108TH CONGRESS

1ST SESSION H. R. 2738

AN ACT

To implement the United States-Chile Free Trade

Agreement.

108TH CONGRESS

1ST SESSION H. R. 2738

AN ACT

To implement the United States-Chile Free Trade

Agreement.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

2 (a) SHORT TITLE.—This Act may be cited as the

3 ‘‘United States-Chile Free Trade Agreement Implementa4 tion Act’’.

5 (b) TABLE OF CONTENTS.—

Sec. 1. Short title; table of contents.

Sec. 2. Purposes.

Sec. 3. Definitions.

TITLE I—APPROVAL OF, AND GENERAL PROVISIONS RELATING

TO, THE AGREEMENT

Sec. 101. Approval and entry into force of the Agreement.

Sec. 102. Relationship of the agreement to United States and State law.

Sec. 103. Consultation and layover provisions for, and effective date of, proclaimed actions.

Sec. 104. Implementing actions in anticipation of entry into force and initial

regulations.

Sec. 105. Administration of dispute settlement proceedings.

Sec. 106. Arbitration of claims.

Sec. 107. Effective dates; effect of termination.

TITLE II—CUSTOMS PROVISIONS

Sec. 201. Tariff modifications.

Sec. 202. Rules of origin.

Sec. 203. Drawback.

Sec. 204. Customs user fees.

Sec. 205. Disclosure of incorrect information; denial of preferential tariff treatment; false certificates of origin.

Sec. 206. Reliquidation of entries.

Sec. 207. Recordkeeping requirements.

Sec. 208. Enforcement of textile and apparel rules of origin.

Sec. 209. Conforming amendments.

Sec. 210. Regulations.

TITLE III—RELIEF FROM IMPORTS

Sec. 301. Definitions.

Subtitle A—Relief From Imports Benefiting From the Agreement

Sec. 311. Commencing of action for relief.

Sec. 312. Commission action on petition.

Sec. 313. Provision of relief.

Sec. 314. Termination of relief authority.

Sec. 315. Compensation authority.

Sec. 316. Confidential business information.

Subtitle B—Textile and Apparel Safeguard Measures

Sec. 321. Commencement of action for relief.
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Sec. 322. Determination and provision of relief.

Sec. 323. Period of relief.

Sec. 324. Articles exempt from relief.

Sec. 325. Rate after termination of import relief.

Sec. 326. Termination of relief authority.

Sec. 327. Compensation authority.

Sec. 328. Business confidential information.

TITLE IV—TEMPORARY ENTRY OF BUSINESS PERSONS

Sec. 401. Nonimmigrant traders and investors.

Sec. 402. Nonimmigrant professionals; labor attestation.

Sec. 403. Labor disputes.

Sec. 404. Conforming amendments.

1 SEC. 2. PURPOSES.

2 The purposes of this Act are—

3 (1) to approve and implement the Free Trade

4 Agreement between the United States and the Re5 public of Chile entered into under the authority of

6 section 2103(b) of the Bipartisan Trade Promotion

7 Authority Act of 2002;

8 (2) to strengthen and develop economic rela9 tions between the United States and Chile for their

10 mutual benefit;

11 (3) to establish free trade between the two na12 tions through the reduction and elimination of bar13 riers to trade in goods and services and to invest14 ment; and

15 (4) to lay the foundation for further coopera16 tion to expand and enhance the benefits of such

17 Agreement.

18 SEC. 3. DEFINITIONS.

19 In this Act:
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1 (1) AGREEMENT.—The term ‘‘Agreement’’

2 means the United States-Chile Free Trade Agree3 ment approved by the Congress under section

4 101(a)(1).

5 (2) HTS.—The term ‘‘HTS’’ means the Har6 monized Tariff Schedule of the United States.

7 (3) TEXTILE OR APPAREL GOOD.—The term

8 ‘‘textile or apparel good’’ means a good listed in the

9 Annex to the Agreement on Textiles and Clothing

10 referred to in section 101(d)(4) of the Uruguay

11 Round Agreements Act (19 U.S.C. 3511(d)(4)).

12 TITLE I—APPROVAL OF, AND

13 GENERAL PROVISIONS RE14 LATING TO, THE AGREEMENT

15 SEC. 101. APPROVAL AND ENTRY INTO FORCE OF THE

16 AGREEMENT.

17 (a) APPROVAL OF AGREEMENT AND STATEMENT OF

18 ADMINISTRATIVE ACTION.—Pursuant to section 2105 of

19 the Bipartisan Trade Promotion Authority Act of 2002

20 (19 U.S.C. 3805) and section 151 of the Trade Act of

21 1974 (19 U.S.C. 2191), the Congress approves—

22 (1) the United States-Chile Free Trade Agree23 ment entered into on June 6, 2003, with the Gov24 ernment of Chile and submitted to the Congress on

25 July 15, 2003; and
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1 (2) the statement of administrative action pro2 posed to implement the Agreement that was sub3 mitted to the Congress on July 15, 2003.

4 (b) CONDITIONS FOR ENTRY INTO FORCE OF THE

5 AGREEMENT.—At such time as the President determines

6 that Chile has taken measures necessary to bring it into

7 compliance with the provisions of the Agreement that take

8 effect on the date on which the Agreement enters into

9 force, the President is authorized to exchange notes with

10 the Government of Chile providing for the entry into force,

11 on or after January 1, 2004, of the Agreement for the

12 United States.

13 SEC. 102. RELATIONSHIP OF THE AGREEMENT TO UNITED

14 STATES AND STATE LAW.

15 (a) RELATIONSHIP TO UNITED STATES LAW.—

16 (1) UNITED STATES LAW TO PREVAIL IN CON17 FLICT.—No provision of the Agreement, nor the ap18 plication of any such provision to any person or cir19 cumstance, which is inconsistent with any law of the

20 United States shall have effect.

21 (2) CONSTRUCTION.—Nothing in this Act shall

22 be construed—

23 (A) to amend or modify any law of the

24 United States, or
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1 (B) to limit any authority conferred under

2 any law of the United States,

3 unless specifically provided for in this Act.

4 (b) RELATIONSHIP OF AGREEMENT TO STATE

5 LAW.—

6 (1) LEGAL CHALLENGE.—No State law, or the

7 application thereof, may be declared invalid as to

8 any person or circumstance on the ground that the

9 provision or application is inconsistent with the

10 Agreement, except in an action brought by the

11 United States for the purpose of declaring such law

12 or application invalid.

13 (2) DEFINITION OF STATE LAW.—For purposes

14 of this subsection, the term ‘‘State law’’ includes—

15 (A) any law of a political subdivision of a

16 State; and

17 (B) any State law regulating or taxing the

18 business of insurance.

19 (c) EFFECT OF AGREEMENT WITH RESPECT TO PRI20 VATE REMEDIES.—No person other than the United

21 States—

22 (1) shall have any cause of action or defense

23 under the Agreement or by virtue of Congressional

24 approval thereof; or
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1 (2) may challenge, in any action brought under

2 any provision of law, any action or inaction by any

3 department, agency, or other instrumentality of the

4 United States, any State, or any political subdivision

5 of a State on the ground that such action or inaction

6 is inconsistent with the Agreement.

7 SEC. 103. CONSULTATION AND LAYOVER PROVISIONS FOR,

8 AND EFFECTIVE DATE OF, PROCLAIMED AC9 TIONS.

10 (a) CONSULTATION AND LAYOVER REQUIRE11 MENTS.—If a provision of this Act provides that the imple12 mentation of an action by the President by proclamation

13 is subject to the consultation and layover requirements of

14 this section, such action may be proclaimed only if—

15 (1) the President has obtained advice regarding

16 the proposed action from—

17 (A) the appropriate advisory committees

18 established under section 135 of the Trade Act

19 of 1974 (19 U.S.C. 2155); and

20 (B) the United States International Trade

21 Commission;

22 (2) the President has submitted a report to the

23 Committee on Ways and Means of the House of

24 Representatives and the Committee on Finance of

25 the Senate that sets forth—
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1 (A) the action proposed to be proclaimed

2 and the reasons therefor; and

3 (B) the advice obtained under paragraph

4 (1);

5 (3) a period of 60 calendar days, beginning on

6 the first day on which the requirements set forth in

7 paragraphs (1) and (2) have been met has expired;

8 and

9 (4) the President has consulted with such Com10 mittees regarding the proposed action during the pe11 riod referred to in paragraph (3).

12 (b) EFFECTIVE DATE OF CERTAIN PROCLAIMED AC13 TIONS.—Any action proclaimed by the President under the

14 authority of this Act that is not subject to the consultation

15 and layover provisions under subsection (a) may not take

16 effect before the 15th day after the date on which the text

17 of the proclamation is published in the Federal Register.

18 SEC. 104. IMPLEMENTING ACTIONS IN ANTICIPATION OF

19 ENTRY INTO FORCE AND INITIAL REGULA20 TIONS.

21 (a) IMPLEMENTING ACTIONS.—

22 (1) PROCLAMATION AUTHORITY.—After the

23 date of enactment of this Act—

24 (A) the President may proclaim such ac25 tions, and
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1 (B) other appropriate officers of the

2 United States Government may issue such reg3 ulations,

4 as may be necessary to ensure that any provision of

5 this Act, or amendment made by this Act, that takes

6 effect on the date the Agreement enters into force

7 is appropriately implemented on such date, but no

8 such proclamation or regulation may have an effec9 tive date earlier than the date of entry into force.

10 (2) WAIVER OF 15-DAY RESTRICTION.—The 15-

11 day restriction contained in section 103(b) on the

12 taking effect of proclaimed actions is waived to the

13 extent that the application of such restriction would

14 prevent the taking effect on the date the Agreement

15 enters into force of any action proclaimed under this

16 section.

17 (b) INITIAL REGULATIONS.—Initial regulations nec18 essary or appropriate to carry out the actions required by

19 or authorized under this Act or proposed in the statement

20 of administrative action referred to in section 101(a)(2)

21 to implement the Agreement shall, to the maximum extent

22 feasible, be issued within 1 year after the date of entry

23 into force of the Agreement. In the case of any imple24 menting action that takes effect on a date after the date

25 of entry into force of the Agreement, initial regulations
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1 to carry out that action shall, to the maximum extent fea2 sible, be issued within 1 year after such effective date.

3 SEC. 105. ADMINISTRATION OF DISPUTE SETTLEMENT PRO4 CEEDINGS.

5 (a) ESTABLISHMENT OR DESIGNATION OF OFFICE.—

6 The President is authorized to establish or designate with7 in the Department of Commerce an office that shall be

8 responsible for providing administrative assistance to pan9 els established under chapter 22 of the Agreement. The

10 office may not be considered to be an agency for purposes

11 of section 552 of title 5, United States Code.

12 (b) AUTHORIZATION OF APPROPRIATIONS.—There

13 are authorized to be appropriated for each fiscal year after

14 fiscal year 2003 to the Department of Commerce such

15 sums as may be necessary for the establishment and oper16 ations of the office under subsection (a) and for the pay17 ment of the United States share of the expenses of panels

18 established under chapter 22 of the Agreement.

19 SEC. 106. ARBITRATION OF CLAIMS.

20 (a) SUBMISSION OF CERTAIN CLAIMS.—The United

21 States is authorized to resolve any claim against the

22 United States covered by article 10.15(1)(a)(i)(C) or

23 10.15(1)(b)(i)(C) of the Agreement, pursuant to the In24 vestor-State Dispute Settlement procedures set forth in

25 section B of chapter 10 of the Agreement.
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1 (b) CONTRACT CLAUSES.—All contracts executed by

2 any agency of the United States on or after the date of

3 entry into force of the Agreement shall contain a clause

4 specifying the law that will apply to resolve any breach

5 of contract claim.

6 SEC. 107. EFFECTIVE DATES; EFFECT OF TERMINATION.

7 (a) EFFECTIVE DATES.—Except as provided in sub8 section (b), the provisions of this Act and the amendments

9 made by this Act take effect on the date the Agreement

10 enters into force.

11 (b) EXCEPTIONS.—Sections 1 through 3 and this

12 title take effect on the date of the enactment of this Act.

13 (c) TERMINATION OF THE AGREEMENT.—On the

14 date on which the Agreement ceases to be in force, the

15 provisions of this Act (other than this subsection) and the

16 amendments made by this Act shall cease to be effective.

17 TITLE II—CUSTOMS PROVISIONS

18 SEC. 201. TARIFF MODIFICATIONS.

19 (a) TARIFF MODIFICATIONS PROVIDED FOR IN THE

20 AGREEMENT.—

21 (1) PROCLAMATION AUTHORITY.—The Presi22 dent may proclaim—

23 (A) such modifications or continuation of

24 any duty,
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1 (B) such continuation of duty-free or ex2 cise treatment, or

3 (C) such additional duties,

4 as the President determines to be necessary or ap5 propriate to carry out or apply articles 3.3, 3.7, 3.9,

6 article 3.20 (8), (9), (10), and (11), and Annex 3.3

7 of the Agreement.

8 (2) EFFECT ON CHILEAN GSP STATUS.—Not9 withstanding section 502(a)(1) of the Trade Act of

10 1974 (19 U.S.C. 2462(a)(1)), the President shall

11 terminate the designation of Chile as a beneficiary

12 developing country for purposes of title V of the

13 Trade Act of 1974 on the date of entry into force

14 of the Agreement.

15 (b) OTHER TARIFF MODIFICATIONS.—Subject to the

16 consultation and layover provisions of section 103(a), the

17 President may proclaim—

18 (1) such modifications or continuation of any

19 duty,

20 (2) such modifications as the United States

21 may agree to with Chile regarding the staging of any

22 duty treatment set forth in Annex 3.3 of the Agree23 ment,

24 (3) such continuation of duty-free or excise

25 treatment, or
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1 (4) such additional duties,

2 as the President determines to be necessary or appropriate

3 to maintain the general level of reciprocal and mutually

4 advantageous concessions with respect to Chile provided

5 for by the Agreement.

6 (c) ADDITIONAL TARIFFS ON AGRICULTURAL SAFE7 GUARD GOODS.—

8 (1) IN GENERAL.—In addition to any duty pro9 claimed under subsection (a) or (b), and subject to

10 paragraphs (3) through (5), the Secretary of the

11 Treasury shall assess a duty, in the amount pre12 scribed under paragraph (2), on an agricultural safe13 guard good if the Secretary of the Treasury deter14 mines that the unit import price of the good when

15 it enters the United States, determined on an

16 F.O.B. basis, is less than the trigger price indicated

17 for that good in Annex 3.18 of the Agreement or

18 any amendment thereto.

19 (2) CALCULATION OF ADDITIONAL DUTY.—The

20 amount of the additional duty assessed under this

21 subsection shall be determined as follows:

22 (A) If the difference between the unit im23 port price and the trigger price is less than, or

24 equal to, 10 percent of the trigger price, no ad25 ditional duty shall be imposed.
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1 (B) If the difference between the unit im2 port price and the trigger price is greater than

3 10 percent, but less than or equal to 40 per4 cent, of the trigger price, the additional duty

5 shall be equal to 30 percent of the difference

6 between the preferential tariff rate and the col7 umn 1 general rate of duty imposed under the

8 HTS on like articles at the time the additional

9 duty is imposed.

10 (C) If the difference between the unit im11 port price and the trigger price is greater than

12 40 percent, but less than or equal to 60 per13 cent, of the trigger price, the additional duty

14 shall be equal to 50 percent of the difference

15 between the preferential tariff rate and the col16 umn 1 general rate of duty imposed under the

17 HTS on like articles at the time the additional

18 duty is imposed.

19 (D) If the difference between the unit im20 port price and the trigger price is greater than

21 60 percent, but less than or equal to 75 per22 cent, of the trigger price, the additional duty

23 shall be equal to 70 percent of the difference

24 between the preferential tariff rate and the col25 umn 1 general rate of duty imposed under the
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1 HTS on like articles at the time the additional

2 duty is imposed.

3 (E) If the difference between the unit im4 port price and the trigger price is greater than

5 75 percent of the trigger price, the additional

6 duty shall be equal to 100 percent of the dif7 ference between the preferential tariff rate and

8 the column 1 general rate of duty imposed

9 under the HTS on like articles at the time the

10 additional duty is imposed.

11 (3) EXCEPTIONS.—No additional duty under

12 this subsection shall be assessed on an agricultural

13 safeguard good if, at the time of entry, the good is

14 subject to import relief under—

15 (A) subtitle A of title III of this Act; or

16 (B) chapter 1 of title II of the Trade Act

17 of 1974 (19 U.S.C. 2251 et seq.).

18 (4) TERMINATION.—This subsection shall cease

19 to apply on the date that is 12 years after the date

20 on which the Agreement enters into force.

21 (5) TARIFF-RATE QUOTAS.—If an agricultural

22 safeguard good is subject to a tariff-rate quota, and

23 the in-quota duty rate for the good proclaimed pur24 suant to subsection (a) or (b) is zero, any additional
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1 duty assessed under this subsection shall be applied

2 only to over-quota imports of the good.

3 (6) NOTICE.—Not later than 60 days after the

4 Secretary of the Treasury first assesses additional

5 duties on an agricultural safeguard good under this

6 subsection, the Secretary shall notify the Govern7 ment of Chile in writing of such action and shall

8 provide to the Government of Chile data supporting

9 the assessment of additional duties.

10 (7) MODIFICATION OF TRIGGER PRICES.—Not

11 later than 60 calendar days before agreeing with the

12 Government of Chile pursuant to article 3.18(2)(b)

13 of the Agreement on a modification to a trigger

14 price for a good listed in Annex 3.18 of the Agree15 ment, the President shall notify the Committees on

16 Ways and Means and Agriculture of the House of

17 Representatives and the Committees on Finance and

18 Agriculture of the Senate of the proposed modifica19 tion and the reasons therefor.

20 (8) DEFINITIONS.—In this subsection:

21 (A) AGRICULTURAL SAFEGUARD GOOD.—

22 The term ‘‘agricultural safeguard good’’ means

23 a good—

24 (i) that qualifies as an originating

25 good under section 202;
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1 (ii) that is included in the United

2 States Agricultural Safeguard Product List

3 set forth in Annex 3.18 of the Agreement;

4 and

5 (iii) for which a claim for preferential

6 tariff treatment under the Agreement has

7 been made.

8 (B) F.O.B.—The term ‘‘F.O.B.’’ means

9 free on board, regardless of the mode of trans10 portation, at the point of direct shipment by the

11 seller to the buyer.

12 (C) UNIT IMPORT PRICE.—The term ‘‘unit

13 import price’’ means the price expressed in dol14 lars per kilogram.

15 (d) CONVERSION TO AD VALOREM RATES.—For pur16 poses of subsections (a) and (b), with respect to any good

17 for which the base rate in the Schedule of the United

18 States to Annex 3.3 of the Agreement is a specific or com19 pound rate of duty, the President may substitute for the

20 base rate an ad valorem rate that the President deter21 mines to be equivalent to the base rate.

22 SEC. 202. RULES OF ORIGIN.

23 (a) ORIGINATING GOODS.—

24 (1) IN GENERAL.—For purposes of this Act

25 and for purposes of implementing the tariff treat-
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1 ment provided for under the Agreement, except as

2 otherwise provided in this section, a good is an origi3 nating good if—

4 (A) the good is wholly obtained or pro5 duced entirely in the territory of Chile, the

6 United States, or both;

7 (B) the good—

8 (i) is produced entirely in the territory

9 of Chile, the United States, or both, and

10 (I) each of the nonoriginating

11 materials used in the production of

12 the good undergoes an applicable

13 change in tariff classification specified

14 in Annex 4.1 of the Agreement, or

15 (II) the good otherwise satisfies

16 any applicable regional value-content

17 or other requirements specified in

18 Annex 4.1 of the Agreement; and

19 (ii) satisfies all other applicable re20 quirements of this section; or

21 (C) the good is produced entirely in the

22 territory of Chile, the United States, or both,

23 exclusively from materials described in subpara24 graph (A) or (B).
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1 (2) SIMPLE COMBINATION OR MERE DILU2 TION.—A good shall not be considered to be an orig3 inating good and a material shall not be considered

4 to be an originating material by virtue of having

5 undergone—

6 (A) simple combining or packaging oper7 ations; or

8 (B) mere dilution with water or another

9 substance that does not materially alter the

10 characteristics of the good or material.

11 (b) DE MINIMIS AMOUNTS OF NONORIGINATING MA12 TERIALS.—

13 (1) IN GENERAL.—Except as provided in para14 graphs (2) and (3), a good that does not undergo a

15 change in tariff classification pursuant to Annex 4.1

16 of the Agreement is an originating good if—

17 (A) the value of all nonoriginating mate18 rials that are used in the production of the good

19 and do not undergo the applicable change in

20 tariff classification does not exceed 10 percent

21 of the adjusted value of the good;

22 (B) the value of such nonoriginating mate23 rials is included in the value of nonoriginating

24 materials for any applicable regional value-con25 tent requirement; and
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1 (C) the good meets all other applicable re2 quirements of this section.

3 (2) EXCEPTIONS.—Paragraph (1) does not

4 apply to the following:

5 (A) A nonoriginating material provided for

6 in chapter 4 of the HTS, or a nonoriginating

7 dairy preparation containing over 10 percent by

8 weight of milk solids provided for in subheading

9 1901.90 or 2106.90 of the HTS, that is used

10 in the production of a good provided for in

11 chapter 4 of the HTS.

12 (B) A nonoriginating material provided for

13 in chapter 4 of the HTS, or nonoriginating

14 dairy preparations containing over 10 percent

15 by weight of milk solids provided for in sub16 heading 1901.90 of the HTS, that are used in

17 the production of the following goods:

18 (i) Infant preparations containing

19 over 10 percent in weight of milk solids

20 provided for in subheading 1901.10 of the

21 HTS.

22 (ii) Mixes and doughs, containing over

23 25 percent by weight of butterfat, not put

24 up for retail sale, provided for in sub25 heading 1901.20 of the HTS.
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1 (iii) Dairy preparations containing

2 over 10 percent by weight of milk solids

3 provided for in subheading 1901.90 or

4 2106.90 of the HTS.

5 (iv) Goods provided for in heading

6 2105 of the HTS.

7 (v) Beverages containing milk pro8 vided for in subheading 2202.90 of the

9 HTS.

10 (vi) Animal feeds containing over 10

11 percent by weight of milk solids provided

12 for in subheading 2309.90 of the HTS.

13 (C) A nonoriginating material provided for

14 in heading 0805 of the HTS, or any of sub15 headings 2009.11.00 through 2009.39 of the

16 HTS, that is used in the production of a good

17 provided for in any of subheadings 2009.11.00

18 through 2009.39 of the HTS, or in fruit or veg19 etable juice of any single fruit or vegetable, for20 tified with minerals or vitamins, concentrated

21 or unconcentrated, provided for in subheading

22 2106.90 or 2202.90 of the HTS.

23 (D) A nonoriginating material provided for

24 in chapter 15 of the HTS that is used in the

25 production of a good provided for in any of
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1 headings 1501.00.00 through 1508, 1512,

2 1514, and 1515 of the HTS.

3 (E) A nonoriginating material provided for

4 in heading 1701 of the HTS that is used in the

5 production of a good provided for in any of

6 headings 1701 through 1703 of the HTS.

7 (F) A nonoriginating material provided for

8 in chapter 17 of the HTS or in heading

9 1805.00.00 of the HTS that is used in the pro10 duction of a good provided for in subheading

11 1806.10 of the HTS.

12 (G) A nonoriginating material provided for

13 in any of headings 2203 through 2208 of the

14 HTS that is used in the production of a good

15 provided for in heading 2207 or 2208 of the

16 HTS.

17 (H) A nonoriginating material used in the

18 production of a good provided for in any of

19 chapters 1 through 21 of the HTS, unless the

20 nonoriginating material is provided for in a dif21 ferent subheading than the good for which ori22 gin is being determined under this section.

23 (3) GOODS PROVIDED FOR IN CHAPTERS 50

24 THROUGH 63 OF THE HTS.—
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1 (A) IN GENERAL.—Except as provided in

2 subparagraph (B), a good provided for in any

3 of chapters 50 through 63 of the HTS that is

4 not an originating good because certain fibers

5 or yarns used in the production of the compo6 nent of the good that determines the tariff clas7 sification of the good do not undergo an appli8 cable change in tariff classification set out in

9 Annex 4.1 of the Agreement, shall be consid10 ered to be an originating good if the total

11 weight of all such fibers or yarns in that com12 ponent is not more than 7 percent of the total

13 weight of that component.

14 (B) CERTAIN TEXTILE OR APPAREL

15 GOODS.—A textile or apparel good containing

16 elastomeric yarns in the component of the good

17 that determines the tariff classification of the

18 good shall be considered to be an originating

19 good only if such yarns are wholly formed in

20 the territory of Chile or the United States.

21 (c) ACCUMULATION.—

22 (1) ORIGINATING GOODS INCORPORATED IN

23 GOODS OF OTHER COUNTRY.—Originating goods or

24 materials of Chile or the United States that are in25 corporated into a good in the territory of the other
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1 country shall be considered to originate in the terri2 tory of the other country.

3 (2) MULTIPLE PROCEDURES.—A good that is

4 produced in the territory of Chile, the United States,

5 or both, by 1 or more producers, is an originating

6 good if the good satisfies the requirements of sub7 section (a) and all other applicable requirements of

8 this section.

9 (d) REGIONAL VALUE-CONTENT.—

10 (1) IN GENERAL.—For purposes of subsection

11 (a)(2), the regional value-content of a good referred

12 to in Annex 4.1 of the Agreement shall be cal13 culated, at the choice of the person claiming pref14 erential tariff treatment for the good, on the basis

15 of the build-down method described in paragraph (2)

16 or the build-up method described in paragraph (3),

17 unless otherwise provided in Annex 4.1 of the Agree18 ment.

19 (2) BUILD-DOWN METHOD.—

20 (A) IN GENERAL.—The regional value-con21 tent of a good may be calculated on the basis

22 of the following build-down method:

RVC =

AV - VNM

× 100

AV

23 (B) DEFINITIONS.—For purposes of sub24 paragraph (A):
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1 (i) The term ‘‘RVC’’ means the re2 gional value-content, expressed as a per3 centage.

4 (ii) The term ‘‘AV’’ means the ad5 justed value.

6 (iii) The term ‘‘VNM’’ means the

7 value of nonoriginating materials used by

8 the producer in the production of the good.

9 (3) BUILD-UP METHOD.—

10 (A) IN GENERAL.—The regional value-con11 tent of a good may be calculated on the basis

12 of the following build-up method:

RVC =

VOM

× 100

AV

13 (B) DEFINITIONS.—For purposes of sub14 paragraph (A):

15 (i) The term ‘‘RVC’’ means the re16 gional value-content, expressed as a per17 centage.

18 (ii) The term ‘‘AV’’ means the ad19 justed value.

20 (iii) The term ‘‘VOM’’ means the

21 value of originating materials used by the

22 producer in the production of the good.

23 (e) VALUE OF MATERIALS.—
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1 (1) IN GENERAL.—For purposes of calculating

2 the regional value-content of a good under sub3 section (d), and for purposes of applying the de

4 minimis rules under subsection (b), the value of a

5 material is—

6 (A) in the case of a material that is im7 ported by the producer of the good, the ad8 justed value of the material with respect to that

9 importation;

10 (B) in the case of a material acquired in

11 the territory in which the good is produced, ex12 cept for a material to which subparagraph (C)

13 applies, the producer’s price actually paid or

14 payable for the material;

15 (C) in the case of a material provided to

16 the producer without charge, or at a price re17 flecting a discount or similar reduction, the sum

18 of—

19 (i) all expenses incurred in the

20 growth, production, or manufacture of the

21 material, including general expenses; and

22 (ii) an amount for profit; or

23 (D) in the case of a material that is self24 produced, the sum of—
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1 (i) all expenses incurred in the pro2 duction of the material, including general

3 expenses; and

4 (ii) an amount for profit.

5 (2) FURTHER ADJUSTMENTS TO THE VALUE OF

6 MATERIALS.—

7 (A) ORIGINATING MATERIALS.—The fol8 lowing expenses, if not included in the value of

9 an originating material calculated under para10 graph (1), may be added to the value of the

11 originating material:

12 (i) The costs of freight, insurance,

13 packing, and all other costs incurred in

14 transporting the material to the location of

15 the producer.

16 (ii) Duties, taxes, and customs broker17 age fees on the material paid in the terri18 tory of Chile, the United States, or both,

19 other than duties and taxes that are

20 waived, refunded, refundable, or otherwise

21 recoverable, including credit against duty

22 or tax paid or payable.

23 (iii) The cost of waste and spoilage re24 sulting from the use of the material in the
28

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1 production of the good, less the value of

2 renewable scrap or byproduct.

3 (B) NONORIGINATING MATERIALS.—The

4 following expenses, if included in the value of a

5 nonoriginating material calculated under para6 graph (1), may be deducted from the value of

7 the nonoriginating material:

8 (i) The costs of freight, insurance,

9 packing, and all other costs incurred in

10 transporting the material to the location of

11 the producer.

12 (ii) Duties, taxes, and customs broker13 age fees on the material paid in the terri14 tory of Chile, the United States, or both,

15 other than duties and taxes that are

16 waived, refunded, refundable, or otherwise

17 recoverable, including credit against duty

18 or tax paid or payable.

19 (iii) The cost of waste and spoilage re20 sulting from the use of the material in the

21 production of the good, less the value of

22 renewable scrap or byproducts.

23 (iv) The cost of originating materials

24 used in the production of the nonorigi-
29

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1 nating material in the territory of Chile or

2 the United States.

3 (f) ACCESSORIES, SPARE PARTS, OR TOOLS.—Acces4 sories, spare parts, or tools delivered with a good that

5 form part of the good’s standard accessories, spare parts,

6 or tools shall be regarded as a material used in the produc7 tion of the good, if—

8 (1) the accessories, spare parts, or tools are

9 classified with and not invoiced separately from the

10 good; and

11 (2) the quantities and value of the accessories,

12 spare parts, or tools are customary for the good.

13 (g) FUNGIBLE GOODS AND MATERIALS.—

14 (1) IN GENERAL.—

15 (A) CLAIM FOR PREFERENTIAL TREAT16 MENT.—A person claiming preferential tariff

17 treatment for a good may claim that a fungible

18 good or material is originating either based on

19 the physical segregation of each fungible good

20 or material or by using an inventory manage21 ment method.

22 (B) INVENTORY MANAGEMENT METHOD.—

23 In this subsection, the term ‘‘inventory manage24 ment method’’ means—

25 (i) averaging;
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1 (ii) ‘‘last-in, first-out’’;

2 (iii) ‘‘first-in, first-out’’; or

3 (iv) any other method—

4 (I) recognized in the generally

5 accepted accounting principles of the

6 country in which the production is

7 performed (whether Chile or the

8 United States); or

9 (II) otherwise accepted by that

10 country.

11 (2) ELECTION OF INVENTORY METHOD.—A

12 person selecting an inventory management method

13 under paragraph (1) for particular fungible goods or

14 materials shall continue to use that method for those

15 goods or materials throughout the fiscal year of that

16 person.

17 (h) PACKAGING MATERIALS AND CONTAINERS FOR

18 RETAIL SALE.—Packaging materials and containers in

19 which a good is packaged for retail sale, if classified with

20 the good, shall be disregarded in determining whether all

21 nonoriginating materials used in the production of the

22 good undergo the applicable change in tariff classification

23 set out in Annex 4.1 of the Agreement, and, if the good

24 is subject to a regional value-content requirement, the

25 value of such packaging materials and containers shall be
31

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1 taken into account as originating or nonoriginating mate2 rials, as the case may be, in calculating the regional value3 content of the good.

4 (i) PACKING MATERIALS AND CONTAINERS FOR

5 SHIPMENT.—Packing materials and containers for ship6 ment shall be disregarded in determining whether—

7 (1) the nonoriginating materials used in the

8 production of the good undergo an applicable change

9 in tariff classification set out in Annex 4.1 of the

10 Agreement; and

11 (2) the good satisfies a regional value-content

12 requirement.

13 (j) INDIRECT MATERIALS.—An indirect material

14 shall be considered to be an originating material without

15 regard to where it is produced.

16 (k) TRANSIT AND TRANSSHIPMENT.—A good that

17 has undergone production necessary to qualify as an origi18 nating good under subsection (a) shall not be considered

19 to be an originating good if, subsequent to that produc20 tion, the good undergoes further production or any other

21 operation outside the territory of Chile or the United

22 States, other than unloading, reloading, or any other proc23 ess necessary to preserve the good in good condition or

24 to transport the good to the territory of Chile or the

25 United States.
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1 (l) TEXTILE AND APPAREL GOODS CLASSIFIABLE AS

2 GOODS PUT UP IN SETS.—Notwithstanding the rules set

3 forth in Annex 4.1 of the Agreement, textile and apparel

4 goods classifiable as goods put up in sets for retail sale

5 as provided for in General Rule of Interpretation 3 of the

6 Harmonized System shall not be considered to be origi7 nating goods unless each of the goods in the set is an origi8 nating good or the total value of the nonoriginating goods

9 in the set does not exceed 10 percent of the value of the

10 set determined for purposes of assessing customs duties.

11 (m) APPLICATION AND INTERPRETATION.—In this

12 section:

13 (1) The basis for any tariff classification is the

14 HTS.

15 (2) Any cost or value referred to in this section

16 shall be recorded and maintained in accordance with

17 the generally accepted accounting principles applica18 ble in the territory of the country in which the good

19 is produced (whether Chile or the United States).

20 (n) DEFINITIONS.—In this section:

21 (1) ADJUSTED VALUE.—The term ‘‘adjusted

22 value’’ means the value determined in accordance

23 with articles 1 through 8, article 15, and the cor24 responding interpretive notes of the Agreement on

25 Implementation of Article VII of the General Agree-
33

•HR 2738 EH

1 ment on Tariffs and Trade 1994 referred to in sec2 tion 101(d)(8) of the Uruguay Round Agreements

3 Act, except that such value may be adjusted to ex4 clude any costs, charges, or expenses incurred for

5 transportation, insurance, and related services inci6 dent to the international shipment of the merchan7 dise from the country of exportation to the place of

8 importation.

9 (2) FUNGIBLE GOODS OR FUNGIBLE MATE10 RIALS.—The terms ‘‘fungible goods’’ and ‘‘fungible

11 materials’’ mean goods or materials, as the case may

12 be, that are interchangeable for commercial purposes

13 and the properties of which are essentially identical.

14 (3) GENERALLY ACCEPTED ACCOUNTING PRIN15 CIPLES.—The term ‘‘generally accepted accounting

16 principles’’ means the principles, rules, and proce17 dures, including both broad and specific guidelines,

18 that define the accounting practices accepted in the

19 territory of Chile or the United States, as the case

20 may be.

21 (4) GOODS WHOLLY OBTAINED OR PRODUCED

22 ENTIRELY IN THE TERRITORY OF CHILE, THE

23 UNITED STATES, OR BOTH.—The term ‘‘goods whol24 ly obtained or produced entirely in the territory of

25 Chile, the United States, or both’’ means—
34

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1 (A) mineral goods extracted in the terri2 tory of Chile, the United States, or both;

3 (B) vegetable goods, as such goods are de4 fined in the Harmonized System, harvested in

5 the territory of Chile, the United States, or

6 both;

7 (C) live animals born and raised in the ter8 ritory of Chile, the United States, or both;

9 (D) goods obtained from hunting, trap10 ping, or fishing in the territory of Chile, the

11 United States, or both;

12 (E) goods (fish, shellfish, and other marine

13 life) taken from the sea by vessels registered or

14 recorded with Chile or the United States and

15 flying the flag of that country;

16 (F) goods produced on board factory ships

17 from the goods referred to in subparagraph

18 (E), if such factory ships are registered or re19 corded with Chile or the United States and fly

20 the flag of that country;

21 (G) goods taken by Chile or the United

22 States or a person of Chile or the United States

23 from the seabed or beneath the seabed outside

24 territorial waters, if Chile or the United States

25 has rights to exploit such seabed;
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1 (H) goods taken from outer space, if the

2 goods are obtained by Chile or the United

3 States or a person of Chile or the United States

4 and not processed in the territory of a country

5 other than Chile or the United States;

6 (I) waste and scrap derived from—

7 (i) production in the territory of Chile,

8 the United States, or both; or

9 (ii) used goods collected in the terri10 tory of Chile, the United States, or both,

11 if such goods are fit only for the recovery

12 of raw materials;

13 (J) recovered goods derived in the territory

14 of Chile or the United States from used goods,

15 and used in the territory of that country in the

16 production of remanufactured goods; and

17 (K) goods produced in the territory of

18 Chile, the United States, or both, exclusively—

19 (i) from goods referred to in any of

20 subparagraphs (A) through (I), or

21 (ii) from the derivatives of goods re22 ferred to in clause (i),

23 at any stage of production.
36

•HR 2738 EH

1 (5) HARMONIZED SYSTEM.—The term ‘‘Har2 monized System’’ means the Harmonized Com3 modity Description and Coding System.

4 (6) INDIRECT MATERIAL.—The term ‘‘indirect

5 material’’ means a good used in the production, test6 ing, or inspection of a good but not physically incor7 porated into the good, or a good used in the mainte8 nance of buildings or the operation of equipment as9 sociated with the production of a good, including—

10 (A) fuel and energy;

11 (B) tools, dies, and molds;

12 (C) spare parts and materials used in the

13 maintenance of equipment or buildings;

14 (D) lubricants, greases, compounding ma15 terials, and other materials used in production

16 or used to operate equipment or buildings;

17 (E) gloves, glasses, footwear, clothing,

18 safety equipment, and supplies;

19 (F) equipment, devices, and supplies used

20 for testing or inspecting the good;

21 (G) catalysts and solvents; and

22 (H) any other goods that are not incor23 porated into the good but the use of which in

24 the production of the good can reasonably be

25 demonstrated to be a part of that production.
37

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1 (7) MATERIAL.—The term ‘‘material’’ means a

2 good that is used in the production of another good,

3 including a part, ingredient, or indirect material.

4 (8) MATERIAL THAT IS SELF-PRODUCED.—The

5 term ‘‘material that is self-produced’’ means a mate6 rial that is an originating good produced by a pro7 ducer of a good and used in the production of that

8 good.

9 (9) NONORIGINATING GOOD OR NONORIGI10 NATING MATERIAL.—The terms ‘‘nonoriginating

11 good’’ and ‘‘nonoriginating material’’ mean a good

12 or material, as the case may be, that does not qual13 ify as an originating good under this section.

14 (10) PACKING MATERIALS AND CONTAINERS

15 FOR SHIPMENT.—The term ‘‘packing materials and

16 containers for shipment’’ means the goods used to

17 protect a good during its transportation, and does

18 not include the packaging materials and containers

19 in which a good is packaged for retail sale.

20 (11) PREFERENTIAL TARIFF TREATMENT.—

21 The term ‘‘preferential tariff treatment’’ means the

22 customs duty rate that is applicable to an origi23 nating good pursuant to chapter 3 of the Agree24 ment.
38

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1 (12) PRODUCER.—The term ‘‘producer’’ means

2 a person who engages in the production of a good

3 in the territory of Chile or the United States.

4 (13) PRODUCTION.—The term ‘‘production’’

5 means growing, mining, harvesting, fishing, raising,

6 trapping, hunting, manufacturing, processing, as7 sembling, or disassembling a good.

8 (14) RECOVERED GOODS.—

9 (A) IN GENERAL.—The term ‘‘recovered

10 goods’’ means materials in the form of indi11 vidual parts that are the result of—

12 (i) the complete disassembly of used

13 goods into individual parts; and

14 (ii) the cleaning, inspecting, testing,

15 or other processing of those parts as nec16 essary for improvement to sound working

17 condition by one or more of the processes

18 described in subparagraph (B), in order

19 for such parts to be assembled with other

20 parts, including other parts that have un21 dergone the processes described in this

22 paragraph, in the production of a remanu23 factured good.

24 (B) PROCESSES.—The processes referred

25 to in subparagraph (A)(ii) are welding, flame
39

•HR 2738 EH

1 spraying, surface machining, knurling, plating,

2 sleeving, and rewinding.

3 (15) REMANUFACTURED GOOD.—The term ‘‘re4 manufactured good’’ means an industrial good as5 sembled in the territory of Chile or the United

6 States, that is listed in Annex 4.18 of the Agree7 ment, and—

8 (A) is entirely or partially comprised of re9 covered goods;

10 (B) has the same life expectancy and

11 meets the same performance standards as a

12 new good; and

13 (C) enjoys the same factory warranty as

14 such a new good.

15 (o) PRESIDENTIAL PROCLAMATION AUTHORITY.—

16 (1) IN GENERAL.—The President is authorized

17 to proclaim, as part of the HTS—

18 (A) the provisions set out in Annex 4.1 of

19 the Agreement; and

20 (B) any additional subordinate category

21 necessary to carry out this title consistent with

22 the Agreement.

23 (2) MODIFICATIONS.—

24 (A) IN GENERAL.—Subject to the consulta25 tion and layover provisions of section 103(a),
40

•HR 2738 EH

1 the President may proclaim modifications to the

2 provisions proclaimed under the authority of

3 paragraph (1)(A), other than provisions of

4 chapters 50 through 63 of the HTS, as in5 cluded in Annex 4.1 of the Agreement.

6 (B) ADDITIONAL PROCLAMATIONS.—Not7 withstanding subparagraph (A), and subject to

8 the consultation and layover provisions of sec9 tion 103(a), the President may proclaim—

10 (i) modifications to the provisions pro11 claimed under the authority of paragraph

12 (1)(A) that are necessary to implement an

13 agreement with Chile pursuant to article

14 3.20(5) of the Agreement; and

15 (ii) before the 1st anniversary of the

16 date of the enactment of this Act, modi17 fications to correct any typographical, cler18 ical, or other nonsubstantive technical

19 error regarding the provisions of chapters

20 50 through 63 of the HTS, as included in

21 Annex 4.1 of the Agreement.

22 SEC. 203. DRAWBACK.

23 (a) DEFINITION OF A GOOD SUBJECT TO CHILE FTA

24 DRAWBACK.—For purposes of this Act and the amend25 ments made by subsection (b), the term ‘‘good subject to
41

•HR 2738 EH

1 Chile FTA drawback’’ means any imported good other

2 than the following:

3 (1) A good entered under bond for transpor4 tation and exportation to Chile.

5 (2)(A) A good exported to Chile in the same

6 condition as when imported into the United States.

7 (B) For purposes of subparagraph (A)—

8 (i) processes such as testing, cleaning, re9 packing, inspecting, sorting, or marking a good,

10 or preserving it in its same condition, shall not

11 be considered to change the condition of the

12 good; and

13 (ii) if a good described in subparagraph

14 (A) is commingled with fungible goods and ex15 ported in the same condition, the origin of the

16 good for the purposes of subsection (j)(1) of

17 section 313 of the Tariff Act of 1930 (19

18 U.S.C. 1313(j)(1)) may be determined on the

19 basis of the inventory methods provided for in

20 the regulations implementing this title.

21 (3) A good—

22 (A) that is—

23 (i) deemed to be exported from the

24 United States;
42

•HR 2738 EH

1 (ii) used as a material in the produc2 tion of another good that is deemed to be

3 exported to Chile; or

4 (iii) substituted for by a good of the

5 same kind and quality that is used as a

6 material in the production of another good

7 that is deemed to be exported to Chile; and

8 (B) that is delivered—

9 (i) to a duty-free shop;

10 (ii) for ship’s stores or supplies for a

11 ship or aircraft; or

12 (iii) for use in a project undertaken

13 jointly by the United States and Chile and

14 destined to become the property of the

15 United States.

16 (4) A good exported to Chile for which a refund

17 of customs duties is granted by reason of—

18 (A) the failure of the good to conform to

19 sample or specification; or

20 (B) the shipment of the good without the

21 consent of the consignee.

22 (5) A good that qualifies under the rules of ori23 gin set out in section 202 that is—

24 (A) exported to Chile;
43

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1 (B) used as a material in the production of

2 another good that is exported to Chile; or

3 (C) substituted for by a good of the same

4 kind and quality that is used as a material in

5 the production of another good that is exported

6 to Chile.

7 (b) CONSEQUENTIAL AMENDMENTS.—

8 (1) BONDED MANUFACTURING WAREHOUSES.—

9 Section 311 of the Tariff Act of 1930 (19 U.S.C.

10 1311) is amended by adding at the end the following

11 new paragraph:

12 ‘‘No article manufactured in a bonded warehouse

13 from materials that are goods subject to Chile FTA draw14 back, as defined in section 203(a) of the United States15 Chile Free Trade Agreement Implementation Act, may be

16 withdrawn from warehouse for exportation to Chile with17 out assessment of a duty on the materials in their condi18 tion and quantity, and at their weight, at the time of im19 portation into the United States. The duty shall be paid

20 before the 61st day after the date of exportation, except

21 that the duty may be waived or reduced by—

22 ‘‘(1) 100 percent during the 8-year period be23 ginning on January 1, 2004;

24 ‘‘(2) 75 percent during the 1-year period begin25 ning on January 1, 2012;
44

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1 ‘‘(3) 50 percent during the 1-year period begin2 ning on January 1, 2013; and

3 ‘‘(4) 25 percent during the 1-year period begin4 ning on January 1, 2014.’’.

5 (2) BONDED SMELTING AND REFINING WARE6 HOUSES.—Section 312 of the Tariff Act of 1930 (19

7 U.S.C. 1312) is amended—

8 (A) in paragraph (1) of subsection (b), by

9 striking ‘‘except that’’ and all that follows

10 through subparagraph (B) and inserting the

11 following: ‘‘except that—

12 ‘‘(A) in the case of a withdrawal for expor13 tation of such a product to a NAFTA country,

14 as defined in section 2(4) of the North Amer15 ican Free Trade Agreement Implementation

16 Act, if any of the imported metal-bearing mate17 rials are goods subject to NAFTA drawback, as

18 defined in section 203(a) of that Act, the duties

19 on the materials shall be paid, and the charges

20 against the bond canceled, before the 61st day

21 after the date of exportation; but upon the pres22 entation, before such 61st day, of satisfactory

23 evidence of the amount of any customs duties

24 paid to the NAFTA country on the product, the

25 duties on the materials may be waived or re-
45

•HR 2738 EH

1 duced (subject to section 508(b)(2)(B)) in an

2 amount that does not exceed the lesser of—

3 ‘‘(i) the total amount of customs du4 ties owed on the materials on importation

5 into the United States, or

6 ‘‘(ii) the total amount of customs du7 ties paid to the NAFTA country on the

8 product, and

9 ‘‘(B) in the case of a withdrawal for expor10 tation of such a product to Chile, if any of the

11 imported metal-bearing materials are goods

12 subject to Chile FTA drawback, as defined in

13 section 203(a) of the United States-Chile Free

14 Trade Agreement Implementation Act, the du15 ties on the materials shall be paid, and the

16 charges against the bond canceled, before the

17 61st day after the date of exportation, except

18 that the duties may be waived or reduced by—

19 ‘‘(i) 100 percent during the 8-year pe20 riod beginning on January 1, 2004,

21 ‘‘(ii) 75 percent during the 1-year pe22 riod beginning on January 1, 2012,

23 ‘‘(iii) 50 percent during the 1-year pe24 riod beginning on January 1, 2013, and
46

•HR 2738 EH

1 ‘‘(iv) 25 percent during the 1-year pe2 riod beginning on January 1, 2014, or’’;

3 (B) in paragraph (4) of subsection (b), by

4 striking ‘‘except that’’ and all that follows

5 through subparagraph (B) and inserting the

6 following: ‘‘except that—

7 ‘‘(A) in the case of a withdrawal for expor8 tation of such a product to a NAFTA country,

9 as defined in section 2(4) of the North Amer10 ican Free Trade Agreement Implementation

11 Act, if any of the imported metal-bearing mate12 rials are goods subject to NAFTA drawback, as

13 defined in section 203(a) of that Act, the duties

14 on the materials shall be paid, and the charges

15 against the bond canceled, before the 61st day

16 after the date of exportation; but upon the pres17 entation, before such 61st day, of satisfactory

18 evidence of the amount of any customs duties

19 paid to the NAFTA country on the product, the

20 duties on the materials may be waived or re21 duced (subject to section 508(b)(2)(B)) in an

22 amount that does not exceed the lesser of—

23 ‘‘(i) the total amount of customs du24 ties owed on the materials on importation

25 into the United States, or
47

•HR 2738 EH

1 ‘‘(ii) the total amount of customs du2 ties paid to the NAFTA country on the

3 product, and

4 ‘‘(B) in the case of a withdrawal for expor5 tation of such a product to Chile, if any of the

6 imported metal-bearing materials are goods

7 subject to Chile FTA drawback, as defined in

8 section 203(a) of the United States-Chile Free

9 Trade Agreement Implementation Act, the du10 ties on the materials shall be paid, and the

11 charges against the bond canceled, before the

12 61st day after the date of exportation, except

13 that the duties may be waived or reduced by—

14 ‘‘(i) 100 percent during the 8-year pe15 riod beginning on January 1, 2004,

16 ‘‘(ii) 75 percent during the 1-year pe17 riod beginning on January 1, 2012,

18 ‘‘(iii) 50 percent during the 1-year pe19 riod beginning on January 1, 2013, and

20 ‘‘(iv) 25 percent during the 1-year pe21 riod beginning on January 1, 2014, or’’;

22 and

23 (C) in subsection (d), in the matter pre24 ceding paragraph (1), by striking ‘‘except that’’

25 and all that follows through the end of para-
48

•HR 2738 EH

1 graph (2) and inserting the following: ‘‘except

2 that—

3 ‘‘(1) in the case of a withdrawal for exportation

4 to a NAFTA country, as defined in section 2(4) of

5 the North American Free Trade Agreement Imple6 mentation Act, if any of the imported metal-bearing

7 materials are goods subject to NAFTA drawback, as

8 defined in section 203(a) of that Act, charges

9 against the bond shall be paid before the 61st day

10 after the date of exportation; but upon the presen11 tation, before such 61st day, of satisfactory evidence

12 of the amount of any customs duties paid to the

13 NAFTA country on the product, the bond shall be

14 credited (subject to section 508(b)(2)(B)) in an

15 amount not to exceed the lesser of—

16 ‘‘(A) the total amount of customs duties

17 paid or owed on the materials on importation

18 into the United States, or

19 ‘‘(B) the total amount of customs duties

20 paid to the NAFTA country on the product;

21 and

22 ‘‘(2) in the case of a withdrawal for exportation

23 to Chile, if any of the imported metal-bearing mate24 rials are goods subject to Chile FTA drawback, as

25 defined in section 203(a) of the United States-Chile
49

•HR 2738 EH

1 Free Trade Agreement Implementation Act, charges

2 against the bond shall be paid before the 61st day

3 after the date of exportation, and the bond shall be

4 credited in an amount equal to—

5 ‘‘(A) 100 percent of the total amount of

6 customs duties paid or owed on the materials

7 on importation into the United States during

8 the 8-year period beginning on January 1,

9 2004,

10 ‘‘(B) 75 percent of the total amount of

11 customs duties paid or owed on the materials

12 on importation into the United States during

13 the 1-year period beginning on January 1,

14 2012,

15 ‘‘(C) 50 percent of the total amount of

16 customs duties paid or owed on the materials

17 on importation into the United States during

18 the 1-year period beginning on January 1,

19 2013, and

20 ‘‘(D) 25 percent of the total amount of

21 customs duties paid or owed on the materials

22 on importation into the United States during

23 the 1-year period beginning on January 1,

24 2014.’’.
50

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1 (3) DRAWBACK.—Section 313 of the Tariff Act

2 of 1930 (19 U.S.C. 1313) is amended—

3 (A) in paragraph (4) of subsection (j)—

4 (i) by striking ‘‘(4)’’ and inserting

5 ‘‘(4)(A)’’; and

6 (ii) by adding at the end the following

7 new subparagraph:

8 ‘‘(B) Beginning on January 1, 2015, the expor9 tation to Chile of merchandise that is fungible with

10 and substituted for imported merchandise, other

11 than merchandise described in paragraphs (1)

12 through (5) of section 203(a) of the United States13 Chile Free Trade Agreement Implementation Act,

14 shall not constitute an exportation for purposes of

15 paragraph (2). The preceding sentence shall not be

16 construed to permit the substitution of unused draw17 back under paragraph (2) of this subsection with re18 spect to merchandise described in paragraph (2) of

19 section 203(a) of the United States-Chile Free

20 Trade Agreement Implementation Act.’’;

21 (B) in subsection (n)—

22 (i) by striking ‘‘(n)’’ and inserting the

23 following:

24 ‘‘(n) REFUNDS, WAIVERS, OR REDUCTIONS UNDER

25 CERTAIN FREE TRADE AGREEMENTS.—’’;
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1 (ii) in paragraph (1)—

2 (I) by striking ‘‘; and’’ at the end

3 of subparagraph (B);

4 (II) by striking the period at the

5 end of subparagraph (C) and insert6 ing ‘‘; and’’; and

7 (III) by adding at the end the

8 following new subparagraph:

9 ‘‘(D) the term ‘good subject to Chile FTA

10 drawback’ has the meaning given that term in sec11 tion 203(a) of the United States-Chile Free Trade

12 Agreement Implementation Act.’’; and

13 (iii) by adding the following new para14 graph at the end:

15 ‘‘(4)(A) For purposes of subsections (a), (b), (f), (h),

16 (j)(2), (p), and (q), if an article that is exported to Chile

17 is a good subject to Chile FTA drawback, no customs du18 ties on the good may be refunded, waived, or reduced, ex19 cept as provided in subparagraph (B).

20 ‘‘(B) The customs duties referred to in subparagraph

21 (A) may be refunded, waived, or reduced by—

22 ‘‘(i) 100 percent during the 8-year period begin23 ning on January 1, 2004;

24 ‘‘(ii) 75 percent during the 1-year period begin25 ning on January 1, 2012;
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1 ‘‘(iii) 50 percent during the 1-year period begin2 ning on January 1, 2013; and

3 ‘‘(iv) 25 percent during the 1-year period begin4 ning on January 1, 2014.’’; and

5 (C) in subsection (o)—

6 (i) by striking ‘‘(o)’’ and inserting the

7 following:

8 ‘‘(o) SPECIAL RULES FOR CERTAIN VESSELS AND

9 IMPORTED MATERIALS.—’’; and

10 (ii) by adding at the end the following

11 new paragraphs:

12 ‘‘(3) For purposes of subsection (g), if—

13 ‘‘(A) a vessel is built for the account and own14 ership of a resident of Chile or the Government of

15 Chile, and

16 ‘‘(B) imported materials that are used in the

17 construction and equipment of the vessel are goods

18 subject to Chile FTA drawback, as defined in sec19 tion 203(a) of the United States-Chile Free Trade

20 Agreement Implementation Act,

21 no customs duties on such materials may be refunded,

22 waived, or reduced, except as provided in paragraph (4).

23 ‘‘(4) The customs duties referred to in paragraph (3)

24 may be refunded, waived or reduced by—
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1 ‘‘(A) 100 percent during the 8-year period be2 ginning on January 1, 2004;

3 ‘‘(B) 75 percent during the 1-year period begin4 ning on January 1, 2012;

5 ‘‘(C) 50 percent during the 1-year period begin6 ning on January 1, 2013; and

7 ‘‘(D) 25 percent during the 1-year period begin8 ning on January 1, 2014.’’.

9 (4) MANIPULATION IN WAREHOUSE.—Section

10 562 of the Tariff Act of 1930 (19 U.S.C. 1562) is

11 amended—

12 (A) in paragraph (3), by striking ‘‘to a

13 NAFTA country’’ and inserting ‘‘to Chile, to a

14 NAFTA country,’’;

15 (B) by striking ‘‘and’’ at the end of para16 graph (4)(B);

17 (C) by striking the period at the end of

18 paragraph (5) and inserting ‘‘; and’’; and

19 (D) by inserting after paragraph (5) the

20 following:

21 ‘‘(6)(A) without payment of duties for expor22 tation to Chile, if the merchandise is of a kind de23 scribed in any of paragraphs (1) through (5) of sec24 tion 203(a) of the United States-Chile Free Trade

25 Agreement Implementation Act; and
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1 ‘‘(B) for exportation to Chile if the merchandise

2 consists of goods subject to Chile FTA drawback, as

3 defined in section 203(a) of the United States-Chile

4 Free Trade Agreement Implementation Act, except

5 that—

6 ‘‘(i) the merchandise may not be with7 drawn from warehouse without assessment of a

8 duty on the merchandise in its condition and

9 quantity, and at its weight, at the time of with10 drawal from the warehouse with such additions

11 to, or deductions from, the final appraised value

12 as may be necessary by reason of a change in

13 condition, and

14 ‘‘(ii) duty shall be paid on the merchandise

15 before the 61st day after the date of expor16 tation, except that such duties may be waived

17 or reduced by—

18 ‘‘(I) 100 percent during the 8-year pe19 riod beginning on January 1, 2004,

20 ‘‘(II) 75 percent during the 1-year pe21 riod beginning on January 1, 2012,

22 ‘‘(III) 50 percent during the 1-year

23 period beginning on January 1, 2013, and

24 ‘‘(IV) 25 percent during the 1-year

25 period beginning on January 1, 2014.’’.
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1 (5) FOREIGN TRADE ZONES.—Section 3(a) of

2 the Act of June 18, 1934 (commonly known as the

3 ‘‘Foreign Trade Zones Act’’; 19 U.S.C. 81c(a)) is

4 amended by striking the end period and inserting

5 the following: ‘‘: Provided further, That no merchan6 dise that consists of goods subject to Chile FTA

7 drawback, as defined in section 203(a) of the United

8 States-Chile Free Trade Agreement Implementation

9 Act, that is manufactured or otherwise changed in

10 condition shall be exported to Chile without an as11 sessment of a duty on the merchandise in its condi12 tion and quantity, and at its weight, at the time of

13 its exportation (or if the privilege in the first proviso

14 to this subsection was requested, an assessment of

15 a duty on the merchandise in its condition and

16 quantity, and at its weight, at the time of its admis17 sion into the zone) and the payment of the assessed

18 duty before the 61st day after the date of expor19 tation of the article, except that the customs duty

20 may be waived or reduced by (1) 100 percent during

21 the 8-year period beginning on January 1, 2004; (2)

22 75 percent during the 1-year period beginning on

23 January 1, 2012; (3) 50 percent during the 1-year

24 period beginning on January 1, 2013; and (4) 25
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1 percent during the 1-year period beginning on Janu2 ary 1, 2014.’’.

3 (c) INAPPLICABILITY TO COUNTERVAILING AND

4 ANTIDUMPING DUTIES.—Nothing in this section or the

5 amendments made by this section shall be considered to

6 authorize the refund, waiver, or reduction of counter7 vailing duties or antidumping duties imposed on an im8 ported good.

9 SEC. 204. CUSTOMS USER FEES.

10 Section 13031(b) of the Consolidated Omnibus Budg11 et Reconciliation Act of 1985 (19 U.S.C. 58c(b)) is

12 amended by inserting after paragraph (11) the following:

13 ‘‘(12) No fee may be charged under subsection (a)

14 (9) or (10) with respect to goods that qualify as origi15 nating goods under section 202 of the United States-Chile

16 Free Trade Agreement Implementation Act. Any service

17 for which an exemption from such fee is provided by rea18 son of this paragraph may not be funded with money con19 tained in the Customs User Fee Account.’’.

20 SEC. 205. DISCLOSURE OF INCORRECT INFORMATION; DE21 NIAL OF PREFERENTIAL TARIFF TREAT22 MENT; FALSE CERTIFICATES OF ORIGIN.

23 (a) DISCLOSURE OF INCORRECT INFORMATION.—

24 Section 592 of the Tariff Act of 1930 (19 U.S.C. 1592)

25 is amended—
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1 (1) in subsection (c)—

2 (A) by redesignating paragraph (6) as

3 paragraph (7); and

4 (B) by inserting after paragraph (5) the

5 following new paragraph:

6 ‘‘(6) PRIOR DISCLOSURE REGARDING CLAIMS

7 UNDER THE UNITED STATES-CHILE FREE TRADE

8 AGREEMENT.—An importer shall not be subject to

9 penalties under subsection (a) for making an incor10 rect claim that a good qualifies as an originating

11 good under section 202 of the United States-Chile

12 Free Trade Agreement Implementation Act if the

13 importer, in accordance with regulations issued by

14 the Secretary of the Treasury, voluntarily makes a

15 corrected declaration and pays any duties owing.’’;

16 and

17 (2) by adding at the end the following new sub18 section:

19 ‘‘(g) FALSE CERTIFICATIONS OF ORIGIN UNDER THE

20 UNITED STATES-CHILE FREE TRADE AGREEMENT.—

21 ‘‘(1) IN GENERAL.—Subject to paragraph (2),

22 it is unlawful for any person to certify falsely, by

23 fraud, gross negligence, or negligence, in a Chile

24 FTA Certificate of Origin (as defined in section

25 508(f)(1)(B) of this Act that a good exported from
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1 the United States qualifies as an originating good

2 under the rules of origin set out in section 202 of

3 the United States-Chile Free Trade Agreement Im4 plementation Act. The procedures and penalties of

5 this section that apply to a violation of subsection

6 (a) also apply to a violation of this subsection.

7 ‘‘(2) IMMEDIATE AND VOLUNTARY DISCLOSURE

8 OF INCORRECT INFORMATION.—No penalty shall be

9 imposed under this subsection if, immediately after

10 an exporter or producer that issued a Chile FTA

11 Certificate of Origin has reason to believe that such

12 certificate contains or is based on incorrect informa13 tion, the exporter or producer voluntarily provides

14 written notice of such incorrect information to every

15 person to whom the certificate was issued.

16 ‘‘(3) EXCEPTION.—A person may not be consid17 ered to have violated paragraph (1) if—

18 ‘‘(A) the information was correct at the

19 time it was provided in a Chile FTA Certificate

20 of Origin but was later rendered incorrect due

21 to a change in circumstances; and

22 ‘‘(B) the person immediately and volun23 tarily provides written notice of the change in

24 circumstances to all persons to whom the per25 son provided the certificate.’’.
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1 (b) DENIAL OF PREFERENTIAL TARIFF TREAT2 MENT.—Section 514 of the Tariff Act of 1930 (19 U.S.C.

3 1514) is amended by adding at the end the following new

4 subsection:

5 ‘‘(g) DENIAL OF PREFERENTIAL TARIFF TREAT6 MENT UNDER UNITED STATES-CHILE FREE TRADE

7 AGREEMENT.—If the Bureau of Customs and Border Pro8 tection or the Bureau of Immigration and Customs En9 forcement finds indications of a pattern of conduct by an

10 importer of false or unsupported representations that

11 goods qualify under the rules of origin set out in section

12 202 of the United States-Chile Free Trade Agreement Im13 plementation Act, the Bureau of Customs and Border Pro14 tection, in accordance with regulations issued by the Sec15 retary of the Treasury, may deny preferential tariff treat16 ment under the United States-Chile Free Trade Agree17 ment to entries of identical goods imported by that person

18 until the person establishes to the satisfaction of the Bu19 reau of Customs and Border Protection that representa20 tions of that person are in conformity with such section

21 202.’’.

22 SEC. 206. RELIQUIDATION OF ENTRIES.

23 Subsection (d) of section 520 of the Tariff Act of

24 1930 (19 U.S.C. 1520(d)) is amended—
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1 (1) by striking ‘‘(d)’’ and inserting the fol2 lowing:

3 ‘‘(d) GOODS QUALIFYING UNDER FREE TRADE

4 AGREEMENT RULES OF ORIGIN.—’’;

5 (2) in the matter preceding paragraph (1), by

6 inserting ‘‘or section 202 of the United States-Chile

7 Free Trade Agreement Implementation Act’’ after

8 ‘‘Act’’;

9 (3) in paragraph (1), by striking ‘‘those’’ and

10 inserting ‘‘the applicable’’; and

11 (4) in paragraph (2), by inserting before the

12 semicolon ‘‘, or other certificates of origin, as the

13 case may be’’.

14 SEC. 207. RECORDKEEPING REQUIREMENTS.

15 Section 508 of the Tariff Act of 1930 (19 U.S.C.

16 1508) is amended—

17 (1) by striking the heading of subsection (b)

18 and inserting the following: ‘‘EXPORTATIONS TO

19 NAFTA COUNTRIES.—’’; and

20 (2) by adding at the end the following:

21 ‘‘(f) CERTIFICATES OF ORIGIN FOR GOODS EX22 PORTED UNDER THE UNITED STATES-CHILE FREE

23 TRADE AGREEMENT.—

24 ‘‘(1) DEFINITIONS.—In this subsection:
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1 ‘‘(A) RECORDS AND SUPPORTING DOCU2 MENTS.—The term ‘records and supporting

3 documents’ means, with respect to an exported

4 good under paragraph (2), records and docu5 ments related to the origin of the good,

6 including—

7 ‘‘(i) the purchase, cost, and value of,

8 and payment for, the good;

9 ‘‘(ii) if applicable, the purchase, cost,

10 and value of, and payment for, all mate11 rials, including recovered goods, used in

12 the production of the good; and

13 ‘‘(iii) if applicable, the production of

14 the good in the form in which it was ex15 ported.

16 ‘‘(B) CHILE FTA CERTIFICATE OF ORI17 GIN.—The term ‘Chile FTA Certificate of Ori18 gin’ means the certification, established under

19 article 4.13 of the United States-Chile Free

20 Trade Agreement, that a good qualifies as an

21 originating good under such Agreement.

22 ‘‘(2) EXPORTS TO CHILE.—Any person who

23 completes and issues a Chile FTA Certificate of Ori24 gin for a good exported from the United States shall

25 make, keep, and, pursuant to rules and regulations
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1 promulgated by the Secretary of the Treasury,

2 render for examination and inspection all records

3 and supporting documents related to the origin of

4 the good (including the Certificate or copies thereof).

5 ‘‘(3) RETENTION PERIOD.—Records and sup6 porting documents shall be kept by the person who

7 issued a Chile FTA Certificate of Origin for at least

8 5 years after the date on which the certificate was

9 issued.

10 ‘‘(g) PENALTIES.—Any person who fails to retain

11 records and supporting documents required by subsection

12 (f) or the regulations issued to implement that subsection

13 shall be liable for the greater of—

14 ‘‘(1) a civil penalty not to exceed $10,000; or

15 ‘‘(2) the general record keeping penalty that ap16 plies under the customs laws of the United States.’’.

17 SEC. 208. ENFORCEMENT OF TEXTILE AND APPAREL RULES

18 OF ORIGIN.

19 (a) ACTION DURING VERIFICATION.—If the Sec20 retary of the Treasury requests the Government of Chile

21 to conduct a verification pursuant to article 3.21 of the

22 Agreement for purposes of determining that—

23 (1) an exporter or producer in Chile is com24 plying with applicable customs laws, regulations, and
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1 procedures regarding trade in textile and apparel

2 goods, or

3 (2) claims that textile or apparel goods exported

4 or produced by such exporter or producer—

5 (A) qualify as originating goods under sec6 tion 202 of this Act, or

7 (B) are goods of Chile,

8 are accurate,

9 the President may direct the Secretary to take appropriate

10 action described in subsection (b) while the verification is

11 being conducted.

12 (b) APPROPRIATE ACTION DESCRIBED.—Appropriate

13 action under subsection (a) includes—

14 (1) suspension of liquidation of entries of textile

15 and apparel goods exported or produced by the per16 son that is the subject of the verification, in a case

17 in which the request for verification was based on a

18 reasonable suspicion of unlawful activity related to

19 such goods; and

20 (2) publication of the name of the person that

21 is the subject of the verification.

22 (c) ACTION WHEN INFORMATION IS INSUFFI23 CIENT.—If the Secretary of the Treasury determines that

24 the information obtained within 12 months after making

25 a request for a verification under subsection (a) is insuffi-
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1 cient to make a determination under subsection (a), the

2 President may direct the Secretary to take appropriate ac3 tion described in subsection (d) until such time as the Sec4 retary receives information sufficient to make a deter5 mination under subsection (a) or until such earlier date

6 as the President may direct.

7 (d) APPROPRIATE ACTION DESCRIBED.—Appro8 priate action under subsection (c) includes—

9 (1) publication of the identity of the person

10 that is the subject of the verification;

11 (2) denial of preferential tariff treatment under

12 the Agreement to any textile or apparel goods ex13 ported or produced by the person that is the subject

14 of the verification; and

15 (3) denial of entry into the United States of

16 any textile or apparel goods exported or produced by

17 the person that is the subject of the verification.

18 SEC. 209. CONFORMING AMENDMENTS.

19 Section 508(b)(2)(B)(i)(I) of the Tariff Act of 1930

20 (19 U.S.C. 1508(b)(2)(B)(i)(I)) is amended—

21 (1) by striking ‘‘the last paragraph of section

22 311’’ and inserting ‘‘the eleventh paragraph of sec23 tion 311’’; and
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1 (2) by striking ‘‘the last proviso to section

2 3(a)’’ and inserting ‘‘the proviso preceding the last

3 proviso to section 3(a)’’.

4 SEC. 210. REGULATIONS.

5 The Secretary of the Treasury shall prescribe such

6 regulations as may be necessary to carry out—

7 (1) subsections (a) through (n) of section 202,

8 and sections 203 and 204;

9 (2) amendments made by the sections referred

10 to in paragraph (1); and

11 (3) proclamations issued under section 202(o).

12 TITLE III—RELIEF FROM

13 IMPORTS

14 SEC. 301. DEFINITIONS.

15 In this title:

16 (1) COMMISSION.—The term ‘‘Commission’’

17 means the United States International Trade Com18 mission.

19 (2) CHILEAN ARTICLE.—The term ‘‘Chilean ar20 ticle’’ means an article that qualifies as an origi21 nating good under section 202(a) of this Act.

22 (3) CHILEAN TEXTILE OR APPAREL ARTICLE.—

23 The term ‘‘Chilean textile or apparel article’’ means

24 an article—
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1 (A) that is listed in the Annex to the

2 Agreement on Textiles and Clothing referred to

3 in section 101(d)(4) of the Uruguay Round

4 Agreements Act (19 U.S.C. 3511(d)(4)); and

5 (B) that is a Chilean article.

6 Subtitle A—Relief From Imports

7 Benefiting From the Agreement

8 SEC. 311. COMMENCING OF ACTION FOR RELIEF.

9 (a) FILING OF PETITION.—A petition requesting ac10 tion under this subtitle for the purpose of adjusting to

11 the obligations of the United States under the Agreement

12 may be filed with the Commission by an entity, including

13 a trade association, firm, certified or recognized union, or

14 group of workers, that is representative of an industry.

15 The Commission shall transmit a copy of any petition filed

16 under this subsection to the United States Trade Rep17 resentative.

18 (b) INVESTIGATION AND DETERMINATION.—Upon

19 the filing of a petition under subsection (a), the Commis20 sion, unless subsection (d) applies, shall promptly initiate

21 an investigation to determine whether, as a result of the

22 reduction or elimination of a duty provided for under the

23 Agreement, a Chilean article is being imported into the

24 United States in such increased quantities, in absolute

25 terms or relative to domestic production, and under such
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1 conditions that imports of the Chilean article constitute

2 a substantial cause of serious injury or threat thereof to

3 the domestic industry producing an article that is like, or

4 directly competitive with, the imported article.

5 (c) APPLICABLE PROVISIONS.—The following provi6 sions of section 202 of the Trade Act of 1974 (19 U.S.C.

7 2252) apply with respect to any investigation initiated

8 under subsection (b):

9 (1) Paragraphs (1)(B) and (3) of subsection

10 (b).

11 (2) Subsection (c).

12 (3) Subsection (i).

13 (d) ARTICLES EXEMPT FROM INVESTIGATION.—No

14 investigation may be initiated under this section with re15 spect to any Chilean article if, after the date that the

16 Agreement enters into force, import relief has been pro17 vided with respect to that Chilean article under this sub18 title, or if, at the time the petition is filed, the article is

19 subject to import relief under chapter 1 of title II of the

20 Trade Act of 1974.

21 SEC. 312. COMMISSION ACTION ON PETITION.

22 (a) DETERMINATION.—Not later than 120 days after

23 the date on which an investigation is initiated under sec24 tion 311(b) with respect to a petition, the Commission

25 shall make the determination required under that section.
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1 (b) APPLICABLE PROVISIONS.—For purposes of this

2 subtitle, the provisions of paragraphs (1), (2), and (3) of

3 section 330(d) of the Tariff Act of 1930 (19 U.S.C.

4 1330(d) (1), (2), and (3)) shall be applied with respect

5 to determinations and findings made under this section

6 as if such determinations and findings were made under

7 section 202 of the Trade Act of 1974 (19 U.S.C. 2252).

8 (c) ADDITIONAL FINDING AND RECOMMENDATION IF

9 DETERMINATION AFFIRMATIVE.—If the determination

10 made by the Commission under subsection (a) with respect

11 to imports of an article is affirmative, or if the President

12 may consider a determination of the Commission to be an

13 affirmative determination as provided for under paragraph

14 (1) of section 330(d) of the Tariff Act of 1930 (19 U.S.C.

15 1330(d)), the Commission shall find, and recommend to

16 the President in the report required under subsection (d),

17 the amount of import relief that is necessary to remedy

18 or prevent the injury found by the Commission in the de19 termination and to facilitate the efforts of the domestic

20 industry to make a positive adjustment to import competi21 tion. The import relief recommended by the Commission

22 under this subsection shall be limited to the relief de23 scribed in section 313(c). Only those members of the Com24 mission who voted in the affirmative under subsection (a)

25 are eligible to vote on the proposed action to remedy or
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1 prevent the injury found by the Commission. Members of

2 the Commission who did not vote in the affirmative may

3 submit, in the report required under subsection (d), sepa4 rate views regarding what action, if any, should be taken

5 to remedy or prevent the injury.

6 (d) REPORT TO PRESIDENT.—Not later than the

7 date that is 30 days after the date on which a determina8 tion is made under subsection (a) with respect to an inves9 tigation, the Commission shall submit to the President a

10 report that includes—

11 (1) the determination made under subsection

12 (a) and an explanation of the basis for the deter13 mination;

14 (2) if the determination under subsection (a) is

15 affirmative, any findings and recommendations for

16 import relief made under subsection (c) and an ex17 planation of the basis for each recommendation; and

18 (3) any dissenting or separate views by mem19 bers of the Commission regarding the determination

20 and recommendation referred to in paragraphs (1)

21 and (2).

22 (e) PUBLIC NOTICE.—Upon submitting a report to

23 the President under subsection (d), the Commission shall

24 promptly make public such report (with the exception of

25 information which the Commission determines to be con-
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1 fidential) and shall cause a summary thereof to be pub2 lished in the Federal Register.

3 SEC. 313. PROVISION OF RELIEF.

4 (a) IN GENERAL.—Not later than the date that is

5 30 days after the date on which the President receives the

6 report of the Commission in which the Commission’s de7 termination under section 312(a) is affirmative, or which

8 contains a determination under section 312(a) that the

9 President considers to be affirmative under paragraph (1)

10 of section 330(d) of the Tariff Act of 1930 (19 U.S.C.

11 1330(d)(1)), the President, subject to subsection (b), shall

12 provide relief from imports of the article that is the subject

13 of such determination to the extent that the President de14 termines necessary to remedy or prevent the injury found

15 by the Commission and to facilitate the efforts of the do16 mestic industry to make a positive adjustment to import

17 competition.

18 (b) EXCEPTION.—The President is not required to

19 provide import relief under this section if the President

20 determines that the provision of the import relief will not

21 provide greater economic and social benefits than costs.

22 (c) NATURE OF RELIEF.—

23 (1) IN GENERAL.—The import relief that the

24 President is authorized to provide under this section

25 with respect to imports of an article is as follows:
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1 (A) The suspension of any further reduc2 tion provided for under Annex 3.3 of the Agree3 ment in the duty imposed on such article.

4 (B) An increase in the rate of duty im5 posed on such article to a level that does not

6 exceed the lesser of—

7 (i) the column 1 general rate of duty

8 imposed under the HTS on like articles at

9 the time the import relief is provided; or

10 (ii) the column 1 general rate of duty

11 imposed under the HTS on like articles on

12 the day before the date on which the

13 Agreement enters into force.

14 (2) PROGRESSIVE LIBERALIZATION.—If the pe15 riod for which import relief is provided under this

16 section is greater than 1 year, the President shall

17 provide for the progressive liberalization (described

18 in article 8.2(2) of the Agreement) of such relief at

19 regular intervals during the period of its application.

20 (d) PERIOD OF RELIEF.—

21 (1) IN GENERAL.—Subject to paragraph (2),

22 the import relief that the President is authorized to

23 provide under this section, including any extensions

24 thereof, may not, in the aggregate, exceed 3 years.

25 (2) EXTENSION.—
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1 (A) IN GENERAL.—If the initial period for

2 any import relief provided under this section is

3 less than 3 years, the President, after receiving

4 an affirmative determination from the Commis5 sion under subparagraph (B), may extend the

6 effective period of any import relief provided

7 under this section, subject to the limitation

8 under paragraph (1), if the President deter9 mines that—

10 (i) the import relief continues to be

11 necessary to remedy or prevent serious in12 jury and to facilitate adjustment; and

13 (ii) there is evidence that the industry

14 is making a positive adjustment to import

15 competition.

16 (B) ACTION BY COMMISSION.—(i) Upon a

17 petition on behalf of the industry concerned,

18 filed with the Commission not earlier than the

19 date which is 9 months, and not later than the

20 date which is 6 months, before the date on

21 which any action taken under subsection (a) is

22 to terminate, the Commission shall conduct an

23 investigation to determine whether action under

24 this section continues to be necessary to remedy

25 or prevent serious injury and whether there is
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1 evidence that the industry is making a positive

2 adjustment to import competition.

3 (ii) The Commission shall publish notice of

4 the commencement of any proceeding under

5 this subparagraph in the Federal Register and

6 shall, within a reasonable time thereafter, hold

7 a public hearing at which the Commission shall

8 afford interested parties and consumers an op9 portunity to be present, to present evidence,

10 and to respond to the presentations of other

11 parties and consumers, and otherwise to be

12 heard.

13 (iii) The Commission shall transmit to the

14 President a report on its investigation and de15 termination under this subparagraph not later

16 than 60 days before the action under subsection

17 (a) is to terminate, unless the President speci18 fies a different date.

19 (e) RATE AFTER TERMINATION OF IMPORT RE20 LIEF.—When import relief under this section is termi21 nated with respect to an article—

22 (1) the rate of duty on that article after such

23 termination and on or before December 31 of the

24 year in which such termination occurs shall be the

25 rate that, according to the Schedule of the United
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1 States in Annex 3.3 of the Agreement for the staged

2 elimination of the tariff, would have been in effect

3 1 year after the provision of relief under subsection

4 (a); and

5 (2) the rate of duty for that article after De6 cember 31 of the year in which termination occurs

7 shall be, at the discretion of the President, either—

8 (A) the applicable rate of duty for that ar9 ticle set out in the Schedule of the United

10 States in Annex 3.3 of the Agreement; or

11 (B) the rate of duty resulting from the

12 elimination of the tariff in equal annual stages

13 ending on the date set out in the United States

14 Schedule in Annex 3.3 of the Agreement for the

15 elimination of the tariff.

16 (f) ARTICLES EXEMPT FROM RELIEF.—No import

17 relief may be provided under this section on any article

18 subject to import relief under chapter 1 of title II of the

19 Trade Act of 1974.

20 SEC. 314. TERMINATION OF RELIEF AUTHORITY.

21 (a) GENERAL RULE.—No import relief may be pro22 vided under this subtitle after the date that is 10 years

23 after the date on which the Agreement enters into force.

24 (b) EXCEPTION.—If an article for which relief is pro25 vided under this subtitle is an article for which the period
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1 for tariff elimination, set out in the Schedule of the United

2 States to Annex 3.3 of the Agreement, is 12 years, no

3 relief under this subtitle may be provided for that article

4 after the date that is 12 years after the date on which

5 the Agreement enters into force.

6 SEC. 315. COMPENSATION AUTHORITY.

7 For purposes of section 123 of the Trade Act of 1974

8 (19 U.S.C. 2133), any import relief provided by the Presi9 dent under section 313 shall be treated as action taken

10 under chapter 1 of title II of such Act.

11 SEC. 316. CONFIDENTIAL BUSINESS INFORMATION.

12 Section 202(a)(8) of the Trade Act of 1974 (19

13 U.S.C. 2252(a)(8)) is amended in the first sentence—

14 (1) by striking ‘‘and’’; and

15 (2) by inserting before the period at the end ‘‘,

16 and title III of the United States-Chile Free Trade

17 Agreement Implementation Act’’.

18 Subtitle B—Textile and Apparel

19 Safeguard Measures

20 SEC. 321. COMMENCEMENT OF ACTION FOR RELIEF.

21 (a) IN GENERAL.—A request under this subtitle for

22 the purpose of adjusting to the obligations of the United

23 States under the Agreement may be filed with the Presi24 dent by an interested party. Upon the filing of a request,

25 the President shall review the request to determine, from
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1 information presented in the request, whether to com2 mence consideration of the request.

3 (b) PUBLICATION OF REQUEST.—If the President de4 termines that the request under subsection (a) provides

5 the information necessary for the request to be considered,

6 the President shall cause to be published in the Federal

7 Register a notice of commencement of consideration of the

8 request, and notice seeking public comments regarding the

9 request. The notice shall include the request and the dates

10 by which comments and rebuttals must be received.

11 SEC. 322. DETERMINATION AND PROVISION OF RELIEF.

12 (a) DETERMINATION.—

13 (1) IN GENERAL.—If a positive determination is

14 made under section 321(b), the President shall de15 termine whether, as a result of the elimination of a

16 duty under the Agreement, a Chilean textile or ap17 parel article is being imported into the United States

18 in such increased quantities, in absolute terms or

19 relative to the domestic market for that article, and

20 under such conditions as to cause serious damage,

21 or actual threat thereof, to a domestic industry pro22 ducing an article that is like, or directly competitive

23 with, the imported article.

24 (2) SERIOUS DAMAGE.—In making a deter25 mination under paragraph (1), the President—
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1 (A) shall examine the effect of increased

2 imports on the domestic industry, as reflected

3 in changes in such relevant economic factors as

4 output, productivity, utilization of capacity, in5 ventories, market share, exports, wages, em6 ployment, domestic prices, profits, and invest7 ment, none of which is necessarily decisive; and

8 (B) shall not consider changes in tech9 nology or consumer preference as factors sup10 porting a determination of serious damage or

11 actual threat thereof.

12 (b) PROVISION OF RELIEF.—

13 (1) IN GENERAL.—If a determination under

14 subsection (a) is affirmative, the President may pro15 vide relief from imports of the article that is the

16 subject of such determination, as provided in para17 graph (2), to the extent that the President deter18 mines necessary to remedy or prevent the serious

19 damage and to facilitate adjustment by the domestic

20 industry.

21 (2) NATURE OF RELIEF.—The relief that the

22 President is authorized to provide under this sub23 section with respect to imports of an article is an in24 crease in the rate of duty imposed on the article to

25 a level that does not exceed the lesser of—
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1 (A) the column 1 general rate of duty im2 posed under the HTS on like articles at the

3 time the import relief is provided; or

4 (B) the column 1 general rate of duty im5 posed under the HTS on like articles on the

6 day before the date on which the Agreement en7 ters into force.

8 SEC. 323. PERIOD OF RELIEF.

9 (a) IN GENERAL.—The import relief that the Presi10 dent is authorized to provide under section 322, including

11 any extensions thereof, may not, in the aggregate, exceed

12 3 years.

13 (b) EXTENSION.—If the initial period for any import

14 relief provided under this section is less than 3 years, the

15 President may extend the effective period of any import

16 relief provided under this section, subject to the limitation

17 set forth in subsection (a), if the President determines

18 that—

19 (1) the import relief continues to be necessary

20 to remedy or prevent serious damage and to facili21 tate adjustment; and

22 (2) there is evidence that the industry is mak23 ing a positive adjustment to import competition.
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1 SEC. 324. ARTICLES EXEMPT FROM RELIEF.

2 The President may not provide import relief under

3 this subtitle with respect to any article if import relief pre4 viously has been provided under this subtitle with respect

5 to that article.

6 SEC. 325. RATE AFTER TERMINATION OF IMPORT RELIEF.

7 When import relief under this subtitle is terminated

8 with respect to an article, the rate of duty on that article

9 shall be duty-free.

10 SEC. 326. TERMINATION OF RELIEF AUTHORITY.

11 No import relief may be provided under this subtitle

12 with respect to any article after the date that is 8 years

13 after the date on which duties on the article are eliminated

14 pursuant to the Agreement.

15 SEC. 327. COMPENSATION AUTHORITY.

16 For purposes of section 123 of the Trade Act of 1974

17 (19 U.S.C. 2133), any import relief provided by the Presi18 dent under this subtitle shall be treated as action taken

19 under chapter 1 of title II of that Act.

20 SEC. 328. BUSINESS CONFIDENTIAL INFORMATION.

21 The President may not release information which the

22 President considers to be confidential business informa23 tion unless the party submitting the confidential business

24 information had notice, at the time of submission, that

25 such information would be released by the President, or

26 such party subsequently consents to the release of the in-
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1 formation. To the extent business confidential information

2 is provided, a nonconfidential version of the information

3 shall also be provided, in which the business confidential

4 information is summarized or, if necessary, deleted.

5 TITLE IV—TEMPORARY ENTRY

6 OF BUSINESS PERSONS

7 SEC. 401. NONIMMIGRANT TRADERS AND INVESTORS.

8 Upon a basis of reciprocity secured by the Agree9 ment, an alien who is a national of Chile (and any spouse

10 or child (as defined in section 101(b)(1) of the Immigra11 tion and Nationality Act (8 U.S.C. 1101(b)(1)) of such

12 alien, if accompanying or following to join the alien) may,

13 if otherwise eligible for a visa and if otherwise admissible

14 into the United States under the Immigration and Nation15 ality Act (8 U.S.C. 1101 et seq.), be considered to be clas16 sifiable as a nonimmigrant under section 101(a)(15)(E)

17 of such Act (8 U.S.C. 1101(a)(15)(E)) if entering solely

18 for a purpose specified in clause (i) or (ii) of such section

19 101(a)(15)(E). For purposes of this section, the term ‘‘na20 tional’’ has the meaning given such term in article 14.9

21 of the Agreement.

22 SEC. 402. NONIMMIGRANT PROFESSIONALS; LABOR ATTES23 TATIONS.

24 (a) NONIMMIGRANT PROFESSIONALS.—
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1 (1) DEFINITIONS.—Section 101(a)(15)(H)(i)(b)

2 of the Immigration and Nationality Act (8 U.S.C.

3 1101(a)(15)(H)(i)(b)) is amended by striking

4 ‘‘212(n)(1), or (c)’’ and inserting ‘‘212(n)(1), or

5 (b1) who is entitled to enter the United States under

6 and in pursuance of the provisions of an agreement

7 listed in section 214(g)(8)(A), who is engaged in a

8 specialty occupation described in section 214(i)(3),

9 and with respect to whom the Secretary of Labor de10 termines and certifies to the Secretary of Homeland

11 Security and the Secretary of State that the intend12 ing employer has filed with the Secretary of Labor

13 an attestation under section 212(t)(1), or (c)’’.

14 (2) ADMISSION OF NONIMMIGRANTS.—Section

15 214 of the Immigration and Nationality Act (8

16 U.S.C. 1184) is amended—

17 (A) in subsection (i)—

18 (i) in paragraph (1), by striking ‘‘For

19 purposes’’ and inserting ‘‘Except as pro20 vided in paragraph (3), for purposes’’; and

21 (ii) by adding at the end the fol22 lowing:

23 ‘‘(3) For purposes of section 101(a)(15)(H)(i)(b1),

24 the term ‘specialty occupation’ means an occupation that

25 requires—
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1 ‘‘(A) theoretical and practical application of a

2 body of specialized knowledge; and

3 ‘‘(B) attainment of a bachelor’s or higher de4 gree in the specific specialty (or its equivalent) as a

5 minimum for entry into the occupation in the United

6 States.’’; and

7 (B) in subsection (g), by adding at the end

8 the following:

9 ‘‘(8)(A) The agreement referred to in section

10 101(a)(15)(H)(i)(b1) is the United States-Chile Free

11 Trade Agreement.

12 ‘‘(B)(i) The Secretary of Homeland Security shall es13 tablish annual numerical limitations on approvals of initial

14 applications by aliens for admission under section

15 101(a)(15)(H)(i)(b1).

16 ‘‘(ii) The annual numerical limitations described in

17 clause (i) shall not exceed 1,400 for nationals of Chile for

18 any fiscal year. For purposes of this clause, the term ‘na19 tional’ has the meaning given such term in article 14.9

20 of the United States-Chile Free Trade Agreement.

21 ‘‘(iii) The annual numerical limitations described in

22 clause (i) shall only apply to principal aliens and not to

23 the spouses or children of such aliens.

24 ‘‘(iv) The annual numerical limitation described in

25 paragraph (1)(A) is reduced by the amount of the annual
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1 numerical limitations established under clause (i). How2 ever, if a numerical limitation established under clause (i)

3 has not been exhausted at the end of a given fiscal year,

4 the Secretary of Homeland Security shall adjust upwards

5 the numerical limitation in paragraph (1)(A) for that fis6 cal year by the amount remaining in the numerical limita7 tion under clause (i). Visas under section

8 101(a)(15)(H)(i)(b) may be issued pursuant to such ad9 justment within the first 45 days of the next fiscal year

10 to aliens who had applied for such visas during the fiscal

11 year for which the adjustment was made.

12 ‘‘(C) The period of authorized admission as a non13 immigrant under section 101(a)(15)(H)(i)(b1) shall be 1

14 year, and may be extended, but only in 1-year increments.

15 After every second extension, the next following extension

16 shall not be granted unless the Secretary of Labor had

17 determined and certified to the Secretary of Homeland Se18 curity and the Secretary of State that the intending em19 ployer has filed with the Secretary of Labor an attestation

20 under section 212(t)(1) for the purpose of permitting the

21 nonimmigrant to obtain such extension.

22 ‘‘(D) The numerical limitation described in para23 graph (1)(A) for a fiscal year shall be reduced by one for

24 each alien granted an extension under subparagraph (C)
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1 during such year who has obtained 5 or more consecutive

2 prior extensions.’’.

3 (b) LABOR ATTESTATIONS.—Section 212 of the Im4 migration and Nationality Act (8 U.S.C. 1182) is

5 amended—

6 (1) by redesignating the subsection (p) added

7 by section 1505(f) of Public Law 106–386 (114

8 Stat. 1526) as subsection (s); and

9 (2) by adding at the end the following:

10 ‘‘(t)(1) No alien may be admitted or provided status

11 as a nonimmigrant under section 101(a)(15)(H)(i)(b1) in

12 an occupational classification unless the employer has filed

13 with the Secretary of Labor an attestation stating the fol14 lowing:

15 ‘‘(A) The employer—

16 ‘‘(i) is offering and will offer during the

17 period of authorized employment to aliens ad18 mitted or provided status under section

19 101(a)(15)(H)(i)(b1) wages that are at least—

20 ‘‘(I) the actual wage level paid by the

21 employer to all other individuals with simi22 lar experience and qualifications for the

23 specific employment in question; or
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1 ‘‘(II) the prevailing wage level for the

2 occupational classification in the area of

3 employment,

4 whichever is greater, based on the best informa5 tion available as of the time of filing the attes6 tation; and

7 ‘‘(ii) will provide working conditions for

8 such a nonimmigrant that will not adversely af9 fect the working conditions of workers similarly

10 employed.

11 ‘‘(B) There is not a strike or lockout in the

12 course of a labor dispute in the occupational classi13 fication at the place of employment.

14 ‘‘(C) The employer, at the time of filing the

15 attestation—

16 ‘‘(i) has provided notice of the filing under

17 this paragraph to the bargaining representative

18 (if any) of the employer’s employees in the oc19 cupational classification and area for which

20 aliens are sought; or

21 ‘‘(ii) if there is no such bargaining rep22 resentative, has provided notice of filing in the

23 occupational classification through such meth24 ods as physical posting in conspicuous locations

25 at the place of employment or electronic notifi-
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1 cation to employees in the occupational classi2 fication for which nonimmigrants under section

3 101(a)(15)(H)(i)(b1) are sought.

4 ‘‘(D) A specification of the number of workers

5 sought, the occupational classification in which the

6 workers will be employed, and wage rate and condi7 tions under which they will be employed.

8 ‘‘(2)(A) The employer shall make available for public

9 examination, within one working day after the date on

10 which an attestation under this subsection is filed, at the

11 employer’s principal place of business or worksite, a copy

12 of each such attestation (and such accompanying docu13 ments as are necessary).

14 ‘‘(B)(i) The Secretary of Labor shall compile, on a

15 current basis, a list (by employer and by occupational clas16 sification) of the attestations filed under this subsection.

17 Such list shall include, with respect to each attestation,

18 the wage rate, number of aliens sought, period of intended

19 employment, and date of need.

20 ‘‘(ii) The Secretary of Labor shall make such list

21 available for public examination in Washington, D.C.

22 ‘‘(C) The Secretary of Labor shall review an attesta23 tion filed under this subsection only for completeness and

24 obvious inaccuracies. Unless the Secretary of Labor finds

25 that an attestation is incomplete or obviously inaccurate,
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1 the Secretary of Labor shall provide the certification de2 scribed in section 101(a)(15)(H)(i)(b1) within 7 days of

3 the date of the filing of the attestation.

4 ‘‘(3)(A) The Secretary of Labor shall establish a

5 process for the receipt, investigation, and disposition of

6 complaints respecting the failure of an employer to meet

7 a condition specified in an attestation submitted under

8 this subsection or misrepresentation by the employer of

9 material facts in such an attestation. Complaints may be

10 filed by any aggrieved person or organization (including

11 bargaining representatives). No investigation or hearing

12 shall be conducted on a complaint concerning such a fail13 ure or misrepresentation unless the complaint was filed

14 not later than 12 months after the date of the failure or

15 misrepresentation, respectively. The Secretary of Labor

16 shall conduct an investigation under this paragraph if

17 there is reasonable cause to believe that such a failure or

18 misrepresentation has occurred.

19 ‘‘(B) Under the process described in subparagraph

20 (A), the Secretary of Labor shall provide, within 30 days

21 after the date a complaint is filed, for a determination as

22 to whether or not a reasonable basis exists to make a find23 ing described in subparagraph (C). If the Secretary of

24 Labor determines that such a reasonable basis exists, the

25 Secretary of Labor shall provide for notice of such deter-
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1 mination to the interested parties and an opportunity for

2 a hearing on the complaint, in accordance with section 556

3 of title 5, United States Code, within 60 days after the

4 date of the determination. If such a hearing is requested,

5 the Secretary of Labor shall make a finding concerning

6 the matter by not later than 60 days after the date of

7 the hearing. In the case of similar complaints respecting

8 the same applicant, the Secretary of Labor may consoli9 date the hearings under this subparagraph on such com10 plaints.

11 ‘‘(C)(i) If the Secretary of Labor finds, after notice

12 and opportunity for a hearing, a failure to meet a condi13 tion of paragraph (1)(B), a substantial failure to meet a

14 condition of paragraph (1)(C) or (1)(D), or a misrepresen15 tation of material fact in an attestation—

16 ‘‘(I) the Secretary of Labor shall notify the Sec17 retary of State and the Secretary of Homeland Secu18 rity of such finding and may, in addition, impose

19 such other administrative remedies (including civil

20 monetary penalties in an amount not to exceed

21 $1,000 per violation) as the Secretary of Labor de22 termines to be appropriate; and

23 ‘‘(II) the Secretary of State or the Secretary of

24 Homeland Security, as appropriate, shall not ap25 prove petitions or applications filed with respect to
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1 that employer under section 204, 214(c), or

2 101(a)(15)(H)(i)(b1) during a period of at least 1

3 year for aliens to be employed by the employer.

4 ‘‘(ii) If the Secretary of Labor finds, after notice and

5 opportunity for a hearing, a willful failure to meet a condi6 tion of paragraph (1), a willful misrepresentation of mate7 rial fact in an attestation, or a violation of clause (iv)—

8 ‘‘(I) the Secretary of Labor shall notify the Sec9 retary of State and the Secretary of Homeland Secu10 rity of such finding and may, in addition, impose

11 such other administrative remedies (including civil

12 monetary penalties in an amount not to exceed

13 $5,000 per violation) as the Secretary of Labor de14 termines to be appropriate; and

15 ‘‘(II) the Secretary of State or the Secretary of

16 Homeland Security, as appropriate, shall not ap17 prove petitions or applications filed with respect to

18 that employer under section 204, 214(c), or

19 101(a)(15)(H)(i)(b1) during a period of at least 2

20 years for aliens to be employed by the employer.

21 ‘‘(iii) If the Secretary of Labor finds, after notice and

22 opportunity for a hearing, a willful failure to meet a condi23 tion of paragraph (1) or a willful misrepresentation of ma24 terial fact in an attestation, in the course of which failure

25 or misrepresentation the employer displaced a United
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1 States worker employed by the employer within the period

2 beginning 90 days before and ending 90 days after the

3 date of filing of any visa petition or application supported

4 by the attestation—

5 ‘‘(I) the Secretary of Labor shall notify the Sec6 retary of State and the Secretary of Homeland Secu7 rity of such finding and may, in addition, impose

8 such other administrative remedies (including civil

9 monetary penalties in an amount not to exceed

10 $35,000 per violation) as the Secretary of Labor de11 termines to be appropriate; and

12 ‘‘(II) the Secretary of State or the Secretary of

13 Homeland Security, as appropriate, shall not ap14 prove petitions or applications filed with respect to

15 that employer under section 204, 214(c), or

16 101(a)(15)(H)(i)(b1) during a period of at least 3

17 years for aliens to be employed by the employer.

18 ‘‘(iv) It is a violation of this clause for an employer

19 who has filed an attestation under this subsection to in20 timidate, threaten, restrain, coerce, blacklist, discharge, or

21 in any other manner discriminate against an employee

22 (which term, for purposes of this clause, includes a former

23 employee and an applicant for employment) because the

24 employee has disclosed information to the employer, or to

25 any other person, that the employee reasonably believes
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1 evidences a violation of this subsection, or any rule or reg2 ulation pertaining to this subsection, or because the em3 ployee cooperates or seeks to cooperate in an investigation

4 or other proceeding concerning the employer’s compliance

5 with the requirements of this subsection or any rule or

6 regulation pertaining to this subsection.

7 ‘‘(v) The Secretary of Labor and the Secretary of

8 Homeland Security shall devise a process under which a

9 nonimmigrant under section 101(a)(15)(H)(i)(b1) who

10 files a complaint regarding a violation of clause (iv) and

11 is otherwise eligible to remain and work in the United

12 States may be allowed to seek other appropriate employ13 ment in the United States for a period not to exceed the

14 maximum period of stay authorized for such non15 immigrant classification.

16 ‘‘(vi)(I) It is a violation of this clause for an employer

17 who has filed an attestation under this subsection to re18 quire a nonimmigrant under section 101(a)(15)(H)(i)(b1)

19 to pay a penalty for ceasing employment with the employer

20 prior to a date agreed to by the nonimmigrant and the

21 employer. The Secretary of Labor shall determine whether

22 a required payment is a penalty (and not liquidated dam23 ages) pursuant to relevant State law.

24 ‘‘(II) If the Secretary of Labor finds, after notice and

25 opportunity for a hearing, that an employer has committed
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1 a violation of this clause, the Secretary of Labor may im2 pose a civil monetary penalty of $1,000 for each such vio3 lation and issue an administrative order requiring the re4 turn to the nonimmigrant of any amount paid in violation

5 of this clause, or, if the nonimmigrant cannot be located,

6 requiring payment of any such amount to the general fund

7 of the Treasury.

8 ‘‘(vii)(I) It is a failure to meet a condition of para9 graph (1)(A) for an employer who has filed an attestation

10 under this subsection and who places a nonimmigrant

11 under section 101(a)(15)(H)(i)(b1) designated as a full12 time employee in the attestation, after the nonimmigrant

13 has entered into employment with the employer, in non14 productive status due to a decision by the employer (based

15 on factors such as lack of work), or due to the non16 immigrant’s lack of a permit or license, to fail to pay the

17 nonimmigrant full-time wages in accordance with para18 graph (1)(A) for all such nonproductive time.

19 ‘‘(II) It is a failure to meet a condition of paragraph

20 (1)(A) for an employer who has filed an attestation under

21 this subsection and who places a nonimmigrant under sec22 tion 101(a)(15)(H)(i)(b1) designated as a part-time em23 ployee in the attestation, after the nonimmigrant has en24 tered into employment with the employer, in nonproduc25 tive status under circumstances described in subclause (I),
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1 to fail to pay such a nonimmigrant for such hours as are

2 designated on the attestation consistent with the rate of

3 pay identified on the attestation.

4 ‘‘(III) In the case of a nonimmigrant under section

5 101(a)(15)(H)(i)(b1) who has not yet entered into employ6 ment with an employer who has had approved an attesta7 tion under this subsection with respect to the non8 immigrant, the provisions of subclauses (I) and (II) shall

9 apply to the employer beginning 30 days after the date

10 the nonimmigrant first is admitted into the United States,

11 or 60 days after the date the nonimmigrant becomes eligi12 ble to work for the employer in the case of a nonimmigrant

13 who is present in the United States on the date of the

14 approval of the attestation filed with the Secretary of

15 Labor.

16 ‘‘(IV) This clause does not apply to a failure to pay

17 wages to a nonimmigrant under section

18 101(a)(15)(H)(i)(b1) for nonproductive time due to non19 work-related factors, such as the voluntary request of the

20 nonimmigrant for an absence or circumstances rendering

21 the nonimmigrant unable to work.

22 ‘‘(V) This clause shall not be construed as prohibiting

23 an employer that is a school or other educational institu24 tion from applying to a nonimmigrant under section

25 101(a)(15)(H)(i)(b1) an established salary practice of the
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1 employer, under which the employer pays to non2 immigrants under section 101(a)(15)(H)(i)(b1) and

3 United States workers in the same occupational classifica4 tion an annual salary in disbursements over fewer than

5 12 months, if—

6 ‘‘(aa) the nonimmigrant agrees to the com7 pressed annual salary payments prior to the com8 mencement of the employment; and

9 ‘‘(bb) the application of the salary practice to

10 the nonimmigrant does not otherwise cause the non11 immigrant to violate any condition of the non12 immigrant’s authorization under this Act to remain

13 in the United States.

14 ‘‘(VI) This clause shall not be construed as super15 seding clause (viii).

16 ‘‘(viii) It is a failure to meet a condition of paragraph

17 (1)(A) for an employer who has filed an attestation under

18 this subsection to fail to offer to a nonimmigrant under

19 section 101(a)(15)(H)(i)(b1), during the nonimmigrant’s

20 period of authorized employment, benefits and eligibility

21 for benefits (including the opportunity to participate in

22 health, life, disability, and other insurance plans; the op23 portunity to participate in retirement and savings plans;

24 and cash bonuses and non-cash compensation, such as

25 stock options (whether or not based on performance)) on
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1 the same basis, and in accordance with the same criteria,

2 as the employer offers to United States workers.

3 ‘‘(D) If the Secretary of Labor finds, after notice and

4 opportunity for a hearing, that an employer has not paid

5 wages at the wage level specified in the attestation and

6 required under paragraph (1), the Secretary of Labor

7 shall order the employer to provide for payment of such

8 amounts of back pay as may be required to comply with

9 the requirements of paragraph (1), whether or not a pen10 alty under subparagraph (C) has been imposed.

11 ‘‘(E) The Secretary of Labor may, on a case-by-case

12 basis, subject an employer to random investigations for

13 a period of up to 5 years, beginning on the date on which

14 the employer is found by the Secretary of Labor to have

15 committed a willful failure to meet a condition of para16 graph (1) or to have made a willful misrepresentation of

17 material fact in an attestation. The authority of the Sec18 retary of Labor under this subparagraph shall not be con19 strued to be subject to, or limited by, the requirements

20 of subparagraph (A).

21 ‘‘(F) Nothing in this subsection shall be construed

22 as superseding or preempting any other enforcement-re23 lated authority under this Act (such as the authorities

24 under section 274B), or any other Act.

25 ‘‘(4) For purposes of this subsection:
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1 ‘‘(A) The term ‘area of employment’ means the

2 area within normal commuting distance of the work3 site or physical location where the work of the non4 immigrant under section 101(a)(15)(H)(i)(b1) is or

5 will be performed. If such worksite or location is

6 within a Metropolitan Statistical Area, any place

7 within such area is deemed to be within the area of

8 employment.

9 ‘‘(B) In the case of an attestation with respect

10 to one or more nonimmigrants under section

11 101(a)(15)(H)(i)(b1) by an employer, the employer

12 is considered to ‘displace’ a United States worker

13 from a job if the employer lays off the worker from

14 a job that is essentially the equivalent of the job for

15 which the nonimmigrant or nonimmigrants is or are

16 sought. A job shall not be considered to be essen17 tially equivalent of another job unless it involves es18 sentially the same responsibilities, was held by a

19 United States worker with substantially equivalent

20 qualifications and experience, and is located in the

21 same area of employment as the other job.

22 ‘‘(C)(i) The term ‘lays off’, with respect to a

23 worker—

24 ‘‘(I) means to cause the worker’s loss of

25 employment, other than through a discharge for
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1 inadequate performance, violation of workplace

2 rules, cause, voluntary departure, voluntary re3 tirement, or the expiration of a grant or con4 tract; but

5 ‘‘(II) does not include any situation in

6 which the worker is offered, as an alternative to

7 such loss of employment, a similar employment

8 opportunity with the same employer at equiva9 lent or higher compensation and benefits than

10 the position from which the employee was dis11 charged, regardless of whether or not the em12 ployee accepts the offer.

13 ‘‘(ii) Nothing in this subparagraph is intended

14 to limit an employee’s rights under a collective bar15 gaining agreement or other employment contract.

16 ‘‘(D) The term ‘United States worker’ means

17 an employee who—

18 ‘‘(i) is a citizen or national of the United

19 States; or

20 ‘‘(ii) is an alien who is lawfully admitted

21 for permanent residence, is admitted as a ref22 ugee under section 207 of this title, is granted

23 asylum under section 208, or is an immigrant

24 otherwise authorized, by this Act or by the Sec25 retary of Homeland Security, to be employed.’’.
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1 (c) SPECIAL RULE FOR COMPUTATION OF PRE2 VAILING WAGE.—Section 212(p)(1) of the Immigration

3 and Nationality Act (8 U.S.C. 1182(p)(1)) is amended by

4 striking ‘‘(n)(1)(A)(i)(II) and (a)(5)(A)’’ and inserting

5 ‘‘(a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II)’’.

6 (d) FEE.—

7 (1) IN GENERAL.—Section 214(c) of the Immi8 gration and Nationality Act (8 U.S.C. 1184(c)) is

9 amended by adding at the end the following:

10 ‘‘(11)(A) Subject to subparagraph (B), the Secretary

11 of Homeland Security or the Secretary of State, as appro12 priate, shall impose a fee on an employer who has filed

13 an attestation described in section 212(t)—

14 ‘‘(i) in order that an alien may be initially

15 granted nonimmigrant status described in section

16 101(a)(15)(H)(i)(b1); or

17 ‘‘(ii) in order to satisfy the requirement of the

18 second sentence of subsection (g)(8)(C) for an alien

19 having such status to obtain certain extensions of

20 stay.

21 ‘‘(B) The amount of the fee shall be the same as the

22 amount imposed by the Secretary of Homeland Security

23 under paragraph (9), except that if such paragraph does

24 not authorize such Secretary to impose any fee, no fee

25 shall be imposed under this paragraph.
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1 ‘‘(C) Fees collected under this paragraph shall be de2 posited in the Treasury in accordance with section

3 286(s).’’.

4 (2) USE OF FEE.—Section 286(s)(1) of the Im5 migration and Nationality Act (8 U.S.C. 1356(s)(1))

6 is amended by striking ‘‘section 214(c)(9).’’ and in7 serting ‘‘paragraphs (9) and (11) of section

8 214(c).’’.

9 SEC. 403. LABOR DISPUTES.

10 Section 214(j) of the Immigration and Nationality

11 Act (8 U.S.C. 1184(j)) is amended—

12 (1) by striking ‘‘(j)’’ and inserting ‘‘(j)(1)’’;

13 (2) by striking ‘‘this subsection’’ each place

14 such term appears and inserting ‘‘this paragraph’’;

15 and

16 (3) by adding at the end the following:

17 ‘‘(2) Notwithstanding any other provision of this Act

18 except section 212(t)(1), and subject to regulations pro19 mulgated by the Secretary of Homeland Security, an alien

20 who seeks to enter the United States under and pursuant

21 to the provisions of an agreement listed in subsection

22 (g)(8)(A), and the spouse and children of such an alien

23 if accompanying or following to join the alien, may be de24 nied admission as a nonimmigrant under subparagraph

25 (E), (L), or (H)(i)(b1) of section 101(a)(15) if there is
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1 in progress a labor dispute in the occupational classifica2 tion at the place or intended place of employment, unless

3 such alien establishes, pursuant to regulations promul4 gated by the Secretary of Homeland Security after con5 sultation with the Secretary of Labor, that the alien’s

6 entry will not affect adversely the settlement of the labor

7 dispute or the employment of any person who is involved

8 in the labor dispute. Notice of a determination under this

9 paragraph shall be given as may be required by such

10 agreement.’’.

11 SEC. 404. CONFORMING AMENDMENTS.

12 Section 214 of the Immigration and Nationality Act

13 (8 U.S.C. 1184) is amended—

14 (1) in subsection (b), by striking ‘‘(other than

15 a nonimmigrant described in subparagraph (H)(i),

16 (L), or (V) of section 101(a)(15))’’ and inserting

17 ‘‘(other than a nonimmigrant described in subpara18 graph (L) or (V) of section 101(a)(15), and other

19 than a nonimmigrant described in any provision of

20 section 101(a)(15)(H)(i) except subclause (b1) of

21 such section)’’;

22 (2) in subsection (c)(1), by striking ‘‘section

23 101(a)(15)(H), (L), (O), or (P)(i)’’ and inserting

24 ‘‘subparagraph (H), (L), (O), or (P)(i) of section
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1 101(a)(15) (excluding nonimmigrants under section

2 101(a)(15)(H)(i)(b1))’’; and

3 (3) in subsection (h), by striking ‘‘(H)(i)’’ and

4 inserting ‘‘(H)(i)(b) or (c)’’.

Passed the House of Representatives July 24, 2003.

Attest:

Clerk.