II 

111TH CONGRESS 

1ST SESSION S. 2821 

To require a review of existing trade agreements and renegotiation of existing 

trade agreements based on the review, to establish terms for future 

trade agreements, to express the sense of the Congress that the role 

of Congress in making trade policy should be strengthened, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 1, 2009 

Mr. BROWN (for himself, Mr. FEINGOLD, Mr. WHITEHOUSE, Mr. DORGAN, 

Mr. CASEY, Mr. SANDERS, and Mr. MERKLEY) introduced the following 

bill; which was read twice and referred to the Committee on Finance 

A BILL 

To require a review of existing trade agreements and renegotiation of existing trade agreements based on the review, 

to establish terms for future trade agreements, to express 

the sense of the Congress that the role of Congress 

in making trade policy should be strengthened, 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. 

2 This Act may be cited as the ‘‘Trade Reform, Ac3 countability, Development, and Employment Act of 2009’’ 

4 or the ‘‘TRADE Act of 2009’’. 

5 SEC. 2. DEFINITIONS. 

6 In this Act: 

7 (1) CORE LABOR RIGHTS.—The term ‘‘core 

8 labor rights’’ means the core labor rights as stated 

9 in the International Labour Organization conven10 tions dealing with— 

11 (A) freedom of association and the effec12 tive recognition of the right to collective bar13 gaining; 

14 (B) the elimination of all forms of forced 

15 or compulsory labor; 

16 (C) the effective abolition of child labor; 

17 and 

18 (D) the elimination of discrimination with 

19 respect to employment and occupation. 

20 (2) MAJOR U.S. TRADING PARTNERS.—The 

21 term ‘‘major U.S. trading partners’’ means the top 

22 10 countries that represent the largest trade in dol23 lar value of imports into the United States and ex24 ports from the United States, excluding petroleum 

25 and petroleum products, based on data compiled by 

26 the Department of Commerce for the most recent 


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1 12-month period preceding the date of the enact2 ment of this Act. 

3 (3) MULTILATERAL ENVIRONMENTAL AGREE4 MENT.—The term ‘‘multilateral environmental 

5 agreement’’ means any international agreement or 

6 provision thereof to which the United States is a 

7 party and which is intended to protect, or has the 

8 effect of protecting, the environment or human 

9 health. 

10 (4) STATE.—The term ‘‘State’’ means each of 

11 the several States, the District of Columbia, and any 

12 commonwealth, territory, or possession of the United 

13 States. 

14 (5) TRADE AGREEMENT.— 

15 (A) IN GENERAL.—The term ‘‘trade agree16 ment’’ includes the following: 

17 (i) The North American Free Trade 

18 Agreement. 

19 (ii) The Agreement between the 

20 United States of America and the 

21 Hashemite Kingdom of Jordan on the Es22 tablishment of a Free Trade Area. 

23 (iii) The Dominican Republic-Central 

24 America-United States Free Trade Agree25 ment. 


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1 (B) URUGUAY ROUND AGREEMENTS.—The 

2 term ‘‘trade agreement’’ includes the following 

3 agreements resulting from the Uruguay Round 

4 of Multilateral trade negotiations: 

5 (i) The General Agreement on Tariffs 

6 and Trade (GATT 1994) annexed to the 

7 WTO Agreement. 

8 (ii) The WTO Agreement described in 

9 section 2(9) of the Uruguay Round Agree10 ments Act (19 U.S.C. 3501(9)). 

11 (iii) Each of the agreements described 

12 in section 101(d) of the Uruguay Round 

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

14 (iv) Any multilateral agreement en15 tered into under the auspices of the World 

16 Trade Organization dealing with informa17 tion technology, telecommunications, or fi18 nancial services. 

19 (6) TRADE AGREEMENT COUNTRY.—The term 

20 ‘‘trade agreement country’’ means a country that 

21 is— 

22 (A) a party to an agreement described in 

23 paragraph (5)(A); or 


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1 (B) a major U.S. trading partner that is a 

2 party to an agreement described in paragraph 

3 (5)(B). 

4 (7) TRIPS AGREEMENT.—The term ‘‘TRIPS 

5 Agreement’’ means the Agreement on Trade-Related 

6 Aspects of Intellectual Property Rights described in 

7 section 101(d)(15) of the Uruguay Round Agree8 ments Act (19 U.S.C. 3511(d)(5)). 

9 (8) WORLD TRADE ORGANIZATION.—The term 

10 ‘‘World Trade Organization’’ means the organization 

11 established pursuant to the WTO Agreement. 

12 SEC. 3. REVIEW AND REPORT ON EXISTING TRADE AGREE13 MENTS. 

14 (a) REVIEW AND REPORT.— 

15 (1) IN GENERAL.—Not later than June 30, 

16 2011, the Comptroller General of the United States 

17 shall conduct a review, and submit a report to the 

18 Committee on Finance of the Senate and the Com19 mittee on Ways and Means of the House of Rep20 resentatives, with respect to each trade agreement 

21 described in section 2(5)(A) and each trade agree22 ment described in section 2(5)(B) to the extent such 

23 agreement is in effect with respect to a major U.S. 

24 trading partner. The report shall include an evalua25 tion of the economic, employment, environmental, 


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1 national security, health, safety, and other effects of 

2 each such agreement. 

3 (2) COOPERATION OF AGENCIES.—The Secre4 taries of State, Agriculture, Commerce, Labor, and 

5 the Treasury, and the heads of other executive de6 partments and agencies shall cooperate with the 

7 Comptroller General in providing access to officials 

8 and documents to facilitate the preparation of the 

9 report. 

10 (b) INFORMATION WITH RESPECT TO TRADE

11 AGREEMENTS.—The report required by subsection (a) 

12 shall, with respect to each trade agreement described in 

13 subsection (a), to the extent practicable, include the fol14 lowing information covering the period between the date 

15 on which the agreement entered into force with respect 

16 to the United States and the date on which the Comp17 troller General completes the review: 

18 (1) An analysis of indicators of the economic 

19 impact of each trade agreement, including the fol20 lowing: 

21 (A) The dollar value of goods exported 

22 from the United States and imported for con23 sumption into the United States by sector, year, 

24 and trade agreement country, including a list of 

25 those goods for which there has been a change 


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1 in 10 percent or more in bilateral trade with 

2 each such country. 

3 (B) The employment effects of the agree4 ment, including job gains and losses in the 

5 United States by sector and changes in wage 

6 levels in the United States in dollars by sector 

7 and year, and the employment effects of the 

8 agreement in each trade agreement country. 

9 (C) The share of global production, pro10 ductive capacity, investment, exports, employ11 ment, and other indicators of the competitive 

12 position of industries in the United States sig13 nificantly affected by each such trade agree14 ment, taking into account changes in sourcing 

15 patterns before and after entry into force of the 

16 trade agreement. 

17 (2) The effect of each trade agreement on agri18 culture, including— 

19 (A) the trend on a year-to-year basis of— 

20 (i) the prices and production volumes 

21 of agricultural commodities, food products, 

22 and ingredients in the United States and 

23 in each trade agreement country; 

24 (ii) the prices and volumes of such 

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1 ported from the United States to each 

2 such trade agreement country; and 

3 (iii) the prices and volumes of such 

4 commodities, products, and ingredients im5 ported into the United States from each 

6 such trade agreement country; 

7 (B) the number of farms operating in the 

8 United States detailed by farm typology and 

9 sales level and the number of acres under pro10 duction by crop used to produce agricultural 

11 commodities that are exported from the United 

12 States to a country that is a party to each 

13 agreement listed in section 2(5)(A) on a year14 to-year basis; and 

15 (C) changes in United States meat exports 

16 and the employment impacts of meat exports. 

17 (3) An analysis of the progress being made in 

18 implementing the commitments contained in each 

19 agreement and the record of compliance with the 

20 terms of each agreement in effect between the 

21 United States and a trade agreement country. 

22 (4) A description of any outstanding disputes 

23 between the United States and any trade agreement 

24 country, including a description of laws, regulations, 

25 or policies of the United States or any State that a 


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1 trade agreement country has challenged, or threat2 ened to challenge, under a trade agreement. 

3 (5) An analysis of the ability of the United 

4 States to ensure that any trade agreement country 

5 complies with laws and regulations of the United 

6 States, including— 

7 (A) the customs laws of the United States; 

8 (B) laws relating to the payment of duties 

9 on goods imported into the United States; 

10 (C) health, safety, and inspection require11 ments with respect to food and other products 

12 imported into the United States; and 

13 (D) prohibitions on the transshipment of 

14 goods that are ultimately imported into the 

15 United States. 

16 (6) An analysis of any privatization of public 

17 sector services in the United States and in each 

18 trade agreement country if the service involved is 

19 covered by the investment, financial services, or serv20 ices provisions of a trade agreement. The analysis 

21 shall include any effect privatization has on con22 sumer access to essential services, such as health 

23 care, electricity, gas, water, telephone service, or 

24 other utilities. 


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1 (7) An assessment of the impact the intellectual 

2 property provisions of each trade agreement has on 

3 consumer access to pharmaceuticals and on the re4 tail price of pharmaceuticals in each trade agree5 ment country and the effect, if any, that changes in 

6 the price of pharmaceuticals have had on access by 

7 consumers to pharmaceuticals. 

8 (8) An analysis of the impact of the government 

9 procurement provision of each trade agreement on 

10 the procurement of goods and services by Federal 

11 and State agencies and by each trade agreement 

12 country. 

13 (9) An assessment of the consequences of sig14 nificant currency movements of each trade agree15 ment country and a determination of whether the 

16 currency of the country is misaligned deliberately to 

17 promote a competitive advantage in international 

18 trade for that country. 

19 (c) INFORMATION ON COUNTRIES THAT ARE PAR20 TIES TO TRADE AGREEMENTS.—In addition to the infor21 mation required by subsection (b), the report required 

22 under subsection (a) shall include, with respect to each 

23 trade agreement country, information regarding whether 

24 the country— 

25 (1) has a democratic form of government; 


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1 (2) has adopted into domestic law and regula2 tions the core labor rights and effectively enforces 

3 those rights as reflected in reports of the Committee 

4 of Experts on the Application of Conventions and 

5 Recommendations, the Conference Committee on the 

6 Application of Standards, and the Committee on 

7 Freedom of Association of the International Labour 

8 Organization; 

9 (3) respects fundamental human rights, as re10 flected in the annual Country Reports on Human 

11 Rights Practices of the Department of State; 

12 (4) is designated as a country of particular con13 cern with respect to religious freedom under section 

14 402(b)(1) of the International Religious Freedom 

15 Act of 1998 (22 U.S.C. 6442(b)(1)); 

16 (5) is on a list described in subparagraph (B) 

17 or (C) of section 110(b)(1) of the Trafficking Vic18 tims Protection Act of 2000 (22 U.S.C. 7107(b)(1)) 

19 (commonly known as tier 2 or tier 3 of the Traf20 ficking in Persons List of the Department of State); 

21 (6) has taken effective measures to combat and 

22 prevent public and private corruption, including 

23 measures with respect to tax evasion and money 

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1 national Business Transactions of the Organization 

2 for Economic Cooperation and Development; 

3 (7) complies with the multilateral environmental 

4 agreements to which the country is a party; 

5 (8) has in force adequate environmental laws 

6 and regulations, has devoted sufficient resources to 

7 implementing such laws and regulations, and has an 

8 adequate record of enforcement of such law and reg9 ulations; 

10 (9) enforces the rights and flexibilities of the 

11 TRIPS Agreement; and 

12 (10) provides for government transparency, due 

13 process of law, and respect for international agree14 ments. 

15 (d) NATIONAL SECURITY ANALYSIS.—The report re16 quired by subsection (a) shall include with respect to each 

17 trade agreement country an assessment of the country’s 

18 transfer of technology, production, and services and an 

19 analysis of whether the country poses a potential concern 

20 to the national security of the United States. 

21 (e) RECOMMENDATIONS.—Each report required 

22 under subsection (a) shall include recommendations of the 

23 Comptroller General for addressing the problems identi24 fied under subsections (b), (c), and (d) with respect to 

25 each trade agreement. The recommendations shall include 


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1 suggestions for renegotiating the agreement based on the 

2 requirements described in section 4(b). 

3 (f) CITATIONS.—The Comptroller General shall in4 clude in the report required under subsection (a) citations 

5 to the sources of data used in preparing the report and 

6 a description of the methodologies employed in preparing 

7 each report. 

8 (g) PUBLIC COMMENT.—In preparing each report re9 quired under subsection (a), the Comptroller General 

10 shall— 

11 (1) hold hearings that are open to the public; 

12 and 

13 (2) provide an opportunity for members of the 

14 public to testify and submit written comments. 

15 (h) PUBLIC AVAILABILITY.—Each report required 

16 under subsection (a) shall be made available to the public 

17 not later than 14 days after the Comptroller General com18 pletes the report. 

19 SEC. 4. INCLUSION OF CERTAIN PROVISIONS IN TRADE 

20 AGREEMENTS. 

21 (a) IN GENERAL.—Notwithstanding section 151 of 

22 the Trade Act of 1974 (19 U.S.C. 2191) or any other pro23 vision of law, any bill implementing a trade agreement be24 tween the United States and another country that is intro25 duced in Congress after the date of the enactment of this 


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1 Act shall be subject to a point of order pursuant to sub2 section (c) unless the trade agreement meets the require3 ments described in subsection (b). 

4 (b) REQUIREMENTS.—Each trade agreement between 

5 the United States and another country with respect to 

6 which an implementing bill is introduced on or after the 

7 date of the enactment of this Act shall meet the following 

8 requirements: 

9 (1) LABOR STANDARDS.—The labor provisions 

10 of the agreement shall— 

11 (A) be included in the core text of the 

12 agreement; 

13 (B) require each country that is a party to 

14 the agreement— 

15 (i) to adopt and maintain laws and 

16 regulations (including laws applicable to 

17 any designated zone in the country) that 

18 establish core labor rights; and 

19 (ii) to effectively enforce laws relating 

20 to core labor rights and laws relating to 

21 acceptable conditions of work (including 

22 laws relating to minimum wages, hours of 

23 work, and occupational safety and health); 

24 (C) prohibit a country that is a party to 

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1 gating from, or offering to waive or otherwise 

2 derogate from, the country’s laws and regula3 tions relating to the core labor rights and ac4 ceptable conditions of work described in sub5 paragraph (B); 

6 (D) provide that failures to meet the labor 

7 requirements of the agreement, regardless of 

8 the effect that failure has on trade, shall be 

9 subject to the dispute resolution and enforce10 ment mechanisms and penalties of the agree11 ment; 

12 (E) provide that enforcement mechanisms 

13 and penalties for failures described in subpara14 graph (D) are included in the core text of the 

15 agreement and are at least as effective as the 

16 mechanisms and penalties that apply to the 

17 commercial provisions of the agreement; 

18 (F) strengthen the capacity of each coun19 try that is a party to the agreement to promote, 

20 protect, and enforce core labor rights; 

21 (G) require that each country that is a 

22 party to the agreement have a national contact 

23 point for every labor complaint, produce a re24 port that addresses all the issues raised in the 

25 complaint and include recommendations on all 


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1 confirmed allegations, including specific rec2 ommendations for employers directly or indi3 rectly implicated in the complaint; and 

4 (H) require that— 

5 (i) there is a full and expeditious re6 mediation of all labor complaints; and 

7 (ii) the remediation plan is satisfac8 tory to all parties and conforms to the 

9 findings and recommendations of the na10 tional contact point described in subpara11 graph (G). 

12 (2) ENVIRONMENTAL AND PUBLIC SAFETY

13 STANDARDS.—The environmental provisions of the 

14 agreement shall— 

15 (A) be included in the text of the agree16 ment; 

17 (B) prohibit each country that is a party 

18 to the agreement from weakening, eliminating, 

19 or failing to enforce domestic environmental or 

20 other public interest standards to promote trade 

21 or attract investment; 

22 (C) require each such country to imple23 ment and enforce fully and effectively the coun24 try’s obligations under multilateral environVerDate Nov 24 2008 00:20 Dec 02, 2009 Jkt 089200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S2821.IS S2821

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1 mental agreements and provide for the enforce2 ment of such obligations under the agreement; 

3 (D) prohibit the trade of products that are 

4 illegally harvested or extracted and the trade of 

5 goods derived from illegally harvested or ex6 tracted natural resources, including timber and 

7 timber products, fish, wildlife, and associated 

8 products, mineral resources, or other environ9 mentally sensitive goods; 

10 (E) provide that the failure to meet the en11 vironmental standards required by the agree12 ment be subject to dispute resolution and en13 forcement mechanisms and penalties that are at 

14 least as effective as the mechanisms and pen15 alties that apply to the commercial provisions of 

16 the agreement; and 

17 (F) allow each country that is a party to 

18 the agreement to adopt and implement environ19 mental, health, and safety standards, recog20 nizing the legitimate right of governments to 

21 protect the environment and public health and 

22 safety. 

23 (3) FOOD AND PRODUCT HEALTH AND SAFETY

24 STANDARDS.—If the agreement contains health and 


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1 safety laws and regulations for food and other prod2 ucts, the agreement shall— 

3 (A) establish that food, feed, food ingredi4 ents, and other products relating to food may 

5 be imported into the United States from a 

6 country that is a party to the agreement only 

7 if such food and related products meet or ex8 ceed United States laws and regulations with 

9 respect to food safety, pesticides, inspections, 

10 packaging, and labeling; 

11 (B) establish that nonfood products may 

12 be imported into the United States from a 

13 country that is a party to the agreement only 

14 if such products meet or exceed United States 

15 laws and regulations with respect to health and 

16 safety, inspection, packaging, and labeling; 

17 (C) authorize the Commissioner of the 

18 Food and Drug Administration (in this Act, re19 ferred to as the ‘‘Commissioner’’) and the Con20 sumer Product Safety Commission (in this Act, 

21 referred to as the ‘‘Commission’’) to assess the 

22 regulatory system of each country that is a 

23 party to the agreement to determine whether 

24 the regulatory system of that country provides 

25 the same or better protection of health and 


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1 safety for food and other products as provided 

2 under the regulatory system of the United 

3 States; 

4 (D) if the Commissioner or the Commis5 sion determines that the regulatory system of a 

6 country does not provide the same or better 

7 protection of health and safety for food and 

8 other products as provided under the regulatory 

9 system of the United States, the agreement 

10 shall provide that the President may tempo11 rarily suspend the importation into the United 

12 States of food and other products from that 

13 country; 

14 (E) provide a process for inspecting and 

15 approving facilities in countries that the Com16 missioner or the Commission have found do not 

17 meet United States laws and regulations with 

18 respect to health and safety in order to allow 

19 products from approved facilities to be imported 

20 into the United States; and 

21 (F) if harmonization of food or product 

22 health or safety laws and regulations is nec23 essary to facilitate trade, the agreement shall 

24 provide that such harmonization shall be based 


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1 on standards that are no less stringent than 

2 United States laws and regulations. 

3 (4) SERVICES PROVISIONS.—If the agreement 

4 contains provisions relating to services, such provi5 sions shall— 

6 (A) preserve the right of Federal, State, 

7 and local governments to maintain essential 

8 public services and to regulate, for the benefit 

9 of the public, services provided to consumers; 

10 (B)(i) provide that a service is not subject 

11 to the agreement unless a country that is a 

12 party to the agreement establishes a positive 

13 list of each service sector that will be subject to 

14 the obligations of the country under the agree15 ment; and 

16 (ii) apply the agreement only to the service 

17 sectors that are on the list described in clause 

18 (i); 

19 (C) establish a general exception to the 

20 market access obligations contained in the 

21 agreement by allowing a country that is a party 

22 to the agreement to maintain or establish a ban 

23 on services that the country considers harmful 

24 to public health or safety, the environment, or 

25 public morals if the ban is applied to domestic 


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1 and foreign services and service providers equal2 ly; 

3 (D) require service providers in a country 

4 that is a party to the agreement that provide 

5 services through a commercial presence in the 

6 United States to consumers in the United 

7 States to comply with applicable United States 

8 environmental, land use, safety, privacy, trans9 parency, professional qualification, and con10 sumer access laws and regulations; 

11 (E) require that services provided to con12 sumers in the United States that would be sub13 ject to privacy laws and regulations in the 

14 United States may only be provided by service 

15 providers in other countries if those countries 

16 have privacy protections and protections regard17 ing confidential information that are equal to or 

18 exceed the protections provided by United 

19 States privacy laws and regulations; 

20 (F) provide that privatization of public 

21 services in any country that is a party to the 

22 agreement or the deregulation of a service is 

23 not required, including services relating to na24 tional security, social security, health, public 


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1 safety, education, water, sanitation, other utili2 ties, ports, or transportation; and 

3 (G) provide that local governments are not 

4 subject to the service sector obligations under 

5 the agreement. 

6 (5) INVESTMENT PROVISIONS.—If the agree7 ment contains provisions relating to investment, 

8 such provisions shall— 

9 (A) preserve the ability of each country 

10 that is a party to the agreement to regulate for11 eign investment in a manner consistent with the 

12 needs and priorities of the country; 

13 (B) preserve the ability of each country to 

14 place prudential restrictions on speculative cap15 ital to promote financial stability; 

16 (C) ensure that foreign investors operating 

17 in the United States are not afforded greater 

18 procedural or substantive rights under the trade 

19 agreement than those afforded to domestic in20 vestors under the Constitution and laws of the 

21 United States; 

22 (D) ensure that the adoption or application 

23 by any government of a nondiscriminatory 

24 measure intended to serve a public purpose is 


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1 not prohibited by the agreement and is not a 

2 violation of the agreement; 

3 (E) provide that the term ‘‘investment’’ 

4 only means a commitment of capital or the ac5 quisition of real property as understood under 

6 the laws of the country that is a party to the 

7 agreement and excludes the assumption of risk 

8 or expectation of gain or profit; 

9 (F) provide that the term ‘‘investor’’ 

10 means only a person who makes a commitment 

11 or an acquisition described in subparagraph 

12 (E); 

13 (G) limit protections against expropriations 

14 to direct expropriation of real property and pro15 vide that ‘‘direct expropriation’’ means govern16 ment action that does not merely diminish the 

17 value of real property but destroys all value of 

18 the real property permanently; and 

19 (H) define the standard of minimum treat20 ment to provide that foreign investors do not 

21 have greater legal rights than United States 

22 citizens possess under the due process clause of 

23 section 1 of the 14th Amendment to the Con24 stitution. 


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1 (6) PROCUREMENT STANDARDS.—If the agree2 ment contains government procurement provisions, 

3 such provisions shall— 

4 (A) provide that an industry sector, goods, 

5 and services are not subject to an agreement 

6 unless a country that is a party to the agree7 ment establishes a positive list of industry sec8 tors, goods, and services that will be subject to 

9 the obligations of the country under the agree10 ment; 

11 (B) with respect to the United States, 

12 apply only to a State that specifically agrees to 

13 the agreement and only to the industry sectors, 

14 goods, and services specifically identified by the 

15 State government and shall not apply to local 

16 governments; and 

17 (C) include only technical specifications for 

18 goods or services, or supplier qualifications or 

19 other conditions for receiving government con20 tracts that do not undermine— 

21 (i) prevailing wage policies; 

22 (ii) recycled content policies; 

23 (iii) sustainable harvest policies; 

24 (iv) renewable energy policies; 

25 (v) human rights; or 


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1 (vi) project labor agreements. 

2 (7) INTELLECTUAL PROPERTY REQUIRE3 MENTS.—If the agreement contains provisions re4 lated to the protection of intellectual property rights, 

5 such provisions shall— 

6 (A) promote adequate and effective protec7 tion of intellectual property rights; 

8 (B) include only terms relating to patents 

9 that do not, overtly or in application, limit the 

10 flexibilities and rights established in the Dec11 laration on the TRIPS Agreement and Public 

12 Health, adopted by the World Trade Organiza13 tion at the Fourth Ministerial Conference at 

14 Doha, Qatar, on November 14, 2001, particu15 larly the flexibilities and rights relating to the 

16 promotion of access to medicines and the 

17 issuance of compulsory licenses on grounds de18 termined by member states; and 

19 (C) require that any provisions relating to 

20 the patenting of traditional knowledge be con21 sistent with the Convention on Biological Diver22 sity, concluded at Rio de Janeiro June 5, 1992. 

23 (8) AGRICULTURAL STANDARDS.—If the agree24 ment contains provisions relating to agriculture, 

25 such provisions shall— 


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1 (A) protect the right of each country that 

2 is a party to the agreement to establish policies 

3 with respect to food and agriculture that allow 

4 for inventory management and strategic food 

5 and renewable energy reserves, if such policies 

6 do not contribute to or allow the dumping of 

7 agricultural commodities in world markets at 

8 prices lower than the cost of production; 

9 (B) protect the right of each country that 

10 is a party to the agreement to prevent dumping 

11 of agricultural commodities at below the cost of 

12 production through border regulations or other 

13 mechanisms and policies; 

14 (C) ensure that all laws relating to anti15 trust and anti-competitive business practices re16 main fully in effect, and that enforceability of 

17 those laws is neither preempted nor com18 promised in any manner; 

19 (D) ensure adequate and affordable sup20 plies of safe food for consumers; 

21 (E) protect the right of each country that 

22 is a party to the agreement to encourage con23 servation through the use of best practices with 

24 respect to the management and production of 

25 agricultural commodities; 


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1 (F) ensure fair treatment of farm laborers 

2 in each such country; and 

3 (G) not conflict with agricultural policy es4 tablished in the laws of the United States. 

5 (9) TRADE REMEDIES AND SAFEGUARDS.—If 

6 the agreement contains trade remedy provisions, 

7 such provisions shall— 

8 (A) preserve fully the ability of the United 

9 States to enforce the trade laws of the United 

10 States, including antidumping and counter11 vailing duty laws and safeguard laws; 

12 (B) ensure the continued effectiveness of 

13 domestic and international prohibitions on un14 fair trade, especially prohibitions on dumping 

15 and subsidies, and domestic and international 

16 safeguard provisions; 

17 (C) establish mechanisms to address and 

18 remedy market distortions that lead to dumping 

19 and subsidization, including overcapacity, car20 telization, and market-access barriers, by im21 posing strong sanctions against subsidies, in22 cluding applying countervailing duty laws in 

23 cases where exporters receive tax rebates for in24 direct taxes upon export; 


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1 (D) allow the United States to maintain 

2 adequate safeguards to ensure that surges of 

3 imported goods do not result in economic bur4 dens on workers, firms, or farmers in the 

5 United States, including providing that such 

6 safeguards go into effect automatically based on 

7 certain criteria; 

8 (E) establish mechanisms among the par9 ties to the agreement to examine the trade con10 sequences of significant currency movements 

11 and to scrutinize whether a country’s currency 

12 is misaligned in order to promote a competitive 

13 advantage in international trade; and 

14 (F) if the currency of a country that is a 

15 party to the agreement is deliberately mis16 aligned, establish safeguard remedies that apply 

17 automatically to offset substantial and sus18 tained currency movements. 

19 (10) DISPUTE RESOLUTION AND ENFORCEMENT

20 PROVISIONS.—If the agreement contains provisions 

21 relating to dispute resolution, such provisions 

22 shall— 

23 (A) incorporate the due process protections 

24 of the Constitution, as well as provisions relatVerDate Nov 24 2008 00:20 Dec 02, 2009 Jkt 089200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S2821.IS S2821

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1 ing to access to documents, open hearings, 

2 transparency, and fair and impartial tribunals; 

3 (B) require that any dispute settlement 

4 panel, including an appellate panel, dealing with 

5 intellectual property rights or environmental, 

6 health, labor, and other public law issues in7 clude panelists with expertise in the issues that 

8 are the subject of the dispute; and 

9 (C) provide that dispute resolution pro10 ceedings are open to the public and provide 

11 timely public access to information regarding 

12 enforcement, disputes, and ongoing negotiations 

13 relating to disputes. 

14 (11) TECHNICAL ASSISTANCE.—If the agree15 ment contains technical assistance provisions, such 

16 provisions shall— 

17 (A) be designed to raise standards in de18 veloping countries by providing assistance in a 

19 manner that ensures diversity of development; 

20 (B) be designed to empower civil society 

21 and democratic governments to create sustain22 able, vibrant economies and respect basic 

23 rights; and 

24 (C) not supplant economic assistance or 

25 promote the exportation of goods produced with 


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1 the exploitation of labor or methods that sup2 port unsustainable natural resources. 

3 (12) EXCEPTIONS FOR NATIONAL SECURITY

4 AND OTHER REASONS.—Each agreement shall— 

5 (A) include an essential security exception 

6 to the provisions of the agreement that permits 

7 a country that is a party to the agreement to 

8 apply measures that the country considers nec9 essary for the maintenance or restoration of 

10 international peace or security, or the protec11 tion of its essential security interests; 

12 (B) explicitly state that if a country in13 vokes the essential security exception in a dis14 pute settlement proceeding relating to any mat15 ter other than compliance with the agreement’s 

16 worker rights, environment, human rights, 

17 health, or safety provisions, the dispute settle18 ment body hearing the matter shall find that 

19 the exception applies; 

20 (C) include the following language: ‘‘Not21 withstanding any other provision of this agree22 ment, a provision of law that is nondiscrim23 inatory on its face and relates to domestic 

24 health, consumer safety, the environment, labor 

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1 cess, the provision of goods or services, or in2 vestment, shall not be subject to challenge 

3 under the dispute resolution mechanism estab4 lished under this agreement, unless a principal 

5 purpose of the law is to discriminate with re6 spect to market access.’’; and 

7 (D) include a provision that gives priority 

8 to the implementation of bilateral or multilat9 eral agreements relating to public health, 

10 human and labor rights, the environment, or 

11 other public interest goals in the event of any 

12 inconsistency between the trade agreement and 

13 such bilateral or multilateral agreement. 

14 (13) FEDERALISM.—The trade agreement may 

15 only require a State government in the United 

16 States to comply with procurement, investment, or 

17 services provisions contained in the trade agreement 

18 if the State government has been consulted in full 

19 and has given explicit consent to be bound by such 

20 provisions. 

21 (c) POINT OF ORDER IN SENATE.—The Senate shall 

22 cease consideration of a bill to implement a trade agree23 ment introduced on or after the date of enactment of this 

24 Act if— 


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1 (1) a point of order is made by any Senator 

2 against the bill based on the noncompliance of the 

3 trade agreement with the requirements of subsection 

4 (b); and 

5 (2) the point of order is sustained by the Pre6 siding Officer. 

7 (d) WAIVERS AND APPEALS.— 

8 (1) WAIVERS.—Before the Presiding Officer 

9 rules on a point of order described in subsection (c), 

10 any Senator may move to waive the point of order 

11 and the motion to waive shall not be subject to 

12 amendment. A point of order described in subsection 

13 (c) is waived only by the affirmative vote of 60 

14 Members of the Senate, duly chosen and sworn. 

15 (2) APPEALS.—After the Presiding Officer 

16 rules on a point of order described in subsection (c), 

17 any Senator may appeal the ruling of the Presiding 

18 Officer on the point of order as it applies to some 

19 or all of the provisions on which the Presiding Offi20 cer ruled. A ruling of the Presiding Officer on a 

21 point of order described in subsection (c) is sus22 tained unless 60 Members of the Senate, duly cho23 sen and sworn, vote not to sustain the ruling. 

24 (3) DEBATE.—Debate on the motion to waive 

25 under paragraph (1) or on an appeal of the ruling 


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1 of the Presiding Officer under paragraph (2) shall 

2 be limited to 1 hour. The time shall be equally di3 vided between, and controlled by, the majority leader 

4 and the minority leader of the Senate, or their des5 ignees. 

6 SEC. 5. RENEGOTIATION OF EXISTING TRADE AGREE7 MENTS. 

8 The President shall submit to Congress a plan for 

9 renegotiating each trade agreement that is in effect on the 

10 date of the enactment of this Act to bring the trade agree11 ment into compliance with the requirements of section 

12 4(b) not later than 90 days before the earlier of the day 

13 on which the President— 

14 (1) initiates negotiations with a foreign country 

15 with respect to a new trade agreement; or 

16 (2) submits a bill to Congress to implement a 

17 trade agreement. 

18 SEC. 6. SENSE OF CONGRESS ON IMPROVING THE PROCESS 

19 FOR UNITED STATES TRADE NEGOTIATIONS. 

20 It is the sense of Congress that if Congress considers 

21 legislation to provide for special procedures for the consid22 eration of bills to implement trade agreements, that legis23 lation shall include— 

24 (1) criteria for the President to use in deter25 mining whether a country— 


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1 (A) is able to meet its obligations under a 

2 trade agreement; 

3 (B) meets the requirements described in 

4 section 3(c); and 

5 (C) is willing and able to meet the require6 ments described in section 4(b); 

7 (2) a process by which the Committee on Fi8 nance of the Senate and the Committee on Ways 

9 and Means of the House of Representatives review 

10 the determination of the President described in 

11 paragraph (1) to verify that the country meets the 

12 criteria; 

13 (3) requirements for consultation with Congress 

14 during trade negotiations that require more frequent 

15 consultations than required by the Bipartisan Trade 

16 Promotion Authority Act of 2002 (19 U.S.C. 3801 

17 et seq.), including a process for consultation with 

18 any committee of Congress with jurisdiction over 

19 any area covered by the negotiations; 

20 (4) binding negotiating objectives and require21 ments outlining what must and must not be included 

22 in a trade agreement, including the requirements de23 scribed in section 4(b); 

24 (5) a process for review and certification by 

25 Congress to ensure that the negotiating objectives 


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1 described in paragraph (4) have been met during the 

2 negotiations; 

3 (6) a process— 

4 (A) by which a State may give informed 

5 consent to be bound by nontariff provisions in 

6 a trade agreement that relate to investment, the 

7 service sector, and procurement; and 

8 (B) that prevents a State from being 

9 bound by the provisions described in subpara10 graph (A) if the State has not consented; and 

11 (7) a requirement that a trade agreement be 

12 approved by a majority vote in both Houses of Con13 gress before the President may sign the agreement. 

Æ 


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