S. 1130 (112th): Strengthening America’s Trade Laws Act

112th Congress, 2011–2013. Text as of May 26, 2011 (Introduced).

Status & Summary | PDF | Source: GPO

II

112th CONGRESS

1st Session

S. 1130

IN THE SENATE OF THE UNITED STATES

May 26, 2011

introduced the following bill; which was read twice and referred to the Committee on Finance

A BILL

To strengthen United States trade laws and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Strengthening America's Trade Laws Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—Dispute Settlement

Subtitle A—Findings, purpose, and definitions

Sec. 101. Congressional findings and purpose.

Sec. 102. Definitions.

Subtitle B—Participation in WTO panel proceedings

Sec. 111. Participation in WTO panel proceedings.

Subtitle C—Congressional Advisory Commission on WTO Dispute Settlement

Sec. 121. Establishment of Commission.

Sec. 122. Duties of the Commission.

Sec. 123. Powers of the Commission.

Subtitle D—Congressional approval of regulatory action relating to adverse WTO decisions

Sec. 131. Congressional approval of regulatory actions relating to adverse WTO decisions.

Subtitle E—Clarification of rights and obligations through negotiations

Sec. 141. Clarification of rights and obligations in the WTO through negotiations.

TITLE II—Strengthening antidumping and countervailing duty laws

Sec. 201. Prevention of circumvention.

Sec. 202. Export price and constructed export price.

Sec. 203. Nonmarket economy methodology.

Sec. 204. Determinations on the basis of facts available.

Sec. 205. Clarification of determination of material injury.

Sec. 206. Revocation of nonmarket economy country status.

TITLE III—Expansion of applicability of countervailing duties

Sec. 301. Application of countervailing duties to nonmarket economies and strengthening application of the law.

Sec. 302. Treatment of exchange-rate manipulation as countervailable subsidy under title VII of the Tariff Act of 1930.

Sec. 303. Affirmation of negotiating objective on border taxes.

Sec. 304. Presidential certification; application of countervailing duty law.

TITLE IV—Limitation on presidential discretion in addressing market disruption

Sec. 401. Action to address market disruption.

TITLE V—Miscellaneous

Sec. 501. Application to Canada and Mexico.

I

Dispute Settlement

A

Findings, purpose, and definitions

101.

Congressional findings and purpose

(a)

Findings

The Congress finds the following:

(1)

The United States joined the World Trade Organization as an original member with the goal of creating an improved global trading system and providing expanded economic opportunities for United States workers, farmers, and businesses.

(2)

The dispute settlement rules of the WTO were created to enhance the likelihood that governments will observe their WTO obligations.

(3)

Successful operation of the WTO dispute settlement system was critical to congressional approval of the Uruguay Round Agreements and is critical to continued support by the United States for the WTO. In particular, it is imperative that dispute settlement panels and the Appellate Body—

(A)

operate with fairness and in an impartial manner;

(B)

strictly observe the terms of reference and any applicable standard of review set forth in the Uruguay Round Agreements; and

(C)

not add to the obligations, or diminish the rights, of WTO members under the Uruguay Round Agreements in violation of Articles 3.2 and 19.2 of the Dispute Settlement Understanding.

(4)

An increasing number of reports by dispute settlement panels and the Appellate Body have raised serious concerns within the Congress about the ability of the WTO dispute settlement system to operate in accordance with paragraph (3).

(5)

In particular, several reports of dispute settlement panels and the Appellate Body have added to the obligations and diminished the rights of WTO members, particularly under the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, the Agreement on Subsidies and Countervailing Measures, and the Agreement on Safeguards.

(6)

In order to come into compliance with reports of dispute settlement panels and the Appellate Body that have been adopted by the Dispute Settlement Body, the Congress may need to amend or repeal statutes of the United States. In such cases, the Congress must have a high degree of confidence that the reports are in accordance with paragraph (3).

(7)

The Congress needs impartial, objective, and juridical advice to determine the appropriate response to reports of dispute settlement panels and the Appellate Body.

(8)

The United States remains committed to the multilateral, rules-based trading system.

(b)

Purpose

It is the purpose of this subtitle to provide for the establishment of the Congressional Advisory Commission on WTO Dispute Settlement to provide objective and impartial advice to the Congress on the operation of the dispute settlement system of the World Trade Organization.

102.

Definitions

In this title:

(1)

Adverse finding

The term adverse finding means—

(A)

in a proceeding of a dispute settlement panel or the Appellate Body that is initiated against the United States, a finding by the panel or the Appellate Body that any law, regulation, practice, or interpretation of the United States, or any State, is inconsistent with the obligations of the United States under a Uruguay Round Agreement (or nullifies or impairs benefits accruing to a WTO member under such an Agreement); or

(B)

in a proceeding of a panel or the Appellate Body in which the United States is a complaining party, any finding by the panel or the Appellate Body that a measure of the party complained against is not inconsistent with that party’s obligations under a Uruguay Round Agreement (or does not nullify or impair benefits accruing to the United States under such an Agreement).

(2)

Appellate body

The term Appellate Body means the Appellate Body established by the Dispute Settlement Body pursuant to Article 17.1 of the Dispute Settlement Understanding.

(3)

Appropriate congressional committees

The term appropriate congressional committees means the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives.

(4)

Dispute settlement body

The term Dispute Settlement Body means the Dispute Settlement Body established pursuant to the Dispute Settlement Understanding.

(5)

Dispute settlement panel; panel

The terms dispute settlement panel and panel mean a panel established pursuant to Article 6 of the Dispute Settlement Understanding.

(6)

Dispute settlement understanding

The term Dispute Settlement Understanding means the Understanding on Rules and Procedures Governing the Settlement of Disputes referred to in section 101(d)(16) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(16)).

(7)

Terms of reference

The term terms of reference has the meaning given that term in the Dispute Settlement Understanding.

(8)

Trade representative

The term Trade Representative means the United States Trade Representative.

(9)

United states person

The term United States person means—

(A)

a United States citizen or an alien admitted for permanent residence into the United States; and

(B)

a corporation, partnership, labor organization, or other legal entity organized under the laws of the United States or of any State, the District of Columbia, or any commonwealth, territory, or possession of the United States.

(10)

Uruguay round agreement

The term Uruguay Round Agreement means any of the Agreements described in section 101(d) of the Uruguay Round Agreements Act.

(11)

World trade organization; wto

The terms World Trade Organization and WTO mean the organization established pursuant to the WTO Agreement.

(12)

WTO agreement

The term WTO Agreement means the Agreement Establishing the World Trade Organization entered into on April 15, 1994.

(13)

WTO member

The term WTO member has the meaning given that term in section 2(10) of the Uruguay Round Agreements Act (19 U.S.C. 3501(10)).

B

Participation in WTO panel proceedings

111.

Participation in WTO panel proceedings

(a)

In General

If the Trade Representative, in proceedings before a dispute settlement panel or the Appellate Body of the WTO, seeks—

(1)

to enforce United States rights under a multilateral trade agreement, or

(2)

to defend an action or determination of the United States Government that is challenged,

a United States person that is supportive of the United States Government’s position before the panel or Appellate Body and that has a direct economic interest in the panel’s or Appellate Body’s resolution of the matters in dispute shall be permitted to participate in consultations and panel or Appellate Body proceedings. The Trade Representative shall issue regulations, consistent with subsections (b) and (c), ensuring full and effective participation by any such person.
(b)

Access to Information

The Trade Representative shall make available to persons described in subsection (a) all information presented to or otherwise obtained by the Trade Representative in connection with the WTO dispute settlement proceeding in which such persons are participating. The Trade Representative shall promulgate regulations to protect information designated as confidential in the proceeding.

(c)

Participation in Panel Process

Upon request from a person described in subsection (a), the Trade Representative shall—

(1)

consult in advance with such person regarding the content of written submissions from the United States to the panel or Appellate Body concerned or to the other member countries involved;

(2)

include, if appropriate, such person or the person's appropriate representative as an advisory member of the delegation in sessions of the dispute settlement panel or Appellate Body;

(3)

allow such person, if such person would bring special knowledge to the proceeding, to appear before the panel or Appellate Body, directly or through counsel, under the supervision of responsible United States Government officials; and

(4)

in proceedings involving confidential information, allow the appearance of such person only through counsel as a member of the special delegation.

C

Congressional Advisory Commission on WTO Dispute Settlement

121.

Establishment of Commission

(a)

Establishment

There is established a commission to be known as the Congressional Advisory Commission on WTO Dispute Settlement (in this subtitle referred to as the Commission).

(b)

Membership

(1)

Composition

The Commission shall be composed of 5 members, all of whom shall be judges or former judges of the Federal judicial circuits and shall be appointed by the Speaker of the House of Representatives and the President pro tempore of the Senate after considering the recommendations of the Chairman and ranking member of each of the appropriate congressional committees. Commissioners shall be chosen without regard to political affiliation and solely on the basis of each Commissioner’s fitness to perform the duties of a Commissioner.

(2)

Date

The appointments of the initial members of the Commission shall be made not later than 90 days after the date of the enactment of this Act.

(c)

Period of Appointment; Vacancies

(1)

In general

Members of the Commission shall each be appointed for a term of 5 years, except that of the members first appointed, 3 members shall each be appointed for a term of 3 years.

(2)

Vacancies

(A)

In general

Any vacancy on the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made and shall be subject to the same conditions as the original appointment.

(B)

Unexpired term

An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced.

(d)

Initial Meeting

Not later than 30 days after the date on which all members of the Commission have been appointed, the Commission shall hold its first meeting.

(e)

Meetings

Except for the initial meeting, the Commission shall meet at the call of the Chairperson.

(f)

Quorum

A majority of the members of the Commission shall constitute a quorum, but a lesser number of members may hold hearings.

(g)

Chairperson and Vice Chairperson

The Commission shall select a Chairperson and Vice Chairperson from among its members.

(h)

Funding

Members of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Commission.

122.

Duties of the Commission

(a)

Advising the Congress on the Operation of the WTO Dispute Settlement System

(1)

In general

The Commission shall review—

(A)

all adverse findings that are—

(i)

adopted by the Dispute Settlement Body; and

(ii)

the result of a proceeding initiated against the United States by a WTO member; and

(B)

upon the request of either of the appropriate congressional committees—

(i)

any adverse finding of a dispute settlement panel or the Appellate Body—

(I)

that is adopted by the Dispute Settlement Body; and

(II)

in which the United States is a complaining party; or

(ii)

any other finding that is contained in a report of a dispute settlement panel or the Appellate Body that is adopted by the Dispute Settlement Body.

(2)

Scope of review

The Commission shall advise the Congress in connection with each adverse finding under paragraph (1)(A) or (1)(B)(i) or other finding under paragraph (1)(B)(ii) on—

(A)

whether the dispute settlement panel or the Appellate Body, as the case may be—

(i)

exceeded its authority or its terms of reference;

(ii)

added to the obligations, or diminished the rights, of the United States under the Uruguay Round Agreement that is the subject of the finding;

(iii)

acted arbitrarily or capriciously, engaged in misconduct, or demonstrably departed from the procedures specified for panels and the Appellate Body in the applicable Uruguay Round Agreement; or

(iv)

deviated from the applicable standard of review, including in antidumping, countervailing duty, and other trade remedy cases, the standard of review set forth in Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994;

(B)

whether the finding is consistent with the original understanding by the United States of the Uruguay Round Agreement that is the subject of the finding as explained in the statement of administrative action approved under section 101(a) of the Uruguay Round Agreements Act (19 U.S.C. 3511(a)); and

(C)

what actions, if any, the United States should take in response to the finding, including any proposals to amend, rescind, or otherwise modify a law, regulation, practice, or interpretation of the United States.

(3)

No deference

In advising the Congress under paragraph (2), the Commission shall not accord deference to findings of law made by the dispute settlement panel or the Appellate Body, as the case may be.

(b)

Determination; Report

(1)

Determination

(A)

In general

Not later than 150 days after the date on which the Commission receives notice of a report or request under section 123(b), the Commission shall make a written determination with respect to the matters described in paragraph (2) of subsection (a), including a full analysis of the basis for its determination. A vote by a majority of the members of the Commission shall constitute a determination of the Commission, although the members need not agree on the basis for their vote.

(B)

Dissenting or concurring opinions

Any member of the Commission who disagrees with a determination of the Commission or who concurs in such a determination on a basis different from that of the Commission or other members of the Commission, may write an opinion expressing such disagreement or concurrence, as the case may be.

(2)

Report

The Commission shall promptly report the determinations described in paragraph (1)(A) to the appropriate congressional committees. The Commission shall include with the report any opinions written under paragraph (1)(B) with respect to the determination.

(c)

Availability to the Public

Each report of the Commission under subsection (b)(2), together with the opinions included with the report, shall be made available to the public.

123.

Powers of the Commission

(a)

Hearings

The Commission may hold a public hearing to solicit views concerning an adverse finding or other finding described in section 122(a)(1), if the Commission considers such hearing to be necessary to carry out the purpose of this subtitle. The Commission shall provide reasonable notice of a hearing held pursuant to this subsection.

(b)

Information From Interested Parties and Federal Agencies

(1)

Notice to commission

(A)

Under section 122(a)(1)(A)

The Trade Representative shall advise the Commission not later than 5 business days after the date the Dispute Settlement Body adopts an adverse finding that is to be reviewed by the Commission under section 122(a)(1)(A).

(B)

Under section 122(a)(1)(B)

Either of the appropriate congressional committees may make and notify the Commission of a request under section 122(a)(1)(B) not later than 1 year after the Dispute Settlement Body adopts the adverse finding or other finding that is the subject of the request.

(C)

Findings adopted prior to appointment of commission

With respect to any adverse finding or other finding to which section 122(a)(1)(B) applies and that is adopted before the date on which the first members of the Commission are appointed under section 121(b)(2), either of the appropriate congressional committees may make and notify the Commission of a request under section 122(a)(1)(B) with respect to the adverse finding or other finding not later than 1 year after the date on which the first members of the Commission are appointed under section 121(b)(2).

(2)

Submissions and requests for information

(A)

In general

The Commission shall promptly publish in the Federal Register notice of—

(i)

the notice received under paragraph (1) from the Trade Representative or either of the appropriate congressional committees; and

(ii)

an opportunity for interested parties to submit written comments to the Commission.

(B)

Comments available to public

The Commission shall make comments submitted pursuant to subparagraph (A)(ii) available to the public.

(C)

Information from Federal agencies and departments

The Commission may secure directly from any Federal department or agency such information as the Commission considers necessary to carry out the provisions of this subtitle. Upon the request of the chairperson of the Commission, the head of such department or agency shall furnish the information requested to the Commission in a timely manner.

(3)

Access to panel and appellate body documents

(A)

In general

The Trade Representative shall make available to the Commission all submissions and relevant documents relating to an adverse finding described in section 122(a)(1), including any information contained in such submissions and relevant documents identified by the provider of the information as proprietary information or information designated as confidential by a foreign government.

(B)

Public access

Any document that the Trade Representative submits to the Commission shall be available to the public, except information that is identified as proprietary or confidential or the disclosure of which would otherwise violate the rules of the WTO.

(c)

Assistance From Federal Agencies; Confidentiality

(1)

Administrative assistance

Any agency or department of the United States that is designated by the President shall provide administrative services, funds, facilities, staff, or other support services to the Commission to assist the Commission with the performance of the Commission’s functions.

(2)

Confidentiality

(A)

Documents and information from agencies

The Commission shall protect from disclosure any document or information submitted to it by a department or agency of the United States that the agency or department requests be kept confidential.

(B)

Disclosure of documents and information of Commission

The Commission shall not be considered to be an agency for purposes of section 552 of title 5, United States Code.

D

Congressional approval of regulatory action relating to adverse WTO decisions

131.

Congressional approval of regulatory actions relating to adverse WTO decisions

(a)

In general

Section 123(g) of the Uruguay Round Agreements Act (19 U.S.C. 3533(g)) is amended—

(1)

in paragraph (1)—

(A)

in subparagraph (E), by striking and;

(B)

by redesignating subparagraph (F) as subparagraph (H); and

(C)

by inserting after subparagraph (E) the following new subparagraphs:

(F)

the appropriate congressional committees have received the report on the determinations of the Congressional Advisory Commission on WTO Dispute Settlement under section 122(b)(2) of the Strengthening America's Trade Laws Act with respect to the relevant dispute settlement panel or Appellate Body decision;

(G)

a joint resolution, described in paragraph (2), approving the proposed modification or final rule is enacted into law after the appropriate congressional committees receive the report on the determinations of the Congressional Advisory Commission on WTO Dispute Settlement under section 122(b)(2) of the Strengthening America's Trade Laws Act; and

; and

(2)

by amending paragraph (2) to read as follows:

(2)

Joint resolution to approve modification in agency regulation or practice

(A)

In general

For the purposes of paragraph (1)(G), a joint resolution is a joint resolution of the 2 Houses of the Congress, the matter after the resolving clause of which is as follows: That the Congress approves the modifications to the regulation or practice of the United States proposed in a report submitted to the Congress under subparagraph (D) or (F) of section 123(g)(1) of the Uruguay Round Agreements Act (19 U.S.C. 3533(g)(1) (D) and (F)) on _______, relating to ______., with the first blank space being filled with the date on which the report is submitted to the Congress and the second blank space being filled with the specific modification proposed to the regulation or practice of the United States.

(B)

Procedural provisions

The procedural provisions of subsections (d) through (i) of section 206 of the Strengthening America's Trade Laws Act shall apply to a joint resolution described in subparagraph (A).

.

(b)

Effective date

(1)

In general

The amendments made by this section shall take effect on the date of the enactment of this Act.

(2)

Modifications made between January 1, 2007, and the date of the enactment of this Act

(A)

In general

Modifications to any regulation or practice of a department or agency of the United States made pursuant to the provisions of section 123(g) of the Uruguay Round Agreements Act (19 U.S.C. 3533(g)) that became effective on or after January 1, 2007, and before the date of the enactment of this Act, shall be suspended upon the enactment of this Act and have no effect.

(B)

Approval of modifications

On or after the date of the enactment of this Act, the Trade Representative and the head of the department or agency within whose jurisdiction the modification described in subparagraph (A) falls may seek approval of such modification pursuant to the procedures set out in section 123(g)(1) of the Uruguay Round Agreements Act (19 U.S.C. 3533(g)(1)), as amended by subsection (a).

E

Clarification of rights and obligations through negotiations

141.

Clarification of rights and obligations in the WTO through negotiations

(a)

In general

After an adverse finding, the United States shall work within the World Trade Organization to obtain clarification of the Uruguay Round Agreement to which the adverse finding applies to conform the Agreement to the understanding of the United States regarding the rights and obligations of the United States and shall not modify the law, regulation, practice, or interpretation of the United States in response to the adverse finding if—

(1)

the United States has stated at the Dispute Settlement Body that the adverse finding has created obligations never agreed to by the United States;

(2)

either of the appropriate congressional committees by resolution finds that the adverse finding has created obligations never agreed to by the United States; or

(3)

the Congressional Advisory Commission on WTO Dispute Resolution makes a determination under section 122(a)(2)(A)(ii) that the adverse finding has created obligations never agreed to by the United States.

(b)

Applicability

(1)

In general

This section shall apply to any adverse finding on or after January 1, 2002.

(2)

Effect on modification of regulation, practice, or interpretation adopted before enactment of this Act

(A)

In general

Any agency that modified a regulation, practice, or interpretation in response to an adverse finding between January 1, 2002 and the date of the enactment of this Act shall provide notice that the modification shall cease to have force and effect on the date that is 30 days after the date of the enactment of this Act and such modification shall cease to have force and effect on such date.

(B)

Applicability in trade remedy cases

The cessation of the force and effect of the modification described in subparagraph (A) shall apply with respect to—

(i)

investigations initiated—

(I)

on the basis of petitions filed under section 702(b), 732(b), or 783(a) of the Tariff Act of 1930 (19 U.S.C. 1671a(b), 1673a(b), and 1677n(a)) or section 202(a), 221, 251(a), or 292(a) of the Trade Act of 1974 (19 U.S.C. 2252(a), 2271, 2341(a), and 2401a(a)) after the date on which the modification ceases to have force and effect under subparagraph (A);

(II)

by the administering authority under section 702(a) or 732(a) of the Tariff Act of 1930 (19 U.S.C. 1671a(a) and 1673a(a)) after such date; or

(III)

under section 753 of the Tariff Act of 1930 (19 U.S.C. 1675b) after such date;

(ii)

reviews initiated under section 751 of the Tariff Act of 1930 (19 U.S.C. 1675)—

(I)

by the administering authority or the International Trade Commission on their own initiative after such date; or

(II)

pursuant to a request filed after such date; and

(iii)

all proceedings conducted under section 129 of the Uruguay Round Agreements Act (19 U.S.C. 3538) commenced after such date.

(3)

Effect on prior statutory changes

(A)

In general

Paragraph (2)(A) shall not apply to modifications to statutes of the United States made in response to adverse findings.

(B)

Clarification of United States rights

If a statute of the United States has been modified in response to an adverse finding, the United States shall obtain clarification of the rights and obligations of the United States affected by the adverse finding pursuant to subsection (a).

II

Strengthening antidumping and countervailing duty laws

201.

Prevention of circumvention

Section 781(c) of the Tariff Act of 1930 (19 U.S.C. 1677j(c)) is amended by adding at the end the following new paragraph:

(3)

Special rule

The administering authority may exclude altered merchandise from the class or kind of merchandise subject to an investigation and order or finding described in paragraph (1), if such exclusion is not inconsistent with the affirmative determination of the Commission on which the order or finding is based.

.

202.

Export price and constructed export price

Section 772(c)(2)(A) of the Tariff Act of 1930 (19 U.S.C. 1677a(c)(2)(A)) is amended by inserting (including antidumping and countervailing duties imposed under this title) after duties.

203.

Nonmarket economy methodology

Section 773(c)(4) of the Tariff Act of 1930 (19 U.S.C. 1677b(c)(4)) is amended to read as follows:

(4)

Valuation of factors of production

(A)

In general

The administering authority, in valuing factors of production under paragraph (1), shall utilize, to the extent possible, the prices or costs of factors of production in one or more market economy countries that are—

(i)

at a level of economic development comparable to that of the nonmarket economy country; and

(ii)

significant producers of comparable merchandise.

In this paragraph, the term surrogate refers to the values, calculations, and market economy countries used under this subparagraph.
(B)

Valuing materials used in production

In determining the value of materials used in production under subparagraph (A), the following applies:

(i)

The administering authority may use the value of inputs that are purchased from market economy suppliers and are not suspected of being dumped or subsidized, only for the quantity of such purchases.

(ii)

All materials purchased or otherwise obtained from nonmarket economy countries shall be valued using surrogate values under subparagraph (A).

(iii)

A purchased material shall be viewed as suspected of being subsidized if there are any affirmative findings by the United States or another WTO member of export subsidy programs in the supplying country.

(iv)

A purchased material shall be viewed as suspected of being dumped if there are any affirmative findings by the United States or other WTO member of dumping in the general category of merchandise, or if information supplied by the petitioner or otherwise of record suggests significant underpricing to the purchaser in the nonmarket economy country.

(v)

Surrogate values for materials from a market economy country shall be disregarded as not reflective of prices in that surrogate market only if prices in that market are viewed as aberrational, such as a case in which prices undersell or exceed any reported price in that surrogate market by a large amount.

(vi)

There shall be a presumption that the administering authority will include all market prices from a surrogate market. Prices that are high or low shall be excluded only when it is demonstrated that the prices are not reflective of prices in the surrogate country for the relevant category of merchandise.

(vii)

If amounts pertaining to the cost of production of imports into a surrogate country from market economy suppliers are used for valuing the materials used, such amounts shall be valued on the basis of CIF (cost, insurance, and freight), plus duties paid, to provide a proxy for prices in the surrogate country competing with locally produced goods. Such values shall not be reduced by the import duties.

(C)

Valuing labor

(i)

The administering authority may use an average of wage rates for market economies, but shall ensure that labor rates used fully reflect all labor costs, including benefits, health care, and pension costs.

(ii)

Labor shall be the total labor employed by a nonmarket economy country producer or used by a nonmarket economy country producer in the overall business, with allocations to other merchandise produced or sold by that producer that is not subject merchandise.

(iii)

Labor shall reflect the average labor for all other producers in the nonmarket economy country that are producing the particular merchandise subject to investigation or review, and shall not be limited to operations used for export.

(D)

Valuing factory overhead, general selling and administrative expenses, and profit

(i)

In general

The administering authority shall use the best information available with respect to likely values of factory overhead, general selling and administrative expenses, and profit from a surrogate country. If the values determined under subparagraphs (B) and (C) for materials used and labor consumed result in amounts that are demonstrably larger or smaller than the amounts used in determining surrogate ratios from financial or other reports from a surrogate country, adjustments shall be made to the ratios to reflect fully the level of such costs and profits in the surrogate country on a per item produced basis.

(ii)

Ratios defined

For purposes of this subparagraph, the term ratios means—

(I)

the ratio of factory overhead to labor, materials, and energy;

(II)

the ratio of general selling and administrative costs to factory overhead, labor, materials, and energy; and

(III)

the ratio of profit to general selling and administrative costs, factory overhead, labor, materials, and energy.

(E)

Use of confidential information from a foreign producer in a surrogate country

The administering authority shall generally use publicly available information to value factors of production, except that, in a case in which any foreign producer in the surrogate country that is willing to provide information to the administering authority on factors of production to produce the same class of merchandise and such information is subject to verification, the administering authority shall accept and use such information. The relationship of the foreign producer providing the information to a party to the proceeding shall not be a basis for disqualification.

.

204.

Determinations on the basis of facts available

Section 776(a)(2)(B) of the Tariff Act of 1930 (19 U.S.C. 1677e(a)(2)(B)) is amended to read as follows:

(B)

fails to provide such information by the deadline for submission of the information or in the form and manner required, and in conformity with prior administering authority determinations in the proceeding and final judicial decisions in the proceeding, subject to subsections (c)(1) and (e) of section 782,

.

205.

Clarification of determination of material injury

Section 771(7) of the Tariff Act of 1930 (19 U.S.C. 1677(7)) is amended by adding at the end the following new subparagraph:

(J)

Clarification of determination of material injury

In determining if there is material injury, or threat of material injury, by reason of imports of the subject merchandise, the Commission shall make the Commission's determination without regard to—

(i)

whether other imports are likely to replace subject merchandise, or

(ii)

the effect of a potential order on the domestic industry.

.

206.

Revocation of nonmarket economy country status

(a)

Amendment of definition of nonmarket economy country

Section 771(18)(C)(i) of the Tariff Act of 1930 (19 U.S.C. 1677(18)(C)(i)) is amended to read as follows:

(i)

Any determination that a foreign country is a nonmarket economy country shall remain in effect until—

(I)

the administering authority makes a final determination to revoke the determination under subparagraph (A); and

(II)

a joint resolution is enacted into law pursuant to section 206 of the Strengthening America's Trade Laws Act.

.

(b)

Notification by President; joint resolution

Whenever the administering authority makes a final determination under section 771(18)(C)(i)(I) of the Tariff Act of 1930 (19 U.S.C. 1677(18)(C)(i)(I)) to revoke the determination that a foreign country is a nonmarket economy country—

(1)

the President shall notify the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives of that determination not later than 10 days after the publication of the administering authority's final determination in the Federal Register;

(2)

the President shall transmit to the Congress a request that a joint resolution be introduced pursuant to this section; and

(3)

a joint resolution shall be introduced in the Congress pursuant to this section.

(c)

Definition

For purposes of this section, the term joint resolution means only a joint resolution of the 2 Houses of the Congress, the matter after the resolving clause of which is as follows: That the Congress approves the change of nonmarket economy status with respect to the products of _____ transmitted by the President to the Congress on _____., the first blank space being filled in with the name of the country with respect to which a determination has been made under section 771(18)(C)(i) of the Tariff Act of 1930 (19 U.S.C. 1677(18)(C)(i)), and the second blank space being filled with the date on which the President notified the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives under subsection (b)(1).

(d)

Introduction

A joint resolution shall be introduced (by request) in the House by the majority leader of the House, for himself, or by Members of the House designated by the majority leader of the House, and shall be introduced (by request) in the Senate by the majority leader of the Senate, for himself, or by Members of the Senate designated by the majority leader of the Senate.

(e)

Amendments prohibited

No amendment to a joint resolution shall be in order in either the House of Representatives or the Senate, and no motion to suspend the application of this subsection shall be in order in either House, nor shall it be in order in either House for the presiding officer to entertain a request to suspend the application of this subsection by unanimous consent.

(f)

Period for committee and floor consideration

(1)

In general

If the committee or committees of either House to which a joint resolution has been referred have not reported the joint resolution at the close of the 45th day after its introduction, such committee or committees shall be automatically discharged from further consideration of the joint resolution and it shall be placed on the appropriate calendar. A vote on final passage of the joint resolution shall be taken in each House on or before the close of the 15th day after the joint resolution is reported by the committee or committees of that House to which it was referred, or after such committee or committees have been discharged from further consideration of the joint resolution. If, prior to the passage by one House of a joint resolution of that House, that House receives the same joint resolution from the other House, then—

(A)

the procedure in that House shall be the same as if no joint resolution had been received from the other House, but

(B)

the vote on final passage shall be on the joint resolution of the other House.

(2)

Computation of days

For purposes of paragraph (1), in computing a number of days in either House, there shall be excluded any day on which that House is not in session.

(g)

Floor consideration in the House

(1)

Motion privileged

A motion in the House of Representatives to proceed to the consideration of a joint resolution shall be highly privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

(2)

Debate limited

Debate in the House of Representatives on a joint resolution shall be limited to not more than 20 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate shall not be debatable. It shall not be in order to move to recommit a joint resolution or to move to reconsider the vote by which a joint resolution is agreed to or disagreed to.

(3)

Motions to postpone

Motions to postpone, made in the House of Representatives with respect to the consideration of a joint resolution, and motions to proceed to the consideration of other business, shall be decided without debate.

(4)

Appeals

All appeals from the decisions of the Chair relating to the application of the Rules of the House of Representatives to the procedure relating to a joint resolution shall be decided without debate.

(5)

Other rules

Except to the extent specifically provided in the preceding provisions of this subsection, consideration of a joint resolution shall be governed by the Rules of the House of Representatives applicable to other bills and resolutions in similar circumstances.

(h)

Floor consideration in the Senate

(1)

Motion privileged

A motion in the Senate to proceed to the consideration of a joint resolution shall be privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

(2)

Debate limited

Debate in the Senate on a joint resolution, and all debatable motions and appeals in connection therewith, shall be limited to not more than 20 hours. The time shall be equally divided between, and controlled by, the majority leader and the minority leader or their designees.

(3)

Control of debate

Debate in the Senate on any debatable motion or appeal in connection with a joint resolution shall be limited to not more than 1 hour, to be equally divided between, and controlled by, the mover and the manager of the joint resolution, except that in the event the manager of the joint resolution is in favor of any such motion or appeal, the time in opposition thereto shall be controlled by the minority leader or his designee. Such leaders, or either of them, may, from time under their control on the passage of a joint resolution, allot additional time to any Senator during the consideration of any debatable motion or appeal.

(4)

Other motions

A motion in the Senate to further limit debate is not debatable. A motion to recommit a joint resolution is not in order.

(i)

Rules of House of Representatives and Senate

Subsections (c) through (h) are enacted by the Congress—

(1)

as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such subsections (c) through (h) are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of joint resolutions described in subsection (c), and subsections (c) through (h) supersede other rules only to the extent that they are inconsistent therewith; and

(2)

with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.

III

Expansion of applicability of countervailing duties

301.

Application of countervailing duties to nonmarket economies and strengthening application of the law

(a)

In General

Section 701(a)(1) of the Tariff Act of 1930 (19 U.S.C. 1671(a)(1)) is amended by inserting (including a nonmarket economy country) after country each place it appears.

(b)

Definition of countervailable subsidy

Section 771(5)(E) of the Tariff Act of 1930 (19 U.S.C. 1677(5)(E)) is amended by adding at the end the following: For purposes of clauses (i) through (iv), if there is a reasonable indication that government intervention has distorted prices or other economic indicators in the country that is subject to the investigation or review, or if data regarding such prices or economic indicators are otherwise unavailable, then the administering authority shall measure the benefit conferred to the recipient by reference to data regarding relevant prices or other economic indicators from a country other than the country that is subject to the investigation or review. If there is a reasonable indication that prices or other economic indicators within a political subdivision, dependent territory, or possession of a foreign country are distorted, or data are not available, then the administering authority shall measure the benefit conferred to the recipient in that political subdivision, dependent territory, or possession by reference to data from the most comparable area or region in which relevant prices or other economic indicators are not distorted, regardless of whether such area or region is in the same country..

(c)

Effective Date

The amendments made by subsections (a) and (b) apply to petitions filed under section 702 of the Tariff Act of 1930 (19 U.S.C. 1671a) on or after the date of the enactment of this Act.

(d)

Antidumping Provisions not Affected

The amendments made by subsections (a) and (b) shall not affect the status of a country as a nonmarket economy country for the purposes of any matter relating to antidumping duties under subtitle B of title VII of the Tariff Act of 1930 (19 U.S.C. 1673 et seq.).

302.

Treatment of exchange-rate manipulation as countervailable subsidy under title VII of the Tariff Act of 1930

(a)

Amendments to Definition of Countervailable Subsidy

Section 771(5)(D) of the Tariff Act of 1930 (19 U.S.C. 1677(5)(D)) is amended—

(1)

by striking The term and inserting (i) The term;

(2)

by redesignating clauses (i) through (iv) as subclauses (I) through (IV), respectively; and

(3)

by adding at the end the following:

(ii)

The term provides a financial contribution includes engaging in exchange-rate manipulation (as defined in paragraph (5C)).

.

(b)

Definition of Exchange-Rate Manipulation

Section 771 of the Tariff Act of 1930 (19 U.S.C. 1677) is amended by inserting after paragraph (5B) the following new paragraph:

(5C)

Definition of exchange-rate manipulation

(A)

In general

For purposes of paragraphs (5) and (5A), the term exchange-rate manipulation means protracted large-scale intervention by a country to undervalue the country's currency in the exchange market that prevents effective balance-of-payments adjustment or that gains an unfair competitive advantage over any other country.

(B)

Factors

In determining whether exchange-rate manipulation is occurring and a benefit thereby conferred, the administering authority in each case—

(i)

shall consider the exporting country’s—

(I)

bilateral balance-of-trade surplus or deficit with the United States;

(II)

balance-of-trade surplus or deficit with its other trading partners individually and in the aggregate;

(III)

foreign direct investment in its territory;

(IV)

currency-specific and aggregate amounts of foreign currency reserves; and

(V)

mechanisms employed to maintain its currency at a fixed exchange rate relative to another currency and, particularly, the nature, duration, monetary expenditures, and potential monetary expenditures of those mechanisms;

(ii)

may consider such other economic factors as are relevant; and

(iii)

shall measure the trade surpluses or deficits described in subclauses (I) and (II) of clause (i) with reference to the trade data reported by the United States and the other trading partners of the exporting country, unless such trade data are not available or are demonstrably inaccurate, in which case the exporting country’s trade data may be relied upon if shown to be sufficiently accurate and trustworthy.

(C)

Type of economy

A country found to be engaged in exchange-rate manipulation may have—

(i)

a market economy;

(ii)

a nonmarket economy; or

(iii)

a combination thereof.

.

303.

Affirmation of negotiating objective on border taxes

The Congress reaffirms the negotiating objective relating to border taxes set forth in section 2102(b)(15) of the Bipartisan Trade Promotion Authority Act of 2002 (19 U.S.C. 3802(b)(15)).

304.

Presidential certification; application of countervailing duty law

(a)

Certification by the President

(1)

In general

The President shall certify to the Congress by January 1, 2012, that, under the Agreement on Subsidies and Countervailing Measures or subsequent agreement of the World Trade Organization, the full or partial exemption, remission, or deferral specifically related to exports of direct taxes is treated in the same manner as the full or partial exemption, remission, or deferral specifically related to exports of indirect taxes.

(2)

Effect of failure to certify

If the President does not make the certification to Congress required by paragraph (1) by January 1, 2012, the Secretary of Commerce, in any investigation conducted under subtitle A of title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq.) to determine whether a countervailable subsidy is being provided with respect to a product of a country that provides the full or partial exemption, remission, or deferral specifically related to exports of indirect taxes on products exported from that country, shall treat as a countervailable subsidy the full or partial exemption, remission, or deferral specifically related to exports of indirect taxes paid on that product.

(b)

Definitions

In this section:

(1)

Agreement on subsidies and countervailing measures

The term Agreement on Subsidies and Countervailing Measures means the agreement referred to in section 101(d)(12) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(12)).

(2)

Direct taxes

The term direct taxes means taxes on wages, profits, interest, rents, royalties, and all other forms of income, and taxes on the ownership of real property.

(3)

Import charges

The term import charges means tariffs, duties, and other fiscal charges that are levied on imports.

(4)

Indirect taxes

The term indirect taxes means sales, excise, turnover, value added, franchise, stamp, transfer, inventory, and equipment taxes, border taxes, and all taxes other than direct taxes and import charges.

(5)

Full or partial exemption, remission, or deferral specifically related to exports of direct taxes

The term full or partial exemption, remission, or deferral specifically related to exports of direct taxes means direct taxes that are paid to the United States Government by a business concern and are fully or partially exempted, remitted, or deferred by the Government by reason of the export by that business concern of its products from the United States.

(6)

Full or partial exemption, remission, or deferral specifically related to exports of indirect taxes

The term full or partial exemption, remission, or deferral specifically related to exports of indirect taxes means indirect taxes that are paid to the government of a country by a business concern and are fully or partially exempted, remitted, or deferred by that government by reason of the export by that business concern of its products from that country.

(c)

Effective period

(1)

In general

Subsection (a) shall cease to be effective on the date on which the President makes a certification described in subsection (a).

(2)

Termination of countervailing duty orders

Any countervailing duty order that is issued pursuant to an investigation conducted under subsection (a) and is still in effect on the date described in paragraph (1) shall terminate on such date.

IV

Limitation on presidential discretion in addressing market disruption

401.

Action to address market disruption

Section 421 of the Trade Act of 1974 (19 U.S.C. 2451) is amended—

(1)

in subsection (a), by striking to the extent and for such period and all that follows to the end period and inserting as recommended by the International Trade Commission;

(2)

in subsection (e), by striking agreed upon by either group and all that follows to the end period and inserting shall be considered an affirmative determination;

(3)

in subsection (f)—

(A)

by striking on proposed remedies in the heading and inserting for relief;

(B)

by striking the Commission shall propose and inserting the Commission shall recommend; and

(C)

by striking proposed action and inserting recommended action;

(4)

by striking subsection (h);

(5)

in subsection (i)—

(A)

in the flush sentence at the end of paragraph (1), by striking agreed upon by either group and all that follows to the end period and inserting shall be deemed an affirmative determination; and

(B)

by striking paragraphs (3) and (4);

(6)

by striking subsections (j) and (k);

(7)

by amending paragraph (1) of subsection (l) to read as follows: (1) The President’s implementation of the International Trade Commission remedy shall be published in the Federal Register.;

(8)

by amending subsection (m) to read as follows:

(m)

Effective date of relief

Import relief under this section shall take effect on the date the International Trade Commission’s recommendation is published in the Federal Register, but not later than 15 days after the date of the Commission’s vote recommending the relief.

;

(9)

by amending subsection (n) to read as follows:

(n)

Modification of Relief

Any import relief that includes an increase in duty or the imposition of import restrictions shall be for a period not to exceed 3 years.

; and

(10)

by striking subsection (o).

V

Miscellaneous

501.

Application to Canada and Mexico

Pursuant to article 1902 of the North American Free Trade Agreement and section 408 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3438), this Act and the amendments made by this Act shall apply with respect to goods from Canada and Mexico.