H.R. 3012 and S. 2821: The Trade, Reform, Accountability, Development and Employment Act, or TRADE Act

With a trio of job-destroying trade agreements awaiting approval and the economy struggling to recover, Congress is neglecting a bill that may provide one of the best options for fixing the policies that have decimated the American economy.

The Trade, Reform, Accountability, Development and Employment Act, or TRADE Act, a bill sponsored by Senator Sherrod Brown and Representative Mike Michaud, was introduced in both the 110th and 111th Congress, but has not yet been taken up by the current session. The goal of the bill is to ensure that trade agreements only include provisions that are beneficial for the United States.

“We must craft our trade policy around what’s right for American workers and American businesses. I am concerned that, instead, we will cling to the same trade agreement models that have produced such poor results.” Sen. Brown said.

If the bill were enacted it would require a review of both current and future trade pacts. This would include a review of NAFTA, CAFTA and the WTO, along with the pending Korean, Colombian and Panamanian free trade agreements.

The bill sets out food and product safety, environmental and labor standards; federalism protections; agriculture rules; national security exceptions; currency anti-manipulation and trade remedy rules that must be included in all current and future trade agreements.

Perhaps just as importantly, the bill includes a provision for what cannot be included in trade agreements, such bans on “buy American” provisions. This would be an important step in ensuring our sovereign rights are not signed away with new trade agreements.

While the bill garnered wide support in both the House and Senate in the last session, drawing 148 cosponsors in the House and nine in the Senate, the bill stalled in committee in both chambers and failed to see a vote. Unfortunately, the bill has not been reintroduced in the current session.

Passage of this piece of legislation would not result in the U.S. exiting from trade agreements that have cost Americans millions of jobs, but it would provide a new tool for ensuring that the agreements we do have would be as beneficial as possible to the average American.

S. 2821 (111th Congress)

Dec 1, 2009 – Introduced in Senate. This is the original text of the bill as it was written by its sponsor and submitted to the Senate for consideration. This is the latest version of the bill currently available on GovTrack.

S 2821 IS

111th CONGRESS

1st Session

S. 2821

To require a review of existing trade agreements and renegotiation of existing trade agreements based on the review, to establish terms for future trade agreements, to express the sense of the Congress that the role of Congress in making trade policy should be strengthened, and for other purposes.

IN THE SENATE OF THE UNITED STATES

December 1, 2009

Mr. BROWN (for himself, Mr. FEINGOLD, Mr. WHITEHOUSE, Mr. DORGAN, Mr. CASEY, Mr. SANDERS, and Mr. MERKLEY) introduced the following bill; which was read twice and referred to the Committee on Finance

A BILL

To require a review of existing trade agreements and renegotiation of existing trade agreements based on the review, to establish terms for future trade agreements, to express the sense of the Congress that the role of Congress in making trade policy should be strengthened, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Trade Reform, Accountability, Development, and Employment Act of 2009’ or the ‘TRADE Act of 2009’.

SEC. 2. DEFINITIONS.

In this Act:

(1) CORE LABOR RIGHTS- The term ‘core labor rights’ means the core labor rights as stated in the International Labour Organization conventions dealing with–

(A) freedom of association and the effective recognition of the right to collective bargaining;

(B) the elimination of all forms of forced or compulsory labor;

(C) the effective abolition of child labor; and

(D) the elimination of discrimination with respect to employment and occupation.

(2) MAJOR U.S. TRADING PARTNERS- The term ‘major U.S. trading partners’ means the top 10 countries that represent the largest trade in dollar value of imports into the United States and exports from the United States, excluding petroleum and petroleum products, based on data compiled by the Department of Commerce for the most recent 12-month period preceding the date of the enactment of this Act.

(3) MULTILATERAL ENVIRONMENTAL AGREEMENT- The term ‘multilateral environmental agreement’ means any international agreement or provision thereof to which the United States is a party and which is intended to protect, or has the effect of protecting, the environment or human health.

(4) STATE- The term ‘State’ means each of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(5) TRADE AGREEMENT-

(A) IN GENERAL- The term ‘trade agreement’ includes the following:

(i) The North American Free Trade Agreement.

(ii) The Agreement between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area.

(iii) The Dominican Republic-Central America-United States Free Trade Agreement.

(B) URUGUAY ROUND AGREEMENTS- The term ‘trade agreement’ includes the following agreements resulting from the Uruguay Round of Multilateral trade negotiations:

(i) The General Agreement on Tariffs and Trade (GATT 1994) annexed to the WTO Agreement.

(ii) The WTO Agreement described in section 2(9) of the Uruguay Round Agreements Act (19 U.S.C. 3501(9)).

(iii) Each of the agreements described in section 101(d) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)).

(iv) Any multilateral agreement entered into under the auspices of the World Trade Organization dealing with information technology, telecommunications, or financial services.

(6) TRADE AGREEMENT COUNTRY- The term ‘trade agreement country’ means a country that is–

(A) a party to an agreement described in paragraph (5)(A); or

(B) a major U.S. trading partner that is a party to an agreement described in paragraph (5)(B).

(7) TRIPS AGREEMENT- The term ‘TRIPS Agreement’ means the Agreement on Trade-Related Aspects of Intellectual Property Rights described in section 101(d)(15) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(5)).

(8) WORLD TRADE ORGANIZATION- The term ‘World Trade Organization’ means the organization established pursuant to the WTO Agreement.

SEC. 3. REVIEW AND REPORT ON EXISTING TRADE AGREEMENTS.

(a) Review and Report-

(1) IN GENERAL- Not later than June 30, 2011, the Comptroller General of the United States shall conduct a review, and submit a report to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives, with respect to each trade agreement described in section 2(5)(A) and each trade agreement described in section 2(5)(B) to the extent such agreement is in effect with respect to a major U.S. trading partner. The report shall include an evaluation of the economic, employment, environmental, national security, health, safety, and other effects of each such agreement.

(2) COOPERATION OF AGENCIES- The Secretaries of State, Agriculture, Commerce, Labor, and the Treasury, and the heads of other executive departments and agencies shall cooperate with the Comptroller General in providing access to officials and documents to facilitate the preparation of the report.

(b) Information With Respect to Trade Agreements- The report required by subsection (a) shall, with respect to each trade agreement described in subsection (a), to the extent practicable, include the following information covering the period between the date on which the agreement entered into force with respect to the United States and the date on which the Comptroller General completes the review:

(1) An analysis of indicators of the economic impact of each trade agreement, including the following:

(A) The dollar value of goods exported from the United States and imported for consumption into the United States by sector, year, and trade agreement country, including a list of those goods for which there has been a change in 10 percent or more in bilateral trade with each such country.

(B) The employment effects of the agreement, including job gains and losses in the United States by sector and changes in wage levels in the United States in dollars by sector and year, and the employment effects of the agreement in each trade agreement country.

(C) The share of global production, productive capacity, investment, exports, employment, and other indicators of the competitive position of industries in the United States significantly affected by each such trade agreement, taking into account changes in sourcing patterns before and after entry into force of the trade agreement.

(2) The effect of each trade agreement on agriculture, including–

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

(i) the prices and production volumes of agricultural commodities, food products, and ingredients in the United States and in each trade agreement country;

(ii) the prices and volumes of such commodities, products, and ingredients exported from the United States to each such trade agreement country; and

(iii) the prices and volumes of such commodities, products, and ingredients imported into the United States from each such trade agreement country;

(B) the number of farms operating in the United States detailed by farm typology and sales level and the number of acres under production by crop used to produce agricultural commodities that are exported from the United States to a country that is a party to each agreement listed in section 2(5)(A) on a year-to-year basis; and

(C) changes in United States meat exports and the employment impacts of meat exports.

(3) An analysis of the progress being made in implementing the commitments contained in each agreement and the record of compliance with the terms of each agreement in effect between the United States and a trade agreement country.

(4) A description of any outstanding disputes between the United States and any trade agreement country, including a description of laws, regulations, or policies of the United States or any State that a trade agreement country has challenged, or threatened to challenge, under a trade agreement.

(5) An analysis of the ability of the United States to ensure that any trade agreement country complies with laws and regulations of the United States, including–

(A) the customs laws of the United States;

(B) laws relating to the payment of duties on goods imported into the United States;

(C) health, safety, and inspection requirements with respect to food and other products imported into the United States; and

(D) prohibitions on the transshipment of goods that are ultimately imported into the United States.

(6) An analysis of any privatization of public sector services in the United States and in each trade agreement country if the service involved is covered by the investment, financial services, or services provisions of a trade agreement. The analysis shall include any effect privatization has on consumer access to essential services, such as health care, electricity, gas, water, telephone service, or other utilities.

(7) An assessment of the impact the intellectual property provisions of each trade agreement has on consumer access to pharmaceuticals and on the retail price of pharmaceuticals in each trade agreement country and the effect, if any, that changes in the price of pharmaceuticals have had on access by consumers to pharmaceuticals.

(8) An analysis of the impact of the government procurement provision of each trade agreement on the procurement of goods and services by Federal and State agencies and by each trade agreement country.

(9) An assessment of the consequences of significant currency movements of each trade agreement country and a determination of whether the currency of the country is misaligned deliberately to promote a competitive advantage in international trade for that country.

(c) Information on Countries That Are Parties to Trade Agreements- In addition to the information required by subsection (b), the report required under subsection (a) shall include, with respect to each trade agreement country, information regarding whether the country–

(1) has a democratic form of government;

(2) has adopted into domestic law and regulations the core labor rights and effectively enforces those rights as reflected in reports of the Committee of Experts on the Application of Conventions and Recommendations, the Conference Committee on the Application of Standards, and the Committee on Freedom of Association of the International Labour Organization;

(3) respects fundamental human rights, as reflected in the annual Country Reports on Human Rights Practices of the Department of State;

(4) is designated as a country of particular concern with respect to religious freedom under section 402(b)(1) of the International Religious Freedom Act of 1998 (22 U.S.C. 6442(b)(1));

(5) is on a list described in subparagraph (B) or (C) of section 110(b)(1) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7107(b)(1)) (commonly known as tier 2 or tier 3 of the Trafficking in Persons List of the Department of State);

(6) has taken effective measures to combat and prevent public and private corruption, including measures with respect to tax evasion and money laundering and has ratified the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development;

(7) complies with the multilateral environmental agreements to which the country is a party;

(8) has in force adequate environmental laws and regulations, has devoted sufficient resources to implementing such laws and regulations, and has an adequate record of enforcement of such law and regulations;

(9) enforces the rights and flexibilities of the TRIPS Agreement; and

(10) provides for government transparency, due process of law, and respect for international agreements.

(d) National Security Analysis- The report required by subsection (a) shall include with respect to each trade agreement country an assessment of the country’s transfer of technology, production, and services and an analysis of whether the country poses a potential concern to the national security of the United States.

(e) Recommendations- Each report required under subsection (a) shall include recommendations of the Comptroller General for addressing the problems identified under subsections (b), (c), and (d) with respect to each trade agreement. The recommendations shall include suggestions for renegotiating the agreement based on the requirements described in section 4(b).

(f) Citations- The Comptroller General shall include in the report required under subsection (a) citations to the sources of data used in preparing the report and a description of the methodologies employed in preparing each report.

(g) Public Comment- In preparing each report required under subsection (a), the Comptroller General shall–

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

(2) provide an opportunity for members of the public to testify and submit written comments.

(h) Public Availability- Each report required under subsection (a) shall be made available to the public not later than 14 days after the Comptroller General completes the report.

SEC. 4. INCLUSION OF CERTAIN PROVISIONS IN TRADE AGREEMENTS.

(a) In General- Notwithstanding section 151 of the Trade Act of 1974 (19 U.S.C. 2191) or any other provision of law, any bill implementing a trade agreement between the United States and another country that is introduced in Congress after the date of the enactment of this Act shall be subject to a point of order pursuant to subsection (c) unless the trade agreement meets the requirements described in subsection (b).

(b) Requirements- Each trade agreement between the United States and another country with respect to which an implementing bill is introduced on or after the date of the enactment of this Act shall meet the following requirements:

(1) LABOR STANDARDS- The labor provisions of the agreement shall–

(A) be included in the core text of the agreement;

(B) require each country that is a party to the agreement–

(i) to adopt and maintain laws and regulations (including laws applicable to any designated zone in the country) that establish core labor rights; and

(ii) to effectively enforce laws relating to core labor rights and laws relating to acceptable conditions of work (including laws relating to minimum wages, hours of work, and occupational safety and health);

(C) prohibit a country that is a party to the agreement from waiving or otherwise derogating from, or offering to waive or otherwise derogate from, the country’s laws and regulations relating to the core labor rights and acceptable conditions of work described in subparagraph (B);

(D) provide that failures to meet the labor requirements of the agreement, regardless of the effect that failure has on trade, shall be subject to the dispute resolution and enforcement mechanisms and penalties of the agreement;

(E) provide that enforcement mechanisms and penalties for failures described in subparagraph (D) are included in the core text of the agreement and are at least as effective as the mechanisms and penalties that apply to the commercial provisions of the agreement;

(F) strengthen the capacity of each country that is a party to the agreement to promote, protect, and enforce core labor rights;

(G) require that each country that is a party to the agreement have a national contact point for every labor complaint, produce a report that addresses all the issues raised in the complaint and include recommendations on all confirmed allegations, including specific recommendations for employers directly or indirectly implicated in the complaint; and

(H) require that–

(i) there is a full and expeditious remediation of all labor complaints; and

(ii) the remediation plan is satisfactory to all parties and conforms to the findings and recommendations of the national contact point described in subparagraph (G).

(2) ENVIRONMENTAL AND PUBLIC SAFETY STANDARDS- The environmental provisions of the agreement shall–

(A) be included in the text of the agreement;

(B) prohibit each country that is a party to the agreement from weakening, eliminating, or failing to enforce domestic environmental or other public interest standards to promote trade or attract investment;

(C) require each such country to implement and enforce fully and effectively the country’s obligations under multilateral environmental agreements and provide for the enforcement of such obligations under the agreement;

(D) prohibit the trade of products that are illegally harvested or extracted and the trade of goods derived from illegally harvested or extracted natural resources, including timber and timber products, fish, wildlife, and associated products, mineral resources, or other environmentally sensitive goods;

(E) provide that the failure to meet the environmental standards required by the agreement be subject to dispute resolution and enforcement mechanisms and penalties that are at least as effective as the mechanisms and penalties that apply to the commercial provisions of the agreement; and

(F) allow each country that is a party to the agreement to adopt and implement environmental, health, and safety standards, recognizing the legitimate right of governments to protect the environment and public health and safety.

(3) FOOD AND PRODUCT HEALTH AND SAFETY STANDARDS- If the agreement contains health and safety laws and regulations for food and other products, the agreement shall–

(A) establish that food, feed, food ingredients, and other products relating to food may be imported into the United States from a country that is a party to the agreement only if such food and related products meet or exceed United States laws and regulations with respect to food safety, pesticides, inspections, packaging, and labeling;

(B) establish that nonfood products may be imported into the United States from a country that is a party to the agreement only if such products meet or exceed United States laws and regulations with respect to health and safety, inspection, packaging, and labeling;

(C) authorize the Commissioner of the Food and Drug Administration (in this Act, referred to as the ‘Commissioner’) and the Consumer Product Safety Commission (in this Act, referred to as the ‘Commission’) to assess the regulatory system of each country that is a party to the agreement to determine whether the regulatory system of that country provides the same or better protection of health and safety for food and other products as provided under the regulatory system of the United States;

(D) if the Commissioner or the Commission determines that the regulatory system of a country does not provide the same or better protection of health and safety for food and other products as provided under the regulatory system of the United States, the agreement shall provide that the President may temporarily suspend the importation into the United States of food and other products from that country;

(E) provide a process for inspecting and approving facilities in countries that the Commissioner or the Commission have found do not meet United States laws and regulations with respect to health and safety in order to allow products from approved facilities to be imported into the United States; and

(F) if harmonization of food or product health or safety laws and regulations is necessary to facilitate trade, the agreement shall provide that such harmonization shall be based on standards that are no less stringent than United States laws and regulations.

(4) SERVICES PROVISIONS- If the agreement contains provisions relating to services, such provisions shall–

(A) preserve the right of Federal, State, and local governments to maintain essential public services and to regulate, for the benefit of the public, services provided to consumers;

(B)(i) provide that a service is not subject to the agreement unless a country that is a party to the agreement establishes a positive list of each service sector that will be subject to the obligations of the country under the agreement; and

(ii) apply the agreement only to the service sectors that are on the list described in clause (i);

(C) establish a general exception to the market access obligations contained in the agreement by allowing a country that is a party to the agreement to maintain or establish a ban on services that the country considers harmful to public health or safety, the environment, or public morals if the ban is applied to domestic and foreign services and service providers equally;

(D) require service providers in a country that is a party to the agreement that provide services through a commercial presence in the United States to consumers in the United States to comply with applicable United States environmental, land use, safety, privacy, transparency, professional qualification, and consumer access laws and regulations;

(E) require that services provided to consumers in the United States that would be subject to privacy laws and regulations in the United States may only be provided by service providers in other countries if those countries have privacy protections and protections regarding confidential information that are equal to or exceed the protections provided by United States privacy laws and regulations;

(F) provide that privatization of public services in any country that is a party to the agreement or the deregulation of a service is not required, including services relating to national security, social security, health, public safety, education, water, sanitation, other utilities, ports, or transportation; and

(G) provide that local governments are not subject to the service sector obligations under the agreement.

(5) INVESTMENT PROVISIONS- If the agreement contains provisions relating to investment, such provisions shall–

(A) preserve the ability of each country that is a party to the agreement to regulate foreign investment in a manner consistent with the needs and priorities of the country;

(B) preserve the ability of each country to place prudential restrictions on speculative capital to promote financial stability;

(C) ensure that foreign investors operating in the United States are not afforded greater procedural or substantive rights under the trade agreement than those afforded to domestic investors under the Constitution and laws of the United States;

(D) ensure that the adoption or application by any government of a nondiscriminatory measure intended to serve a public purpose is not prohibited by the agreement and is not a violation of the agreement;

(E) provide that the term ‘investment’ only means a commitment of capital or the acquisition of real property as understood under the laws of the country that is a party to the agreement and excludes the assumption of risk or expectation of gain or profit;

(F) provide that the term ‘investor’ means only a person who makes a commitment or an acquisition described in subparagraph (E);

(G) limit protections against expropriations to direct expropriation of real property and provide that ‘direct expropriation’ means government action that does not merely diminish the value of real property but destroys all value of the real property permanently; and

(H) define the standard of minimum treatment to provide that foreign investors do not have greater legal rights than United States citizens possess under the due process clause of section 1 of the 14th Amendment to the Constitution.

(6) PROCUREMENT STANDARDS- If the agreement contains government procurement provisions, such provisions shall–

(A) provide that an industry sector, goods, and services are not subject to an agreement unless a country that is a party to the agreement establishes a positive list of industry sectors, goods, and services that will be subject to the obligations of the country under the agreement;

(B) with respect to the United States, apply only to a State that specifically agrees to the agreement and only to the industry sectors, goods, and services specifically identified by the State government and shall not apply to local governments; and

(C) include only technical specifications for goods or services, or supplier qualifications or other conditions for receiving government contracts that do not undermine–

(i) prevailing wage policies;

(ii) recycled content policies;

(iii) sustainable harvest policies;

(iv) renewable energy policies;

(v) human rights; or

(vi) project labor agreements.

(7) INTELLECTUAL PROPERTY REQUIREMENTS- If the agreement contains provisions related to the protection of intellectual property rights, such provisions shall–

(A) promote adequate and effective protection of intellectual property rights;

(B) include only terms relating to patents that do not, overtly or in application, limit the flexibilities and rights established in the Declaration on the TRIPS Agreement and Public Health, adopted by the World Trade Organization at the Fourth Ministerial Conference at Doha, Qatar, on November 14, 2001, particularly the flexibilities and rights relating to the promotion of access to medicines and the issuance of compulsory licenses on grounds determined by member states; and

(C) require that any provisions relating to the patenting of traditional knowledge be consistent with the Convention on Biological Diversity, concluded at Rio de Janeiro June 5, 1992.

(8) AGRICULTURAL STANDARDS- If the agreement contains provisions relating to agriculture, such provisions shall–

(A) protect the right of each country that is a party to the agreement to establish policies with respect to food and agriculture that allow for inventory management and strategic food and renewable energy reserves, if such policies do not contribute to or allow the dumping of agricultural commodities in world markets at prices lower than the cost of production;

(B) protect the right of each country that is a party to the agreement to prevent dumping of agricultural commodities at below the cost of production through border regulations or other mechanisms and policies;

(C) ensure that all laws relating to antitrust and anti-competitive business practices remain fully in effect, and that enforceability of those laws is neither preempted nor compromised in any manner;

(D) ensure adequate and affordable supplies of safe food for consumers;

(E) protect the right of each country that is a party to the agreement to encourage conservation through the use of best practices with respect to the management and production of agricultural commodities;

(F) ensure fair treatment of farm laborers in each such country; and

(G) not conflict with agricultural policy established in the laws of the United States.

(9) TRADE REMEDIES AND SAFEGUARDS- If the agreement contains trade remedy provisions, such provisions shall–

(A) preserve fully the ability of the United States to enforce the trade laws of the United States, including antidumping and countervailing duty laws and safeguard laws;

(B) ensure the continued effectiveness of domestic and international prohibitions on unfair trade, especially prohibitions on dumping and subsidies, and domestic and international safeguard provisions;

(C) establish mechanisms to address and remedy market distortions that lead to dumping and subsidization, including overcapacity, cartelization, and market-access barriers, by imposing strong sanctions against subsidies, including applying countervailing duty laws in cases where exporters receive tax rebates for indirect taxes upon export;

(D) allow the United States to maintain adequate safeguards to ensure that surges of imported goods do not result in economic burdens on workers, firms, or farmers in the United States, including providing that such safeguards go into effect automatically based on certain criteria;

(E) establish mechanisms among the parties to the agreement to examine the trade consequences of significant currency movements and to scrutinize whether a country’s currency is misaligned in order to promote a competitive advantage in international trade; and

(F) if the currency of a country that is a party to the agreement is deliberately misaligned, establish safeguard remedies that apply automatically to offset substantial and sustained currency movements.

(10) DISPUTE RESOLUTION AND ENFORCEMENT PROVISIONS- If the agreement contains provisions relating to dispute resolution, such provisions shall–

(A) incorporate the due process protections of the Constitution, as well as provisions relating to access to documents, open hearings, transparency, and fair and impartial tribunals;

(B) require that any dispute settlement panel, including an appellate panel, dealing with intellectual property rights or environmental, health, labor, and other public law issues include panelists with expertise in the issues that are the subject of the dispute; and

(C) provide that dispute resolution proceedings are open to the public and provide timely public access to information regarding enforcement, disputes, and ongoing negotiations relating to disputes.

(11) TECHNICAL ASSISTANCE- If the agreement contains technical assistance provisions, such provisions shall–

(A) be designed to raise standards in developing countries by providing assistance in a manner that ensures diversity of development;

(B) be designed to empower civil society and democratic governments to create sustainable, vibrant economies and respect basic rights; and

(C) not supplant economic assistance or promote the exportation of goods produced with the exploitation of labor or methods that support unsustainable natural resources.

(12) EXCEPTIONS FOR NATIONAL SECURITY AND OTHER REASONS- Each agreement shall–

(A) include an essential security exception to the provisions of the agreement that permits a country that is a party to the agreement to apply measures that the country considers necessary for the maintenance or restoration of international peace or security, or the protection of its essential security interests;

(B) explicitly state that if a country invokes the essential security exception in a dispute settlement proceeding relating to any matter other than compliance with the agreement’s worker rights, environment, human rights, health, or safety provisions, the dispute settlement body hearing the matter shall find that the exception applies;

(C) include the following language: ‘Notwithstanding any other provision of this agreement, a provision of law that is nondiscriminatory on its face and relates to domestic health, consumer safety, the environment, labor rights, worker health and safety, consumer access, the provision of goods or services, or investment, shall not be subject to challenge under the dispute resolution mechanism established under this agreement, unless a principal purpose of the law is to discriminate with respect to market access.’; and

(D) include a provision that gives priority to the implementation of bilateral or multilateral agreements relating to public health, human and labor rights, the environment, or other public interest goals in the event of any inconsistency between the trade agreement and such bilateral or multilateral agreement.

(13) FEDERALISM- The trade agreement may only require a State government in the United States to comply with procurement, investment, or services provisions contained in the trade agreement if the State government has been consulted in full and has given explicit consent to be bound by such provisions.

(c) Point of Order in Senate- The Senate shall cease consideration of a bill to implement a trade agreement introduced on or after the date of enactment of this Act if–

(1) a point of order is made by any Senator against the bill based on the noncompliance of the trade agreement with the requirements of subsection (b); and

(2) the point of order is sustained by the Presiding Officer.

(d) Waivers and Appeals-

(1) WAIVERS- Before the Presiding Officer rules on a point of order described in subsection (c), any Senator may move to waive the point of order and the motion to waive shall not be subject to amendment. A point of order described in subsection (c) is waived only by the affirmative vote of 60 Members of the Senate, duly chosen and sworn.

(2) APPEALS- After the Presiding Officer rules on a point of order described in subsection (c), any Senator may appeal the ruling of the Presiding Officer on the point of order as it applies to some or all of the provisions on which the Presiding Officer ruled. A ruling of the Presiding Officer on a point of order described in subsection (c) is sustained unless 60 Members of the Senate, duly chosen and sworn, vote not to sustain the ruling.

(3) DEBATE- Debate on the motion to waive under paragraph (1) or on an appeal of the ruling of the Presiding Officer under paragraph (2) shall be limited to 1 hour. The time shall be equally divided between, and controlled by, the majority leader and the minority leader of the Senate, or their designees.

SEC. 5. RENEGOTIATION OF EXISTING TRADE AGREEMENTS.

The President shall submit to Congress a plan for renegotiating each trade agreement that is in effect on the date of the enactment of this Act to bring the trade agreement into compliance with the requirements of section 4(b) not later than 90 days before the earlier of the day on which the President–

(1) initiates negotiations with a foreign country with respect to a new trade agreement; or

(2) submits a bill to Congress to implement a trade agreement.

SEC. 6. SENSE OF CONGRESS ON IMPROVING THE PROCESS FOR UNITED STATES TRADE NEGOTIATIONS.

It is the sense of Congress that if Congress considers legislation to provide for special procedures for the consideration of bills to implement trade agreements, that legislation shall include–

(1) criteria for the President to use in determining whether a country–

(A) is able to meet its obligations under a trade agreement;

(B) meets the requirements described in section 3(c); and

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

(2) a process by which the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives review the determination of the President described in paragraph (1) to verify that the country meets the criteria;

(3) requirements for consultation with Congress during trade negotiations that require more frequent consultations than required by the Bipartisan Trade Promotion Authority Act of 2002 (19 U.S.C. 3801 et seq.), including a process for consultation with any committee of Congress with jurisdiction over any area covered by the negotiations;

(4) binding negotiating objectives and requirements outlining what must and must not be included in a trade agreement, including the requirements described in section 4(b);

(5) a process for review and certification by Congress to ensure that the negotiating objectives described in paragraph (4) have been met during the negotiations;

(6) a process–

(A) by which a State may give informed consent to be bound by nontariff provisions in a trade agreement that relate to investment, the service sector, and procurement; and

(B) that prevents a State from being bound by the provisions described in subparagraph (A) if the State has not consented; and

(7) a requirement that a trade agreement be approved by a majority vote in both Houses of Congress before the President may sign the agreement.

H.R. 3012 (111th Congress)

Jun 24, 2009 – Introduced in House. This is the original text of the bill as it was written by its sponsor and submitted to the House for consideration. This is the latest version of the bill currently available on GovTrack.

HR 3012 IH

111th CONGRESS

1st Session

H. R. 3012

To require a review of existing trade agreements and renegotiation of existing trade agreements based on the review, to set terms for future trade agreements, to express the sense of the Congress that the role of Congress in trade policymaking should be strengthened, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

June 24, 2009

Mr. MICHAUD (for himself, Mr. ABERCROMBIE, Mr. ALTMIRE, Mr. ARCURI, Mr. BACA, Ms. BALDWIN, Mr. BOCCIERI, Mr. BOSWELL, Mr. BRADY of Pennsylvania, Mr. BRALEY of Iowa, Mr. CAPUANO, Mr. CARNAHAN, Mr. CARNEY, Mr. CARSON of Indiana, Mr. CHANDLER, Mr. CHILDERS, Mr. CLEAVER, Mr. COHEN, Mr. CONYERS, Mr. COSTELLO, Mr. CUMMINGS, Mrs. DAHLKEMPER, Mr. DEFAZIO, Mr. DELAHUNT, Ms. DELAURO, Mr. DINGELL, Mr. DOYLE, Ms. EDWARDS of Maryland, Mr. ELLISON, Mr. FILNER, Ms. FUDGE, Mr. GORDON of Tennessee, Mr. GRAYSON, Mr. AL GREEN of Texas, Mr. GENE GREEN of Texas, Mr. GRIJALVA, Mr. GUTIERREZ, Mr. HALL of New York, Mr. HARE, Mr. HASTINGS of Florida, Mr. HINCHEY, Ms. HIRONO, Mr. HOLDEN, Mr. HOLT, Mr. JACKSON of Illinois, Ms. JACKSON-LEE of Texas, Mr. JOHNSON of Georgia, Mr. JONES, Mr. KAGEN, Mr. KANJORSKI, Ms. KAPTUR, Mr. KILDEE, Ms. KILPATRICK of Michigan, Ms. KILROY, Mr. KISSELL, Mr. KUCINICH, Mr. LANGEVIN, Ms. LEE of California, Mr. LIPINSKI, Mr. LOEBSACK, Mr. LYNCH, Mr. MASSA, Ms. MCCOLLUM, Mr. MCGOVERN, Mr. MCINTYRE, Mr. MOLLOHAN, Ms. MOORE of Wisconsin, Mr. PATRICK J. MURPHY of Pennsylvania, Mr. MURTHA, Mr. NADLER of New York, Mrs. NAPOLITANO, Ms. NORTON, Mr. OBERSTAR, Mr. PALLONE, Mr. PAYNE, Mr. PERRIELLO, Mr. PETERS, Mr. PETERSON, Ms. PINGREE of Maine, Mr. RAHALL, Mr. ROSS, Mr. ROTHMAN of New Jersey, Ms. ROYBAL-ALLARD, Mr. RYAN of Ohio, Mr. SARBANES, Ms. SCHAKOWSKY, Mr. SCHAUER, Mr. SCOTT of Virginia, Ms. SHEA-PORTER, Mr. SHERMAN, Mr. SHULER, Ms. SLAUGHTER, Mr. SMITH of New Jersey, Mr. STUPAK, Ms. SUTTON, Mr. TIERNEY, Mr. TONKO, Mr. VISCLOSKY, Mr. WALZ, Ms. WASSERMAN SCHULTZ, Ms. WATERS, Mr. WELCH, Mr. WILSON of Ohio, Ms. WOOLSEY, Mr. WU, and Mr. SPRATT) introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committee on Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To require a review of existing trade agreements and renegotiation of existing trade agreements based on the review, to set terms for future trade agreements, to express the sense of the Congress that the role of Congress in trade policymaking should be strengthened, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Trade Reform, Accountability, Development, and Employment Act of 2009’ or the ‘TRADE Act of 2009’.

SEC. 2. DEFINITIONS.

In this Act:

(1) CORE LABOR STANDARDS- The term ‘core labor standards’ means the core labor rights as stated in the Conventions of the International Labour Organization relating to–

(A) freedom of association and the effective recognition of the right to collective bargaining;

(B) elimination of all forms of forced or compulsory labor;

(C) effective abolition of child labor; and

(D) elimination of discrimination with respect to employment and occupation.

(2) FUNDAMENTAL HUMAN RIGHTS- The term ‘fundamental human rights’ means the rights enumerated in the United Nations Universal Declaration of Human Rights.

(3) MAJOR U.S. TRADE PARTNERS- The term ‘major U.S. trade partners’ means Belgium, Brazil, the People’s Republic of China, France, Germany, Hong Kong, India, Ireland, Italy, Japan, the Republic of South Korea, Malaysia, the Netherlands, Taiwan, and the United Kingdom.

(4) MULTILATERAL ENVIRONMENTAL AGREEMENT- The term ‘multilateral environmental agreement’ means any international agreement or provision thereof to which the United States is a party and which is intended to protect, or has the effect of protecting, the environment or human health.

(5) STATE- The term ‘State’ means each of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(6) TRADE AGREEMENTS-

(A) IN GENERAL- Except as provided in section 4, the term ‘trade agreement’ means–

(i) the North American Free Trade Agreement;

(ii) the Dominican Republic-Central America-United States Free Trade Agreement; and

(iii) the Agreement Between the United States of America and the Hashemite Kingdom of Jordan on the Establishment of a Free Trade Area.

(B) URUGUAY ROUND AGREEMENTS- Except as provided in section 4, the term ‘trade agreement’ means–

(i) the General Agreement on Tariffs and Trade (GATT 1994) annexed to the WTO Agreement;

(ii) the WTO Agreement described in section 2(9) of the Uruguay Round Agreements Act (19 U.S.C. 3501(9));

(iii) any other agreement described in section 101(d) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)); and

(iv) any multilateral agreement entered into by the United States under the auspices of the World Trade Organization, including any agreement relating to information technology, telecommunications, or financial services.

SEC. 3. REVIEW AND REPORT ON EXISTING TRADE AGREEMENTS.

(a) Review and Report-

(1) IN GENERAL- Not later than 270 days after the date of the enactment of this Act, and every 2 years thereafter, the Comptroller General of the United States shall–

(A) conduct a review of all trade agreements in force at the time of the review for the purpose of evaluating the economic, environmental, national security, health, safety, and other effects of the trade agreements; and

(B) submit to the Congressional Trade Agreement Review Committee established under section 6 a report that includes the information described under subsections (b) and (c) and the recommendations required under subsection (d).

(2) COOPERATION OF AGENCIES- The Secretary of State, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Labor, the Secretary of the Treasury, and the heads of other Federal departments and agencies shall cooperate with the Comptroller General for purposes of facilitating preparation of the report.

(3) INFLATION-CONTROLLED DOLLARS- Data expressed in terms of United States dollars should be in inflation adjusted terms unless otherwise indicated.

(b) Information With Respect to Trade Agreements- The report required by subsection (a) shall, with respect to each trade agreement, to the extent practicable, include the following information covering the period between the date on which the trade agreement entered into force with respect to the United States and the date on which the Comptroller General completes the review:

(1) An analysis of indicators of the economic impact of each trade agreement, including the following:

(A) The employment effects of the trade agreement on job gains and losses in the United States delineated by industry, year, and State, taking note of specific firm, industry, or regional cases of substantial trade agreement-related employment losses or gains, including a list of the top ten industries that experienced employment gains and losses in the United States. In addition to utilizing existing government data, the Comptroller General shall develop and utilize a labor requirements model derived from detailed input-output tables to estimate the number of jobs supported or displaced by shifts in the level and rate of change of United States net exports and investment flows.

(B) The effects of the trade agreement on changes in relative and absolute wage levels, income distribution by decile, and hours worked by sector and State, on a year-to-year basis, in the United States. In addition to utilizing existing government data, the Comptroller General shall develop and utilize factor content analyses, product price regressions, computable general equilibrium models, and other applicable methods to isolate the impact of the trade agreement (and its associated investment flows) on changes in relative and absolute wages and income distribution by education, skill level, and trade-sensitivity of various sectors, controlling for appropriate indicators such as region, race, and gender.

(C) The dollar value of domestic exports of the United States and imports for consumption into the United States delineated, to the extent such information is available, by–

(i) Standard International Trade Classification (SITC)-5,

(ii) Standard Industrial Classification (SIC)-4,

(iii) North American Industry Classification (NAIC)-6,

(iv) the 10-digit classification number under the Harmonized Tariff Schedule of the United States,

(v) year, and

(vi) trade-partner country,

including listing those goods for which there has been a change in 10 percent or more in bilateral trade flows.

(D) The share of global production, productive capacity, investment, exports and employment, and other indicators of the competitive position (such as productivity gains and patents registered) of industries in the United States significantly affected by the trade agreement, taking note of major production and employment offshoring trends and changes in sourcing patterns before and after entry into force of the trade agreement with respect to the United States.

(2) An analysis of the effect on agriculture and food-related outcomes, including the following:

(A)(i) The trend, on a year-by-year basis, of prices and production volumes in the United States, and exports from and imports into the United States, of agricultural commodities, food products, and ingredients thereof, that are imported in significant volume into the United States from a country that is a party to the trade agreement.

(ii) For purposes of this subparagraph–

(I) the term ‘significant volume’ means, with respect to agricultural commodities, food products, or ingredients, 10 percent or more of domestic consumption of such agricultural commodities, food products, or ingredients; and

(II) imports of such agricultural commodities, food products, and ingredients shall be measured according to the 4-digit classification of the commodities, products, and ingredients under the Harmonized Tariff Schedule of the United States.

(B) An analysis of the effects, if any, on the cost of agricultural programs in the United States.

(C) The number of farms operating in the United States, detailed by farm typology and sales level, and the number of acres under production by crop, for agricultural commodities that are exported from the United States to a country that is a party to the trade agreement, on a year-by-year basis.

(D) An analysis of the effects, if any, on market concentration, prices, and fair competition in the markets for agricultural commodities and food products that are subject to significant volumes of trade between the United States and each other country that is a party to the trade agreement.

(3)(A) An analysis of the progress in implementing commitments under the trade agreement, and the record of compliance with the terms of the trade agreement, by–

(i) each country that is a party to the trade agreement, in the case of a trade agreement describe in section 2(6)(A); and

(ii) by each of the major U.S. trade partners, in the case of a trade agreement described in section 2(6)(B).

(B) A description of any outstanding disputes between the United States and any other country that is a party to the trade agreement, including a description of laws, regulations, or policies of the United States or any State that such other country has challenged, or threatened to challenge, under the trade agreement.

(4) An analysis of the ability of the United States to ensure that each other country that is a party to the trade agreement complies with United States laws and regulations, including–

(A) complying with the customs laws of the United States;

(B) making timely payment of duties owed on goods imported into the United States, including, in such analysis, the amount of duties paid by such other country;

(C) meeting safety and inspection requirements with respect to food and other products imported into the United States from such other country;

(D) complying with prohibitions on the transshipment of goods that are ultimately imported into the United States; and

(E) enforcing the trade agreement, including preventing dumping, subsidies, and circumvention.

(5) An analysis of any privatization of public sector services in the United States or in any other country that is a party to the trade agreement, if the service involved is covered by the investment, financial services, or services provisions of the trade agreement, including any effect such privatization has on the access of consumers to essential services, such as health care, electricity, gas, water, telephone service, or other utilities.

(6) An assessment of the impact of the intellectual property provisions of the trade agreement on the retail price of pharmaceuticals in any country that is a party to the trade agreement and the effect, if any, that changes in the price of pharmaceuticals have had on access by consumers to medicines.

(7) An analysis of the impact of government procurement rules in the trade agreement on the procurement of goods or services by United States Federal or State government agencies, including annual information on the value of goods and services procured, delineated by Federal or State government and agency, by good or service procured, and by the country from which the good or service originated.

(8) An assessment of the impact of significant currency movements, currency misalignment, or currency manipulation on the bilateral trade balance between the United States and each other country that is a party to the trade agreement and each of the major U.S. trade partners.

(c) Information on Countries That Are Parties to Trade Agreements- With respect to each country with which the United States has a trade agreement in effect, the report required under subsection (a) shall include information regarding whether that country–

(1) has a democratic form of government;

(2) respects core labor rights, as defined by the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards of the International Labour Organization;

(3) respects fundamental human rights, as determined by the Secretary of State in the annual country reports on human rights of the Department of State;

(4) is designated as a country of particular concern with respect to religious freedom under section 402(b)(1) of the International Religious Freedom Act of 1998 (22 U.S.C. 6442(b)(1));

(5) is on a list described in subparagraph (B) or (C) of section 110(b)(1) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7107(b)(1)) (commonly known as tier 2 or tier 3 of the Trafficking in Persons List of the Department of State);

(6) has taken effective measures to combat and prevent public and private corruption, including measures with respect to tax evasion and money laundering, and has ratified the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development;

(7) complies with the multilateral environmental agreements to which the country is a party;

(8) has in force adequate labor and environmental laws and regulations, has devoted sufficient resources to implementing those laws and regulations, and has an adequate record of enforcement of those laws and regulations;

(9) adequately protects intellectual property rights;

(10) provides for governmental transparency, due process of law, and respect for international agreements; and

(11) poses potential concerns to the national security of the United States, including an assessment of the transfer of technology, production, and services from one country to another.

(d) Recommendations- The report required under subsection (a) shall include recommendations of the Comptroller General for addressing issues with respect to a trade agreement that are identified under subsections (b) and (c). The recommendations shall include suggestions for renegotiating the trade agreement based on the requirements described in section 4(b) and for negotiations with respect to new trade agreements.

(e) Citations- The Comptroller General shall include in the report required under subsection (a) citations to the sources of data used in preparing the report and a description of the methodologies employed in preparing the report.

(f) Trend Analysis- The report required under subsection (a) shall include a trend analysis of relative and absolute wage levels on a year-to-year basis in–

(1) each country with which the United States has a trade agreement described in section 2(6)(A);

(2) each major U.S. trade partner;

(3) each country with which the United States has considered establishing a free trade agreement, including South Africa, Vietnam, Malaysia, and Thailand; and

(4) Cambodia.

(g) Public Comment- In preparing the report required under subsection (a), the Comptroller General shall–

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

(2) provide an opportunity for members of the public to testify and submit written comments.

(h) Public Availability- The information in each report required under subsection (a) shall be made available to the public not later than 14 days after the Comptroller General completes the report.

SEC. 4. INCLUSION OF CERTAIN PROVISIONS IN TRADE AGREEMENTS.

(a) In General-

(1) REQUIREMENTS FOR EXPEDITED CONSIDERATION OF IMPLEMENTING LEGISLATION- Notwithstanding section 151 of the Trade Act of 1974 (19 U.S.C. 2191) or any other provision of law, any bill implementing a trade agreement between the United States and another country that is introduced in the Congress after the date of the enactment of this Act shall not be subject to expedited consideration or special procedures regarding amendment or debate unless the trade agreement meets the requirements of subsection (b).

(2) TRADE AGREEMENT DEFINED- For purposes of this section, the term ‘trade agreement’ means any trade agreement entered into between the United States and one or more countries.

(b) Requirements- The requirements referred to in subsection (a) regarding a trade agreement between the United States and another country are the following:

(1) LABOR STANDARDS- The labor provisions shall–

(A) be included in the core text of the trade agreement;

(B) require each country that is party to the trade agreement–

(i) to adopt and maintain as part of its domestic law and regulations (including in any designated zone in that country) the core labor standards; and

(ii) to effectively enforce laws related to core labor standards and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health;

(C) prohibit a country that is a party to the trade agreement from waiving or otherwise derogating from its laws and regulations relating to the core labor standards and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health;

(D) provide that failures to meet the labor standards required by the trade agreement shall be subject to effective dispute resolution and enforcement mechanisms and penalties that are included in the core text of the trade agreement and that are at least as effective as the mechanisms and penalties that apply to the commercial provisions of the trade agreement;

(E) strengthen the capacity of each country that is a party to the trade agreement to promote and enforce core labor standards;

(F) provide for the establishment of a commission comprised of individuals with international and comparative labor rights expertise, including representatives of independent labor unions of countries that are parties to the trade agreement, representatives of exporting businesses of countries that are parties to the trade agreement, and independent academic researchers, to receive, investigate, review, and participate in the adjudication of any complaint filed under the labor provisions of the trade agreement, and vest the commission with the authority to establish objective indicators to determine compliance with the obligations set forth in subparagraphs (B), (C), and (D); and

(G) require each country that is a party to the trade agreement to cooperate fully with investigations by the commission required under subparagraph (F).

(2) HUMAN RIGHTS STANDARDS- The human rights provisions shall–

(A) be included in the core text of the trade agreement;

(B) require each country that is a party to the trade agreement to recognize the United Nations Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations;

(C) prohibit each country that is a party to the trade agreement from waiving or otherwise derogating from its laws and regulations relating to fundamental human rights;

(D) provide that failures to meet the fundamental human rights required by the trade agreement shall be subject to effective dispute resolution and enforcement mechanisms and penalties that are included in the core text of the trade agreement and that are at least as effective as the mechanisms and penalties that apply to the commercial provisions of the trade agreement;

(E) strengthen the capacity of each country that is a party to the trade agreement to promote and enforce fundamental human rights;

(F) provide for the establishment of a commission composed of representatives specializing in international and comparative human rights, including representatives of independent human rights organizations of countries who are parties to the trade agreement and academic researchers, to receive, investigate, review, and participate in the adjudication of any complaint filed under the human rights provisions of the trade agreement, and vest the commission with the authority to establish objective indicators to determine compliance with the obligations set forth in subparagraphs (B), (C), and (D); and

(G) require any other country that is a party to the trade agreement to cooperate fully with investigations by the commission required under subparagraph (F).

(3) ENVIRONMENTAL AND PUBLIC SAFETY STANDARDS- The environmental provisions shall–

(A) be included in the core text of the trade agreement;

(B) prohibit each country that is a party to the trade agreement from weakening, eliminating, or failing to enforce domestic environmental or other public health or safety standards to promote trade or attract investment;

(C) require each country that is a party to the trade agreement to implement and enforce fully and effectively, including through domestic law, the country’s obligations under multilateral environmental agreements and provide for the enforcement of such obligations under the trade agreement;

(D) prohibit the trade of goods derived from illegally harvested or extracted natural resources, at any stage of production, including timber and timber products, fish, wildlife, and associated products, mineral resources, and other environmentally sensitive goods;

(E) provide that the failure to meet the environmental standards required by the trade agreement be subject to dispute resolution and enforcement mechanisms and penalties that are at least as effective as the mechanisms and penalties that apply to the commercial provisions of the trade agreement; and

(F) allow each country that is a party to the trade agreement to adopt and implement environmental, health, and safety standards, recognizing the legitimate right of governments to protect the environment and public health and safety.

(4) FOOD AND PRODUCT HEALTH AND SAFETY STANDARDS- If the trade agreement contains health and safety standards for food and other products, the trade agreement shall–

(A) establish that food, feed, food ingredients, and other related food products may be imported into the United States from a country that is a party to the trade agreement only if such products meet or exceed United States standards with respect to food safety, pesticides, inspections, packaging, and labeling;

(B) establish that nonfood products may be imported into the United States from a country that is a party to the trade agreement only if such products meet or exceed United States standards with respect to health and safety, inspections, packaging, and labeling;

(C) allow each country that is a party to the trade agreement to impose standards designed to protect public health and safety unless it can be clearly demonstrated that such standards do not protect the public health or safety;

(D)(i) authorize the Commissioner of Food and Drugs and the Consumer Product Safety Commission to assess the regulatory system of each country that is a party to the trade agreement to determine whether the system provides the same or better protection of health and safety for food and other products as provided under the regulatory system of the United States and authorize other appropriate United States Federal agencies to assess the regulatory system of each country that is party to the trade agreement to determine whether the system provides the same or better quality controls on manufactured goods as provided under the regulatory system of the United States;

(ii) if the Commissioner or the Commission determines that the regulatory system of such a country does not provide the same or better protection of health and safety for food and other products as provided under the regulatory system of the United States, or another appropriate agency determines that the regulatory system of such a country does not provide the same or better quality controls on manufactured goods as provided under the regulatory system of the United States, provide that the United States may prohibit the importation into the United States of food and other products from that country; and

(iii) provide a process by which producers from countries whose regulatory systems are determined pursuant to clause (ii) by the Commissioner, the Commission, or another appropriate agency not to provide the same or better protection or quality controls as that provided under the regulatory system of the United States may have specific facilities inspected and certified so as to allow products from approved facilities to be imported into the United States; and

(E) if harmonization of food or product health or safety standards is necessary to facilitate trade, provide that such harmonization be based on standards that are no less stringent than standards in the United States.

(5) SERVICES PROVISIONS- If the trade agreement contains provisions related to the provision of services, such provisions shall–

(A) preserve the right of United States Federal, State, and local governments to maintain essential public services and to regulate, for the benefit of the public, services provided to consumers in the United States;

(B)(i) require each country that is a party to the trade agreement to establish a positive list of each service sector that will be subject to the obligations of the country under the trade agreement; and

(ii) apply the trade agreement only to the service sectors that are on the list described in clause (i);

(C) establish a general exception to market access obligations that allows each country that is a party to the trade agreement to maintain or establish a ban on services that the country considers harmful to public health or safety, the environment, or public morals, if the ban is applied to domestic and foreign services and service providers alike;

(D) require service providers of each country that is a party to the trade agreement that provide services through commercial presence in the United States to consumers in the United States to comply with environmental, land use, safety, privacy, transparency, professional qualification, and consumer access laws and regulations in the United States;

(E) require that services provided to consumers in the United States, such as medical and financial services, that are subject to privacy laws and regulations in the United States may only be provided by service providers in other countries that provide privacy protections and protections for confidential information that are equal to or exceed the protections provided by privacy laws and regulations in the United States;

(F) not require the privatization of public services in any country that is a party to the trade agreement or the deregulation of a service, including services related to national security, social security, health, public safety, education, water, sanitation, other utilities, ports, or transportation;

(G) not subject local governments to the service sector obligations under the trade agreement;

(H) not include provisions with respect to immigration or the movement of natural persons; and

(I) not limit any nondiscriminatory national, regional, or local government program that establishes reimbursement rates under public health insurance programs, or otherwise controls the costs of pharmaceuticals or medical devices.

(6) INVESTMENT PROVISIONS- If the trade agreement contains provisions related to investment, such provisions shall–

(A) preserve the ability of each country that is a party to the trade agreement to regulate foreign investment in a manner consistent with the needs and priorities of the country;

(B) allow each country that is a party to the trade agreement to place prudential restrictions on speculative capital to reduce global financial instability and trade volatility;

(C) not be subject to an investor-state dispute settlement mechanism under the trade agreement;

(D) ensure that foreign investors operating in the United States are not afforded greater rights than those afforded to domestic investors by the Constitution and laws of the United States;

(E) provide for government-to-government dispute resolution relating to expropriation only for those disputes relating to a government action that destroys all value of the real property of a foreign investor permanently, but not government actions that do not merely diminish the value of property;

(F) define the term ‘investment’ to mean not more than a commitment of capital or acquisition of real property and to exclude assumption of risk or expectation of gain or profit;

(G) define the term ‘investor’ to mean only a person who makes a commitment or acquisition described in subparagraph (F); and

(H) define the standard of minimum treatment to provide no greater legal rights than United States citizens possess under the due process clause of section 1 of the 14th amendment to the Constitution of the United States.

(7) PROCUREMENT STANDARDS- If the trade agreement contains government procurement provisions, such provisions shall–

(A) require each country that is a party to the trade agreement to establish a positive list of industry sectors, goods, or services that will be subject to the obligations of the country under the trade agreement;

(B) with respect to the United States, apply only to State governments that specifically agree to the trade agreement and only to the industry sectors, goods, or services specifically identified by the State government and not apply to local governments; and

(C) include only technical specifications for goods or services, supplier qualifications, or other conditions for receiving government contracts that do not undermine–

(i) prevailing wage policies;

(ii) recycled content policies;

(iii) sustainable harvest policies;

(iv) renewable energy policies;

(v) human rights; or

(vi) project labor agreements.

(8) INTELLECTUAL PROPERTY REQUIREMENTS- If the trade agreement contains provisions related to the protection of intellectual property rights, such provisions shall–

(A) promote adequate and effective protection of intellectual property rights;

(B) include only terms relating to patents that do not, overtly or in application, limit the flexibilities and rights established in the Declaration on the TRIPS Agreement and Public Health, adopted by the World Trade Organization at the Fourth Ministerial Conference at Doha, Qatar, on November 14, 2001, including the flexibilities and rights relating to the promotion of access to medicines and the issuance of compulsory licenses on grounds determined by member states;

(C) require that any provisions relating to the patenting of traditional knowledge be consistent with the Convention on Biological Diversity, concluded at Rio de Janeiro June 5, 1992; and

(D) ensure that the access of the public to essential medicines and to technologies critical to preventing climate change is not obstructed by any provision of the trade agreement relating to the protection of intellectual property rights.

(9) AGRICULTURAL STANDARDS- If the trade agreement contains provisions related to agriculture, such provisions shall–

(A) ensure adequate and stable market returns for farmers in each country that is a party to the trade agreement;

(B) ensure adequate and affordable supplies of safe food for consumers;

(C) protect the right of each country that is a party to the trade agreement to encourage conservation through the use of best practices with respect to the management and production of crops;

(D) ensure fair treatment of agricultural workers in each country that is a party to the trade agreement;

(E) protect the right of each country that is a party to the trade agreement to prevent dumping of agricultural commodities at below the cost of production through border regulations or other mechanisms and policies;

(F) protect the right of each country that is a party to the trade agreement to establish policies with respect to food and agriculture that require farmers to receive fair remuneration for management and labor that occurs on farms and that allow for inventory management and strategic food and renewable energy reserves, while ensuring that such policies do not aid or abet, or otherwise contribute to or allow, the dumping of agricultural commodities onto world markets at below the cost of production;

(G) preserve any existing United States law relating to antitrust and anticompetitive business practices from being preempted or rendered ineffective by the trade agreement; and

(H) not conflict with agricultural policy established in the laws of the United States.

(10) TRADE REMEDIES AND SAFEGUARDS- If the trade agreement contains trade remedy provisions, such provisions shall–

(A) preserve fully the ability of the United States to enforce its trade laws, including antidumping and countervailing duty laws and safeguard laws, the right to calculate 100 percent of the dumping in all antidumping proceedings, and the right to disburse domestically antidumping and countervailing duties as the United States so determines;

(B) not decrease the effectiveness of domestic and international prohibitions on unfair trade, especially prohibitions on dumping and subsidies, and domestic and international safeguard provisions;

(C) establish mechanisms to address and remedy market distortions that lead to dumping and subsidization, including overcapacity, cartelization, and market-access barriers, by imposing strong sanctions against subsidies, including applying the countervailing duty law when exporters receive tax rebates for indirect taxes upon export;

(D) allow the United States to maintain adequate safeguards for a minimum of two years to ensure that surges of imported goods do not result in economic burdens on workers, firms, or farmers in the United States, including providing that such safeguards go into effect based on certain criteria;

(E) establish mechanisms among the parties to the trade agreement to examine the trade consequences of significant currency movements and to scrutinize whether a party’s currency is misaligned to promote a competitive advantage in international trade; and

(F) if the currency of a country that is party to the trade agreement is deliberately misaligned, establish safeguard remedies that apply for a minimum period of two years to offset substantial and sustained currency movements and also allow, alternatively, for the application of countervailing duties.

(11) DISPUTE RESOLUTION AND ENFORCEMENT PROVISIONS- If the trade agreement contains provisions related to dispute resolution, such provisions shall–

(A) incorporate due process rules and procedures, including ensuring that dispute resolution proceedings are open to the public, that public access to information regarding enforcement, disputes, and ongoing negotiations related to disputes is provided in a timely manner, and that conflict of interest rules apply fully to adjudicators;

(B) require that any dispute settlement panel, including an appellate panel, addressing issues involving intellectual property rights or environmental, health, labor, human rights, or other public interest issues include panelists with expertise in such issues;

(C) require an expedited process for all dispute settlement panels and processes relating to violations of an agreement’s labor, human rights, and environmental obligations, recognizing that environmental and labor rights and the health, safety, and freedom of people and possibly irreversible damage to the physical environment are fundamentally different than property rights and thus require establishment of more expeditious timelines, together with the necessary resources for oversight and enforcement; and

(D) require that panels reviewing antidumping and countervailing duty proceedings of a party to the trade agreement apply a standard of review that gives deference to the administrating authority of the party whose measure is under review.

(12) TECHNICAL ASSISTANCE- If the trade agreement contains technical assistance provisions, such provisions shall–

(A) be designed to raise standards in developing countries by providing assistance that ensures respect for diversity of development paths;

(B) be designed to empower civil society and democratic governments to create sustainable, vibrant economies and respect basic rights; and

(C) provide that technical assistance shall not substitute for or supplant economic assistance and not promote exportation of goods produced with the exploitation of labor or unsustainable environmental practices.

(13) EXCEPTIONS FOR NATIONAL SECURITY AND OTHER REASONS- Each agreement shall–

(A) include an essential security exception that permits a country that is a party to the trade agreement to apply measures that the country considers necessary for the maintenance or restoration of international peace or security, or the protection of its own essential security interests, including with respect to infrastructure, services, manufacturing, and other sectors;

(B) explicitly state that if a country invokes the essential security exception in a dispute settlement proceeding relating to any matter other than compliance with the agreement’s worker rights, environment, human rights, health, or safety provisions, the dispute settlement body hearing the matter shall find that the exception applies;

(C) include a provision that gives priority to the implementation of bilateral or multilateral agreements relating to public health, human and labor rights, the environment, or other public interest goals in the event of any inconsistency between the trade agreement and such bilateral or multilateral agreement; and

(D) include in its list of general exceptions the following language: ‘Notwithstanding any other provision of this agreement, a provision of law that is nondiscriminatory on its face and relates to domestic health, consumer safety, the environment, labor rights, worker health and safety, economic equity, consumer access, the provision of goods or services, or investment, shall not be subject to challenge under the dispute resolution mechanism established under this agreement, unless the primary purpose of the law is to discriminate with respect to market access.’.

(14) FEDERALISM- The trade agreement may only require a State government in the United States to comply with procurement, investment, or services provisions contained in the trade agreement if the State government has been consulted in full and has given explicit consent to be bound by such provisions.

(15) TAXATION- Each agreement shall provide for border tax equity for United States producers and United States exporters in the assessment and rebate of indirect taxes (such as consumption and sales taxes), including by–

(A) prohibiting the imposition of such taxes on United States exports when imported in excess of the level of such taxes applied at the border by the United States to imports from parties to the trade agreement, or

(B) prohibiting the rebate of taxes on exports in amounts in excess of any such taxes rebated by the United States on United States exports in excess of any such taxes rebated by the United States,

or by adopting measures under both subparagraphs (A) and (B).

SEC. 5. RENEGOTIATION OF EXISTING TRADE AGREEMENTS.

(a) Plan- The President shall, at the times specified under subsection (b), submit to the Congress a plan for renegotiating each trade agreement that is in effect on the date of the enactment of this Act to bring the trade agreement into compliance with the requirements of section 4(b).

(b) Timing- The plan under subsection (a) shall be submitted not later than 90 days before the earlier of the day on which the President–

(1) initiates negotiations with a foreign country with respect to the trade agreement being renegotiated; or

(2) submits a bill to Congress to implement the revised trade agreement.

SEC. 6. ESTABLISHMENT OF CONGRESSIONAL TRADE AGREEMENT REVIEW COMMITTEE.

(a) Establishment- There is established a Congressional Trade Agreement Review Committee (in this section referred to as the ‘Committee’).

(b) Functions-

(1) IN GENERAL- The Committee–

(A) shall receive the reports of the Comptroller General of the United States submitted to the Committee under section 3(a)(1)(B);

(B) shall review the plan for renegotiation of trade agreements submitted by the President under section 5; and

(C) may, not later than 60 days after receiving the plan described in subparagraph (B), taking into account the reports of the Comptroller General referred to in subparagraph (A), add items for renegotiation to the plan, reject recommendations in the plan, or otherwise amend the plan.

(2) ACTION BY VOTE- Action by the Committee under paragraph (1)(C) requires a vote of 2/3 of the Members of the Committee.

(c) Appointment and Membership- The Committee shall be composed of the chair and ranking members of the following:

(1) The Committee on Agriculture of the House of Representatives.

(2) The Committee on Education and Labor of the House of Representatives.

(3) The Committee on Energy and Commerce of the House of Representatives.

(4) The Committee on Financial Services of the House of Representatives.

(5) The Committee on Natural Resources of the House of Representatives.

(6) The Committee on Ways and Means of the House of Representatives.

(7) The Committee on Agriculture, Nutrition, and Forestry of the Senate.

(8) The Committee on Banking, Housing, and Urban Affairs of the Senate.

(9) The Committee on Commerce, Science, and Transportation of the Senate.

(10) The Committee on Energy and Natural Resources of the Senate.

(11) The Committee on Environment and Public Works of the Senate.

(12) The Committee on Finance of the Senate.

(13) The Committee on Health, Education, Labor, and Pensions of the Senate.

SEC. 7. SENSE OF CONGRESS ON IMPROVING THE PROCESS FOR UNITED STATES TRADE NEGOTIATIONS.

It is the sense of the Congress that if Congress considers legislation to provide for special procedures for the consideration of bills to implement trade agreements, that legislation should include–

(1) readiness criteria for the President to use in determining whether a country–

(A) is able to meet its obligations under a trade agreement;

(B) meets the requirements described in section 3(c); and

(C) is an appropriate country with which to enter into a trade agreement;

(2) a process by which the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives review the determination of the President described in paragraph (1) to verify that the country meets the criteria;

(3) requirements for consultation with Congress during trade negotiations that require more frequent consultations than required by the Bipartisan Trade Promotion Authority Act of 2002 (19 U.S.C. 3801 et seq.), including a process for consultation with any committee of Congress with jurisdiction over any area covered by the negotiations;

(4) binding negotiating objectives and requirements outlining what must and must not be included in a trade agreement, including the requirements described in section 4(b);

(5) a process for review and certification by the Congress to ensure that the negotiating objectives described in paragraph (4) have been met during the negotiations;

(6) a process–

(A) by which a State may give informed consent to be bound by nontariff provisions in a trade agreement that relate to investment, the service sector, and procurement; and

(B) that prevents a State from being bound by the provisions described in subparagraph (A) if the State has not consented; and

(7) a requirement that a trade agreement be approved by a majority vote in both Houses of Congress before the President may sign the trade agreement.

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