II 

110TH CONGRESS 

1ST SESSION S. 364 

To strengthen United States trade laws and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 23, 2007 

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. Prevention of circumvention. 

Sec. 202. Export price and constructed export price. 

Sec. 203. Nonmarket economy methodology. 

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

Sec. 205. Clarification of determination of material injury. 

Sec. 206. Revocation of nonmarket economy country status. 

TITLE III—EXPANSION OF APPLICABILITY OF COUNTERVAILING 

DUTIES 

Sec. 301. Application of countervailing duties to nonmarket economies and 

strengthening application of the law. 

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

under title VII of the Tariff Act of 1930. 

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

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

TITLE IV—LIMITATION ON PRESIDENTIAL DISCRETION IN 

ADDRESSING MARKET DISRUPTION 

Sec. 401. Action to address market disruption. 

TITLE V—MISCELLANEOUS 

Sec. 501. Application to Canada and Mexico. 


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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. 

14 (3) Successful operation of the WTO dispute 

15 settlement system was critical to congressional ap16 proval of the Uruguay Round Agreements and is 

17 critical to continued support by the United States 

18 for the WTO. In particular, it is imperative that dis19 pute settlement panels and the Appellate Body— 

20 (A) operate with fairness and in an impar21 tial manner; 

22 (B) strictly observe the terms of reference 

23 and any applicable standard of review set forth 

24 in the Uruguay Round Agreements; and 


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

2 the rights, of WTO members under the Uru3 guay Round Agreements in violation of Articles 

4 3.2 and 19.2 of the Dispute Settlement Under5 standing. 

6 (4) An increasing number of reports by dispute 

7 settlement panels and the Appellate Body have 

8 raised serious concerns within the Congress about 

9 the ability of the WTO dispute settlement system to 

10 operate in accordance with paragraph (3). 

11 (5) In particular, several reports of dispute set12 tlement panels and the Appellate Body have added 

13 to the obligations and diminished the rights of WTO 

14 members, particularly under the Agreement on Im15 plementation of Article VI of the General Agreement 

16 on Tariffs and Trade 1994, the Agreement on Sub17 sidies and Countervailing Measures, and the Agree18 ment on Safeguards. 

19 (6) In order to come into compliance with re20 ports of dispute settlement panels and the Appellate 

21 Body that have been adopted by the Dispute Settle22 ment Body, the Congress may need to amend or re23 peal statutes of the United States. In such cases, the 

24 Congress must have a high degree of confidence that 

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


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1 (7) The Congress needs impartial, objective, 

2 and juridical advice to determine the appropriate re3 sponse to reports of dispute settlement panels and 

4 the Appellate Body. 

5 (8) The United States remains committed to 

6 the multilateral, rules-based trading system. 

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

8 provide for the establishment of the Congressional Advi9 sory Commission on WTO Dispute Settlement to provide 

10 objective and impartial advice to the Congress on the oper11 ation of the dispute settlement system of the World Trade 

12 Organization. 

13 SEC. 102. DEFINITIONS. 

14 In this title: 

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

16 finding’’ means— 

17 (A) in a proceeding of a dispute settlement 

18 panel or the Appellate Body that is initiated 

19 against the United States, a finding by the 

20 panel or the Appellate Body that any law, regu21 lation, practice, or interpretation of the United 

22 States, or any State, is inconsistent with the 

23 obligations of the United States under a Uru24 guay Round Agreement (or nullifies or impairs 


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1 benefits accruing to a WTO member under such 

2 an Agreement); or 

3 (B) in a proceeding of a panel or the Ap4 pellate Body in which the United States is a 

5 complaining party, any finding by the panel or 

6 the Appellate Body that a measure of the party 

7 complained against is not inconsistent with that 

8 party’s obligations under a Uruguay Round 

9 Agreement (or does not nullify or impair bene10 fits accruing to the United States under such 

11 an Agreement). 

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

13 Body’’ means the Appellate Body established by the 

14 Dispute Settlement Body pursuant to Article 17.1 of 

15 the Dispute Settlement Understanding. 

16 (3) APPROPRIATE CONGRESSIONAL COMMIT17 TEES.—The term ‘‘appropriate congressional com18 mittees’’ means the Committee on Finance of the 

19 Senate and the Committee on Ways and Means of 

20 the House of Representatives. 

21 (4) DISPUTE SETTLEMENT BODY.—The term 

22 ‘‘Dispute Settlement Body’’ means the Dispute Set23 tlement Body established pursuant to the Dispute 

24 Settlement Understanding. 


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1 (5) DISPUTE SETTLEMENT PANEL; PANEL.— 

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

3 mean a panel established pursuant to Article 6 of 

4 the Dispute Settlement Understanding. 

5 (6) DISPUTE SETTLEMENT UNDERSTANDING.— 

6 The term ‘‘Dispute Settlement Understanding’’ 

7 means the Understanding on Rules and Procedures 

8 Governing the Settlement of Disputes referred to in 

9 section 101(d)(16) of the Uruguay Round Agree10 ments Act (19 U.S.C. 3511(d)(16)). 

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

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

13 Dispute Settlement Understanding. 

14 (8) TRADE REPRESENTATIVE.—The term 

15 ‘‘Trade Representative’’ means the United States 

16 Trade Representative. 

17 (9) UNITED STATES PERSON.—The term 

18 ‘‘United States person’’ means— 

19 (A) a United States citizen or an alien ad20 mitted for permanent residence into the United 

21 States; and 

22 (B) a corporation, partnership, labor orga23 nization, or other legal entity organized under 

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


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1 the District of Columbia, or any commonwealth, 

2 territory, or possession of the United States. 

3 (10) URUGUAY ROUND AGREEMENT.—The term 

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

5 Agreements described in section 101(d) of the Uru6 guay Round Agreements Act. 

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

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

9 mean the organization established pursuant to the 

10 WTO Agreement. 

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

12 Agreement’’ means the Agreement Establishing the 

13 World Trade Organization entered into on April 15, 

14 1994. 

15 (13) WTO MEMBER.—The term ‘‘WTO mem16 ber’’ has the meaning given that term in section 

17 2(10) of the Uruguay Round Agreements Act (19 

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

19 Subtitle B—Participation in WTO 

20 Panel Proceedings 

21 SEC. 111. PARTICIPATION IN WTO PANEL PROCEEDINGS. 

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

23 proceedings before a dispute settlement panel or the Ap24 pellate Body of the WTO, seeks— 


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1 (1) to enforce United States rights under a 

2 multilateral trade agreement, or 

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

4 United States Government that is challenged, 

5 a United States person that is supportive of the United 

6 States Government’s position before the panel or Appellate 

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

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

9 shall be permitted to participate in consultations and 

10 panel or Appellate Body proceedings. The Trade Rep11 resentative shall issue regulations, consistent with sub12 sections (b) and (c), ensuring full and effective participa13 tion by any such person. 

14 (b) ACCESS TO INFORMATION.—The Trade Rep15 resentative shall make available to persons described in 

16 subsection (a) all information presented to or otherwise 

17 obtained by the Trade Representative in connection with 

18 the WTO dispute settlement proceeding in which such per19 sons are participating. The Trade Representative shall 

20 promulgate regulations to protect information designated 

21 as confidential in the proceeding. 

22 (c) PARTICIPATION IN PANEL PROCESS.—Upon re23 quest from a person described in subsection (a), the Trade 

24 Representative shall— 


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1 (1) consult in advance with such person regard2 ing the content of written submissions from the 

3 United States to the panel or Appellate Body con4 cerned or to the other member countries involved; 

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

6 person’s appropriate representative as an advisory 

7 member of the delegation in sessions of the dispute 

8 settlement panel or Appellate Body; 

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

10 bring special knowledge to the proceeding, to appear 

11 before the panel or Appellate Body, directly or 

12 through counsel, under the supervision of responsible 

13 United States Government officials; and 

14 (4) in proceedings involving confidential infor15 mation, allow the appearance of such person only 

16 through counsel as a member of the special delega17 tion. 

18 Subtitle C—Congressional Advisory 

19 Commission on WTO Dispute 

20 Settlement 

21 SEC. 121. ESTABLISHMENT OF COMMISSION. 

22 (a) ESTABLISHMENT.—There is established a com23 mission to be known as the Congressional Advisory Com24 mission on WTO Dispute Settlement (in this subtitle re25 ferred to as the ‘‘Commission’’). 


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1 (b) MEMBERSHIP.— 

2 (1) COMPOSITION.—The Commission shall be 

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

4 or former judges of the Federal judicial circuits and 

5 shall be appointed by the Speaker of the House of 

6 Representatives and the President pro tempore of 

7 the Senate after considering the recommendations of 

8 the Chairman and ranking member of each of the 

9 appropriate congressional committees. Commis10 sioners shall be chosen without regard to political af11 filiation and solely on the basis of each Commis12 sioner’s fitness to perform the duties of a Commis13 sioner. 

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

15 members of the Commission shall be made not later 

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

17 Act. 

18 (c) PERIOD OF APPOINTMENT; VACANCIES.— 

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

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

21 that of the members first appointed, 3 members 

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

23 (2) VACANCIES.— 

24 (A) IN GENERAL.—Any vacancy on the 

25 Commission shall not affect its powers, but 


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1 shall be filled in the same manner in which the 

2 original appointment was made and shall be 

3 subject to the same conditions as the original 

4 appointment. 

5 (B) UNEXPIRED TERM.—An individual 

6 chosen to fill a vacancy shall be appointed for 

7 the unexpired term of the member replaced. 

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

9 the date on which all members of the Commission have 

10 been appointed, the Commission shall hold its first meet11 ing. 

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

13 Commission shall meet at the call of the Chairperson. 

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

15 Commission shall constitute a quorum, but a lesser num16 ber of members may hold hearings. 

17 (g) CHAIRPERSON AND VICE CHAIRPERSON.—The 

18 Commission shall select a Chairperson and Vice Chair19 person from among its members. 

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

21 allowed travel expenses, including per diem in lieu of sub22 sistence at rates authorized for employees of agencies 

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

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


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1 business in the performance of services for the Commis2 sion. 

3 SEC. 122. DUTIES OF THE COMMISSION. 

4 (a) ADVISING THE CONGRESS ON THE OPERATION

5 OF THE WTO DISPUTE SETTLEMENT SYSTEM.— 

6 (1) IN GENERAL.—The Commission shall re7 view— 

8 (A) all adverse findings that are— 

9 (i) adopted by the Dispute Settlement 

10 Body; and 

11 (ii) the result of a proceeding initiated 

12 against the United States by a WTO mem13 ber; and 

14 (B) upon the request of either of the ap15 propriate congressional committees— 

16 (i) any adverse finding of a dispute 

17 settlement panel or the Appellate Body— 

18 (I) that is adopted by the Dis19 pute Settlement Body; and 

20 (II) in which the United States is 

21 a complaining party; or 

22 (ii) any other finding that is contained 

23 in a report of a dispute settlement panel or 

24 the Appellate Body that is adopted by the 

25 Dispute Settlement Body. 


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

2 advise the Congress in connection with each adverse 

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

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

5 (A) whether the dispute settlement panel 

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

7 (i) exceeded its authority or its terms 

8 of reference; 

9 (ii) added to the obligations, or dimin10 ished the rights, of the United States 

11 under the Uruguay Round Agreement that 

12 is the subject of the finding; 

13 (iii) acted arbitrarily or capriciously, 

14 engaged in misconduct, or demonstrably 

15 departed from the procedures specified for 

16 panels and the Appellate Body in the ap17 plicable Uruguay Round Agreement; or 

18 (iv) deviated from the applicable 

19 standard of review, including in anti20 dumping, countervailing duty, and other 

21 trade remedy cases, the standard of review 

22 set forth in Article 17.6 of the Agreement 

23 on Implementation of Article VI of the 

24 General Agreement on Tariffs and Trade 

25 1994; 


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1 (B) whether the finding is consistent with 

2 the original understanding by the United States 

3 of the Uruguay Round Agreement that is the 

4 subject of the finding as explained in the state5 ment of administrative action approved under 

6 section 101(a) of the Uruguay Round Agree7 ments Act (19 U.S.C. 3511(a)); and 

8 (C) what actions, if any, the United States 

9 should take in response to the finding, includ10 ing any proposals to amend, rescind, or other11 wise modify a law, regulation, practice, or inter12 pretation of the United States. 

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

14 under paragraph (2), the Commission shall not ac15 cord deference to findings of law made by the dis16 pute settlement panel or the Appellate Body, as the 

17 case may be. 

18 (b) DETERMINATION; REPORT.— 

19 (1) DETERMINATION.— 

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

21 days after the date on which the Commission 

22 receives notice of a report or request under sec23 tion 123(b), the Commission shall make a writ24 ten determination with respect to the matters 

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1 cluding a full analysis of the basis for its deter2 mination. A vote by a majority of the members 

3 of the Commission shall constitute a determina4 tion of the Commission, although the members 

5 need not agree on the basis for their vote. 

6 (B) DISSENTING OR CONCURRING OPIN7 IONS.—Any member of the Commission who 

8 disagrees with a determination of the Commis9 sion or who concurs in such a determination on 

10 a basis different from that of the Commission 

11 or other members of the Commission, may write 

12 an opinion expressing such disagreement or 

13 concurrence, as the case may be. 

14 (2) REPORT.—The Commission shall promptly 

15 report the determinations described in paragraph 

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

17 The Commission shall include with the report any 

18 opinions written under paragraph (1)(B) with re19 spect to the determination. 

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

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

22 opinions included with the report, shall be made available 

23 to the public. 


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1 SEC. 123. POWERS OF THE COMMISSION. 

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

3 hearing to solicit views concerning an adverse finding or 

4 other finding described in section 122(a)(1), if the Com5 mission considers such hearing to be necessary to carry 

6 out the purpose of this subtitle. The Commission shall pro7 vide reasonable notice of a hearing held pursuant to this 

8 subsection. 

9 (b) INFORMATION FROM INTERESTED PARTIES AND

10 FEDERAL AGENCIES.— 

11 (1) NOTICE TO COMMISSION.— 

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

13 Trade Representative shall advise the Commis14 sion not later than 5 business days after the 

15 date the Dispute Settlement Body adopts an 

16 adverse finding that is to be reviewed by the 

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

18 (B) UNDER SECTION 122(a)(1)(B).—Ei19 ther of the appropriate congressional commit20 tees may make and notify the Commission of a 

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

22 than 1 year after the Dispute Settlement Body 

23 adopts the adverse finding or other finding that 

24 is the subject of the request. 

25 (C) FINDINGS ADOPTED PRIOR TO AP26 POINTMENT OF COMMISSION.—With respect to 


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1 any adverse finding or other finding to which 

2 section 122(a)(1)(B) applies and that is adopt3 ed before the date on which the first members 

4 of the Commission are appointed under section 

5 121(b)(2), either of the appropriate congres6 sional committees may make and notify the 

7 Commission of a request under section 

8 122(a)(1)(B) with respect to the adverse find9 ing or other finding not later than 1 year after 

10 the date on which the first members of the 

11 Commission are appointed under section 

12 121(b)(2). 

13 (2) SUBMISSIONS AND REQUESTS FOR INFOR14 MATION.— 

15 (A) IN GENERAL.—The Commission shall 

16 promptly publish in the Federal Register notice 

17 of— 

18 (i) the notice received under para19 graph (1) from the Trade Representative 

20 or either of the appropriate congressional 

21 committees; and 

22 (ii) an opportunity for interested par23 ties to submit written comments to the 

24 Commission. 


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1 (B) COMMENTS AVAILABLE TO PUBLIC.— 

2 The Commission shall make comments sub3 mitted pursuant to subparagraph (A)(ii) avail4 able to the public. 

5 (C) INFORMATION FROM FEDERAL AGEN6 CIES AND DEPARTMENTS.—The Commission 

7 may secure directly from any Federal depart8 ment or agency such information as the Com9 mission considers necessary to carry out the 

10 provisions of this subtitle. Upon the request of 

11 the chairperson of the Commission, the head of 

12 such department or agency shall furnish the in13 formation requested to the Commission in a 

14 timely manner. 

15 (3) ACCESS TO PANEL AND APPELLATE BODY

16 DOCUMENTS.— 

17 (A) IN GENERAL.—The Trade Representa18 tive shall make available to the Commission all 

19 submissions and relevant documents relating to 

20 an adverse finding described in section 

21 122(a)(1), including any information contained 

22 in such submissions and relevant documents 

23 identified by the provider of the information as 

24 proprietary information or information des25 ignated as confidential by a foreign government. 


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1 (B) PUBLIC ACCESS.—Any document that 

2 the Trade Representative submits to the Com3 mission shall be available to the public, except 

4 information that is identified as proprietary or 

5 confidential or the disclosure of which would 

6 otherwise violate the rules of the WTO. 

7 (c) ASSISTANCE FROM FEDERAL AGENCIES; CON8 FIDENTIALITY.— 

9 (1) ADMINISTRATIVE ASSISTANCE.—Any agency 

10 or department of the United States that is des11 ignated by the President shall provide administrative 

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

13 services to the Commission to assist the Commission 

14 with the performance of the Commission’s functions. 

15 (2) CONFIDENTIALITY.— 

16 (A) DOCUMENTS AND INFORMATION FROM

17 AGENCIES.—The Commission shall protect from 

18 disclosure any document or information sub19 mitted to it by a department or agency of the 

20 United States that the agency or department 

21 requests be kept confidential. 

22 (B) DISCLOSURE OF DOCUMENTS AND IN23 FORMATION OF COMMISSION.—The Commission 

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1 poses of section 552 of title 5, United States 

2 Code. 

3 Subtitle D—Congressional Ap4 proval of Regulatory Action Re5 lating to Adverse WTO Deci6 sions 

7 SEC. 131. CONGRESSIONAL APPROVAL OF REGULATORY 

8 ACTIONS RELATING TO ADVERSE WTO DECI9 SIONS. 

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

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

12 (1) in paragraph (1)— 

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

14 ‘‘and’’; 

15 (B) by redesignating subparagraph (F) as 

16 subparagraph (H); and 

17 (C) by inserting after subparagraph (E) 

18 the following new subparagraphs: 

19 ‘‘(F) the appropriate congressional com20 mittees have received the report on the deter21 minations of the Congressional Advisory Com22 mission on WTO Dispute Settlement under sec23 tion 122(b)(2) of the Strengthening America’s 

24 Trade Laws Act with respect to the relevant 


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1 dispute settlement panel or Appellate Body de2 cision; 

3 ‘‘(G) a joint resolution, described in para4 graph (2), approving the proposed modification 

5 or final rule is enacted into law after the appro6 priate congressional committees receive the re7 port on the determinations of the Congressional 

8 Advisory Commission on WTO Dispute Settle9 ment under section 122(b)(2) of the Strength10 ening America’s Trade Laws Act; and’’; and 

11 (2) by amending paragraph (2) to read as fol12 lows: 

13 ‘‘(2) JOINT RESOLUTION TO APPROVE MODI14 FICATION IN AGENCY REGULATION OR PRACTICE.— 

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

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

17 resolution of the 2 Houses of the Congress, the 

18 matter after the resolving clause of which is as 

19 follows: ‘That the Congress approves the modi20 fications to the regulation or practice of the 

21 United States proposed in a report submitted to 

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

23 section 123(g)(1) of the Uruguay Round Agree24 ments Act (19 U.S.C. 3533(g)(1) (D) and (F)) 

25 on lllllll, relating to 


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1 llllll.’, with the first blank space 

2 being filled with the date on which the report 

3 is submitted to the Congress and the second 

4 blank space being filled with the specific modi5 fication proposed to the regulation or practice 

6 of the United States. 

7 ‘‘(B) PROCEDURAL PROVISIONS.—The pro8 cedural provisions of subsections (d) through (i) 

9 of section 206 of the Strengthening America’s 

10 Trade Laws Act shall apply to a joint resolution 

11 described in subparagraph (A).’’. 

12 (b) EFFECTIVE DATE.— 

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

14 this section shall take effect on the date of the en15 actment of this Act. 

16 (2) MODIFICATIONS MADE BETWEEN JANUARY

17 1, 2007 AND THE DATE OF THE ENACTMENT OF THIS

18 ACT.— 

19 (A) IN GENERAL.—Modifications to any 

20 regulation or practice of a department or agen21 cy of the United States made pursuant to the 

22 provisions of section 123(g) of the Uruguay 

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

24 that became effective on or after January 1, 

25 2007, and before the date of the enactment of 


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1 this Act, shall be suspended upon the enact2 ment of this Act and have no effect. 

3 (B) APPROVAL OF MODIFICATIONS.—On or 

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

5 Trade Representative and the head of the de6 partment or agency within whose jurisdiction 

7 the modification described in subparagraph (A) 

8 falls may seek approval of such modification 

9 pursuant to the procedures set out in section 

10 123(g)(1) of the Uruguay Round Agreements 

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

12 subsection (a). 

13 Subtitle E—Clarification of Rights 

14 and Obligations Through Nego15 tiations 

16 SEC. 141. CLARIFICATION OF RIGHTS AND OBLIGATIONS IN 

17 THE WTO THROUGH NEGOTIATIONS. 

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

19 United States shall work within the World Trade Organi20 zation to obtain clarification of the Uruguay Round Agree21 ment to which the adverse finding applies to conform the 

22 Agreement to the understanding of the United States re23 garding the rights and obligations of the United States 

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1 pretation of the United States in response to the adverse 

2 finding if— 

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

4 Settlement Body that the adverse finding has cre5 ated obligations never agreed to by the United 

6 States; 

7 (2) either of the appropriate congressional com8 mittees by resolution finds that the adverse finding 

9 has created obligations never agreed to by the 

10 United States; or 

11 (3) the Congressional Advisory Commission on 

12 WTO Dispute Resolution makes a determination 

13 under section 122(a)(2)(A)(ii) that the adverse find14 ing has created obligations never agreed to by the 

15 United States. 

16 (b) APPLICABILITY.— 

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

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

19 (2) EFFECT ON MODIFICATION OF REGULA20 TION, PRACTICE, OR INTERPRETATION ADOPTED BE21 FORE ENACTMENT OF THIS ACT.— 

22 (A) IN GENERAL.—Any agency that modi23 fied a regulation, practice, or interpretation in 

24 response to an adverse finding between January 

25 1, 2002 and the date of the enactment of this 


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1 Act shall provide notice that the modification 

2 shall cease to have force and effect on the date 

3 that is 30 days after the date of the enactment 

4 of this Act and such modification shall cease to 

5 have force and effect on such date. 

6 (B) APPLICABILITY IN TRADE REMEDY

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

8 the modification described in subparagraph (A) 

9 shall apply with respect to— 

10 (i) investigations initiated— 

11 (I) on the basis of petitions filed 

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

13 783(a) of the Tariff Act of 1930 (19 

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

15 1677n(a)) or section 202(a), 221, 

16 251(a), or 292(a) of the Trade Act of 

17 1974 (19 U.S.C. 2252(a), 2271, 

18 2341(a), and 2401a(a)) after the date 

19 on which the modification ceases to 

20 have force and effect under subpara21 graph (A); 

22 (II) by the administering author23 ity under section 702(a) or 732(a) of 

24 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. PREVENTION OF CIRCUMVENTION. 

10 Section 781(c) of the Tariff Act of 1930 (19 U.S.C. 

11 1677j(c)) is amended by adding at the end the following 

12 new paragraph: 

13 ‘‘(3) SPECIAL RULE.—The administering au14 thority may exclude altered merchandise from the 

15 class or kind of merchandise subject to an investiga16 tion and order or finding described in paragraph (1), 

17 if such exclusion is not inconsistent with the affirm18 ative determination of the Commission on which the 

19 order or finding is based.’’. 

20 SEC. 202. EXPORT PRICE AND CONSTRUCTED EXPORT 

21 PRICE. 

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

23 U.S.C. 1677a(c)(2)(A)) is amended by inserting ‘‘(includ24 ing antidumping and countervailing duties imposed under 

25 this title)’’ after ‘‘duties’’. 


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1 SEC. 203. NONMARKET ECONOMY METHODOLOGY. 

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

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

4 ‘‘(4) VALUATION OF FACTORS OF PRODUC5 TION.— 

6 ‘‘(A) IN GENERAL.—The administering au7 thority, in valuing factors of production under 

8 paragraph (1), shall utilize, to the extent pos9 sible, the prices or costs of factors of production 

10 in one or more market economy countries that 

11 are— 

12 ‘‘(i) at a level of economic develop13 ment comparable to that of the nonmarket 

14 economy country; and 

15 ‘‘(ii) significant producers of com16 parable merchandise. 

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

18 the values, calculations, and market economy 

19 countries used under this subparagraph. 

20 ‘‘(B) VALUING MATERIALS USED IN PRO21 DUCTION.—In determining the value of mate22 rials used in production under subparagraph 

23 (A), the following applies: 

24 ‘‘(i) The administering authority may 

25 use the value of inputs that are purchased 

26 from market economy suppliers and are 


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1 not suspected of being dumped or sub2 sidized, only for the quantity of such pur3 chases. 

4 ‘‘(ii) All materials purchased or other5 wise obtained from nonmarket economy 

6 countries shall be valued using surrogate 

7 values under subparagraph (A). 

8 ‘‘(iii) A purchased material shall be 

9 viewed as suspected of being subsidized if 

10 there are any affirmative findings by the 

11 United States or another WTO member of 

12 export subsidy programs in the supplying 

13 country. 

14 ‘‘(iv) A purchased material shall be 

15 viewed as suspected of being dumped if 

16 there are any affirmative findings by the 

17 United States or other WTO member of 

18 dumping in the general category of mer19 chandise, or if information supplied by the 

20 petitioner or otherwise of record suggests 

21 significant underpricing to the purchaser 

22 in the nonmarket economy country. 

23 ‘‘(v) Surrogate values for materials 

24 from a market economy country shall be 

25 disregarded as not reflective of prices in 


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1 that surrogate market only if prices in that 

2 market are viewed as aberrational, such as 

3 a case in which prices undersell or exceed 

4 any reported price in that surrogate mar5 ket by a large amount. 

6 ‘‘(vi) There shall be a presumption 

7 that the administering authority will in8 clude all market prices from a surrogate 

9 market. Prices that are high or low shall 

10 be excluded only when it is demonstrated 

11 that the prices are not reflective of prices 

12 in the surrogate country for the relevant 

13 category of merchandise. 

14 ‘‘(vii) If amounts pertaining to the 

15 cost of production of imports into a surro16 gate country from market economy sup17 pliers are used for valuing the materials 

18 used, such amounts shall be valued on the 

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

20 plus duties paid, to provide a proxy for 

21 prices in the surrogate country competing 

22 with locally produced goods. Such values 

23 shall not be reduced by the import duties. 

24 ‘‘(C) VALUING LABOR.— 


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1 ‘‘(i) The administering authority may 

2 use an average of wage rates for market 

3 economies, but shall ensure that labor 

4 rates used fully reflect all labor costs, in5 cluding benefits, health care, and pension 

6 costs. 

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

8 employed by a nonmarket economy country 

9 producer or used by a nonmarket economy 

10 country producer in the overall business, 

11 with allocations to other merchandise pro12 duced or sold by that producer that is not 

13 subject merchandise. 

14 ‘‘(iii) Labor shall reflect the average 

15 labor for all other producers in the non16 market economy country that are pro17 ducing the particular merchandise subject 

18 to investigation or review, and shall not be 

19 limited to operations used for export. 

20 ‘‘(D) VALUING FACTORY OVERHEAD, GEN21 ERAL SELLING AND ADMINISTRATIVE EX22 PENSES, AND PROFIT.— 

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

24 authority shall use the best information 

25 available with respect to likely values of 


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1 factory overhead, general selling and ad2 ministrative expenses, and profit from a 

3 surrogate country. If the values determined 

4 under subparagraphs (B) and (C) for ma5 terials used and labor consumed result in 

6 amounts that are demonstrably larger or 

7 smaller than the amounts used in deter8 mining surrogate ratios from financial or 

9 other reports from a surrogate country, ad10 justments shall be made to the ratios to re11 flect fully the level of such costs and prof12 its in the surrogate country on a per item 

13 produced basis. 

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

15 of this subparagraph, the term ‘ratios’ 

16 means— 

17 ‘‘(I) the ratio of factory overhead 

18 to labor, materials, and energy; 

19 ‘‘(II) the ratio of general selling 

20 and administrative costs to factory 

21 overhead, labor, materials, and en22 ergy; and 

23 ‘‘(III) the ratio of profit to gen24 eral selling and administrative costs, 


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1 factory overhead, labor, materials, and 

2 energy. 

3 ‘‘(E) USE OF CONFIDENTIAL INFORMA4 TION FROM A FOREIGN PRODUCER IN A SURRO5 GATE COUNTRY.—The administering authority 

6 shall generally use publicly available informa7 tion to value factors of production, except that, 

8 in a case in which any foreign producer in the 

9 surrogate country that is willing to provide in10 formation to the administering authority on fac11 tors of production to produce the same class of 

12 merchandise and such information is subject to 

13 verification, the administering authority shall 

14 accept and use such information. The relation15 ship of the foreign producer providing the infor16 mation to a party to the proceeding shall not be 

17 a basis for disqualification.’’. 

18 SEC. 204. DETERMINATIONS ON THE BASIS OF FACTS 

19 AVAILABLE. 

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

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

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

23 the deadline for submission of the information 

24 or in the form and manner required, and in 

25 conformity with prior administering authority 


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1 determinations in the proceeding and final judi2 cial decisions in the proceeding, subject to sub3 sections (c)(1) and (e) of section 782,’’. 

4 SEC. 205. CLARIFICATION OF DETERMINATION OF MATE5 RIAL INJURY. 

6 Section 771(7) of the Tariff Act of 1930 (19 U.S.C. 

7 1677(7)) is amended by adding at the end the following 

8 new subparagraph: 

9 ‘‘(J) CLARIFICATION OF DETERMINATION

10 OF MATERIAL INJURY.—In determining if there 

11 is material injury, or threat of material injury, 

12 by reason of imports of the subject merchan13 dise, the Commission shall make the Commis14 sion’s determination without regard to— 

15 ‘‘(i) whether other imports are likely 

16 to replace subject merchandise, or 

17 ‘‘(ii) the effect of a potential order on 

18 the domestic industry.’’. 

19 SEC. 206. REVOCATION OF NONMARKET ECONOMY COUN20 TRY STATUS. 

21 (a) AMENDMENT OF DEFINITION OF ‘‘NONMARKET

22 ECONOMY COUNTRY’’.—Section 771(18)(C)(i) of the Tar23 iff Act of 1930 (19 U.S.C. 1677(18)(C)(i)) is amended 

24 to read as follows: 


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1 ‘‘(i) Any determination that a foreign 

2 country is a nonmarket economy country 

3 shall remain in effect until— 

4 ‘‘(I) the administering authority 

5 makes a final determination to revoke 

6 the determination under subparagraph 

7 (A); and 

8 ‘‘(II) a joint resolution is enacted 

9 into law pursuant to section 206 of 

10 the Strengthening America’s Trade 

11 Laws Act.’’. 

12 (b) NOTIFICATION BY PRESIDENT; JOINT RESOLU13 TION.—Whenever the administering authority makes a 

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

15 Tariff Act of 1930 (19 U.S.C. 1677(18)(C)(i)(I)) to re16 voke the determination that a foreign country is a non17 market economy country— 

18 (1) the President shall notify the Committee on 

19 Finance of the Senate and the Committee on Ways 

20 and Means of the House of Representatives of that 

21 determination not later than 10 days after the publi22 cation of the administering authority’s final deter23 mination in the Federal Register; 


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1 (2) the President shall transmit to the Congress 

2 a request that a joint resolution be introduced pur3 suant to this section; and 

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

5 Congress pursuant to this section. 

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

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

8 the 2 Houses of the Congress, the matter after the resolv9 ing clause of which is as follows: ‘‘That the Congress ap10 proves the change of nonmarket economy status with re11 spect to the products of lllll transmitted by the 

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

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

14 with respect to which a determination has been made 

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

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

17 filled with the date on which the President notified the 

18 Committee on Finance of the Senate and the Committee 

19 on Ways and Means of the House of Representatives 

20 under subsection (b)(1). 

21 (d) INTRODUCTION.—A joint resolution shall be in22 troduced (by request) in the House by the majority leader 

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

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

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


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

2 Senate designated by the majority leader of the Senate. 

3 (e) AMENDMENTS PROHIBITED.—No amendment to 

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

5 of Representatives or the Senate, and no motion to sus6 pend the application of this subsection shall be in order 

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

8 for the presiding officer to entertain a request to suspend 

9 the application of this subsection by unanimous consent. 

10 (f) PERIOD FOR COMMITTEE AND FLOOR CONSIDER11 ATION.— 

12 (1) IN GENERAL.—If the committee or commit13 tees of either House to which a joint resolution has 

14 been referred have not reported the joint resolution 

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

16 such committee or committees shall be automatically 

17 discharged from further consideration of the joint 

18 resolution and it shall be placed on the appropriate 

19 calendar. A vote on final passage of the joint resolu20 tion shall be taken in each House on or before the 

21 close of the 15th day after the joint resolution is re22 ported by the committee or committees of that 

23 House to which it was referred, or after such com24 mittee or committees have been discharged from fur25 ther consideration of the joint resolution. If, prior to 


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1 the passage by one House of a joint resolution of 

2 that House, that House receives the same joint reso3 lution from the other House, then— 

4 (A) the procedure in that House shall be 

5 the same as if no joint resolution had been re6 ceived from the other House, but 

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

8 the joint resolution of the other House. 

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

10 paragraph (1), in computing a number of days in ei11 ther House, there shall be excluded any day on 

12 which that House is not in session. 

13 (g) FLOOR CONSIDERATION IN THE HOUSE.— 

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

15 House of Representatives to proceed to the consider16 ation of a joint resolution shall be highly privileged 

17 and not debatable. An amendment to the motion 

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

19 to reconsider the vote by which the motion is agreed 

20 to or disagreed to. 

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

22 Representatives on a joint resolution shall be limited 

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

24 equally between those favoring and those opposing 

25 the joint resolution. A motion further to limit debate 


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

2 move to recommit a joint resolution or to move to 

3 reconsider the vote by which a joint resolution is 

4 agreed to or disagreed to. 

5 (3) MOTIONS TO POSTPONE.—Motions to post6 pone, made in the House of Representatives with re7 spect to the consideration of a joint resolution, and 

8 motions to proceed to the consideration of other 

9 business, shall be decided without debate. 

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

11 of the Chair relating to the application of the Rules 

12 of the House of Representatives to the procedure re13 lating to a joint resolution shall be decided without 

14 debate. 

15 (5) OTHER RULES.—Except to the extent spe16 cifically provided in the preceding provisions of this 

17 subsection, consideration of a joint resolution shall 

18 be governed by the Rules of the House of Represent19 atives applicable to other bills and resolutions in 

20 similar circumstances. 

21 (h) FLOOR CONSIDERATION IN THE SENATE.— 

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

23 Senate to proceed to the consideration of a joint res24 olution shall be privileged and not debatable. An 

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


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

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

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

4 on a joint resolution, and all debatable motions and 

5 appeals in connection therewith, shall be limited to 

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

7 divided between, and controlled by, the majority 

8 leader and the minority leader or their designees. 

9 (3) CONTROL OF DEBATE.—Debate in the Sen10 ate on any debatable motion or appeal in connection 

11 with a joint resolution shall be limited to not more 

12 than 1 hour, to be equally divided between, and con13 trolled by, the mover and the manager of the joint 

14 resolution, except that in the event the manager of 

15 the joint resolution is in favor of any such motion 

16 or appeal, the time in opposition thereto shall be 

17 controlled by the minority leader or his designee. 

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

19 under their control on the passage of a joint resolu20 tion, allot additional time to any Senator during the 

21 consideration of any debatable motion or appeal. 

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

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

24 recommit a joint resolution is not in order. 


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1 (i) RULES OF HOUSE OF REPRESENTATIVES AND

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

3 Congress— 

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

5 the House of Representatives and the Senate, re6 spectively, and as such subsections (c) through (h) 

7 are deemed a part of the rules of each House, re8 spectively, but applicable only with respect to the 

9 procedure to be followed in that House in the case 

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

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

12 only to the extent that they are inconsistent there13 with; and 

14 (2) with full recognition of the constitutional 

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

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

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

18 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 ECONOMIES AND STRENGTH6 ENING APPLICATION OF THE LAW. 

7 (a) IN GENERAL.—Section 701(a)(1) of the Tariff 

8 Act of 1930 (19 U.S.C. 1671(a)(1)) is amended by insert9 ing ‘‘(including a nonmarket economy country)’’ after 

10 ‘‘country’’ each place it appears. 

11 (b) DEFINITION OF COUNTERVAILABLE SUBSIDY.— 

12 Section 771(5)(E) of the Tariff Act of 1930 (19 U.S.C. 

13 1677(5)(E)) is amended by adding at the end the fol14 lowing: ‘‘For purposes of clauses (i) through (iv), if there 

15 is a reasonable indication that government intervention 

16 has distorted prices or other economic indicators in the 

17 country that is subject to the investigation or review, or 

18 if data regarding such prices or economic indicators are 

19 otherwise unavailable, then the administering authority 

20 shall measure the benefit conferred to the recipient by ref21 erence to data regarding relevant prices or other economic 

22 indicators from a country other than the country that is 

23 subject to the investigation or review. If there is a reason24 able indication that prices or other economic indicators 

25 within a political subdivision, dependent territory, or posVerDate Aug 31 2005 20:52 Jan 24, 2007 Jkt 059200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\S364.IS S364

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1 session of a foreign country are distorted, or data are not 

2 available, then the administering authority shall measure 

3 the benefit conferred to the recipient in that political sub4 division, dependent territory, or possession by reference to 

5 data from the most comparable area or region in which 

6 relevant prices or other economic indicators are not dis7 torted, regardless of whether such area or region is in the 

8 same country.’’. 

9 (c) EFFECTIVE DATE.—The amendments made by 

10 subsections (a) and (b) apply to petitions filed under sec11 tion 702 of the Tariff Act of 1930 (19 U.S.C. 1671a) on 

12 or after the date of the enactment of this Act. 

13 (d) ANTIDUMPING PROVISIONS NOT AFFECTED.— 

14 The amendments made by subsections (a) and (b) shall 

15 not affect the status of a country as a nonmarket economy 

16 country for the purposes of any matter relating to anti17 dumping duties under subtitle B of title VII of the Tariff 

18 Act of 1930 (19 U.S.C. 1673 et seq.). 

19 SEC. 302. TREATMENT OF EXCHANGE-RATE MANIPULATION 

20 AS COUNTERVAILABLE SUBSIDY UNDER 

21 TITLE VII OF THE TARIFF ACT OF 1930. 

22 (a) AMENDMENTS TO DEFINITION OF

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

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


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

2 The term’’; 

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

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

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

6 ‘‘(ii) The term ‘provides a financial con7 tribution’ includes engaging in exchange-rate 

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

9 (b) DEFINITION OF EXCHANGE-RATE MANIPULA10 TION.—Section 771 of the Tariff Act of 1930 (19 U.S.C. 

11 1677) is amended by inserting after paragraph (5B) the 

12 following new paragraph: 

13 ‘‘(5C) DEFINITION OF EXCHANGE-RATE MANIP14 ULATION.— 

15 ‘‘(A) IN GENERAL.—For purposes of para16 graphs (5) and (5A), the term ‘exchange-rate 

17 manipulation’ means protracted large-scale 

18 intervention by a country to undervalue the 

19 country’s currency in the exchange market that 

20 prevents effective balance-of-payments adjust21 ment or that gains an unfair competitive advan22 tage over any other country. 

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

24 exchange-rate manipulation is occurring and a 


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1 benefit thereby conferred, the administering au2 thority in each case— 

3 ‘‘(i) shall consider the exporting coun4 try’s— 

5 ‘‘(I) bilateral balance-of-trade 

6 surplus or deficit with the United 

7 States; 

8 ‘‘(II) balance-of-trade surplus or 

9 deficit with its other trading partners 

10 individually and in the aggregate; 

11 ‘‘(III) foreign direct investment 

12 in its territory; 

13 ‘‘(IV) currency-specific and ag14 gregate amounts of foreign currency 

15 reserves; and 

16 ‘‘(V) mechanisms employed to 

17 maintain its currency at a fixed ex18 change rate relative to another cur19 rency and, particularly, the nature, 

20 duration, monetary expenditures, and 

21 potential monetary expenditures of 

22 those mechanisms; 

23 ‘‘(ii) may consider such other eco24 nomic factors as are relevant; and 


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1 ‘‘(iii) shall measure the trade sur2 pluses or deficits described in subclauses 

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

4 the trade data reported by the United 

5 States and the other trading partners of 

6 the exporting country, unless such trade 

7 data are not available or are demonstrably 

8 inaccurate, in which case the exporting 

9 country’s trade data may be relied upon if 

10 shown to be sufficiently accurate and 

11 trustworthy. 

12 ‘‘(C) TYPE OF ECONOMY.—A country 

13 found to be engaged in exchange-rate manipula14 tion may have— 

15 ‘‘(i) a market economy; 

16 ‘‘(ii) a nonmarket economy; or 

17 ‘‘(iii) a combination thereof.’’. 

18 SEC. 303. AFFIRMATION OF NEGOTIATING OBJECTIVE ON 

19 BORDER TAXES. 

20 The Congress reaffirms the negotiating objective re21 lating to border taxes set forth in section 2102(b)(15) of 

22 the Bipartisan Trade Promotion Authority Act of 2002 

23 (19 U.S.C. 3802(b)(15)). 


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1 SEC. 304. PRESIDENTIAL CERTIFICATION; APPLICATION OF 

2 COUNTERVAILING DUTY LAW. 

3 (a) CERTIFICATION BY THE PRESIDENT.— 

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

5 to the Congress by January 1, 2009 that, under the 

6 Agreement on Subsidies and Countervailing Meas7 ures or subsequent agreement of the World Trade 

8 Organization, the full or partial exemption, remis9 sion, or deferral specifically related to exports of di10 rect taxes is treated in the same manner as the full 

11 or partial exemption, remission, or deferral specifi12 cally related to exports of indirect taxes. 

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

14 President does not make the certification to Con15 gress required by paragraph (1) by January 1, 

16 2009, the Secretary of Commerce, in any investiga17 tion conducted under subtitle A of title VII of the 

18 Tariff Act of 1930 (19 U.S.C. 1671 et seq.) to de19 termine whether a countervailable subsidy is being 

20 provided with respect to a product of a country that 

21 provides the full or partial exemption, remission, or 

22 deferral specifically related to exports of indirect 

23 taxes on products exported from that country, shall 

24 treat as a countervailable subsidy the full or partial 

25 exemption, remission, or deferral specifically related 

26 to exports of indirect taxes paid on that product. 


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1 (b) DEFINITIONS.—In this section: 

2 (1) AGREEMENT ON SUBSIDIES AND COUNTER3 VAILING MEASURES.—The term ‘‘Agreement on Sub4 sidies and Countervailing Measures’’ means the 

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

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

7 3511(d)(12)). 

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

9 means taxes on wages, profits, interest, rents, royal10 ties, and all other forms of income, and taxes on the 

11 ownership of real property. 

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

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

14 charges that are levied on imports. 

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

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

17 franchise, stamp, transfer, inventory, and equipment 

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

19 taxes and import charges. 

20 (5) FULL OR PARTIAL EXEMPTION, REMISSION, 

21 OR DEFERRAL SPECIFICALLY RELATED TO EXPORTS

22 OF DIRECT TAXES.—The term ‘‘full or partial ex23 emption, remission, or deferral specifically related to 

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

25 paid to the United States Government by a business 


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1 concern and are fully or partially exempted, remit2 ted, or deferred by the Government by reason of the 

3 export by that business concern of its products from 

4 the United States. 

5 (6) FULL OR PARTIAL EXEMPTION, REMISSION, 

6 OR DEFERRAL SPECIFICALLY RELATED TO EXPORTS

7 OF INDIRECT TAXES.—The term ‘‘full or partial ex8 emption, remission, or deferral specifically related to 

9 exports of indirect taxes’’ means indirect taxes that 

10 are paid to the government of a country by a busi11 ness concern and are fully or partially exempted, re12 mitted, or deferred by that government by reason of 

13 the export by that business concern of its products 

14 from that country. 

15 (c) EFFECTIVE PERIOD.— 

16 (1) IN GENERAL.—Subsection (a) shall cease to 

17 be effective on the date on which the President 

18 makes a certification described in subsection (a). 

19 (2) TERMINATION OF COUNTERVAILING DUTY

20 ORDERS.—Any countervailing duty order that is 

21 issued pursuant to an investigation conducted under 

22 subsection (a) and is still in effect on the date de23 scribed in paragraph (1) shall terminate on such 

24 date. 


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1 TITLE IV—LIMITATION ON PRES2 IDENTIAL DISCRETION IN AD3 DRESSING MARKET DISRUP4 TION 

5 SEC. 401. ACTION TO ADDRESS MARKET DISRUPTION. 

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

7 2451) is amended— 

8 (1) in subsection (a), by striking ‘‘to the extent 

9 and for such period’’ and all that follows to the end 

10 period and inserting ‘‘as recommended by the Inter11 national Trade Commission’’; 

12 (2) in subsection (e), by striking ‘‘agreed upon 

13 by either group’’ and all that follows to the end pe14 riod and inserting ‘‘shall be considered an affirma15 tive determination’’; 

16 (3) in subsection (f)— 

17 (A) by striking ‘‘ON PROPOSED REM18 EDIES’’ in the heading and inserting ‘‘FOR RE19 LIEF’’; 

20 (B) by striking ‘‘the Commission shall pro21 pose’’ and inserting ‘‘the Commission shall rec22 ommend’’; and 

23 (C) by striking ‘‘proposed action’’ and in24 serting ‘‘recommended action’’; 

25 (4) by striking subsection (h); 


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1 (5) in subsection (i)— 

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

3 paragraph (1), by striking ‘‘agreed upon by ei4 ther group’’ and all that follows to the end pe5 riod and inserting ‘‘shall be deemed an affirma6 tive determination’’; and 

7 (B) by striking paragraphs (3) and (4); 

8 (6) by striking subsections (j) and (k); 

9 (7) by amending paragraph (1) of subsection (l) 

10 to read as follows: ‘‘(1) The President’s implementa11 tion of the International Trade Commission remedy 

12 shall be published in the Federal Register.’’; 

13 (8) by amending subsection (m) to read as fol14 lows: 

15 ‘‘(m) EFFECTIVE DATE OF RELIEF.—Import relief 

16 under this section shall take effect on the date the Inter17 national Trade Commission’s recommendation is pub18 lished in the Federal Register, but not later than 15 days 

19 after the date of the Commission’s vote recommending the 

20 relief.’’; 

21 (9) by amending subsection (n) to read as fol22 lows: 

23 ‘‘(n) MODIFICATION OF RELIEF.—Any import relief 

24 that includes an increase in duty or the imposition of imVerDate Aug 31 2005 20:52 Jan 24, 2007 Jkt 059200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\S364.IS S364

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1 port restrictions shall be for a period not to exceed 3 

2 years.’’; and 

3 (10) by striking subsection (o). 

4 TITLE V—MISCELLANEOUS 

5 SEC. 501. APPLICATION TO CANADA AND MEXICO. 

6 Pursuant to article 1902 of the North American Free 

7 Trade Agreement and section 408 of the North American 

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

9 3438), this Act and the amendments made by this Act 

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

Æ 


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