I 

111TH CONGRESS 

1ST SESSION H. R. 496 

To amend United States trade laws to eliminate foreign barriers to exports 

of United States goods and services, to restore rights under trade remedy 

laws, to strengthen enforcement of United States intellectual property 

rights and health and safety laws at United States borders, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 14, 2009 

Mr. RANGEL (for himself, Mr. LEVIN, Mr. NEAL of Massachusetts, Ms. BERKLEY, Ms. SCHWARTZ, Mr. DAVIS of Alabama, Mr. VISCLOSKY, Mr. TIM

MURPHY of Pennsylvania, Mr. ALTMIRE, and Mr. SCHAUER) introduced 

the following bill; which was referred to the Committee on Ways and 

Means, and in addition to the Committees on Rules and Homeland Security, for a period to be subsequently determined by the Speaker, in each 

case for consideration of such provisions as fall within the jurisdiction of 

the committee concerned 

A BILL 

To amend United States trade laws to eliminate foreign 

barriers to exports of United States goods and services, 

to restore rights under trade remedy laws, to strengthen 

enforcement of United States intellectual property rights 

and health and safety laws at United States borders, 

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, 


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1 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. 

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

3 ‘‘Trade Enforcement Act of 2009’’. 

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

5 this Act is as follows: 

Sec. 1. Short title and table of contents. 

TITLE I—ELIMINATION OF FOREIGN BARRIERS TO EXPORTS OF 

U.S. GOODS AND SERVICES 

Sec. 101. Identification of trade expansion priorities. 

Sec. 102. Office of the Congressional Trade Enforcer. 

Sec. 103. Appointment of General Counsel of the U.S. Trade Representative. 

Sec. 104. Identification of countries that maintain unfair technical barriers to 

trade or unfair sanitary or phytosanitary measures. 

TITLE II—RESTORATION OF RIGHTS UNDER TRADE REMEDY 

LAWS 

Sec. 201. Application of countervailing duties to nonmarket economy countries 

and strengthening application of the law. 

Sec. 202. Treatment of individual business enterprises in nonmarket economy 

countries. 

Sec. 203. Revocation of nonmarket economy country status. 

Sec. 204. WTO Appellate Body rulings requiring offsets for non-dumped comparisons. 

Sec. 205. Role of WTO Appellate Body rulings in the WTO dispute settlement 

system. 

Sec. 206. Clarification regarding material injury by reason of imports of subject 

merchandise. 

Sec. 207. Standard for presidential action on ITC finding of market disruption. 

Sec. 208. Application of amendments to goods from Canada and Mexico. 

Sec. 209. Rule of construction. 

TITLE III—ENFORCEMENT OF HEALTH AND SAFETY LAWS AND 

INTELLECTUAL PROPERTY RIGHTS AT U.S. BORDERS 

Subtitle A—Import Safety 

Sec. 301. Definitions. 

Sec. 302. Obtaining data on goods destined for importation into the United 

States. 

Sec. 303. Interagency coordination. 

Sec. 304. Development of import safety program. 

Sec. 305. Information exchange process. 

Sec. 306. Training. 

Sec. 307. Sanctions on certain suppliers. 

Sec. 308. Report to Congress. 

Subtitle B—Strengthening Enforcement of Intellectual Property Rights at 

U.S. Borders 


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CHAPTER 1—COORDINATION OF ENFORCEMENT OF INTELLECTUAL

PROPERTY RIGHTS

Sec. 311. Definitions. 

Sec. 312. Director of Intellectual Property Rights Enforcement. 

Sec. 313. Strategic plan for the enforcement of intellectual property rights. 

Sec. 314. CBP and ICE coordinators. 

CHAPTER 2—REGULATORY AND POLICY IMPROVEMENTS AGAINST

COUNTERFEITING AND PIRACY

Sec. 321. In general. 

Sec. 322. Identification of certain unlawful goods. 

Sec. 323. Training in new technologies. 

Sec. 324. Disclosure of information and samples of shipments to intellectual 

property owners. 

Sec. 325. Improvements to recordation process. 

Sec. 326. Identification of low-risk shippers. 

Sec. 327. ‘‘Watch List’’ database. 

Sec. 328. Civil fines for importation of pirated or counterfeit goods. 

CHAPTER 3—TRAINING ENHANCEMENTS

Sec. 331. International training and technical assistance enhancements. 

CHAPTER 4—NEW LEGAL TOOLS FOR BORDER ENFORCEMENT

Sec. 341. Expanded prohibitions on importation or exportation of counterfeit or 

pirated goods. 

Sec. 342. Declarations regarding counterfeit and infringing merchandise. 

CHAPTER 5—REGULATORY AUTHORITY

Sec. 351. Regulatory authority. 

Subtitle C—Administrative Provisions 

Sec. 361. Definitions. 

Sec. 362. Advisory Committee on Import Safety and Intellectual Property Enforcement. 

Sec. 363. Staffing enhancements at CBP. 

Sec. 364. Staffing enhancements at ICE. 

Subtitle D—Authorization of Appropriations 

Sec. 371. Authorization of appropriations. 


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1 TITLE I—ELIMINATION OF FOR2 EIGN BARRIERS TO EXPORTS 

3 OF U.S. GOODS AND SERVICES 

4 SEC. 101. IDENTIFICATION OF TRADE EXPANSION PRIOR5 ITIES. 

6 (a) IDENTIFICATION OF TRADE EXPANSION PRIOR7 ITIES.—Section 310 of the Trade Act of 1974 is amended 

8 to read as follows: 

9 ‘‘SEC. 310. IDENTIFICATION OF TRADE EXPANSION PRIOR10 ITIES. 

11 ‘‘(a) IDENTIFICATION.— 

12 ‘‘(1) IDENTIFICATION AND REPORT.—Within 30 

13 days after the submission in each calendar year of 

14 the report required by section 181(b), the Trade 

15 Representative shall— 

16 ‘‘(A) review United States trade expansion 

17 priorities; 

18 ‘‘(B) identify priority foreign country prac19 tices the elimination of which is likely to have 

20 the most significant potential to increase 

21 United States exports, either directly or 

22 through the establishment of a beneficial prece23 dent; and 

24 ‘‘(C) submit to the Congressional Trade 

25 Enforcer, the Committee on Finance of the 


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1 Senate, and the Committee on Ways and Means 

2 of the House of Representatives and publish in 

3 the Federal Register a report on the priority 

4 foreign country practices so identified. 

5 ‘‘(2) FACTORS.—In identifying priority foreign 

6 country practices under paragraph (1), the Trade 

7 Representative shall take into account all relevant 

8 factors, including— 

9 ‘‘(A) the major barriers and trade dis10 torting practices described in the National 

11 Trade Estimate Report required under section 

12 181(b); 

13 ‘‘(B) the trade agreements to which a for14 eign country is a party and its compliance with 

15 those agreements; 

16 ‘‘(C) the medium- and long-term implica17 tions of foreign government procurement plans; 

18 and 

19 ‘‘(D) the international competitive position 

20 and export potential of United States products 

21 and services. 

22 ‘‘(3) CONTENTS OF REPORT.—The Trade Rep23 resentative may include in the report, if appro24 priate— 


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1 ‘‘(A) a description of foreign country prac2 tices that may in the future warrant identifica3 tion as priority foreign country practices; and 

4 ‘‘(B) a statement about other foreign coun5 try practices that were not identified because 

6 they are already being addressed by provisions 

7 of United States trade law, by existing bilateral 

8 trade agreements, or as part of trade negotia9 tions with other countries, and because progress 

10 is being made toward the elimination of such 

11 practices. 

12 ‘‘(b) INITIATION OF CONSULTATIONS.—By no later 

13 than the date that is 21 days after the date on which a 

14 report is submitted to the Congressional Trade Enforcer 

15 and the appropriate congressional committees under sub16 section (a)(1)(C), the Trade Representative should seek 

17 consultations with each foreign country identified in the 

18 report as engaging in priority foreign country practices for 

19 the purpose of reaching a satisfactory resolution of such 

20 priority practices. 

21 ‘‘(c) INITIATION OF INVESTIGATION.—If the Trade 

22 Representative seeks consultations under subsection (b) 

23 and a satisfactory resolution of the priority foreign coun24 try practices involved has not been reached within 90 days 

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1 priate congressional committees under subsection (a)(1), 

2 the Trade Representative shall initiate under section 

3 302(b)(1) an investigation under this chapter with respect 

4 to such priority foreign country practices. 

5 ‘‘(d) AGREEMENTS FOR THE ELIMINATION OF BAR6 RIERS.—In the consultations with a foreign country that 

7 the Trade Representative is required to request under sec8 tion 303(a) with respect to an investigation initiated by 

9 reason of subsection (c), the Trade Representative shall 

10 seek to negotiate an agreement that provides for the elimi11 nation of the practices that are the subject of the inves12 tigation as quickly as possible or, if elimination of the 

13 practices is not feasible, an agreement that provides for 

14 compensatory trade benefits. 

15 ‘‘(e) REPORTS.—The Trade Representative shall in16 clude in the semiannual report required by section 309(3) 

17 a report on the status of any investigations initiated pur18 suant to subsection (c) and, where appropriate, the extent 

19 to which such investigations have led to increased opportu20 nities for the export of products and services of the United 

21 States. 

22 ‘‘(f) DEFINITION.—For purposes of this section, the 

23 term ‘Congressional Trade Enforcer’ means the head of 

24 the Office of the Congressional Trade Enforcer established 


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1 under section 102 of the Trade Enforcement Act of 

2 2009.’’. 

3 (b) CONFORMING AMENDMENT.—The item relating 

4 to section 310 in the table of contents of the Trade Act 

5 of 1974 is amended to read as follows: 

‘‘Sec. 310. Identification of trade expansion priorities.’’. 

6 SEC. 102. OFFICE OF THE CONGRESSIONAL TRADE EN7 FORCER. 

8 (a) ESTABLISHMENT.—There is established in the 

9 legislative branch an Office of the Congressional Trade 

10 Enforcer (in this section referred to as the ‘‘Office’’). 

11 (b) CONGRESSIONAL TRADE ENFORCER.— 

12 (1) APPOINTMENT AND TERMS.—The head of 

13 the Office shall be a Congressional Trade Enforcer, 

14 who shall be appointed to a term of 2 years begin15 ning on the first day of each new Congress. Appoint16 ments in odd-numbered Congresses shall be made by 

17 the Speaker of the House of Representatives, in con18 sultation with the minority leader of the House of 

19 Representatives, the majority leader of the Senate, 

20 and the minority leader of the Senate, after consid21 ering recommendations received from the Committee 

22 on Ways and Means of the House of Representatives 

23 and the Committee on Finance of the Senate. Ap24 pointments in even-numbered Congresses shall be 

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1 sultation with the minority leader of the Senate, the 

2 Speaker of the House of Representatives, and the 

3 minority leader of the House of Representatives, 

4 after considering recommendations received from the 

5 Committee on Finance of the Senate and the Com6 mittee on Ways and Means of the House of Rep7 resentatives. The Congressional Trade Enforcer 

8 shall be appointed without regard to political affili9 ation and solely on the basis of fitness to perform 

10 the functions described in subsection (d). 

11 (2) CONTINUED SERVICE.—An individual may 

12 serve as the Congressional Trade Enforcer for more 

13 than one term, and the person making the appoint14 ment under paragraph (1) should look favorably 

15 upon reappointing the individual serving as the Con16 gressional Trade Enforcer. An individual serving as 

17 Congressional Trade Enforcer at the expiration of a 

18 term may continue to serve until a successor is ap19 pointed. The Congressional Trade Enforcer may be 

20 removed by either the House of Representatives or 

21 the Senate by resolution. 

22 (3) COMPENSATION.—The Congressional Trade 

23 Enforcer shall receive compensation at an annual 

24 rate of pay that is equal to the lower of— 


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1 (A) the highest annual rate of compensa2 tion of any officer of the Senate; or 

3 (B) the highest annual rate of compensa4 tion of any officer of the House of Representa5 tives. 

6 (c) PERSONNEL.—The Congressional Trade Enforcer 

7 shall appoint and fix the compensation of such personnel 

8 as may be necessary to carry out the functions described 

9 in subsection (d). All personnel of the Office shall be ap10 pointed without regard to political affiliation and solely on 

11 the basis of their fitness to perform their duties. The Con12 gressional Trade Enforcer may prescribe the duties and 

13 responsibilities of the personnel of the Office, and delegate 

14 to them authority to perform any of the duties, powers, 

15 and functions imposed on the Office. For purposes of pay 

16 (other than the pay of the Congressional Trade Enforcer) 

17 and employment benefits, rights, and privileges, all per18 sonnel of the Office shall be treated as if they were em19 ployees of the House of Representatives. 

20 (d) PURPOSE AND FUNCTIONS.— 

21 (1) PURPOSE.—The purpose of the Congres22 sional Trade Enforcer shall be to ensure compliance 

23 by trading partners of the United States with trade 

24 agreements to which the United States and such 

25 trading partners are parties. 


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1 (2) FUNCTIONS; ACTIONS BY USTR.— 

2 (A) IN GENERAL.—The Congressional 

3 Trade Enforcer shall have the authority to in4 vestigate foreign trade practices that are bar5 riers to United States exports and issue indict6 ments in cases where such practices violate any 

7 of the Uruguay Round Agreements or any bilat8 eral or regional trade agreement to which the 

9 United States is a party. 

10 (B) SUBMISSION OF INDICTMENTS.—The 

11 Congressional Trade Enforcer shall submit in12 dictments referred to in subparagraph (A) to 

13 the Committee on Ways and Means of the 

14 House of Representatives, the Committee on 

15 Finance of the Senate, and the United States 

16 Trade Representative. 

17 (C) ACTION PURSUANT TO INDICTMENT.— 

18 Within 30 days after receiving an indictment 

19 under subparagraph (B), the Trade Representa20 tive should commence dispute resolution proce21 dures in the appropriate forum against the 

22 country or countries that are the subject of the 

23 indictment unless— 

24 (i) before the date of filing, the for25 eign country or countries involved enter 


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1 into an agreement with the United States 

2 to eliminate the practice that is incon3 sistent with its international obligations; or 

4 (ii) in extraordinary cases, the filing 

5 of the case would cause serious harm to 

6 the national security of the United States. 

7 (D) REPORT.—If the Trade Representative 

8 does not commence dispute resolution proce9 dures under subparagraph (C) pursuant to an 

10 indictment under subparagraph (B), the Trade 

11 Representative shall, not later than 60 days 

12 after receiving the indictment, submit to the 

13 Committee on Ways and Means of the House of 

14 Representatives and the Committee on Finance 

15 of the Senate a report containing the reasons 

16 therefor and shall publish notice of the decision, 

17 together with a summary of such reasons, in 

18 the Federal Register. 

19 (3) VOTE BY CONGRESSIONAL COMMITTEES.— 

20 During the 60-day period after the Trade Represent21 ative submits a report under subparagraph (D), the 

22 Committee on Ways and Means of the House of 

23 Representatives and the Committee on Finance of 

24 the Senate may each vote to indicate the agreement 

25 or disagreement of the committee with the decision 


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1 of the Trade Representative not to commence dis2 pute resolution procedures. 

3 (4) DEFINITIONS.—In this subsection: 

4 (A) INDICTMENT.—The term ‘‘indictment’’ 

5 means a formal written analysis setting forth 

6 the legal explanation of the manner in which a 

7 foreign trade practice of a country or countries 

8 violates any of the Uruguay Round Agreements 

9 or any bilateral or regional trade agreement to 

10 which the United States is a party. 

11 (B) URUGUAY ROUND AGREEMENTS.—The 

12 term ‘‘Uruguay Round Agreements’’ means any 

13 of the agreements approved by the Congress 

14 under section 101(a)(1) of the Uruguay Round 

15 Agreements Act (19 U.S.C. 3511(a)(1)). 

16 (e) OFFICE OF MARKET ACCESS ASSISTANCE.— 

17 (1) ESTABLISHMENT.—There is established in 

18 the Office of the Congressional Trade Enforcer an 

19 Office of Market Access Assistance. 

20 (2) FUNCTIONS.—The Office of Market Access 

21 Assistance shall provide technical and legal assist22 ance and advice to eligible small businesses to enable 

23 such small businesses to prepare and file petitions 

24 (other than those which, in the opinion of the Office 


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1 of Market Access Assistance, are frivolous) under 

2 section 302 of the Trade Act of 1974. 

3 (3) DEFINITION.—In this subsection, the term 

4 ‘‘eligible small business’’ means any business con5 cern which, in the judgment of the Office of Market 

6 Access Assistance, due to its small size, has neither 

7 adequate internal resources nor financial ability to 

8 obtain qualified outside assistance in preparing and 

9 filing petitions and complaints under section 302 of 

10 the Trade Act of 1974. In determining whether a 

11 business concern is an ‘‘eligible small business,’’ the 

12 Office of Market Access Assistance may consult with 

13 the Administrator of the Small Business Administra14 tion and the heads of other appropriate Federal de15 partments and agencies. 

16 (f) RELATIONSHIP TO EXECUTIVE BRANCH.—The 

17 Congressional Trade Enforcer is authorized to secure in18 formation, data, estimates, and statistics directly from the 

19 various departments, agencies, and establishments of the 

20 executive branch of Government and the regulatory agen21 cies and commissions of the Government. All such depart22 ments, agencies, establishments, and regulatory agencies 

23 and commissions shall furnish the Congressional Trade 

24 Enforcer with any available material that the Congres25 sional Trade Enforcer determines to be necessary in the 


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1 performance of the functions of the Office. The Congres2 sional Trade Enforcer is also authorized, upon agreement 

3 with the head of any such department, agency, establish4 ment, or regulatory agency or commission, to use its serv5 ices, facilities, and personnel, with or without reimburse6 ment; and the head of each such department, agency, es7 tablishment, or regulatory agency or commission is au8 thorized to provide to the Office such services, facilities, 

9 and personnel. 

10 (g) RELATIONSHIP TO OTHER AGENCIES OF CON11 GRESS.—In carrying out the functions of the Office, and 

12 for the purpose of coordinating the operations of the Of13 fice with those of other congressional agencies with a view 

14 to using most effectively the information, services, and ca15 pabilities of all such agencies in carrying out the respon16 sibilities assigned to each, the Congressional Trade En17 forcer is authorized to obtain information, data, estimates, 

18 and statistics developed by the Government Accountability 

19 Office and the Library of Congress, and (upon agreement 

20 with them) to use their services, facilities, and personnel, 

21 with or without reimbursement. The Comptroller General 

22 and the Librarian of Congress are authorized to provide 

23 the Office with the information, data, estimates, and sta24 tistics, and the services, facilities, and personnel, referred 

25 to in the preceding sentence. 


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1 (h) AUTHORIZATIONS OF APPROPRIATIONS.—There 

2 are authorized to be appropriated to the Office such sums 

3 as may be necessary for each fiscal year to carry out this 

4 section. 

5 SEC. 103. APPOINTMENT OF GENERAL COUNSEL OF THE 

6 U.S. TRADE REPRESENTATIVE. 

7 (a) ESTABLISHMENT OF POSITION.—Section 

8 141(b)(2) of the Trade Act of 1974 (19 U.S.C. 

9 2171(b)(2)) is amended to read as follows: 

10 ‘‘(2) There shall be in the Office 3 Deputy United 

11 States Trade Representatives, 1 Chief Agriculture Nego12 tiator, and 1 General Counsel. The 3 Deputy United 

13 States Trade Representatives, the Chief Agriculture Nego14 tiator, and the General Counsel shall be appointed by the 

15 President, by and with the advice and consent of the Sen16 ate. As an exercise of the rulemaking of the Senate, any 

17 nomination of a Deputy United States Trade Representa18 tive, the Chief Agricultural Negotiator, or the General 

19 Counsel submitted to the Senate for its advice and con20 sent, and referred to a committee, shall be referred to the 

21 Committee on Finance. Each Deputy United States Trade 

22 Representative, the Chief Agricultural Negotiator, and the 

23 General Counsel shall hold office at the pleasure of the 

24 President and shall have the rank of Ambassador.’’. 


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1 (b) FUNCTIONS OF POSITION.—Section 141(c) of the 

2 Trade Act of 1974 (19 U.S.C. 2171(c)) is amended— 

3 (1) by aligning paragraph (5) with paragraph 

4 (4); and 

5 (2) by adding at the end the following new 

6 paragraph: 

7 ‘‘(6) The principal function of the General Counsel 

8 shall be to ensure that United States trading partners 

9 comply with trade agreements to which the United States 

10 and such trading partners are parties (including by inves11 tigating and prosecuting disputes before the World Trade 

12 Organization and pursuant to other trade agreements to 

13 which the United States is a party), to defend the United 

14 States in dispute settlement proceedings under such trade 

15 agreements, and otherwise to provide legal advice to the 

16 United States Trade Representative. The General Counsel 

17 shall perform such other functions as the United States 

18 Trade Representative may direct.’’. 

19 (c) COMPENSATION.—Section 5314 of title 5, United 

20 States Code, is amended by inserting after ‘‘Chief Agricul21 tural Negotiator’’ the following: 

22 ‘‘General Counsel.’’. 


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1 SEC. 104. IDENTIFICATION OF COUNTRIES THAT MAINTAIN 

2 UNFAIR TECHNICAL BARRIERS TO TRADE OR 

3 UNFAIR SANITARY OR PHYTOSANITARY 

4 MEASURES. 

5 (a) IDENTIFICATION REQUIRED.— 

6 (1) IN GENERAL.—Chapter 8 of title I of the 

7 Trade Act of 1974 is amended by adding at the end 

8 the following: 

9 ‘‘SEC. 183. IDENTIFICATION OF COUNTRIES THAT MAINTAIN 

10 UNFAIR TECHNICAL BARRIERS TO TRADE OR 

11 UNFAIR SANITARY OR PHYTOSANITARY 

12 MEASURES. 

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

14 30 days after the date on which the annual report is re15 quired to be submitted to Congressional committees under 

16 section 181(b), the United States Trade Representative 

17 (in this section referred to as the ‘Trade Representative’) 

18 shall identify— 

19 ‘‘(1) those foreign countries that maintain tech20 nical barriers to trade, or sanitary or phytosanitary 

21 measures, that deny fair and equitable market ac22 cess to United States products; and 

23 ‘‘(2) those foreign countries identified under 

24 paragraph (1) that are determined by the Trade 

25 Representative to be priority foreign countries. 

26 ‘‘(b) SPECIAL RULES FOR IDENTIFICATIONS.— 


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1 ‘‘(1) CRITERIA.—In identifying priority foreign 

2 countries under subsection (a)(2), the Trade Rep3 resentative shall identify only those foreign coun4 tries— 

5 ‘‘(A) that have the most onerous or egre6 gious acts, policies, or practices that deny fair 

7 and equitable market access to United States 

8 products; 

9 ‘‘(B) whose acts, policies, or practices de10 scribed in subparagraph (A) have the greatest 

11 adverse impact (actual or potential) on the rel12 evant United States products; and 

13 ‘‘(C) that are not— 

14 ‘‘(i) entering into good faith negotia15 tions, or 

16 ‘‘(ii) making significant progress in 

17 bilateral or multilateral negotiations, 

18 to provide fair and equitable market access to 

19 United States products. 

20 ‘‘(2) CONSULTATION AND CONSIDERATION RE21 QUIREMENTS.—In identifying priority foreign coun22 tries under subsection (a)(2), the Trade Representa23 tive shall— 

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1 istrator of the Food and Drug Administration, 

2 and the heads of other appropriate Federal 

3 agencies; and 

4 ‘‘(B) take into account information pro5 vided by such other sources as may be available 

6 to the Trade Representative and such informa7 tion as may be submitted to the Trade Rep8 resentative by interested persons, including in9 formation contained in reports submitted under 

10 section 181(b) and petitions submitted under 

11 section 302. 

12 ‘‘(3) CONSIDERATION OF HISTORICAL FAC13 TORS.—In identifying foreign countries under para14 graphs (1) and (2) of subsection (a), the Trade Rep15 resentative shall take into account— 

16 ‘‘(A) the history of unfair technical bar17 riers to trade and unfair sanitary or 

18 phytosanitary measures of the foreign country, 

19 including any previous identification under sub20 section (a)(2); and 

21 ‘‘(B) the history of efforts of the United 

22 States, and the response of the foreign country, 

23 to remove unfair technical barriers to trade, or 

24 sanitary or phytosanitary measures, that deny 


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1 fair and equitable market access to United 

2 States products. 

3 ‘‘(c) REVOCATIONS AND ADDITIONAL IDENTIFICA4 TIONS.— 

5 ‘‘(1) AUTHORITY TO ACT AT ANY TIME.—If in6 formation available to the Trade Representative indi7 cates that such action is appropriate, the Trade 

8 Representative may at any time— 

9 ‘‘(A) revoke the identification of any for10 eign country as a priority foreign country under 

11 this section; or 

12 ‘‘(B) identify any foreign country as a pri13 ority foreign country under this section. 

14 ‘‘(2) REVOCATION REPORTS.—The Trade Rep15 resentative shall include in the semiannual report 

16 submitted to the Congress under section 309(3) a 

17 detailed explanation of the reasons for the revocation 

18 under paragraph (1) of the identification of any for19 eign country as a priority foreign country under this 

20 section. 

21 ‘‘(d) DEFINITIONS.—In this section: 

22 ‘‘(1) SANITARY OR PHYTOSANITARY MEAS23 URE.—The term ‘sanitary or phytosanitary measure’ 

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1 tion of Sanitary and Phytosanitary Measures (de2 scribed in section 101(d)(3) of the Uruguay Round 

3 Agreements Act (19 U.S.C. 3511(d)(3)). 

4 ‘‘(2) TECHNICAL BARRIERS TO TRADE.—The 

5 term ‘technical barriers to trade’ means technical 

6 regulations, standards, and conformity assessment 

7 procedures as defined by Annex 1 of the Agreement 

8 on Technical Barriers to Trade (described in section 

9 101(d)(5) of the Uruguay Round Agreements Act 

10 (19 U.S.C. 3511(d)(5)). 

11 ‘‘(3) DENIAL OF FAIR AND EQUITABLE MARKET

12 ACCESS.— 

13 ‘‘(A) IN GENERAL.—A technical barrier to 

14 trade or a sanitary or phytosanitary measure 

15 may deny fair and equitable market access to 

16 United States products regardless of whether it 

17 is in violation of, or inconsistent with, the inter18 national legal rights of the United States. 

19 ‘‘(B) EXAMPLES OF UNFAIR AND INEQUI20 TABLE TECHNICAL BARRIERS TO TRADE.—A 

21 technical barrier to trade that denies fair and 

22 equitable market access to United States prod23 ucts may include, but is not limited to, one 

24 that— 


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1 ‘‘(i) is more restrictive than necessary 

2 to achieve a legitimate objective of the for3 eign country, or are applied more strictly 

4 than necessary; 

5 ‘‘(ii) is not based on international 

6 standards, and there is no basis to con7 clude that the international standards 

8 would be an ineffective or inappropriate 

9 means for the fulfilment of the legitimate 

10 objectives pursued; 

11 ‘‘(iii) fails to give positive consider12 ation to equivalent technical regulations of 

13 the United States that adequately fulfil the 

14 objectives of the regulations of the foreign 

15 country; 

16 ‘‘(iv) establishes requirements in 

17 terms of design or descriptive characteris18 tics, rather than performance; 

19 ‘‘(v) is not transparent, such as a 

20 measure that is not published or does not 

21 provide meaningful opportunity for com22 ment; or 

23 ‘‘(vi) unjustifiably discriminates or 

24 has the effect of discriminating between 

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1 ucts, or products imported from different 

2 countries. 

3 ‘‘(C) EXAMPLES OF UNFAIR AND INEQUI4 TABLE SANITARY OR PHYTOSANITARY MEAS5 URES.—A sanitary or phytosanitary measure 

6 that denies fair and equitable market access to 

7 United States products may include, but is not 

8 limited to, one that— 

9 ‘‘(i) is not based on scientific prin10 ciples or is maintained without sufficient 

11 scientific evidence; 

12 ‘‘(ii) discriminates arbitrarily or 

13 unjustifiably where identical or similar con14 ditions prevail, or is applied in a manner 

15 that would constitute a disguised restric16 tion on international trade; 

17 ‘‘(iii) is not based on an assessment of 

18 the risks to human, animal, or plant life or 

19 health, or does not take into account risk 

20 assessment techniques developed by any 

21 relevant international organizations; or 

22 ‘‘(iv) is not transparent, such as a 

23 measure that is not published or does not 

24 provide meaningful opportunity for com25 ment. 


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1 ‘‘(e) PUBLICATION.—The Trade Representative shall 

2 publish in the Federal Register a list of foreign countries 

3 identified under subsection (a) and shall make such revi4 sions to the list as may be required by reason of action 

5 under subsection (c). 

6 ‘‘(f) ANNUAL REPORT.—The Trade Representative 

7 shall, not later than the date by which countries are identi8 fied under subsection (a), transmit to the Committee on 

9 Ways and Means of the House of Representatives and the 

10 Committee on Finance of the Senate, a report on the ac11 tions taken under this section during the 12 months pre12 ceding such report, and the reasons for such actions, in13 cluding a description of progress made toward ensuring 

14 that technical barriers to trade and sanitary or 

15 phytosanitary measures do not deny fair and equitable 

16 market access for United States products.’’. 

17 (2) CLERICAL AMENDMENT.—The table of con18 tents for the Trade Act of 1974 is amended by in19 serting after the item relating to section 182 the fol20 lowing: 

‘‘Sec. 183. Identification of countries that maintain unfair technical barriers to 

trade or unfair sanitary or phytosanitary measures.’’. 

21 (b) ACTIONS BY UNITED STATES TRADE REP22 RESENTATIVE.—Section 301(d)(3)(B) of the Trade Act of 

23 1974 (19 U.S.C. 2411(d)(3)(B)) is amended— 

24 (1) in clause (ii), by striking ‘‘or’’ at the end; 


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1 (2) in clause (iii), by striking the period at the 

2 end and inserting ‘‘or’’; and 

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

4 ‘‘(iv) are technical barriers to trade, or 

5 sanitary or phytosanitary measures, that deny 

6 fair and equitable market access to United 

7 States products.’’. 

8 (c) INITIATION OF INVESTIGATIONS.—Section 

9 302(b)(2) of the Trade Act of 1974 (19 U.S.C. 

10 2412(b)(2)) is amended— 

11 (1) in subparagraph (A), in the matter pre12 ceding clause (i), by inserting ‘‘or 183(a)(2)’’ after 

13 ‘‘section 182(a)(2);’’; 

14 (2) in subparagraph (D), by inserting ‘‘con15 cerning intellectual property rights that is’’ after 

16 ‘‘any investigation’’; and 

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

18 ‘‘(E) The Trade Representative shall consult 

19 with the Secretary of Commerce, the Secretary of 

20 Agriculture, the Administrator of the Food and 

21 Drug Administration, and the heads of other appro22 priate Federal agencies, during any investigation 

23 concerning technical barriers to trade or sanitary or 

24 phytosanitary measures that is initiated under this 

25 chapter by reason of subparagraph (A).’’. 


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1 TITLE II—RESTORATION OF 

2 RIGHTS UNDER TRADE REM3 EDY LAWS 

4 SEC. 201. 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.—Section 

14 771(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 

20 subsidy is publicly or privately owned; 

21 ‘‘(II) whether the subsidy is pro22 vided directly or indirectly on the 

23 manufacture, production, or export of 

24 merchandise; and 


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1 ‘‘(III)(aa) whether the country is 

2 a nonmarket economy country, or 

3 ‘‘(bb) the level of economic re4 forms in a country that is a non5 market economy country, 

6 at the time the subsidy is provided. 

7 ‘‘(ii) The administering authority is 

8 not required to consider the effect of the 

9 subsidy in determining whether a subsidy 

10 exists under this paragraph.’’. 

11 (c) USE OF ALTERNATE METHODOLOGIES INVOLV12 ING CHINA.—Section 771(5)(E) of the Tariff Act of 1930 

13 (19 U.S.C. 1677(5)(E)) is amended by adding at the end 

14 the following: 

15 ‘‘If the administering authority encounters spe16 cial difficulties in identifying and calculating 

17 the amount of a benefit under clauses (i) 

18 through (iv) with respect to an investigation or 

19 review involving the People’s Republic of China, 

20 irrespective of whether the administering au21 thority determines that China is a nonmarket 

22 economy country under paragraph (18) of this 

23 section, the administering authority shall use 

24 methodologies to identify and calculate the 

25 amount of the benefit that take into account 


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1 the possibility that terms and conditions pre2 vailing in China may not always be available as 

3 appropriate benchmarks. In applying such 

4 methodologies, where practicable, the admin5 istering authority should take into account and 

6 adjust terms and conditions prevailing in China 

7 before using terms and conditions prevailing 

8 outside of China. If the administering authority 

9 has determined that China is a nonmarket 

10 economy country under paragraph (18) of this 

11 section, the administering authority shall pre12 sume that special difficulties exist in calculating 

13 the amount of a benefit under clauses (i) 

14 through (iv) with respect to an investigation or 

15 review involving China and that it is not prac16 ticable to take into account and adjust terms 

17 and conditions prevailing in China, and the ad18 ministering authority shall use terms and condi19 tions prevailing outside of China.’’. 

20 (d) SUBSIDIES PROVIDED TO STATE-OWNED ENTER21 PRISES IN THE PEOPLE’S REPUBLIC OF CHINA.—Section 

22 771(5A) of the Tariff Act of 1930 (19 U.S.C. 1677(5A)) 

23 is amended by adding at the end the following: 

24 ‘‘For purposes of this paragraph, subsidies provided 

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


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

2 state-owned enterprises are the predominant recipi3 ents of such subsidies or state-owned enterprises re4 ceive disproportionately large amounts of such sub5 sidies.’’. 

6 (e) ANTIDUMPING PROVISIONS NOT AFFECTED.— 

7 The amendments made by this section shall not affect the 

8 status of a country as a nonmarket economy country for 

9 the purposes of any matter relating to antidumping duties 

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

11 (19 U.S.C. 1673 et seq.). 

12 (f) EFFECTIVE DATE.—The amendments made by 

13 this section apply to petitions filed under section 702 of 

14 the Tariff Act of 1930 (19 U.S.C. 1671a) on or after Oc15 tober 1, 2006. 

16 SEC. 202. TREATMENT OF INDIVIDUAL BUSINESS ENTER17 PRISES IN NONMARKET ECONOMY COUN18 TRIES. 

19 Section 771(18) of the Tariff Act of 1930 (19 U.S.C. 

20 1677(18)) is amended— 

21 (1) by redesignating subparagraphs (D) and 

22 (E) as subparagraph (E) and (F), respectively; and 

23 (2) by inserting after subparagraph (C) the fol24 lowing: 


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1 ‘‘(D) TREATMENT OF INDIVIDUAL BUSI2 NESS ENTERPRISES.—The administering au3 thority shall not consider requests for market 

4 economy treatment at the individual business 

5 enterprise level in an antidumping proceeding 

6 involving a foreign country determined to be a 

7 nonmarket economy country.’’. 

8 SEC. 203. REVOCATION OF NONMARKET ECONOMY COUN9 TRY STATUS. 

10 (a) AMENDMENT OF DEFINITION OF ‘‘NONMARKET

11 ECONOMY COUNTRY’’.—Section 771(18)(C)(i) of the Tar12 iff Act of 1930 (19 U.S.C. 1677(18)(C)(i)) is amended 

13 to read as follows: 

14 ‘‘(i) Any determination that a foreign 

15 country is a nonmarket economy country 

16 shall remain in effect until— 

17 ‘‘(I) the administering authority 

18 makes a final determination to revoke 

19 the determination under subparagraph 

20 (A); and 

21 ‘‘(II) a joint resolution is enacted 

22 into law pursuant to subsections (b) 

23 through (i) of section 203 of the 

24 Trade Enforcement Act of 2009.’’. 


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1 (b) NOTIFICATION BY PRESIDENT; JOINT RESOLU2 TION.—Whenever the administering authority (as such 

3 term is defined in section 771(1) of the Tariff Act of 1930 

4 (19 U.S.C. 1677(1)) makes a final determination under 

5 section 771(18)(C)(i)(I) of the Tariff Act of 1930 (as 

6 added by subsection (a) of this section) to revoke the de7 termination that a foreign country is a nonmarket econ8 omy country— 

9 (1) the President shall notify the Committee on 

10 Finance of the Senate and the Committee on Ways 

11 and Means of the House of Representatives of the 

12 administering authority’s final determination not 

13 later than 10 days after the publication of the final 

14 determination in the Federal Register; 

15 (2) the President shall transmit to the Congress 

16 a request that a joint resolution be introduced pur17 suant to this section; and 

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

19 Congress pursuant to this section. 

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

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

22 the 2 Houses of the Congress, the matter after the resolv23 ing clause of which is as follows: ‘‘That the Congress ap24 proves the change of nonmarket economy status with re25 spect to the products of lllll transmitted by the 


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

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

3 with respect to which a determination has been made 

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

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

6 filled with the date on which the President notified the 

7 Committee on Finance of the Senate and the Committee 

8 on Ways and Means of the House of Representatives 

9 under subsection (b)(1). 

10 (d) INTRODUCTION.—A joint resolution shall be in11 troduced (by request) in the House of Representatives by 

12 the majority leader of the House, for himself, or by Mem13 bers of the House designated by the majority leader of 

14 the House, and shall be introduced (by request) in the 

15 Senate by the majority leader of the Senate, for himself, 

16 or by Members of the Senate designated by the majority 

17 leader of the Senate. 

18 (e) AMENDMENTS PROHIBITED.—No amendment to 

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

20 of Representatives or the Senate, and no motion to sus21 pend the application of this subsection shall be in order 

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

23 for the presiding officer to entertain a request to suspend 

24 the application of this subsection by unanimous consent. 


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1 (f) PERIOD FOR COMMITTEE AND FLOOR CONSIDER2 ATION.— 

3 (1) IN GENERAL.—If the committee or commit4 tees of either House to which a joint resolution has 

5 been referred have not reported the joint resolution 

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

7 such committee or committees shall be automatically 

8 discharged from further consideration of the joint 

9 resolution and it shall be placed on the appropriate 

10 calendar. A vote on final passage of the joint resolu11 tion shall be taken in each House on or before the 

12 close of the 15th day after the joint resolution is re13 ported by the committee or committees of that 

14 House to which it was referred, or after such com15 mittee or committees have been discharged from fur16 ther consideration of the joint resolution. If, prior to 

17 the passage by one House of a joint resolution of 

18 that House, that House receives the same joint reso19 lution from the other House, then— 

20 (A) the procedure in that House shall be 

21 the same as if no joint resolution had been re22 ceived from the other House, but 

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

24 the joint resolution of the other House. 


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

2 paragraph (1), in computing a number of days in ei3 ther House, there shall be excluded any day on 

4 which that House is not in session. 

5 (g) FLOOR CONSIDERATION IN THE HOUSE.— 

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

7 House of Representatives to proceed to the consider8 ation of a joint resolution shall be highly privileged 

9 and not debatable. An amendment to the motion 

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

11 to reconsider the vote by which the motion is agreed 

12 to or disagreed to. 

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

14 Representatives on a joint resolution shall be limited 

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

16 equally between those favoring and those opposing 

17 the joint resolution. A motion further to limit debate 

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

19 move to recommit a joint resolution or to move to 

20 reconsider the vote by which a joint resolution is 

21 agreed to or disagreed to. 

22 (3) MOTIONS TO POSTPONE.—Motions to post23 pone, made in the House of Representatives with re24 spect to the consideration of a joint resolution, and 


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•HR 496 IH

1 motions to proceed to the consideration of other 

2 business, shall be decided without debate. 

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

4 of the Chair relating to the application of the Rules 

5 of the House of Representatives to the procedure re6 lating to a joint resolution shall be decided without 

7 debate. 

8 (5) OTHER RULES.—Except to the extent spe9 cifically provided in the preceding provisions of this 

10 subsection, consideration of a joint resolution shall 

11 be governed by the Rules of the House of Represent12 atives applicable to other bills and resolutions in 

13 similar circumstances. 

14 (h) FLOOR CONSIDERATION IN THE SENATE.— 

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

16 Senate to proceed to the consideration of a joint res17 olution shall be privileged and not debatable. An 

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

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

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

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

22 on a joint resolution, and all debatable motions and 

23 appeals in connection therewith, shall be limited to 

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


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•HR 496 IH

1 divided between, and controlled by, the majority 

2 leader and the minority leader or their designees. 

3 (3) CONTROL OF DEBATE.—Debate in the Sen4 ate on any debatable motion or appeal in connection 

5 with a joint resolution shall be limited to not more 

6 than 1 hour, to be equally divided between, and con7 trolled by, the mover and the manager of the joint 

8 resolution, except that in the event the manager of 

9 the joint resolution is in favor of any such motion 

10 or appeal, the time in opposition thereto shall be 

11 controlled by the minority leader or his designee. 

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

13 under their control on the passage of a joint resolu14 tion, allot additional time to any Senator during the 

15 consideration of any debatable motion or appeal. 

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

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

18 recommit a joint resolution is not in order. 

19 (i) RULES OF HOUSE OF REPRESENTATIVES AND

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

21 Congress— 

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

23 the House of Representatives and the Senate, re24 spectively, and as such subsections (c) through (h) 

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1 spectively, but applicable only with respect to the 

2 procedure to be followed in that House in the case 

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

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

5 only to the extent that they are inconsistent there6 with; and 

7 (2) with full recognition of the constitutional 

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

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

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

11 the case of any other rule of that House. 

12 SEC. 204. WTO APPELLATE BODY RULINGS REQUIRING OFF13 SETS FOR NON-DUMPED COMPARISONS. 

14 (a) FINDINGS.—Congress finds the following: 

15 (1) The Contracting Parties of the General 

16 Agreements on Tariffs and Trade agreed in 1947, 

17 and the Members of the World Trade Organization 

18 (WTO) reaffirmed in 1994, that dumping, by which 

19 products of one country are introduced into the com20 merce of another country at less than fair value, ‘‘is 

21 to be condemned’’ if it causes or threatens material 

22 injury to, or materially retards the establishment of, 

23 a domestic industry. 

24 (2) Since the adoption of the first United 

25 States antidumping law in 1921, the United States 


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•HR 496 IH

1 has treated groups of sales that are above ‘‘fair 

2 value’’ as not dumped (i.e., having a dumping mar3 gin of zero). Virtually every other government that 

4 applies antidumping measures has used a similar 

5 practice of ‘‘zeroing’’ sales above fair value. 

6 (3) In a series of recent dispute settlement pro7 ceedings, the WTO Appellate Body has repeatedly 

8 overturned the rulings of several panels of anti9 dumping experts that have found that the long10 standing practice of zeroing is not inconsistent with 

11 the WTO agreements. The WTO Appellate Body has 

12 found that the United States is required to recognize 

13 ‘‘negative dumping’’ (the amount by which certain 

14 groups of sales may exceed ‘‘fair value’’) and thereby 

15 imposed a new mandate that the United States must 

16 offset dumped sales. 

17 (4) The United States has described these deci18 sions of the WTO Appellate Body as ‘‘devoid of legal 

19 merit,’’ ‘‘fatally flawed,’’ and ‘‘very troubling.’’ 

20 (5) Despite these criticisms, the U.S. Depart21 ment of Commerce implemented the recommenda22 tions of the WTO Appellate Body by creating man23 datory offsets for dumping with respect to certain 

24 comparisons made in antidumping investigations, ef25 fective February 22, 2007. The Department of ComVerDate Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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1 merce did not make any other modifications to its 

2 methodologies to ensure that dumping is addressed 

3 fully and in all instances under United States anti4 dumping law. 

5 (b) SENSE OF CONGRESS.—It is the sense of Con6 gress that— 

7 (1) in negotiations and dispute settlement pro8 ceedings at the WTO, the United States should— 

9 (A) restore the balance between rights and 

10 obligations that was struck during the Uruguay 

11 Round of Multilateral Trade Negotiations, as 

12 reflected in the Agreement on Implementation 

13 of Article VI of the General Agreement on Tar14 iffs and Trade 1994, including by eliminating 

15 the requirement to offset dumped sales with 

16 non-dumped sales; and 

17 (B) preserve the ability of the United 

18 States to enforce rigorously its trade laws, in19 cluding the antidumping, countervailing duty, 

20 and safeguard laws; 

21 (2) the Department of Commerce should revisit 

22 its decision to modify its methodology in anti23 dumping investigations with respect to the calcula24 tion of the weighted-average dumping margin, effec25 tive February 22, 2007; 


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1 (3) a revised modification should seek to ensure 

2 that 100 percent of dumping is addressed under 

3 United States antidumping duty law and practice, 

4 while also ensuring that the United States complies 

5 with its WTO obligations. 

6 (c) REQUIREMENTS FOR AGENCY ACTION.— 

7 (1) CHANGES IN ANTIDUMPING METHOD8 OLOGY.—The Department of Commerce may not im9 plement any revised methodology in antidumping in10 vestigations with respect to the calculation of 

11 weighted-average dumping margins unless and until 

12 the procedures set forth in section 123(g)(1) of the 

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

14 3533(g)(1)) have been followed and completed. 

15 (2) EFFECTIVE DATE OF MODIFICATION.—A 

16 final rule or other modification to which paragraph 

17 (1) applies may not go into effect before the end of 

18 the 60-day period beginning on the date on which 

19 consultations under section 123(g)(1)(E) of the Uru20 guay Round Agreements Act (19 U.S.C. 

21 3533(g)(1)(E)) begin. 

22 (3) VOTE BY CONGRESSIONAL COMMITTEES.— 

23 During the 60-day period described in paragraph 

24 (2), the Committee on Ways and Means of the 

25 House of Representatives and the Committee on FiVerDate Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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1 nance of the Senate may vote to indicate the agree2 ment or disagreement of the committee with the pro3 posed contents of the final rule or other modifica4 tion. Any such vote shall not be binding on the de5 partment or agency which is implementing the rule 

6 or other modification. 

7 (d) GRACE PERIOD FOR ORIGINAL MODIFICATION.— 

8 The final modification announced in ‘‘Antidumping Pro9 ceedings: Calculation of the Weighted-Average Dumping 

10 Margin During an Antidumping Investigation; Final 

11 Modification,’’ 71 Fed. Reg. 77722 (December 27, 2006) 

12 shall remain in force until March 1, 2009. On that date, 

13 the Department of Commerce shall return to the method14 ology it applied before adopting the Final Modification, 

15 unless or until it issues a Revised Modification, in accord16 ance with the procedures described in subsection (c). 

17 SEC. 205. ROLE OF WTO APPELLATE BODY RULINGS IN THE 

18 WTO DISPUTE SETTLEMENT SYSTEM. 

19 (a) FINDINGS.—Congress finds the following: 

20 (1) The United States and other members of 

21 the World Trade Organization made clear when they 

22 established the World Trade Organization that the 

23 text of the WTO agreements, and not interpreta24 tions of those agreements by the Appellate Body or 

25 any other international tribunal, establishes the 


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1 rights and obligations of WTO members. The WTO 

2 members determined that ‘‘in their findings and rec3 ommendations, the panel and Appellate Body cannot 

4 add to or diminish the rights and obligations’’ in the 

5 text of an agreement. Instead, a dispute settlement 

6 panel is to make an ‘‘objective assessment of the 

7 matter before it, including an objective assessment 

8 of the facts of the case and the applicability of and 

9 conformity with the relevant covered agreements’’. 

10 The WTO members themselves, by a three-fourths 

11 majority, have the ‘‘exclusive authority’’ to adopt 

12 binding interpretations of the WTO agreements. 

13 (2) Accordingly, in 1996, the WTO Appellate 

14 Body stated that past dispute settlement decisions 

15 ‘‘create legitimate expectations among WTO Mem16 bers, and, therefore, should be taken into account 

17 where they are relevant to any dispute. However, 

18 they are not binding, except with respect to resolving 

19 the particular dispute between the parties to that 

20 dispute.’’. 

21 (3) In 2008, however, the Appellate Body criti22 cized a dispute settlement panel for conducting its 

23 own objective assessment of a legal issue and refus24 ing to follow the Appellate Body’s past interpreta25 tions of provisions of WTO agreements. The AppelVerDate Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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1 late Body stated that it was ‘‘deeply concerned about 

2 the Panel’s decision to depart from well-established 

3 Appellate Body jurisprudence clarifying the interpre4 tation of the same legal issues’’. 

5 (4) The notion that a dispute settlement panel 

6 is obligated to follow Appellate Body precedent, 

7 rather than its own objective assessment of the rel8 evant WTO agreements, is inconsistent with the text 

9 of those agreements and ultimately may have a 

10 chilling effect on future negotiations to further open 

11 markets and strengthen the global trading system. 

12 (b) SENSE OF CONGRESS.—It is the sense of the 

13 Congress that the United States should state unequivo14 cally that— 

15 (1) it in inconsistent with the express mandate 

16 of limited authority to the WTO Appellate Body 

17 under the Understanding on Rules and Procedures 

18 Governing the Settlement of Disputes for the Appel19 late Body to establish a new legal standard that dis20 pute settlement panels must apply in deciding cases; 

21 and 

22 (2) a dispute settlement panel is obligated to 

23 follow the text of an agreement negotiated by the 

24 WTO members themselves, and not the ‘‘jurispru25 dence’’ of the WTO Appellate Body. 


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1 (c) DEFINITIONS.—In this section: 

2 (1) WTO AGREEMENTS.—The term ‘‘WTO 

3 agreements’’ means the agreements approved by the 

4 Congress under section 101(a)(1) of the Uruguay 

5 Round Agreements Act (19 U.S.C. 3511(a)(1)). 

6 (2) WTO MEMBER.—The term ‘‘WTO mem7 ber’’ has the meaning given that term in section 2 

8 of the Uruguay Round Agreements Act (19 U.S.C. 

9 3501). 

10 (3) APPELLATE BODY; DISPUTE SETTLEMENT

11 PANEL.—The terms ‘‘Appellate Body’’ and ‘‘dispute 

12 settlement panel’’ have the meanings given those 

13 terms in section 121 of the Uruguay Round Agree14 ments Act (19 U.S.C. 3531). 

15 (4) UNDERSTANDING ON RULES AND PROCE16 DURES GOVERNING THE SETTLEMENT OF DIS17 PUTES.—The term ‘‘Understanding on Rules and 

18 Procedures Governing the Settlement of Disputes’’ 

19 means the agreement described in section 

20 101(d)(16) of the Uruguay Round Agreements Act 

21 (19 U.S.C. 3511(d)(16)). 


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1 SEC. 206. CLARIFICATION REGARDING MATERIAL INJURY 

2 BY REASON OF IMPORTS OF SUBJECT MER3 CHANDISE. 

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

5 1677(7)) is amended by adding at the end the following: 

6 ‘‘(J) ADDITIONAL REQUIREMENTS.—In 

7 evaluating whether there is material injury, or 

8 threat thereof, by reason of imports of the sub9 ject merchandise, the Commission shall make 

10 its determination without regard to— 

11 ‘‘(i) whether other imports would have 

12 replaced or are likely to replace subject im13 ports if an order were issued or a suspen14 sion agreement were accepted under this 

15 title; or 

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

17 suspension agreement on the domestic in18 dustry, except with respect to any finding 

19 required by subparagraph (F)(ii).’’. 

20 SEC. 207. STANDARD FOR PRESIDENTIAL ACTION ON ITC 

21 FINDING OF MARKET DISRUPTION. 

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

23 2451) is amended— 

24 (1) in subsection (a)— 

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

26 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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•HR 496 IH

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 Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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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 Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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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 SEC. 208. APPLICATION OF AMENDMENTS TO GOODS FROM 

4 CANADA AND MEXICO. 

5 Pursuant to section 1902 of the North American 

6 Free Trade Agreement and section 408 of the North 

7 American Free Trade Agreement Implementation Act (19 

8 U.S.C. 3438), any amendments made by this title to title 

9 VII of the Tariff Act of 1930 shall apply to goods from 

10 Canada and Mexico. 

11 SEC. 209. RULE OF CONSTRUCTION. 

12 The amendments made by this title shall not be con13 strued to affect the interpretation of any provision of law 

14 amended by such sections as such provisions of law were 

15 in effect on the day before the date of the enactment of 

16 this Act. 

17 TITLE III—ENFORCEMENT OF 

18 HEALTH AND SAFETY LAWS 

19 AND INTELLECTUAL PROP20 ERTY RIGHTS AT U.S. BOR21 DERS 

22 Subtitle A—Import Safety 

23 SEC. 301. DEFINITIONS. 

24 In this subtitle: 


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1 (1) COMMISSIONER.—Except as otherwise pro2 vided, the term ‘‘Commissioner’’ means the Commis3 sioner responsible for U.S. Customs and Border 

4 Protection. 

5 (2) INTERNATIONAL SUPPLY CHAIN.—The term 

6 ‘‘international supply chain’’ means the end-to-end 

7 process for transporting goods to or from the United 

8 States beginning with the point of origin (including 

9 manufacturer, supplier, or vendor) through the point 

10 of distribution to the destination. 

11 (3) RELEVANT DEPARTMENTS AND AGEN12 CIES.—The term ‘‘relevant departments or agencies’’ 

13 means— 

14 (A) the Department of Agriculture; 

15 (B) the Department of Commerce; 

16 (C) the Department of Health and Human 

17 Services; 

18 (D) the Department of Homeland Security; 

19 (E) the Department of Transportation; 

20 (F) the Consumer Product Safety Commis21 sion; 

22 (G) the Environmental Protection Agency; 

23 (H) the Federal Trade Commission; and 

24 (I) any other appropriate department or 

25 agency, as determined by the Secretary, acting 


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1 through the Commissioner, with responsibilities 

2 regarding the health or safety of goods. 

3 (4) SECRETARY.—Except as otherwise provided, 

4 the term ‘‘Secretary’’ means the Secretary of the 

5 Treasury. 

6 SEC. 302. OBTAINING DATA ON GOODS DESTINED FOR IM7 PORTATION INTO THE UNITED STATES. 

8 (a) UNIFORM SYSTEM TO UNIQUELY IDENTIFY IM9 PORTS AND PARTICIPANTS IN THE INTERNATIONAL SUP10 PLY CHAIN.— 

11 (1) ESTABLISHMENT.—The Secretary, acting 

12 through the Commissioner, shall, in consultation 

13 with the heads of the relevant departments and 

14 agencies, establish a government-wide, uniform data 

15 system to uniquely identify all goods imported or 

16 destined for importation into the United States and, 

17 with respect to such goods, all importers of record, 

18 foreign manufacturers, foreign processing facilities, 

19 foreign exporters, foreign suppliers, and ultimate 

20 consignees. The system shall contain unique identi21 fiers for each participant in the international supply 

22 chain. The unique identifiers shall be incorporated 

23 into the International Trade Data System estab24 lished under section 411(d) of the Tariff Act of 

25 1930 and into the Automated Commercial EnvironVerDate Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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1 ment, so as to permit departments and agencies to 

2 share and exchange authorized data on such goods, 

3 importers, manufacturers, facilities, exporters, and 

4 suppliers. 

5 (2) TIMING AND REPORTS.—The Secretary, act6 ing through the Commissioner, shall— 

7 (A) establish the uniform system under 

8 paragraph (1) not later than one year after the 

9 date of the enactment of this Act; and 

10 (B) report to the Congress, not later than 

11 the end of the 120-day period beginning on 

12 such date of enactment, and each 120-day pe13 riod thereafter until the uniform system has 

14 been established, on the progress in establishing 

15 the uniform system. 

16 (b) CARGO INFORMATION.—Section 343(a) of the 

17 Trade Act of 2002 (19 U.S.C. 2071 note) is amended— 

18 (1) in paragraph (2), by striking the period and 

19 inserting the following: ‘‘and, in the case of cargo 

20 destined for importation into the United States, to 

21 ensure that the cargo complies with those require22 ments imposed by the laws and regulations of the 

23 United States with respect to health and safety that 

24 are administered by the Department of Agriculture, 

25 the Department of Health and Human Services, the 


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1 Department of Transportation, the Environmental 

2 Protection Agency, the Consumer Product Safety 

3 Commission, the Federal Trade Commission, and 

4 other relevant departments and agencies of the 

5 United States.’’; and 

6 (2) in paragraph (3)(F), by striking ‘‘cargo 

7 safety and security and’’ and inserting the following: 

8 ‘‘cargo safety and security, for ensuring that im9 ported goods comply with requirements under the 

10 laws and regulations of the United States relating to 

11 health and safety, as described in paragraph (2), 

12 and for targeting by U.S. Customs and Border Pro13 tection of cargo for failure to comply with such re14 quirements, and for’’. 

15 (c) DEVELOPMENT OF HEALTH AND SAFETY RULE

16 SETS FOR AUTOMATED TARGETING SYSTEM.—The Sec17 retary, acting through the Commissioner, shall consult 

18 with the heads of the relevant departments and agencies 

19 to develop rule sets for identifying, including through the 

20 Automated Targeting System, cargo that violates laws or 

21 regulations of the United States with respect to health or 

22 safety that are administered by the relevant departments 

23 and agencies. 

24 (d) REPORTS ON INTERNATIONAL TRADE DATA SYS25 TEM.—Section 411(d)(4)(B) of the Tariff Act of 1930 (19 


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1 U.S.C. 1411(d)(4)(B)) is amended by inserting before the 

2 semicolon the following: ‘‘, in particular the progress of 

3 the United States Customs and Border Protection, the 

4 Department of Health and Human Services, the Depart5 ment of Transportation, the Environmental Protection 

6 Agency, the Consumer Product Safety Commission, the 

7 Federal Trade Commission, and other appropriate depart8 ments and agencies in implementing ITDS’’. 

9 SEC. 303. INTERAGENCY COORDINATION. 

10 (a) ACCESS TO ACE.—The Commissioner shall en11 sure that appropriate officials of the relevant departments 

12 and agencies have access to the Automated Commercial 

13 Environment for purposes of identifying cargo destined for 

14 importation into the United States as ‘‘high risk’’ with 

15 respect to public health or safety under the laws adminis16 tered by those departments and agencies. 

17 (b) COMMUNICATION AND RESPONSE PROTOCOLS.— 

18 The Secretary, acting through the Commissioner, shall 

19 take the necessary steps to implement protocols with the 

20 heads of the relevant departments and agencies that en21 sure rapid communication with and response by those de22 partments and agencies upon the discovery of goods des23 tined for importation into the United States that may pose 

24 a risk to public health or safety. 


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1 (c) INTERDEPARTMENTAL PROCEDURES; 

2 LEVERAGING OF RESOURCES AT PORTS OF ENTRY.—The 

3 Secretary, acting through the Commissioner, shall, in con4 sultation with the heads of the relevant departments and 

5 agencies— 

6 (1) develop uniform interagency procedures, 

7 where appropriate, for clearing and controlling im8 ported goods at ports of entry, including procedures 

9 to streamline the entry process and facilitate the ex10 change of information and intelligence, processing of 

11 samples, providing training (where necessary) to 

12 keep the relevant departments and agencies updated 

13 on import requirements at the border, and other 

14 forms of interagency cooperation; and 

15 (2) take the necessary steps so that, in order to 

16 ensure that imported cargo does not pose risks to 

17 the public health or safety under laws administered 

18 by the relevant departments and agencies, personnel 

19 of the relevant department or agency or U.S. Cus20 toms and Border Protection officers are available to 

21 inspect and sample the cargo at the port of entry in 

22 the United States. 

23 The Secretary shall enter into such arrangements as are 

24 appropriate to ensure that U.S. Customs and Border ProVerDate Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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1 tection officers are authorized to inspect and sample cargo 

2 under paragraph (2). 

3 SEC. 304. DEVELOPMENT OF IMPORT SAFETY PROGRAM. 

4 (a) ESTABLISHMENT.—The Secretary, acting 

5 through the Commissioner, shall, in consultation with the 

6 Advisory Committee on Import Safety and Intellectual 

7 Property Rights Enforcement established pursuant to sec8 tion 362 of this Act, establish a voluntary government9 private sector program (to be known as the ‘‘Import Safe10 ty Program’’) to ensure that all goods in the international 

11 supply chain do not pose risks to public health or safety, 

12 and to facilitate the movement of such goods through the 

13 international supply chain. Under the program— 

14 (1) eligible entities described in subsection (d) 

15 voluntarily agree to abide by the minimum require16 ments under subsection (b); and 

17 (2) the Secretary agrees to expedite the move18 ment of the goods of such persons through the in19 spection process and to provide other benefits to 

20 participants meeting or exceeding the requirements 

21 of the Import Safety Program. 

22 (b) MINIMUM REQUIREMENTS.— 

23 (1) IN GENERAL.—The Secretary, acting 

24 through the Commissioner, shall establish the min25 imum requirements for eligible entities described in 


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1 subsection (d) seeking to participate in the Import 

2 Safety Program and review such requirements at 

3 least once every year and update such requirements 

4 as necessary. In establishing such requirements, the 

5 Secretary shall— 

6 (A) require that each such eligible entity 

7 applying be a participant in the C–TPAT pro8 gram under subtitle B of title II of the SAFE 

9 Port Act (in this section referred to as ‘‘C– 

10 TPAT’’; 6 U.S.C. 961 et seq.); and 

11 (B) incorporate standards for the fol12 lowing: 

13 (i) Controls for ensuring the eligible 

14 entity’s compliance with health and safety 

15 standards under the laws and regulations 

16 of the United States for goods moved by 

17 the eligible entity through the international 

18 supply chain. 

19 (ii) Tracking and maintaining records 

20 on goods moved by the eligible entity 

21 through the international supply chain. 

22 (iii) Documentation of controls re23 ferred to in clause (i), including mainte24 nance of testing results. 


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1 (iv) Access by the Secretary to the eli2 gible entity’s business records for review. 

3 (v) Access by the Secretary to vendor 

4 and supplier information. 

5 (vi) Such other factors as the Sec6 retary determines are necessary. 

7 (2) SPECIFIC REQUIREMENTS.—An applicant 

8 seeking to participate in the Import Safety Program 

9 must— 

10 (A) demonstrate a history of moving cargo 

11 in the international supply chain in compliance 

12 with health and safety standards under the laws 

13 and regulations of the United States; 

14 (B) have procedures in place to ensure 

15 that the cargo is not subject to an Import Alert 

16 of the Food and Drug Administration or to any 

17 voluntary or mandatory recall imposed because 

18 of a potential risk to public health or safety; 

19 (C) have in place internal controls and 

20 product-testing regimes to ensure compliance 

21 with health and safety standards under the laws 

22 and regulations of the United States, including 

23 compliance by the applicant’s suppliers with 

24 such health and safety standards; and 


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1 (D) conduct an assessment of its supply 

2 chain based upon health and safety criteria es3 tablished by the Secretary, acting through the 

4 Commissioner. 

5 (c) COORDINATION.—The Secretary shall coordinate 

6 with the heads of the relevant departments and agencies 

7 for purposes of verifying the compliance of imported goods 

8 with health and safety standards under subsection 

9 (b)(1)(B)(i). 

10 (d) ELIGIBLE ENTITIES.—Importers, producers, sell11 ers, ultimate consignees, and other entities in the inter12 national supply chain and intermodal transportation sys13 tem are eligible to apply to voluntarily enter into the Im14 port Safety Program. 

15 (e) VALIDATION.—The Secretary, acting through the 

16 Commissioner, shall validate the compliance of each par17 ticipant in the Import Safety Program with the require18 ments under this section. Such validation shall, to the ex19 tent practicable, be completed no later than 1 year after 

20 the applicant is accepted into the Import Safety Program, 

21 in accordance with a schedule and guidelines that the Sec22 retary, acting through the Commissioner, shall establish. 

23 (f) REVALIDATION.—The Secretary, acting through 

24 the Commissioner, shall develop and implement— 


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1 (1) a revalidation process for all participants in 

2 the Import Safety Program that shall be conducted 

3 not less frequently than once during each 5-year pe4 riod after the initial validation under subsection (e); 

5 and 

6 (2) an annual plan for revalidation that in7 cludes— 

8 (A) performance measures; 

9 (B) an assessment of the personnel needed 

10 to perform the revalidations; and 

11 (C) the number of participants that will be 

12 revalidated during the following year. 

13 SEC. 305. INFORMATION EXCHANGE PROCESS. 

14 The Secretary, acting through the Commissioner, 

15 shall work with importers and other interested persons 

16 and other entities in the private and public sectors to de17 velop a process through which— 

18 (1) persons and other entities in the private and 

19 public sectors can report critical information relating 

20 to the safety of imported goods in a timely manner 

21 at one virtual location through existing information22 sharing systems; and 

23 (2) the Secretary can share such information 

24 with private and public entities, consistent with the 

25 protection of business confidential information. 


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1 SEC. 306. TRAINING. 

2 The Secretary, acting through the Commissioner, 

3 shall ensure that U.S. Customs and Border Protection 

4 personnel receive appropriate training in order to carry 

5 out this subtitle and the amendments made by this sub6 title. 

7 SEC. 307. SANCTIONS ON CERTAIN SUPPLIERS. 

8 (a) LIST OF SUPPLIERS WITH INADMISSABLE IM9 PORTED PRODUCTS.—Upon the development of unique 

10 identifiers under section 302(a), the Secretary, acting 

11 through the Commissioner, shall establish and maintain 

12 a list of importers of record, foreign manufacturers, for13 eign processing facilities, foreign exporters, and foreign 

14 suppliers whose imported products have been determined 

15 to be inadmissible into the United States or have been the 

16 subject of recalls in the United States because of violations 

17 of health or safety standards. 

18 (b) SANCTIONS.— 

19 (1) IN GENERAL.—The Secretary, acting 

20 through the Commissioner, shall establish sanctions 

21 to be imposed on entities on the list described in 

22 subsection (a), taking into account the number of 

23 occurrences on which the products of the entity con24 cerned have been determined to be inadmissible or 

25 have been the subject of recalls in the United States 

26 and the severity of the violation of law that was the 


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1 basis for such determination or recall. Such sanc2 tions shall include the following: 

3 (A) In the case of a first occurrence, an in4 crease in the bond required to be posted for im5 ports of the products of the entity concerned. 

6 (B) Increased inspection of up to 100 per7 cent of the products of the entity concerned, in 

8 the case of a second occurrence of a violation 

9 within 6 months after the first occurrence of 

10 the same violation; and 

11 (C) A prohibition on imports of the prod12 ucts of an entity whose products have repeat13 edly been the subject of such a determination or 

14 recall, or in a case in which the products con15 cerned caused bodily injury or death, for a pe16 riod of time determined by the Secretary, acting 

17 through the Commissioner, but generally not 

18 less than 6 months or until the relevant depart19 ment or agency with the authority to determine 

20 the admissibility of the products verifies that 

21 the banned products are in compliance with the 

22 relevant health or safety standards. Products 

23 subject to the prohibition shall be the same type 

24 of products as those determined to be inadmis25 sible or subject to the recall, and any other type 


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1 of product that is subject to the same standard 

2 as the one violated by the entity. 

3 (2) DETERMINATION OF ‘‘REPEATEDLY’’.—In 

4 determining under paragraph (1)(C) whether the 

5 products of an entity have ‘‘repeatedly’’ been the 

6 subject of a determination of inadmissibility or re7 call, the Secretary, acting through the Commis8 sioner, shall take into account not only the number 

9 of such determinations but the seriousness of the 

10 violation of health or safety standards that gave rise 

11 to any such determination. 

12 (c) AVAILABILITY TO PUBLIC.— 

13 (1) IN GENERAL.—The Secretary, acting 

14 through the Commissioner, shall make public, in15 cluding through the official website of U.S. Customs 

16 and Border Protection and, as appropriate, any 

17 other Federal department or agency website relating 

18 to health or safety matters, the names of all import19 ers of record, foreign manufacturers, foreign proc20 essing facilities, foreign exporters, and foreign sup21 pliers who have been made subject to a prohibition 

22 on imports under subsection (b)(1)(C) that has be23 come final under subsection (f), and the products 

24 that are subject to the prohibition. If an entity sub25 ject to such a prohibition files, in the appropriate 


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1 Federal court, an appeal of the determination of the 

2 Secretary imposing the prohibition, such appeal shall 

3 also be made public in accordance with the preceding 

4 sentence. 

5 (2) UPDATING.—The information made public 

6 under paragraph (1) shall be updated as frequently 

7 as necessary to keep the information current. 

8 (d) ALERT SYSTEM IN ACE.—The Commissioner 

9 shall establish in the Automated Commercial Environment 

10 an alert system notifying the relevant departments and 

11 agencies of the identity of all importers of record, foreign 

12 manufacturers, foreign processing facilities, foreign ex13 porters, and foreign suppliers described in subsections (a) 

14 and (b). 

15 (e) MITIGATING ACTIONS.—The Secretary, acting 

16 through the Commissioner, in consultation with the heads 

17 of the relevant departments and agencies, shall establish 

18 actions that an entity that is on the list established under 

19 subsection (a) or is subject to a sanction under subsection 

20 (b) may take to warrant removal from the list or removal 

21 of the sanction, as the case may be. 

22 (f) ADMINISTRATIVE APPEAL.—Any importer of 

23 record, foreign manufacturer, foreign processing facility, 

24 foreign exporter, or foreign supplier may appeal a decision 

25 of the Secretary under subsection (a) or (b) by filing the 


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1 appeal not later than 30 days after the date of the deci2 sion. The Secretary shall issue a determination on the ap3 peal not later than 90 days after the appeal is filed. The 

4 Secretary shall issue regulations establishing procedures 

5 for the appeals process under this subsection not later 

6 than 18 months after the date of the enactment of this 

7 Act. 

8 SEC. 308. REPORT TO CONGRESS. 

9 The Secretary, acting through the Commissioner, 

10 shall submit to the Congress, not later than September 

11 30 of each year, a report on the actions taken to carry 

12 out this subtitle. 

13 Subtitle B—Strengthening Enforce14 ment of Intellectual Property 

15 Rights at U.S. Borders 

16 CHAPTER 1—COORDINATION OF EN17 FORCEMENT OF INTELLECTUAL 

18 PROPERTY RIGHTS 

19 SEC. 311. DEFINITIONS. 

20 In this subtitle: 

21 (1) ADVISORY COMMITTEE.—The term ‘‘Advi22 sory Committee’’ means the Advisory Committee on 

23 Import Safety and Intellectual Property Rights En24 forcement established pursuant to section 362 of 

25 this Act. 


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

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

3 Secretary for U.S. Immigration and Customs En4 forcement. 

5 (3) COMMISSIONER.—The term ‘‘Commis6 sioner’’ means the Commissioner responsible for 

7 U.S. Customs and Border Protection. 

8 (4) COUNTERFEITING; COUNTERFEIT GOODS.— 

9 (A) COUNTERFEITING.—The term ‘‘coun10 terfeiting’’ means activities related to produc11 tion of or trafficking in goods, including pack12 aging, that bear a spurious mark or designation 

13 that is identical to or substantially indistin14 guishable from a mark or designation protected 

15 under the trademark laws or related legislation.

16 (B) COUNTERFEIT GOODS.—The term 

17 ‘‘counterfeit goods’’ means those goods de18 scribed in subparagraph (A). 

19 (5) CBP.—The term ‘‘CBP’’ means U.S. Cus20 toms and Border Protection. 

21 (6) DIRECTOR.—The term ‘‘Director’’ means 

22 the Director of Intellectual Property Rights Enforce23 ment of the Department of the Treasury established 

24 in section 312. 


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1 (7) ENFORCEMENT OF INTELLECTUAL PROP2 ERTY RIGHTS.—The term ‘‘enforcement of intellec3 tual property rights’’ means activities to enforce 

4 copyrights, patents, trademarks, and other forms of 

5 intellectual property, including activities to control 

6 counterfeiting and piracy, and activities to enforce 

7 exclusion orders issued by the United States Inter8 national Trade Commission by reason of any of sub9 paragraphs (B) through (E) of subsection (a)(1) of 

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

11 1337(a)(1)(B) through (E)). 

12 (8) EXCLUSION ORDER.—The term ‘‘exclusion 

13 order’’ means an order of the United States Inter14 national Trade Commission issued under section 337 

15 (d) or (e)of the Tariff Act of 1930 to exclude goods 

16 from entry into the United States. 

17 (9) ICE.—The term ‘‘ICE’’ means U.S. Immi18 gration and Customs Enforcement. 

19 (10) PIRACY; PIRATED GOODS.— 

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

21 activities related to production of or trafficking 

22 in unauthorized copies or phonorecords of 

23 works protected under copyright law or related 

24 legislation. 


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

2 goods’’ means those copies or phonorecords de3 scribed in subparagraph (A). 

4 (11) SECRETARY.—Except as otherwise pro5 vided, the term ‘‘Secretary’’ means the Secretary of 

6 the Treasury. 

7 SEC. 312. DIRECTOR OF INTELLECTUAL PROPERTY RIGHTS 

8 ENFORCEMENT. 

9 (a) ESTABLISHMENT.—There is established within 

10 the Department of the Treasury the position of Director 

11 of Intellectual Property Rights Enforcement. 

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

13 by the Secretary, and shall be responsible to and shall re14 port directly to the Deputy Secretary of the Treasury. 

15 (c) DUTIES.—The Director shall— 

16 (1) coordinate all activities of the Department 

17 of the Treasury involving the enforcement of intel18 lectual property rights, with particular reference to 

19 the activities of CBP and ICE; 

20 (2) oversee the development and implementa21 tion of the strategic plan for the enforcement of in22 tellectual property rights required under section 313; 

23 (3) coordinate the policy and regulatory 

24 changes set forth in chapter 4; 


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1 (4) serve as staff representative of the Depart2 ment of the Treasury in interagency bodies with re3 sponsibility for coordination of activities involving 

4 the enforcement of intellectual property rights; 

5 (5) conduct an evaluation of the effectiveness of 

6 the organizational structure of CBP for reducing the 

7 entry into the United States of counterfeit or pirated 

8 goods, goods in violation of exclusion orders, and 

9 other goods in violation of other intellectual property 

10 rights; and 

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

12 Secretary or Deputy Secretary of the Treasury, to 

13 improve the effectiveness of the efforts of the De14 partment of the Treasury under the laws within its 

15 jurisdiction with respect to enforcement of intellec16 tual property rights. 

17 SEC. 313. STRATEGIC PLAN FOR THE ENFORCEMENT OF IN18 TELLECTUAL PROPERTY RIGHTS. 

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

20 approval by the Deputy Secretary of the Treasury, an an21 nual strategic plan for the enforcement of intellectual 

22 property rights. 

23 (b) CONSULTATION.—In developing the annual stra24 tegic plan required under subsection (a), the Director shall 

25 consult with— 


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1 (1) the CBP coordinator of intellectual property 

2 enforcement activities and the ICE coordinator of 

3 intellectual property enforcement authorities ap4 pointed under section 314; 

5 (2) all other entities within the Department of 

6 the Treasury with expertise and experience in the 

7 enforcement of intellectual property rights; 

8 (3) the Advisory Committee; 

9 (4) other agencies of the executive branch en10 gaged in the enforcement of intellectual property 

11 rights, including any officials designated to coordi12 nate such enforcement efforts on an interagency 

13 basis; and 

14 (5) officials from foreign law enforcement agen15 cies and international organizations, including the 

16 World Customs Organization, with experience and 

17 expertise in border control measures relating to the 

18 enforcement of intellectual property rights. 

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

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

21 effective use of the authorities of CBP and ICE relating 

22 to the enforcement of intellectual property rights, and 

23 shall— 

24 (1) provide for specific measurement of the cur25 rent effectiveness of enforcement tools, including 


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1 targeting, examination, post-entry auditing, and pen2 alty actions; 

3 (2) give priority to those enforcement tools de4 termined under paragraph (1) to be most effective; 

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

6 States and abroad, in the enforcement of intellectual 

7 property rights, taking into account the practices of 

8 enforcement authorities of other countries, and im9 plement those practices; 

10 (4) identify and apply the specific performance 

11 measures to be used to evaluate the progress of CBP 

12 and ICE in improving the effectiveness of its efforts 

13 relating to the enforcement of intellectual property 

14 rights; 

15 (5) address border control programs adminis16 tered by CBP and ICE at ports of entry for pas17 sengers and freight, and at points of entry for postal 

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

19 through United States ports and in the process of 

20 being exported from the United States; 

21 (6) recommend the optimal feasible allocation of 

22 human, financial, physical, and technological re23 sources that CBP and ICE should use to achieve the 

24 goals of the annual strategic plan; 


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

2 during the preceding year in the enforcement of in3 tellectual property rights; and 

4 (8) contain such other information as the Di5 rector considers appropriate to convey what CBP 

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

7 to the enforcement of intellectual property rights 

8 and reduce the costs that violations of intellectual 

9 property rights impose on the United States econ10 omy and public safety. 

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

12 of the annual strategic plan by the Deputy Secretary of 

13 the Treasury, the Deputy Secretary of the Treasury, after 

14 ensuring its consistency with relevant interagency stra15 tegic plans for the enforcement of intellectual property 

16 rights, shall transmit the annual strategic plan to the 

17 Committee on Finance of the Senate and the Committee 

18 on Ways and Means of the House of Representatives, 

19 along with any recommendations of the Department of the 

20 Treasury for statutory changes or funding authorizations 

21 needed to improve the effectiveness of the Department’s 

22 efforts in the enforcement of intellectual property rights. 

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

24 shall submit the annual strategic plan under subsection 


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1 (d) not later than 180 days after the date of the enact2 ment of this Act and annually thereafter. 

3 SEC. 314. CBP AND ICE COORDINATORS. 

4 (a) CBP COORDINATORS.— 

5 (1) APPOINTMENT.—The Commissioner shall 

6 appoint a CBP coordinator of intellectual property 

7 rights enforcement activities (in this chapter re8 ferred to as the ‘‘CBP Coordinator’’), who shall re9 port directly to the Commissioner. 

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

11 (A) assist the Director of Intellectual 

12 Property Rights Enforcement of the Depart13 ment of the Treasury in the development of the 

14 annual strategic plan, and coordinate the imple15 mentation of those aspects of the plan that in16 volve CBP; 

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

18 entry and elsewhere, carried out by CBP in the 

19 enforcement of intellectual property rights, in20 cluding training and staffing; 

21 (C) supervise the implementation of those 

22 aspects of the regulatory and policy reforms set 

23 out in this title that involve CBP; and 

24 (D) carry out such other duties, as as25 signed by the Commissioner, the purpose of 


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1 which is to improve the performance of CBP in 

2 the enforcement of intellectual property rights. 

3 (b) ICE COORDINATOR.— 

4 (1) APPOINTMENT.—The Assistant Secretary 

5 for United States Immigration and Customs En6 forcement shall appoint an ICE coordinator of intel7 lectual property enforcement activities (referred to in 

8 this chapter as the ‘‘ICE Coordinator’’), who shall 

9 report directly to the Assistant Secretary for ICE. 

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

11 (A) assist the Director of Intellectual 

12 Property Rights Enforcement of the Depart13 ment of the Treasury in the development of the 

14 annual strategic plan, and coordinate the imple15 mentation of those aspects of the plan that in16 volve ICE; 

17 (B) coordinate all efforts carried out by 

18 ICE the enforcement of intellectual property 

19 rights, including training and staffing; 

20 (C) supervise the implementation of those 

21 aspects of the regulatory and policy reforms set 

22 out in this title that involve ICE; and 

23 (D) carry out such other duties, as as24 signed by the Assistant Secretary for ICE, the 

25 purpose which is to improve the performance of 


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1 ICE in the enforcement of intellectual property 

2 rights. 

3 CHAPTER 2—REGULATORY AND POLICY 

4 IMPROVEMENTS AGAINST COUNTER5 FEITING AND PIRACY 

6 SEC. 321. IN GENERAL. 

7 (a) COMMISSIONER’S RESPONSIBILITIES.—The Com8 missioner, acting through the CBP Coordinator, shall un9 dertake the initiatives provided in this chapter. 

10 (b) CBP COORDINATOR’S RESPONSIBILITIES.—Ex11 cept as otherwise provided in this chapter, the CBP Coor12 dinator shall— 

13 (1) prepare an annual report on activities car14 ried out under this chapter; and 

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

16 Intellectual Property Rights Enforcement of the De17 partment of the Treasury in a timely manner that 

18 will permit its inclusion in the annual strategic plan 

19 prepared under section 313. 

20 SEC. 322. IDENTIFICATION OF CERTAIN UNLAWFUL GOODS. 

21 (a) IN GENERAL.—The Secretary, acting through the 

22 Commissioner, shall accelerate efforts to apply risk assess23 ment modeling techniques to border enforcement activities 

24 to combat counterfeiting and piracy. These efforts shall 

25 include, but not be limited to— 


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

2 pilot project in risk assessment modeling with re3 spect to shipments of counterfeit or pirated prod4 ucts; 

5 (2) expanding the pilot project to include devel6 opment of a rule set for the Automated Targeting 

7 System; and 

8 (3) developing a plan for the development, test9 ing, evaluation, and continuous improvement of risk 

10 assessment modeling techniques for purposes of tar11 geting goods that violate intellectual property rights. 

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

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

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

15 plan that is prepared under section 313. 

16 SEC. 323. TRAINING IN NEW TECHNOLOGIES. 

17 (a) TRAINING OF PERSONNEL.—The Commissioner 

18 shall consult with the Advisory Committee to determine 

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

20 technological means for detecting and identifying, at ports 

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

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

23 the United States or in transit to other destinations. 


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1 (b) IDENTIFICATION OF TECHNOLOGIES AND

2 SOURCES OF TRAINING.—In consultation with the Advi3 sory Committee, the Commissioner shall identify— 

4 (1) new technologies with the cost-effective ca5 pability to detect and identify goods described in 

6 subsection (a) at ports of entry, and 

7 (2) economical sources of training CBP per8 sonnel in using such new technologies, 

9 to the extent such training is determined to be feasible 

10 under subsection (a). 

11 (c) REGULATORY AND POLICY CHANGES.—The 

12 Comptroller General of the United States shall provide to 

13 the Congress a report analyzing the costs and benefits of 

14 allowing necessary regulatory and policy changes to enable 

15 the receipt of donations of hardware, software, equipment, 

16 and similar technologies, and the acceptance of training 

17 and other support services, from the private sector, to fa18 cilitate the achievement of the purposes of this section. 

19 SEC. 324. DISCLOSURE OF INFORMATION AND SAMPLES OF 

20 SHIPMENTS TO INTELLECTUAL PROPERTY 

21 OWNERS. 

22 The Commissioner shall make the necessary regu23 latory and policy changes to— 

24 (1) increase disclosure to owners of copyrights, 

25 trademarks, patents, and other forms of intellectual 


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1 property of information about shipments of goods 

2 that have been detained at ports of entry on sus3 picion that their importation into, or transit 

4 through, the United States would violate the intellec5 tual property rights of the owners of those rights, 

6 including— 

7 (A) disclosing the identities and contact in8 formation of all parties involved in the ship9 ments, including importers, exporters, declar10 ants, consignees, freight forwarders, and ware11 house owners; 

12 (B) providing documents relating to the 

13 shipments; and 

14 (C) identifying points of origin and des15 tination of the shipments; and 

16 (2) improve the process of making available to 

17 representatives of owners of copyrights, trademarks, 

18 patents, and other forms of intellectual property, in 

19 an efficient and cost-effective manner, samples of 

20 shipments of goods suspected of infringing intellec21 tual property rights, for the purpose of inspection or 

22 analysis. 

23 SEC. 325. IMPROVEMENTS TO RECORDATION PROCESS. 

24 (a) IMPROVEMENTS IN RECORDATION PROCESS.— 

25 The Commissioner shall make the necessary regulatory 


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1 and policy changes to ensure that the system for recorda2 tion of copyrights, trademarks, and other forms of intellec3 tual property that may be subject to recordation does not 

4 impede the rapid seizure of goods that infringe the rights 

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

6 forms of intellectual property. 

7 (b) SIMULTANEOUS RECORDATION.— 

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

9 Under Secretary of Commerce for Intellectual Prop10 erty and Director of the United States Patent and 

11 Trademark Office, and the Register of Copyrights, 

12 the Commissioner shall provide a system whereby 

13 trademarks may be recorded with CBP simulta14 neously with the issuance of trademark registration, 

15 and whereby copyrights of audiovisual works and 

16 sound recordings may be recorded with CBP simul17 taneously with the filing of an application for a cer18 tificate of copyright registration or an application 

19 for registration of another intellectual property right 

20 under title 17, United States Code. 

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

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

23 have the meanings given those terms in section 101 

24 of title 17, United States Code. 


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1 SEC. 326. IDENTIFICATION OF LOW-RISK SHIPPERS. 

2 (a) VOLUNTARY CERTIFICATION PROGRAM.—The 

3 Commissioner shall create a voluntary certification pro4 gram, comparable to the Import Safety Program estab5 lished under section 304, for low-risk shippers that have 

6 taken specific measures to strengthen and protect their 

7 supply chains to prevent the infiltration into the inter8 national supply chain of counterfeit and pirated goods, 

9 goods that are the subject to exclusion orders, and goods 

10 that violate other forms of intellectual property rights. 

11 (b) SELF-CERTIFICATIONS; VERIFICATIONS.—The 

12 program under subsection (a) shall generally operate on 

13 a self-certification basis, except that the Commissioner 

14 shall identify any circumstances in which third party 

15 verifications and attestations are required for inclusion in 

16 the program, which may include importations from the 

17 People’s Republic of China. 

18 (c) EXPEDITED MOVEMENT.—The Commissioner 

19 shall create incentives for shippers to participate in the 

20 certification program, including providing expedited move21 ment of the goods of the shippers through the customs 

22 inspection process. 

23 (d) DEFINITION.—In this section, the term ‘‘inter24 national supply chain’’ has the meaning given that term 

25 in section 301. 


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1 SEC. 327. ‘‘WATCH LIST’’ DATABASE. 

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

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

4 of importers, shippers, freight forwarders, and other par5 ticipants in the import, export, and transshipment process, 

6 whose activities merit additional scrutiny at ports of entry 

7 with respect to the risk of importation or transshipment 

8 of counterfeit or pirated goods and goods that are the sub9 ject to exclusion orders. 

10 (b) WORKING GROUPS.—The Commissioner shall 

11 consult with the Advisory Committee on the development 

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

13 (c) INFORMATION SOURCES.—The plan under sub14 section (a) shall identify legitimate information sources for 

15 the database from within CBP, from other law enforce16 ment sources, and from the private sector. 

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

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

19 database should be made available to qualified CBP and 

20 other law enforcement officers, for intelligence purposes, 

21 and for use in flagging and diverting for enhanced scru22 tiny shipments to ports of entry that are associated with 

23 entities listed in the database. 

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

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

26 Department of the Treasury would make in order to bring 


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1 the database into operation, as well as any recommenda2 tions for needed changes to legislation to make the data3 base more effective. The plan shall also include budget es4 timates for implementation and operation of the database, 

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

6 such implementation. 

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

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

9 the first annual strategic plan prepared under section 313. 

10 SEC. 328. CIVIL FINES FOR IMPORTATION OF PIRATED OR 

11 COUNTERFEIT GOODS. 

12 (a) LIMITATION ON MITIGATION, DISMISSAL, AND

13 VACATION OF FINES.—Unless otherwise ordered by a 

14 court of competent jurisdiction, any civil fine imposed pur15 suant to section 526(f) of the Tariff Act of 1930 (19 

16 U.S.C. 1526(f))— 

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

18 regulations issued by the Commissioner; and 

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

20 pursuant to regulations issued by the Commissioner 

21 that require the specific approval of the Commis22 sioner or the Commissioner’s designee for such dis23 missal or vacation. 

24 (b) EXTRAORDINARY CASES.—In issuing regulations 

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


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1 the mitigation, dismissal, or vacation of civil fines for in2 volvement in the importation, exportation, or trans3 shipment of pirated or counterfeit goods is limited to ex4 traordinary cases in which the interests of justice will 

5 clearly be served by such action. 

6 (c) REPORT TO CONGRESS.—The Commissioner 

7 shall, not later than 180 days after the date of the enact8 ment of this Act, report to the Committee on Finance of 

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

10 House of Representatives on the following: 

11 (1) Whether CBP currently has the authority to 

12 employ effective collection techniques for collecting 

13 civil fines it imposes on participants in the importa14 tion, exportation, or transshipment of pirated or 

15 counterfeit goods. 

16 (2) If CBP lacks such authority, the Commis17 sioner’s recommendations for legislation to provide 

18 CBP with such authority. 

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

20 using such authority, and with what results in terms 

21 of increased collections of fines imposed. 

22 (4) The Commissioner’s recommendations on 

23 whether, in specific cases, copyright or trademark 

24 owners should be authorized to pursue and collect 

25 fines imposed because of activities that infringe their 


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1 intellectual property rights, and whether such copy2 right or trademark owners should be allowed to re3 tain some or all of the funds that they collect. 

4 (5) Any other recommendations for statutory, 

5 regulatory, or policy changes not under the control 

6 of CBP that would improve the ability of CBP to 

7 impose civil fines, at deterrent levels, on participants 

8 in trafficking in counterfeit or pirated goods, and to 

9 collect the fines imposed. 

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

11 ‘‘effective collection techniques’’ includes— 

12 (1) confiscation of the proceeds of acts for 

13 which civil fines can be imposed; 

14 (2) seizure of and execution upon property ac15 quired with such proceeds; 

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

17 property of persons upon whom civil fines are im18 posed; 

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

20 (5) piercing the corporate veil of corporations 

21 upon which civil fines are imposed, in order to sat22 isfy the fine from the assets of natural persons or 

23 of other legal persons; and 

24 (6) engaging private sector entities to collect 

25 civil fines imposed. 


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1 CHAPTER 3—TRAINING ENHANCEMENTS 

2 SEC. 331. INTERNATIONAL TRAINING AND TECHNICAL AS3 SISTANCE ENHANCEMENTS. 

4 The Secretary shall take the necessary steps— 

5 (1) to increase staffing and resources of offices 

6 of CBP and ICE engaged in providing training and 

7 technical assistance to the customs services and en8 forcement agencies of other countries in order to im9 prove the effectiveness of such foreign services and 

10 agencies in detecting, intercepting, and imposing de11 terrent penalties upon the export, import, or trans12 shipment of counterfeit or pirated goods, goods that 

13 are the subject to exclusion orders, and goods that 

14 violate other forms of intellectual property rights; 

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

16 make the most efficient and effective use of training 

17 and technical assistance resources— 

18 (A) coordinates the international training 

19 and technical assistance activities of CBP and 

20 ICE as part of the Director’s coordination re21 sponsibilities under subsections (c)(1) and 

22 (c)(3) of section 312; 

23 (B) gives priority to such activities in those 

24 countries where such programs can be carried 

25 out most effectively and with the greatest benVerDate Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00092 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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1 efit to protecting the intellectual property rights 

2 of United States right holders; 

3 (C) takes steps to minimize duplication, 

4 overlap, or inconsistency of international train5 ing and technical assistance efforts; and 

6 (D) coordinates such activities of the De7 partment of the Treasury with international 

8 training and technical assistance activities 

9 against counterfeiting and piracy carried out by 

10 other agencies, and enhances the participation 

11 of Department of the Treasury personnel in 

12 interagency training and technical assistance 

13 activities in this field. 

14 CHAPTER 4—NEW LEGAL TOOLS FOR 

15 BORDER ENFORCEMENT 

16 SEC. 341. EXPANDED PROHIBITIONS ON IMPORTATION OR 

17 EXPORTATION OF COUNTERFEIT OR PIRAT18 ED GOODS. 

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

20 1526) is amended— 

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

22 PROTECTED BY COPYRIGHT’’ after ‘‘TRADE23 MARK’’; 


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

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

3 United States’’; 

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

5 and inserting the following: 

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

7 financially or otherwise, or aids and abets the impor8 tation or exportation of merchandise that is seized 

9 under subsection (e) of this section, or under regula10 tions issued pursuant to section 603(c) of title 17, 

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

12 and 

13 (4) in subsection (f)— 

14 (A) by redesignating paragraph (4) as 

15 paragraph (5); and 

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

17 following: 

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

19 made under circumstances indicating that the importation 

20 or exportation was for the purpose of sale or public dis21 tribution of the good seized, the maximum fine amounts 

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


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1 SEC. 342. DECLARATIONS REGARDING COUNTERFEIT AND 

2 INFRINGING MERCHANDISE. 

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

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

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

6 and inserting ‘‘whether’’; 

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

8 inserting ‘‘that’’; 

9 (3) in paragraph (3)— 

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

11 ‘‘that’’; and 

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

13 (4) in paragraph (4)— 

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

15 ‘‘that’’; and 

16 (B) by striking the period and inserting a 

17 semicolon; and 

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

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

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

21 defined in section 45 of the Act of July 5, 1946 

22 (commonly referred to as the ‘Trademark Act of 

23 1946’; 15 U.S.C. 1127); 

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

25 copy or phonorecord or one whose making would 


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1 have constituted an infringement of copyright if title 

2 17, United States Code, had applied; and 

3 ‘‘(7) that the merchandise— 

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

5 the United States International Trade Commis6 sion under section 337 (d) or (e) by reason of 

7 any of subparagraphs (B) through (E) of sub8 section (a)(1) of section 337; or 

9 ‘‘(B) infringe any other intellectual prop10 erty right not covered by subparagraph (A) or 

11 by paragraph (5) or (6).’’. 

12 (b) REGULATIONS.—The Secretary shall issue regula13 tions requiring that the declarations required by para14 graphs (5), (6), and (7) of section 485(a) of the Tariff 

15 Act of 1930 be made by all persons arriving in the United 

16 States with respect to articles carried on their person or 

17 contained in their baggage. 

18 CHAPTER 5—REGULATORY AUTHORITY 

19 SEC. 351. REGULATORY AUTHORITY. 

20 The Secretary may issue such regulations as are nec21 essary to carry out this subtitle. 

22 Subtitle C—Administrative 

23 Provisions 

24 SEC. 361. DEFINITIONS. 

25 In this subtitle: 


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

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

3 Secretary for U.S. Immigration and Customs En4 forcement. 

5 (2) COMMISSIONER.—The term ‘‘Commis6 sioner’’ means the Commissioner responsible for 

7 U.S. Customs and Border Protection. 

8 (3) CBP.—The term ‘‘CBP’’ means U.S. Cus9 toms and Border Protection. 

10 (4) ICE.—The term ‘‘ICE’’ means U.S. Immi11 gration and Customs Enforcement. 

12 (5) SECRETARY.—The term ‘‘Secretary’’ means 

13 the Secretary of the Treasury. 

14 SEC. 362. ADVISORY COMMITTEE ON IMPORT SAFETY AND 

15 INTELLECTUAL PROPERTY ENFORCEMENT. 

16 (a) ESTABLISHMENT.— 

17 (1) IN GENERAL.—The Secretary, acting 

18 through the Commissioner and the Assistant Sec19 retary for ICE, shall establish an advisory committee 

20 which shall be known as the ‘‘Advisory Committee 

21 on Import Safety and Intellectual Property Rights 

22 Enforcement’’ (in this section referred to as the 

23 ‘‘Advisory Committee)’’. 

24 (2) MEMBERSHIP.—The Advisory Committee 

25 shall consist of 20 members appointed by the SecVerDate Nov 24 2008 00:20 Jan 16, 2009 Jkt 079200 PO 00000 Frm 00097 Fmt 6652 Sfmt 6201 E:\BILLS\H496.IH H496

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1 retary. In making appointments to the Advisory 

2 Committee, the Secretary shall ensure that— 

3 (A) the membership of the Advisory Com4 mittee is representative of the individuals and 

5 organizations affected by the enforcement of 

6 health or safety and intellectual property rights 

7 by CBP and ICE; 

8 (B) at least one member of the Advisory 

9 Committee is a representative of organized 

10 labor; 

11 (C) at least one member of the Advisory 

12 Committee is a representative of consumer 

13 groups; and 

14 (D) a majority of the members of the Advi15 sory Committee do not belong to the same polit16 ical party. 

17 (b) DUTIES.—The Advisory Committee shall— 

18 (1) provide advice to the Secretary, the Com19 missioner, and the Assistant Secretary for ICE on 

20 all matters involving the enforcement of import safe21 ty and intellectual property rights by CBP and ICE; 

22 and 

23 (2) submit an annual report to the Committee 

24 on Finance of the Senate and the Committee on 


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1 Ways and Means of the House of Representatives 

2 that shall— 

3 (A) describe the operations of the Advisory 

4 Committee during the preceding year; and 

5 (B) set forth any recommendations of the 

6 Advisory Committee regarding the enforcement 

7 of intellectual property rights by CBP and ICE. 

8 (c) PRESIDING OFFICERS.—The Commissioner and 

9 the Assistant Secretary for ICE shall preside over meet10 ings of the Advisory Committee. 

11 SEC. 363. STAFFING ENHANCEMENTS AT CBP. 

12 (a) AUTHORIZATION OF APPROPRIATIONS.—There 

13 are authorized to be appropriated to CBP such funds as 

14 may be necessary for additional personnel (as determined 

15 in accordance with the Resource Allocation Model estab16 lished pursuant to section 301(h) of the Customs Proce17 dural Reform and Simplification Act of 1978 (19 U.S.C. 

18 2075(h)) to carry out the additional responsibilities of 

19 CBP under this title regarding the importation, trans20 shipment, and exportation of counterfeit or pirated goods, 

21 goods that are the subject to exclusion orders, goods that 

22 violate other forms of intellectual property rights, and 

23 goods that violate United States health or safety laws. 


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1 (b) AMENDMENT.—Section 301(h)(1) of the Customs 

2 Procedural Reform and Simplification Act of 1978 (19 

3 U.S.C. 2075(h)) is amended— 

4 (1) in subparagraph (F), by striking ‘‘and’’ at 

5 the end; 

6 (2) in subparagraph (G), by striking the period 

7 at the end and inserting ‘‘; and’’; and 

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

9 ‘‘(H) enforcing provisions of law relating 

10 to health and safety.’’. 

11 SEC. 364. STAFFING ENHANCEMENTS AT ICE. 

12 There are authorized to be appropriated to ICE such 

13 funds as may be necessary for additional personnel to 

14 carry out the additional responsibilities of ICE under this 

15 title regarding the enforcement of United States health 

16 and safety laws and the enforcement of intellectual prop17 erty rights, including for developing and implementing a 

18 training program with respect to United States health and 

19 safety laws and intellectual property rights for each ICE 

20 attache ́ office outside the United States. 


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1 Subtitle D—Authorization of 

2 Appropriations 

3 SEC. 371. AUTHORIZATION OF APPROPRIATIONS. 

4 There are authorized to be appropriated for each fis5 cal year such sums as may be necessary to carry out this 

6 title and the amendments made by this title. 

Æ 


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