Congres- sional (Committees the final candidate lists of those individuals selected by the Trade Representative to be candidates eligible to serve on binational panels and extraordinary challenge commit- tees convened pursuant to chapter 19 of the Agreement during the 1-year period beginning on April 1 of such calendar year. An individu£d may be included on a final candidate list only if written notice of the addition of such individual to the prelimi- nary candidate list was submitted to the appropriate (Congres- sional (Committees at least 15 days before the date on which that final candidate list is submitted to the appropriate (Congressional (Committees under this subparagraph. (B) Except as provided in paragraph (5), no additions may be made to the final candidate lists after the final candidate lists are submitted to the appropriate (Congressional (Committees under subparagraph (A). (5XA) If, after the Trade Representative has submitted the final candidate lists to the appropriate Congressional Commit-
102 STAT. 1890 PUBLIC LAW 100-449—SEPT. 28, 1988 tees under paragraph (4XA) for a calendar year and before July 1 of such calendar year, the Trade Representative determines that additional individuals need to be added to a final candidate list, the Trade Representative shall— (i) request the interagency group established under para- graph (IXA) to prepare a list of individuals who are qualified to be added to such candidate list, (ii) select individuals from the list prepared by the inter- agency group under paragraph (IXBXii) to be included in a proposed amendment to such final candidate list, and (iii) by no later than July 1 of such calendar year, submit to the appropriate Congressional Committees the proposed amendments to such final candidate list developed by the Trade Representative under clause (ii). (B) Upon submission of a proposed amendment under subparagraph (AXiii) to the appropriate Congressional Commit- tees, the Trade Representative shall consult with the appro- priate Congressional Committees with regard to the individuals included in the proposed amendment. (C) The Trade Representative may add or delete individuals from any proposed amendment submitted under subparagraph (AXiii) after consulting the appropriate Congressional (Commit- tees with regard to such addition or deletion. The Trade Rep- resentative shall provide to the appropriate (Congressional Committees written notice of any addition or deletion of an individual from the proposed amendment. (DXi) If the Trade Representative submits under subpara- graph (AXiii) in any calendar year a proposed amendment to a final candidate list, the Trade Representative shall, by no later than September 30 of such calendar year, submit to the appro- priate Congressional (Committees the final form of such amend- Effective date. ment. On October 1 of such calendar year, such amendment shall take effect and the individuals included in the final form of such amendment shall be added to the final candidate list. (ii) An individual may be included in the final form of an Eunendment submitted under clause (i) only if written notice of the addition of such individual to the proposed form of such amendment was submitted to the appropriate Congressional (Committees at least 15 days before the date on which the final form of such amendment is submitted under clause (i). Effective date. (iii) Individuals added to a final candidate list under clause (i) shall be eligible to serve on binational panels or extraordinary challenge committees convened pursuant to chapter 19 of the Agreement, as the case may be, during the 6-month period beginning on October 1 of the calendar year in which such addition occurs. (iv) No additions may be made to the final form of an amend- ment described in clause (i) after the final form of such amend- ment is submitted to the appropriate Congressional Committees under clause (i). (6XA) The Trade Representative is the only officer of the Government of the United States authorized to act on behalf of the Government of the United States in making any selection or appointment of an individual to— (i) the rosters described in Annex 1901.2(1) and Annex 1904.13(1) of the Agreement, or
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1891 (ii) the binational panels or extraordinary challenge committees convened pursuant to chapter 19 of the Agreement, that is to be made solely or jointly by the Government of the United States under the terms of the Agreement. (B) Except as otherwise provided in paragraph (7KB), the Trade Representative may— (i) select an individual for placement on the rosters de- scribed in Annex 1901.2(1) and Annex 1904.13(1) of the Agreement during the 1-year period beginning on April 1 of any calendar year, (ii) appoint an individual to serve as one of those mem- bers of any binational panel or extraordinary challenge committee convened pursuant to chapter 19 of the Agree- ment during such 1-year period who, under the terms of the Agreement, are to be appointed solely by the Government of the United States, or (iii) act to make a joint appointment with the Govern- ment of Canada, under the terms of the Agreement, of any individual who is a citizen or national of the United States to serve as any other member of such a panel or committee, only if such individual is on the appropriate final candidate list that was submitted to the appropriate Congressional (Dommit- tees under paragraph (4XA) during such calendar year or on such list as it may be amended under paragraph (5XDXi). (7XA) Except as otherwise provided in this paragraph, no individual may— (i) be selected by the Government of the United States for placement on the rosters described in Annex 1901.2(1) and Annex 1904.13(1) of the Agreement, or (ii) be appointed solely or jointly by the Government of the United States to serve as a member of a binational panel or extraordinary chgdlenge committee convened pursuant to chapter 19 of the Agreement, during the 1-year period beginning on April 1 of any calendar year for which the Trade Representative has not met the requirements of this subsection. (BXi) Notwithstanding paragraphs (3), (4), or (6XB) (other than paragraph (3XA)), individuals listed on the preliminary can- didate lists submitted to the appropriate Congressional (Commit- tees under paragraph (3XA) may— (I) be selected by the Trade Representative for placement on the rosters described in Annex 1901.2(1) and Annex 1904.13(1) of the Agreement during the 3-month period beginning on the date on which the Agreement enters into force, and (II) be appointed solely or jointly by the Trade Represent- ative under the terms of the Agreement to serve as mem- bers of binational panels or extraordinary challenge committees that are convened pursuant to chapter 19 of the Agreement during such 3-month period. (ii) If the Agreement enters into force after January 3, 1989, the provisions of this subsection shall be applied with respect to the calendar year in which the Agreement enters into force— (I) by substituting "the date that is 30 days after the date on which the Agreement enters into force for "January 3 of each calendar year" in paragraphs (IXBXi) and (3XA), and
102 STAT. 1892 PUBLIC LAW 100-449—SEPT. 28, 1988 (II) by substituting "the date that is 3 months after the date on which the Agreement enters into force" for "March 31 of each calendar year" in paragraph (4XA). Government (b) STATUS OF PANELISTS.—Notwithstanding any other provision of organization and law, individuals appointed by the United Stetes to serve on panels employees. or committees convened pursuant to chapter 19 of the Agreement, and individuals designated to assist such appointed individuals, shall not be considered to be employees or special employees of, or to be otherwise affihated with, the Government of the United States. (c) IMMUNITY OF PANELISTS.—With the exception of acts described in section 777f(dX3) of the Tariff Act of 1930, as added by this Act, individuals serving on panels or committees convened pursuant to chapter 19 of the Agreement, and individuals designated to assist the individuals serving on such panels or committees, shall be immune from suit and legal process relating to acts performed by such individuals in their official capacity and within the scope of their functions as such panelists or committee members or assist- ants to such panelists or committee members. (d) REGULATIONS.—The administering authority under title VII of the Tariff Act of 1930, the United States International Trade Commission, and the United States Trade Representative may promulgate such regulations as are necessary or appropriate to carry out actions in order to implement their respective responsibil- ities under chapters 18 and 19 of the Agreement. Initial regulations to carry out such functions shall be issued prior to the date of entry into force of the Agreement. (e) ESTABLISHMENT OF UNITED STATES SECRETARIAT.— (1) The President is authorized to establish within any depart- ment or agency of the FedergJ Government a United States Secretariat which, subject to the oversight of the interagency group established under subsection (aXlXA), shall facilitate— (A) the operation of chapters 18 and 19 of the Agreement, and (B) the work of the binational panels and extraordinary challenge committees convened under chapters 18 and 19 of the Agreement. (2) The United States Secretariat established by the President under paragraph (1) shall not be considered to be an agency for purposes of section 552 of title 5, United States Code. SEC. 406. AUTHORIZATION OF APPROPRIATIONS FOR THE SECRETARIAT, THE PANELS, AND THE COMMITTEES. (a) THE SECRETARIAT.—^There are authorized to be appropriated to the department or agency within which the United States Secretar- iat described in chapter 19 of the Agreement is established the lesser of— (1) such sums as may be necessary, or (2) $5,000,000, for each fiscal year succeeding fiscal year 1988 for the establishment and operations of such United States Secretariat and for the pay- ment of the United States share of the expenses of the dispute settlement proceedings under chapter 18 of the Agreement. 0>) PANELS AND COMMITTEES.— (1) There are authorized to be appropriated to the Office of the United States Trade Representative for fiscal year 1989 such sums as may be necessary to pay during such fiscal year the United States share of the expenses of binational panels and
.m^'Wi PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1893 extraordinary challenge committees convened pursuant to chapter 19 of the Agreement. (2) The United States Trade Representative is authorized to transfer funds appropriated pursuant to the authorization pro- vided under paragraph (1) to any department or agency of the United States in order to facilitate pa5rment of the expenses described in paragraph (1). (3) Funds appropriated for the pajonent of expenses described in paragraph (1) during any fiscal year may be expended only to the extent such funds do not exceed the amount authorized to be appropriated under paragraph (1) for such fiscal year. This paragraph shall apply, notwithstanding any law enacted after the date of enactment of this Act, unless such subsequent law specifically provides that this paragraph shall not apply and specifically cites this paragraph. SEC. 407. TESTIMONY AND PRODUCTION OF PAPERS IN EXTRAORDINARY Records. CHALLENGES. (a) AUTHORITY OF EXTRAORDINARY CHALLENGE COMMITTEE TO OBTAIN INFORMATION.—If an extraordinary chedlenge committee Oiereinafter referred to in this section as the "committee") is con- vened pursuant to article 1904(13) of the Agreement, and the allega- tions before the committee include a matter referred to in article 1904(13XaXi) of the Agreement, for the purposes of carrying out its functions and duties under Annex 1904.13 of the Agreement, the committee— (1) shall have access to, and the right to copy, any document, paper, or record pertinent to the subject matter under consider- ation, in the possession of any individual, partnership, corpora- tion, Eissociation, organization, or other entity, (2) may summon witnesses, take testimony, and administer oaths, (3) may require any individual, partnership, corporation, association, organization, or other entity to produce documents, books, or records relating to the matter in question, and (4) may require any individual, partnership, corporation, association, organization, or other entity to furnish in writing, in such detail and in such form as the committee may prescribe, information in its possession pertaining to the matter. Any member of the committee may sign subpoenas, and members of the committee, when authorized by the committee, may administer oaths £ind affirmations, examine witnesses, take testimony, and receive evidence. Qo) WITNESSES AND EVIDENCE.—The attendance of witnesses who are authorized to be summoned, and the production of documentary evidence authorized to be ordered, under subsection (a) may be required from any place in the United States at any designated place of hearing. In the case of disobedience to a subpoena au- thorized under subsection (a), the committee may request the Attor- ney General of the United States to invoke the aid of any district or territorial court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. Such court, within the jurisdiction of which such inquiry is carried on, may, in case of contumacy or refusal to obey a subpoena issued to any individual, partnership, corporation, association, organization, or other entity, issue an order requiring such individ- ual or entity to appear before the committee, or to produce docu-
102 STAT. 1894 PUBLIC LAW 100-449—SEPT. 28, 1988 mentary evidence if so ordered or to give evidence concerning the Law matter in question. Any failure to obey such order of the court may enforcement and be punished by such court as a contempt thereof. crime. (c) MANDAMUS.—Any court referred to in subsection (b) shall have jurisdiction to issue writs of mandamus commanding compliance with the provisions of this section or any order of the committee made in pursuance thereof. (d) DEPOSITIONS.—The committee may order testimony to be taken by deposition at any st£ige of the committee review. Such deposition may be taken before any person designated by the committee and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under the direc- tion of such person, and shall then be subscribed by the deponent. Any individual, partnership, corporation, association, organization or other entity may be compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the committee, as provided in this section. SEC. 408. REQUESTS FOR REVIEW OF CANADIAN ANTIDUMPING AND COUNTERVAILING DUTY DETERMINATIONS. (a) REQUESTS FOR REVIEW BY THE UNITED STATES.—In the case of a final antidumping or countervailing duty determination of a com- petent investigating authority of Canada, as defined in article 1911 of the Agreement, requests by the United States for binational panel review under article 1904 of the Agreement shall be made by the United States Secretary, described in article 1909(4) of the Agreement. Ot)) REQUESTS FOR REVIEW BY A PERSON.—In the case of a final antidumping or countervailing duty determination of a competent investigating authority of Canada, as defined in article 1911 of the Agreement, a person, within the meaning of article 1904(5) of the Agreement, may request a binational panel review of such deter- mination by filing with the United States Secretary, described in article 1909(4) of the Agreement, such a request within the time limit provided for in article 1904(4) of the Agreement. The receipt of such request by the United States Secretary shall be deemed to be a request for binational panel review within the meaning of article Regulations. 1904(4) of the Agreement. Such request shsdl contain such informa- tion and be in such form, manner, and style as the administering authority shall prescribe by regulations. The request for such panel review shall not preclude the United States, Canada, or any other person from challenging before a binational panel the basis for a particular request for review. (c) SERVICE OF REQUEST FOR REVIEW.—Whenever binational panel review is requested under this section, the United States Secretary shall serve a copy of the request on all persons who would be regarded as interested parties to the proceeding if the determination in question had been made under title VII of the Tariff Act of 1930. SEC. 409. SUBSIDIES. (a) NEGOTIATING AUTHORITY.— President of U.S. (1) The President is authorized to enter into an agreement Contracts. with Canada, including an sigreement to amend the Agreement, on rules applicable to trade between the United States and Canada that—
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1895 (A) deal with unfair pricing and government subsidiza- tion, and (B) provide for increased discipline on subsidies. (2XA) The objectives of the United States in negotiating an agreement under paragraph (1) include (but are not limited to)— (i) achievement, on an expedited basis, of increased dis- cipline on government production and export subsidies that have a significant impact, directly or indirectly, on bilateral trade between the United States and Canada; and "^ (ii) attainment of increased and more effective discipline on those Canadian Government (including provincial) sub- sidies having the most significant adverse impact on United States producers that compete with subsidized products of Canada in the markets of the United States and Canada. (B) Special emphasis should be given in negotiating £in agree- Business and ment under paragraph (1) to obtain discipline on Canadian industry. subsidy programs that adversely affect United States industries which directly compete with subsidized imports. (3) The United States members of the working group estab- lished under article 1907 of the Agreement shall— (A) consult regularly with the Committee on Finance of the Senate, the Committee on Ways and Means of the House of Representatives, and advisory committees estab- lished under section 135 of the Trade Act of 1974 (19 U.S.C. 2155) regarding— (i) the issues being considered by the working group, and (ii) as appropriate, the objectives and strategy of the United States in the negotiations, and (B) beginning in January 1990, submit an annual report Reports. to such Congressional C!ommittees on the progress being made in the negotiations to obtain an agreement that meete the objectives described in paragraph (2). (4) Notwithstanding any other provision of this Act or of any other law, the provisions of section 151 of the Trade Act of 1974 (19 U.S.C. 2191) shall not apply to any bill or joint resolution that implements an agreement entered into under paragraph (1), unless the President determines and notifies the Congress that such agreement— (A) will provide greater discipline over government sub- sidies and no less discipline over unfair pricing practices by producers than that provided by the agreements described in paragraphs (5) and (6) of section 2 of the Trade Agree- ments Act of 1979 (the Subsidies Code and Antidumping Code), respectively, taking into account the effects of the Agreement, and (B) will neither undermine such multilateral discipline nor detract from United States efforts to increase such discipline on a multilateral basis in, or subsequent to, the Uruguay Round of multilateral trade negotiations. Ok)) IDENTIFICATION OF INDUSTRIES FACING SUBSIDIZED IMPORTS.— (1) Any entity, including a trade Eissociation, firm, certified or recc^nized union, or group of workers, that is representative of a United States industry and has reason to believe that— (AXi) as a result of implementation of provisions of the Agreement, the industry is likely to face increased competi-
102 STAT. 1896 PUBLIC LAW 100-449—SEPT. 28, 1988 tion from subsidized Canadian imports with which it di- rectly competes; or (ii) the industry is likely to face increased competition from subsidized imports with which it directly competes from any other country designated by the President, follow- ing consultations with the Congress, as benefitting from a reduction of tariffs or other trade barriers under a trade agreement that enters into force after January 1,1989; and (B) the industry is likely to experience a deterioration of its competitive position before rules and disciplines relating to the use of government subsidies have been developed with respect to such country; may file a petition with the United States Trade Representative (hereafter referred to in this section as the "Trade Representa- tive") to be identified under this section. (2) Within 90 days of receipt of a petition under paragraph (1), the Trade Representative, in consultation with the Secretary of Commerce, shall decide whether to identify the industry on the basis that there is a reasonable likelihood that the industry may face both the subsidization described in paragraph (IXA) and the deterioration described in paragraph (IXB). (3) At the request of an entity that is representative of an industry identified under paragraph (2), the Trade Representa- tive shall— Records. (A) compile and make available to the industry informa- tion under section 305 of the Trade Act of 1974, (B) recommend to the President that an investigation by the United States International Trade Commission be re- quested under section 332 of the Tariff Act of 1930, or (C) take actions described in both subparagraphs (A) and(B). The industry may request the Trade Representative to take appropriate action to update (as often as annually) any informa- tion obtained under subparagraph (A) or (B), or both, as the case may be, until an agreement on adequate rules and disciplines relating to government subsidies is reached. (4XA) The Trade Representative and the Secretary of Com- merce shall review information obtained under paragraph (3) and consult with the industry identified under paragraph (2) with a view to deciding whether any action is appropriate under section 301 of the Trade Act of 1974, including the initiation of an invest^ation under section 302(c) of that Act (in the case of the Trade Representative), or under subtitle A of title VII of the Tariff Act of 1930, including the initiation of an investigation under section 702(a) of that Act (in the case of the Secretary of Commerce). (B) In determining whether to initiate any investigation under section 301 of the Trade Act of 1974 or any other trade law, other than title VII of the Tariff Act of 1930, the Trade Representative, after consultation with the Secretary of Commerce— (i) shall seek the advice of the advisory committees estab- lished under section 135 of the Trade Act of 1974; (ii) shall consult with the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives;
PUBLIC LAW 100-449—SEPT. 28, 1988 102 STAT. 1897 (iii) shall coordinate with the interagency committee established under section 242 of the Trade Expansion Act of 1962; and (iv) may ask the President to request advice from the United States International Trade Commission. (C) In the event an investigation is initiated under section President of U.S. 302(c) of the Trade Act of 1974 as a result of a review under this paragraph and the President, following such investigation (including any applicable dispute settlement proceedings under the Agreement or any other trade agreement), determines to take action imder section 301(a) of such Act, the President shall give preference to actions that most directly affect the products that benefit from governmental subsidies and were the subject of the investigation, unless there are no significant imports of such products or the President otherwise determines that ap- plication of the action to other products would be more effective. (5) Any decision, whether positive or negative, or any action by the Trade Representative or the Secretary of Commerce under this section shall not in any way— (A) prejudice the right of any industry to file a petition under any trade law, (B) prejudice, affect, or substitute for, any proceeding, investigation, determination, or action by the Secretary of Commerce, the United States Intemationed Trade (Commis- sion, or the Trade Representative pursuant to such a petition, (C) prejudice, affect, substitute for, or obviate any proceeding, investigation, or determination under section 301 of the Trade Act of 1974, title VII of the Tariff Act of 1930, or any other trade law. (6) Nothing in this subsection may be construed to alter in any manner the requirements in effect before the enactment of this Act for standing under any law of the United States or to add any additional requirements for standing under any law of the United States. SEC. 410. TERMINATION OF AGREEMENT. (a) I N GENERAL.—If^ President of U.S. (1) no agreement is entered into between the United States Reports. and Canada on a substitute system of rules for antidumping and countervailing duties before the date that is 7 years after the date on which the Agreement enters into force, and (2) the President decides not to exercise the rights of the United States under article 1906 of the Agreement to terminate the Agreement, the President shall submit to the Congress a report on such decision which explains why continued adherence to the Agreement is in the national economic interest of the United States. (b) TRANSITION PROVISIONS.— (1) If on the date on which the ^ r e e m e n t should cease to be in force an investigation or enforcement proceeding concerning the violation of a protective order issued under section 777(d) of the Tariff Act of 1930 (as amended by this Act) or a Canadian undertaking is pending, such investigation or proceeding shall continue and sanctions may continue to be imposed in accord- ance with the provisions of such section.
102 STAT. 1898 PUBLIC LAW 100-449—SEPT. 28, 1988 (2) If on the date on which the Agreement should cease to be in force a binational panel review under article 1904 of the Agreement is pending, or has been requested, with respect to a determination to which section 516A(g)(2) of the Tariff Act of 1930 (as added by this Act) applies, such determination shall be reviewable under section 516A(a) of the Tariff Act of 1930. In the case of a determination to which the provisions of this paragraph apply, the time limits for commencing an action under section 516A(a)(2)(A) of the Tariff Act of 1930 shall not begin to run until the date on which the Agreement ceases to be in force. 19 u s e 2112 note. TITLE V—EFFECTIVE DATES AND SEVERABILITY SEC. 501. EFFECTIVE DATES. (a) IN GENERAL.—Except as provided in subsection (b), the provi- sions of this Act, and the amendments made by this Act, shall take effect on the date the Agreement enters into force. (h) EXCEPTIONS.—Sections 1 and 2, title I, section 304 (except subsection (f)), section 309, this section and section 502 shall take effect on the date of enactment of this Act. (c) TERMINATION OF PROVISIONS AND AMENDMENTS IF AGREEMENT TERMINATES.—On the date on which the Agreement ceases to be in force, the provisions of this Act (other than this subsection and section 410(b)), and the amendments made by this Act, shall cease to have effect. SEC. 502. SEVERABILITY. If any provision of this Act, any amendment made by this Act, or the application of such a provision or amendment to any person or circumstances is held to be invalid, the remainder of this Act, the remaining amendments made by this Act, and the application of such provision or amendment to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. Approved September 28, 1988. LEGISLATIVE HISTORY—H.R. 5090: HOUSE REPORTS: No. 100-816, Pt. 1 (Comm. on Ways and Means), Pt. 2 (Comm. on Interior and Insular Affairs), Pt. 3 (Comm. on Foreign Affairs), Pt. 4 (Comm. on the Judiciary), Pt. 5 (Comm. on Banking, Finance and Urban Affairs), Pt. 6 (Comm. on Government Operations), Pt. 7 (Comm. on Energy and Commerce), and Pt. 8 (Comm. on Agriculture). SENATE REPORTS: No. 100-509 (Comm. on Finance; Comm. on Agriculture, Nutri- tion, and Forestry; Comm. on Energy and Natural Resources; and Comm. on Governmental Affairs). CONGRESSIONAL RECORD, Vol. 134 (1988): Aug. 9, considered and passed House. Sept. 19, considered and p£issed Senate.