Trade Agreements: Procedure for Congressional Approval and Implementation
Released: 2005-11-16T00:00:00

Background

The United States has recently completed, or has in progress or intends to enter into,negotiations with foreign countries of a number of bilateral or multilateral trade agreementsestablishing free-trade areas (FTAs); since they contain modifications of nontariff as well as tarifftrade barriers, they require changes in U.S. trade legislation. (1) For the enactment of suchlegislation and its implementation, specific procedures are set out in trade law, which provide forexpedited congressional consideration of the relevant measure if specified conditions required by laware complied with. The expedited consideration, originally called "fast track" procedure, but recentlyalso named "trade authorities procedures (TAPs)," provides for mandatory consideration of themeasure once introduced, with specific deadlines for each legislative phase; allows no amendments;and requires a final up-or-down vote.

The statutory authority and requirements (2) for the enactment and implementation of such trade agreements thathave recently been concluded or are in the process of negotiation or in the planning stage arecontained in the provisions of the Bipartisan Trade Promotion Authority Act of 2002 (TPA Act)(Title XXI of the Trade Act of 2002, as amended by Section 2004(a)(17) of the Miscellaneous Tradeand Technical Corrections Act of 2004; P.L. 108-429 ). The legislative procedure for theirimplementation is set out in Section 151 of the Trade Act of 1974; P.L. 93-618 ).

The TPA Act authorizes the use of the trade authorities procedures for the enactment of billsimplementing agreements regarding tariff-and-nontariff barriers (including free-trade agreements)entered into with foreign countries by the President before July 1, 2005 (or July 1, 2007, if thePresident requests such extension before April 1, 2005, and either House of Congress does not adoptan "extension disapproval resolution;" see Appendix item (1)).

The expedited legislative procedures ("trade authorities procedures" -- TAPs) by which suchagreements would be implemented are set out principally in Section 151 of the Trade Act of 1974( P.L. 93-618 ), as amended (19 U.S.C. 2191). Although this statute is permanent law, it has beenenacted as an exercise of the rulemaking power of either House and can be changed by either House,with respect to its own procedure, at any time, in the same manner and to the same extent as anyother rule of that House. It applies only to the procedure specifically covered by it (e.g., approvalof trade agreements), but in that context supersedes any other rules to the extent that they areinconsistent with it (Section 151(a); 19 U.S.C. 2191(a)). These permanent procedural provisions areoccasionally supplemented by additional, temporary ones, contained in the legislative authority forthe negotiation of the agreements, such as various disapproval or other resolutions presented in theAppendix. They, too, are considered an exercise of the rulemaking power of either House ofCongress.

Since the expedited procedures do not permit any amendments to the legislation once it hasbeen introduced, the final language of the implementing bill is fashioned through advance "mock"or "nonmark" markups by the relevant committees in order to arrive at legislative language thatreflects the provisions of the agreement as well as congressional concerns regarding itsimplementation. The version "marked up" in this manner is then transmitted, together with therequired statement of administrative action and other supporting documents, by the President toCongress for legislative action.

Implementing Procedure

The steps in the expedited procedure for the legislative consideration and enactment of animplementing bill, and the implementation of the underlying trade agreement are described belowin their functional time sequence. While care has been taken to reflect accurately the meaning of therelevant, more extensively worded, statutes, consulting the actual language of any statute isrecommended in case of any ambiguity or need for greater detail. Moreover, because theseprovisions are rulemaking statutes, questions concerning the interpretation of these procedures andpossible parliamentary rulings pursuant to them should be referred to the House and Senateparliamentarians' offices.

In this description, the provisions of Section 151 of the Trade Act of 1974 are not specificallyidentified in their alphanumerical designation as contained in that Act; provisions contained in theTrade Act of 2002, however, are identified with the addition of the abbreviation "TA02."

(1) Prior consultation, and report regarding U.S. trade remedy laws.

Before entering into any tariff-and-nontariff agreement, the President is required (a) toconsult with certain Congressional bodies on the contents of the agreement, and (b) submit a reporton possible effect of the agreement on U.S. trade remedy laws (3)

(2) "Mock" mark-ups.

Since the implementing bill is not amendable (see item (7)), its draft is submitted to Congressinformally for hearings and "mock" mark-ups by the relevant committees for changes reflecting theCongress's concerns regarding the agreement and the final language of the legislation to betransmitted to Congress formally for legislative action.

(3) Enactment necessary.

The agreement can take effect only if it is approved by the enactment of an implementing bill(Section 2105(a)(1)(D), TA02); 19 U.S.C. 3805(a)(1)(D)), the specific expedited procedures forwhich are contained in Section 151 (19 U.S.C. 2191). (4)

(4) Transmittal of the agreement by the President to Congress.

After entering into an agreement, the President is required to submit to Congress the finallegal text of the agreement, together with a draft of the implementing bill, a statement of anyadministrative action proposed to implement the agreement, and sundry supporting information.While the law specifies no deadline for such submission, it must take place on a day on which bothHouses are in session. Failure to comply with this submission requirement would prevent theagreement from entering into force (Section 2105(a)(1)(C) and (a)(2), TA02; 19 U.S.C.3805(a)(1)(C) and (a)(2)).

(5) Mandatory introduction of implementing bill.

On the day the trade agreement, the implementing bill (5) and the supporting documentsare submitted to the Congress, the implementing bill must be introduced (by request) in both Housesof Congress by their respective majority leaders for themselves and the minority leaders, or by theirdesignees (Section 151(c)(1); 19 U.S.C. 2191(c)(1)).

(6) Committee referral.

In either House, the implementing bill is referred to the appropriate committee or, in thelikely case that it contains provisions within the jurisdiction of more than one committee, jointly tosuch committees for consideration of matters within their jurisdiction (Section 151(c)(1);19 U.S.C.2191(c)(1)).

(7) Amendments prohibited.

In either House, no amendment to the bill is in order, nor is a motion to suspend theno-amendment rule, or a request to suspend it by unanimous consent (Section 151(d); 19 U.S.C.2191(d)).

(8) Committee consideration in the House.

If a committee to which the bill has been referred has not reported it within 45 days (6) after its introduction, suchcommittee is automatically discharged from its further consideration, and the bill is placed on theappropriate calendar (Section 151(e)(1); 19 U.S.C. 2191(e)(1)).

(9) Floor consideration in the House.

(a) A motion to proceed to the consideration of an implementing bill is highly privileged andnondebatable; an amendment to the motion, or a motion to reconsider the vote whereby the motionis agreed or disagreed to, is not in order (Section 151(f)(1); 19 U.S.C. 2191(f)(1)).

(b) Debate on the bill is limited to 20 hours, divided equally between the supporters andopponents of the bill; a motion further to limit debate is not debatable; a motion to recommit the bill,or to reconsider the vote whereby the bill is agreed or disagreed to, is not in order (Section 151(f)(2);19 U.S.C. 2191(f)(2)).

(c) Motions to postpone the consideration of the bill, and motions to proceed to theconsideration of other business are decided without debate (Section 151(f)(3); 19 U.S.C. 2191(f)(3)).

(d) All appeals from the decisions of the Chair relating to the application of the Rules of theHouse of Representatives to an implementing bill are decided without debate (Section 151(f)(4); 19U.S.C. 2191(f)(4)).

(e) The vote (by simple majority) on final passage of the bill must be taken on or before the15th day (7) after the bill hasbeen reported by the committee(s) to which it had been referred, or such committees had beendischarged from its further consideration (Section 151(e)(1); 19 U.S.C. 2191(e)(1)).

(f) In all other respects, consideration of an implementing bill is governed by the Rules ofthe House of Representatives applicable to other bills in similar circumstances (Section 151(f)(5);19 U.S.C. 2191(f)(5)).

(10) Committee consideration in the Senate.

(a) An implementing revenue bill (8) passed by the House of Representatives and received in the Senateis referred to the appropriate committee (or committees) (Section 151(e)(2); 19 U.S.C. 2191(e)(2)).

(b) If the bill has not been reported by the relevant committee(s) within 15 days after itsreceipt from the House, or 45 days (9) after the introduction of the corresponding Senate measure(whichever is later), such committee is automatically discharged from further consideration of thebill, and the bill is placed on the appropriate calendar (Section 151(e)(2); 19 U.S.C. 2191(e)(2)).

(11) Floor consideration in the Senate.

(a) A motion to proceed to the consideration of the implementing bill is privileged andnondebatable; an amendment to the motion, or a motion to reconsider the vote whereby the motionis agreed or disagreed to, is not in order (Section 151(g)(1); 19 U.S.C. 2191(g)(1)).

(b) Debate on the implementing bill and on all debatable motions and appeals connected withit is limited to 20 hours, equally divided between, and controlled by, the majority leader and theminority leader, or their designees (Section 151(g)(2); 19 U.S.C. 2191(g)(2)).

(c) Debate on any debatable motion or appeal is limited to one hour, equally divided between,and controlled by, the mover and the manager of the bill, except that if the manager of the bill is infavor of any such motion or appeal, the time in opposition is controlled by the minority leader or hisdesignee; such leaders may, from time under their control on the passage of the bill, allot additionaltime to any Senator during the consideration of any debatable motion or appeal (Section 151(g)(3);19 U.S.C. 2191(g)(3)).

(d) A motion to further limit debate on the bill is not debatable; a motion to recommit it isnot in order (Section 151(g)(4); 19 U.S.C. 2191(g)(4)).

(e) The vote (by simple majority) on final passage of the bill must be taken on or before the15th day (10) after the billhas been reported, or the committee(s) of referral have been discharged from its further consideration(Section 151(e)(2); 19 U.S.C. 2191(e)(2)).

(f) Although, unlike in the case of the House procedure, this is not specifically mentioned inSection 151, the Rules of the Senate govern the consideration of the implementing bill in the Senatein all aspects not specifically addressed in Section 151.

(12) Entry into force. The agreement enters into force upon the completion of the necessarydomestic legal procedures by each party to it (11) and exchange of written notices that such procedures have beencompleted. Entry into force may take place on the date of the exchange of such notices or on anylater date set in the agreement or otherwise agreed upon by the parties.

Appendix

(1) Extension disapproval resolutions . (12)

(a) By submitting a relevant report, the President may request an extension of the applicationof trade authorities procedures for bills implementing agreements involving tariff-and-nontariffbarriers (e.g., free- trade agreements) entered into after July 31, 2005, and before July 1, 2007(Section 2103(c)(1)(B)(i), TA02; 19 U.S.C. 3803(c)(1)(B)(i)).

(b) Trade authorities are extended automatically upon such request if neither House adoptsan extension disapproval resolution before July 1, 2005 (Section 2103(c)(1)(B)(ii), TA02; 19 U.S.C.3803(c)(1)(B)(ii)).

(c) An extension disapproval resolution is a resolution of either House, containing languageprescribed by law, which may be introduced by any member, and is referred in the House to thecommittees on Ways and Means, and on Rules (Section 2103(c)(5)(A) and (B), TA02; 19 U.S.C.3803(c)(5)(A) and (B). (13)

(Legislation contains no deadline for committee report nor provision for discharge of acommittee of referral; but see item (e) below.)

(d) On the floor of either House, the resolution is considered under the specific expeditedprocedure of the Trade Act of 1974 for resolutions disapproving certain actions (Section 152(d) and(e); 19 U.S.C. 2192(d) and (e)), and identical with the procedure for floor consideration of theimplementing bill (see items (7) and (9) above), except that,

in the House, no amendment to the resolution is in order; and

in the Senate, a motion to proceed to the consideration of the resolution is debatable; thenondebatable motion to further limit debate on the resolution applies also to a debatable motion, orappeal; and no amendment to the resolution is in order.

(e) It is not in order to consider an extension disapproval resolution not reported, in theSenate, by the Finance Committee or, in the House, by the Ways and Means, and Rules Committees,or to consider it after June 30, 2005 (Section 2103(c)(5)(D), TA02; 19 U.S.C. 3803(c)(5)(D)).

(2) Procedural disapproval resolutions. (14)

(a) If the President fails or refuses to notify, or consult with, the Congress regarding thenegotiation of a tariff-and-nontariff agreement, on specific topics as required by Section2105(b)(1)(B)(ii), TA02 (19 U.S.C. 3805(b)(1)(B)(ii)), the Congress may deny the consideration ofthe implementing bill of such agreement under trade authorities procedures by both Houses agreeing,within 60 days from each other, to twin one-House procedural disapproval resolutions with respectto such agreement (Section 2105(b)(1)(A), TA02; 19 U.S.C. 3805(b)(1)(A)).

(b) The language of the resolution is prescribed by law (Section 2105(b)(1)(B), TA02; 19U.S.C. 3085(b)(1)(B)).

(c) The resolution may be introduced by any Member of either House, is referred to the Waysand Means Committee and the Rules Committee in the House, and to the Finance Committee in theSenate, and is nonamendable (Section 2105(b)(2)(A), TA02; 19 U.S.C. 3805(b)(2)(A)). (15)

(d) On the floor of either House, the resolution is considered under the same expeditedprocedure (Section 152, Trade Act of 1974; see item (1)(d) above) as an extension disapprovalresolution, but only if no other procedural disapproval resolution, or no "trade-remedy laws"resolution (see item (3) below) with respect to that trade agreement, has previously been reportedin that House by the respective committee of referral (Section 2105(b)(2)(B), TA02; 19 U.S.C.3805(b)(2)B)).

(e) It is not in order to consider a procedural disapproval resolution not reported, in theHouse, by the Ways and Means Committee and the Rules Committee, or, in the Senate, by theFinance Committee (Section 2105(b)(2)(C) and (D), TA02; 19 U.S.C. 3805(b)(2)(C) and (D)).

(3) Nonbinding ("trade-remedy laws") resolutions. (16)

(a) If the trade-remedy laws provisions of a prospective tariff-and-nontariff trade agreement,as described in the required relevant President's report (17) , are inconsistent with the trade-remedy laws negotiatingobjectives of the Trade Act of 2002, either House may adopt a (one-House) nonbinding resolution,finding that there exists such inconsistency (Section 2104(d)(3)(C)(ii), TA02; 19 U.S.C.3804(d)(3)(C)(ii)). (18)

(b) The language of the resolution is prescribed by law (Section 2104(d)(3)(C)(ii), TA02; 19U.S.C. 3804(d)(3)(C)(ii)).

(c) The resolution may be introduced by any Member of either House, is referred to the Waysand Means Committee and the Rules Committee in the House, and to the Finance Committee in theSenate, and is nonamendable (Section 2104(d)(3)(C)(iii), TA02; 19 U.S.C. 3804(d)(3)(C)(iii)) (19)

(d) On the floor of either House, the resolution is considered under the same expeditedprocedure as an extension disapproval resolution (see items (1)(d) and (2)(d)above), but only if noprocedural disapproval resolution or no other "trade-remedy laws" resolution with respect to thattrade agreement has previously been reported in that House by the respective committee of referral(Section 2104(d)(3)(C), TA02; 19 U.S.C. 3804(d)(3)(C)).