II 

112TH CONGRESS 

1ST SESSION S. 1267 

To strengthen United States trade laws, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 23, 2011 

Mr. ROCKEFELLER introduced the following bill; which was read twice and 

referred to the Committee on Finance 

A BILL 

To strengthen United States trade laws, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

5 ‘‘Strengthening America’s Trade Laws Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—DISPUTE SETTLEMENT 

Subtitle A—Findings, Purpose, and Definitions 

Sec. 101. Congressional findings and purpose. 

Sec. 102. Definitions. 


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Subtitle B—Participation in WTO Panel Proceedings 

Sec. 111. Participation in WTO panel proceedings. 

Subtitle C—Congressional Advisory Commission on WTO Dispute Settlement 

Sec. 121. Establishment of Commission. 

Sec. 122. Duties of the Commission. 

Sec. 123. Powers of the Commission. 

Subtitle D—Congressional Approval of Regulatory Action Relating to Adverse 

WTO Decisions 

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

decisions. 

Subtitle E—Clarification of Rights and Obligations Through Negotiations 

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

TITLE II—STRENGTHENING ANTIDUMPING AND 

COUNTERVAILING DUTY LAWS 

Sec. 201. Export price and constructed export price. 

Sec. 202. Nonmarket economy methodology. 

Sec. 203. Determinations on the basis of facts available. 

Sec. 204. Clarification of determination of material injury. 

Sec. 205. Revocation of nonmarket economy country status. 

TITLE III—EXPANSION OF APPLICABILITY OF COUNTERVAILING 

DUTIES 

Sec. 301. Application of countervailing duties to nonmarket economy countries 

and strengthening application of the law. 

Sec. 302. Treatment of exchange-rate manipulation as countervailable subsidy 

under Title VII of the Tariff Act of 1930. 

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

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

TITLE IV—LIMITATION ON PRESIDENTIAL DISCRETION IN 

ADDRESSING MARKET DISRUPTION 

Sec. 401. Standard for presidential action on ITC finding of market disruption. 

TITLE V—STRENGTHENING ENFORCEMENT OF INTELLECTUAL 

PROPERTY RIGHTS AT U.S. BORDERS 

Subtitle A—Coordination of Enforcement of Intellectual Property Rights 

Sec. 501. Definitions. 

Sec. 502. Director of Intellectual Property Rights Enforcement. 

Sec. 503. Strategic plan for the enforcement of intellectual property rights. 

Sec. 504. CBP and ICE coordinators. 

Subtitle B—Regulatory and Policy Improvements Against Counterfeiting and 

Piracy 

Sec. 511. In general. 


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Sec. 512. Identification of certain unlawful goods. 

Sec. 513. Training in new technologies. 

Sec. 514. Disclosure of information and samples of shipments to intellectual 

property owners. 

Sec. 515. Improvements to recordation process. 

Sec. 516. Identification of low-risk shippers. 

Sec. 517. ‘‘Watch List’’ database. 

Sec. 518. Civil fines for importation of pirated or counterfeit goods. 

Subtitle C—Training Enhancements 

Sec. 521. International training and technical assistance enhancements. 

Subtitle D—New Legal Tools for Border Enforcement 

Sec. 531. Expanded prohibitions on importation or exportation of counterfeit or 

pirated goods. 

Sec. 532. Declarations regarding counterfeit and infringing merchandise. 

Subtitle E—Regulatory Authority 

Sec. 541. Regulatory authority. 

TITLE VI—MISCELLANEOUS 

Sec. 601. Application to Canada and Mexico. 

1 TITLE I—DISPUTE SETTLEMENT 

2 Subtitle A—Findings, Purpose, and 

3 Definitions 

4 SEC. 101. CONGRESSIONAL FINDINGS AND PURPOSE. 

5 (a) FINDINGS.—The Congress finds the following: 

6 (1) The United States joined the World Trade 

7 Organization as an original member with the goal of 

8 creating an improved global trading system and pro9 viding expanded economic opportunities for United 

10 States workers, farmers, and businesses. 

11 (2) The dispute settlement rules of the WTO 

12 were created to enhance the likelihood that govern13 ments will observe their WTO obligations. 


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1 (3) Successful operation of the WTO dispute 

2 settlement system was critical to congressional ap3 proval of the Uruguay Round Agreements and is 

4 critical to continued support by the United States 

5 for the WTO. In particular, it is imperative that dis6 pute settlement panels and the Appellate Body— 

7 (A) operate with fairness and in an impar8 tial manner; 

9 (B) strictly observe the terms of reference 

10 and any applicable standard of review set forth 

11 in the Uruguay Round Agreements; and 

12 (C) not add to the obligations, or diminish 

13 the rights, of WTO members under the Uru14 guay Round Agreements in violation of Articles 

15 3.2 and 19.2 of the Dispute Settlement Under16 standing. 

17 (4) An increasing number of reports by dispute 

18 settlement panels and the Appellate Body have 

19 raised serious concerns within the Congress about 

20 the ability of the WTO dispute settlement system to 

21 operate in accordance with paragraph (3). 

22 (5) In particular, several reports of dispute set23 tlement panels and the Appellate Body have added 

24 to the obligations and diminished the rights of WTO 

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1 plementation of Article VI of the General Agreement 

2 on Tariffs and Trade 1994, the Agreement on Sub3 sidies and Countervailing Measures, and the Agree4 ment on Safeguards. 

5 (6) In order to come into compliance with re6 ports of dispute settlement panels and the Appellate 

7 Body that have been adopted by the Dispute Settle8 ment Body, the Congress may need to amend or re9 peal statutes of the United States. In such cases, the 

10 Congress must have a high degree of confidence that 

11 the reports are in accordance with paragraph (3). 

12 (7) The Congress needs impartial, objective, 

13 and juridical advice to determine the appropriate re14 sponse to reports of dispute settlement panels and 

15 the Appellate Body. 

16 (8) The United States remains committed to 

17 the multilateral, rules-based trading system. 

18 (b) PURPOSE.—It is the purpose of this subtitle to 

19 provide for the establishment of the Congressional Advi20 sory Commission on WTO Dispute Settlement to provide 

21 objective and impartial advice to the Congress on the oper22 ation of the dispute settlement system of the World Trade 

23 Organization. 

24 SEC. 102. DEFINITIONS. 

25 In this title: 


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1 (1) ADVERSE FINDING.—The term ‘‘adverse 

2 finding’’ means— 

3 (A) in a proceeding of a dispute settlement 

4 panel or the Appellate Body that is initiated 

5 against the United States, a finding by the 

6 panel or the Appellate Body that any law, regu7 lation, practice, or interpretation of the United 

8 States, or any State, is inconsistent with the 

9 obligations of the United States under a Uru10 guay Round Agreement (or nullifies or impairs 

11 benefits accruing to a WTO member under such 

12 an Agreement); or 

13 (B) in a proceeding of a panel or the Ap14 pellate Body in which the United States is a 

15 complaining party, any finding by the panel or 

16 the Appellate Body that a measure of the party 

17 complained against is not inconsistent with that 

18 party’s obligations under a Uruguay Round 

19 Agreement (or does not nullify or impair bene20 fits accruing to the United States under such 

21 an Agreement). 

22 (2) APPELLATE BODY.—The term ‘‘Appellate 

23 Body’’ means the Appellate Body established by the 

24 Dispute Settlement Body pursuant to Article 17.1 of 

25 the Dispute Settlement Understanding. 


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1 (3) APPROPRIATE CONGRESSIONAL COMMIT2 TEES.—The term ‘‘appropriate congressional com3 mittees’’ means the Committee on Finance of the 

4 Senate and the Committee on Ways and Means of 

5 the House of Representatives. 

6 (4) DISPUTE SETTLEMENT BODY.—The term 

7 ‘‘Dispute Settlement Body’’ means the Dispute Set8 tlement Body established pursuant to the Dispute 

9 Settlement Understanding. 

10 (5) DISPUTE SETTLEMENT PANEL; PANEL.— 

11 The terms ‘‘dispute settlement panel’’ and ‘‘panel’’ 

12 mean a panel established pursuant to Article 6 of 

13 the Dispute Settlement Understanding. 

14 (6) DISPUTE SETTLEMENT UNDERSTANDING.— 

15 The term ‘‘Dispute Settlement Understanding’’ 

16 means the Understanding on Rules and Procedures 

17 Governing the Settlement of Disputes referred to in 

18 section 101(d)(16) of the Uruguay Round Agree19 ments Act (19 U.S.C. 3511(d)(16)). 

20 (7) TERMS OF REFERENCE.—The term ‘‘terms 

21 of reference’’ has the meaning given that term in the 

22 Dispute Settlement Understanding. 

23 (8) TRADE REPRESENTATIVE.—The term 

24 ‘‘Trade Representative’’ means the United States 

25 Trade Representative. 


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1 (9) UNITED STATES PERSON.—The term 

2 ‘‘United States person’’ means— 

3 (A) a United States citizen or an alien ad4 mitted for permanent residence into the United 

5 States; and 

6 (B) a corporation, partnership, labor orga7 nization, or other legal entity organized under 

8 the laws of the United States or of any State, 

9 the District of Columbia, or any commonwealth, 

10 territory, or possession of the United States. 

11 (10) URUGUAY ROUND AGREEMENT.—The term 

12 ‘‘Uruguay Round Agreement’’ means any of the 

13 Agreements described in section 101(d) of the Uru14 guay Round Agreements Act. 

15 (11) WORLD TRADE ORGANIZATION; WTO.—The 

16 terms ‘‘World Trade Organization’’ and ‘‘WTO’’ 

17 mean the organization established pursuant to the 

18 WTO Agreement. 

19 (12) WTO AGREEMENT.—The term ‘‘WTO 

20 Agreement’’ means the Agreement Establishing the 

21 World Trade Organization entered into on April 15, 

22 1994. 

23 (13) WTO MEMBER.—The term ‘‘WTO mem24 ber’’ has the meaning given that term in section 


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1 2(10) of the Uruguay Round Agreements Act (19 

2 U.S.C. 3501(10)). 

3 Subtitle B—Participation in WTO 

4 Panel Proceedings 

5 SEC. 111. PARTICIPATION IN WTO PANEL PROCEEDINGS. 

6 (a) IN GENERAL.—If the Trade Representative, in 

7 proceedings before a dispute settlement panel or the Ap8 pellate Body of the WTO, seeks— 

9 (1) to enforce United States rights under a 

10 multilateral trade agreement, or 

11 (2) to defend an action or determination of the 

12 United States Government that is challenged, 

13 a United States person that is supportive of the United 

14 States Government’s position before the panel or Appellate 

15 Body and that has a direct economic interest in the panel’s 

16 or Appellate Body’s resolution of the matters in dispute 

17 shall be permitted to participate in consultations and 

18 panel or Appellate Body proceedings. The Trade Rep19 resentative shall issue regulations, consistent with sub20 sections (b) and (c), ensuring full and effective participa21 tion by any such person. 

22 (b) ACCESS TO INFORMATION.—The Trade Rep23 resentative shall make available to persons described in 

24 subsection (a) all information presented to or otherwise 

25 obtained by the Trade Representative in connection with 


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1 the WTO dispute settlement proceeding in which such per2 sons are participating. The Trade Representative shall 

3 promulgate regulations to protect information designated 

4 as confidential in the proceeding. 

5 (c) PARTICIPATION IN PANEL PROCESS.—Upon re6 quest from a person described in subsection (a), the Trade 

7 Representative shall— 

8 (1) consult in advance with such person regard9 ing the content of written submissions from the 

10 United States to the panel or Appellate Body con11 cerned or to the other member countries involved; 

12 (2) include, if appropriate, such person or the 

13 person’s appropriate representative as an advisory 

14 member of the delegation in sessions of the dispute 

15 settlement panel or Appellate Body; 

16 (3) allow such person, if such person would 

17 bring special knowledge to the proceeding, to appear 

18 before the panel or Appellate Body, directly or 

19 through counsel, under the supervision of responsible 

20 United States Government officials; and 

21 (4) in proceedings involving confidential infor22 mation, allow the appearance of such person only 

23 through counsel as a member of the special delega24 tion. 


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1 Subtitle C—Congressional Advisory 

2 Commission on WTO Dispute 

3 Settlement 

4 SEC. 121. ESTABLISHMENT OF COMMISSION. 

5 (a) ESTABLISHMENT.—There is established a com6 mission to be known as the Congressional Advisory Com7 mission on WTO Dispute Settlement (in this subtitle re8 ferred to as the ‘‘Commission’’). 

9 (b) MEMBERSHIP.— 

10 (1) COMPOSITION.—The Commission shall be 

11 composed of 5 members, all of whom shall be judges 

12 or former judges of the Federal judicial circuits and 

13 shall be appointed by the Speaker of the House of 

14 Representatives and the President pro tempore of 

15 the Senate after considering the recommendations of 

16 the Chairman and ranking member of each of the 

17 appropriate congressional committees. Commis18 sioners shall be chosen without regard to political af19 filiation and solely on the basis of each Commis20 sioner’s fitness to perform the duties of a Commis21 sioner. 

22 (2) DATE.—The appointments of the initial 

23 members of the Commission shall be made not later 

24 than 90 days after the date of the enactment of this 

25 Act. 


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1 (c) PERIOD OF APPOINTMENT; VACANCIES.— 

2 (1) IN GENERAL.—Members of the Commission 

3 shall each be appointed for a term of 5 years, except 

4 that of the members first appointed, 3 members 

5 shall each be appointed for a term of 3 years. 

6 (2) VACANCIES.— 

7 (A) IN GENERAL.—Any vacancy on the 

8 Commission shall not affect its powers, but 

9 shall be filled in the same manner in which the 

10 original appointment was made and shall be 

11 subject to the same conditions as the original 

12 appointment. 

13 (B) UNEXPIRED TERM.—An individual 

14 chosen to fill a vacancy shall be appointed for 

15 the unexpired term of the member replaced. 

16 (d) INITIAL MEETING.—Not later than 30 days after 

17 the date on which all members of the Commission have 

18 been appointed, the Commission shall hold its first meet19 ing. 

20 (e) MEETINGS.—Except for the initial meeting, the 

21 Commission shall meet at the call of the Chairperson. 

22 (f) QUORUM.—A majority of the members of the 

23 Commission shall constitute a quorum, but a lesser num24 ber of members may hold hearings. 


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1 (g) CHAIRPERSON AND VICE CHAIRPERSON.—The 

2 Commission shall select a Chairperson and Vice Chair3 person from among its members. 

4 (h) FUNDING.—Members of the Commission shall be 

5 allowed travel expenses, including per diem in lieu of sub6 sistence at rates authorized for employees of agencies 

7 under subchapter I of chapter 57 of title 5, United States 

8 Code, while away from their homes or regular places of 

9 business in the performance of services for the Commis10 sion. 

11 SEC. 122. DUTIES OF THE COMMISSION. 

12 (a) ADVISING THE CONGRESS ON THE OPERATION

13 OF THE WTO DISPUTE SETTLEMENT SYSTEM.— 

14 (1) IN GENERAL.—The Commission shall re15 view— 

16 (A) all adverse findings that are— 

17 (i) adopted by the Dispute Settlement 

18 Body; and 

19 (ii) the result of a proceeding initiated 

20 against the United States by a WTO mem21 ber; and 

22 (B) upon the request of either of the ap23 propriate congressional committees— 

24 (i) any adverse finding of a dispute 

25 settlement panel or the Appellate Body— 


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1 (I) that is adopted by the Dis2 pute Settlement Body; and 

3 (II) in which the United States is 

4 a complaining party; or 

5 (ii) any other finding that is contained 

6 in a report of a dispute settlement panel or 

7 the Appellate Body that is adopted by the 

8 Dispute Settlement Body. 

9 (2) SCOPE OF REVIEW.—The Commission shall 

10 advise the Congress in connection with each adverse 

11 finding under paragraph (1)(A) or (1)(B)(i) or other 

12 finding under paragraph (1)(B)(ii) on— 

13 (A) whether the dispute settlement panel 

14 or the Appellate Body, as the case may be— 

15 (i) exceeded its authority or its terms 

16 of reference; 

17 (ii) added to the obligations, or dimin18 ished the rights, of the United States 

19 under the Uruguay Round Agreement that 

20 is the subject of the finding; 

21 (iii) acted arbitrarily or capriciously, 

22 engaged in misconduct, or demonstrably 

23 departed from the procedures specified for 

24 panels and the Appellate Body in the ap25 plicable Uruguay Round Agreement; or 


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1 (iv) deviated from the applicable 

2 standard of review, including in anti3 dumping, countervailing duty, and other 

4 trade remedy cases, the standard of review 

5 set forth in Article 17.6 of the Agreement 

6 on Implementation of Article VI of the 

7 General Agreement on Tariffs and Trade 

8 1994; and 

9 (B) whether the finding is consistent with 

10 the original understanding by the United States 

11 of the Uruguay Round Agreement that is the 

12 subject of the finding as explained in the state13 ment of administrative action approved under 

14 section 101(a) of the Uruguay Round Agree15 ments Act (19 U.S.C. 3511(a)). 

16 (3) NO DEFERENCE.—In advising the Congress 

17 under paragraph (2), the Commission shall not ac18 cord deference to findings of law made by the dis19 pute settlement panel or the Appellate Body, as the 

20 case may be. 

21 (b) DETERMINATION; REPORT.— 

22 (1) DETERMINATION.— 

23 (A) IN GENERAL.—Not later than 150 

24 days after the date on which the Commission 

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1 tion 123(b), the Commission shall make a writ2 ten determination with respect to the matters 

3 described in paragraph (2) of subsection (a), in4 cluding a full analysis of the basis for its deter5 mination. A vote by a majority of the members 

6 of the Commission shall constitute a determina7 tion of the Commission, although the members 

8 need not agree on the basis for their vote. 

9 (B) DISSENTING OR CONCURRING OPIN10 IONS.—Any member of the Commission who 

11 disagrees with a determination of the Commis12 sion or who concurs in such a determination on 

13 a basis different from that of the Commission 

14 or other members of the Commission, may write 

15 an opinion expressing such disagreement or 

16 concurrence, as the case may be. 

17 (2) REPORT.—The Commission shall promptly 

18 report the determinations described in paragraph 

19 (1)(A) to the appropriate congressional committees. 

20 The Commission shall include with the report any 

21 opinions written under paragraph (1)(B) with re22 spect to the determination. 

23 (c) AVAILABILITY TO THE PUBLIC.—Each report of 

24 the Commission under subsection (b)(2), together with the 


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1 opinions included with the report, shall be made available 

2 to the public. 

3 SEC. 123. POWERS OF THE COMMISSION. 

4 (a) HEARINGS.—The Commission may hold a public 

5 hearing to solicit views concerning an adverse finding or 

6 other finding described in section 122(a)(1), if the Com7 mission considers such hearing to be necessary to carry 

8 out the purpose of this subtitle. The Commission shall pro9 vide reasonable notice of a hearing held pursuant to this 

10 subsection. 

11 (b) INFORMATION FROM INTERESTED PARTIES AND

12 FEDERAL AGENCIES.— 

13 (1) NOTICE TO COMMISSION.— 

14 (A) UNDER SECTION 122(a)(1)(A).—The 

15 Trade Representative shall advise the Commis16 sion not later than 5 business days after the 

17 date the Dispute Settlement Body adopts an 

18 adverse finding that is to be reviewed by the 

19 Commission under section 122(a)(1)(A). 

20 (B) UNDER SECTION 122(a)(1)(B).—Ei21 ther of the appropriate congressional commit22 tees may make and notify the Commission of a 

23 request under section 122(a)(1)(B) not later 

24 than 1 year after the Dispute Settlement Body 


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1 adopts the adverse finding or other finding that 

2 is the subject of the request. 

3 (C) FINDINGS ADOPTED PRIOR TO AP4 POINTMENT OF COMMISSION.—With respect to 

5 any adverse finding or other finding to which 

6 section 122(a)(1)(B) applies and that is adopt7 ed before the date on which the first members 

8 of the Commission are appointed under section 

9 121(b)(2), either of the appropriate congres10 sional committees may make and notify the 

11 Commission of a request under section 

12 122(a)(1)(B) with respect to the adverse find13 ing or other finding not later than 1 year after 

14 the date on which the first members of the 

15 Commission are appointed under section 

16 121(b)(2). 

17 (2) SUBMISSIONS AND REQUESTS FOR INFOR18 MATION.— 

19 (A) IN GENERAL.—The Commission shall 

20 promptly publish in the Federal Register notice 

21 of— 

22 (i) the notice received under para23 graph (1) from the Trade Representative 

24 or either of the appropriate congressional 

25 committees; and 


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1 (ii) an opportunity for interested par2 ties to submit written comments to the 

3 Commission. 

4 (B) COMMENTS AVAILABLE TO PUBLIC.— 

5 The Commission shall make comments sub6 mitted pursuant to subparagraph (A)(ii) avail7 able to the public. 

8 (C) INFORMATION FROM FEDERAL AGEN9 CIES AND DEPARTMENTS.—The Commission 

10 may secure directly from any Federal depart11 ment or agency such information as the Com12 mission considers necessary to carry out the 

13 provisions of this subtitle. Upon the request of 

14 the chairperson of the Commission, the head of 

15 such department or agency shall furnish the in16 formation requested to the Commission in a 

17 timely manner. 

18 (3) ACCESS TO PANEL AND APPELLATE BODY

19 DOCUMENTS.— 

20 (A) IN GENERAL.—The Trade Representa21 tive shall make available to the Commission all 

22 submissions and relevant documents relating to 

23 an adverse finding described in section 

24 122(a)(1), including any information contained 

25 in such submissions and relevant documents 


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1 identified by the provider of the information as 

2 proprietary information or information des3 ignated as confidential by a foreign government. 

4 (B) PUBLIC ACCESS.—Any document that 

5 the Trade Representative submits to the Com6 mission shall be available to the public, except 

7 information that is identified as proprietary or 

8 confidential or the disclosure of which would 

9 otherwise violate the rules of the WTO. 

10 (c) ASSISTANCE FROM FEDERAL AGENCIES; CON11 FIDENTIALITY.— 

12 (1) ADMINISTRATIVE ASSISTANCE.—Any agency 

13 or department of the United States that is des14 ignated by the President shall provide administrative 

15 services, funds, facilities, staff, or other support 

16 services to the Commission to assist the Commission 

17 with the performance of the Commission’s functions. 

18 (2) CONFIDENTIALITY.— 

19 (A) DOCUMENTS AND INFORMATION FROM

20 AGENCIES.—The Commission shall protect from 

21 disclosure any document or information sub22 mitted to it by a department or agency of the 

23 United States that the agency or department 

24 requests be kept confidential. 


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1 (B) DISCLOSURE OF DOCUMENTS AND IN2 FORMATION OF COMMISSION.—The Commission 

3 shall not be considered to be an agency for pur4 poses of section 552 of title 5, United States 

5 Code. 

6 Subtitle D—Congressional Ap7 proval of Regulatory Action Re8 lating to Adverse WTO Deci9 sions 

10 SEC. 131. CONGRESSIONAL APPROVAL OF REGULATORY 

11 ACTIONS RELATING TO ADVERSE WTO DECI12 SIONS. 

13 (a) IN GENERAL.—Section 123(g) of the Uruguay 

14 Round Agreements Act (19 U.S.C. 3533(g)) is amended— 

15 (1) in paragraph (1)— 

16 (A) in subparagraph (E), by striking 

17 ‘‘and’’; 

18 (B) by redesignating subparagraph (F) as 

19 subparagraph (H); and 

20 (C) by inserting after subparagraph (E) 

21 the following new subparagraphs: 

22 ‘‘(F) the appropriate congressional com23 mittees have received the report on the deter24 minations of the Congressional Advisory Com25 mission on WTO Dispute Settlement under secVerDate Mar 15 2010 02:29 Jun 29, 2011 Jkt 099200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S1267.IS S1267

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1 tion 122(b)(2) of the Strengthening America’s 

2 Trade Laws Act with respect to the relevant 

3 dispute settlement panel or Appellate Body de4 cision; 

5 ‘‘(G) a joint resolution, described in para6 graph (2), approving the proposed modification 

7 or final rule is enacted into law after the appro8 priate congressional committees receive the re9 port on the determinations of the Congressional 

10 Advisory Commission on WTO Dispute Settle11 ment under section 122(b)(2) of the Strength12 ening America’s Trade Laws Act; and’’; and 

13 (2) by amending paragraph (2) to read as fol14 lows: 

15 ‘‘(2) JOINT RESOLUTION TO APPROVE MODI16 FICATION IN AGENCY REGULATION OR PRACTICE.— 

17 ‘‘(A) IN GENERAL.—For the purposes of 

18 paragraph (1)(G), a joint resolution is a joint 

19 resolution of the 2 Houses of the Congress, the 

20 matter after the resolving clause of which is as 

21 follows: ‘That the Congress approves the modi22 fications to the regulation or practice of the 

23 United States proposed in a report submitted to 

24 the Congress under subparagraph (D) or (F) of 

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1 ments Act (19 U.S.C. 3533(g)(1) (D) and (F)) 

2 on lllllll, relating to 

3 llllll.’, with the first blank space 

4 being filled with the date on which the report 

5 is submitted to the Congress and the second 

6 blank space being filled with the specific modi7 fication proposed to the regulation or practice 

8 of the United States. 

9 ‘‘(B) PROCEDURAL PROVISIONS.—The pro10 cedural provisions of subsections (d) through (i) 

11 of section 206 of the Strengthening America’s 

12 Trade Laws Act shall apply to a joint resolution 

13 described in subparagraph (A).’’. 

14 (b) EFFECTIVE DATE.— 

15 (1) IN GENERAL.—The amendments made by 

16 this section shall take effect on the date of the en17 actment of this Act. 

18 (2) MODIFICATIONS MADE BETWEEN JANUARY

19 1, 2007, AND THE DATE OF THE ENACTMENT OF

20 THIS ACT.— 

21 (A) IN GENERAL.—Modifications to any 

22 regulation or practice of a department or agen23 cy of the United States made pursuant to the 

24 provisions of section 123(g) of the Uruguay 

25 Round Agreements Act (19 U.S.C. 3533(g)) 


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1 that became effective on or after January 1, 

2 2007, and before the date of the enactment of 

3 this Act, shall be suspended upon the enact4 ment of this Act and have no effect. 

5 (B) APPROVAL OF MODIFICATIONS.—On or 

6 after the date of the enactment of this Act, the 

7 Trade Representative and the head of the de8 partment or agency within whose jurisdiction 

9 the modification described in subparagraph (A) 

10 falls may seek approval of such modification 

11 pursuant to the procedures set out in section 

12 123(g)(1) of the Uruguay Round Agreements 

13 Act (19 U.S.C. 3533(g)(1)), as amended by 

14 subsection (a). 

15 Subtitle E—Clarification of Rights 

16 and Obligations Through Nego17 tiations 

18 SEC. 141. CLARIFICATION OF RIGHTS AND OBLIGATIONS IN 

19 THE WTO THROUGH NEGOTIATIONS. 

20 (a) IN GENERAL.—After an adverse finding, the 

21 United States shall work within the World Trade Organi22 zation to obtain clarification of the Uruguay Round Agree23 ment to which the adverse finding applies to conform the 

24 Agreement to the understanding of the United States re25 garding the rights and obligations of the United States 


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1 and shall not modify the law, regulation, practice, or inter2 pretation of the United States in response to the adverse 

3 finding if— 

4 (1) the United States has stated at the Dispute 

5 Settlement Body that the adverse finding has cre6 ated obligations never agreed to by the United 

7 States; 

8 (2) either of the appropriate congressional com9 mittees by resolution finds that the adverse finding 

10 has created obligations never agreed to by the 

11 United States; or 

12 (3) the Congressional Advisory Commission on 

13 WTO Dispute Resolution makes a determination 

14 under section 122(a)(2)(A)(ii) that the adverse find15 ing has created obligations never agreed to by the 

16 United States. 

17 (b) APPLICABILITY.— 

18 (1) IN GENERAL.—This section shall apply to 

19 any adverse finding on or after January 1, 2002. 

20 (2) EFFECT ON MODIFICATION OF REGULA21 TION, PRACTICE, OR INTERPRETATION ADOPTED BE22 FORE ENACTMENT OF THIS ACT.— 

23 (A) IN GENERAL.—Any agency that modi24 fied a regulation, practice, or interpretation in 

25 response to an adverse finding between January 


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1 1, 2002, and the date of the enactment of this 

2 Act shall provide notice that the modification 

3 shall cease to have force and effect on the date 

4 that is 30 days after the date of the enactment 

5 of this Act and such modification shall cease to 

6 have force and effect on such date. 

7 (B) APPLICABILITY IN TRADE REMEDY

8 CASES.—The cessation of the force and effect of 

9 the modification described in subparagraph (A) 

10 shall apply with respect to— 

11 (i) investigations initiated— 

12 (I) on the basis of petitions filed 

13 under section 702(b), 732(b), or 

14 783(a) of the Tariff Act of 1930 (19 

15 U.S.C. 1671a(b), 1673a(b), and 

16 1677n(a)) or section 202(a), 221, 

17 251(a), or 292(a) of the Trade Act of 

18 1974 (19 U.S.C. 2252(a), 2271, 

19 2341(a), and 2401a(a)) after the date 

20 on which the modification ceases to 

21 have force and effect under subpara22 graph (A); 

23 (II) by the administering author24 ity under section 702(a) or 732(a) of 

25 the Tariff Act of 1930 (19 U.S.C. 


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1 1671a(a) and 1673a(a)) after such 

2 date; or 

3 (III) under section 753 of the 

4 Tariff Act of 1930 (19 U.S.C. 1675b) 

5 after such date; 

6 (ii) reviews initiated under section 751 

7 of the Tariff Act of 1930 (19 U.S.C. 

8 1675)— 

9 (I) by the administering author10 ity or the International Trade Com11 mission on their own initiative after 

12 such date; or 

13 (II) pursuant to a request filed 

14 after such date; and 

15 (iii) all proceedings conducted under 

16 section 129 of the Uruguay Round Agree17 ments Act (19 U.S.C. 3538) commenced 

18 after such date. 

19 (3) EFFECT ON PRIOR STATUTORY CHANGES.— 

20 (A) IN GENERAL.—Paragraph (2)(A) shall 

21 not apply to modifications to statutes of the 

22 United States made in response to adverse find23 ings. 

24 (B) CLARIFICATION OF UNITED STATES

25 RIGHTS.—If a statute of the United States has 


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1 been modified in response to an adverse finding, 

2 the United States shall obtain clarification of 

3 the rights and obligations of the United States 

4 affected by the adverse finding pursuant to sub5 section (a). 

6 TITLE II—STRENGTHENING 

7 ANTIDUMPING AND COUN8 TERVAILING DUTY LAWS 

9 SEC. 201. EXPORT PRICE AND CONSTRUCTED EXPORT 

10 PRICE. 

11 Section 772(c)(2)(A) of the Tariff Act of 1930 (19 

12 U.S.C. 1677a(c)(2)(A)) is amended by inserting ‘‘(includ13 ing antidumping and countervailing duties imposed under 

14 this title)’’ after ‘‘duties’’. 

15 SEC. 202. NONMARKET ECONOMY METHODOLOGY. 

16 Section 773(c)(4) of the Tariff Act of 1930 (19 

17 U.S.C. 1677b(c)(4)) is amended to read as follows: 

18 ‘‘(4) VALUATION OF FACTORS OF PRODUC19 TION.— 

20 ‘‘(A) IN GENERAL.—The administering au21 thority, in valuing factors of production under 

22 paragraph (1), shall utilize, to the extent pos23 sible, the prices or costs of factors of production 

24 in one or more market economy countries that 

25 are— 


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1 ‘‘(i) at a level of economic develop2 ment comparable to that of the nonmarket 

3 economy country; and 

4 ‘‘(ii) significant producers of com5 parable merchandise. 

6 In this paragraph, the term ‘surrogate’ refers to 

7 the values, calculations, and market economy 

8 countries used under this subparagraph. 

9 ‘‘(B) VALUING MATERIALS USED IN PRO10 DUCTION.—In determining the value of mate11 rials used in production under subparagraph 

12 (A), the following applies: 

13 ‘‘(i) The administering authority may 

14 use the value of inputs that are purchased 

15 from market economy suppliers and are 

16 not suspected of being dumped or sub17 sidized, only for the quantity of such pur18 chases. 

19 ‘‘(ii) All materials purchased or other20 wise obtained from nonmarket economy 

21 countries shall be valued using surrogate 

22 values under subparagraph (A). 

23 ‘‘(iii) A purchased material shall be 

24 viewed as suspected of being subsidized if 

25 there are any affirmative findings by the 


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1 United States or another WTO member of 

2 export subsidy programs in the supplying 

3 country. 

4 ‘‘(iv) A purchased material shall be 

5 viewed as suspected of being dumped if 

6 there are any affirmative findings by the 

7 United States or other WTO member of 

8 dumping in the general category of mer9 chandise, or if information supplied by the 

10 petitioner or otherwise of record suggests 

11 significant underpricing to the purchaser 

12 in the nonmarket economy country. 

13 ‘‘(v) Surrogate values for materials 

14 from a market economy country shall be 

15 disregarded as not reflective of prices in 

16 that surrogate market only if prices in that 

17 market are viewed as aberrational, such as 

18 a case in which prices undersell or exceed 

19 any reported price in that surrogate mar20 ket by a large amount. 

21 ‘‘(vi) There shall be a presumption 

22 that the administering authority will in23 clude all market prices from a surrogate 

24 market. Prices that are high or low shall 

25 be excluded only when it is demonstrated 


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1 that the prices are not reflective of prices 

2 in the surrogate country for the relevant 

3 category of merchandise. 

4 ‘‘(vii) If amounts pertaining to the 

5 cost of production of imports into a surro6 gate country from market economy sup7 pliers are used for valuing the materials 

8 used, such amounts shall be valued on the 

9 basis of CIF (cost, insurance, and freight), 

10 plus duties paid, to provide a proxy for 

11 prices in the surrogate country competing 

12 with locally produced goods. Such values 

13 shall not be reduced by the import duties. 

14 ‘‘(C) VALUING LABOR.— 

15 ‘‘(i) The administering authority may 

16 use an average of wage rates for market 

17 economies, but shall ensure that labor 

18 rates used fully reflect all labor costs, in19 cluding benefits, health care, and pension 

20 costs. 

21 ‘‘(ii) Labor shall be the total labor 

22 employed by a nonmarket economy country 

23 producer or used by a nonmarket economy 

24 country producer in the overall business, 

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1 duced or sold by that producer that is not 

2 subject merchandise. 

3 ‘‘(iii) Labor shall reflect the average 

4 labor for all other producers in the non5 market economy country that are pro6 ducing the particular merchandise subject 

7 to investigation or review, and shall not be 

8 limited to operations used for export. 

9 ‘‘(D) VALUING FACTORY OVERHEAD, SELL10 ING, GENERAL, AND ADMINISTRATIVE EX11 PENSES, AND PROFIT.— 

12 ‘‘(i) IN GENERAL.—The administering 

13 authority shall use the best information 

14 available with respect to likely values of 

15 factory overhead, selling, general, and ad16 ministrative expenses, and profit from a 

17 surrogate country. If the values determined 

18 under subparagraphs (B) and (C) for ma19 terials used and labor consumed result in 

20 amounts that are demonstrably larger or 

21 smaller than the amounts used in deter22 mining surrogate ratios from financial or 

23 other reports from a surrogate country, ad24 justments shall be made to the ratios to re25 flect fully the level of such costs and profVerDate Mar 15 2010 02:29 Jun 29, 2011 Jkt 099200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S1267.IS S1267

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1 its in the surrogate country on a per item 

2 produced basis. 

3 ‘‘(ii) RATIOS DEFINED.—For purposes 

4 of this subparagraph, the term ‘ratios’ 

5 means— 

6 ‘‘(I) the ratio of factory overhead 

7 to labor, materials, and energy; 

8 ‘‘(II) the ratio of selling, general, 

9 and administrative costs to factory 

10 overhead, labor, materials, and en11 ergy; and 

12 ‘‘(III) the ratio of profit to sell13 ing, general, and administrative costs, 

14 factory overhead, labor, materials, and 

15 energy. 

16 ‘‘(E) USE OF CONFIDENTIAL INFORMA17 TION FROM A FOREIGN PRODUCER IN A SURRO18 GATE COUNTRY.—The administering authority 

19 shall generally use publicly available informa20 tion to value factors of production, except that, 

21 in a case in which any foreign producer in the 

22 surrogate country that is willing to provide in23 formation to the administering authority on fac24 tors of production to produce the same class of 

25 merchandise and such information is subject to 


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1 verification, the administering authority shall 

2 accept and use such information. The relation3 ship of the foreign producer providing the infor4 mation to a party to the proceeding shall not be 

5 a basis for disqualification.’’. 

6 SEC. 203. DETERMINATIONS ON THE BASIS OF FACTS 

7 AVAILABLE. 

8 Section 776(a)(2)(B) of the Tariff Act of 1930 (19 

9 U.S.C. 1677e(a)(2)(B)) is amended to read as follows: 

10 ‘‘(B) fails to provide such information by 

11 the deadline for submission of the information 

12 or in the form and manner required, and in 

13 conformity with prior administering authority 

14 determinations in the proceeding and final judi15 cial decisions in the proceeding, subject to sub16 sections (c)(1) and (e) of section 782,’’. 

17 SEC. 204. CLARIFICATION OF DETERMINATION OF MATE18 RIAL INJURY. 

19 (a) IN GENERAL.—Section 771(7) of the Tariff Act 

20 of 1930 (19 U.S.C. 1677(7)) is amended by adding at the 

21 end the following new subparagraph: 

22 ‘‘(J) CLARIFICATION OF DETERMINATION

23 OF MATERIAL INJURY.—In determining if there 

24 is material injury, or threat of material injury, 

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1 dise, the Commission shall make the Commis2 sion’s determination without regard to— 

3 ‘‘(i) whether other imports would have 

4 replaced or are likely to replace imports of 

5 the subject merchandise if an order were 

6 issued or a suspension agreement were ac7 cepted under this title, or 

8 ‘‘(ii) the effect of a potential order or 

9 suspension agreement on the domestic in10 dustry, except for a finding required by 

11 section 771(7)(F)(ii).’’. 

12 (b) LIKELIHOOD OF CONTINUATION OR RECUR13 RENCE OF MATERIAL INQUIRY.—Section 752(a)(4) of the 

14 Tariff Act of 1930 (19 U.S.C. 1675a(a)(4)) is amended 

15 by adding at the end the following: ‘‘In reaching a decision 

16 as to whether revocation of an order or termination of a 

17 suspended investigation is likely to lead to a continuation 

18 or recurrence of material injury, the Commission shall 

19 make its determination without regard to whether other 

20 imports are likely to replace imports of the subject mer21 chandise if an order is revoked or a suspension agreement 

22 terminated under this title.’’. 


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1 SEC. 205. REVOCATION OF NONMARKET ECONOMY COUN2 TRY STATUS. 

3 (a) AMENDMENT OF DEFINITION OF ‘‘NONMARKET

4 ECONOMY COUNTRY’’.—Section 771(18)(C)(i) of the Tar5 iff Act of 1930 (19 U.S.C. 1677(18)(C)(i)) is amended 

6 to read as follows: 

7 ‘‘(i) Any determination that a foreign 

8 country is a nonmarket economy country 

9 shall remain in effect until— 

10 ‘‘(I) the administering authority 

11 makes a final determination to revoke 

12 the determination under subparagraph 

13 (A); and 

14 ‘‘(II) a joint resolution is enacted 

15 into law pursuant to section 206 of 

16 the Strengthening America’s Trade 

17 Laws Act.’’. 

18 (b) NOTIFICATION BY PRESIDENT; JOINT RESOLU19 TION.—Whenever the administering authority makes a 

20 final determination under section 771(18)(C)(i)(I) of the 

21 Tariff Act of 1930 (19 U.S.C. 1677(18)(C)(i)(I)) to re22 voke the determination that a foreign country is a non23 market economy country— 

24 (1) the President shall notify the Committee on 

25 Finance of the Senate and the Committee on Ways 

26 and Means of the House of Representatives of that 


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1 determination not later than 10 days after the publi2 cation of the administering authority’s final deter3 mination in the Federal Register; 

4 (2) the President shall transmit to the Congress 

5 a request that a joint resolution be introduced pur6 suant to this section; and 

7 (3) a joint resolution shall be introduced in the 

8 Congress pursuant to this section. 

9 (c) DEFINITION.—For purposes of this section, the 

10 term ‘‘joint resolution’’ means only a joint resolution of 

11 the 2 Houses of the Congress, the matter after the resolv12 ing clause of which is as follows: ‘‘That the Congress ap13 proves the change of nonmarket economy status with re14 spect to the products of lllll transmitted by the 

15 President to the Congress on lllll.’’, the first 

16 blank space being filled in with the name of the country 

17 with respect to which a determination has been made 

18 under section 771(18)(C)(i) of the Tariff Act of 1930 (19 

19 U.S.C. 1677(18)(C)(i)), and the second blank space being 

20 filled with the date on which the President notified the 

21 Committee on Finance of the Senate and the Committee 

22 on Ways and Means of the House of Representatives 

23 under subsection (b)(1). 

24 (d) INTRODUCTION.—A joint resolution shall be in25 troduced (by request) in the House by the majority leader 


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1 of the House, for himself, or by Members of the House 

2 designated by the majority leader of the House, and shall 

3 be introduced (by request) in the Senate by the majority 

4 leader of the Senate, for himself, or by Members of the 

5 Senate designated by the majority leader of the Senate. 

6 (e) AMENDMENTS PROHIBITED.—No amendment to 

7 a joint resolution shall be in order in either the House 

8 of Representatives or the Senate, and no motion to sus9 pend the application of this subsection shall be in order 

10 in either House, nor shall it be in order in either House 

11 for the presiding officer to entertain a request to suspend 

12 the application of this subsection by unanimous consent. 

13 (f) PERIOD FOR COMMITTEE AND FLOOR CONSIDER14 ATION.— 

15 (1) IN GENERAL.—If the committee or commit16 tees of either House to which a joint resolution has 

17 been referred have not reported the joint resolution 

18 at the close of the 45th day after its introduction, 

19 such committee or committees shall be automatically 

20 discharged from further consideration of the joint 

21 resolution and it shall be placed on the appropriate 

22 calendar. A vote on final passage of the joint resolu23 tion shall be taken in each House on or before the 

24 close of the 15th day after the joint resolution is re25 ported by the committee or committees of that 


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1 House to which it was referred, or after such com2 mittee or committees have been discharged from fur3 ther consideration of the joint resolution. If, prior to 

4 the passage by one House of a joint resolution of 

5 that House, that House receives the same joint reso6 lution from the other House, then— 

7 (A) the procedure in that House shall be 

8 the same as if no joint resolution had been re9 ceived from the other House, but 

10 (B) the vote on final passage shall be on 

11 the joint resolution of the other House. 

12 (2) COMPUTATION OF DAYS.—For purposes of 

13 paragraph (1), in computing a number of days in ei14 ther House, there shall be excluded any day on 

15 which that House is not in session. 

16 (g) FLOOR CONSIDERATION IN THE HOUSE.— 

17 (1) MOTION PRIVILEGED.—A motion in the 

18 House of Representatives to proceed to the consider19 ation of a joint resolution shall be highly privileged 

20 and not debatable. An amendment to the motion 

21 shall not be in order, nor shall it be in order to move 

22 to reconsider the vote by which the motion is agreed 

23 to or disagreed to. 

24 (2) DEBATE LIMITED.—Debate in the House of 

25 Representatives on a joint resolution shall be limited 


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1 to not more than 20 hours, which shall be divided 

2 equally between those favoring and those opposing 

3 the joint resolution. A motion further to limit debate 

4 shall not be debatable. It shall not be in order to 

5 move to recommit a joint resolution or to move to 

6 reconsider the vote by which a joint resolution is 

7 agreed to or disagreed to. 

8 (3) MOTIONS TO POSTPONE.—Motions to post9 pone, made in the House of Representatives with re10 spect to the consideration of a joint resolution, and 

11 motions to proceed to the consideration of other 

12 business, shall be decided without debate. 

13 (4) APPEALS.—All appeals from the decisions 

14 of the Chair relating to the application of the Rules 

15 of the House of Representatives to the procedure re16 lating to a joint resolution shall be decided without 

17 debate. 

18 (5) OTHER RULES.—Except to the extent spe19 cifically provided in the preceding provisions of this 

20 subsection, consideration of a joint resolution shall 

21 be governed by the Rules of the House of Represent22 atives applicable to other bills and resolutions in 

23 similar circumstances. 

24 (h) FLOOR CONSIDERATION IN THE SENATE.— 


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1 (1) MOTION PRIVILEGED.—A motion in the 

2 Senate to proceed to the consideration of a joint res3 olution shall be privileged and not debatable. An 

4 amendment to the motion shall not be in order, nor 

5 shall it be in order to move to reconsider the vote 

6 by which the motion is agreed to or disagreed to. 

7 (2) DEBATE LIMITED.—Debate in the Senate 

8 on a joint resolution, and all debatable motions and 

9 appeals in connection therewith, shall be limited to 

10 not more than 20 hours. The time shall be equally 

11 divided between, and controlled by, the majority 

12 leader and the minority leader or their designees. 

13 (3) CONTROL OF DEBATE.—Debate in the Sen14 ate on any debatable motion or appeal in connection 

15 with a joint resolution shall be limited to not more 

16 than 1 hour, to be equally divided between, and con17 trolled by, the mover and the manager of the joint 

18 resolution, except that in the event the manager of 

19 the joint resolution is in favor of any such motion 

20 or appeal, the time in opposition thereto shall be 

21 controlled by the minority leader or his designee. 

22 Such leaders, or either of them, may, from time 

23 under their control on the passage of a joint resolu24 tion, allot additional time to any Senator during the 

25 consideration of any debatable motion or appeal. 


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1 (4) OTHER MOTIONS.—A motion in the Senate 

2 to further limit debate is not debatable. A motion to 

3 recommit a joint resolution is not in order. 

4 (i) RULES OF HOUSE OF REPRESENTATIVES AND

5 SENATE.—Subsections (c) through (h) are enacted by the 

6 Congress— 

7 (1) as an exercise of the rulemaking power of 

8 the House of Representatives and the Senate, re9 spectively, and as such subsections (c) through (h) 

10 are deemed a part of the rules of each House, re11 spectively, but applicable only with respect to the 

12 procedure to be followed in that House in the case 

13 of joint resolutions described in subsection (c), and 

14 subsections (c) through (h) supersede other rules 

15 only to the extent that they are inconsistent there16 with; and 

17 (2) with full recognition of the constitutional 

18 right of either House to change the rules (so far as 

19 relating to the procedure of that House) at any time, 

20 in the same manner and to the same extent as in 

21 the case of any other rule of that House. 


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1 TITLE III—EXPANSION OF APPLI2 CABILITY OF COUNTER3 VAILING DUTIES 

4 SEC. 301. APPLICATION OF COUNTERVAILING DUTIES TO 

5 NONMARKET ECONOMY COUNTRIES AND 

6 STRENGTHENING APPLICATION OF THE LAW. 

7 (a) APPLICATION OF COUNTERVAILING DUTIES TO

8 NONMARKET ECONOMIES.—Section 701(a)(1) of the Tar9 iff Act of 1930 (19 U.S.C. 1671(a)(1)) is amended by in10 serting ‘‘(including a nonmarket economy country)’’ after 

11 ‘‘country’’ each place it appears. 

12 (b) RECOGNITION OF COUNTERVAILABLE SUBSIDIES

13 IN NONMARKET ECONOMY COUNTRIES.— 

14 Section771(5)(C) of the Tariff Act of 1930 (19 U.S.C. 

15 1677(5)(E)) is amended to read as follows: 

16 ‘‘(C) OTHER FACTORS.—(i) The deter17 mination of whether a subsidy exists shall be 

18 made without regard to— 

19 ‘‘(I) whether the recipient of the sub20 sidy is publicly or privately owned; 

21 ‘‘(II) whether the subsidy is provided 

22 directly or indirectly on the manufacture, 

23 production, or export of merchandise; and 

24 ‘‘(III)(aa) whether the country is a 

25 nonmarket economy country, or 


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1 ‘‘(bb) the level of economic reforms in 

2 a country that is a nonmarket economy 

3 country, at the time the subsidy is pro4 vided. 

5 ‘‘(ii) The administering authority is not re6 quired to consider the effect of the subsidy in 

7 determining whether a subsidy exists under this 

8 paragraph.’’. 

9 (c) USE OF ALTERNATE METHODOLOGIES INVOLV10 ING CHINA.—Section 771(5)(E) of the Tariff Act of 1930 

11 U.S.C. 1677(5)(E)) is amended by adding at the end the 

12 following: 

13 ‘‘If the administering authority encounters spe14 cial difficulties in identifying and calculating 

15 the amount of a benefit under clauses (i) 

16 through (iv) with respect to an investigation or 

17 review involving the People’s Republic of China, 

18 irrespective of whether the administering au19 thority determines that China is a nonmarket 

20 economy country under paragraph (18) of this 

21 section, the administering authority shall use 

22 methodologies to identify and calculate the 

23 amount of the benefit that take into account 

24 the possibility that terms and conditions pre25 vailing in China may not always be available as 


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1 appropriate benchmarks. In applying such 

2 methodologies, where practicable, the admin3 istering authority should take into account and 

4 adjust terms and conditions prevailing in China 

5 before using terms and conditions prevailing 

6 outside of China. If the administering authority 

7 has determined that China is a nonmarket 

8 economy country under paragraph (18) of this 

9 section, the administering authority shall pre10 sume that special difficulties exist in calculating 

11 the amount of a benefit under clauses (i) 

12 through (iv) with respect to an investigation or 

13 review involving China and that it is not prac14 ticable to take into account and adjust terms 

15 and conditions prevailing in China, and the ad16 ministering authority shall use terms and condi17 tions prevailing outside of China.’’. 

18 (d) SUBSIDIES PROVIDED TO STATE-OWNED ENTER19 PRISES IN THE PEOPLE’S REPUBLIC OF CHINA.—Section 

20 771(5A) of the Tariff Act of 1930 (19 U.S.C. 1677(5A)) 

21 is amended by adding at the end the following: 

22 ‘‘For purposes of this paragraph, subsidies provided 

23 to state-owned enterprises in the People’s Republic 

24 of China shall be deemed to be specific if, inter alia, 

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1 ents of such subsidies or state-owned enterprises re2 ceive disproportionately large amounts of such sub3 sidies.’’. 

4 (e) ANTIDUMPING PROVISIONS NOT AFFECTED.— 

5 The amendments made by this section shall not affect the 

6 status of a country as a nonmarket economy country for 

7 the purposes of any matter relating to antidumping duties 

8 under subtitle B of title VII of the Tariff Act of 1930 

9 (19 U.S.C. 1673 et seq.). In cases involving a nonmarket 

10 economy country, no offset or reduction shall be made to 

11 the amount of either the antidumping or countervailing 

12 duty imposed based on the finding of a domestic subsidy 

13 and the simultaneous application of antidumping duties. 

14 SEC. 302. TREATMENT OF EXCHANGE-RATE MANIPULATION 

15 AS COUNTERVAILABLE SUBSIDY UNDER 

16 TITLE VII OF THE TARIFF ACT OF 1930. 

17 (a) AMENDMENTS TO DEFINITION OF

18 COUNTERVAILABLE SUBSIDY.—Section 771(5)(D) of the 

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

20 (1) by striking ‘‘The term’’ and inserting ‘‘(i) 

21 The term’’; 

22 (2) by redesignating clauses (i) through (iv) as 

23 subclauses (I) through (IV), respectively; and 

24 (3) by adding at the end the following: 


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1 ‘‘(ii) The term ‘provides a financial con2 tribution’ includes engaging in exchange-rate 

3 manipulation (as defined in paragraph (5C)).’’. 

4 (b) DEFINITION OF EXCHANGE-RATE MANIPULA5 TION.—Section 771 of the Tariff Act of 1930 (19 U.S.C. 

6 1677) is amended by inserting after paragraph (5B) the 

7 following new paragraph: 

8 ‘‘(5C) DEFINITION OF EXCHANGE-RATE MANIP9 ULATION.— 

10 ‘‘(A) IN GENERAL.—For purposes of para11 graphs (5) and (5A), the term ‘exchange-rate 

12 manipulation’ means protracted large-scale 

13 intervention by a country to undervalue the 

14 country’s currency in the exchange market that 

15 prevents effective balance-of-payments adjust16 ment or that gains an unfair competitive advan17 tage over any other country. 

18 ‘‘(B) FACTORS.—In determining whether 

19 exchange-rate manipulation is occurring and a 

20 benefit thereby conferred, the administering au21 thority in each case— 

22 ‘‘(i) shall consider the exporting coun23 try’s— 


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1 ‘‘(I) bilateral balance-of-trade 

2 surplus or deficit with the United 

3 States; 

4 ‘‘(II) balance-of-trade surplus or 

5 deficit with its other trading partners 

6 individually and in the aggregate; 

7 ‘‘(III) foreign direct investment 

8 in its territory; 

9 ‘‘(IV) currency-specific and ag10 gregate amounts of foreign currency 

11 reserves; and 

12 ‘‘(V) mechanisms employed to 

13 maintain its currency at a fixed ex14 change rate relative to another cur15 rency and, particularly, the nature, 

16 duration, monetary expenditures, and 

17 potential monetary expenditures of 

18 those mechanisms; 

19 ‘‘(ii) may consider such other eco20 nomic factors as are relevant; and 

21 ‘‘(iii) shall measure the trade sur22 pluses or deficits described in subclauses 

23 (I) and (II) of clause (i) with reference to 

24 the trade data reported by the United 

25 States and the other trading partners of 


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1 the exporting country, unless such trade 

2 data are not available or are demonstrably 

3 inaccurate, in which case the exporting 

4 country’s trade data may be relied upon if 

5 shown to be sufficiently accurate and 

6 trustworthy. 

7 ‘‘(C) TYPE OF ECONOMY.—A country 

8 found to be engaged in exchange-rate manipula9 tion may have— 

10 ‘‘(i) a market economy; 

11 ‘‘(ii) a nonmarket economy; or 

12 ‘‘(iii) a combination thereof.’’. 

13 SEC. 303. AFFIRMATION OF NEGOTIATING OBJECTIVE ON 

14 BORDER TAXES. 

15 The Congress reaffirms the negotiating objective re16 lating to border taxes set forth in section 2102(b)(15) of 

17 the Bipartisan Trade Promotion Authority Act of 2002 

18 (19 U.S.C. 3802(b)(15)). 

19 SEC. 304. PRESIDENTIAL CERTIFICATION; APPLICATION OF 

20 COUNTERVAILING DUTY LAW. 

21 (a) CERTIFICATION BY THE PRESIDENT.— 

22 (1) IN GENERAL.—The President shall certify 

23 to the Congress by January 1, 2014, that, under the 

24 Agreement on Subsidies and Countervailing Meas25 ures or subsequent agreement of the World Trade 


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1 Organization, the full or partial exemption, remis2 sion, or deferral specifically related to exports of di3 rect taxes is treated in the same manner as the full 

4 or partial exemption, remission, or deferral specifi5 cally related to exports of indirect taxes. 

6 (2) EFFECT OF FAILURE TO CERTIFY.—If the 

7 President does not make the certification to Con8 gress required by paragraph (1) by January 1, 

9 2014, the Secretary of Commerce, in any investiga10 tion conducted under subtitle A of title VII of the 

11 Tariff Act of 1930 (19 U.S.C. 1671 et seq.) to de12 termine whether a countervailable subsidy is being 

13 provided with respect to a product of a country that 

14 provides the full or partial exemption, remission, or 

15 deferral specifically related to exports of indirect 

16 taxes on products exported from that country, shall 

17 treat as a countervailable subsidy the full or partial 

18 exemption, remission, or deferral specifically related 

19 to exports of indirect taxes paid on that product. 

20 (b) DEFINITIONS.—In this section: 

21 (1) AGREEMENT ON SUBSIDIES AND COUNTER22 VAILING MEASURES.—The term ‘‘Agreement on Sub23 sidies and Countervailing Measures’’ means the 

24 agreement referred to in section 101(d)(12) of the 


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1 Uruguay Round Agreements Act (19 U.S.C. 

2 3511(d)(12)). 

3 (2) DIRECT TAXES.—The term ‘‘direct taxes’’ 

4 means taxes on wages, profits, interest, rents, royal5 ties, and all other forms of income, and taxes on the 

6 ownership of real property. 

7 (3) IMPORT CHARGES.—The term ‘‘import 

8 charges’’ means tariffs, duties, and other fiscal 

9 charges that are levied on imports. 

10 (4) INDIRECT TAXES.—The term ‘‘indirect 

11 taxes’’ means sales, excise, turnover, value added, 

12 franchise, stamp, transfer, inventory, and equipment 

13 taxes, border taxes, and all taxes other than direct 

14 taxes and import charges. 

15 (5) FULL OR PARTIAL EXEMPTION, REMISSION, 

16 OR DEFERRAL SPECIFICALLY RELATED TO EXPORTS

17 OF DIRECT TAXES.—The term ‘‘full or partial ex18 emption, remission, or deferral specifically related to 

19 exports of direct taxes’’ means direct taxes that are 

20 paid to the United States Government by a business 

21 concern and are fully or partially exempted, remit22 ted, or deferred by the Government by reason of the 

23 export by that business concern of its products from 

24 the United States. 


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1 (6) FULL OR PARTIAL EXEMPTION, REMISSION, 

2 OR DEFERRAL SPECIFICALLY RELATED TO EXPORTS

3 OF INDIRECT TAXES.—The term ‘‘full or partial ex4 emption, remission, or deferral specifically related to 

5 exports of indirect taxes’’ means indirect taxes that 

6 are paid to the government of a country by a busi7 ness concern and are fully or partially exempted, re8 mitted, or deferred by that government by reason of 

9 the export by that business concern of its products 

10 from that country. 

11 (c) EFFECTIVE PERIOD.—Subsection (a) shall cease 

12 to be effective on the date on which the President makes 

13 a certification described in subsection (a). 

14 TITLE IV—LIMITATION ON PRES15 IDENTIAL DISCRETION IN AD16 DRESSING MARKET DISRUP17 TION 

18 SEC. 401. STANDARD FOR PRESIDENTIAL ACTION ON ITC 

19 FINDING OF MARKET DISRUPTION. 

20 Section 421 of the Trade Act of 1974 (19 U.S.C. 

21 2451) is amended— 

22 (1) in subsection (a)— 

23 (A) by inserting ‘‘any’’ before ‘‘increased 

24 duties’’; and 


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1 (B) by striking ‘‘, to the extent and for 

2 such period’’ and all that follows to the end pe3 riod and inserting ‘‘recommended by the Inter4 national Trade Commission’’; 

5 (2) in subsection (e), in the second sentence, by 

6 striking ‘‘agreed upon by either group’’ and all that 

7 follows to the end period and inserting ‘‘shall be con8 sidered an affirmative determination under sub9 section (b)’’; 

10 (3) in subsection (f)— 

11 (A) in the heading, by striking ‘‘ON PRO12 POSED REMEDIES’’ and inserting ‘‘FOR RE13 LIEF’’; 

14 (B) in the first sentence— 

15 (i) by striking ‘‘the President or 

16 Trade Representative may consider as’’ 

17 and inserting ‘‘is to be considered’’; and 

18 (ii) by striking ‘‘the Commission shall 

19 propose’’ and inserting ‘‘the Commission 

20 shall recommend’’; and 

21 (C) in the second sentence, by striking 

22 ‘‘proposed action’’ and inserting ‘‘recommended 

23 action’’; 

24 (4) in subsection (g)(2)(B)— 


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1 (A) by striking ‘‘or may be considered by 

2 the President or the Trade Representative as’’ 

3 and inserting ‘‘or if the determination is consid4 ered to be’’; and 

5 (B) by striking ‘‘on proposed remedies’’ 

6 and inserting ‘‘for relief’’; 

7 (5) in subsection (h)— 

8 (A) in the heading, by striking ‘‘PROPOSED

9 MEASURE AND RECOMMENDATION TO THE

10 PRESIDENT’’ and inserting ‘‘RECOMMENDED

11 RELIEF AND REPORT BY TRADE REPRESENTA12 TIVE’’; 

13 (B) in paragraph (1)— 

14 (i) by striking ‘‘measure proposed by 

15 the Trade Representative to be taken pur16 suant to subsection (a)’’ and inserting ‘‘re17 lief recommended by the Commission 

18 under subsection (f)’’; and 

19 (ii) by striking ‘‘proposed measure’’ 

20 and inserting ‘‘recommended relief’’; 

21 (C) in paragraph (2), by striking ‘‘on the 

22 measure proposed by the Trade Representative’’ 

23 and all that follows to the end period and in24 serting ‘‘, shall transmit a report to the PresiVerDate Mar 15 2010 02:29 Jun 29, 2011 Jkt 099200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\S1267.IS S1267

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1 dent recommending what action to take under 

2 subsection (k)’’; and 

3 (D) by adding at the end the following new 

4 paragraph: 

5 ‘‘(3) The Trade Representative, after submitting a 

6 report to the President under paragraph (2), shall prompt7 ly make the report available to the public, excluding any 

8 proprietary or confidential information. The Trade Rep9 resentative shall publish a summary of the report in the 

10 Federal Register.’’; 

11 (6) in subsection (i)— 

12 (A) in the flush sentence at the end of 

13 paragraph (1), by striking ‘‘agreed upon by ei14 ther group’’ and all that follows to the end pe15 riod and inserting ‘‘shall be considered an af16 firmative determination of the Commission’’; 

17 and 

18 (B) by striking paragraphs (2), (3), and 

19 (4), and inserting the following: 

20 ‘‘(2) On the date on which the Commission completes 

21 its determinations under paragraph (1), the Commission 

22 shall transmit a report on the determinations to the Presi23 dent and the Trade Representative, including the reasons 

24 for its determinations. If the determinations under para25 graph (1) are affirmative or if the determinations are conVerDate Mar 15 2010 02:29 Jun 29, 2011 Jkt 099200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\S1267.IS S1267

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1 sidered to be affirmative under paragraph (1), the Com2 mission shall include in its report its recommendations on 

3 provisional relief to be taken to prevent or remedy the 

4 market disruption. Only those members of the Commission 

5 who agreed to the affirmative determinations under para6 graph (1) are eligible to vote on the recommended provi7 sional relief to prevent or remedy market disruption. Mem8 bers of the Commission who did not agree to the affirma9 tive determinations may submit, in the report, dissenting 

10 or separate views regarding the determination and any 

11 recommendation of provisional relief referred to in this 

12 paragraph. 

13 ‘‘(3) The provisional relief referred to in paragraph 

14 (2) may include— 

15 ‘‘(A) the imposition of or increase in any duty; 

16 ‘‘(B) any modification, or imposition of any 

17 quantitative restriction on the importation of any ar18 ticle into the United States; or 

19 ‘‘(C) any combination of actions under subpara20 graph (A) or (B). 

21 ‘‘(4) If the determinations under paragraph (1) are 

22 affirmative or if the determinations are considered to be 

23 affirmative under paragraph (1), the Trade Representa24 tive shall, within 10 days after receipt of the Commission’s 

25 report, transmit a report to the President recommending 


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1 what action to take with respect to provisional relief under 

2 subsection (k). 

3 ‘‘(5)(A) The President shall proclaim any provisional 

4 relief recommended by the Commission not later than 10 

5 days after the date the President receives the report de6 scribed in paragraph (4) from the Trade Representative. 

7 ‘‘(B) Any provisional relief proclaimed by the Presi8 dent pursuant to a determination of critical circumstances 

9 shall remain in effect for a period not to exceed 200 days. 

10 ‘‘(C) Provisional relief shall cease to apply upon the 

11 effective date of relief proclaimed under subsection (a), 

12 upon a decision by the President not to provide such relief 

13 under subsection (k), or upon a negative determination by 

14 the Commission under subsection (b).’’; 

15 (7) in subsection (j)— 

16 (A) in paragraph (1), by striking ‘‘which 

17 the Trade Representative considers to be’’ and 

18 inserting ‘‘that is considered to be’’; and 

19 (B) by striking paragraph (2) and insert20 ing the following: 

21 ‘‘(2) If no agreement is reached with the People’s Re22 public of China pursuant to consultations under para23 graph (1) in the time required for Presidential action 

24 under subsection (k), or if the President determines that 

25 an agreement reached pursuant to such consultations is 


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1 not preventing or remedying the market disruption at 

2 issue in the time required for Presidential action under 

3 subsection (k), the President shall provide import relief 

4 in accordance with subsection (a).’’; 

5 (8) in subsection (k)— 

6 (A) in the heading, by striking ‘‘STAND7 ARD FOR PRESIDENTIAL ACTION’’ and inserting 

8 ‘‘TIMING FOR PRESIDENTIAL ACTION; EXCEP9 TIONS’’; 

10 (B) in paragraph (1), by striking ‘‘a rec11 ommendation from the Trade Representative’’ 

12 and all that follows to the end period and in13 serting ‘‘a report from the Trade Representa14 tive under subsection (h)(2), the President 

15 shall, pursuant to subsection (a), proclaim the 

16 relief recommended by the Commission’’; and 

17 (C) by amending paragraph (2) to read as 

18 follows: 

19 ‘‘(2) The President may decline to proclaim relief 

20 pursuant to subsection (a), may proclaim relief pursuant 

21 to subsection (a) that differs from the relief recommended 

22 by the Commission, may decline to proclaim provisional 

23 relief pursuant to subsection (i), or may proclaim provi24 sional relief pursuant to subsection (i) that differs from 

25 the relief recommended by the Commission— 


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1 ‘‘(A) only in extraordinary cases; and 

2 ‘‘(B) only if the President determines that pro3 viding relief or provisional relief pursuant to sub4 section (a) or (i) or providing relief recommended by 

5 the Commission pursuant to subsection (a) or (i) 

6 would cause serious harm to the economic interests 

7 or to the national security of the of the United 

8 States.’’; 

9 (9) in subsection (l), by amending paragraph 

10 (1) to read as follows: 

11 ‘‘(1) The President’s decision under subsection (k) 

12 shall be submitted to the Committee on Finance of the 

13 Senate and the Committee on Ways and Means of the 

14 House of Representatives and shall be published in the 

15 Federal Register within 15 days of the decision. In the 

16 submission to the committees and in publication in the 

17 Federal Register, the President shall include the reasons 

18 for the decision and the scope and duration of any action 

19 taken. If the President takes action that differs from the 

20 action recommended by the Commission under subsection 

21 (f) or declines to take action pursuant to subsection 

22 (k)(2), the President shall state in detail the reasons for 

23 such action or inaction.’’; 

24 (10) by redesignating subsections (m) through 

25 (o) as subsections (n) through (p), respectively; 


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1 (11) by inserting after subsection (l) the fol2 lowing new subsection: 

3 ‘‘(m) IMPLEMENTATION OF ACTION RECOMMENDED

4 BY COMMISSION.—(1) If the President takes action that 

5 differs from the action recommended by the Commission 

6 under subsection (f) or declines to take action pursuant 

7 to subsection (k)(2)(B)(i), the action recommended by the 

8 Commission under subsection (f) shall take effect (as pro9 vided in subsection (n)(2)) upon the enactment of a joint 

10 resolution described in paragraph (2) within the 90-day 

11 period beginning on the date on which the President’s de12 cision is transmitted to the Congress pursuant to sub13 section (l). 

14 ‘‘(2) For purposes of this section, the term ‘joint res15 olution’ means a joint resolution of the 2 Houses of the 

16 Congress, the sole matter after the resolving clause of 

17 which is as follows: ‘That the Congress does not approve 

18 the action taken by, or the determination of, the President 

19 under section 421 of the Trade Act of 1974, notice of 

20 which was transmitted to the Congress on 

21 llllll.’, with the blank space being filled with the 

22 appropriate case number and date. 

23 ‘‘(3) The provisions of section 152(b), (c), (d), (e), 

24 and (f) of the Trade Act of 1974 (19 U.S.C. 2192(b), (c), 


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1 (d), (e), and (f)) shall apply to joint resolutions under this 

2 section.’’; 

3 (12) in subsection (n), as redesignated, by 

4 striking ‘‘Import relief under this section’’ and all 

5 that follows to the end period and inserting the fol6 lowing: 

7 ‘‘(1) Except as provided in paragraph (2), import re8 lief under this section shall take effect not later than 15 

9 days after the President’s determination to provide such 

10 relief. 

11 ‘‘(2) If the action recommended by the Commission 

12 takes effect pursuant to subsection (m), the President 

13 shall, within 15 days after the date of the enactment of 

14 the joint resolution referred to in subsection (m), proclaim 

15 the action recommended by the Commission under sub16 section (f). Such action shall take effect not later than 

17 15 days after the date of the President’s proclamation.’’; 

18 (13) in subsection (o), as redesignated— 

19 (A) in paragraph (1), by striking ‘‘6- 

20 month’’ and inserting ‘‘1-year’’; and 

21 (B) in paragraph (3), by inserting ‘‘or 

22 (m)’’ after ‘‘subsection (k)’’; and 

23 (14) in subsection (p), as redesignated— 

24 (A) in paragraph (1), by inserting ‘‘or 

25 (m)’’ after ‘‘subsection (k);’’; and 


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1 (B) in paragraph (3), by striking ‘‘sub2 section (m)’’ and inserting ‘‘subsection (n)’’. 

3 TITLE V—STRENGTHENING EN4 FORCEMENT OF INTELLEC5 TUAL PROPERTY RIGHTS AT 

6 U.S. BORDERS 

7 Subtitle A—Coordination of En8 forcement of Intellectual Prop9 erty Rights 

10 SEC. 501. DEFINITIONS. 

11 In this title: 

12 (1) ASSISTANT SECRETARY FOR ICE.—The term 

13 ‘‘Assistant Secretary for ICE’’ means the Assistant 

14 Secretary for U.S. Immigration and Customs En15 forcement. 

16 (2) COMMISSIONER.—The term ‘‘Commis17 sioner’’ means the Commissioner responsible for 

18 U.S. Customs and Border Protection. 

19 (3) COUNTERFEITING; COUNTERFEIT GOODS.— 

20 (A) COUNTERFEITING.—The term ‘‘coun21 terfeiting’’ means activities related to produc22 tion of or trafficking in goods, including pack23 aging, that bear a spurious mark or designation 

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1 guishable from a mark or designation protected 

2 under the trademark laws or related legislation.

3 (B) COUNTERFEIT GOODS.—The term 

4 ‘‘counterfeit goods’’ means those goods de5 scribed in subparagraph (A). 

6 (4) CBP.—The term ‘‘CBP’’ means U.S. Cus7 toms and Border Protection. 

8 (5) DIRECTOR.—The term ‘‘Director’’ means 

9 the Director of Intellectual Property Rights Enforce10 ment of the Department of the Treasury established 

11 in section 502. 

12 (6) ENFORCEMENT OF INTELLECTUAL PROP13 ERTY RIGHTS.—The term ‘‘enforcement of intellec14 tual property rights’’ means activities to enforce 

15 copyrights, patents, trademarks, and other forms of 

16 intellectual property, including activities to control 

17 counterfeiting and piracy, and activities to enforce 

18 exclusion orders issued by the United States Inter19 national Trade Commission by reason of any of sub20 paragraphs (B) through (E) of subsection (a)(1) of 

21 section 337 of the Tariff Act of 1930 (19 U.S.C. 

22 1337(a)(1)(B) through (E)). 

23 (7) EXCLUSION ORDER.—The term ‘‘exclusion 

24 order’’ means an order of the United States Inter25 national Trade Commission issued under section 


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1 337(d) of the Tariff Act of 1930 to exclude goods 

2 from entry into the United States. 

3 (8) ICE.—The term ‘‘ICE’’ means U.S. Immi4 gration and Customs Enforcement. 

5 (9) PIRACY; PIRATED GOODS.— 

6 (A) PIRACY.—The term ‘‘piracy’’ means 

7 activities related to production of or trafficking 

8 in unauthorized copies or phonorecords of 

9 works protected under copyright law or related 

10 legislation. 

11 (B) PIRATED GOODS.—The term ‘‘pirated 

12 goods’’ means those copies or phonorecords de13 scribed in subparagraph (A). 

14 SEC. 502. DIRECTOR OF INTELLECTUAL PROPERTY RIGHTS 

15 ENFORCEMENT. 

16 (a) ESTABLISHMENT.—There is established within 

17 the Department of the Treasury the position of Director 

18 of Intellectual Property Rights Enforcement. 

19 (b) APPOINTMENT.—The Director shall be appointed 

20 by the Secretary of the Treasury, and shall be responsible 

21 to and shall report directly to the Deputy Secretary of the 

22 Treasury. 

23 (c) DUTIES.—The Director shall— 

24 (1) coordinate all activities of the Department 

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1 lectual property rights, with particular reference to 

2 the activities of CBP and ICE; 

3 (2) oversee the development and implementa4 tion of the strategic plan for the enforcement of in5 tellectual property rights required under section 503; 

6 (3) coordinate the policy and regulatory 

7 changes set forth in subtitle D; 

8 (4) serve as staff representative of the Depart9 ment of the Treasury in interagency bodies with re10 sponsibility for coordination of activities involving 

11 the enforcement of intellectual property rights; 

12 (5) conduct an evaluation of the effectiveness of 

13 the organizational structure of CBP for reducing the 

14 entry into the United States of counterfeit or pirated 

15 goods, goods in violation of exclusion orders, and 

16 other goods in violation of other intellectual property 

17 rights; and 

18 (6) carry out other duties, as assigned by the 

19 Secretary or Deputy Secretary of the Treasury, to 

20 improve the effectiveness of the efforts of the De21 partment of the Treasury under the laws within its 

22 jurisdiction with respect to enforcement of intellec23 tual property rights. 


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1 SEC. 503. STRATEGIC PLAN FOR THE ENFORCEMENT OF IN2 TELLECTUAL PROPERTY RIGHTS. 

3 (a) IN GENERAL.—The Director shall develop, for 

4 approval by the Deputy Secretary of the Treasury, an an5 nual strategic plan for the enforcement of intellectual 

6 property rights. 

7 (b) CONSULTATION.—In developing the annual stra8 tegic plan required under subsection (a), the Director shall 

9 consult with— 

10 (1) the CBP coordinator of intellectual property 

11 enforcement activities and the ICE coordinator of 

12 intellectual property enforcement authorities ap13 pointed under section 504; 

14 (2) all other entities within the Department of 

15 the Treasury with expertise and experience in the 

16 enforcement of intellectual property rights; 

17 (3) the Advisory Committee; 

18 (4) other agencies of the executive branch en19 gaged in the enforcement of intellectual property 

20 rights, including any officials designated to coordi21 nate such enforcement efforts on an interagency 

22 basis; and 

23 (5) officials from foreign law enforcement agen24 cies and international organizations, including the 

25 World Customs Organization, with experience and 


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1 expertise in border control measures relating to the 

2 enforcement of intellectual property rights. 

3 (c) CONTENTS OF PLAN.—The annual strategic plan 

4 shall set forth objectives, goals, and strategies for more 

5 effective use of the authorities of CBP and ICE relating 

6 to the enforcement of intellectual property rights, and 

7 shall— 

8 (1) provide for specific measurement of the cur9 rent effectiveness of enforcement tools, including 

10 targeting, examination, post-entry auditing, and pen11 alty actions; 

12 (2) give priority to those enforcement tools de13 termined under paragraph (1) to be most effective; 

14 (3) identify best practices, both in the United 

15 States and abroad, in the enforcement of intellectual 

16 property rights, taking into account the practices of 

17 enforcement authorities of other countries, and im18 plement those practices; 

19 (4) identify and apply the specific performance 

20 measures to be used to evaluate the progress of CBP 

21 and ICE in improving the effectiveness of its efforts 

22 relating to the enforcement of intellectual property 

23 rights; 

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1 sengers and freight, and at points of entry for postal 

2 and courier services, as well as for goods in transit 

3 through United States ports and in the process of 

4 being exported from the United States; 

5 (6) recommend the optimal feasible allocation of 

6 human, financial, physical, and technological re7 sources that CBP and ICE should use to achieve the 

8 goals of the annual strategic plan; 

9 (7) report on the key activities of CBP and ICE 

10 during the preceding year in the enforcement of in11 tellectual property rights ; and 

12 (8) contain such other information as the Di13 rector considers appropriate to convey what CBP 

14 and ICE will do, over the ensuing year, with respect 

15 to the enforcement of intellectual property rights 

16 and reduce the costs that violations of intellectual 

17 property rights impose on the United States econ18 omy and public safety. 

19 (d) SUBMISSION TO CONGRESS.—Upon the approval 

20 by the Deputy Secretary of the Treasury of the annual 

21 strategic plan, after ensuring its consistency with relevant 

22 interagency strategic plans for the enforcement of intellec23 tual property rights, the Deputy Secretary of the Treasury 

24 shall transmit the annual strategic plan to the Committee 

25 on Finance of the Senate and the Committee on Ways and 


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1 Means of the House of Representatives, along with any 

2 recommendations of the Department of the Treasury for 

3 statutory changes or funding authorizations needed to im4 prove the effectiveness of the Department’s efforts in the 

5 enforcement of intellectual property rights. 

6 (e) TIMING.—The Deputy Secretary of the Treasury 

7 shall submit the annual strategic plan under subsection 

8 (d) not later than 180 days after the date of the enact9 ment of this Act and annually thereafter. 

10 SEC. 504. CBP AND ICE COORDINATORS. 

11 (a) CBP COORDINATORS.— 

12 (1) APPOINTMENT.—The Commissioner shall 

13 appoint a CBP coordinator of intellectual property 

14 rights enforcement activities (in this subtitle referred 

15 to as the ‘‘CBP Coordinator’’), who shall report di16 rectly to the Commissioner. 

17 (2) DUTIES.—The CBP Coordinator shall— 

18 (A) assist the Director of Intellectual 

19 Property Rights Enforcement of the Depart20 ment of the Treasury in the development of the 

21 annual strategic plan, and coordinate the imple22 mentation of those aspects of the plan that in23 volve CBP; 

24 (B) coordinate all efforts, at all ports of 

25 entry and elsewhere, carried out by CBP in the 


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1 enforcement of intellectual property rights, in2 cluding training and staffing; 

3 (C) supervise the implementation of those 

4 aspects of the regulatory and policy reforms set 

5 out in this title that involve CBP; and 

6 (D) carry out such other duties, as as7 signed by the Commissioner, the purpose of 

8 which is to improve the performance of CBP in 

9 the enforcement of intellectual property rights. 

10 (b) ICE COORDINATOR.— 

11 (1) APPOINTMENT.—The Assistant Secretary 

12 for United States Immigration and Customs En13 forcement shall appoint an ICE coordinator of intel14 lectual property enforcement activities (referred to in 

15 this subtitle as the ‘‘ICE Coordinator’’), who shall 

16 report directly to the Assistant Secretary for ICE. 

17 (2) DUTIES.—The ICE Coordinator shall— 

18 (A) assist the Director of Intellectual 

19 Property Rights Enforcement of the Depart20 ment of the Treasury in the development of the 

21 annual strategic plan, and coordinate the imple22 mentation of those aspects of the plan that in23 volve ICE; 


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1 (B) coordinate all efforts carried out by 

2 ICE the enforcement of intellectual property 

3 rights, including training and staffing; 

4 (C) supervise the implementation of those 

5 aspects of the regulatory and policy reforms set 

6 out in this title that involve ICE; and 

7 (D) carry out such other duties, as as8 signed by the Assistant Secretary for ICE, the 

9 purpose which is to improve the performance of 

10 ICE in the enforcement of intellectual property 

11 rights. 

12 Subtitle B—Regulatory and Policy 

13 Improvements Against Counter14 feiting and Piracy 

15 SEC. 511. IN GENERAL. 

16 (a) COMMISSIONER’S RESPONSIBILITIES.—The Com17 missioner, acting through the CBP Coordinator, shall un18 dertake the initiatives provided in this subtitle. 

19 (b) CBP COORDINATOR’S RESPONSIBILITIES.—Ex20 cept as otherwise provided in this subtitle, the CBP Coor21 dinator shall— 

22 (1) prepare an annual report on activities car23 ried out under this subtitle; and 

24 (2) provide the annual report to the Director of 

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1 partment of the Treasury in a timely manner that 

2 will permit its inclusion in the annual strategic plan 

3 prepared under section 503. 

4 SEC. 512. IDENTIFICATION OF CERTAIN UNLAWFUL GOODS. 

5 (a) IN GENERAL.—The Secretary of the Treasury, 

6 acting through the Commissioner, shall accelerate efforts 

7 to apply risk assessment modeling techniques to border 

8 enforcement activities to combat counterfeiting and piracy. 

9 These efforts shall include, but not be limited to— 

10 (1) preparing a report and evaluation on CBP’s 

11 pilot project in risk assessment modeling with re12 spect to shipments of counterfeit or pirated prod13 ucts; 

14 (2) expanding the pilot project to include devel15 opment of a rule set for the Automated Targeting 

16 System; and 

17 (3) developing a plan for the development, test18 ing, evaluation, and continuous improvement of risk 

19 assessment modeling techniques for purposes of tar20 geting goods that violate intellectual property rights. 

21 (b) INCLUSION IN STRATEGIC PLAN.—The report 

22 specified in subsection (a)(1), and the plan specified in 

23 subsection (a)(3), shall be included in the annual strategic 

24 plan that is prepared under section 503. 


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1 SEC. 513. TRAINING IN NEW TECHNOLOGIES. 

2 (a) TRAINING OF PERSONNEL.—The Commissioner 

3 shall consult with the Advisory Committee to determine 

4 the feasibility of training CBP personnel in the use of new 

5 technological means for detecting and identifying, at ports 

6 of entry, counterfeit and pirated goods, and goods that 

7 are the subject of exclusion orders, whether for entry into 

8 the United States or in transit to other destinations. 

9 (b) IDENTIFICATION OF TECHNOLOGIES AND

10 SOURCES OF TRAINING.—In consultation with the Advi11 sory Committee, the Commissioner shall identify— 

12 (1) new technologies with the cost-effective ca13 pability to detect and identify goods described in 

14 subsection (a) at ports of entry; and 

15 (2) economical sources of training CBP per16 sonnel in using such new technologies, 

17 to the extent such training is determined to be feasible 

18 under subsection (a). 

19 (c) REGULATORY AND POLICY CHANGES.—The 

20 United States Government Accountability Office shall pro21 vide to the Congress a report analyzing the costs and bene22 fits of allowing necessary regulatory and policy changes 

23 to enable the receipt of donations of hardware, software, 

24 equipment, and similar technologies, and the acceptance 

25 of training and other support services, from the private 


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1 sector, to facilitate the achievement of the purposes of this 

2 section. 

3 SEC. 514. DISCLOSURE OF INFORMATION AND SAMPLES OF 

4 SHIPMENTS TO INTELLECTUAL PROPERTY 

5 OWNERS. 

6 The Commissioner shall make the necessary regu7 latory and policy changes to— 

8 (1) increase disclosure to owners of copyrights, 

9 trademarks, patents, and other forms of intellectual 

10 property of information about shipments of goods 

11 that have been detained at ports of entry on sus12 picion that their importation into, or transit 

13 through, the United States would violate the intellec14 tual property rights of the owners of those rights, 

15 including— 

16 (A) disclosure of the identities and contact 

17 information of all parties involved in the ship18 ments, including importers, exporters, declar19 ants, consignees, freight forwarders, and ware20 house owners; 

21 (B) providing documents relating to the 

22 shipments; and 

23 (C) identifying points of origin and des24 tination of the shipments; and 


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1 (2) improve the process of making available to 

2 representatives of owners of copyrights, trademarks, 

3 patents, and other forms of intellectual property, in 

4 an efficient and cost-effective manner, samples of 

5 shipments of goods suspected of infringing intellec6 tual property rights, for the purpose of inspection or 

7 analysis. 

8 SEC. 515. IMPROVEMENTS TO RECORDATION PROCESS. 

9 (a) IMPROVEMENTS IN RECORDATION PROCESS.— 

10 The Commissioner shall make the necessary regulatory 

11 and policy changes to ensure that the system for recorda12 tion of copyrights, trademarks, and other forms of intellec13 tual property that may be subject to recordation does not 

14 impede the rapid seizure of goods that infringe the rights 

15 of the owners of such copyrights, trademarks, and other 

16 forms of intellectual property. 

17 (b) SIMULTANEOUS RECORDATION.— 

18 (1) IN GENERAL.—In consultation with the 

19 Under Secretary of Commerce for Intellectual Prop20 erty and Director of the United States Patent and 

21 Trademark Office, and the Register of Copyrights, 

22 the Commissioner shall provide a system whereby 

23 trademarks may be recorded with CBP simulta24 neously with the issuance of trademark registration, 

25 and whereby copyrights of audiovisual works and 


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1 sound recordings may be recorded with CBP simul2 taneously with the filing of an application for a cer3 tificate of copyright registration or an application 

4 for registration of another intellectual property right 

5 under title 17, United States Code. 

6 (2) DEFINITIONS.—In this subsection, the 

7 terms ‘‘audiovisual works’’ and ‘‘sound recordings’’ 

8 have the meanings given those terms in section 101 

9 of title 17, United States Code. 

10 SEC. 516. IDENTIFICATION OF LOW-RISK SHIPPERS. 

11 (a) VOLUNTARY CERTIFICATION PROGRAM.—The 

12 Commissioner shall create a voluntary certification pro13 gram for low-risk shippers that have taken specific meas14 ures to strengthen and protect their supply chains to pre15 vent the infiltration of counterfeit and pirated goods, 

16 goods that are the subject to exclusions orders, and goods 

17 that violate other forms of intellectual property rights. 

18 (b) SELF CERTIFICATIONS; VERIFICATIONS.—The 

19 program under subsection (a) shall generally operate on 

20 a self-certification basis, except that the Commissioner 

21 shall identify any circumstances in which third party 

22 verifications and attestations are required for inclusion in 

23 the program, which may include importations from the 

24 People’s Republic of China. 


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1 (c) EXPEDITED MOVEMENT.—The Commissioner 

2 shall create incentives for shippers to participate in the 

3 certification program, including providing expedited move4 ment of the goods of the shippers through the customs 

5 inspection process. 

6 (d) DEFINITION.—In this section, the term ‘‘inter7 national supply chain’’ means the end-to-end process for 

8 transporting goods to or from the United States beginning 

9 with the point of origin (including manufacturer, supplier, 

10 or vendor) through the point of distribution to the destina11 tion. 

12 SEC. 517. ‘‘WATCH LIST’’ DATABASE. 

13 (a) IN GENERAL.—The Commissioner shall prepare 

14 a plan for the implementation of a ‘‘Watch List’’ database 

15 of importers, shippers, freight forwarders, and other par16 ticipants in the import, export, and transshipment process, 

17 whose activities merit additional scrutiny at ports of entry 

18 with respect to the risk of importation or transshipment 

19 of counterfeit or pirated goods and goods that are the sub20 ject to exclusions orders. 

21 (b) WORKING GROUPS.—The Commissioner shall 

22 consult with the Advisory Committee on the development 

23 of criteria for the ‘‘Watch List’’ database. 

24 (c) INFORMATION SOURCES.—The plan under sub25 section (a) shall identify legitimate information sources for 


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1 the database from within CBP, from other law enforce2 ment sources, and from the private sector. 

3 (d) CRITERIA FOR ACCESS TO DATABASE.—The plan 

4 under subsection (a) shall specify criteria under which the 

5 database should be made available to qualified CBP and 

6 other law enforcement officers, for intelligence purposes, 

7 and for use in flagging and diverting for enhanced scru8 tiny shipments to ports of entry that are associated with 

9 entities listed in the database. 

10 (e) OTHER MATTERS.—The plan under subsection 

11 (a) shall identify any regulatory or policy changes that the 

12 Department of the Treasury would make in order to bring 

13 the database into operation, as well as any recommenda14 tions for needed changes to legislation to make the data15 base more effective. The plan shall also include budget es16 timates for implementation and operation of the database, 

17 and for evaluation of its effectiveness, and a timetable for 

18 such implementation. 

19 (f) TIMING.—The Commissioner shall complete the 

20 plan in a timely fashion that will permit its inclusion in 

21 the first annual strategic plan prepared under section 503. 

22 SEC. 518. CIVIL FINES FOR IMPORTATION OF PIRATED OR 

23 COUNTERFEIT GOODS. 

24 (a) LIMITATION ON MITIGATION, DISMISSAL, AND

25 VACATION OF FINES.—Unless otherwise ordered by a 


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1 court of competent jurisdiction, any civil fine imposed pur2 suant to section 526(f) of the Tariff Act of 1930 (19 

3 U.S.C. 1526(f))— 

4 (1) may not be mitigated, except pursuant to 

5 regulations issued by the Commissioner; and 

6 (2) may not be dismissed or vacated, except 

7 pursuant to regulations issued by the Commissioner 

8 that require the specific approval of the Commis9 sioner or the Commissioner’s designee for such dis10 missal or vacation. 

11 (b) EXTRAORDINARY CASES.—In issuing regulations 

12 under subsection (a), the Commissioner shall ensure that 

13 the mitigation, dismissal, or vacation of civil fines for in14 volvement in the importation, exportation, or trans15 shipment of pirated or counterfeit goods is limited to ex16 traordinary cases in which the interests of justice will 

17 clearly be served by such action. 

18 (c) REPORT TO CONGRESS.—The Commissioner 

19 shall, not later than 180 days after the date of the enact20 ment of this Act, report to the Committee on Finance of 

21 the Senate and the Committee on Ways and Means of the 

22 House of Representatives on the following: 

23 (1) Whether CBP currently has the authority to 

24 employ effective collection techniques for collecting 

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1 tion, exportation, or transshipment of pirated or 

2 counterfeit goods. 

3 (2) If CBP lacks such authority, the Commis4 sioner’s recommendations for legislation to provide 

5 CBP with such authority. 

6 (3) If CBP has such authority, how CBP is 

7 using such authority, and with what results in terms 

8 of increased collections of fines imposed. 

9 (4) The Commissioner’s recommendations on 

10 whether, in specific cases, copyright or trademark 

11 owners should be authorized to pursue and collect 

12 fines imposed because of activities that infringe their 

13 intellectual property rights, and whether such copy14 right or trademark owners should be allowed to re15 tain some or all of the funds that they collect. 

16 (5) Any other recommendations for statutory, 

17 regulatory, or policy changes not under the control 

18 of CBP that would improve the ability of CBP to 

19 impose civil fines, at deterrent levels, on participants 

20 in trafficking in counterfeit or pirated goods, and to 

21 collect the fines imposed. 

22 (d) DEFINITION.—As used in subsection (c), the term 

23 ‘‘effective collection techniques’’ includes— 

24 (1) confiscation of the proceeds of acts for 

25 which civil fines can be imposed; 


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1 (2) seizure of and execution upon property ac2 quired with such proceeds; 

3 (3) imposition of liens on the real or personal 

4 property of persons upon whom civil fines are im5 posed; 

6 (4) use of bonds to secure full payment of fines; 

7 (5) piercing the corporate veil of corporations 

8 upon which civil fines are imposed, in order to sat9 isfy the fine from the assets of natural persons or 

10 of other legal persons; and 

11 (6) engaging private sector entities to collect 

12 civil fines imposed. 

13 Subtitle C—Training 

14 Enhancements 

15 SEC. 521. INTERNATIONAL TRAINING AND TECHNICAL AS16 SISTANCE ENHANCEMENTS. 

17 The Secretary of the Treasury shall take the nec18 essary steps— 

19 (1) to increase staffing and resources of offices 

20 of CBP and ICE engaged in providing training and 

21 technical assistance to the customs services and en22 forcement agencies of other countries in order to im23 prove the effectiveness of such foreign services and 

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1 shipment of counterfeit or pirated goods, goods that 

2 are the subject to exclusions orders, and goods that 

3 violate other forms of intellectual property rights; 

4 (2) to ensure that the Director, in order to 

5 make the most efficient and effective use of training 

6 and technical assistance resources— 

7 (A) coordinates the international training 

8 and technical assistance activities of CBP and 

9 ICE as part of the Director’s coordination re10 sponsibilities under section 502; 

11 (B) gives priority to such activities in those 

12 countries where such programs can be carried 

13 out most effectively and with the greatest ben14 efit to protecting the intellectual property rights 

15 of United States right holders; 

16 (C) takes steps to minimize duplication, 

17 overlap, or inconsistency of international train18 ing and technical assistance efforts; and 

19 (D) coordinates such activities of the De20 partment of the Treasury with international 

21 training and technical assistance activities 

22 against counterfeiting and piracy carried out by 

23 other agencies, and enhances the participation 

24 of Department of the Treasury personnel in 


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1 interagency training and technical assistance 

2 activities in this field. 

3 Subtitle D—New Legal Tools for 

4 Border Enforcement 

5 SEC. 531. EXPANDED PROHIBITIONS ON IMPORTATION OR 

6 EXPORTATION OF COUNTERFEIT OR PIRAT7 ED GOODS. 

8 Section 526 of the Tariff Act of 1930 (19 U.S.C. 

9 1526) is amended— 

10 (1) in the section heading, by inserting ‘‘OR

11 PROTECTED BY COPYRIGHT’’ after ‘‘TRADE12 MARK’’; 

13 (2) in subsection (e), by inserting ‘‘or exported 

14 from the United States’’ after ‘‘imported into the 

15 United States’’; 

16 (3) in subsection (f), by striking paragraph (1) 

17 and inserting the following: 

18 ‘‘(1) Any person who engages in, directs, assists 

19 financially or otherwise, or aids and abets the impor20 tation or exportation of merchandise that is seized 

21 under subsection (e) of this section, or under regula22 tions issued pursuant to section 603(c) of title 17, 

23 United States Code, shall be subject to a civil fine.’’; 

24 and 

25 (4) in subsection (f)— 


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1 (A) by redesignating paragraph (4) as 

2 paragraph (5); and 

3 (B) by inserting after paragraph (3) the 

4 following: 

5 ‘‘(4) When the seizure giving rise to the civil fine is 

6 made under circumstances indicating that the importation 

7 or exportation was for the purpose of sale or public dis8 tribution of the good seized, the maximum fine amounts 

9 set forth in paragraphs (2) and (3) shall be tripled.’’. 

10 SEC. 532. DECLARATIONS REGARDING COUNTERFEIT AND 

11 INFRINGING MERCHANDISE. 

12 (a) DECLARATIONS.—Section 485(a) of the Tariff 

13 Act of 1930 (19 U.S.C. 1485(a)), is amended— 

14 (1) in paragraph (1), by striking ‘‘Whether’’ 

15 and inserting ‘‘whether’’; 

16 (2) in paragraph (2), by striking ‘‘That’’ and 

17 inserting ‘‘that’’; 

18 (3) in paragraph (3)— 

19 (A) by striking ‘‘That’’ and inserting 

20 ‘‘that’’; and 

21 (B) by striking ‘‘and’’ after the semicolon; 

22 (4) in paragraph (4)— 

23 (A) by striking ‘‘That’’ and inserting 

24 ‘‘that’’; and 


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1 (B) by striking the period and inserting a 

2 semicolon; and 

3 (5) by adding at the end the following: 

4 ‘‘(5) that the merchandise being imported does 

5 not bear a mark that is counterfeit as that term is 

6 defined in section 45 of the of July 5, 1946 (com7 monly referred to as the ‘Trademark Act of 1946’; 

8 15 U.S.C. 1127); 

9 ‘‘(6) that the merchandise is not an infringing 

10 copy or phonorecord or one whose making would 

11 have constituted an infringement of copyright if title 

12 17, United States Code, had applied; and 

13 ‘‘(7) that the merchandise does not violate— 

14 ‘‘(A) does not violate an exclusion order of 

15 the United States International Trade Commis16 sion under section 337(d) by reason of any of 

17 subparagraphs (B) through (E) of subsection 

18 (a)(1) of section 337; or 

19 ‘‘(B) infringe any other intellectual prop20 erty right not covered by subparagraph (A) or 

21 by paragraph (5) or (6).’’. 

22 (b) REGULATIONS.—The Secretary of the Treasury 

23 shall issue regulations requiring that the declarations re24 quired by paragraphs (5), (6), and (7) of section 485(a) 

25 of the Tariff Act of 1930 be made by all persons arriving 


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1 in the United States with respect to articles carried on 

2 their person or contained in their baggage. 

3 Subtitle E—Regulatory Authority 

4 SEC. 541. REGULATORY AUTHORITY. 

5 The Secretary may issue such regulations as are nec6 essary to carry out this title. 

7 TITLE VI—MISCELLANEOUS 

8 SEC. 601. APPLICATION TO CANADA AND MEXICO. 

9 Pursuant to article 1902 of the North American Free 

10 Trade Agreement and section 408 of the North American 

11 Free Trade Agreement Implementation Act (19 U.S.C. 

12 3438), this Act and the amendments made by this Act 

13 shall apply with respect to goods from Canada and Mexico. 

Æ 


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