Text: H.R.496 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in House (01/14/2009)


111th CONGRESS
1st Session
H. R. 496


To amend United States trade laws to eliminate foreign barriers to exports of United States goods and services, to restore rights under trade remedy laws, to strengthen enforcement of United States intellectual property rights and health and safety laws at United States borders, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

January 14, 2009

Mr. Rangel (for himself, Mr. Levin, Mr. Neal of Massachusetts, Ms. Berkley, Ms. Schwartz, Mr. Davis of Alabama, Mr. Visclosky, Mr. Tim Murphy of Pennsylvania, Mr. Altmire, and Mr. Schauer) introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committees on Rules and Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To amend United States trade laws to eliminate foreign barriers to exports of United States goods and services, to restore rights under trade remedy laws, to strengthen enforcement of United States intellectual property rights and health and safety laws at United States borders, and for other purposes.

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

SECTION 1. Short title and table of contents.

(a) Short title.—This Act may be cited as the “Trade Enforcement Act of 2009”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title and table of contents.

Sec. 101. Identification of trade expansion priorities.

Sec. 102. Office of the Congressional Trade Enforcer.

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

Sec. 104. Identification of countries that maintain unfair technical barriers to trade or unfair sanitary or phytosanitary measures.

Sec. 201. Application of countervailing duties to nonmarket economy countries and strengthening application of the law.

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

Sec. 203. Revocation of nonmarket economy country status.

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

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

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

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

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

Sec. 209. Rule of construction.

Sec. 301. Definitions.

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

Sec. 303. Interagency coordination.

Sec. 304. Development of import safety program.

Sec. 305. Information exchange process.

Sec. 306. Training.

Sec. 307. Sanctions on certain suppliers.

Sec. 308. Report to Congress.

Sec. 311. Definitions.

Sec. 312. Director of Intellectual Property Rights Enforcement.

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

Sec. 314. CBP and ICE coordinators.

Sec. 321. In general.

Sec. 322. Identification of certain unlawful goods.

Sec. 323. Training in new technologies.

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

Sec. 325. Improvements to recordation process.

Sec. 326. Identification of low-risk shippers.

Sec. 327. “Watch List” database.

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

Sec. 331. International training and technical assistance enhancements.

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

Sec. 342. Declarations regarding counterfeit and infringing merchandise.

Sec. 351. Regulatory authority.

Sec. 361. Definitions.

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

Sec. 363. Staffing enhancements at CBP.

Sec. 364. Staffing enhancements at ICE.

Sec. 371. Authorization of appropriations.

SEC. 101. Identification of trade expansion priorities.

(a) Identification of trade expansion priorities.—Section 310 of the Trade Act of 1974 is amended to read as follows:

“SEC. 310. Identification of trade expansion priorities.

“(a) Identification.—

“(1) IDENTIFICATION AND REPORT.—Within 30 days after the submission in each calendar year of the report required by section 181(b), the Trade Representative shall—

“(A) review United States trade expansion priorities;

“(B) identify priority foreign country practices the elimination of which is likely to have the most significant potential to increase United States exports, either directly or through the establishment of a beneficial precedent; and

“(C) submit to the Congressional Trade Enforcer, the Committee on Finance of the Senate, and the Committee on Ways and Means of the House of Representatives and publish in the Federal Register a report on the priority foreign country practices so identified.

“(2) FACTORS.—In identifying priority foreign country practices under paragraph (1), the Trade Representative shall take into account all relevant factors, including—

“(A) the major barriers and trade distorting practices described in the National Trade Estimate Report required under section 181(b);

“(B) the trade agreements to which a foreign country is a party and its compliance with those agreements;

“(C) the medium- and long-term implications of foreign government procurement plans; and

“(D) the international competitive position and export potential of United States products and services.

“(3) CONTENTS OF REPORT.—The Trade Representative may include in the report, if appropriate—

“(A) a description of foreign country practices that may in the future warrant identification as priority foreign country practices; and

“(B) a statement about other foreign country practices that were not identified because they are already being addressed by provisions of United States trade law, by existing bilateral trade agreements, or as part of trade negotiations with other countries, and because progress is being made toward the elimination of such practices.

“(b) Initiation of consultations.—By no later than the date that is 21 days after the date on which a report is submitted to the Congressional Trade Enforcer and the appropriate congressional committees under subsection (a)(1)(C), the Trade Representative should seek consultations with each foreign country identified in the report as engaging in priority foreign country practices for the purpose of reaching a satisfactory resolution of such priority practices.

“(c) Initiation of investigation.—If the Trade Representative seeks consultations under subsection (b) and a satisfactory resolution of the priority foreign country practices involved has not been reached within 90 days after the date on which a report is submitted to the appropriate congressional committees under subsection (a)(1), the Trade Representative shall initiate under section 302(b)(1) an investigation under this chapter with respect to such priority foreign country practices.

“(d) Agreements for the elimination of barriers.—In the consultations with a foreign country that the Trade Representative is required to request under section 303(a) with respect to an investigation initiated by reason of subsection (c), the Trade Representative shall seek to negotiate an agreement that provides for the elimination of the practices that are the subject of the investigation as quickly as possible or, if elimination of the practices is not feasible, an agreement that provides for compensatory trade benefits.

“(e) Reports.—The Trade Representative shall include in the semiannual report required by section 309(3) a report on the status of any investigations initiated pursuant to subsection (c) and, where appropriate, the extent to which such investigations have led to increased opportunities for the export of products and services of the United States.

“(f) Definition.—For purposes of this section, the term ‘Congressional Trade Enforcer’ means the head of the Office of the Congressional Trade Enforcer established under section 102 of the Trade Enforcement Act of 2009.”.

(b) Conforming amendment.—The item relating to section 310 in the table of contents of the Trade Act of 1974 is amended to read as follows:


“Sec. 310. Identification of trade expansion priorities.”.

SEC. 102. Office of the Congressional Trade Enforcer.

(a) Establishment.—There is established in the legislative branch an Office of the Congressional Trade Enforcer (in this section referred to as the “Office”).

(b) Congressional Trade Enforcer.—

(1) APPOINTMENT AND TERMS.—The head of the Office shall be a Congressional Trade Enforcer, who shall be appointed to a term of 2 years beginning on the first day of each new Congress. Appointments in odd-numbered Congresses shall be made by the Speaker of the House of Representatives, in consultation with the minority leader of the House of Representatives, the majority leader of the Senate, and the minority leader of the Senate, after considering recommendations received from the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate. Appointments in even-numbered Congresses shall be made by the majority leader of the Senate, in consultation with the minority leader of the Senate, the Speaker of the House of Representatives, and the minority leader of the House of Representatives, after considering recommendations received from the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives. The Congressional Trade Enforcer shall be appointed without regard to political affiliation and solely on the basis of fitness to perform the functions described in subsection (d).

(2) CONTINUED SERVICE.—An individual may serve as the Congressional Trade Enforcer for more than one term, and the person making the appointment under paragraph (1) should look favorably upon reappointing the individual serving as the Congressional Trade Enforcer. An individual serving as Congressional Trade Enforcer at the expiration of a term may continue to serve until a successor is appointed. The Congressional Trade Enforcer may be removed by either the House of Representatives or the Senate by resolution.

(3) COMPENSATION.—The Congressional Trade Enforcer shall receive compensation at an annual rate of pay that is equal to the lower of—

(A) the highest annual rate of compensation of any officer of the Senate; or

(B) the highest annual rate of compensation of any officer of the House of Representatives.

(c) Personnel.—The Congressional Trade Enforcer shall appoint and fix the compensation of such personnel as may be necessary to carry out the functions described in subsection (d). All personnel of the Office shall be appointed without regard to political affiliation and solely on the basis of their fitness to perform their duties. The Congressional Trade Enforcer may prescribe the duties and responsibilities of the personnel of the Office, and delegate to them authority to perform any of the duties, powers, and functions imposed on the Office. For purposes of pay (other than the pay of the Congressional Trade Enforcer) and employment benefits, rights, and privileges, all personnel of the Office shall be treated as if they were employees of the House of Representatives.

(d) Purpose and functions.—

(1) PURPOSE.—The purpose of the Congressional Trade Enforcer shall be to ensure compliance by trading partners of the United States with trade agreements to which the United States and such trading partners are parties.

(2) FUNCTIONS; ACTIONS BY USTR.—

(A) IN GENERAL.—The Congressional Trade Enforcer shall have the authority to investigate foreign trade practices that are barriers to United States exports and issue indictments in cases where such practices violate any of the Uruguay Round Agreements or any bilateral or regional trade agreement to which the United States is a party.

(B) SUBMISSION OF INDICTMENTS.—The Congressional Trade Enforcer shall submit indictments referred to in subparagraph (A) to the Committee on Ways and Means of the House of Representatives, the Committee on Finance of the Senate, and the United States Trade Representative.

(C) ACTION PURSUANT TO INDICTMENT.—Within 30 days after receiving an indictment under subparagraph (B), the Trade Representative should commence dispute resolution procedures in the appropriate forum against the country or countries that are the subject of the indictment unless—

(i) before the date of filing, the foreign country or countries involved enter into an agreement with the United States to eliminate the practice that is inconsistent with its international obligations; or

(ii) in extraordinary cases, the filing of the case would cause serious harm to the national security of the United States.

(D) REPORT.—If the Trade Representative does not commence dispute resolution procedures under subparagraph (C) pursuant to an indictment under subparagraph (B), the Trade Representative shall, not later than 60 days after receiving the indictment, submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report containing the reasons therefor and shall publish notice of the decision, together with a summary of such reasons, in the Federal Register.

(3) VOTE BY CONGRESSIONAL COMMITTEES.—During the 60-day period after the Trade Representative submits a report under subparagraph (D), the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate may each vote to indicate the agreement or disagreement of the committee with the decision of the Trade Representative not to commence dispute resolution procedures.

(4) DEFINITIONS.—In this subsection:

(A) INDICTMENT.—The term “indictment” means a formal written analysis setting forth the legal explanation of the manner in which a foreign trade practice of a country or countries violates any of the Uruguay Round Agreements or any bilateral or regional trade agreement to which the United States is a party.

(B) URUGUAY ROUND AGREEMENTS.—The term “Uruguay Round Agreements” means any of the agreements approved by the Congress under section 101(a)(1) of the Uruguay Round Agreements Act (19 U.S.C. 3511(a)(1)).

(e) Office of Market Access Assistance.—

(1) ESTABLISHMENT.—There is established in the Office of the Congressional Trade Enforcer an Office of Market Access Assistance.

(2) FUNCTIONS.—The Office of Market Access Assistance shall provide technical and legal assistance and advice to eligible small businesses to enable such small businesses to prepare and file petitions (other than those which, in the opinion of the Office of Market Access Assistance, are frivolous) under section 302 of the Trade Act of 1974.

(3) DEFINITION.—In this subsection, the term “eligible small business” means any business concern which, in the judgment of the Office of Market Access Assistance, due to its small size, has neither adequate internal resources nor financial ability to obtain qualified outside assistance in preparing and filing petitions and complaints under section 302 of the Trade Act of 1974. In determining whether a business concern is an “eligible small business,” the Office of Market Access Assistance may consult with the Administrator of the Small Business Administration and the heads of other appropriate Federal departments and agencies.

(f) Relationship to executive branch.—The Congressional Trade Enforcer is authorized to secure information, data, estimates, and statistics directly from the various departments, agencies, and establishments of the executive branch of Government and the regulatory agencies and commissions of the Government. All such departments, agencies, establishments, and regulatory agencies and commissions shall furnish the Congressional Trade Enforcer with any available material that the Congressional Trade Enforcer determines to be necessary in the performance of the functions of the Office. The Congressional Trade Enforcer is also authorized, upon agreement with the head of any such department, agency, establishment, or regulatory agency or commission, to use its services, facilities, and personnel, with or without reimbursement; and the head of each such department, agency, establishment, or regulatory agency or commission is authorized to provide to the Office such services, facilities, and personnel.

(g) Relationship to other agencies of Congress.—In carrying out the functions of the Office, and for the purpose of coordinating the operations of the Office with those of other congressional agencies with a view to using most effectively the information, services, and capabilities of all such agencies in carrying out the responsibilities assigned to each, the Congressional Trade Enforcer is authorized to obtain information, data, estimates, and statistics developed by the Government Accountability Office and the Library of Congress, and (upon agreement with them) to use their services, facilities, and personnel, with or without reimbursement. The Comptroller General and the Librarian of Congress are authorized to provide the Office with the information, data, estimates, and statistics, and the services, facilities, and personnel, referred to in the preceding sentence.

(h) Authorizations of appropriations.—There are authorized to be appropriated to the Office such sums as may be necessary for each fiscal year to carry out this section.

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

(a) Establishment of position.—Section 141(b)(2) of the Trade Act of 1974 (19 U.S.C. 2171(b)(2)) is amended to read as follows:

“(2) There shall be in the Office 3 Deputy United States Trade Representatives, 1 Chief Agriculture Negotiator, and 1 General Counsel. The 3 Deputy United States Trade Representatives, the Chief Agriculture Negotiator, and the General Counsel shall be appointed by the President, by and with the advice and consent of the Senate. As an exercise of the rulemaking of the Senate, any nomination of a Deputy United States Trade Representative, the Chief Agricultural Negotiator, or the General Counsel submitted to the Senate for its advice and consent, and referred to a committee, shall be referred to the Committee on Finance. Each Deputy United States Trade Representative, the Chief Agricultural Negotiator, and the General Counsel shall hold office at the pleasure of the President and shall have the rank of Ambassador.”.

(b) Functions of position.—Section 141(c) of the Trade Act of 1974 (19 U.S.C. 2171(c)) is amended—

(1) by aligning paragraph (5) with paragraph (4); and

(2) by adding at the end the following new paragraph:

“(6) The principal function of the General Counsel shall be to ensure that United States trading partners comply with trade agreements to which the United States and such trading partners are parties (including by investigating and prosecuting disputes before the World Trade Organization and pursuant to other trade agreements to which the United States is a party), to defend the United States in dispute settlement proceedings under such trade agreements, and otherwise to provide legal advice to the United States Trade Representative. The General Counsel shall perform such other functions as the United States Trade Representative may direct.”.

(c) Compensation.—Section 5314 of title 5, United States Code, is amended by inserting after “Chief Agricultural Negotiator” the following:

“ General Counsel.”.

SEC. 104. Identification of countries that maintain unfair technical barriers to trade or unfair sanitary or phytosanitary measures.

(a) Identification required.—

(1) IN GENERAL.—Chapter 8 of title I of the Trade Act of 1974 is amended by adding at the end the following:

“SEC. 183. Identification of countries that maintain unfair technical barriers to trade or unfair sanitary or phytosanitary measures.

“(a) In general.—Not later than the date that is 30 days after the date on which the annual report is required to be submitted to Congressional committees under section 181(b), the United States Trade Representative (in this section referred to as the ‘Trade Representative’) shall identify—

“(1) those foreign countries that maintain technical barriers to trade, or sanitary or phytosanitary measures, that deny fair and equitable market access to United States products; and

“(2) those foreign countries identified under paragraph (1) that are determined by the Trade Representative to be priority foreign countries.

“(b) Special rules for identifications.—

“(1) CRITERIA.—In identifying priority foreign countries under subsection (a)(2), the Trade Representative shall identify only those foreign countries—

“(A) that have the most onerous or egregious acts, policies, or practices that deny fair and equitable market access to United States products;

“(B) whose acts, policies, or practices described in subparagraph (A) have the greatest adverse impact (actual or potential) on the relevant United States products; and

“(C) that are not—

“(i) entering into good faith negotiations, or

“(ii) making significant progress in bilateral or multilateral negotiations,

to provide fair and equitable market access to United States products.

“(2) CONSULTATION AND CONSIDERATION REQUIREMENTS.—In identifying priority foreign countries under subsection (a)(2), the Trade Representative shall—

“(A) consult with the Secretary of Commerce, the Secretary of Agriculture, the Administrator of the Food and Drug Administration, and the heads of other appropriate Federal agencies; and

“(B) take into account information provided by such other sources as may be available to the Trade Representative and such information as may be submitted to the Trade Representative by interested persons, including information contained in reports submitted under section 181(b) and petitions submitted under section 302.

“(3) CONSIDERATION OF HISTORICAL FACTORS.—In identifying foreign countries under paragraphs (1) and (2) of subsection (a), the Trade Representative shall take into account—

“(A) the history of unfair technical barriers to trade and unfair sanitary or phytosanitary measures of the foreign country, including any previous identification under subsection (a)(2); and

“(B) the history of efforts of the United States, and the response of the foreign country, to remove unfair technical barriers to trade, or sanitary or phytosanitary measures, that deny fair and equitable market access to United States products.

“(c) Revocations and additional identifications.—

“(1) AUTHORITY TO ACT AT ANY TIME.—If information available to the Trade Representative indicates that such action is appropriate, the Trade Representative may at any time—

“(A) revoke the identification of any foreign country as a priority foreign country under this section; or

“(B) identify any foreign country as a priority foreign country under this section.

“(2) REVOCATION REPORTS.—The Trade Representative shall include in the semiannual report submitted to the Congress under section 309(3) a detailed explanation of the reasons for the revocation under paragraph (1) of the identification of any foreign country as a priority foreign country under this section.

“(d) Definitions.—In this section:

“(1) SANITARY OR PHYTOSANITARY MEASURE.—The term ‘sanitary or phytosanitary measure’ means a sanitary or phytosanitary measure as defined by Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures (described in section 101(d)(3) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(3)).

“(2) TECHNICAL BARRIERS TO TRADE.—The term ‘technical barriers to trade’ means technical regulations, standards, and conformity assessment procedures as defined by Annex 1 of the Agreement on Technical Barriers to Trade (described in section 101(d)(5) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(5)).

“(3) DENIAL OF FAIR AND EQUITABLE MARKET ACCESS.—

“(A) IN GENERAL.—A technical barrier to trade or a sanitary or phytosanitary measure may deny fair and equitable market access to United States products regardless of whether it is in violation of, or inconsistent with, the international legal rights of the United States.

“(B) EXAMPLES OF UNFAIR AND INEQUITABLE TECHNICAL BARRIERS TO TRADE.—A technical barrier to trade that denies fair and equitable market access to United States products may include, but is not limited to, one that—

“(i) is more restrictive than necessary to achieve a legitimate objective of the foreign country, or are applied more strictly than necessary;

“(ii) is not based on international standards, and there is no basis to conclude that the international standards would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued;

“(iii) fails to give positive consideration to equivalent technical regulations of the United States that adequately fulfil the objectives of the regulations of the foreign country;

“(iv) establishes requirements in terms of design or descriptive characteristics, rather than performance;

“(v) is not transparent, such as a measure that is not published or does not provide meaningful opportunity for comment; or

“(vi) unjustifiably discriminates or has the effect of discriminating between imported and domestically produced products, or products imported from different countries.

“(C) EXAMPLES OF UNFAIR AND INEQUITABLE SANITARY OR PHYTOSANITARY MEASURES.—A sanitary or phytosanitary measure that denies fair and equitable market access to United States products may include, but is not limited to, one that—

“(i) is not based on scientific principles or is maintained without sufficient scientific evidence;

“(ii) discriminates arbitrarily or unjustifiably where identical or similar conditions prevail, or is applied in a manner that would constitute a disguised restriction on international trade;

“(iii) is not based on an assessment of the risks to human, animal, or plant life or health, or does not take into account risk assessment techniques developed by any relevant international organizations; or

“(iv) is not transparent, such as a measure that is not published or does not provide meaningful opportunity for comment.

“(e) Publication.—The Trade Representative shall publish in the Federal Register a list of foreign countries identified under subsection (a) and shall make such revisions to the list as may be required by reason of action under subsection (c).

“(f) Annual report.—The Trade Representative shall, not later than the date by which countries are identified under subsection (a), transmit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, a report on the actions taken under this section during the 12 months preceding such report, and the reasons for such actions, including a description of progress made toward ensuring that technical barriers to trade and sanitary or phytosanitary measures do not deny fair and equitable market access for United States products.”.

(2) CLERICAL AMENDMENT.—The table of contents for the Trade Act of 1974 is amended by inserting after the item relating to section 182 the following:


“Sec. 183. Identification of countries that maintain unfair technical barriers to trade or unfair sanitary or phytosanitary measures.”.

(b) Actions by United States Trade Representative.—Section 301(d)(3)(B) of the Trade Act of 1974 (19 U.S.C. 2411(d)(3)(B)) is amended—

(1) in clause (ii), by striking “or” at the end;

(2) in clause (iii), by striking the period at the end and inserting “or”; and

(3) by adding at the end the following:

“(iv) are technical barriers to trade, or sanitary or phytosanitary measures, that deny fair and equitable market access to United States products.”.

(c) Initiation of investigations.—Section 302(b)(2) of the Trade Act of 1974 (19 U.S.C. 2412(b)(2)) is amended—

(1) in subparagraph (A), in the matter preceding clause (i), by inserting “or 183(a)(2)” after “section 182(a)(2);”;

(2) in subparagraph (D), by inserting “concerning intellectual property rights that is” after “any investigation”; and

(3) by adding at the end the following:

“(E) The Trade Representative shall consult with the Secretary of Commerce, the Secretary of Agriculture, the Administrator of the Food and Drug Administration, and the heads of other appropriate Federal agencies, during any investigation concerning technical barriers to trade or sanitary or phytosanitary measures that is initiated under this chapter by reason of subparagraph (A).”.

SEC. 201. Application of countervailing duties to nonmarket economy countries and strengthening application of the law.

(a) Application of countervailing duties to nonmarket economies.—Section 701(a)(1) of the Tariff Act of 1930 (19 U.S.C. 1671(a)(1)) is amended by inserting “(including a nonmarket economy country)” after “country” each place it appears.

(b) Recognition of countervailable subsidies in nonmarket economy countries.—Section 771(5)(C) of the Tariff Act of 1930 (19 U.S.C. 1677(5)(E)) is amended to read as follows:

“(C) OTHER FACTORS.—(i) The determination of whether a subsidy exists shall be made without regard to—

“(I) whether the recipient of the subsidy is publicly or privately owned;

“(II) whether the subsidy is provided directly or indirectly on the manufacture, production, or export of merchandise; and

“(III)(aa) whether the country is a nonmarket economy country, or

“(bb) the level of economic reforms in a country that is a nonmarket economy country,

at the time the subsidy is provided.

“(ii) The administering authority is not required to consider the effect of the subsidy in determining whether a subsidy exists under this paragraph.”.

(c) Use of alternate methodologies involving China.—Section 771(5)(E) of the Tariff Act of 1930 (19 U.S.C. 1677(5)(E)) is amended by adding at the end the following:

“If the administering authority encounters special difficulties in identifying and calculating the amount of a benefit under clauses (i) through (iv) with respect to an investigation or review involving the People’s Republic of China, irrespective of whether the administering authority determines that China is a nonmarket economy country under paragraph (18) of this section, the administering authority shall use methodologies to identify and calculate the amount of the benefit that take into account the possibility that terms and conditions prevailing in China may not always be available as appropriate benchmarks. In applying such methodologies, where practicable, the administering authority should take into account and adjust terms and conditions prevailing in China before using terms and conditions prevailing outside of China. If the administering authority has determined that China is a nonmarket economy country under paragraph (18) of this section, the administering authority shall presume that special difficulties exist in calculating the amount of a benefit under clauses (i) through (iv) with respect to an investigation or review involving China and that it is not practicable to take into account and adjust terms and conditions prevailing in China, and the administering authority shall use terms and conditions prevailing outside of China.”.

(d) Subsidies provided to state-owned enterprises in the People’s Republic of China.—Section 771(5A) of the Tariff Act of 1930 (19 U.S.C. 1677(5A)) is amended by adding at the end the following:

“For purposes of this paragraph, subsidies provided to state-owned enterprises in the People’s Republic of China shall be deemed to be specific if, inter alia, state-owned enterprises are the predominant recipients of such subsidies or state-owned enterprises receive disproportionately large amounts of such subsidies.”.

(e) Antidumping provisions not affected.—The amendments made by this section shall not affect the status of a country as a nonmarket economy country for the purposes of any matter relating to antidumping duties under subtitle B of title VII of the Tariff Act of 1930 (19 U.S.C. 1673 et seq.).

(f) Effective date.—The amendments made by this section apply to petitions filed under section 702 of the Tariff Act of 1930 (19 U.S.C. 1671a) on or after October 1, 2006.

SEC. 202. Treatment of individual business enterprises in nonmarket economy countries.

Section 771(18) of the Tariff Act of 1930 (19 U.S.C. 1677(18)) is amended—

(1) by redesignating subparagraphs (D) and (E) as subparagraph (E) and (F), respectively; and

(2) by inserting after subparagraph (C) the following:

    “(D) TREATMENT OF INDIVIDUAL BUSINESS ENTERPRISES.—The administering authority shall not consider requests for market economy treatment at the individual business enterprise level in an antidumping proceeding involving a foreign country determined to be a nonmarket economy country.”.

SEC. 203. Revocation of nonmarket economy country status.

(a) Amendment of definition of “nonmarket economy country”.—Section 771(18)(C)(i) of the Tariff Act of 1930 (19 U.S.C. 1677(18)(C)(i)) is amended to read as follows:

“(i) Any determination that a foreign country is a nonmarket economy country shall remain in effect until—

“(I) the administering authority makes a final determination to revoke the determination under subparagraph (A); and

“(II) a joint resolution is enacted into law pursuant to subsections (b) through (i) of section 203 of the Trade Enforcement Act of 2009.”.

(b) Notification by President; joint resolution.—Whenever the administering authority (as such term is defined in section 771(1) of the Tariff Act of 1930 (19 U.S.C. 1677(1)) makes a final determination under section 771(18)(C)(i)(I) of the Tariff Act of 1930 (as added by subsection (a) of this section) to revoke the determination that a foreign country is a nonmarket economy country—

(1) the President shall notify the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives of the administering authority’s final determination not later than 10 days after the publication of the final determination in the Federal Register;

(2) the President shall transmit to the Congress a request that a joint resolution be introduced pursuant to this section; and

(3) a joint resolution shall be introduced in the Congress pursuant to this section.

(c) Definition.—For purposes of this section, the term “joint resolution” means only a joint resolution of the 2 Houses of the Congress, the matter after the resolving clause of which is as follows: “That the Congress approves the change of nonmarket economy status with respect to the products of _____ transmitted by the President to the Congress on _____.”, the first blank space being filled in with the name of the country with respect to which a determination has been made under section 771(18)(C)(i) of the Tariff Act of 1930 (19 U.S.C. 1677(18)(C)(i)), and the second blank space being filled with the date on which the President notified the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives under subsection (b)(1).

(d) Introduction.—A joint resolution shall be introduced (by request) in the House of Representatives by the majority leader of the House, for himself, or by Members of the House designated by the majority leader of the House, and shall be introduced (by request) in the Senate by the majority leader of the Senate, for himself, or by Members of the Senate designated by the majority leader of the Senate.

(e) Amendments prohibited.—No amendment to a joint resolution shall be in order in either the House of Representatives or the Senate, and no motion to suspend the application of this subsection shall be in order in either House, nor shall it be in order in either House for the presiding officer to entertain a request to suspend the application of this subsection by unanimous consent.

(f) Period for committee and floor consideration.—

(1) IN GENERAL.—If the committee or committees of either House to which a joint resolution has been referred have not reported the joint resolution at the close of the 45th day after its introduction, such committee or committees shall be automatically discharged from further consideration of the joint resolution and it shall be placed on the appropriate calendar. A vote on final passage of the joint resolution shall be taken in each House on or before the close of the 15th day after the joint resolution is reported by the committee or committees of that House to which it was referred, or after such committee or committees have been discharged from further consideration of the joint resolution. If, prior to the passage by one House of a joint resolution of that House, that House receives the same joint resolution from the other House, then—

(A) the procedure in that House shall be the same as if no joint resolution had been received from the other House, but

(B) the vote on final passage shall be on the joint resolution of the other House.

(2) COMPUTATION OF DAYS.—For purposes of paragraph (1), in computing a number of days in either House, there shall be excluded any day on which that House is not in session.

(g) Floor consideration in the House.—

(1) MOTION PRIVILEGED.—A motion in the House of Representatives to proceed to the consideration of a joint resolution shall be highly privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

(2) DEBATE LIMITED.—Debate in the House of Representatives on a joint resolution shall be limited to not more than 20 hours, which shall be divided equally between those favoring and those opposing the joint resolution. A motion further to limit debate shall not be debatable. It shall not be in order to move to recommit a joint resolution or to move to reconsider the vote by which a joint resolution is agreed to or disagreed to.

(3) MOTIONS TO POSTPONE.—Motions to postpone, made in the House of Representatives with respect to the consideration of a joint resolution, and motions to proceed to the consideration of other business, shall be decided without debate.

(4) APPEALS.—All appeals from the decisions of the Chair relating to the application of the Rules of the House of Representatives to the procedure relating to a joint resolution shall be decided without debate.

(5) OTHER RULES.—Except to the extent specifically provided in the preceding provisions of this subsection, consideration of a joint resolution shall be governed by the Rules of the House of Representatives applicable to other bills and resolutions in similar circumstances.

(h) Floor consideration in the Senate.—

(1) MOTION PRIVILEGED.—A motion in the Senate to proceed to the consideration of a joint resolution shall be privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.

(2) DEBATE LIMITED.—Debate in the Senate on a joint resolution, and all debatable motions and appeals in connection therewith, shall be limited to not more than 20 hours. The time shall be equally divided between, and controlled by, the majority leader and the minority leader or their designees.

(3) CONTROL OF DEBATE.—Debate in the Senate on any debatable motion or appeal in connection with a joint resolution shall be limited to not more than 1 hour, to be equally divided between, and controlled by, the mover and the manager of the joint resolution, except that in the event the manager of the joint resolution is in favor of any such motion or appeal, the time in opposition thereto shall be controlled by the minority leader or his designee. Such leaders, or either of them, may, from time under their control on the passage of a joint resolution, allot additional time to any Senator during the consideration of any debatable motion or appeal.

(4) OTHER MOTIONS.—A motion in the Senate to further limit debate is not debatable. A motion to recommit a joint resolution is not in order.

(i) Rules of House of Representatives and Senate.—Subsections (c) through (h) are enacted by the Congress—

(1) as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such subsections (c) through (h) are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of joint resolutions described in subsection (c), and subsections (c) through (h) supersede other rules only to the extent that they are inconsistent therewith; and

(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.

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

(a) Findings.—Congress finds the following:

(1) The Contracting Parties of the General Agreements on Tariffs and Trade agreed in 1947, and the Members of the World Trade Organization (WTO) reaffirmed in 1994, that dumping, by which products of one country are introduced into the commerce of another country at less than fair value, “is to be condemned” if it causes or threatens material injury to, or materially retards the establishment of, a domestic industry.

(2) Since the adoption of the first United States antidumping law in 1921, the United States has treated groups of sales that are above “fair value” as not dumped (i.e., having a dumping margin of zero). Virtually every other government that applies antidumping measures has used a similar practice of “zeroing” sales above fair value.

(3) In a series of recent dispute settlement proceedings, the WTO Appellate Body has repeatedly overturned the rulings of several panels of antidumping experts that have found that the longstanding practice of zeroing is not inconsistent with the WTO agreements. The WTO Appellate Body has found that the United States is required to recognize “negative dumping” (the amount by which certain groups of sales may exceed “fair value”) and thereby imposed a new mandate that the United States must offset dumped sales.

(4) The United States has described these decisions of the WTO Appellate Body as “devoid of legal merit,”“fatally flawed,” and “very troubling.”

(5) Despite these criticisms, the U.S. Department of Commerce implemented the recommendations of the WTO Appellate Body by creating mandatory offsets for dumping with respect to certain comparisons made in antidumping investigations, effective February 22, 2007. The Department of Commerce did not make any other modifications to its methodologies to ensure that dumping is addressed fully and in all instances under United States antidumping law.

(b) Sense of Congress.—It is the sense of Congress that—

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

(A) restore the balance between rights and obligations that was struck during the Uruguay Round of Multilateral Trade Negotiations, as reflected in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, including by eliminating the requirement to offset dumped sales with non-dumped sales; and

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

(2) the Department of Commerce should revisit its decision to modify its methodology in antidumping investigations with respect to the calculation of the weighted-average dumping margin, effective February 22, 2007;

(3) a revised modification should seek to ensure that 100 percent of dumping is addressed under United States antidumping duty law and practice, while also ensuring that the United States complies with its WTO obligations.

(c) Requirements for agency action.—

(1) CHANGES IN ANTIDUMPING METHODOLOGY.—The Department of Commerce may not implement any revised methodology in antidumping investigations with respect to the calculation of weighted-average dumping margins unless and until the procedures set forth in section 123(g)(1) of the Uruguay Round Agreements Act (19 U.S.C. 3533(g)(1)) have been followed and completed.

(2) EFFECTIVE DATE OF MODIFICATION.—A final rule or other modification to which paragraph (1) applies may not go into effect before the end of the 60-day period beginning on the date on which consultations under section 123(g)(1)(E) of the Uruguay Round Agreements Act (19 U.S.C. 3533(g)(1)(E)) begin.

(3) VOTE BY CONGRESSIONAL COMMITTEES.—During the 60-day period described in paragraph (2), the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate may vote to indicate the agreement or disagreement of the committee with the proposed contents of the final rule or other modification. Any such vote shall not be binding on the department or agency which is implementing the rule or other modification.

(d) Grace Period for Original Modification.—The final modification announced in “Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final Modification,” 71 Fed. Reg. 77722 (December 27, 2006) shall remain in force until March 1, 2009. On that date, the Department of Commerce shall return to the methodology it applied before adopting the Final Modification, unless or until it issues a Revised Modification, in accordance with the procedures described in subsection (c).

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

(a) Findings.—Congress finds the following:

(1) The United States and other members of the World Trade Organization made clear when they established the World Trade Organization that the text of the WTO agreements, and not interpretations of those agreements by the Appellate Body or any other international tribunal, establishes the rights and obligations of WTO members. The WTO members determined that “in their findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations” in the text of an agreement. Instead, a dispute settlement panel is to make an “objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements”. The WTO members themselves, by a three-fourths majority, have the “exclusive authority” to adopt binding interpretations of the WTO agreements.

(2) Accordingly, in 1996, the WTO Appellate Body stated that past dispute settlement decisions “create legitimate expectations among WTO Members, and, therefore, should be taken into account where they are relevant to any dispute. However, they are not binding, except with respect to resolving the particular dispute between the parties to that dispute.”.

(3) In 2008, however, the Appellate Body criticized a dispute settlement panel for conducting its own objective assessment of a legal issue and refusing to follow the Appellate Body’s past interpretations of provisions of WTO agreements. The Appellate Body stated that it was “deeply concerned about the Panel’s decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues”.

(4) The notion that a dispute settlement panel is obligated to follow Appellate Body precedent, rather than its own objective assessment of the relevant WTO agreements, is inconsistent with the text of those agreements and ultimately may have a chilling effect on future negotiations to further open markets and strengthen the global trading system.

(b) Sense of Congress.—It is the sense of the Congress that the United States should state unequivocally that—

(1) it in inconsistent with the express mandate of limited authority to the WTO Appellate Body under the Understanding on Rules and Procedures Governing the Settlement of Disputes for the Appellate Body to establish a new legal standard that dispute settlement panels must apply in deciding cases; and

(2) a dispute settlement panel is obligated to follow the text of an agreement negotiated by the WTO members themselves, and not the “jurisprudence” of the WTO Appellate Body.

(c) Definitions.—In this section:

(1) WTO AGREEMENTS.—The term “WTO agreements” means the agreements approved by the Congress under section 101(a)(1) of the Uruguay Round Agreements Act (19 U.S.C. 3511(a)(1)).

(2) WTO MEMBER.—The term “WTO member” has the meaning given that term in section 2 of the Uruguay Round Agreements Act (19 U.S.C. 3501).

(3) APPELLATE BODY; DISPUTE SETTLEMENT PANEL.—The terms “Appellate Body” and “dispute settlement panel” have the meanings given those terms in section 121 of the Uruguay Round Agreements Act (19 U.S.C. 3531).

(4) UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES.—The term “Understanding on Rules and Procedures Governing the Settlement of Disputes” means the agreement described in section 101(d)(16) of the Uruguay Round Agreements Act (19 U.S.C. 3511(d)(16)).

SEC. 206. Clarification regarding material injury by reason of imports of subject merchandise.

Section 771(7) of the Tariff Act of 1930 (19 U.S.C. 1677(7)) is amended by adding at the end the following:

“(J) ADDITIONAL REQUIREMENTS.—In evaluating whether there is material injury, or threat thereof, by reason of imports of the subject merchandise, the Commission shall make its determination without regard to—

“(i) whether other imports would have replaced or are likely to replace subject imports if an order were issued or a suspension agreement were accepted under this title; or

“(ii) the effect of a potential order or suspension agreement on the domestic industry, except with respect to any finding required by subparagraph (F)(ii).”.

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

Section 421 of the Trade Act of 1974 (19 U.S.C. 2451) is amended—

(1) in subsection (a)—

(A) by inserting “any” before “increased duties”; and

(B) by striking “, to the extent and for such period” and all that follows to the end period and inserting “recommended by the International Trade Commission”;

(2) in subsection (e), in the second sentence, by striking “agreed upon by either group” and all that follows to the end period and inserting “shall be considered an affirmative determination under subsection (b)”;

(3) in subsection (f)—

(A) in the heading, by striking “on Proposed Remedies” and inserting “for Relief”;

(B) in the first sentence—

(i) by striking “the President or Trade Representative may consider as” and inserting “is to be considered”; and

(ii) by striking “the Commission shall propose” and inserting “the Commission shall recommend”; and

(C) in the second sentence, by striking “proposed action” and inserting “recommended action”;

(4) in subsection (g)(2)(B)—

(A) by striking “or may be considered by the President or the Trade Representative as” and inserting “or if the determination is considered to be”; and

(B) by striking “on proposed remedies” and inserting “for relief”;

(5) in subsection (h)—

(A) in the heading, by striking “Proposed measure and recommendation to the President” and inserting “Recommended Relief and Report by Trade Representative”;

(B) in paragraph (1)—

(i) by striking “measure proposed by the Trade Representative to be taken pursuant to subsection (a)” and inserting “relief recommended by the Commission under subsection (f)”; and

(ii) by striking “proposed measure” and inserting “recommended relief”;

(C) in paragraph (2), by striking “on the measure proposed by the Trade Representative” and all that follows to the end period and inserting “, shall transmit a report to the President recommending what action to take under subsection (k)”; and

(D) by adding at the end the following new paragraph:

“(3) The Trade Representative, after submitting a report to the President under paragraph (2), shall promptly make the report available to the public, excluding any proprietary or confidential information. The Trade Representative shall publish a summary of the report in the Federal Register.”;

(6) in subsection (i)—

(A) in the flush sentence at the end of paragraph (1), by striking “agreed upon by either group” and all that follows to the end period and inserting “shall be considered an affirmative determination of the Commission”; and

(B) by striking paragraphs (2), (3), and (4), and inserting the following:

“(2) On the date on which the Commission completes its determinations under paragraph (1), the Commission shall transmit a report on the determinations to the President and the Trade Representative, including the reasons for its determinations. If the determinations under paragraph (1) are affirmative or if the determinations are considered to be affirmative under paragraph (1), the Commission shall include in its report its recommendations on provisional relief to be taken to prevent or remedy the market disruption. Only those members of the Commission who agreed to the affirmative determinations under paragraph (1) are eligible to vote on the recommended provisional relief to prevent or remedy market disruption. Members of the Commission who did not agree to the affirmative determinations may submit, in the report, dissenting or separate views regarding the determination and any recommendation of provisional relief referred to in this paragraph.

“(3) The provisional relief referred to in paragraph (2) may include—

“(A) the imposition of or increase in any duty;

“(B) any modification, or imposition of any quantitative restriction on the importation of any article into the United States; or

“(C) any combination of actions under subparagraph (A) or (B).

“(4) If the determinations under paragraph (1) are affirmative or if the determinations are considered to be affirmative under paragraph (1), the Trade Representative shall, within 10 days after receipt of the Commission's report, transmit a report to the President recommending what action to take with respect to provisional relief under subsection (k).

“(5)(A) The President shall proclaim any provisional relief recommended by the Commission not later than 10 days after the date the President receives the report described in paragraph (4) from the Trade Representative.

“(B) Any provisional relief proclaimed by the President pursuant to a determination of critical circumstances shall remain in effect for a period not to exceed 200 days.

“(C) Provisional relief shall cease to apply upon the effective date of relief proclaimed under subsection (a), upon a decision by the President not to provide such relief under subsection (k), or upon a negative determination by the Commission under subsection (b).”;

(7) in subsection (j)—

(A) in paragraph (1), by striking “which the Trade Representative considers to be” and inserting “that is considered to be”; and

(B) by striking paragraph (2) and inserting the following:

“(2) If no agreement is reached with the People’s Republic of China pursuant to consultations under paragraph (1) in the time required for Presidential action under subsection (k), or if the President determines that an agreement reached pursuant to such consultations is not preventing or remedying the market disruption at issue in the time required for Presidential action under subsection (k), the President shall provide import relief in accordance with subsection (a).”;

(8) in subsection (k)—

(A) in the heading, by striking “Standard for presidential action” and inserting “Timing for presidential action; exceptions”;

(B) in paragraph (1), by striking “a recommendation from the Trade Representative” and all that follows to the end period and inserting “a report from the Trade Representative under subsection (h)(2), the President shall, pursuant to subsection (a), proclaim the relief recommended by the Commission”; and

(C) by amending paragraph (2) to read as follows:

“(2) The President may decline to proclaim relief pursuant to subsection (a), may proclaim relief pursuant to subsection (a) that differs from the relief recommended by the Commission, may decline to proclaim provisional relief pursuant to subsection (i), or may proclaim provisional relief pursuant to subsection (i) that differs from the relief recommended by the Commission—

“(A) only in extraordinary cases; and

“(B) only if the President determines that providing relief or provisional relief pursuant to subsection (a) or (i) or providing relief recommended by the Commission pursuant to subsection (a) or (i) would cause serious harm to the economic interests or to the national security of the of the United States.”;

(9) in subsection (l), by amending paragraph (1) to read as follows:

“(1) The President’s decision under subsection (k) shall be submitted to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives and shall be published in the Federal Register within 15 days of the decision. In the submission to the committees and in publication in the Federal Register, the President shall include the reasons for the decision and the scope and duration of any action taken. If the President takes action that differs from the action recommended by the Commission under subsection (f) or declines to take action pursuant to subsection (k)(2), the President shall state in detail the reasons for such action or inaction.”;

(10) by redesignating subsections (m) through (o) as subsections (n) through (p), respectively;

(11) by inserting after subsection (l) the following new subsection:

“(m) Implementation of action recommended by Commission.—(1) If the President takes action that differs from the action recommended by the Commission under subsection (f) or declines to take action pursuant to subsection (k)(2)(B)(i), the action recommended by the Commission under subsection (f) shall take effect (as provided in subsection (n)(2)) upon the enactment of a joint resolution described in paragraph (2) within the 90-day period beginning on the date on which the President’s decision is transmitted to the Congress pursuant to subsection (l).

“(2) For purposes of this section, the term ‘joint resolution’ means a joint resolution of the 2 Houses of the Congress, the sole matter after the resolving clause of which is as follows: ‘That the Congress does not approve the action taken by, or the determination of, the President under section 421 of the Trade Act of 1974, notice of which was transmitted to the Congress on ______.’, with the blank space being filled with the appropriate case number and date.

“(3) The provisions of section 152(b), (c), (d), (e), and (f) of the Trade Act of 1974 (19 U.S.C. 2192(b), (c), (d), (e), and (f)) shall apply to joint resolutions under this section.”;

(12) in subsection (n), as redesignated, by striking “Import relief under this section” and all that follows to the end period and inserting the following:

“(1) Except as provided in paragraph (2), import relief under this section shall take effect not later than 15 days after the President’s determination to provide such relief.

“(2) If the action recommended by the Commission takes effect pursuant to subsection (m), the President shall, within 15 days after the date of the enactment of the joint resolution referred to in subsection (m), proclaim the action recommended by the Commission under subsection (f). Such action shall take effect not later than 15 days after the date of the President’s proclamation.”;

(13) in subsection (o), as redesignated—

(A) in paragraph (1), by striking “6-month” and inserting “1-year”; and

(B) in paragraph (3), by inserting “or (m)” after “subsection (k)”; and

(14) in subsection (p), as redesignated—

(A) in paragraph (1), by inserting “or (m)” after “subsection (k);”; and

(B) in paragraph (3), by striking “subsection (m)” and inserting “subsection (n)”.

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

Pursuant to section 1902 of the North American Free Trade Agreement and section 408 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3438), any amendments made by this title to title VII of the Tariff Act of 1930 shall apply to goods from Canada and Mexico.

SEC. 209. Rule of construction.

The amendments made by this title shall not be construed to affect the interpretation of any provision of law amended by such sections as such provisions of law were in effect on the day before the date of the enactment of this Act.

SEC. 301. Definitions.

In this subtitle:

(1) COMMISSIONER.—Except as otherwise provided, the term “Commissioner” means the Commissioner responsible for U.S. Customs and Border Protection.

(2) INTERNATIONAL SUPPLY CHAIN.—The term “international supply chain” means the end-to-end process for transporting goods to or from the United States beginning with the point of origin (including manufacturer, supplier, or vendor) through the point of distribution to the destination.

(3) RELEVANT DEPARTMENTS AND AGENCIES.—The term “relevant departments or agencies” means—

(A) the Department of Agriculture;

(B) the Department of Commerce;

(C) the Department of Health and Human Services;

(D) the Department of Homeland Security;

(E) the Department of Transportation;

(F) the Consumer Product Safety Commission;

(G) the Environmental Protection Agency;

(H) the Federal Trade Commission; and

(I) any other appropriate department or agency, as determined by the Secretary, acting through the Commissioner, with responsibilities regarding the health or safety of goods.

(4) SECRETARY.—Except as otherwise provided, the term “Secretary” means the Secretary of the Treasury.

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

(a) Uniform system to uniquely identify imports and participants in the international supply chain.—

(1) ESTABLISHMENT.—The Secretary, acting through the Commissioner, shall, in consultation with the heads of the relevant departments and agencies, establish a government-wide, uniform data system to uniquely identify all goods imported or destined for importation into the United States and, with respect to such goods, all importers of record, foreign manufacturers, foreign processing facilities, foreign exporters, foreign suppliers, and ultimate consignees. The system shall contain unique identifiers for each participant in the international supply chain. The unique identifiers shall be incorporated into the International Trade Data System established under section 411(d) of the Tariff Act of 1930 and into the Automated Commercial Environment, so as to permit departments and agencies to share and exchange authorized data on such goods, importers, manufacturers, facilities, exporters, and suppliers.

(2) TIMING AND REPORTS.—The Secretary, acting through the Commissioner, shall—

(A) establish the uniform system under paragraph (1) not later than one year after the date of the enactment of this Act; and

(B) report to the Congress, not later than the end of the 120-day period beginning on such date of enactment, and each 120-day period thereafter until the uniform system has been established, on the progress in establishing the uniform system.

(b) Cargo information.—Section 343(a) of the Trade Act of 2002 (19 U.S.C. 2071 note) is amended—

(1) in paragraph (2), by striking the period and inserting the following: “and, in the case of cargo destined for importation into the United States, to ensure that the cargo complies with those requirements imposed by the laws and regulations of the United States with respect to health and safety that are administered by the Department of Agriculture, the Department of Health and Human Services, the Department of Transportation, the Environmental Protection Agency, the Consumer Product Safety Commission, the Federal Trade Commission, and other relevant departments and agencies of the United States.”; and

(2) in paragraph (3)(F), by striking “cargo safety and security and” and inserting the following: “cargo safety and security, for ensuring that imported goods comply with requirements under the laws and regulations of the United States relating to health and safety, as described in paragraph (2), and for targeting by U.S. Customs and Border Protection of cargo for failure to comply with such requirements, and for”.

(c) Development of health and safety rule sets for automated targeting system.—The Secretary, acting through the Commissioner, shall consult with the heads of the relevant departments and agencies to develop rule sets for identifying, including through the Automated Targeting System, cargo that violates laws or regulations of the United States with respect to health or safety that are administered by the relevant departments and agencies.

(d) Reports on International trade data system.—Section 411(d)(4)(B) of the Tariff Act of 1930 (19 U.S.C. 1411(d)(4)(B)) is amended by inserting before the semicolon the following: “, in particular the progress of the United States Customs and Border Protection, the Department of Health and Human Services, the Department of Transportation, the Environmental Protection Agency, the Consumer Product Safety Commission, the Federal Trade Commission, and other appropriate departments and agencies in implementing ITDS”.

SEC. 303. Interagency coordination.

(a) Access to ACE.—The Commissioner shall ensure that appropriate officials of the relevant departments and agencies have access to the Automated Commercial Environment for purposes of identifying cargo destined for importation into the United States as “high risk” with respect to public health or safety under the laws administered by those departments and agencies.

(b) Communication and response protocols.—The Secretary, acting through the Commissioner, shall take the necessary steps to implement protocols with the heads of the relevant departments and agencies that ensure rapid communication with and response by those departments and agencies upon the discovery of goods destined for importation into the United States that may pose a risk to public health or safety.

(c) Interdepartmental procedures; leveraging of resources at ports of entry.—The Secretary, acting through the Commissioner, shall, in consultation with the heads of the relevant departments and agencies—

(1) develop uniform interagency procedures, where appropriate, for clearing and controlling imported goods at ports of entry, including procedures to streamline the entry process and facilitate the exchange of information and intelligence, processing of samples, providing training (where necessary) to keep the relevant departments and agencies updated on import requirements at the border, and other forms of interagency cooperation; and

(2) take the necessary steps so that, in order to ensure that imported cargo does not pose risks to the public health or safety under laws administered by the relevant departments and agencies, personnel of the relevant department or agency or U.S. Customs and Border Protection officers are available to inspect and sample the cargo at the port of entry in the United States.

The Secretary shall enter into such arrangements as are appropriate to ensure that U.S. Customs and Border Protection officers are authorized to inspect and sample cargo under paragraph (2).

SEC. 304. Development of import safety program.

(a) Establishment.—The Secretary, acting through the Commissioner, shall, in consultation with the Advisory Committee on Import Safety and Intellectual Property Rights Enforcement established pursuant to section 362 of this Act, establish a voluntary government-private sector program (to be known as the “Import Safety Program”) to ensure that all goods in the international supply chain do not pose risks to public health or safety, and to facilitate the movement of such goods through the international supply chain. Under the program—

(1) eligible entities described in subsection (d) voluntarily agree to abide by the minimum requirements under subsection (b); and

(2) the Secretary agrees to expedite the movement of the goods of such persons through the inspection process and to provide other benefits to participants meeting or exceeding the requirements of the Import Safety Program.

(b) Minimum requirements.—

(1) IN GENERAL.—The Secretary, acting through the Commissioner, shall establish the minimum requirements for eligible entities described in subsection (d) seeking to participate in the Import Safety Program and review such requirements at least once every year and update such requirements as necessary. In establishing such requirements, the Secretary shall—

(A) require that each such eligible entity applying be a participant in the C–TPAT program under subtitle B of title II of the SAFE Port Act (in this section referred to as “C–TPAT”; 6 U.S.C. 961 et seq.); and

(B) incorporate standards for the following:

(i) Controls for ensuring the eligible entity’s compliance with health and safety standards under the laws and regulations of the United States for goods moved by the eligible entity through the international supply chain.

(ii) Tracking and maintaining records on goods moved by the eligible entity through the international supply chain.

(iii) Documentation of controls referred to in clause (i), including maintenance of testing results.

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

(v) Access by the Secretary to vendor and supplier information.

(vi) Such other factors as the Secretary determines are necessary.

(2) SPECIFIC REQUIREMENTS.—An applicant seeking to participate in the Import Safety Program must—

(A) demonstrate a history of moving cargo in the international supply chain in compliance with health and safety standards under the laws and regulations of the United States;

(B) have procedures in place to ensure that the cargo is not subject to an Import Alert of the Food and Drug Administration or to any voluntary or mandatory recall imposed because of a potential risk to public health or safety;

(C) have in place internal controls and product-testing regimes to ensure compliance with health and safety standards under the laws and regulations of the United States, including compliance by the applicant’s suppliers with such health and safety standards; and

(D) conduct an assessment of its supply chain based upon health and safety criteria established by the Secretary, acting through the Commissioner.

(c) Coordination.—The Secretary shall coordinate with the heads of the relevant departments and agencies for purposes of verifying the compliance of imported goods with health and safety standards under subsection (b)(1)(B)(i).

(d) Eligible entities.—Importers, producers, sellers, ultimate consignees, and other entities in the international supply chain and intermodal transportation system are eligible to apply to voluntarily enter into the Import Safety Program.

(e) Validation.—The Secretary, acting through the Commissioner, shall validate the compliance of each participant in the Import Safety Program with the requirements under this section. Such validation shall, to the extent practicable, be completed no later than 1 year after the applicant is accepted into the Import Safety Program, in accordance with a schedule and guidelines that the Secretary, acting through the Commissioner, shall establish.

(f) Revalidation.—The Secretary, acting through the Commissioner, shall develop and implement—

(1) a revalidation process for all participants in the Import Safety Program that shall be conducted not less frequently than once during each 5-year period after the initial validation under subsection (e); and

(2) an annual plan for revalidation that includes—

(A) performance measures;

(B) an assessment of the personnel needed to perform the revalidations; and

(C) the number of participants that will be revalidated during the following year.

SEC. 305. Information exchange process.

The Secretary, acting through the Commissioner, shall work with importers and other interested persons and other entities in the private and public sectors to develop a process through which—

(1) persons and other entities in the private and public sectors can report critical information relating to the safety of imported goods in a timely manner at one virtual location through existing information-sharing systems; and

(2) the Secretary can share such information with private and public entities, consistent with the protection of business confidential information.

SEC. 306. Training.

The Secretary, acting through the Commissioner, shall ensure that U.S. Customs and Border Protection personnel receive appropriate training in order to carry out this subtitle and the amendments made by this subtitle.

SEC. 307. Sanctions on certain suppliers.

(a) List of suppliers with inadmissable imported products.—Upon the development of unique identifiers under section 302(a), the Secretary, acting through the Commissioner, shall establish and maintain a list of importers of record, foreign manufacturers, foreign processing facilities, foreign exporters, and foreign suppliers whose imported products have been determined to be inadmissible into the United States or have been the subject of recalls in the United States because of violations of health or safety standards.

(b) Sanctions.—

(1) IN GENERAL.—The Secretary, acting through the Commissioner, shall establish sanctions to be imposed on entities on the list described in subsection (a), taking into account the number of occurrences on which the products of the entity concerned have been determined to be inadmissible or have been the subject of recalls in the United States and the severity of the violation of law that was the basis for such determination or recall. Such sanctions shall include the following:

(A) In the case of a first occurrence, an increase in the bond required to be posted for imports of the products of the entity concerned.

(B) Increased inspection of up to 100 percent of the products of the entity concerned, in the case of a second occurrence of a violation within 6 months after the first occurrence of the same violation; and

(C) A prohibition on imports of the products of an entity whose products have repeatedly been the subject of such a determination or recall, or in a case in which the products concerned caused bodily injury or death, for a period of time determined by the Secretary, acting through the Commissioner, but generally not less than 6 months or until the relevant department or agency with the authority to determine the admissibility of the products verifies that the banned products are in compliance with the relevant health or safety standards. Products subject to the prohibition shall be the same type of products as those determined to be inadmissible or subject to the recall, and any other type of product that is subject to the same standard as the one violated by the entity.

(2) DETERMINATION OF repeatedly.—In determining under paragraph (1)(C) whether the products of an entity have “repeatedly” been the subject of a determination of inadmissibility or recall, the Secretary, acting through the Commissioner, shall take into account not only the number of such determinations but the seriousness of the violation of health or safety standards that gave rise to any such determination.

(c) Availability to public.—

(1) IN GENERAL.—The Secretary, acting through the Commissioner, shall make public, including through the official website of U.S. Customs and Border Protection and, as appropriate, any other Federal department or agency website relating to health or safety matters, the names of all importers of record, foreign manufacturers, foreign processing facilities, foreign exporters, and foreign suppliers who have been made subject to a prohibition on imports under subsection (b)(1)(C) that has become final under subsection (f), and the products that are subject to the prohibition. If an entity subject to such a prohibition files, in the appropriate Federal court, an appeal of the determination of the Secretary imposing the prohibition, such appeal shall also be made public in accordance with the preceding sentence.

(2) UPDATING.—The information made public under paragraph (1) shall be updated as frequently as necessary to keep the information current.

(d) Alert system in ACE.—The Commissioner shall establish in the Automated Commercial Environment an alert system notifying the relevant departments and agencies of the identity of all importers of record, foreign manufacturers, foreign processing facilities, foreign exporters, and foreign suppliers described in subsections (a) and (b).

(e) Mitigating actions.—The Secretary, acting through the Commissioner, in consultation with the heads of the relevant departments and agencies, shall establish actions that an entity that is on the list established under subsection (a) or is subject to a sanction under subsection (b) may take to warrant removal from the list or removal of the sanction, as the case may be.

(f) Administrative appeal.—Any importer of record, foreign manufacturer, foreign processing facility, foreign exporter, or foreign supplier may appeal a decision of the Secretary under subsection (a) or (b) by filing the appeal not later than 30 days after the date of the decision. The Secretary shall issue a determination on the appeal not later than 90 days after the appeal is filed. The Secretary shall issue regulations establishing procedures for the appeals process under this subsection not later than 18 months after the date of the enactment of this Act.

SEC. 308. Report to Congress.

The Secretary, acting through the Commissioner, shall submit to the Congress, not later than September 30 of each year, a report on the actions taken to carry out this subtitle.

SEC. 311. Definitions.

In this subtitle:

(1) ADVISORY COMMITTEE.—The term “Advisory Committee” means the Advisory Committee on Import Safety and Intellectual Property Rights Enforcement established pursuant to section 362 of this Act.

(2) ASSISTANT SECRETARY FOR ICE.—The term “Assistant Secretary for ICE” means the Assistant Secretary for U.S. Immigration and Customs Enforcement.

(3) COMMISSIONER.—The term “Commissioner” means the Commissioner responsible for U.S. Customs and Border Protection.

(4) COUNTERFEITING; COUNTERFEIT GOODS.—

(A) COUNTERFEITING.—The term “counterfeiting” means activities related to production of or trafficking in goods, including packaging, that bear a spurious mark or designation that is identical to or substantially indistinguishable from a mark or designation protected under the trademark laws or related legislation. 

(B) COUNTERFEIT GOODS.—The term “counterfeit goods” means those goods described in subparagraph (A).

(5) CBP.—The term “CBP” means U.S. Customs and Border Protection.

(6) DIRECTOR.—The term “Director” means the Director of Intellectual Property Rights Enforcement of the Department of the Treasury established in section 312.

(7) ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS.—The term “enforcement of intellectual property rights” means activities to enforce copyrights, patents, trademarks, and other forms of intellectual property, including activities to control counterfeiting and piracy, and activities to enforce exclusion orders issued by the United States International Trade Commission by reason of any of subparagraphs (B) through (E) of subsection (a)(1) of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337(a)(1)(B) through (E)).

(8) EXCLUSION ORDER.—The term “exclusion order” means an order of the United States International Trade Commission issued under section 337 (d) or (e)of the Tariff Act of 1930 to exclude goods from entry into the United States.

(9) ICE.—The term “ICE” means U.S. Immigration and Customs Enforcement.

(10) PIRACY; PIRATED GOODS.—

(A) PIRACY.—The term “piracy” means activities related to production of or trafficking in unauthorized copies or phonorecords of works protected under copyright law or related legislation.

(B) PIRATED GOODS.—The term “pirated goods” means those copies or phonorecords described in subparagraph (A).

(11) SECRETARY.—Except as otherwise provided, the term “Secretary” means the Secretary of the Treasury.

SEC. 312. Director of Intellectual Property Rights Enforcement.

(a) Establishment.—There is established within the Department of the Treasury the position of Director of Intellectual Property Rights Enforcement.

(b) Appointment.—The Director shall be appointed by the Secretary, and shall be responsible to and shall report directly to the Deputy Secretary of the Treasury.

(c) Duties.—The Director shall—

(1) coordinate all activities of the Department of the Treasury involving the enforcement of intellectual property rights, with particular reference to the activities of CBP and ICE;

(2) oversee the development and implementation of the strategic plan for the enforcement of intellectual property rights required under section 313;

(3) coordinate the policy and regulatory changes set forth in chapter 4;

(4) serve as staff representative of the Department of the Treasury in interagency bodies with responsibility for coordination of activities involving the enforcement of intellectual property rights;

(5) conduct an evaluation of the effectiveness of the organizational structure of CBP for reducing the entry into the United States of counterfeit or pirated goods, goods in violation of exclusion orders, and other goods in violation of other intellectual property rights; and

(6) carry out other duties, as assigned by the Secretary or Deputy Secretary of the Treasury, to improve the effectiveness of the efforts of the Department of the Treasury under the laws within its jurisdiction with respect to enforcement of intellectual property rights.

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

(a) In general.—The Director shall develop, for approval by the Deputy Secretary of the Treasury, an annual strategic plan for the enforcement of intellectual property rights.

(b) Consultation.—In developing the annual strategic plan required under subsection (a), the Director shall consult with—

(1) the CBP coordinator of intellectual property enforcement activities and the ICE coordinator of intellectual property enforcement authorities appointed under section 314;

(2) all other entities within the Department of the Treasury with expertise and experience in the enforcement of intellectual property rights;

(3) the Advisory Committee;

(4) other agencies of the executive branch engaged in the enforcement of intellectual property rights, including any officials designated to coordinate such enforcement efforts on an interagency basis; and

(5) officials from foreign law enforcement agencies and international organizations, including the World Customs Organization, with experience and expertise in border control measures relating to the enforcement of intellectual property rights.

(c) Contents of plan.—The annual strategic plan shall set forth objectives, goals, and strategies for more effective use of the authorities of CBP and ICE relating to the enforcement of intellectual property rights, and shall—

(1) provide for specific measurement of the current effectiveness of enforcement tools, including targeting, examination, post-entry auditing, and penalty actions;

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

(3) identify best practices, both in the United States and abroad, in the enforcement of intellectual property rights, taking into account the practices of enforcement authorities of other countries, and implement those practices;

(4) identify and apply the specific performance measures to be used to evaluate the progress of CBP and ICE in improving the effectiveness of its efforts relating to the enforcement of intellectual property rights;

(5) address border control programs administered by CBP and ICE at ports of entry for passengers and freight, and at points of entry for postal and courier services, as well as for goods in transit through United States ports and in the process of being exported from the United States;

(6) recommend the optimal feasible allocation of human, financial, physical, and technological resources that CBP and ICE should use to achieve the goals of the annual strategic plan;

(7) report on the key activities of CBP and ICE during the preceding year in the enforcement of intellectual property rights; and

(8) contain such other information as the Director considers appropriate to convey what CBP and ICE will do, over the ensuing year, with respect to the enforcement of intellectual property rights and reduce the costs that violations of intellectual property rights impose on the United States economy and public safety.

(d) Submission to Congress.—Upon the approval of the annual strategic plan by the Deputy Secretary of the Treasury, the Deputy Secretary of the Treasury, after ensuring its consistency with relevant interagency strategic plans for the enforcement of intellectual property rights, shall transmit the annual strategic plan to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives, along with any recommendations of the Department of the Treasury for statutory changes or funding authorizations needed to improve the effectiveness of the Department’s efforts in the enforcement of intellectual property rights.

(e) Timing.—The Deputy Secretary of the Treasury shall submit the annual strategic plan under subsection (d) not later than 180 days after the date of the enactment of this Act and annually thereafter.

SEC. 314. CBP and ICE coordinators.

(a) CBP Coordinators.—

(1) APPOINTMENT.—The Commissioner shall appoint a CBP coordinator of intellectual property rights enforcement activities (in this chapter referred to as the “CBP Coordinator”), who shall report directly to the Commissioner.

(2) DUTIES.—The CBP Coordinator shall—

(A) assist the Director of Intellectual Property Rights Enforcement of the Department of the Treasury in the development of the annual strategic plan, and coordinate the implementation of those aspects of the plan that involve CBP;

(B) coordinate all efforts, at all ports of entry and elsewhere, carried out by CBP in the enforcement of intellectual property rights, including training and staffing;

(C) supervise the implementation of those aspects of the regulatory and policy reforms set out in this title that involve CBP; and

(D) carry out such other duties, as assigned by the Commissioner, the purpose of which is to improve the performance of CBP in the enforcement of intellectual property rights.

(b) ICE coordinator.—

(1) APPOINTMENT.—The Assistant Secretary for United States Immigration and Customs Enforcement shall appoint an ICE coordinator of intellectual property enforcement activities (referred to in this chapter as the “ICE Coordinator”), who shall report directly to the Assistant Secretary for ICE.

(2) DUTIES.—The ICE Coordinator shall—

(A) assist the Director of Intellectual Property Rights Enforcement of the Department of the Treasury in the development of the annual strategic plan, and coordinate the implementation of those aspects of the plan that involve ICE;

(B) coordinate all efforts carried out by ICE the enforcement of intellectual property rights, including training and staffing;

(C) supervise the implementation of those aspects of the regulatory and policy reforms set out in this title that involve ICE; and

(D) carry out such other duties, as assigned by the Assistant Secretary for ICE, the purpose which is to improve the performance of ICE in the enforcement of intellectual property rights.

SEC. 321. In general.

(a) Commissioner’s responsibilities.—The Commissioner, acting through the CBP Coordinator, shall undertake the initiatives provided in this chapter.

(b) CBP Coordinator’s responsibilities.—Except as otherwise provided in this chapter, the CBP Coordinator shall—

(1) prepare an annual report on activities carried out under this chapter; and

(2) provide the annual report to the Director of Intellectual Property Rights Enforcement of the Department of the Treasury in a timely manner that will permit its inclusion in the annual strategic plan prepared under section 313.

SEC. 322. Identification of certain unlawful goods.

(a) In general.—The Secretary, acting through the Commissioner, shall accelerate efforts to apply risk assessment modeling techniques to border enforcement activities to combat counterfeiting and piracy. These efforts shall include, but not be limited to—

(1) preparing a report and evaluation on CBP’s pilot project in risk assessment modeling with respect to shipments of counterfeit or pirated products;

(2) expanding the pilot project to include development of a rule set for the Automated Targeting System; and

(3) developing a plan for the development, testing, evaluation, and continuous improvement of risk assessment modeling techniques for purposes of targeting goods that violate intellectual property rights.

(b) Inclusion in strategic plan.—The report specified in subsection (a)(1), and the plan specified in subsection (a)(3), shall be included in the annual strategic plan that is prepared under section 313.

SEC. 323. Training in new technologies.

(a) Training of personnel.—The Commissioner shall consult with the Advisory Committee to determine the feasibility of training CBP personnel in the use of new technological means for detecting and identifying, at ports of entry, counterfeit and pirated goods, and goods that are the subject of exclusion orders, whether for entry into the United States or in transit to other destinations.

(b) Identification of technologies and sources of training.—In consultation with the Advisory Committee, the Commissioner shall identify—

(1) new technologies with the cost-effective capability to detect and identify goods described in subsection (a) at ports of entry, and

(2) economical sources of training CBP personnel in using such new technologies,

to the extent such training is determined to be feasible under subsection (a).

(c) Regulatory and policy changes.—The Comptroller General of the United States shall provide to the Congress a report analyzing the costs and benefits of allowing necessary regulatory and policy changes to enable the receipt of donations of hardware, software, equipment, and similar technologies, and the acceptance of training and other support services, from the private sector, to facilitate the achievement of the purposes of this section.

SEC. 324. Disclosure of information and samples of shipments to intellectual property owners.

The Commissioner shall make the necessary regulatory and policy changes to—

(1) increase disclosure to owners of copyrights, trademarks, patents, and other forms of intellectual property of information about shipments of goods that have been detained at ports of entry on suspicion that their importation into, or transit through, the United States would violate the intellectual property rights of the owners of those rights, including—

(A) disclosing the identities and contact information of all parties involved in the shipments, including importers, exporters, declarants, consignees, freight forwarders, and warehouse owners;

(B) providing documents relating to the shipments; and

(C) identifying points of origin and destination of the shipments; and

(2) improve the process of making available to representatives of owners of copyrights, trademarks, patents, and other forms of intellectual property, in an efficient and cost-effective manner, samples of shipments of goods suspected of infringing intellectual property rights, for the purpose of inspection or analysis.

SEC. 325. Improvements to recordation process.

(a) Improvements in recordation process.—The Commissioner shall make the necessary regulatory and policy changes to ensure that the system for recordation of copyrights, trademarks, and other forms of intellectual property that may be subject to recordation does not impede the rapid seizure of goods that infringe the rights of the owners of such copyrights, trademarks, and other forms of intellectual property.

(b) Simultaneous recordation.—

(1) IN GENERAL.—In consultation with the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, and the Register of Copyrights, the Commissioner shall provide a system whereby trademarks may be recorded with CBP simultaneously with the issuance of trademark registration, and whereby copyrights of audiovisual works and sound recordings may be recorded with CBP simultaneously with the filing of an application for a certificate of copyright registration or an application for registration of another intellectual property right under title 17, United States Code.

(2) DEFINITIONS.—In this subsection, the terms “audiovisual works” and “sound recordings” have the meanings given those terms in section 101 of title 17, United States Code.

SEC. 326. Identification of low-risk shippers.

(a) Voluntary certification program.—The Commissioner shall create a voluntary certification program, comparable to the Import Safety Program established under section 304, for low-risk shippers that have taken specific measures to strengthen and protect their supply chains to prevent the infiltration into the international supply chain of counterfeit and pirated goods, goods that are the subject to exclusion orders, and goods that violate other forms of intellectual property rights.

(b) Self-certifications; verifications.—The program under subsection (a) shall generally operate on a self-certification basis, except that the Commissioner shall identify any circumstances in which third party verifications and attestations are required for inclusion in the program, which may include importations from the People’s Republic of China.

(c) Expedited movement.—The Commissioner shall create incentives for shippers to participate in the certification program, including providing expedited movement of the goods of the shippers through the customs inspection process.

(d) Definition.—In this section, the term “international supply chain” has the meaning given that term in section 301.

SEC. 327. “Watch List” database.

(a) In general.—The Commissioner shall prepare a plan for the implementation of a “Watch List” database of importers, shippers, freight forwarders, and other participants in the import, export, and transshipment process, whose activities merit additional scrutiny at ports of entry with respect to the risk of importation or transshipment of counterfeit or pirated goods and goods that are the subject to exclusion orders.

(b) Working groups.—The Commissioner shall consult with the Advisory Committee on the development of criteria for the “Watch List” database.

(c) Information sources.—The plan under subsection (a) shall identify legitimate information sources for the database from within CBP, from other law enforcement sources, and from the private sector.

(d) Criteria for access to database.—The plan under subsection (a) shall specify criteria under which the database should be made available to qualified CBP and other law enforcement officers, for intelligence purposes, and for use in flagging and diverting for enhanced scrutiny shipments to ports of entry that are associated with entities listed in the database.

(e) Other matters.—The plan under subsection (a) shall identify any regulatory or policy changes that the Department of the Treasury would make in order to bring the database into operation, as well as any recommendations for needed changes to legislation to make the database more effective. The plan shall also include budget estimates for implementation and operation of the database, and for evaluation of its effectiveness, and a timetable for such implementation.

(f) Timing.—The Commissioner shall complete the plan in a timely fashion that will permit its inclusion in the first annual strategic plan prepared under section 313.

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

(a) Limitation on mitigation, dismissal, and vacation of fines.—Unless otherwise ordered by a court of competent jurisdiction, any civil fine imposed pursuant to section 526(f) of the Tariff Act of 1930 (19 U.S.C. 1526(f))—

(1) may not be mitigated, except pursuant to regulations issued by the Commissioner; and

(2) may not be dismissed or vacated, except pursuant to regulations issued by the Commissioner that require the specific approval of the Commissioner or the Commissioner’s designee for such dismissal or vacation.

(b) Extraordinary cases.—In issuing regulations under subsection (a), the Commissioner shall ensure that the mitigation, dismissal, or vacation of civil fines for involvement in the importation, exportation, or transshipment of pirated or counterfeit goods is limited to extraordinary cases in which the interests of justice will clearly be served by such action.

(c) Report to Congress.—The Commissioner shall, not later than 180 days after the date of the enactment of this Act, report to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives on the following:

(1) Whether CBP currently has the authority to employ effective collection techniques for collecting civil fines it imposes on participants in the importation, exportation, or transshipment of pirated or counterfeit goods.

(2) If CBP lacks such authority, the Commissioner’s recommendations for legislation to provide CBP with such authority.

(3) If CBP has such authority, how CBP is using such authority, and with what results in terms of increased collections of fines imposed.

(4) The Commissioner’s recommendations on whether, in specific cases, copyright or trademark owners should be authorized to pursue and collect fines imposed because of activities that infringe their intellectual property rights, and whether such copyright or trademark owners should be allowed to retain some or all of the funds that they collect.

(5) Any other recommendations for statutory, regulatory, or policy changes not under the control of CBP that would improve the ability of CBP to impose civil fines, at deterrent levels, on participants in trafficking in counterfeit or pirated goods, and to collect the fines imposed.

(d) Definition.—As used in subsection (c), the term “effective collection techniques” includes—

(1) confiscation of the proceeds of acts for which civil fines can be imposed;

(2) seizure of and execution upon property acquired with such proceeds;

(3) imposition of liens on the real or personal property of persons upon whom civil fines are imposed;

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

(5) piercing the corporate veil of corporations upon which civil fines are imposed, in order to satisfy the fine from the assets of natural persons or of other legal persons; and

(6) engaging private sector entities to collect civil fines imposed.

SEC. 331. International training and technical assistance enhancements.

The Secretary shall take the necessary steps—

(1) to increase staffing and resources of offices of CBP and ICE engaged in providing training and technical assistance to the customs services and enforcement agencies of other countries in order to improve the effectiveness of such foreign services and agencies in detecting, intercepting, and imposing deterrent penalties upon the export, import, or transshipment of counterfeit or pirated goods, goods that are the subject to exclusion orders, and goods that violate other forms of intellectual property rights;

(2) to ensure that the Director, in order to make the most efficient and effective use of training and technical assistance resources—

(A) coordinates the international training and technical assistance activities of CBP and ICE as part of the Director’s coordination responsibilities under subsections (c)(1) and (c)(3) of section 312;

(B) gives priority to such activities in those countries where such programs can be carried out most effectively and with the greatest benefit to protecting the intellectual property rights of United States right holders;

(C) takes steps to minimize duplication, overlap, or inconsistency of international training and technical assistance efforts; and

(D) coordinates such activities of the Department of the Treasury with international training and technical assistance activities against counterfeiting and piracy carried out by other agencies, and enhances the participation of Department of the Treasury personnel in interagency training and technical assistance activities in this field.

SEC. 341. Expanded prohibitions on importation or exportation of counterfeit or pirated goods.

Section 526 of the Tariff Act of 1930 (19 U.S.C. 1526) is amended—

(1) in the section heading, by inserting “or protected by copyright” after “trademark”;

(2) in subsection (e), by inserting “or exported from the United States” after “imported into the United States”;

(3) in subsection (f), by striking paragraph (1) and inserting the following:

“(1) Any person who engages in, directs, assists financially or otherwise, or aids and abets the importation or exportation of merchandise that is seized under subsection (e) of this section, or under regulations issued pursuant to section 603(c) of title 17, United States Code, shall be subject to a civil fine.”; and

(4) in subsection (f)—

(A) by redesignating paragraph (4) as paragraph (5); and

(B) by inserting after paragraph (3) the following:

“(4) When the seizure giving rise to the civil fine is made under circumstances indicating that the importation or exportation was for the purpose of sale or public distribution of the good seized, the maximum fine amounts set forth in paragraphs (2) and (3) shall be tripled.”.

SEC. 342. Declarations regarding counterfeit and infringing merchandise.

(a) Declarations.—Section 485(a) of the Tariff Act of 1930 (19 U.S.C. 1485(a)), is amended—

(1) in paragraph (1), by striking “Whether” and inserting “whether”;

(2) in paragraph (2), by striking “That” and inserting “that”;

(3) in paragraph (3)—

(A) by striking “That” and inserting “that”; and

(B) by striking “and” after the semicolon;

(4) in paragraph (4)—

(A) by striking “That” and inserting “that”; and

(B) by striking the period and inserting a semicolon; and

(5) by adding at the end the following:

“(5) that the merchandise being imported does not bear a mark that is counterfeit as that term is defined in section 45 of the Act of July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’; 15 U.S.C. 1127);

“(6) that the merchandise is not an infringing copy or phonorecord or one whose making would have constituted an infringement of copyright if title 17, United States Code, had applied; and

“(7) that the merchandise—

“(A) does not violate an exclusion order of the United States International Trade Commission under section 337 (d) or (e) by reason of any of subparagraphs (B) through (E) of subsection (a)(1) of section 337; or

“(B) infringe any other intellectual property right not covered by subparagraph (A) or by paragraph (5) or (6).”.

(b) Regulations.—The Secretary shall issue regulations requiring that the declarations required by paragraphs (5), (6), and (7) of section 485(a) of the Tariff Act of 1930 be made by all persons arriving in the United States with respect to articles carried on their person or contained in their baggage.

SEC. 351. Regulatory authority.

The Secretary may issue such regulations as are necessary to carry out this subtitle.

SEC. 361. Definitions.

In this subtitle:

(1) ASSISTANT SECRETARY FOR ICE.—The term “Assistant Secretary for ICE” means the Assistant Secretary for U.S. Immigration and Customs Enforcement.

(2) COMMISSIONER.—The term “Commissioner” means the Commissioner responsible for U.S. Customs and Border Protection.

(3) CBP.—The term “CBP” means U.S. Customs and Border Protection.

(4) ICE.—The term “ICE” means U.S. Immigration and Customs Enforcement.

(5) SECRETARY.—The term “Secretary” means the Secretary of the Treasury.

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

(a) Establishment.—

(1) IN GENERAL.—The Secretary, acting through the Commissioner and the Assistant Secretary for ICE, shall establish an advisory committee which shall be known as the “Advisory Committee on Import Safety and Intellectual Property Rights Enforcement” (in this section referred to as the “Advisory Committee)”.

(2) MEMBERSHIP.—The Advisory Committee shall consist of 20 members appointed by the Secretary. In making appointments to the Advisory Committee, the Secretary shall ensure that—

(A) the membership of the Advisory Committee is representative of the individuals and organizations affected by the enforcement of health or safety and intellectual property rights by CBP and ICE;

(B) at least one member of the Advisory Committee is a representative of organized labor;

(C) at least one member of the Advisory Committee is a representative of consumer groups; and

(D) a majority of the members of the Advisory Committee do not belong to the same political party.

(b) Duties.—The Advisory Committee shall—

(1) provide advice to the Secretary, the Commissioner, and the Assistant Secretary for ICE on all matters involving the enforcement of import safety and intellectual property rights by CBP and ICE; and

(2) submit an annual report to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives that shall—

(A) describe the operations of the Advisory Committee during the preceding year; and

(B) set forth any recommendations of the Advisory Committee regarding the enforcement of intellectual property rights by CBP and ICE.

(c) Presiding officers.—The Commissioner and the Assistant Secretary for ICE shall preside over meetings of the Advisory Committee.

SEC. 363. Staffing Enhancements at CBP.

(a) Authorization of appropriations.—There are authorized to be appropriated to CBP such funds as may be necessary for additional personnel (as determined in accordance with the Resource Allocation Model established pursuant to section 301(h) of the Customs Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075(h)) to carry out the additional responsibilities of CBP under this title regarding the importation, transshipment, and exportation of counterfeit or pirated goods, goods that are the subject to exclusion orders, goods that violate other forms of intellectual property rights, and goods that violate United States health or safety laws.

(b) Amendment.—Section 301(h)(1) of the Customs Procedural Reform and Simplification Act of 1978 (19 U.S.C. 2075(h)) is amended—

(1) in subparagraph (F), by striking “and” at the end;

(2) in subparagraph (G), by striking the period at the end and inserting “; and”; and

(3) by adding at the end the following:

“(H) enforcing provisions of law relating to health and safety.”.

SEC. 364. Staffing enhancements at ICE.

There are authorized to be appropriated to ICE such funds as may be necessary for additional personnel to carry out the additional responsibilities of ICE under this title regarding the enforcement of United States health and safety laws and the enforcement of intellectual property rights, including for developing and implementing a training program with respect to United States health and safety laws and intellectual property rights for each ICE attaché office outside the United States.

SEC. 371. Authorization of appropriations.

There are authorized to be appropriated for each fiscal year such sums as may be necessary to carry out this title and the amendments made by this title.