Notes on 19 U.S.C. § 2112 : US Code - Notes

Search Notes on 19 U.S.C. § 2112 : US Code - Notes

(Pub. L. 93-618, title I, Sec. 102, Jan. 3, 1975, 88 Stat. 1982;
Pub. L. 96-39, title XI, Secs. 1101, 1106(c)(1), July 26, 1979, 93
Stat. 307, 311; Pub. L. 98-573, title III, Sec. 307(a), title IV,
Sec. 401(a)-(c)(1), Oct. 30, 1984, 98 Stat. 3012, 3013-3015; Pub.
L. 99-47, Sec. 8(b)(1), June 11, 1985, 99 Stat. 84; Pub. L. 99-514,
title XVIII, Sec. 1887(a)(1), Oct. 22, 1986, 100 Stat. 2923.)
REFERENCES IN TEXT
This chapter, referred to in subsec. (b)(1), was in the original
"this Act", meaning Pub. L. 93-618, Jan. 3, 1975, 88 Stat. 1978, as
amended, which is classified principally to this chapter. For
complete classification of this Act to the Code, see References in
Text note set out under section 2101 of this title and Tables.
Section 1402 of this title, referred to in subsec. (g)(1)(A), was
repealed by Pub. L. 96-39.
AMENDMENTS
1986 - Subsec. (b)(4)(B)(ii)(II). Pub. L. 99-514 substituted
"subparagraph" for "subsection".
1985 - Subsec. (b)(3). Pub. L. 99-47 inserted "that provides for
the elimination or reduction of any duty imposed by the United
States" after "such other country".
1984 - Subsec. (b). Pub. L. 98-573, Sec. 401(a), designated
existing provisions as par. (1) and added pars. (2) to (4).
Subsec. (g)(1). Pub. L. 98-573, Sec. 401(b), designated existing
provisions as subpar. (A) and added subpar. (B).
Subsec. (g)(3). Pub. L. 98-573, Sec. 307(a), designated existing
provisions as subpar. (A) and added subpar. (B).
1979 - Subsec. (b). Pub. L. 96-39, Sec. 1101, substituted "13-
year period" for "5-year period".
Subsec. (e)(2). Pub. L. 96-39, Sec. 1106(c)(1), substituted "copy
of the final legal text of such agreement" for "copy of such
agreement".
EFFECTIVE DATE OF 1979 AMENDMENT
Amendment of subsec. (b) of this section by section 1101 of Pub.
L. 96-39 effective July 26, 1979, see section 1114 of Pub. L. 96-
39, set out as an Effective Date note under section 2581 of this
title.
Section 1106(c)(1) of Pub. L. 96-39 provided in part that the
amendment of subsec. (e)(2) of this section by section 1106(c)(1)
of Pub. L. 96-39 shall apply with respect to trade agreements
submitted to the Congress under this section after July 26, 1979.
PROTECTIVE ORDER PROVISIONS APPLICABLE WITH RESPECT TO
COUNTERVAILING AND ANTIDUMPING DUTY INVESTIGATIONS INVOLVING
PRODUCTS OF CANADIAN ORIGIN
Pub. L. 101-382, title I, Sec. 135(c), Aug. 20, 1990, 104 Stat.
652, provided that: "For purposes of section 404 of the United
States-Canada Free-Trade Agreement Implementation Act of 1988 [Pub.
L. 100-449, set out in a note below], the amendments made by
subsection (b) [amending section 1677f of this title] also apply
with respect to investigations under title VII of the Tariff Act of
1930 [19 U.S.C. 1671 et seq.] involving products of Canadian
origin."
UNITED STATES-JORDAN FREE TRADE AREA IMPLEMENTATION
Pub. L. 107-43, Sept. 28, 2001, 115 Stat. 243, provided that:
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'United States-Jordan Free Trade
Area Implementation Act'.
"SEC. 2. PURPOSES.
"The purposes of this Act are -
"(1) to implement the agreement between the United States and
Jordan establishing a free trade area;
"(2) to strengthen and develop the economic relations between
the United States and Jordan for their mutual benefit; and
"(3) to establish free trade between the 2 nations through the
removal of trade barriers.
"SEC. 3. DEFINITIONS.
"For purposes of this Act:
"(1) Agreement. - The term 'Agreement' means the Agreement
between the United States of America and the Hashemite Kingdom of
Jordan on the Establishment of a Free Trade Area, entered into on
October 24, 2000.
"(2) HTS. - The term 'HTS' means the Harmonized Tariff Schedule
of the United States.
"TITLE I - TARIFF MODIFICATIONS; RULES OF ORIGIN
"SEC. 101. TARIFF MODIFICATIONS.
"(a) Tariff Modifications Provided for in the Agreement. - The
President may proclaim -
"(1) such modifications or continuation of any duty;
"(2) such continuation of duty-free or excise treatment; or
"(3) such additional duties,
as the President determines to be necessary or appropriate to carry
out article 2.1 of the Agreement and the schedule of duty
reductions with respect to Jordan set out in Annex 2.1 of the
Agreement.
"(b) Other Tariff Modifications. - The President may proclaim -
"(1) such modifications or continuation of any duty;
"(2) such continuation of duty-free or excise treatment; or
"(3) such additional duties,
as the President determines to be necessary or appropriate to
maintain the general level of reciprocal and mutually advantageous
concessions with respect to Jordan provided for by the Agreement.
"SEC. 102. RULES OF ORIGIN.
"(a) In General. -
"(1) Eligible articles. -
"(A) In general. - The reduction or elimination of any duty
imposed on any article by the United States provided for in the
Agreement shall apply only if -
"(i) that article is imported directly from Jordan into the
customs territory of the United States; and
"(ii) that article -
"(I) is wholly the growth, product, or manufacture of Jordan;
or
"(II) is a new or different article of commerce that has been
grown, produced, or manufactured in Jordan and meets the
requirements of subparagraph (B).
"(B) Requirements. -
"(i) General rule. - The requirements of this subparagraph
are that with respect to an article described in subparagraph
(A)(ii)(II), the sum of -
"(I) the cost or value of the materials produced in Jordan,
plus
"(II) the direct costs of processing operations performed in
Jordan,
is not less than 35 percent of the appraised value of such
article at the time it is entered.
"(ii) Materials produced in united states. - If the cost or
value of materials produced in the customs territory of the
United States is included with respect to an article to which
this paragraph applies, an amount not to exceed 15 percent of
the appraised value of the article at the time it is entered
that is attributable to such United States cost or value may
be applied toward determining the percentage referred to in
clause (i).
"(2) Exclusions. - No article may be considered to meet the
requirements of paragraph (1)(A) by virtue of having merely
undergone -
"(A) simple combining or packaging operations; or
"(B) mere dilution with water or mere dilution with another
substance that does not materially alter the characteristics of
the article.
"(b) Direct Costs of Processing Operations. -
"(1) In general. - As used in this section, the term 'direct
costs of processing operations' includes, but is not limited to -

"(A) all actual labor costs involved in the growth,
production, manufacture, or assembly of the specific
merchandise, including fringe benefits, on-the-job training,
and the cost of engineering, supervisory, quality control, and
similar personnel; and
"(B) dies, molds, tooling, and depreciation on machinery and
equipment which are allocable to the specific merchandise.
"(2) Excluded costs. - The term 'direct costs of processing
operations' does not include costs which are not directly
attributable to the merchandise concerned, or are not costs of
manufacturing the product, such as -
"(A) profit; and
"(B) general expenses of doing business which are either not
allocable to the specific merchandise or are not related to the
growth, production, manufacture, or assembly of the
merchandise, such as administrative salaries, casualty and
liability insurance, advertising, and salesmen's salaries,
commissions, or expenses.
"(c) Textile and Apparel Articles. -
"(1) In general. - A textile or apparel article imported
directly from Jordan into the customs territory of the United
States shall be considered to meet the requirements of paragraph
(1)(A) of subsection (a) only if -
"(A) the article is wholly obtained or produced in Jordan;
"(B) the article is a yarn, thread, twine, cordage, rope,
cable, or braiding, and -
"(i) the constituent staple fibers are spun in Jordan, or
"(ii) the continuous filament is extruded in Jordan;
"(C) the article is a fabric, including a fabric classified
under chapter 59 of the HTS, and the constituent fibers,
filaments, or yarns are woven, knitted, needled, tufted,
felted, entangled, or transformed by any other fabric-making
process in Jordan; or
"(D) the article is any other textile or apparel article that
is wholly assembled in Jordan from its component pieces.
"(2) Definition. - For purposes of paragraph (1), an article is
'wholly obtained or produced in Jordan' if it is wholly the
growth, product, or manufacture of Jordan.
"(3) Special rules. -
"(A) Certain made-up articles, textile articles in the piece,
and certain other textiles and textile articles. -
Notwithstanding paragraph (1)(D) and except as provided in
subparagraphs (C) and (D) of this paragraph, subparagraph (A),
(B), or (C) of paragraph (1), as appropriate, shall determine
whether a good that is classified under one of the following
headings or subheadings of the HTS shall be considered to meet
the requirements of paragraph (1)(A) of subsection (a): 5609,
5807, 5811, 6209.20.50.40, 6213, 6214, 6301, 6302, 6304, 6305,
6306, 6307.10, 6307.90, 6308, and 9404.90.
"(B) Certain knit-to-shape textiles and textile articles. -
Notwithstanding paragraph (1)(D) and except as provided in
subparagraphs (C) and (D) of this paragraph, a textile or
apparel article which is knit-to-shape in Jordan shall be
considered to meet the requirements of paragraph (1)(A) of
subsection (a).
"(C) Certain dyed and printed textiles and textile articles. -
Notwithstanding paragraph (1)(D), a good classified under
heading 6117.10, 6213.00, 6214.00. 6302.22, 6302.29, 6302.52,
6302.53, 6302.59, 6302.92, 6302.93, 6302.99, 6303.92, 6303.99,
6304.19, 6304.93, 6304.99, 9404.90.85, or 9404.90.95 of the
HTS, except for a good classified under any such heading as of
cotton or of wool or consisting of fiber blends containing 16
percent or more by weight of cotton, shall be considered to
meet the requirements of paragraph (1)(A) of subsection (a) if
the fabric in the good is both dyed and printed in Jordan, and
such dyeing and printing is accompanied by 2 or more of the
following finishing operations: bleaching, shrinking, fulling,
napping, decating, permanent stiffening, weighting, permanent
embossing, or moireing.
"(D) Fabrics of silk, cotton, manmade fiber or vegetable
fiber. - Notwithstanding paragraph (1)(C), a fabric classified
under the HTS as of silk, cotton, man-made fiber, or vegetable
fiber shall be considered to meet the requirements of paragraph
(1)(A) of subsection (a) if the fabric is both dyed and printed
in Jordan, and such dyeing and printing is accompanied by 2 or
more of the following finishing operations: bleaching,
shrinking, fulling, napping, decating, permanent stiffening,
weighting, permanent embossing, or moireing.
"(4) Multicountry rule. - If the origin of a textile or apparel
article cannot be determined under paragraph (1) or (3), then
that article shall be considered to meet the requirements of
paragraph (1)(A) of subsection (a) if -
"(A) the most important assembly or manufacturing process
occurs in Jordan; or
"(B) if the applicability of paragraph (1)(A) of subsection
(a) cannot be determined under subparagraph (A), the last
important assembly or manufacturing occurs in Jordan.
"(d) Exclusion. - A good shall not be considered to meet the
requirements of paragraph (1)(A) of subsection (a) if the good -
"(1) is imported into Jordan, and, at the time of importation,
would be classified under heading 0805 of the HTS; and
"(2) is processed in Jordan into a good classified under any of
subheadings 2009.11 through 2009.30 of the HTS.
"(e) Regulations. - The Secretary of the Treasury, after
consultation with the United States Trade Representative, shall
prescribe such regulations as may be necessary to carry out this
section.
"TITLE II - RELIEF FROM IMPORTS
"SUBTITLE A - GENERAL PROVISIONS
"SEC. 201. DEFINITIONS.
"As used in this title:
"(1) Commission. - The term 'Commission' means the United
States International Trade Commission.
"(2) Jordanian article. - The term 'Jordanian article' means an
article that qualifies for reduction or elimination of a duty
under section 102.
"SUBTITLE B - RELIEF FROM IMPORTS BENEFITING FROM THE AGREEMENT
"SEC. 211. COMMENCING OF ACTION FOR RELIEF.
"(a) Filing of Petition. -
"(1) In general. - A petition requesting action under this
subtitle for the purpose of adjusting to the obligations of the
United States under the Agreement may be filed with the
Commission by an entity, including a trade association, firm,
certified or recognized union, or group of workers that is
representative of an industry. The Commission shall transmit a
copy of any petition filed under this subsection to the United
States Trade Representative.
"(2) Provisional relief. - An entity filing a petition under
this subsection may request that provisional relief be provided
as if the petition had been filed under section 202(a) of the
Trade Act of 1974 [19 U.S.C. 2252(a)].
"(3) Critical circumstances. - Any allegation that critical
circumstances exist shall be included in the petition.
"(b) Investigation and Determination. -
"(1) In general. - Upon the filing of a petition under
subsection (a), the Commission, unless subsection (d) applies,
shall promptly initiate an investigation to determine whether, as
a result of the reduction or elimination of a duty provided for
under the Agreement, a Jordanian article is being imported into
the United States in such increased quantities, in absolute terms
or relative to domestic production, and under such conditions
that imports of the Jordanian article alone constitute a
substantial cause of serious injury or threat thereof to the
domestic industry producing an article that is like, or directly
competitive with, the imported article.
"(2) Causation. - For purposes of this subtitle, a Jordanian
article is being imported into the United States in increased
quantities as a result of the reduction or elimination of a duty
provided for under the Agreement if the reduction or elimination
is a cause that contributes significantly to the increase in
imports. Such cause need not be equal to or greater than any
other cause.
"(c) Applicable Provisions. - The following provisions of section
202 of the Trade Act of 1974 (19 U.S.C. 2252) apply with respect to
any investigation initiated under subsection (b):
"(1) Paragraphs (1)(B) and (3) of subsection (b).
"(2) Subsection (c).
"(3) Subsection (d).
"(d) Articles Exempt From Investigation. - No investigation may
be initiated under this section with respect to any Jordanian
article if import relief has been provided under this subtitle with
respect to that article.
"SEC. 212. COMMISSION ACTION ON PETITION.
"(a) Determination. - By no later than 120 days (180 days if
critical circumstances have been alleged) after the date on which
an investigation is initiated under section 211(b) with respect to
a petition, the Commission shall make the determination required
under that section.
"(b) Additional Finding and Recommendation if Determination
Affirmative. - If the determination made by the Commission under
subsection (a) with respect to imports of an article is
affirmative, the Commission shall find, and recommend to the
President in the report required under subsection (c), the amount
of import relief that is necessary to remedy or prevent the injury
found by the Commission in the determination and to facilitate the
efforts of the domestic industry to make a positive adjustment to
import competition. The import relief recommended by the Commission
under this subsection shall be limited to that described in section
213(c).
"(c) Report to President. - No later than the date that is 30
days after the date on which a determination is made under
subsection (a) with respect to an investigation, the Commission
shall submit to the President a report that shall include -
"(1) a statement of the basis for the determination;
"(2) dissenting and separate views; and
"(3) any finding made under subsection (b) regarding import
relief.
"(d) Public Notice. - Upon submitting a report to the President
under subsection (c), the Commission shall promptly make public
such report (with the exception of information which the Commission
determines to be confidential) and shall cause a summary thereof to
be published in the Federal Register.
"(e) Applicable Provisions. - For purposes of this subtitle, the
provisions of paragraphs (1), (2), and (3) of section 330(d) of the
Tariff Act of 1930 (19 U.S.C. 1330(d)) shall be applied with
respect to determinations and findings made under this section as
if such determinations and findings were made under section 202 of
the Trade Act of 1974 (19 U.S.C. 2252).
"SEC. 213. PROVISION OF RELIEF.
"(a) In General. - No later than the date that is 30 days after
the date on which the President receives the report of the
Commission containing an affirmative determination of the
Commission under section 212(a), the President shall provide relief
from imports of the article that is the subject of such
determination to the extent that the President determines necessary
to prevent or remedy the injury found by the Commission and to
facilitate the efforts of the domestic industry to make a positive
adjustment to import competition, unless the President determines
that the provision of such relief is not in the national economic
interest of the United States or, in extraordinary circumstances,
that the provision of such relief would cause serious harm to the
national security of the United States.
"(b) National Economic Interest. - The President may determine
under subsection (a) that providing import relief is not in the
national economic interest of the United States only if the
President finds that taking such action would have an adverse
impact on the United States economy clearly greater than the
benefits of taking such action.
"(c) Nature of Relief. - The import relief (including provisional
relief) that the President is authorized to provide under this
subtitle with respect to imports of an article is -
"(1) the suspension of any further reduction provided for under
the United States Schedule to Annex 2.1 of the Agreement in the
duty imposed on that article;
"(2) an increase in the rate of duty imposed on such article to
a level that does not exceed the lesser of -
"(A) the column 1 general rate of duty imposed under the HTS
on like articles at the time the import relief is provided; or
"(B) the column 1 general rate of duty imposed under the HTS
on like articles on the day before the date on which the
Agreement enters into force; or
"(3) in the case of a duty applied on a seasonal basis to that
article, an increase in the rate of duty imposed on the article
to a level that does not exceed the column 1 general rate of duty
imposed under the HTS on the article for the corresponding season
occurring immediately before the date on which the Agreement
enters into force.
"(d) Period of Relief. - The import relief that the President is
authorized to provide under this section may not exceed 4 years.
"(e) Rate After Termination of Import Relief. - When import
relief under this subtitle is terminated with respect to an article
-
"(1) the rate of duty on that article after such termination
and on or before December 31 of the year in which termination
occurs shall be the rate that, according to the United States
Schedule to Annex 2.1 of the Agreement for the staged elimination
of the tariff, would have been in effect 1 year after the
initiation of the import relief action under section 211; and
"(2) the tariff treatment for that article after December 31 of
the year in which termination occurs shall be, at the discretion
of the President, either -
"(A) the rate of duty conforming to the applicable rate set
out in the United States Schedule to Annex 2.1; or
"(B) the rate of duty resulting from the elimination of the
tariff in equal annual stages ending on the date set out in the
United States Schedule to Annex 2.1 for the elimination of the
tariff.
"SEC. 214. TERMINATION OF RELIEF AUTHORITY.
"(a) General Rule. - Except as provided in subsection (b), no
import relief may be provided under this subtitle after the date
that is 15 years after the date on which the Agreement enters into
force.
"(b) Exception. - Import relief may be provided under this
subtitle in the case of a Jordanian article after the date on which
such relief would, but for this subsection, terminate under
subsection (a), but only if the Government of Jordan consents to
such provision.
"SEC. 215. COMPENSATION AUTHORITY.
"For purposes of section 123 of the Trade Act of 1974 (19 U.S.C.
2133), any import relief provided by the President under section
213 shall be treated as action taken under chapter 1 of title II of
such Act [19 U.S.C. 2251 et seq.].
"SEC. 216. SUBMISSION OF PETITIONS.
"A petition for import relief may be submitted to the Commission
under -
"(1) this subtitle;
"(2) chapter 1 of title II of the Trade Act of 1974 [19 U.S.C.
2251 et seq.]; or
"(3) under both this subtitle and such chapter 1 at the same
time, in which case the Commission shall consider such petitions
jointly.
"SUBTITLE C - CASES UNDER TITLE II OF THE TRADE ACT OF 1974
"SEC. 221. FINDINGS AND ACTION ON JORDANIAN IMPORTS.
"(a) Effect of Imports. - If, in any investigation initiated
under chapter 1 of title II of the Trade Act of 1974 [19 U.S.C.
2251 et seq.], the Commission makes an affirmative determination
(or a determination which the President may treat as an affirmative
determination under such chapter by reason of section 330(d) of the
Tariff Act of 1930 [19 U.S.C. 1330(d)]), the Commission shall also
find (and report to the President at the time such injury
determination is submitted to the President) whether imports of the
article from Jordan are a substantial cause of serious injury or
threat thereof.
"(b) Presidential Action Regarding Jordanian Imports. - In
determining the nature and extent of action to be taken under
chapter 1 of title II of the Trade Act of 1974, the President shall
determine whether imports from Jordan are a substantial cause of
the serious injury found by the Commission and, if such
determination is in the negative, may exclude from such action
imports from Jordan.
"SEC. 222. TECHNICAL AMENDMENT.
[Amended section 2252 of this title.]
"TITLE III - TEMPORARY ENTRY
"SEC. 301. NONIMMIGRANT TRADERS AND INVESTORS.
"Upon the basis of reciprocity secured by the Agreement, an alien
who is a national of Jordan (and any spouse or child (as defined in
section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C.
1101(b)(1)) of the alien, if accompanying or following to join the
alien) shall be considered as entitled to enter the United States
under and in pursuance of the provisions of the Agreement as a
nonimmigrant described in section 101(a)(15)(E) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(E)), if the entry is
solely for a purpose described in clause (i) or (ii) of such
section and the alien is otherwise admissible to the United States
as such a nonimmigrant.
"TITLE IV - GENERAL PROVISIONS
"SEC. 401. RELATIONSHIP OF THE AGREEMENT TO UNITED STATES AND
STATE LAW.
"(a) Relationship of Agreement to United States Law. -
"(1) United states law to prevail in conflict. - No provision
of the Agreement, nor the application of any such provision to
any person or circumstance, that is inconsistent with any law of
the United States shall have effect.
"(2) Construction. - Nothing in this Act shall be construed -
"(A) to amend or modify any law of the United States; or
"(B) to limit any authority conferred under any law of the
United States,
unless specifically provided for in this Act.
"(b) Relationship of Agreement to State Law. -
"(1) Legal challenge. - No State law, or the application
thereof, may be declared invalid as to any person or circumstance
on the ground that the provision or application is inconsistent
with the Agreement, except in an action brought by the United
States for the purpose of declaring such law or application
invalid.
"(2) Definition of state law. - For purposes of this
subsection, the term 'State law' includes -
"(A) any law of a political subdivision of a State; and
"(B) any State law regulating or taxing the business of
insurance.
"(c) Effect of Agreement With Respect to Private Remedies. - No
person other than the United States -
"(1) shall have any cause of action or defense under the
Agreement; or
"(2) may challenge, in any action brought under any provision
of law, any action or inaction by any department, agency, or
other instrumentality of the United States, any State, or any
political subdivision of a State on the ground that such action
or inaction is inconsistent with the Agreement.
"SEC. 402. AUTHORIZATION OF APPROPRIATIONS.
"There are authorized to be appropriated for each fiscal year
after fiscal year 2001 to the Department of Commerce not more than
$100,000 for the payment of the United States share of the expenses
incurred in dispute settlement proceedings under article 17 of the
Agreement.
"SEC. 403. IMPLEMENTING REGULATIONS.
"After the date of enactment of this Act [Sept. 28, 2001] -
"(1) the President may proclaim such actions; and
"(2) other appropriate officers of the United States may issue
such regulations,
as may be necessary to ensure that any provision of this Act, or
amendment made by this Act, that takes effect on the date the
Agreement enters into force is appropriately implemented on such
date, but no such proclamation or regulation may have an effective
date earlier than the date the Agreement enters into force.
"SEC. 404. EFFECTIVE DATES; EFFECT OF TERMINATION.
"(a) Effective Dates. - Except as provided in subsection (b), the
provisions of this Act and the amendments made by this Act take
effect on the date the Agreement enters into force [Dec. 17, 2001].
"(b) Exceptions. - Sections 1 through 3 and this title take
effect on the date of the enactment of this Act [Sept. 28, 2001].
"(c) Termination of the Agreement. - On the date on which the
Agreement ceases to be in force, the provisions of this Act (other
than this subsection) and the amendments made by this Act, shall
cease to be effective."
[The Harmonized Tariff Schedule of the United States is not set
out in the Code. See Publication of Harmonized Tariff Schedule note
set out under section 1202 of this title.]
UNITED STATES-CANADA FREE-TRADE AGREEMENT IMPLEMENTATION
Pub. L. 100-449, Sept. 28, 1988, 102 Stat. 1851, as amended by
Pub. L. 101-207, Sec. 1(b), Dec. 7, 1989, 103 Stat. 1833; Pub. L.
101-382, title I, Secs. 103(b), 134(b), Aug. 20, 1990, 104 Stat.
635, 651; Pub. L. 103-182, title I, Sec. 107, title III, Sec.
308(a), title IV, Sec. 413, Dec. 8, 1993, 107 Stat. 2065, 2104,
2147; Pub. L. 104-66, title I, Sec. 1021(d), Dec. 21, 1995, 109
Stat. 712; Pub. L. 105-206, title V, Sec. 5003(b)(3), July 22,
1998, 112 Stat. 789, provided that:
"SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
"(a) Short Title. - This Act [enacting section 1584 of Title 28,
Judiciary and Judicial Procedure, amending sections 58c, 81c, 1305,
1306, 1311, 1312, 1313, 1502, 1508, 1514, 1516a, 1562, 1677, 1677f,
and 2518 of this title, sections 150bb, 150cc, 154, 156, 624, 1582,
and 2803 of Title 7, Agriculture, section 1184 of Title 8, Aliens
and Nationality, section 24 of Title 12, Banks and Banking, section
152 of Title 21, Food and Drugs, sections 1581, 2201, and 2643 of
Title 28, section 2201 of Title 42, The Public Health and Welfare,
section 2406 of the Appendix to Title 50, War and National Defense,
enacting provisions set out as notes below, and amending provisions
set out as a note under section 2253 of this title] may be cited as
the 'United States-Canada Free-Trade Agreement Implementation Act
of 1988'.
"(b) Table of Contents. - [Omitted.]
"SEC. 2. PURPOSES.
"The purposes of this Act are -
"(1) to approve and implement the Free-Trade Agreement between
the United States and Canada negotiated under the authority of
section 102 of the Trade Act of 1974 [19 U.S.C. 2112];
"(2) to strengthen and develop economic relations between the
United States and Canada for their mutual benefit;
"(3) to establish a free-trade area between the two nations
through the reduction and elimination of barriers to trade in
goods and services and to investment; and
"(4) to lay the foundation for further cooperation to expand
and enhance the benefits of such Agreement.
"TITLE I - APPROVAL OF UNITED STATES-CANADA FREE-TRADE AGREEMENT
AND RELATIONSHIP OF AGREEMENT TO UNITED STATES LAW
"SEC. 101. APPROVAL OF UNITED STATES-CANADA FREE-TRADE AGREEMENT.
"(a) Approval of Agreement and Statement of Administrative
Action. - Pursuant to sections 102 and 151 of the Trade Act of 1974
(19 U.S.C. 2112 and 2191), the Congress approves -
"(1) the United States-Canada Free-Trade Agreement (hereinafter
in this Act referred to as the 'Agreement') entered into on
January 2, 1988, and submitted to the Congress on July 25, 1988;
"(2) the letters exchanged between the Governments of the
United States and Canada -
"(A) dated January 2, 1988, relating to negotiations
regarding articles 301 (Rules of Origin) and 401 (Tariff
Elimination) of the Agreement, and
"(B) dated January 2, 1988, relating to negotiations
regarding article 2008 (Plywood Standards) of the Agreement;
and
"(3) the statement of administrative action proposed to
implement the Agreement that was submitted to the Congress on
July 25, 1988.
"(b) Conditions for Entry Into Force of the Agreement. - At such
time as the President determines that Canada has taken measures
necessary to comply with the obligations of the Agreement, the
President is authorized to exchange notes with the Government of
Canada providing for the entry into force, on or after January 1,
1989, of the Agreement with respect to the United States.
"(c) Report on Canadian Practices. - Within 60 days after the
date of the enactment of this Act [Sept. 28, 1988] (but not later
than December 15, 1988), the United States Trade Representative
shall submit to the Congress a report identifying, to the maximum
extent practicable, major current Canadian practices (and the legal
authority for such practices) that, in the opinion of the United
States Trade Representative -
"(1) are not in conformity with the Agreement; and
"(2) require a change of Canadian law, regulation, policy, or
practice to enable Canada to conform with its international
obligations under the Agreement.
"SEC. 102. RELATIONSHIP OF THE AGREEMENT TO UNITED STATES LAW.
"(a) United States Laws To Prevail in Conflict. - No provision of
the Agreement, nor the application of any such provision to any
person or circumstance, which is in conflict with any law of the
United States shall have effect.
"(b) Relationship of Agreement to State and Local Law. -
"(1) The provisions of the Agreement prevail over -
"(A) any conflicting State law; and
"(B) any conflicting application of any State law to any
person or circumstance;
to the extent of the conflict.
"(2) Upon the enactment of this Act, the President shall, in
accordance with section 306(c)(2)(A) of the Trade and Tariff Act
of 1984 (19 U.S.C. 2114c), initiate consultations with the State
governments on the implementation of the obligations of the
United States under the Agreement. Such consultations shall be
held -
"(A) through the intergovernmental policy advisory committees
on trade established under such section for the purpose of
achieving conformity of State laws and practices with the
Agreement; and
"(B) with the individual States as necessary to deal with
particular questions that may arise.
"(3) The United States may bring an action challenging any
provision of State law, or the application thereof to any person
or circumstance, on the ground that the provision or application
is inconsistent with the Agreement.
"(4) For purposes of this subsection, the term 'State law'
includes -
"(A) any law of a political subdivision of a State; and
"(B) any State law regulating or taxing the business of
insurance.
"(c) Effect of Agreement With Respect to Private Remedies. - No
person other than the United States shall -
"(1) have any cause of action or defense under the Agreement or
by virtue of congressional approval thereof, or
"(2) challenge, in any action brought under any provision of
law, any action or inaction by any department, agency, or other
instrumentality of the United States, any State, or any political
subdivision of a State on the ground that such action or inaction
is inconsistent with the Agreement.
"(d) Initial Implementing Regulations. - Initial regulations
necessary or appropriate to carry out the actions proposed in the
statement of administrative action submitted under section
101(a)(3) to implement the Agreement shall, to the maximum extent
feasible, be issued within 1 year after the date of entry into
force of the Agreement [Jan. 1, 1989]. In the case of any
implementing action that takes effect after the date of entry into
force of the Agreement, initial regulations to carry out that
action shall, to the maximum extent feasible, be issued within 1
year after such effective date.
"(e) Changes in Statutes To Implement a Requirement, Amendment,
or Recommendation. - The provisions of section 3(c) of the Trade
Agreements Act of 1979 (19 U.S.C. 2504(c)) shall apply as if the
Agreement were an agreement approved under section 2(a) of that Act
[19 U.S.C. 2503(a)] whenever the President determines that it is
necessary or appropriate to amend, repeal, or enact a statute of
the United States in order to implement any requirement of,
amendment to, or recommendation, finding or opinion under, the
Agreement; but such provisions shall not apply to any bill to
implement any such requirement, amendment, recommendation, finding,
or opinion that is submitted to the Congress after the close of the
30th month after the month in which the Agreement enters into force
[January 1989].
"SEC. 103. CONSULTATION AND LAY-OVER REQUIREMENTS FOR, AND
EFFECTIVE DATE OF, PROCLAIMED ACTIONS.
"(a) Consultation and Lay-Over Requirements. - If a provision of
this Act provides that the implementation of an action by the
President by proclamation is subject to the consultation and lay-
over requirements of this section, such action may be proclaimed
only if -
"(1) the President has obtained advice regarding the proposed
action from -
"(A) the appropriate advisory committees established under
section 135 of the Trade Act of 1974 [19 U.S.C. 2155], and
"(B) the United States International Trade Commission;
"(2) the President has submitted a report to the Committee on
Ways and Means of the House of Representatives and the Committee
on Finance of the Senate that sets forth -
"(A) the action proposed to be proclaimed and the reasons
therefor, and
"(B) the advice obtained under paragraph (1);
"(3) a period of at least 60 calendar days that begins on the
first day on which the President has met the requirements of
paragraphs (1) and (2) with respect to such action has expired;
and
"(4) the President has consulted with such Committees regarding
the proposed action during the period referred to in paragraph
(3).
"(b) Effective Date of Certain Proclaimed Actions. - No action
proclaimed by the President under the authority of this Act, if
such action is not subject to the consultation and lay-over
requirements under subsection (a), may take effect before the 15th
day after the date on which the text of the proclamation is
published in the Federal Register.
"SEC. 104. HARMONIZED SYSTEM.
"(a) Definition. - As used in this Act, the term 'Harmonized
System' means the nomenclature system established under the
International Convention on the Harmonized Commodity Description
and Coding System (done at Brussels on June 14, 1983, and the
protocol thereto, done at Brussels on June 24, 1986) as implemented
under United States law.
"(b) Interim Application of TSUS. - The following apply if the
International Convention, and the protocol thereto, referred to in
subsection (a) are not implemented under United States law before
the Agreement enters into force:
"(1) The President, subject to subsection (c), shall proclaim
such modifications to the Tariff Schedules of the United States
(19 U.S.C. 1202) as may be necessary to give effect, until such
time as such Convention and protocol are so implemented, to the
rules of origin, schedule of rate reductions, and other
provisions that would, but for the absence of such
implementation, be proclaimed under the authority of this Act to,
or in terms of, the Harmonized System to implement the
obligations of the United States under the Agreement.
"(2) Until such time as such Convention and protocol are so
implemented, any reference in this Act to the nomenclature of
such Convention and protocol shall be treated as a reference to
the corresponding nomenclature of the Tariff Schedules of the
United States as modified under paragraph (1).
"(c) Restrictions. -
"(1) No modification described in subsection (b)(1) that is to
take effect concurrently with the entry into force of the
Agreement may be proclaimed unless the text of the modification
is published in the Federal Register at least 30 days before the
date of entry into force [Jan. 1, 1989].
"(2) All modifications proclaimed under the authority of
subsection (b)(1) after the Agreement enters into force with
respect to the United States are subject to the consultation and
lay-over requirements of section 103(a).
"SEC. 105. IMPLEMENTING ACTIONS IN ANTICIPATION OF ENTRY INTO
FORCE.
"Subject to section 103 or 104(c), as appropriate, and any other
applicable restriction or limitation in this Act on the proclaiming
of actions or the issuing of regulations to carry out this Act or
any amendment made by this Act, after the date of the enactment of
this Act [Sept. 28, 1988] -
"(1) the President may proclaim such actions; and
"(2) other appropriate officers of the United States Government
may issue such regulations;
as may be necessary to ensure that any provision of this Act, or
amendment made by this Act, that takes effect on the date the
Agreement enters into force [Jan. 1, 1989] is appropriately
implemented on such date, but no such proclamation or regulation
may have an effective date earlier than the date of entry into
force.
"TITLE II - TARIFF MODIFICATIONS, RULES OF ORIGIN, USER FEES,
DRAWBACK, ENFORCEMENT, AND OTHER CUSTOMS PROVISIONS
"SEC. 201. TARIFF MODIFICATIONS.
"(a) Tariff Modifications Specified in the Agreement. - The
President may proclaim -
"(1) such modifications or continuance of any existing duty;
"(2) such continuance of existing duty-free or excise
treatment; or
"(3) such additional duties;
as the President determines to be necessary or appropriate to carry
out article 401 of the Agreement and the schedule of duty
reductions with respect to Canada set forth in Annexes 401.2 and
401.7 to the Agreement, as approved under section 101(a)(1). For
purposes of proclaiming necessary modifications under such Annex
401.2, any article covered under subheading 9813.00.05 (contained
in the United States Schedule in such Annex) shall, unless such
article is a drawback eligible good under section 204(a), be
treated as being subject to any otherwise applicable customs duty
if the article, or merchandise incorporating such article, is
exported to Canada.
"(b) Other Tariff Modifications. - Subject to the consultation
and lay-over requirements of section 103(a), the President may
proclaim -
"(1) such modifications as the United States and Canada may
agree to regarding the staging of any duty treatment set forth in
Annexes 401.2 and 401.7 of the Agreement;
"(2) such modifications or continuance of any existing duty;
"(3) such continuance of existing duty-free or excise
treatment; or
"(4) such additional duties;
as the President determines to be necessary or appropriate to
maintain the general level of reciprocal and mutually advantageous
concessions with respect to Canada provided for by the Agreement.
"(c) Modifications Affecting Plywood. -
"(1) The Congress encourages the President to facilitate the
preparation, and the implementation with Canada, of common
performance standards for the use of softwood plywood and other
structural panels in construction applications in the United
States and Canada.
"(2) The President shall report to the Congress on the
incorporation of common plywood performance standards into
building codes in the United States and Canada and may implement
the provisions of article 2008 of the Agreement when he
determines that the necessary conditions have been met.
"(3) Any tariff reduction undertaken pursuant to paragraph (2)
shall be in equal annual increments ending January 1, 1998,
unless those reductions commence after January 1, 1991.
"SEC. 202. RULES OF ORIGIN.
"(a) In General. -
"(1) For purposes of implementing the tariff treatment
contemplated under the Agreement, goods originate in the
territory of a Party if -
"(A) they are wholly obtained or produced in the territory of
either Party or both Parties; or
"(B) they -
"(i) have been transformed in the territory of either Party
or both Parties so as to be subject to a change in tariff
classification as described in the Annex rules or to such
other requirements as the Annex rules may provide when no
change in tariff classifications occurs, and
"(ii) meet the other conditions set out in the Annex.
"(2) A good shall not be considered to originate in the
territory of a party [Party] under paragraph (1)(B) merely by
virtue of having undergone -
"(A) simple packaging or, except as expressly provided by the
Annex rules, combining operations;
"(B) mere dilution with water or another substance that does
not materially alter the characteristics of the good; or
"(C) any process or work in respect of which it is
established, or in respect of which the facts as ascertained
clearly justify the presumption, that the sole object was to
circumvent the provisions of chapter 3 of the Agreement.
"(3) Accessories, spare parts, or tools delivered with any
piece of equipment, machinery, apparatus, or vehicle that form
part of its standard equipment shall be treated as having the
same origin as that equipment, machinery, apparatus, or vehicle
if the quantities and values of such accessories, spare parts, or
tools are customary for the equipment, machinery, apparatus, or
vehicle.
"(b) Transshipment. - Goods exported from the territory of one
Party originate in the territory of that Party only if -
"(1) the goods meet the applicable requirements of subsection
(a) and are shipped to the territory of the other Party without
having entered the commerce of any third country;
"(2) the goods, if shipped through the territory of a third
country, do not undergo any operation other than unloading,
reloading, or any operation necessary to transport them to the
territory of the other Party or to preserve them in good
condition; and
"(3) the documents related to the exportation and shipment of
the goods from the territory of a Party show the territory of the
other Party as their final destination.
"(c) Interpretation. - In interpreting this section, the
following apply:
"(1) Whenever the processing or assembly of goods in the
territory of either Party or both Parties results in one of the
changes in tariff classification described in the Annex rules,
such goods shall be considered to have been transformed in the
territory of that Party and shall be treated as goods originating
in the territory of that Party if -
"(A) such processing or assembly occurs entirely within the
territory of either Party or both Parties; and
"(B) such goods have not subsequently undergone any
processing or assembly outside the territories of the Parties
that improves the goods in condition or advances them in value.
"(2) Whenever the assembly of goods in the territory of a Party
fails to result in a change of tariff classification because
either -
"(A) the goods were imported into the territory of the Party
in an unassembled or a disassembled form and were classified as
unassembled or disassembled goods pursuant to General Rule of
Interpretation 2(a) of the Harmonized System; or
"(B) the tariff subheading for the goods provides for both
the goods themselves and their parts;
such goods shall not be treated as goods originating in the
territory of a Party.
"(3) Notwithstanding paragraph (2), goods described in that
paragraph shall be considered to have been transformed in the
territory of a Party and be treated as goods originating in the
territory of the Party if -
"(A) the value of materials originating in the territory of
either Party or both Parties used or consumed in the production
of the goods plus the direct cost of assembling the goods in
the territory of either Party or both Parties constitute not
less than 50 percent of the value of the goods when exported to
the territory of the other Party; and
"(B) the goods have not subsequent to assembly undergone
processing or further assembly in a third country and they meet
the requirements of subsection (b).
"(4) The provisions of paragraph (3) shall not apply to goods
of chapters 61-63 of the Harmonized System.
"(5) In making the determination required by paragraph (3)(A)
and in making the same or a similar determination when required
by the Annex rules, where materials originating in the territory
of either Party or both Parties and materials obtained or
produced in a third country are used or consumed together in the
production of goods in the territory of a Party, the value of
materials originating in the territory of either Party or both
Parties may be treated as such only to the extent that it is
directly attributable to the goods under consideration.
"(6) In applying the Annex rules, a specific rule shall take
precedence over a more general rule.
"(d) Annex Rules. -
"(1) The President is authorized to proclaim, as a part of the
Harmonized System, the rules set forth under the heading 'Rules'
in Annex 301.2 of the Agreement. For purposes of carrying out
this paragraph -
"(A) the phrase 'headings 2207-2209' in paragraph 7 of
section IV of such Annex 301.2 shall be treated as a reference
to headings 2203-2209; and
"(B) the phrase 'any other heading' in paragraph 11 of
section XV in such Annex 301.2 shall be treated as a reference
to any other heading of chapter 74 of the Harmonized System.
"(2) Subject to the consultation and lay-over requirements of
section 103, the President is authorized to proclaim such
modifications to the rules as may from time-to-time be agreed to
by the United States and Canada.
"(e) Automotive Products. -
"(1) The President is authorized to proclaim such modifications
to the definition of Canadian articles (relating to the
administration of the Automotive Products Trade Act of 1965 [19
U.S.C. 2001 et seq.]) in the general notes of the Harmonized
System as may be necessary to conform that definition with
chapter 3 of the Agreement.
"(2) For purposes of administering the value requirement (as
defined in section 304(c)(3)) with respect to vehicles, the
Secretary of the Treasury shall prescribe regulations governing
the averaging of the value content of vehicles of the same class,
or of sister vehicles, assembled in the same plant as an
alternative to the calculation of the value content of each
vehicle.
"(f) Definitions. - For purposes of this section:
"(1) The term 'Annex' means -
"(A) the interpretative guidelines set forth in subsection
(c); and
"(B) the Annex rules.
"(2) The term 'Annex rules' means the rules proclaimed under
subsection (d).
"(3) The term 'direct cost of processing or direct cost of
assembling' means the costs directly incurred in, or that can
reasonably be allocated to, the production of goods, including -
"(A) the cost of all labor, including benefits and on-the-job
training, labor provided in connection with supervision,
quality control, shipping, receiving, storage, packaging,
management at the location of the process or assembly, and
other like labor, whether provided by employees or independent
contractors;
"(B) the cost of inspecting and testing the goods;
"(C) the cost of energy, fuel, dies, molds, tooling, and the
depreciation and maintenance of machinery and equipment,
without regard to whether they originate within the territory
of a Party;
"(D) development, design, and engineering costs;
"(E) rent, mortgage interest, depreciation on buildings,
property insurance premiums, maintenance, taxes and the cost of
utilities for real property used in the production of goods;
and
"(F) royalty, licensing, or other like payments for the right
to the goods;
but not including -
"(i) costs relating to the general expense of doing
business, such as the cost of providing executive, financial,
sales, advertising, marketing, accounting and legal services,
and insurance;
"(ii) brokerage charges relating to the importation and
exportation of goods;
"(iii) the costs for telephone, mail, and other means of
communication;
"(iv) packing costs for exporting the goods;
"(v) royalty payments related to a licensing agreement to
distribute or sell the goods;
"(vi) rent, mortgage interest, depreciation on buildings,
property insurance premiums, maintenance, taxes, and the cost
of utilities for real property used by personnel charged with
administrative functions; or
"(vii) profit on the goods.
"(4) The term 'goods wholly obtained or produced in the
territory of either Party or both Parties' means -
"(A) mineral goods extracted in the territory of either Party
or both Parties;
"(B) goods harvested in the territory of either Party or both
Parties;
"(C) live animals born and raised in the territory of either
Party or both Parties;
"(D) goods (fish, shellfish, and other marine life) taken
from the sea by vessels registered or recorded with a Party and
flying its flag;
"(E) goods produced on board factory ships from the goods
referred to in subparagraph (D) provided such factory ships are
registered or recorded with that Party and fly its flag;
"(F) goods taken by a Party or a person of a Party from the
seabed or beneath the seabed outside territorial waters,
provided that Party has rights to exploit such seabed;
"(G) goods taken from space, provided they are obtained by a
Party or a person of a Party and not processed in a third
country;
"(H) waste and scrap derived from manufacturing operations
and used goods, provided they were collected in the territory
of either Party or both Parties and are fit only for the
recovery of raw materials; and
"(I) goods produced in the territory of either Party or both
Parties exclusively from goods referred to in subparagraphs (A)
to (H) inclusive or from their derivatives, at any stage of
production.
"(5) The term 'materials' means goods, other than those
included as part of the direct cost of processing or assembling,
used or consumed in the production of other goods.
"(6) The term 'Party' means Canada or the United States.
"(7) The term 'territory' means -
"(A) with respect to Canada, the territory to which its
customs laws apply, including any areas beyond the territorial
seas of Canada within which, in accordance with international
law and its domestic laws, Canada may exercise rights with
respect to the seabed and subsoil and their natural resources;
and
"(B) with respect to the United States -
"(i) the customs territory of the United States, which
includes the fifty States, the District of Columbia and the
Commonwealth of Puerto Rico,
"(ii) the foreign trade zones located in the United States,
and the Commonwealth of Puerto Rico, and
"(iii) any area beyond the territorial seas of the United
States within which, in accordance with international law and
its domestic laws, the United States may exercise rights with
respect to the seabed and subsoil and their natural
resources.
"(8) The term 'third country' means any country other than
Canada or the United States or any territory not a part of the
territory of either.
"(9) The term 'value of materials originating in the territory
of either Party or both Parties' means the aggregate of -
"(A) the price paid by the producer of an exported good for
materials originating in the territory of either Party or both
Parties or for materials imported from a third country used or
consumed in the production of such originating materials; and
"(B) when not included in that price, the following costs
related thereto -
"(i) freight, insurance, packing, and all other costs
incurred in transporting any of the materials referred to in
subparagraph (A) to the location of the producer;
"(ii) duties, taxes, and brokerage fees on such materials
paid in the territory of either Party or both Parties;
"(iii) the cost of waste or spoilage resulting from the use
or consumption of such materials, less the value of renewable
scrap or byproduct; and
"(iv) the value of goods and services relating to such
materials determined in accordance with subparagraph 1(b) of
article 8 of the Agreement on Implementation of article VII
of the General Agreement on Tariffs and Trade.
"(10) The term 'value of the goods when exported to the
territory of the other Party' means the aggregate of -
"(A) the price paid by the producer for all materials,
whether or not the materials originate in either Party or both
Parties, and, when not included in the price paid for the
materials, the costs related to -
"(i) freight, insurance, packing, and all other costs
incurred in transporting all materials to the location of the
producer;
"(ii) duties, taxes, and brokerage fees on all materials
paid in the territory of either Party or both Parties;
"(iii) the cost of waste or spoilage resulting from the use
or consumption of such materials, less the value of renewable
scrap or byproduct; and
"(iv) the value of goods and services relating to all
materials determined in accordance with subparagraph 1(b) of
article 8 of the Agreement on Implementation of article VII
of the General Agreement on Tariffs and Trade; and
"(B) the direct cost of processing or the direct cost of
assembling the goods.
"(g) Special Provision Regarding Application of Rules of Origin
to Certain Apparel. - The Secretary of Commerce is authorized to
issue regulations governing the exportation to Canada of apparel
products that are cut, or knit to shape, and sewn, or otherwise
assembled, in either Party from fabric produced or obtained in a
third country for the purpose of establishing which exports of such
products shall be permitted to claim preferential tariff treatment
under the rules of origin of the Agreement, to the extent that the
Agreement provides for quantitative limits on the availability of
preferential tariff treatment for such products.
"SEC. 203. CUSTOMS USER FEES.
[Amended section 58c of this title.]
"SEC. 204. DRAWBACK.
"(a) Definition. - For purposes of this section, the term
'drawback eligible goods' means -
"(1) goods provided for under paragraph 8 of article 404 of the
Agreement;
"(2) goods provided for under paragraphs 4 and 5 of such
article; and
"(3) goods other than those referred to in paragraphs (1) and
(2) that the United States and Canada agree are not subject to
paragraphs 1, 2, and 3 of such article.
No drawback may be paid with respect to countervailing duties or
antidumping duties imposed on drawback eligible goods.
"(b) Implementation of Article 404. - The President is authorized
-
"(1) to proclaim the identity, in accordance with the
nomenclature of the Harmonized System, of goods referred to in
subsection (a)(1); and
"(2) subject to the consultation and lay-over requirements of
section 103(a), to proclaim -
"(A) the identity, in accordance with the nomenclature of the
Harmonized System, of goods referred to in subsection (a)(3);
and
"(B) a delay in the taking effect of article 404 of the
Agreement to a date later than January 1, 1994, with respect to
any merchandise if the United States and Canada agree to the
delay under paragraph 7 of such article.
"(c) Consequential Amendments. -
"(1) Bonded manufacturing warehouses. - [Amended section 1311
of this title.]
"(2) Bonded smelting and refining warehouses. - [Amended
section 1312 of this title.]
"(3) Drawback. - [Amended section 1313 of this title.]
"(4) Manipulation in warehouse. - [Amended section 1562 of this
title.]
"(5) Foreign trade zones. - [Amended section 81c of this
title.]
"SEC. 205. ENFORCEMENT.
"(a) Certifications of Origin. -
"(1) Any person that certifies in writing that goods exported
to Canada meet the rules of origin under section 202 of the
United States-Canada Free-Trade Agreement Implementation Act of
1988 [section 202 of this note] shall provide, upon request by
any customs official, a copy of that certification.
"(2) Any person that fails to provide a copy of a certification
requested under paragraph (1) shall be liable to the United
States for a civil penalty not to exceed $10,000.
"(3) Any person that certifies falsely that goods exported to
Canada meet the rules of origin under such section 202 shall be
liable to the United States for the same civil penalties provided
under section 592 of the Tariff Act of 1930 (19 U.S.C. 1592) for
a violation of section 592(a) of such Act by fraud, gross
negligence, or negligence, as the case may be. The procedures and
provisions of section 592 of such Act that are applicable to a
violation under section 592(a) of such Act shall apply with
respect to such false certification.
"(b) Housekeeping Requirements. - [Amended section 1508 of this
title.]
"SEC. 206. EXEMPTION FROM LOTTERY TICKET EMBARGO
[Amended section 1305 of this title.]
"SEC. 207. PRODUCTION-BASED DUTY REMISSION PROGRAMS WITH RESPECT
TO AUTOMOTIVE PRODUCTS.
"(a) USTR Study. - The United States Trade Representative shall -

"(1) undertake a study to determine whether any of the
production-based duty remission programs of Canada with respect
to automotive products is either -
"(A) inconsistent with the provisions of, or otherwise denies
the benefits to the United States under, the General Agreement
on Tariffs and Trade, or
"(B) being implemented inconsistently with the obligations
under article 1002 of the Agreement not -
"(i) to expand the extent or the application, or
"(ii) to extend the duration,
of such programs; and
"(2) determine whether to initiate an investigation under
section 302 of the Trade Act of 1974 [19 U.S.C. 2412] with
respect to any of such production-based duty remission programs.
"(b) Report and Monitoring. -
"(1) The United States Trade Representative shall submit a
report to Congress no later than June 30, 1989 (or no later than
September 30, 1989, if the Trade Representative considers an
extension to be necessary) containing -
"(A) the results of the study under subsection (a)(1), as
well as a description of the basis used for measuring and
verifying compliance with the obligations referred to in
subsection (a)(1)(B); and
"(B) any determination made under subsection (a)(2) and the
reasons therefor.
"(2) Notwithstanding the submission of the report under
paragraph (1), the Trade Representative shall continue to monitor
the degree of compliance with the obligations referred to in
subsection (a)(1)(B).
"TITLE III - APPLICATION OF AGREEMENT TO SECTORS AND SERVICES
"SEC. 301. AGRICULTURE.
"(a) Special Tariff Provisions for Fresh Fruits and Vegetables. -

"(1) The Secretary of Agriculture (hereafter in this section
referred to as the 'Secretary') may recommend to the President
the imposition of a temporary duty on any Canadian fresh fruit or
vegetable entered into the United States if the Secretary
determines that both of the following conditions exist at the
time that imposition of the duty is recommended:
"(A) For each of 5 consecutive working days the import price
of the Canadian fresh fruit or vegetable is below 90 percent of
the corresponding 5-year average monthly import price for such
fruit or vegetable.
"(B) The planted acreage in the United States for the like
fresh fruit or vegetable is no higher than the average planted
acreage over the preceding 5 years, excluding the years with
the highest and lowest acreage. For the purposes of applying
this subparagraph, any acreage increase attributed directly to
a reduction in the acreage that was planted to wine grapes as
of October 4, 1987, shall be excluded.
Whenever the Secretary makes a determination that the conditions
referred to in subparagraphs (A) and (B) regarding any Canadian
fresh fruit or vegetable exist, the Secretary shall immediately
submit for publication in the Federal Register notice of the
determination.
"(2) No later than 6 days after publication in the Federal
Register of the notice described in paragraph (1), the Secretary
shall decide whether to recommend the imposition of a temporary
duty to the President, and if the Secretary decides to make such
a recommendation, the recommendation shall be forwarded
immediately to the President.
"(3) In determining whether to recommend the imposition of a
temporary duty to the President under paragraph (1), the
Secretary shall consider whether the conditions in subparagraphs
(A) and (B) of such paragraph have led to a distortion in trade
between the United States and Canada of the fresh fruit or
vegetable and, if so, whether the imposition of the duty is
appropriate, including consideration of whether it would
significantly correct this distortion.
"(4) Not later than 7 days after receipt of a recommendation of
the Secretary under paragraph (1), the President, after taking
into account the national economic interests of the United
States, shall determine whether to impose a temporary duty on the
Canadian fresh fruit or vegetable concerned. If the determination
is affirmative, the President shall proclaim the imposition and
the rate of the temporary duty, but such duty shall not apply to
the entry of articles that were in transit to the United States
on the first day on which the temporary duty is in effect.
"(5) A temporary duty imposed under paragraph (4) shall cease
to apply with respect to articles that are entered on or after
the earlier of -
"(A) the day following the last of 5 consecutive working days
with respect to which the Secretary determines that the point
of shipment price in Canada for the Canadian fruit or vegetable
concerned exceeds 90 percent of the corresponding 5-year
average monthly import price; or
"(B) the 180th day after the date on which the temporary duty
first took effect.
"(6) No temporary duty may be imposed under this subsection on
a Canadian fresh fruit or vegetable during such time as import
relief is provided with respect to such fresh fruit or vegetable
under chapter 1 of title II of the Trade Act of 1974 [19 U.S.C.
2251 et seq.].
"(7) For purposes of this subsection:
"(A) The term 'Canadian fresh fruit or vegetable' means any
article originating in Canada (as determined in accordance with
section 202) and classified within any of the following
headings of the Harmonized System:
"(i) 07.01 (relating to potatoes, fresh or chilled);
"(ii) 07.02 (relating to tomatoes, fresh or chilled);
"(iii) 07.03 (relating to onions, shallots, garlic, leeks
and other alliaceous vegetables, fresh or chilled);
"(iv) 07.04 (relating to cabbages, cauliflowers, kohlrabi,
kale and similar edible brassicas, fresh or chilled);
"(v) 07.05 (relating to lettuce (lactuca sativa) and
chicory (cichorium spp.), fresh or chilled);
"(vi) 07.06 (relating to carrots, salad beets or beetroot,
salsify, celeriac, radishes and similar edible roots
(excluding turnips), fresh or chilled);
"(vii) 07.07 (relating to cucumbers and gherkins, fresh or
chilled);
"(viii) 07.08 (relating to leguminous vegetables, shelled
or unshelled, fresh or chilled);
"(ix) 07.09 (relating to other vegetables (excluding
truffles), fresh or chilled);
"(x) 08.06.10 (relating to grapes, fresh);
"(xi) 08.08.20 (relating to pears and quinces, fresh);
"(xii) 08.09 (relating to apricots, cherries, peaches
(including nectarines), plums and sloes, fresh); and
"(xiii) 08.10 (relating to other fruit (excluding
cranberries and blueberries), fresh).
"(B) The term 'corresponding 5-year average monthly import
price' for a particular day means the average import price of a
Canadian fresh fruit or vegetable, for the calendar month in
which that day occurs, for that month in each of the preceding
5 years, excluding the years with the highest and lowest
monthly averages.
"(C) The term 'import price' has the meaning given such term
in article 711 of the Agreement.
"(D) The rate of a temporary duty imposed under this
subsection with respect to a Canadian fresh fruit or vegetable
means a rate that, including the rate of any other duty in
effect for such fruit or vegetable, does not exceed the lesser
of -
"(i) the duty that was in effect for the fresh fruit or
vegetable before January 1, 1989, under column one of the
Tariff Schedules of the United States for the applicable
season in which the temporary duty is applied; or
"(ii) the duty in effect for the fresh fruit or vegetable
under column one of such Schedules, or column 1 (General) of
the Harmonized System, at the time the temporary duty is
applied.
"(8)(A) The Secretary shall, to the extent practicable,
administer the provisions of this subsection to the 8-digit level
of classification under the Harmonized System.
"(B) The Secretary may issue such regulations as may be
necessary to implement the provisions of this subsection.
"(9) For purposes of assisting the Secretary in carrying out
this subsection -
"(A) the Commissioner of Customs and the Director of the
Bureau of Census shall cooperate in providing the Secretary
with timely information and data relating to the importation of
Canadian fresh fruits and vegetables, and
"(B) importers shall report such information relating to
Canadian fresh fruits and vegetables to the Commissioner of
Customs at such time and in such manner as the Commissioner
requires.
"(10) The authority to impose temporary duties under this
subsection expires on the 20th anniversary of the date on which
the Agreement enters into force.
"(b) Meat Import Act of 1979. - [Amended section 2 of Pub. L. 88-
482, set out as a note under section 2253 of this title.]
"(c) Agricultural Adjustment Act. - [Amended section 624 of Title
7, Agriculture.]
"(d) Importation of Animal Vaccines. - [Amended section 152 of
Title 21, Food and Drugs.]
"(e) Importation of Seeds. - [Amended section 1582 of Title 7,
Agriculture.]
"(f) Plant and Animal Health Regulations. -
"(1) [Amended section 150bb of Title 7.]
"(2) [Amended section 150cc of Title 7.]
"(3) [Amended sections 154 and 156 of Title 7.]
"(4) [Amended section 2803 of Title 7.]
"(5) [Amended section 1306 of this title.]
"SEC. 302. RELIEF FROM IMPORTS.
"(a) Relief From Imports of Canadian Articles. -
"(1) A petition requesting action under this section for the
purpose of adjusting to the obligations of the United States
under the Agreement may be filed with the United States
International Trade Commission (hereafter in this section
referred to as the 'Commission') by an entity, including a trade
association, firm, certified or recognized union, or group of
workers, which is representative of an industry. The Commission
shall transmit a copy of any petition filed under this paragraph
to the United States Trade Representative.
"(2)(A) Upon the filing of a petition under paragraph (1), the
Commission shall promptly initiate an investigation to determine
whether, as a result of a reduction or elimination of a duty
provided for under the United States-Canada Free-Trade Agreement,
an article originating in Canada is being imported into the
United States in such increased quantities, in absolute terms,
and under such conditions, so that imports of such Canadian
article, alone, constitute a substantial cause of serious injury
to the domestic industry producing an article like, or directly
competitive with, the imported article.
"(B) The provisions of -
"(i) paragraphs (2), (3), (4), (6), and (7) of subsection
(b), other than paragraph (2)(B), and
"(ii) subsection (c),
of section 201 of the Trade Act of 1974 (19 U.S.C. 2251), as in
effect on June 1, 1988, shall apply with respect to any
investigation initiated under subparagraph (A).
"(C) By no later than the date that is 120 days after the date
on which an investigation is initiated under subparagraph (A),
the Commission shall make a determination under subparagraph (A)
with respect to such investigation.
"(D) If the determination made by the Commission under
subparagraph (A) with respect to imports of an article is
affirmative, the Commission shall find and recommend to the
President the amount of import relief that is necessary to remedy
the injury found by the Commission in such affirmative
determination, which shall be limited to that set forth in
paragraph (3)(C).
"(E)(i) By no later than the date that is 30 days after the
date on which a determination is made under subparagraph (A) with
respect to an investigation, the Commission shall submit to the
President a report on the determination and the basis for the
determination. The report shall include any dissenting or
separate views and a transcript of the hearings and any briefs
which were submitted to the Commission in the course of the
investigation initiated under subparagraph (A).
"(ii) Any finding made under subparagraph (D) shall be included
in the report submitted to the President under clause (i).
"(F) Upon submitting a report to the President under
subparagraph (E), the Commission shall promptly make public such
report (with the exception of information which the Commission
determines to be confidential) and shall cause a summary thereof
to be published in the Federal Register.
"(G) For purposes of this subsection -
"(i) The provisions of paragraphs (1), (2), and (3) of
section 330(d) of the Tariff Act of 1930 (19 U.S.C. 1330(d))
shall be applied with respect to determinations and findings
made under this paragraph as if such determinations and
findings were made under section 201 of the Trade Act of 1974
(19 U.S.C. 2251).
"(ii) The determination of whether an article originates in
Canada shall be made in accordance with section 202 (including
any proclamations issued under section 202).
"(3)(A) By no later than the date that is 30 days after the
date on which the President receives the report of the Commission
containing an affirmative determination made by the Commission
under paragraph (2)(A), the President shall provide relief from
imports of the article originating in Canada that is the subject
of such determination to the extent that, and for such time (not
to exceed 3 years) as the President determines to be necessary to
remedy the injury found by the Commission.
"(B) The President is not required to provide import relief by
reason of this paragraph if the President determines that the
provision of such import relief is not in the national economic
interest.
"(C) The import relief that the President is authorized to
provide by reason of this paragraph with respect to an article
originating in Canada is limited to -
"(i) the suspension of any further reductions provided for
under the Agreement in the duty imposed on such article
originating in Canada,
"(ii) an increase in the rate of duty imposed on such article
originating in Canada to a level that does not exceed the
lesser of -
"(I) the general subcolumn of the column 1 rate of duty set
forth in the Harmonized Tariff Schedule of the United States
that is imposed by the United States on such article from any
other foreign country at the time such import relief is
provided, or
"(II) the general subcolumn of the column 1 rate of duty
set forth in the Harmonized Tariff Schedule of the United
States that is imposed by the United States on such article
from any other foreign country on the day before the date on
which the Agreement enters into force [Jan. 1, 1989], or
"(iii) in the case of a duty applied on a seasonal basis to
such article originating in Canada, an increase in the rate of
duty imposed on such article originating in Canada to a level
that does not exceed the general subcolumn of the column 1 rate
of duty set forth in the Harmonized Tariff Schedule of the
United States imposed by the United States on such article
originating in Canada for the corresponding season immediately
prior to the date on which the Agreement enters into force.
"(4)(A) No investigation may be initiated under paragraph
(2)(A) with respect to any article for which import relief has
been provided under this subsection.
"(B) No import relief may be provided under this subsection
after the date that is 10 years after the date on which the
Agreement enters into force [Jan. 1, 1989].
"(5) For purposes of section 123 of the Trade Act of 1974 (19
U.S.C. 2133), any import relief provided by the President under
paragraph (3) shall be treated as action taken under chapter I
[1] of title II of such Act [19 U.S.C. 2251 et seq.].
"(b) Relief From Imports From All Countries. -
"(1)(A) If, in any investigation initiated under chapter 1 of
title II of the Trade Act of 1974 [19 U.S.C. 2251 et seq.], the
Commission makes an affirmative determination (or a determination
which is treated as an affirmative determination under such
chapter by reason of section 330(d) of the Tariff Act of 1930 [19
U.S.C. 1330(d)]) that an article is being imported into the
United States in such increased quantities as to be a substantial
cause of serious injury, or the threat thereof, to the domestic
industry, the Commission shall also find (and report to the
President at the time such injury determination is submitted to
the President), whether imports from Canada of the article that
is the subject of such investigation are substantial and are
contributing importantly to such injury or threat thereof.
"(B)(i) In determining under subparagraph (A) whether imports
of an article from Canada are substantial, the Commission shall
not normally consider imports from Canada in the range of 5 to 10
percent or less of total imports of such article to be
substantial.
"(ii) For purposes of this paragraph, the term 'contributing
importantly' means an important cause, but not necessarily the
most important cause, of the serious injury or threat thereof
caused by imports.
"(2)(A) In determining whether to take action under chapter 1
of title II of the Trade Act of 1974 with respect to imports from
Canada, the President shall determine whether imports from Canada
of such article are substantial and contributing importantly to
the serious injury or threat of serious injury found by the
Commission.
"(B) In determining the nature and extent of action to be taken
under chapter 1 of title II of the Trade Act of 1974, the
President shall exclude from such action imports from Canada if
the President has made a negative determination under
subparagraph (A) regarding imports from Canada.
"(3)(A) If, under paragraph (2)(B), the President excludes
imports from Canada from action taken under chapter 1 of title II
of the Trade Act of 1974, the President may, if the President
thereafter determines that a surge in imports from Canada of the
article that is the subject of the action is undermining the
effectiveness of the action, take appropriate action under such
chapter with respect to such imports from Canada to include such
imports in such action.
"(B)(i) If, under paragraph (2)(B), the President excludes
imports from Canada from action taken under chapter 1 of title II
of the Trade Act of 1974, any entity, including a trade
association, firm, certified or recognized union, or group of
workers, that is representative of an industry for which such
action is being taken under such chapter may request the
Commission to conduct an investigation of imports from Canada of
the article that is the subject of such action.
"(ii) Upon receiving a request under clause (i), the Commission
shall conduct an investigation to determine whether a surge in
imports from Canada of the article that is the subject of action
being taken under chapter 1 of title II of the Trade Act of 1974
undermines the effectiveness of such action. The Commission shall
submit the findings of such investigation to the President by no
later than the date that is 30 days after the date on which such
request is received by the Commission.
"(C) For purposes of this paragraph, the term 'surge' means a
significant increase in imports over the trend for a reasonable,
recent base period for which data are available.
"(c) Any entity that is representative of an industry may submit
a petition for relief under subsection (a), under chapter 1 of
title II of the Trade Act of 1974, or under both subsection (a) and
such chapter at the same time. If petitions are submitted by such
an entity under subsection (a) and such chapter at the same time,
the Commission shall consider such petitions jointly.
"SEC. 303. ACTS IDENTIFIED IN NATIONAL TRADE ESTIMATES.
"With respect to any act, policy, or practice of Canada that is
identified in the annual report submitted under section 181 of the
Trade Act of 1974 (19 U.S.C. 2241), the United States Trade
Representative shall include -
"(1) information with respect to the action taken regarding
such act, policy, or practice, including but not limited to -
"(A) any action under section 301 of the Trade Act of 1974
[19 U.S.C. 2411] (including resolution through appropriate
dispute settlement procedures),
"(B) any action under section 307 of the Trade and Tariff Act
of 1984 [section 307 of Pub. L. 98-573, enacting section 2114d
of this title and amending this section], and
"(C) negotiations or consultations, whether on a bilateral or
multilateral basis; or
"(2) the reasons that no action was taken regarding such act,
policy, or practice.
"SEC. 304. NEGOTIATIONS REGARDING CERTAIN SECTORS; BIENNIAL
REPORTS.
"(a) In General. -
"(1) The President is authorized to enter into negotiations
with the Government of Canada for the purpose of concluding an
agreement (including an agreement amending the Agreement) or
agreements to -
"(A) liberalize trade in services in accordance with article
1405 of the Agreement;
"(B) liberalize investment rules;
"(C) improve the protection of intellectual property rights;
"(D) increase the value requirement applied for purposes of
determining whether an automotive product is treated as
originating in Canada or the United States; and
"(E) liberalize government procurement practices,
particularly with regard to telecommunications.
"(2) As an exercise of the foreign relations powers of the
President under the Constitution, the President will enter into
immediate consultations with the Government of Canada to obtain
the exclusion from the transport rates established under Canada's
Western Grain Transportation Act of agricultural goods that
originate in Canada and are shipped via east coast ports for
consumption in the United States.
"(b) Negotiating Objectives Regarding Services, Investment, and
Intellectual Property Rights. -
"(1) The objectives of the United States in negotiations
conducted under subsection (a)(1)(A) to liberalize trade in
services include -
"(A) with respect to developing services sectors not covered
in the Agreement, the elimination of those tariff, nontariff,
and subsidy trade distortions that have potential to affect
significant bilateral trade;
"(B) the elimination or reduction of measures grandfathered
by the Agreement that deny or restrict national treatment in
the provision of services;
"(C) the elimination of local presence requirements; and
"(D) the liberalization of government procurement of
services.
In conducting such negotiations, the President shall consult with
the services advisory committees established under section 135 of
the Trade Act of 1974 (19 U.S.C. 2155).
"(2) The objectives of the United States in any negotiations
conducted under subsection (a)(1)(B) to liberalize investment
rules include -
"(A) the elimination of direct investment screening;
"(B) the extension of the principles of the Agreement to
energy and cultural industries, to the extent such industries
are not currently covered by the Agreement;
"(C) the elimination of technology transfer requirements and
other performance requirements not currently barred by the
Agreement; and
"(D) the subjection of all investment disputes to dispute
resolution under chapter 18 of the Agreement.
In conducting such negotiations, the President shall consult with
persons representing diverse interests in the United States in
investment.
"(3) The objectives of the United States in any negotiations
conducted under subsection (a)(1)(C) to improve the protection of
intellectual property rights include -
"(A) the recognition and adequate protection of intellectual
property, including copyrights, patents, process patents,
trademarks, mask works, and trade secrets; and
"(B) the establishment of dispute resolution procedures and
binational enforcement of intellectual property standards.
In conducting such negotiations, the President shall consult with
persons representing diverse interests in the United States in
intellectual property.
"(c) Negotiating Objectives Regarding Automotive Products. -
"(1) In conducting negotiations under subsection (a)(1)(D)
regarding the value requirement for automotive products, the
President shall seek to conclude an agreement by no later than
January 1, 1990, to increase the value requirement from 50
percent to at least 60 percent.
"(2) The President is authorized, through January 1, 1999, to
proclaim any agreed increase in the value requirement.
"(3) As used in this section, the term 'value requirement'
means the minimum percentage of the value of an automotive
product that must be accounted for by the value of the materials
in the product that originated in the United States or Canada, or
both, plus the direct cost of processing or assembly performed in
the United States or Canada, or both, with respect to the
product.
"(d) Negotiation of Limitation on Potato Trade. -
"(1) During the 5-year period beginning on the date of
enactment of this Act [Sept. 28, 1988], the President is
authorized to enter into negotiations with Canada for the purpose
of obtaining an agreement to limit the exportation and
importation of all potatoes between the United States and Canada,
including seed potatoes, fresh, chilled or frozen potatoes,
dried, desiccated or dehydrated potatoes, and potatoes otherwise
prepared or preserved. Any agreement negotiated under this
subsection shall provide for an annual limitation divided equally
into each half of the year.
"(2) For the purpose of conducting negotiations under paragraph
(1), the Secretary of Agriculture and the United States Trade
Representative shall consult with representatives of the potato
producing industry, including the Ad Hoc Potato Advisory Group
and the United States/Canada Horticultural Industry Advisory
Committee, to solicit their views on negotiations with Canada for
reciprocal quantitative limits on the potato trade.
"(3) The President is authorized to direct the Secretary of the
Treasury to -
"(A) carry out such actions as may be necessary or
appropriate to ensure the attainment of the objectives of any
agreement that is entered into under this section; and
"(B) enforce any quantitative limitation, restriction, and
other terms contained in the agreement.
Such actions may include, but are not limited to, requirements
that valid export licenses or other documentation issued by a
foreign government be presented as a condition for the entry into
the United States of any article that is subject to the
agreement.
"(4) The provisions of section 1204 of the Agriculture and Food
Act of 1981 (7 U.S.C. 1736j) and the last sentence of section 812
of the Agricultural Act of 1970 (7 U.S.C. 612c-3) shall not apply
in the case of actions taken pursuant to this subsection.
"(e) Canadian Controls on Fish. -
"(1) Within 30 days of the application by Canada of export
controls on unprocessed fish under statutes exempted from the
Agreement under article 1203, or the application of landing
requirements for fish caught in Canadian waters, the President
shall take appropriate action to enforce United States rights
under the General Agreement on Tariffs and Trade that are
retained in article 1205 of the Agreement.
"(2) In enforcing the United States rights referred to in
paragraph (1), the President has discretion to -
"(A) bring a challenge to the offending Canadian practices
before the GATT;
"(B) retaliate against such offending practices;
"(C) seek resolution directly with Canada;
"(D) refer the matter for dispute resolution to the Canada-
United States Trade Commission; or
"(E) take other action that the President considers
appropriate to enforce such United States rights.
"(f) Biennial Report. - The President shall submit to the
Congress, at the close of each biennial period occurring after the
date on which the Agreement enters into force [Jan. 1, 1989], a
report regarding -
"(1) the status of the negotiations regarding agreements that
the President is authorized to enter into with Canada under this
section;
"(2) the effectiveness and operation of any agreement entered
into under section 304 that is in force with respect to the
United States;
"(3) the effectiveness of operation of the Agreement generally;
and
"(4) the actions taken by the United States and Canada to
implement further the objectives of the Agreement.
"SEC. 305. ENERGY.
"(a) Alaskan Oil. - [Amended section 2406 of the Appendix to
Title 50, War and National Defense.]
"(b) Uranium. - [Amended section 2201 of Title 42, The Public
Health and Welfare.]
"SEC. 306. LOWERED THRESHOLD FOR GOVERNMENT PROCUREMENT UNDER
TRADE AGREEMENTS ACT OF 1979 IN THE CASE OF CERTAIN CANADIAN
PRODUCTS.
[Amended section 2518 of this title.]
"SEC. 307. TEMPORARY ENTRY FOR BUSINESS PERSONS.
"(a) Nonimmigrant Traders and Investors. - Upon a basis of
reciprocity secured by the United States-Canada Free-Trade
Agreement, a citizen of Canada, and the spouse and children of any
such citizen if accompanying or following to join such citizen,
may, if otherwise eligible for a visa and if otherwise admissible
into the United States under the Immigration and Nationality Act (8
U.S.C. 1101 et seq.), be considered to be classifiable as a
nonimmigrant under section 101(a)(15)(E) of such Act (8 U.S.C.
1101(a)(15)(E)) if entering solely for a purpose specified in Annex
1502.1 (United States of America), Part B - Traders and Investors,
of such Agreement, but only if any such purpose shall have been
specified in such Annex as of the date of entry into force of such
Agreement [Jan. 1, 1989].
"(b) Nonimmigrant Professionals. - [Amended section 1184 of Title
8, Aliens and Nationality.]
"SEC. 308. AMENDMENT TO SECTION 5136 OF THE REVISED STATUTES.
[Amended section 24 of Title 12, Banks and Banking.]
"SEC. 309. STEEL PRODUCTS.
"Nothing in this Act shall preclude any discussion or negotiation
between the United States and Canada in order to conclude voluntary
restraint agreements or mutually agreed quantitative restrictions
on the volume of steel products entering the United States from
Canada.
"TITLE IV - BINATIONAL PANEL DISPUTE SETTLEMENT IN ANTIDUMPING AND
COUNTERVAILING DUTY CASES.
"SEC. 401. AMENDMENTS TO SECTION 516A OF THE TARIFF ACT OF 1930.
[Amended section 1516a of this title.]
"SEC. 402. AMENDMENTS TO TITLE 28, UNITED STATES CODE.
"(a) Jurisdiction of Court of International Trade. - [Amended
section 1581 of Title 28, Judiciary and Judicial Procedure.]
"(b) Relief in Court of International Trade. - [Amended section
2643 of Title 28.]
"(c) Declaratory Judgments. - [Amended section 2201 of Title 28.]
"(d) Actions Under the Agreement. - [Enacted section 1584 of
Title 28.]
"SEC. 403. CONFORMING AMENDMENTS TO THE TARIFF ACT OF 1930.
[Amended sections 1502, 1514, 1677, and 1677f of this title.]
"SEC. 404. AMENDMENTS TO ANTIDUMPING AND COUNTERVAILING DUTY LAW.
"Any amendment enacted after the Agreement enters into force with
respect to the United States [Jan. 1, 1989] that is made to -
"(1) section 303 [19 U.S.C. 1303] or title VII of the Tariff
Act of 1930 [19 U.S.C. 1671 et seq.], or any successor statute,
or
"(2) any other statute which -
"(A) provides for judicial review of final determinations
under such section, title, or statute, or
"(B) indicates the standard of review to be applied,
shall apply to Canada only to the extent specified in such
amendment.
"SEC. 405. ORGANIZATIONAL AND ADMINISTRATIVE PROVISIONS REGARDING
THE IMPLEMENTATION OF CHAPTERS 18 AND 19 OF THE AGREEMENT.
"(a) Appointment of Individuals to Panels and Committees. -
"(1)(A) There is established within the interagency
organization established under section 242 of the Trade Expansion
Act of 1962 (19 U.S.C. 1872) an interagency group which shall -
"(i) be chaired by the United States Trade Representative
(hereafter in this section referred to as the 'Trade
Representative'), and
"(ii) consist of such officers (or the designees thereof) of
the Government of the United States as the Trade Representative
considers appropriate.
"(B) The interagency group established under subparagraph (A)
shall, in a manner consistent with chapter 19 of the Agreement -
"(i) prepare by January 3 of each calendar year -
"(I) a list of individuals who are qualified to serve as
members of binational panels convened under chapter 19 of the
Agreement, and
"(II) a list of individuals who are qualified to serve on
extraordinary challenge committees convened under such
chapter,
"(ii) if the Trade Representative makes a request under
paragraph (5)(A)(i) with respect to a final candidate list
during any calendar year, prepare by July 1 of such calendar
year a list of those individuals who are qualified to be added
to that final candidate list,
"(iii) exercise oversight of the administration of the United
States Secretariat that is authorized to be established under
subsection (e), and
"(iv) make recommendations to the Trade Representative
regarding the convening of extraordinary challenge committees
under chapter 19 of the Agreement.
"(2)(A) The Trade Representative shall select individuals from
the respective lists prepared by the interagency group under
paragraph (1)(B)(i) for placement on a preliminary candidate list
of individuals eligible to serve as members of binational panels
under Annex 1901.2 of the Agreement and a preliminary candidate
list of individuals eligible for selection as members of
extraordinary challenge committees under Annex 1904.13 of the
Agreement.
"(B) The selection of individuals for -
"(i) placement on lists prepared by the interagency group
under clause (i) or (ii) of paragraph (1)(B),
"(ii) placement on preliminary candidate lists under
subparagraph (A),
"(iii) placement on final candidate lists under paragraph
(3),
"(iv) placement by the Trade Representative on the rosters
described in Annex 1901.2(1) and Annex 1904.13(1) of the
Agreement, and
"(v) appointment by the Trade Representative for service on
binational panels and extraordinary challenge committees
convened under chapter 19 of the Agreement,
shall be made on the basis of the criteria provided in Annex
1901.2(1) and Annex 1904.13(1) of the Agreement and shall be made
without regard to political affiliation.
"(C) For purposes of applying section 1001 of title 18, United
States Code, the written or oral responses of individuals to
inquiries of the interagency group established under paragraph
(1) or the Trade Representative regarding their personal and
professional qualifications, and financial and other relevant
interests, that bear on their suitability for the placements and
appointments described in subparagraph (B), shall be treated as
matters within the jurisdiction of an agency of the United
States.
"(3)(A) By no later than January 3 of each calendar year, the
Trade Representative shall submit to the Committee on Finance of
the Senate and the Committee on Ways and Means of the House of
Representatives (hereafter in this section referred to as the
'appropriate Congressional Committees') the preliminary candidate
lists of those individuals selected by the Trade Representative
under paragraph (2)(A) to be candidates eligible to serve on
binational panels or extraordinary challenge committees convened
pursuant to chapter 19 of the Agreement during the 1-year period
beginning on April 1 of such calendar year.
"(B) Upon submission of the preliminary candidate lists under
subparagraph (A) to the appropriate Congressional Committees, the
Trade Representative shall consult with the appropriate
Congressional Committees with regard to the individuals listed on
the preliminary candidate lists.
"(C) The Trade Representative may add or delete individuals
from the preliminary candidate lists submitted under subparagraph
(A) after consulting the appropriate Congressional Committees
with regard to such addition or deletion. The Trade
Representative shall provide to the appropriate Congressional
Committees written notice of any addition or deletion of an
individual from the preliminary candidate lists.
"(4)(A) By no later than March 31 of each calendar year, the
Trade Representative shall submit to the appropriate
Congressional Committees the final candidate lists of those
individuals selected by the Trade Representative to be candidates
eligible to serve on binational panels and extraordinary
challenge committees convened pursuant to chapter 19 of the
Agreement during the 1-year period beginning on April 1 of such
calendar year. An individual may be included on a final candidate
list only if written notice of the addition of such individual to
the preliminary candidate list was submitted to the appropriate
Congressional Committees at least 15 days before the date on
which that final candidate list is submitted to the appropriate
Congressional Committees under this subparagraph.
"(B) Except as provided in paragraph (5), no additions may be
made to the final candidate lists after the final candidate lists
are submitted to the appropriate Congressional Committees under
subparagraph (A).
"(5)(A) If, after the Trade Representative has submitted the
final candidate lists to the appropriate Congressional Committees
under paragraph (4)(A) for a calendar year and before July 1 of
such calendar year, the Trade Representative determines that
additional individuals need to be added to a final candidate
list, the Trade Representative shall -
"(i) request the interagency group established under
paragraph (1)(A) to prepare a list of individuals who are
qualified to be added to such candidate list,
"(ii) select individuals from the list prepared by the
interagency group under paragraph (1)(B)(ii) to be included in
a proposed amendment to such final candidate list, and
"(iii) by no later than July 1 of such calendar year, submit
to the appropriate Congressional Committees the proposed
amendments to such final candidate list developed by the Trade
Representative under clause (ii).
"(B) Upon submission of a proposed amendment under subparagraph
(A)(iii) to the appropriate Congressional Committees, the Trade
Representative shall consult with the appropriate Congressional
Committees with regard to the individuals included in the
proposed amendment.
"(C) The Trade Representative may add or delete individuals
from any proposed amendment submitted under subparagraph (A)(iii)
after consulting the appropriate Congressional Committees with
regard to such addition or deletion. The Trade Representative
shall provide to the appropriate Congressional Committees written
notice of any addition or deletion of an individual from the
proposed amendment.
"(D)(i) If the Trade Representative submits under subparagraph
(A)(iii) in any calendar year a proposed amendment to a final
candidate list, the Trade Representative shall, by no later than
September 30 of such calendar year, submit to the appropriate
Congressional Committees the final form of such amendment. On
October 1 of such calendar year, such amendment shall take effect
and the individuals included in the final form of such amendment
shall be added to the final candidate list.
"(ii) An individual may be included in the final form of an
amendment submitted under clause (i) only if written notice of
the addition of such individual to the proposed form of such
amendment was submitted to the appropriate Congressional
Committees at least 15 days before the date on which the final
form of such amendment is submitted under clause (i).
"(iii) Individuals added to a final candidate list under clause
(i) shall be eligible to serve on binational panels or
extraordinary challenge committees convened pursuant to chapter
19 of the Agreement, as the case may be, during the 6-month
period beginning on October 1 of the calendar year in which such
addition occurs.
"(iv) No additions may be made to the final form of an
amendment described in clause (i) after the final form of such
amendment is submitted to the appropriate Congressional
Committees under clause (i).
"(6)(A) The Trade Representative is the only officer of the
Government of the United States authorized to act on behalf of
the Government of the United States in making any selection or
appointment of an individual to -
"(i) the rosters described in Annex 1901.2(1) and Annex
1904.13(1) of the Agreement, or
"(ii) the binational panels or extraordinary challenge
committees convened pursuant to chapter 19 of the Agreement,
that is to be made solely or jointly by the Government of the
United States under the terms of the Agreement.
"(B) Except as otherwise provided in paragraph (7)(B), the
Trade Representative may -
"(i) select an individual for placement on the rosters
described in Annex 1901.2(1) and Annex 1904.13(1) of the
Agreement during the 1-year period beginning on April 1 of any
calendar year,
"(ii) appoint an individual to serve as one of those members
of any binational panel or extraordinary challenge committee
convened pursuant to chapter 19 of the Agreement during such 1-
year period who, under the terms of the Agreement, are to be
appointed solely by the Government of the United States, or
"(iii) act to make a joint appointment with the Government of
Canada, under the terms of the Agreement, of any individual who
is a citizen or national of the United States to serve as any
other member of such a panel or committee,
only if such individual is on the appropriate final candidate
list that was submitted to the appropriate Congressional
Committees under paragraph (4)(A) during such calendar year or on
such list as it may be amended under paragraph (5)(D)(i).
"(7)(A) Except as otherwise provided in this paragraph, no
individual may -
"(i) be selected by the Government of the United States for
placement on the rosters described in Annex 1901.2(1) and Annex
1904.13(1) of the Agreement, or
"(ii) be appointed solely or jointly by the Government of the
United States to serve as a member of a binational panel or
extraordinary challenge committee convened pursuant to chapter
19 of the Agreement,
during the 1-year period beginning on April 1 of any calendar
year for which the Trade Representative has not met the
requirements of this subsection.
"(B)(i) Notwithstanding paragraphs (3), (4), or (6)(B) (other
than paragraph (3)(A)), individuals listed on the preliminary
candidate lists submitted to the appropriate Congressional
Committees under paragraph (3)(A) may -
"(I) be selected by the Trade Representative for placement on
the rosters described in Annex 1901.2(1) and Annex 1904.13(1)
of the Agreement during the 3-month period beginning on the
date on which the Agreement enters into force, and
"(II) be appointed solely or jointly by the Trade
Representative under the terms of the Agreement to serve as
members of binational panels or extraordinary challenge
committees that are convened pursuant to chapter 19 of the
Agreement during such 3-month period.
"(ii) If the Agreement enters into force after January 3, 1989,
the provisions of this subsection shall be applied with respect
to the calendar year in which the Agreement enters into force -
"(I) by substituting 'the date that is 30 days after the date
on which the Agreement enters into force' for 'January 3 of
each calendar year' in paragraphs (1)(B)(i) and (3)(A), and
"(II) by substituting 'the date that is 3 months after the
date on which the Agreement enters into force' for 'March 31 of
each calendar year' in paragraph (4)(A).
"(b) Status of Panelists. - Notwithstanding any other provision
of law, individuals appointed by the United States to serve on
panels or committees convened pursuant to chapter 19 of the
Agreement, and individuals designated to assist such appointed
individuals, shall not be considered to be employees or special
employees of, or to be otherwise affiliated with, the Government of
the United States.
"(c) Immunity of Panelists. - With the exception of acts
described in section 777f(d)(3) [777(d)(3)] of the Tariff Act of
1930, as added by this Act [19 U.S.C. 1677f(d)(3)], individuals
serving on panels or committees convened pursuant to chapter 19 of
the Agreement, and individuals designated to assist the individuals
serving on such panels or committees, shall be immune from suit and
legal process relating to acts performed by such individuals in
their official capacity and within the scope of their functions as
such panelists or committee members or assistants to such panelists
or committee members.
"(d) Regulations. - The administering authority under title VII
of the Tariff Act of 1930 [19 U.S.C. 1671 et seq.], the United
States International Trade Commission, and the United States Trade
Representative may promulgate such regulations as are necessary or
appropriate to carry out actions in order to implement their
respective responsibilities under chapters 18 and 19 of the
Agreement. Initial regulations to carry out such functions shall be
issued prior to the date of entry into force of the Agreement [Jan.
1, 1989].
"(e) Establishment of United States Secretariat. -
"(1) The President is authorized to establish within any
department or agency of the Federal Government a United States
Secretariat which, subject to the oversight of the interagency
group established under subsection (a)(1)(A), shall facilitate -
"(A) the operation of chapters 18 and 19 of the Agreement,
and
"(B) the work of the binational panels and extraordinary
challenge committees convened under chapters 18 and 19 of the
Agreement.
"(2) The United States Secretariat established by the President
under paragraph (1) shall not be considered to be an agency for
purposes of section 552 of title 5, United States Code.
"SEC. 406. AUTHORIZATION OF APPROPRIATIONS FOR THE SECRETARIAT,
THE PANELS, AND THE COMMITTEES.
"(a) The Secretariat. - There are authorized to be appropriated
to the department or agency within which the United States
Secretariat described in chapter 19 of the Agreement is established
the lesser of -
"(1) such sums as may be necessary, or
"(2) $5,000,000,
for each fiscal year succeeding fiscal year 1988 for the
establishment and operations of such United States Secretariat and
for the payment of the United States share of the expenses of the
dispute settlement proceedings under chapter 18 of the Agreement.
"(b) Panels and Committees. -
"(1) There are authorized to be appropriated to the Office of
the United States Trade Representative for fiscal year 1990,
$1,492,000 to pay during such fiscal year the United States share
of the expenses of binational panels and extraordinary challenge
committees convened pursuant to chapter 19 of the Agreement.
"(2) The United States Trade Representative is authorized to
transfer to any department or agency of the United States, from
sums appropriated pursuant to the authorization provided under
paragraph (1) or section 141(g)(1) of the Trade Act of 1974 [19
U.S.C. 2171(g)(1)], such funds as may be necessary to facilitate
the payment of the expenses described in paragraph (1).
"(3) Funds appropriated for the payment of expenses described
in paragraph (1) during any fiscal year may be expended only to
the extent such funds do not exceed the amount authorized to be
appropriated under paragraph (1) for such fiscal year. This
paragraph shall apply, notwithstanding any law enacted after the
date of enactment of this Act [Sept. 28, 1988], unless such
subsequent law specifically provides that this paragraph shall
not apply and specifically cites this paragraph.
"(4) If the Canadian Secretariat described in chapter 19 of the
Agreement provides funds during any fiscal year for the purpose
of paying, in accordance with Annex 1901.2 of the Agreement, the
Canadian share of the expenses of binational panels, the United
States Secretariat established under section 405(e)(1) may
hereafter retain and use such funds for such purposes.
"SEC. 407. TESTIMONY AND PRODUCTION OF PAPERS IN EXTRAORDINARY
CHALLENGES.
"(a) Authority of Extraordinary Challenge Committee To Obtain
Information. - If an extraordinary challenge committee (hereinafter
referred to in this section as the 'committee') is convened
pursuant to article 1904(13) of the Agreement, and the allegations
before the committee include a matter referred to in article
1904(13)(a)(i) of the Agreement, for the purposes of carrying out
its functions and duties under Annex 1904.13 of the Agreement, the
committee -
"(1) shall have access to, and the right to copy, any document,
paper, or record pertinent to the subject matter under
consideration, in the possession of any individual, partnership,
corporation, association, organization, or other entity,
"(2) may summon witnesses, take testimony, and administer
oaths,
"(3) may require any individual, partnership, corporation,
association, organization, or other entity to produce documents,
books, or records relating to the matter in question, and
"(4) may require any individual, partnership, corporation,
association, organization, or other entity to furnish in writing,
in such detail and in such form as the committee may prescribe,
information in its possession pertaining to the matter.
Any member of the committee may sign subpoenas, and members of the
committee, when authorized by the committee, may administer oaths
and affirmations, examine witnesses, take testimony, and receive
evidence.
"(b) Witnesses and Evidence. - The attendance of witnesses who
are authorized to be summoned, and the production of documentary
evidence authorized to be ordered, under subsection (a) may be
required from any place in the United States at any designated
place of hearing. In the case of disobedience to a subpoena
authorized under subsection (a), the committee may request the
Attorney General of the United States to invoke the aid of any
district or territorial court of the United States in requiring the
attendance and testimony of witnesses and the production of
documentary evidence. Such court, within the jurisdiction of which
such inquiry is carried on, may, in case of contumacy or refusal to
obey a subpoena issued to any individual, partnership, corporation,
association, organization, or other entity, issue an order
requiring such individual or entity to appear before the committee,
or to produce documentary evidence if so ordered or to give
evidence concerning the matter in question. Any failure to obey
such order of the court may be punished by such court as a contempt
thereof.
"(c) Mandamus. - Any court referred to in subsection (b) shall
have jurisdiction to issue writs of mandamus commanding compliance
with the provisions of this section or any order of the committee
made in pursuance thereof.
"(d) Depositions. - The committee may order testimony to be taken
by deposition at any stage of the committee review. Such deposition
may be taken before any person designated by the committee and
having power to administer oaths. Such testimony shall be reduced
to writing by the person taking the deposition, or under the
direction of such person, and shall then be subscribed by the
deponent. Any individual, partnership, corporation, association,
organization or other entity may be compelled to appear and depose
and to produce documentary evidence in the same manner as witnesses
may be compelled to appear and testify and produce documentary
evidence before the committee, as provided in this section.
"SEC. 408. REQUESTS FOR REVIEW OF CANADIAN ANTIDUMPING AND
COUNTERVAILING DUTY DETERMINATIONS.
"(a) Requests for Review by the United States. - In the case of a
final antidumping or countervailing duty determination of a
competent investigating authority of Canada, as defined in article
1911 of the Agreement, requests by the United States for binational
panel review under article 1904 of the Agreement shall be made by
the United States Secretary, described in article 1909(4) of the
Agreement.
"(b) Requests for Review by a Person. - In the case of a final
antidumping or countervailing duty determination of a competent
investigating authority of Canada, as defined in article 1911 of
the Agreement, a person, within the meaning of article 1904(5) of
the Agreement, may request a binational panel review of such
determination by filing with the United States Secretary, described
in article 1909(4) of the Agreement, such a request within the time
limit provided for in article 1904(4) of the Agreement. The receipt
of such request by the United States Secretary shall be deemed to
be a request for binational panel review within the meaning of
article 1904(4) of the Agreement. Such request shall contain such
information and be in such form, manner, and style as the
administering authority shall prescribe by regulations. The request
for such panel review shall not preclude the United States, Canada,
or any other person from challenging before a binational panel the
basis for a particular request for review.
"(c) Service of Request for Review. - Whenever binational panel
review is requested under this section, the United States Secretary
shall serve a copy of the request on all persons who would
otherwise be entitled under Canadian law to commence procedures for
judicial review of a final antidumping or countervailing duty
determination made by a competent investigating authority of
Canada.
"SEC. 409. SUBSIDIES.
"(a) Negotiating Authority. -
"(1) The President is authorized to enter into an agreement
with Canada, including an agreement to amend the Agreement, on
rules applicable to trade between the United States and Canada
that -
"(A) deal with unfair pricing and government subsidization,
and
"(B) provide for increased discipline on subsidies.
"(2)(A) The objectives of the United States in negotiating an
agreement under paragraph (1) include (but are not limited to) -
"(i) achievement, on an expedited basis, of increased
discipline on government production and export subsidies that
have a significant impact, directly or indirectly, on bilateral
trade between the United States and Canada; and
"(ii) attainment of increased and more effective discipline
on those Canadian Government (including provincial) subsidies
having the most significant adverse impact on United States
producers that compete with subsidized products of Canada in
the markets of the United States and Canada.
"(B) Special emphasis should be given in negotiating an
agreement under paragraph (1) to obtain discipline on Canadian
subsidy programs that adversely affect United States industries
which directly compete with subsidized imports.
"(3) The United States members of the working group established
under article 1907 of the Agreement shall consult regularly with
the Committee on Finance of the Senate, the Committee on Ways and
Means of the House of Representatives, and advisory committees
established under section 135 of the Trade Act of 1974 [19 U.S.C.
2155] regarding -
"(A) the issues being considered by the working group; and
"(B) as appropriate, the objectives and strategy of the
United States in the negotiations.
"(4) Notwithstanding any other provision of this Act or of any
other law, the provisions of section 151 of the Trade Act of 1974
(19 U.S.C. 2191) shall not apply to any bill or joint resolution
that implements an agreement entered into under paragraph (1),
unless the President determines and notifies the Congress that
such agreement -
"(A) will provide greater discipline over government
subsidies and no less discipline over unfair pricing practices
by producers than that provided by the agreements described in
paragraphs (5) and (6) of section 2[(c)] of the Trade
Agreements Act of 1979 [19 U.S.C. 2503(c)(5), (6)] (the
Subsidies Code and Antidumping Code), respectively, taking into
account the effects of the Agreement, and
"(B) will neither undermine such multilateral discipline nor
detract from United States efforts to increase such discipline
on a multilateral basis in, or subsequent to, the Uruguay Round
of multilateral trade negotiations.
"(b) Identification of Industries Facing Subsidized Imports. -
"(1) Any entity, including a trade association, firm, certified
or recognized union, or group of workers, that is representative
of a United States industry and has reason to believe that -
"(A)(i) as a result of implementation of provisions of the
Agreement, the industry is likely to face increased competition
from subsidized Canadian imports with which it directly
competes; or
"(ii) the industry is likely to face increased competition
from subsidized imports with which it directly competes from
any other country designated by the President, following
consultations with the Congress, as benefitting from a
reduction of tariffs or other trade barriers under a trade
agreement that enters into force after January 1, 1989; and
"(B) the industry is likely to experience a deterioration of
its competitive position before rules and disciplines relating
to the use of government subsidies have been developed with
respect to such country;
may file a petition with the United States Trade Representative
(hereafter referred to in this section as the 'Trade
Representative') to be identified under this section.
"(2) Within 90 days of receipt of a petition under paragraph
(1), the Trade Representative, in consultation with the Secretary
of Commerce, shall decide whether to identify the industry on the
basis that there is a reasonable likelihood that the industry may
face both the subsidization described in paragraph (1)(A) and the
deterioration described in paragraph (1)(B).
"(3) At the request of an entity that is representative of an
industry identified under paragraph (2), the Trade Representative
shall -
"(A) compile and make available to the industry information
under section 308 of the Trade Act of 1974 [19 U.S.C. 2418],
"(B) recommend to the President that an investigation by the
United States International Trade Commission be requested under
section 332 of the Tariff Act of 1930 [19 U.S.C. 1332], or
"(C) take actions described in both subparagraphs (A) and
(B).
The industry may request the Trade Representative to take
appropriate action to update (as often as annually) any
information obtained under subparagraph (A) or (B), or both, as
the case may be, until an agreement on adequate rules and
disciplines relating to government subsidies is reached.
"(4)(A) The Trade Representative and the Secretary of Commerce
shall review information obtained under paragraph (3) and consult
with the industry identified under paragraph (2) with a view to
deciding whether any action is appropriate under section 301 of
the Trade Act of 1974 [19 U.S.C. 2411], including the initiation
of an investigation under section 302(c) of that Act [19 U.S.C.
2412(c)] (in the case of the Trade Representative), or under
subtitle A of title VII of the Tariff Act of 1930 [19 U.S.C. 1671
et seq.], including the initiation of an investigation under
section 702(a) of that Act [19 U.S.C. 1671a(a)] (in the case of
the Secretary of Commerce).
"(B) In determining whether to initiate any investigation under
section 301 of the Trade Act of 1974 [19 U.S.C. 2411] or any
other trade law, other than title VII of the Tariff Act of 1930
[19 U.S.C. 1671 et seq.], the Trade Representative, after
consultation with the Secretary of Commerce -
"(i) shall seek the advice of the advisory committees
established under section 135 of the Trade Act of 1974 [19
U.S.C. 2155];
"(ii) shall consult with the Committee on Finance of the
Senate and the Committee on Ways and Means of the House of
Representatives;
"(iii) shall coordinate with the interagency committee
established under section 242 of the Trade Expansion Act of
1962 [19 U.S.C. 1872]; and
"(iv) may ask the President to request advice from the United
States International Trade Commission.
"(C) In the event an investigation is initiated under section
302(c) of the Trade Act of 1974 [19 U.S.C. 2412(c)] as a result
of a review under this paragraph and the President, following
such investigation (including any applicable dispute settlement
proceedings under the Agreement or any other trade agreement),
determines to take action under section 301(a) of such Act [19
U.S.C. 2411(a)], the President shall give preference to actions
that most directly affect the products that benefit from
governmental subsidies and were the subject of the investigation,
unless there are no significant imports of such products or the
President otherwise determines that application of the action to
other products would be more effective.
"(5) Any decision, whether positive or negative, or any action
by the Trade Representative or the Secretary of Commerce under
this section shall not in any way -
"(A) prejudice the right of any industry to file a petition
under any trade law,
"(B) prejudice, affect, or substitute for, any proceeding,
investigation, determination, or action by the Secretary of
Commerce, the United States International Trade Commission, or
the Trade Representative pursuant to such a petition,
"(C) prejudice, affect, substitute for, or obviate any
proceeding, investigation, or determination under section 301
of the Trade Act of 1974 [19 U.S.C. 2411], title VII of the
Tariff Act of 1930 [19 U.S.C. 1671 et seq.], or any other trade
law.
"(6) Nothing in this subsection may be construed to alter in
any manner the requirements in effect before the enactment of
this Act [Sept. 28, 1988] for standing under any law of the
United States or to add any additional requirements for standing
under any law of the United States.
"SEC. 410. TERMINATION OF AGREEMENT.
"(a) In General. - If -
"(1) no agreement is entered into between the United States and
Canada on a substitute system of rules for antidumping and
countervailing duties before the date that is 7 years after the
date on which the Agreement enters into force [Jan. 1, 1989], and
"(2) the President decides not to exercise the rights of the
United States under article 1906 of the Agreement to terminate
the Agreement,
the President shall submit to the Congress a report on such
decision which explains why continued adherence to the Agreement is
in the national economic interest of the United States. In
calculating the 7-year period referred to in paragraph (1), any
time during which Canada is a NAFTA country (as defined in section
2(4) of the North American Free Trade Agreement Implementation Act
[19 U.S.C. 3301(4)]) shall be disregarded.
"(b) Transition Provisions. -
"(1) If on the date on which the Agreement should cease to be
in force an investigation or enforcement proceeding concerning
the violation of a protective order issued under section 777(d)
of the Tariff Act of 1930 (as amended by this Act) [19 U.S.C.
1677f(d)] or a Canadian undertaking is pending, such
investigation or proceeding shall continue and sanctions may
continue to be imposed in accordance with the provisions of such
section.
"(2) If on the date on which the Agreement should cease to be
in force a binational panel review under article 1904 of the
Agreement is pending, or has been requested, with respect to a
determination to which section 516A(g)(2) of the Tariff Act of
1930 (as added by this Act) [19 U.S.C. 1516a(g)(2)] applies, such
determination shall be reviewable under section 516A(a) of the
Tariff Act of 1930. In the case of a determination to which the
provisions of this paragraph apply, the time limits for
commencing an action under section 516A(a)(2)(A) of the Tariff
Act of 1930 shall not begin to run until the date on which the
Agreement ceases to be in force.
"TITLE V - EFFECTIVE DATES AND SEVERABILITY
"SEC. 501. EFFECTIVE DATES.
"(a) In General. - Except as provided in subsection (b), the
provisions of this Act, and the amendments made by this Act, shall
take effect on the date the Agreement enters into force [Jan. 1,
1989].
[A Presidential Memorandum on the Canada-United States Free-Trade
Agreement, dated Dec. 31, 1988, directing the Secretary of State to
exchange notes with the Government of Canada to provide for the
entry into force of the Agreement on Jan. 1, 1989, is set out in 24
Weekly Compilation of Presidential Documents 1688, Jan. 2, 1989.
See, also, confirmation by Office of the United States Trade
Representative, 54 F.R. 505.]
"(b) Exceptions. - Sections 1 and 2, title I, section 304 (except
subsection (f)), section 309, this section and section 502 shall
take effect on the date of enactment of this Act [Sept. 28, 1988].
"(c) Termination or Suspension of Agreement. -
"(1) Termination of agreement. - On the date the Agreement
ceases to be in force, the provisions of this Act (other than
this paragraph and section 410(b)), and the amendments made by
this Act, shall cease to have effect.
"(2) Effect of agreement suspension. - An agreement by the
United States and Canada to suspend the operation of the
Agreement shall not be deemed to cause the Agreement to cease to
be in force within the meaning of paragraph (1).
"(3) Suspension resulting from nafta. - On the date the United
States and Canada agree to suspend the operation of the Agreement
by reason of the entry into force between them of the North
American Free Trade Agreement, the following provisions of this
Act are suspended and shall remain suspended until such time as
the suspension of the Agreement may be terminated:
"(A) Sections 204(a) and (b) and 205(a).
"(B) Sections 302 and 304(f).
"(C) Sections 404, 409, and 410(b).
"SEC. 502. SEVERABILITY.
"If any provision of this Act, any amendment made by this Act, or
the application of such a provision or amendment to any person or
circumstances is held to be invalid, the remainder of this Act, the
remaining amendments made by this Act, and the application of such
provision or amendment to persons or circumstances other than those
to which it is held invalid, shall not be affected thereby."
[For transfer of functions, personnel, assets, and liabilities of
the United States Customs Service of the Department of the
Treasury, including functions of the Secretary of the Treasury
relating thereto, to the Secretary of Homeland Security, and for
treatment of related references, see sections 203(1), 551(d),
552(d), and 557 of Title 6, Domestic Security, and the Department
of Homeland Security Reorganization Plan of November 25, 2002, as
modified, set out as a note under section 542 of Title 6.]
[Amendment by section 107 of Pub. L. 103-182 to section 501(c) of
Pub. L. 100-449, set out above, effective on the date the North
American Free Trade Agreement enters into force between the United
States and Canada [Jan. 1, 1994], see section 109(a)(2) of Pub. L.
103-182, set out as an Effective Date; Termination of NAFTA Status
note under section 3311 of this title.]
[Section 308(b) of Pub. L. 103-182 provided that: "The amendments
made by subsection (a) [amending section 301(a) of Pub. L. 100-449,
set out above] take effect on the date of the enactment of this Act
[Dec. 8, 1993]."]
[Amendment by section 413 of Pub. L. 103-182 to section 410(a) of
Pub. L. 100-449, set out above, effective on the date the North
American Free Trade Agreement enters into force with respect to the
United States [Jan. 1, 1994], but not applicable to any final
determination described in section 1516a(a)(1)(B) or (2)(B)(i) to
(iii) of this title, notice of which is published in the Federal
Register before such date, or to a determination described in
section 1516a(a)(2)(B)(vi) of this title, notice of which is
received by the Government of Canada before such date, or to any
binational panel review under the United States-Canada Free-Trade
Agreement, or any extraordinary challenge arising out of such
review, that was commenced before such date, see section 416 of
Pub. L. 103-182, set out as an Effective Date note under section
3431 of this title.]
[For provisions relating to effect of termination of NAFTA
country status on the provisions of sections 401 to 416 of Pub. L.
103-182, see section 3451 of this title.]
PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989
For provisions directing that if any amendments made by subtitle
A or subtitle C of title XI [Secs. 1101-1147 and 1171-1177] or
title XVIII [Secs. 1801-1899A] of Pub. L. 99-514 require an
amendment to any plan, such plan amendment shall not be required to
be made before the first plan year beginning on or after Jan. 1,
1989, see section 1140 of Pub. L. 99-514, as amended, set out as a
note under section 401 of Title 26, Internal Revenue Code.
UNITED STATES-ISRAEL FREE TRADE AREA IMPLEMENTATION
Pub. L. 99-47, June 11, 1985, 99 Stat. 82, as amended by Pub. L.
104-234, Sec. 1, Oct. 2, 1996, 110 Stat. 3058, provided that:
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'United States-Israel Free Trade
Area Implementation Act of 1985'.
"SEC. 2. PURPOSES.
"The purposes of this Act are -
"(1) to approve and implement the agreement on the
establishment of a free trade area between the United States and
Israel negotiated under the authority of section 102 of the Trade
Act of 1974 [19 U.S.C. 2112];
"(2) to strengthen and develop the economic relations between
the United States and Israel for their mutual benefit; and
"(3) to establish free trade between the two nations through
the removal of trade barriers.
"SEC. 3. APPROVAL OF A FREE TRADE AREA AGREEMENT.
"Pursuant to sections 102 and 151 of the Trade Act of 1974 (19
U.S.C. 2112; 2191), the Congress approves -
"(1) the Agreement on the Establishment of a Free Trade Area
between the Government of the United States of America and the
Government of Israel (hereinafter in this Act referred to as 'the
Agreement') entered into on April 22, 1985, and submitted to the
Congress on April 29, 1985, and
"(2) the statement of administrative action proposed to
implement the Agreement that was submitted to the Congress on
April 29, 1985.
"SEC. 4. PROCLAMATION AUTHORITY.
"(a) Tariff Modifications. - Except as provided in subsection
(c), the President may proclaim -
"(1) such modifications or continuance of any existing duty,
"(2) such continuance of existing duty-free or excise
treatment, or
"(3) such additional duties,
as the President determines to be required or appropriate to carry
out the schedule of duty reductions with respect to Israel set
forth in annex 1 of the Agreement.
"(b) Additional Tariff Modification Authority. - Except as
provided in subsection (c), whenever the President determines that
it is necessary to maintain the general level of reciprocal and
mutually advantageous concessions with respect to Israel provided
for by the Agreement, the President may proclaim -
"(1) such withdrawal, suspension, modification, or continuance
of any duty,
"(2) such continuance of existing duty-free or excise
treatment, or
"(3) such additional duties,
as the President determines to be required or appropriate to carry
out the Agreement.
"(c) Exception to Authority. - No modification of any duty
imposed on any article provided for in paragraph (4) of annex 1 of
the Agreement that may be proclaimed under subsection (a) or (b)
shall take effect prior to January 1, 1995.
"SEC. 5. RELATIONSHIP OF THE AGREEMENT TO UNITED STATES LAW.
"(a) United States Statutes To Prevail in Conflict. - No
provision of the Agreement, nor the application of any such
provision to any person or circumstance, which is in conflict with -

"(1) title IV of the Trade and Tariff Act of 1984 [title IV of
Pub. L. 98-573, amending this section and enacting provisions set
out below], or
"(2) any other statute of the United States,
shall be given effect under the laws of the United States.
"(b) Implementing Regulations. - Regulations that are necessary
or appropriate to carry out actions proposed in any statement of
proposed administrative action submitted to the Congress under
section 102 of the Trade Act of 1974 (19 U.S.C. 2112) in order to
implement the Agreement shall be prescribed. Initial regulations to
carry out such action shall be issued within one year after the
date of the entry into force of the Agreement.
"(c) Changes in Statutes To Implement a Requirement, Amendment,
or Recommendation. -
"(1) Except as otherwise provided in paragraph (2), the
provisions of section 3(c) of the Trade Agreements Act of 1979
(19 U.S.C. 2504(c)) shall apply with respect to the Agreement and
-
"(A) no requirement of, amendment to, or recommendation under
the Agreement shall be implemented under United States law, and
"(B) no amendment, repeal, or enactment of a statute of the
United States to implement any such requirement, amendment, or
recommendation shall enter into force with respect to the
United States,
unless there has been compliance with the provisions of section
3(c) of the Trade Agreements Act of 1979.
"(2) The provisions of section 3(c)(4) of the Trade Agreements
Act of 1979 (19 U.S.C. 2504(c)(4)) shall apply to any bill
implementing any requirement of, amendment to, or recommendation
made under, the Agreement that reduces or eliminates any duty
imposed on any article provided for in paragraph (4) of Annex 1
of the Agreement only if -
"(A) any reduction of such duty provided in such bill -
"(i) takes effect after December 31, 1989, and
"(ii) takes effect gradually over the period that begins on
January 1, 1990, and ends on December 31, 1994,
"(B) any elimination of such duty provided in such bill does
not take effect prior to January 1, 1995, and
"(C) the consultations required under section 3(c)(1) of such
Act occur at least ninety days prior to the date on which such
bill is submitted to the Congress under section 3(c) of such
Act.
"(d) Private Remedies Not Created. - Neither the entry into force
of the Agreement with respect to the United States, nor the
enactment of this Act, shall be construed as creating any private
right of action or remedy for which provision is not explicitly
made under this Act or under the laws of the United States.
"SEC. 6. TERMINATION.
"The provisions of section 125(a) of the Trade Act of 1974 (19
U.S.C. 2135(a)) shall not apply to the Agreement.
"SEC. 7. LOWERED THRESHOLD FOR GOVERNMENT PROCUREMENT UNDER TRADE
AGREEMENTS ACT OF 1979 IN THE CASE OF CERTAIN ISRAELI PRODUCTS.
[Section amended section 2518(4)(C) of this title.]
"SEC. 8. TECHNICAL AMENDMENTS.
[Section amended title IV of Pub. L. 98-573, set out as a note
below, this section, and sections 2462 to 2464 of this title.]
"SEC. 9. ADDITIONAL PROCLAMATION AUTHORITY.
"(a) Elimination or Modifications of Duties. - The President is
authorized to proclaim elimination or modification of any existing
duty as the President determines is necessary to exempt any article
from duty if -
"(1) that article is wholly the growth, product, or manufacture
of the West Bank, the Gaza Strip, or a qualifying industrial zone
or is a new or different article of commerce that has been grown,
produced, or manufactured in the West Bank, the Gaza Strip, or a
qualifying industrial zone;
"(2) that article is imported directly from the West Bank, the
Gaza Strip, Israel, or a qualifying industrial zone; and
"(3) the sum of -
"(A) the cost or value of the materials produced in the West
Bank, the Gaza Strip, Israel, or a qualifying industrial zone,
plus
"(B) the direct costs of processing operations performed in
the West Bank, the Gaza Strip, Israel, or a qualifying
industrial zone,
is not less than 35 percent of the appraised value of the product
at the time it is entered into the United States.
For purposes of determining the 35 percent content requirement
contained in paragraph (3), the cost or value of materials which
are used in the production of an article in the West Bank, the Gaza
Strip, or a qualifying industrial zone, and are the products of the
United States, may be counted in an amount up to 15 percent of the
appraised value of the article.
"(b) Applicability of Certain Provisions of the Agreement. -
"(1) Nonqualifying operations. - No article shall be considered
a new or different article of commerce under this section, and no
material shall be included for purposes of determining the 35
percent requirement of subsection (a)(3), by virtue of having
merely undergone -
"(A) simple combining or packaging operations, or
"(B) mere dilution with water or with another substance that
does not materially alter the characteristics of the article or
material.
"(2) Requirements for new or different article of commerce. -
For purposes of subsection (a)(1), an article is a 'new or
different article of commerce' if it is substantially transformed
into an article having a new name, character, or use.
"(3) Cost or value of materials. - (A) For purposes of this
section, the cost or value of materials produced in the West
Bank, the Gaza Strip, or a qualifying industrial zone includes -
"(i) the manufacturer's actual cost for the materials;
"(ii) when not included in the manufacturer's actual cost for
the materials, the freight, insurance, packing, and all other
costs incurred in transporting the materials to the
manufacturer's plant;
"(iii) the actual cost of waste or spoilage, less the value
of recoverable scrap; and
"(iv) taxes or duties imposed on the materials by the West
Bank, the Gaza Strip, or a qualifying industrial zone, if such
taxes or duties are not remitted on exportation.
"(B) If a material is provided to the manufacturer without
charge, or at less than fair market value, its cost or value
shall be determined by computing the sum of -
"(i) all expenses incurred in the growth, production, or
manufacture of the material, including general expenses;
"(ii) an amount for profit; and
"(iii) freight, insurance, packing, and all other costs
incurred in transporting the material to the manufacturer's
plant.
If the information necessary to compute the cost or value of a
material is not available, the Customs Service may ascertain or
estimate the value thereof using all reasonable methods.
"(4) Direct costs of processing operations. - (A) For purposes
of this section, the 'direct costs of processing operations
performed in the West Bank, Gaza Strip, or a qualifying
industrial zone' with respect to an article are those costs
either directly incurred in, or which can be reasonably allocated
to, the growth, production, manufacture, or assembly, of that
article. Such costs include, but are not limited to, the
following to the extent that they are includible in the appraised
value of articles imported into the United States:
"(i) All actual labor costs involved in the growth,
production, manufacture, or assembly of the article, including
fringe benefits, on-the-job training, and costs of engineering,
supervisory, quality control, and similar personnel.
"(ii) Dies, molds, tooling, and depreciation on machinery and
equipment which are allocable to the article.
"(iii) Research, development, design, engineering, and
blueprint costs insofar as they are allocable to the article.
"(iv) Costs of inspecting and testing the article.
"(B) Those items that are not included as direct costs of
processing operations with respect to an article are those which
are not directly attributable to the article or are not costs of
manufacturing the article. Such items include, but are not
limited to -
"(i) profit; and
"(ii) general expenses of doing business which are either not
allocable to the article or are not related to the growth,
production, manufacture, or assembly of the article, such as
administrative salaries, casualty and liability insurance,
advertising, and salesmen's salaries, commissions, or expenses.
"(5) Imported directly. - For purposes of this section -
"(A) articles are 'imported directly' if -
"(i) the articles are shipped directly from the West Bank,
the Gaza Strip, a qualifying industrial zone, or Israel into
the United States without passing through the territory of
any intermediate country; or
"(ii) if shipment is through the territory of an
intermediate country, the articles in the shipment do not
enter into the commerce of any intermediate country and the
invoices, bills of lading, and other shipping documents
specify the United States as the final destination; or
"(B) if articles are shipped through an intermediate country
and the invoices and other documents do not specify the United
States as the final destination, then the articles in the
shipment, upon arrival in the United States, are imported
directly only if they -
"(i) remain under the control of the customs authority in
an intermediate country;
"(ii) do not enter into the commerce of an intermediate
country except for the purpose of a sale other than at
retail, but only if the articles are imported as a result of
the original commercial transactions between the importer and
the producer or the producer's sales agent; and
"(iii) have not been subjected to operations other than
loading, unloading, or other activities necessary to preserve
the article in good condition.
"(6) Documentation required. - An article is eligible for the
duty exemption under this section only if -
"(A) the importer certifies that the article meets the
conditions for the duty exemption; and
"(B) when requested by the Customs Service, the importer,
manufacturer, or exporter submits a declaration setting forth
all pertinent information with respect to the article,
including the following:
"(i) A description of the article, quantity, numbers, and
marks of packages, invoice numbers, and bills of lading.
"(ii) A description of the operations performed in the
production of the article in the West Bank, the Gaza Strip, a
qualifying industrial zone, or Israel and identification of
the direct costs of processing operations.
"(iii) A description of any materials used in production of
the article which are wholly the growth, product, or
manufacture of the West Bank, the Gaza Strip, a qualifying
industrial zone, Israel or United States, and a statement as
to the cost or value of such materials.
"(iv) A description of the operations performed on, and a
statement as to the origin and cost or value of, any foreign
materials used in the article which are claimed to have been
sufficiently processed in the West Bank, the Gaza Strip, a
qualifying industrial zone, or Israel so as to be materials
produced in the West Bank, the Gaza Strip, a qualifying
industrial zone, or Israel.
"(v) A description of the origin and cost or value of any
foreign materials used in the article which have not been
substantially transformed in the West Bank, the Gaza Strip,
or a qualifying industrial zone.
"(c) Shipment of Articles of Israel Through West Bank or Gaza
Strip. - The President is authorized to proclaim that articles of
Israel may be treated as though they were articles directly shipped
from Israel for the purposes of the Agreement even if shipped to
the United States from the West Bank, the Gaza Strip, or a
qualifying industrial zone, if the articles otherwise meet the
requirements of the Agreement.
"(d) Treatment of Cost or Value of Materials. - The President is
authorized to proclaim that the cost or value of materials produced
in the West Bank, the Gaza Strip, or a qualifying industrial zone
may be included in the cost or value of materials produced in
Israel under section 1(c)(i) of Annex 3 of the Agreement, and the
direct costs of processing operations performed in the West Bank,
the Gaza Strip, or a qualifying industrial zone may be included in
the direct costs of processing operations performed in Israel under
section 1(c)(ii) of Annex 3 of the Agreement.
"(e) Qualifying Industrial Zone Defined. - For purposes of this
section, a 'qualifying industrial zone' means any area that -
"(1) encompasses portions of the territory of Israel and Jordan
or Israel and Egypt;
"(2) has been designated by local authorities as an enclave
where merchandise may enter without payment of duty or excise
taxes; and
"(3) has been specified by the President as a qualifying
industrial zone."
[For transfer of functions, personnel, assets, and liabilities of
the United States Customs Service of the Department of the
Treasury, including functions of the Secretary of the Treasury
relating thereto, to the Secretary of Homeland Security, and for
treatment of related references, see sections 203(1), 551(d),
552(d), and 557 of Title 6, Domestic Security, and the Department
of Homeland Security Reorganization Plan of November 25, 2002, as
modified, set out as a note under section 542 of Title 6.]
TRADE AGREEMENTS WITH ISRAEL
Pub. L. 98-573, title IV, Secs. 402-405, formerly Secs. 402-404,
406, Oct. 30, 1984, 98 Stat. 3015-3017, as renumbered and amended
by Pub. L. 99-47, Sec. 8(a), June 11, 1985, 99 Stat. 84; Pub. L. 99-
514, title XVIII, Sec. 1889(6), Oct. 22, 1986, 100 Stat. 2926;
Pub. L. 100-418, title I, Secs. 1214(s)(4), 1401(b)(3), Aug. 23,
1988, 102 Stat. 1160, 1240, provided that:
"SEC. 402. CRITERIA FOR DUTY-FREE TREATMENT OF ARTICLES.
"(a)(1) The reduction or elimination of any duty imposed on any
article by the United States provided for in a trade agreement
entered into with Israel under section 102(b)(1) of the Trade Act
of 1974 [19 U.S.C. 2112(b)(1)] shall apply only if -
"(A) that article is the growth, product, or manufacture of
Israel or is a new or different article of commerce that has been
grown, produced, or manufactured in Israel;
"(B) that article is imported directly from Israel into the
customs territory of the United States; and
"(C) the sum of -
"(i) the cost of value of the materials produced in Israel,
plus
"(ii) the direct costs of processing operations performed in
Israel,
is not less than 35 percent of the appraised value of such
article at the time it is entered.
If the cost or value of materials produced in the customs territory
of the United States is included with respect to an article to
which this subsection applies, an amount not to exceed 15 percent
of the appraised value of the article at the time it is entered
that is attributable to such United States cost or value may be
applied toward determining the percentage referred to in
subparagraph (C).
"(2) No article may be considered to meet the requirements of
paragraph (1)(A) by virtue of having merely undergone -
"(A) simple combining or packaging operations; or
"(B) mere dilution with water or mere dilution with another
substance that does not materially alter the characteristics of
the article.
"(b) As used in this section, the phrase 'direct costs of
processing operations' includes, but is not limited to -
"(1) all actual labor costs involved in the growth, production,
manufacture, or assembly of the specific merchandise, including
fringe benefits, on-the-job training and the cost of engineering,
supervisory, quality control, and similar personnel; and
"(2) dies, molds, tooling, and depreciation on machinery and
equipment which are allocable to the specific merchandise.
Such phrase does not include costs which are not directly
attributable to the merchandise concerned, or are not costs of
manufacturing the product, such as (A) profit, and (B) general
expenses of doing business which are either not allocable to the
specific merchandise or are not related to the growth, production,
manufacture, or assembly of the merchandise, such as administrative
salaries, casualty and liability insurance, advertising, and
salesmen's salaries, commissions or expenses.
"(c) Regulations. - The Secretary of the Treasury, after
consultation with the United States Trade Representative, shall
prescribe such regulations as may be necessary to carry out this
section.
"SEC. 403. APPLICATION OF CERTAIN OTHER TRADE LAW PROVISIONS.
"(a) Suspension of Duty-Free Treatment. - The President may by
proclamation suspend the reduction or elimination of any duty
provided under any trade agreement provision entered into with
Israel under the authority of section 102(b)(1) of the Trade Act of
1974 [19 U.S.C. 2112(b)(1)] with respect to any article and may
proclaim a duty rate for such article if such action is proclaimed
under section 203 of the Trade Act of 1974 [19 U.S.C. 2253] or
section 232 of the Trade Expansion Act of 1962 [19 U.S.C. 1862].
"(b) ITC Reports. - In any report by the United States
International Trade Commission (hereinafter referred to in this
title [this note] as the 'Commission') to the President under
section 202(f) of the Trade Act of 1974 [19 U.S.C. 2252(f)]
regarding any article for which a reduction or elimination of any
duty is provided under a trade agreement entered into with Israel
under section 102(b)(1) of the Trade Act of 1974 [19 U.S.C.
2112(b)(1)], the Commission shall state whether and to what extent
its findings and recommendations apply to such an article when
imported from Israel.
"(c) For purposes of section 203 of the Trade Act of 1974 [19
U.S.C. 2253], the suspension of the reduction or elimination of a
duty under subsection (a) shall be treated as an increase in duty.
"(d) No proclamation which provides solely for a suspension
referred to in subsection (a) with respect to any article shall be
made under section 203 of the Trade Act of 1974 [19 U.S.C. 2253],
unless the Commission, in addition to making an affirmative
determination with respect to such article under section 202(b) of
the Trade Act of 1974 [19 U.S.C. 2252(b)], determines in the course
of its investigation under that section that the serious injury (or
threat thereof) substantially caused by imports to the domestic
industry producing a like or directly competitive article results
from the reduction or elimination of any duty provided under any
trade agreement provision entered into with Israel under section
102(b)(1) of the Trade Act of 1974 [19 U.S.C. 2112(b)(1)].
"(e)(1) Any proclamation issued under section 203 of the Trade
Act of 1974 [19 U.S.C. 2253] that is in effect when an agreement
with Israel is entered into under section 102(b)(1) of the Trade
Act of 1974 [19 U.S.C. 2112(b)(1)] shall remain in effect until
modified or terminated.
"(2) If any article is subject to import relief at the time an
agreement is entered into with Israel under section 102(b)(1) of
the Trade Act of 1974 [19 U.S.C. 2112(b)(1)], the President may
reduce or terminate the application of such import relief to the
importation of such article before the otherwise scheduled date on
which such reduction or termination would occur pursuant to the
criteria and procedures of sections 203 and 204 of the Trade Act of
1974 [19 U.S.C. 2253, 2254].
"SEC. 404. FAST TRACK PROCEDURES FOR PERISHABLE ARTICLES.
"(a) If a petition is filed with the Commission under the
provisions of section 202(a) of the Trade Act of 1974 [19 U.S.C.
2252(a)] regarding a perishable product which is subject to any
reduction or elimination of a duty imposed by the United States
under a trade agreement entered into with Israel under section
102(b)(1) of the Trade Act of 1974 [19 U.S.C. 2112(b)(1)] and
alleges injury from imports of that product, then the petition may
also be filed with the Secretary of Agriculture with a request that
emergency relief be granted under subsection (c) with respect to
such article.
"(b) Within 14 days after the filing of a petition under
subsection (a) -
"(1) if the Secretary of Agriculture has reason to believe that
a perishable product from Israel is being imported into the
United States in such increased quantities as to be a substantial
cause of serious injury, or the threat thereof, to the domestic
industry producing a perishable product like or directly
competitive with the imported product and that emergency action
is warranted, he shall advise the President and recommend that
the President take emergency action; or
"(2) the Secretary of Agriculture shall publish a notice of his
determination not to recommend the imposition of emergency action
and so advise the petitioner.
"(c) Within 7 days after the President receives a recommendation
from the Secretary of Agriculture to take emergency action under
subsection (b), he shall issue a proclamation withdrawing the
reduction or elimination of duty provided to the perishable product
under any trade agreement provision entered into under section
102(b)(1) of the Trade Act of 1974 [19 U.S.C. 2112(b)(1)] or
publish a notice of his determination not to take emergency action.
"(d) The emergency action provided under subsection (c) shall
cease to apply -
"(1) upon the taking of actions under section 203 of the Trade
Act of 1974 [19 U.S.C. 2253];
"(2) on the day a determination of the President under section
203 of such Act [19 U.S.C. 2253] not to take action becomes
final;
"(3) in the event of a report of the Commission containing a
negative finding, on the day the Commission's report is submitted
to the President; or
"(4) whenever the President determines that because of changed
circumstances such relief is no longer warranted.
"(e) For purposes of this section, the term 'perishable product'
means any -
"(1) live plants and fresh cut flowers provided for in chapter
6 of the Harmonized Tariff Schedule of the United States (19
U.S.C. 1202, hereinafter referred to as the 'HTS');
"(2) vegetables, edible nuts or fruit provided for in chapters
7 and 8, heading 1105, subheadings 1106.10.00 and 1106.30,
heading 1202, subheadings 1214.90.00 and 1704.90.60, headings
2001 through 2008 (excluding subheadings 2001.90.20 and
2004.90.10) and subheading 2103.20.40 of the HTS;
"(3) concentrated citrus fruit juice provided for in
subheadings 2009.11.00, 2009.19.40, 2009.20.40, 2009.30.20, and
2009.30.60 of the HTS.
"(f) No trade agreement entered into with Israel under section
102(b)(1) of the Trade Act of 1974 [19 U.S.C. 2112(b)(1)] shall
affect fees imposed under section 22 of the Agricultural Adjustment
Act (7 U.S.C. 624).
"SEC. 405. CONSTRUCTION OF TITLE.
"Neither the taking effect of any trade agreement provision
entered into with Israel under section 102(b)(1) [19 U.S.C.
2112(b)(1)], nor any proclamation issued to implement any such
provision, may affect in any manner, or to any extent, the
application to any Israeli articles of section 232 of the Trade
Expansion Act of 1962 [19 U.S.C. 1862], section 337 of title VII
[probably should be "title III" of the Tariff Act of 1930 [19
U.S.C. 1337], chapter 1 of title II and chapter 1 of title III of
the Trade Act of 1974 [19 U.S.C. 2251 et seq., 2411 et seq.], or
any other provision of law under which relief from injury caused by
import competition or by unfair import trade practices may be
sought."
[Amendment of section 404 of Pub. L. 98-573 by section 1214(s)(4)
of Pub. L. 100-418 effective Jan. 1, 1989, and applicable with
respect to articles entered on or after such date, see section
1217(b)(1) of Pub. L. 100-418, set out as an Effective Date note
under section 3001 of this title.]
[Amendment of sections 403 and 404 of Pub. L. 98-573 by section
1401 of Pub. L. 100-418 effective Aug. 23, 1988, and applicable
with respect to investigations initiated under part 1 (Sec. 2251 et
seq.) of subchapter II of this chapter on or after that date, see
section 1401(c) of Pub. L. 100-418, set out as an Effective Date of
1988 Amendment note under section 2251 of this title.]
[The Harmonized Tariff Schedule of the United States is not set
out in the Code. See Publication of Harmonized Tariff Schedule note
set out under section 1202 of this title.]
PRESIDENTIAL DETERMINATION REGARDING MULTILATERAL TRADE
NEGOTIATIONS
For provisions relating to Presidential determination regarding
multilateral trade negotiations and Presidential determination
regarding acceptance and application of certain international trade
agreements, see notes set out under section 2503 of this title.
EX. ORD. NO. 12662. IMPLEMENTING UNITED STATES-CANADA FREE-TRADE
IMPLEMENTATION ACT
Ex. Ord. No. 12662, Dec. 31, 1988, 54 F.R. 785, as amended by Ex.
Ord. No. 12889, Sec. 4(c), Dec. 27, 1993, 58 F.R. 69681, provided:
By virtue of the authority vested in me as President by the
Constitution and laws of the United States of America, including
the United States-Canada Free-Trade Agreement Implementation Act of
1988 (Public Law 100-449, 102 Stat. 1851) ("FTA Implementation
Act") [set out as a note above], it is hereby ordered as follows:
Section 1. [Superseded by Ex. Ord. No. 12889, Sec. 4(c), Dec. 27,
1993, 58 F.R. 69681, see 19 U.S.C. 3311 note.]
Sec. 2. Establishment of United States Secretariat. Pursuant to
subsection 405(e) of the FTA Implementation Act, a "United States
Secretariat" shall be established within the International Trade
Administration of the Department of Commerce. The Secretariat shall
facilitate:
(1) the operation of Chapters 18 and 19 of the Free-Trade
Agreement, and
(2) the work of the binational panels and extraordinary challenge
committees convened under those Chapters.
Sec. 3. Acceptance by the President of Panel and Committee
Decisions. In accordance with subsection 401(c) of the FTA
Implementation Act, in the event that the provisions of
subparagraph 516A(g)(7)(B) of the Tariff Act of 1930, as amended,
19 U.S.C. section 1516a(g)(7)(B), take effect, I accept, as a
whole, all decisions of binational panels and extraordinary
challenge committees.
Sec. 4. Judicial Review. This Order does not create any right or
benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, its officers, or any
person.
Sec. 5. Effective Date. This Order shall take effect upon the
entry into force of the Free-Trade Agreement.
EX. ORD. NO. 13141. ENVIRONMENTAL REVIEW OF TRADE AGREEMENTS
Ex. Ord. No. 13141, Nov. 16, 1999, 64 F.R. 63169, provided:
By the authority vested in me as President by the Constitution
and the laws of the United States of America, and in order to
further the environmental and trade policy goals of the United
States, it is hereby ordered as follows:
Section 1. Policy. The United States is committed to a policy of
careful assessment and consideration of the environmental impacts
of trade agreements. The United States will factor environmental
considerations into the development of its trade negotiating
objectives. Responsible agencies will accomplish these goals
through a process of ongoing assessment and evaluation, and, in
certain instances, written environmental reviews.
Sec. 2. Purpose and Need. Trade agreements should contribute to
the broader goal of sustainable development. Environmental reviews
are an important tool to help identify potential environmental
effects of trade agreements, both positive and negative, and to
help facilitate consideration of appropriate responses to those
effects whether in the course of negotiations, through other means,
or both.
Sec. 3. (a) Implementation. The United States Trade
Representative (Trade Representative) and the Chair of the Council
on Environmental Quality shall oversee the implementation of this
order, including the development of procedures pursuant to this
order, in consultation with appropriate foreign policy,
environmental, and economic agencies.
(b) Conduct of Environmental Reviews. The Trade Representative,
through the interagency Trade Policy Staff Committee (TPSC), shall
conduct the environmental reviews of the agreements under section 4
of this order.
Sec. 4. Trade Agreements.
(a) Certain agreements that the United States may negotiate shall
require an environmental review. These include:
(i) comprehensive multilateral trade rounds;
(ii) bilateral or plurilateral free trade agreements; and
(iii) major new trade liberalization agreements in natural
resource sectors.
(b) Agreements reached in connection with enforcement and dispute
resolution actions are not covered by this order.
(c) For trade agreements not covered under subsections 4(a) and
(b), environmental reviews will generally not be required. Most
sectoral liberalization agreements will not require an
environmental review. The Trade Representative, through the TPSC,
shall determine whether an environmental review of an agreement or
category of agreements is warranted based on such factors as the
significance of reasonably foreseeable environmental impacts.
Sec. 5. Environmental Reviews.
(a) Environmental reviews shall be:
(i) written;
(ii) initiated through a Federal Register notice, outlining the
proposed agreement and soliciting public comment and information on
the scope of the environmental review of the agreement;
(iii) undertaken sufficiently early in the process to inform the
development of negotiating positions, but shall not be a condition
for the timely tabling of particular negotiating proposals;
(iv) made available in draft form for public comment, where
practicable; and
(v) made available to the public in final form.
(b) As a general matter, the focus of environmental reviews will
be impacts in the United States. As appropriate and prudent,
reviews may also examine global and transboundary impacts.
Sec. 6. Resources. Upon request by the Trade Representative, with
the concurrence of the Deputy Director for Management of the Office
of Management and Budget, Federal agencies shall, to the extent
permitted by law and subject to the availability of appropriations,
provide analytical and financial resources and support, including
the detail of appropriate personnel, to the Office of the United
States Trade Representative to carry out the provisions of this
order.
Sec. 7. General Provisions. This order is intended only to
improve the internal management of the executive branch and does
not create any right, benefit, trust, or responsibility,
substantive or procedural, enforceable at law or equity by a party
against the United States, its agencies, its officers, or any
person.
William J. Clinton.
DELEGATION OF AUTHORITY UNDER SECTION 103(A) OF UNITED
STATES-CANADA FREE-TRADE AGREEMENT IMPLEMENTATION ACT OF 1988
Memorandum of President of the United States, Feb. 11, 1991, 56
F.R. 6789, provided:
Memorandum for the United States Trade Representative
By virtue of the authority vested in me as President by the
Constitution and laws of the United States, including section 301
of title 3 of the United States Code, you are hereby delegated the
authority to perform the functions necessary to fulfill the
consultation and lay-over requirements set forth in section
103(a)(1) through (4) of the United States-Canada Free-Trade
Agreement Implementation Act of 1988 ("the Act") [Pub. L. 100-449,
set out as a note above], including:
(1) obtaining advice from the appropriate advisory committees and
the U.S. International Trade Commission on the proposed
implementation of an action by Presidential proclamation;
(2) submitting a report on such action to the House Ways and
Means and Senate Finance Committees; and
(3) consulting with such committees during the 60-day period
following the date on which the requirements under (1) and (2) have
been met.
The President retains the sole authority under the Act to
implement an action by proclamation after the consultation and lay-
over requirements set forth in section 103(a)(1) through (4) have
been met.
You are authorized and directed to publish this memorandum in the
Federal Register.
George Bush.