II

104TH CONGRESS

1ST SESSION S. 756

To expand United States exports of goods and services by requiring the

development of objective criteria to achieve market access in foreign

countries, to provide the President with reciprocal trade authority, and

for other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 3 (legislative day, MAY 1), 1995

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

referred to the Committee on Finance

A BILL

To expand United States exports of goods and services by

requiring the development of objective criteria to achieve

market access in foreign countries, to provide the President with reciprocal trade authority, 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.

4 This Act may be cited as the ‘‘Open Markets and

5 Fair Trade Act of 1995’’.
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1 SEC. 2. REPORTS ON MARKET ACCESS.

2 (a) ANNUAL REPORTS.—Not later than 90 days after

3 the date of the enactment of this Act, and annually there4 after, the Secretary shall submit to the Congress a report

5 with respect to those countries selected by the Secretary

6 in which goods or services produced or originating in the

7 United States, that would otherwise be competitive in

8 those countries, do not have market access. Each report

9 shall contain the following with respect to each such

10 country:

11 (1) ASSESSMENT OF POTENTIAL MARKET AC12 CESS.—An assessment of the opportunities that

13 would, but for the lack of market access, be available

14 in the market in that country, for goods and services

15 produced or originating in the United States in

16 those sectors selected by the Secretary. In making

17 such assessment, the Secretary shall consider the

18 competitive position of such goods and services in

19 similarly developed markets in other countries. Such

20 assessment shall specify the time periods within

21 which such market access opportunities should rea22 sonably be expected to be obtained.

23 (2) CRITERIA FOR MEASURING MARKET AC24 CESS.—Objective criteria for measuring the extent to

25 which those market access opportunities described in

26 paragraph (1) have been obtained. The development
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1 of such objective criteria may include the use of in2 terim objective criteria to measure results on a peri3 odic basis, as appropriate.

4 (3) COMPLIANCE WITH TRADE AGREEMENTS.—

5 An assessment of whether, and to what extent, the

6 country concerned has materially complied with—

7 (A) agreements and understandings

8 reached between the United States and that

9 country pursuant to section 3, and

10 (B) existing trade agreements between the

11 United States and that country.

12 Such assessment shall include specific information

13 on the extent to which United States suppliers have

14 achieved additional access to the market in the coun15 try concerned and the extent to which that country

16 has complied with other commitments under such

17 agreements and understandings.

18 (b) SELECTION OF COUNTRIES AND SECTORS.—

19 (1) IN GENERAL.—In selecting countries and

20 sectors that are to be the subject of a report under

21 subsection (a), the Secretary shall give priority to—

22 (A) any country with which the United

23 States has a trade deficit if access to the mar24 kets in that country is likely to have significant
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1 potential to increase exports of United States

2 goods and services; and

3 (B) any country, and sectors therein, in

4 which access to the markets will result in sig5 nificant employment benefits for producers of

6 United States goods and services.

7 The Secretary shall also give priority to sectors

8 which represent critical technologies, including those

9 identified by the National Critical Technologies

10 Panel under section 603 of the National Science and

11 Technology Policy, Organization, and Priorities Act

12 of 1976 (42 U.S.C. 6683).

13 (2) FIRST REPORT.—The first report submitted

14 under subsection (a) shall include those countries

15 with which the United States has a substantial por16 tion of its trade deficit.

17 (3) TRADE SURPLUS COUNTRIES.—The Sec18 retary may include in reports after the first report

19 such countries as the Secretary considers appro20 priate with which the United States has a trade sur21 plus but which are otherwise described in subsection

22 (a) and paragraph (1) of this subsection.

23 (c) OTHER SECTORS.—The Secretary shall include

24 an assessment under subsection (a) of any country or sec25 tor for which the Trade Representative requests such as-
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1 sessment be made. In preparing any such request, the

2 Trade Representative shall give priority to those barriers

3 identified in the reports required by section 181(b) of the

4 Trade Act of 1974 (19 U.S.C. 2241(b)).

5 (d) INFORMATION ON ACCESS BY FOREIGN SUPPLI6 ERS.—The Secretary shall consult with the governments

7 of foreign countries concerning access to the markets of

8 any other country of goods and services produced or origi9 nating in those countries. At the request of the govern10 ment of any such country so consulted, the Secretary may

11 include in the reports required by subsection (a) informa12 tion, with respect to that country, on such access.

13 SEC. 3. NEGOTIATIONS TO ACHIEVE MARKET ACCESS.

14 (a) NEGOTIATING AUTHORITY.—The President is au15 thorized to enter into agreements or other understandings

16 with the government of any country for the purpose of

17 obtaining the market access opportunities described in the

18 reports of the Secretary under section 2.

19 (b) DETERMINATION OF PRIORITY OF NEGOTIA20 TIONS.—Upon the submission by the Secretary of each re21 port under section 2, the Trade Representative shall deter22 mine—

23 (1) for which countries and sectors identified in

24 the report the Trade Representative will pursue ne25 gotiations, during the 6-month period following sub-
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1 mission of the report, for the purpose of concluding

2 agreements or other understandings described in

3 subsection (a), and the timeframe for pursuing nego4 tiations on any other country or sector identified in

5 the report; and

6 (2) for which countries and sectors identified in

7 any previous report of the Secretary under section 2

8 the Trade Representative will pursue negotiations,

9 during the 6-month period described in paragraph

10 (1), in cases in which—

11 (A) negotiations were not previously pur12 sued by the Trade Representative, or

13 (B) negotiations that were pursued by the

14 Trade Representative did not result in the con15 clusion of an agreement or understanding de16 scribed in subsection (a) during the preceding

17 6-month period, but are expected to result in

18 such an agreement or understanding during the

19 6-month period described in paragraph (1).

20 For purposes of this Act, negotiations by the Trade Rep21 resentative with respect to a particular sector shall be for

22 a period of not more than 12 months.

23 (c) SEMIANNUAL REPORTS.—At the end of the 6-

24 month period beginning on the date on which the Sec25 retary’s first report is submitted under section 2(a), and
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1 every 6 months thereafter, the Trade Representative shall

2 submit to the Congress a report containing the following:

3 (1) REPORT WHERE NEGOTIATIONS PURSUED

4 IN PREVIOUS 6-MONTH PERIOD.—With respect to

5 each country and sector on which negotiations de6 scribed in subsection (b) were pursued during that

7 6-month period—

8 (A) a determination of whether such nego9 tiations have resulted in the conclusion of an

10 agreement or understanding intended to obtain

11 the market access opportunities described in the

12 most recent applicable report of the Secretary,

13 and if not—

14 (i) whether such negotiations are con15 tinuing because they are expected to result

16 in such an agreement or understanding

17 during the succeeding 6-month period; or

18 (ii) whether such negotiations have

19 terminated;

20 (B) in the case of a positive determination

21 made under subparagraph (A)(i) in the preced22 ing report submitted under this subsection, a

23 determination of whether the continuing nego24 tiations have resulted in the conclusion of an
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1 agreement or understanding described in sub2 paragraph (A) during that 6-month period.

3 (2) REPORT WHERE NEGOTIATIONS NOT PUR4 SUED.—With respect to each country and sector on

5 which negotiations described in subsection (b) were

6 not pursued during that 6-month period, a deter7 mination of when such negotiations will be pursued.

8 SEC. 4. MONITORING OF AGREEMENTS AND UNDERSTAND9 INGS.

10 (a) IN GENERAL.—For the purpose of making the

11 assessments required by section 2(a)(3), the Secretary

12 shall monitor the compliance with each agreement or un13 derstanding reached between the United States and any

14 country pursuant to section 3, and with each existing

15 trade agreement between the United States and any coun16 try that is the subject of a report under section 2(a). In

17 making each such assessment, the Secretary shall de18 scribe—

19 (1) the extent to which market access for the

20 country and sectors covered by the agreement or un21 derstanding has been achieved; and

22 (2) the bilateral trade relationship with that

23 country in that sector.

24 In the case of agreements or understandings reached pur25 suant to section 3, the description under paragraph (1)
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1 shall be done on the basis of the objective criteria set forth

2 in the applicable report under section 2(a)(2).

3 (b) TREATMENT OF AGREEMENTS AND UNDER4 STANDINGS.—Any agreement or understanding reached

5 pursuant to negotiations conducted under this Act, and

6 each existing trade agreement between the United States

7 and a country that is the subject of a report under section

8 2(a), shall be considered to be a trade agreement for pur9 poses of section 301 of the Trade Act of 1974.

10 SEC. 5. TRIGGERING OF SECTION 301 ACTIONS.

11 (a) FAILURE TO CONCLUDE AGREEMENTS.—In any

12 case in which the Trade Representative determines under

13 section 3(c)(1) (A)(ii) or (B) that negotiations have not

14 resulted in the conclusion of an agreement or understand15 ing described in section 3(a), each restriction on, or bar16 rier or impediment to, access to the markets of the country

17 concerned that was the subject of such negotiations shall,

18 for purposes of title III of the Trade Act of 1974, be con19 sidered to be an act, policy, or practice determined under

20 section 304 of that Act to be an act, policy, or practice

21 that is unreasonable and discriminatory and burdens or

22 restricts United States commerce. The Trade Representa23 tive shall determine what action to take under section

24 301(b) of that Act in response to such act, policy, or prac25 tice.
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1 (b) NONCOMPLIANCE WITH AGREEMENTS OR UN2 DERSTANDINGS.—In any case in which the Secretary de3 termines, in a report submitted under section 2(a), that

4 a foreign country is not in material compliance with—

5 (1) any agreement or understanding concluded

6 pursuant to negotiations conducted under section 3,

7 or

8 (2) any existing trade agreement between the

9 United States and that country,

10 the Trade Representative shall determine what action to

11 take under section 301(a) of the Trade Act of 1974. For

12 purposes of section 301 of that Act, a determination of

13 noncompliance described in the preceding sentence shall

14 be treated as a determination made under section 304 of

15 that Act.

16 SEC. 6. EXPEDITED PROCEDURES FOR CERTAIN PRESI17 DENTIAL ACTIONS.

18 (a) AUTHORITY FOR RECIPROCAL ACTIONS.—In any

19 case in which—

20 (1) section 5 applies,

21 (2) the President determines that reciprocal ac22 tion should be taken by the United States in re23 sponse to—
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1 (A) a restriction, barrier, or impediment

2 referred to in section 5(a) with respect to access

3 to the market of a country, or

4 (B) noncompliance with an agreement, un5 derstanding, or trade agreement referred to in

6 section 5(b),

7 as the case may be,

8 (3) changes in existing law or new statutory au9 thority is necessary for such reciprocal action to be

10 taken, and

11 (4) the President, within 30 days (excluding

12 any day described in section 154(b) of the Trade Act

13 of 1974) after—

14 (A) the determination of the Trade Rep15 resentative under section 3(c)(1)(A)(ii) or (B),

16 or

17 (B) the determination of the Secretary in

18 the applicable report under section 2(a),

19 as the case may be, submits to the Congress a draft

20 of implementing legislation with respect to the

21 changes or authority described in paragraph (3),

22 then subsection (c) applies.

23 (b) DEFINITIONS.—For purposes of this section—

24 (1) the term ‘‘reciprocal action’’ means action

25 that is taken in direct response to a restriction on,
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1 or barrier or impediment to, access to the market in

2 another country and is comparable or of equivalent

3 effect to such restriction, barrier, or impediment;

4 and

5 (2) the term ‘‘implementing legislation’’ means

6 a bill of either House of Congress which is intro7 duced as provided in subsection (c) and which con8 tains provisions necessary to make the changes or

9 provide the authority described in subsection (a)(3).

10 (c) PROCEDURES FOR IMPLEMENTING LEGISLA11 TION.—On the day on which implementing legislation is

12 submitted to the House of Representatives and the Senate

13 under subsection (a), the implementing legislation shall be

14 introduced and referred as provided in section 151(c)(1)

15 of the Trade Act of 1974 for implementing bills under

16 such section. The provisions of subsections (d), (e), (f),

17 and (g) of section 151 of such Act shall apply to imple18 menting legislation to the same extent as such subsections

19 apply to implementing bills.

20 (d) RULES OF HOUSE OF REPRESENTATIVES AND

21 SENATE.—This section is enacted by the Congress—

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

23 the House of Representatives and the Senate, re24 spectively, and as such is deemed a part of the rules

25 of each House, respectively, and such procedures su-
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1 persede other rules only to the extent that they are

2 inconsistent with such other rules; and

3 (2) with the full recognition of the constitu4 tional right of either House to change the rules (so

5 far as relating to the procedures of that House) at

6 any time, in the same manner, and to the same ex7 tent as any other rule of that House.

8 SEC. 7. URUGUAY ROUND AGREEMENTS NOT AFFECTED.

9 Nothing in this Act shall be construed to violate any

10 provision of the agreements approved by the Congress in

11 section 101(a)(1) of the Uruguay Round Agreements Act

12 (19 U.S.C. 3511(a)(1)).

13 SEC. 8. DEFINITIONS.

14 As used in this Act:

15 (1) EXISTING TRADE AGREEMENT BETWEEN

16 THE UNITED STATES AND A COUNTRY.—An ‘‘exist17 ing trade agreement’’ between the United States and

18 another country means any trade agreement or un19 derstanding that was entered into between the Unit20 ed States and that country before the date of the en21 actment of this Act and is in effect on such date.

22 Such term includes, but is not limited to—

23 (A) with respect to Japan—

24 (i) the Arrangement Between the Gov25 ernment of Japan and the Government of
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1 the United States of America Concerning

2 Trade in Semiconductor Products, signed

3 in 1986;

4 (ii) the Arrangement Between the

5 Government of Japan and the Government

6 of the United States of America Concern7 ing Trade in Semiconductor Products,

8 signed in 1991;

9 (iii) the United States-Japan Wood

10 Products Agreement, signed on June 5,

11 1990;

12 (iv) Measures Related to Japanese

13 Public Sector Procurements of Computer

14 Products and Services, signed on January

15 10, 1992;

16 (v) the Tokyo Declaration on the

17 U.S.-Japan Global Partnership, signed on

18 January 9, 1992; and

19 (vi) the Cellular Telephone and Third20 Party Radio Agreement, signed in 1989;

21 (B) with respect to the European Union—

22 (i) the Agreement Concerning the Ap23 plication of the GATT Agreement on

24 Trade in Civil Aircraft Between the Euro25 pean Economic Community and the Gov-
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1 ernment of the United States of America

2 on trade in large civil aircraft, with an3 nexes, entered into force on July 17, 1992;

4 (ii) the Agreement Concerning Pro5 curement Between the United States and

6 the European Union, signed April 15,

7 1994; and

8 (iii) the Memorandum of Understand9 ing (MOU) on Procurement Between the

10 United States and the European Union,

11 signed May 25, 1993; and

12 (C) with respect to the People’s Republic

13 of China—

14 (i) the Memorandum of Understand15 ing (MOU) on the Protection of Intellec16 tual Property Rights Between the United

17 States and the People’s Republic of China,

18 signed January 17, 1992;

19 (ii) the Memorandum of Understand20 ing (MOU) on Market Access Between the

21 United States and the People’s Republic of

22 China, signed October 10, 1992;

23 (iii) the Bilateral Textile Agreement

24 Between the United States and the Peo-
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1 ple’s Republic of China, signed January

2 17, 1994; and

3 (iv) an exchange of letters with an at4 tached action plan between the United

5 States and the People’s Republic of China,

6 signed February 26, 1995, relating to in7 tellectual property rights.

8 (2) SECRETARY.—The term ‘‘Secretary’’ means

9 the Secretary of Commerce.

10 (3) TRADE REPRESENTATIVE.—The term

11 ‘‘Trade Representative’’ means the United States

12 Trade Representative.

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