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Generalized System of Preferences (GSP): Overview and Issues for Congress

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Order Code RL33663 Generalized System of Preferences: Background and Renewal Debate Updated September 25October 29, 2008 Vivian C. Jones Specialist in International Trade and Finance Foreign Affairs, Defense, and Trade Division Generalized System of Preferences: Background and Renewal Debate Summary The Generalized System of Preferences (GSP) provides duty-free tariff treatment to certain products imported from designated developing countries. The United States, the European Union, and other developed countries implemented such programs in the 1970s in order to promote economic growth in developing countries by stimulating their exports. The U.S. program (as established by Title V of the Trade Act of 1974) was extended until December 31, 2008, in section 8002 of P.L. 109-432 for all GSP beneficiary countries not covered by the African Growth and Opportunity Acceleration Act of 2004 (P.L.108-274, extended GSP benefits for AGOA beneficiary countries through September 30, 2015). On February 7, 2008, House Ways and Means Chairman Rangel introduced H.R. 5264, a bill seeking to further extend the Generalized System of Preferences and other trade preference programs, such as the Andean Trade Preference Act (ATPA), until September 30, 2010. As passed by the House on February 27 and the Senate on February 28, the law extends only the ATPA for an additional ten months, until December 31, 2008 (P.L. 110-191). Therefore, the GSP and ATPA will expire at the end of 2008, unless renewed by On September 29, 2008, the House passed H.R. 7222 (Rangel), a bill seeking to renew the Andean preference and the GSP until December 31, 2009. The bill passed in the Senate on October 2, 2008, and was signed by the President on October 16, 2008 (became P.L. 110-436). Since the GSP was only renewed for one year, its renewal beyond that date will likely be a legislative issue during the first session of the 111th Congress. In the 109th Congress, renewal of the GSP was somewhat controversial, owing, in part, to concerns of some that some of the more advanced beneficiary developing countries (such as India and Brazil) were contributing to the impasse in multilateral trade talks in the World Trade Organization (WTO) Doha Round. Compromise language worked out between the House and Senate extended the GSP for two years for all countries, while directing that the President should revoke “competitive need limitation” waivers for products from certain countries, based on the criteria specified. The Bush Administration favored GSP renewal, but also appeared willing to continue to review and modify the program in response to congressional concerns. To that end, during the process of the 2006 annual review, the USTR and other administration officials examined whether to limit, suspend, or withdraw the eligibility of 13 major GSP beneficiaries based on certain criteria. No countries lost overall GSP eligibility as a result of the review, but, as recommended in the legislation that reauthorized GSP, officials examined all 83 previously granted waivers of competitive need limits (triggered by import volumes) and withdrew several of them — including those granting duty-free imports of jewelry from India and Thailand, and brake parts from Brazil. New waivers granted included one for hooked rugs from India and one for radial tires from Thailand. This report presents, first, a brief history, economic rationale, and legal background leading to the establishment of the GSP. A brief comparison of GSP programs worldwide, especially as they compare to the U.S. system, is also presented. Second, the U.S. implementation of the GSP is discussed, along with the present debate surrounding its renewal and legislative developments to date. Third, an analysis of the U.S. program’s effectiveness and the positions of various stakeholders are presented. Fourth, possible implications of the expiration of the U.S. program and other possible options for Congress are discussed. This report will be updated as events warrant. Contents History and Rationale of the GSP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Economic Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 International Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Comparison of International GSP Programs . . . . . . . . . . . . . . . . . . . . . . . . . 7 U.S. Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Beneficiary Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Least-Developed Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Competitive Need Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Rules of Origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Annual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Graduation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 110th Congress Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Renewal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 2007 Annual GSP Review Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Other Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Effectiveness of GSP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Effects on Developing Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Economic Effects on the U.S. Market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Stakeholders’ Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 “Special and Differential Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Erosion of Preferential Margins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Under-Utilization of GSP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Trade as Foreign Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Lower Costs of Imports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Conclusion and Options for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Allow GSP To Expire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Scrap GSP in Favor of Free-Trade Agreements or Regional Trading Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Authorize GSP Only for Least-Developed Countries . . . . . . . . . . . . . . . . . 30 Modify GSP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Restrict Application of Preference . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Expand Application of GSP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 List of Figures Figure 1. U.S. Imports from GSP Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 List of Tables Table 1. Dutiable and Duty-Free Tariff Lines in Harmonized Tariff Schedule by Product Category . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Table 2. Products for Which Competitive Need Limits Were Revoked in the 2006 and 2007 Annual Reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Table 3. GSP Product Imports from Leading BDCs, 2007 . . . . . . . . . . . . . . . . . 32 Table 4. Leading GSP Beneficiaries and Total, 2007 . . . . . . . . . . . . . . . . . . . . . 34 Table 5. GSP Implementation and Extensions, 1975 - 2008 . . . . . . . . . . . . . . . 35 Table 6. Beneficiary Developing Countries and Regions for Purposes of the Generalized System of Preferences (GSP), and Additional Qualifying Preference Programs, July 1, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Generalized System of Preferences: Background and Renewal Debate The Generalized System of Preferences (GSP) provides preferential tariff treatment to certain products imported from designated developing countries. The United States, the European Union, and other developed countries implemented such programs in the 1970s in order to promote economic growth in developing countries by stimulating their exports. The U.S. program (as established by Title V of the Trade Act of 1974) was extended through December 31, 2008, in section 8002 of P.L. 109-432. The African Growth and Opportunity Acceleration Act of 2004 (P.L. 108-274) had previously extended GSP preferences for all beneficiary developing sub-Saharan African countries under the African Growth and Opportunity Act (AGOA) through September 30, 2015.1 Congress extended the GSP until the end of December 2008. In the 110th Congress, the House Ways and Means Committee and the Senate Finance Committee expressed interest in examining the effectiveness of the GSP and other trade preference programs. The Senate Finance Committee held two hearings (one on May 16, 2007 and one on June 12, 2008) on the effectiveness of trade preference programs with a view toward extending and reforming the GSP and other preferences. The December 2006 - enacted GSP extension, along with renewal of certain other preferential programs, was included in H.R. 6406 (Thomas), a tariff and trade bill introduced in the post-election session of the 109th Congress. The bill, as approved by the House, was appended to the engrossment of the House amendment of the Senate amendment to H.R. 6111 (see Title VIII). House and Senate compromise legislation extended the GSP for two years for all countries, while directing that the President “should” revoke “competitive need limitation” waivers that have been in effect for five years or more if imports under the waiver reached certain thresholds during the preceding calendar year. This report presents, first, a brief history, economic rationale, and legal framework behind establishment of the Generalized System of Preferences, and a brief comparison of GSP programs worldwide. Second, a description of U.S. implementation of the GSP program is presented, along with recent legislative developments and the debate surrounding its renewal. Third, a brief analysis of the U.S. program’s effectiveness and the positions of various stakeholders are discussed. 1 19 U.S.C. 2466b, as amended by section 7 of the AGOA Acceleration Act of 2004 (P.L. 108-274). CRS-2 Fourth, possible implications of GSP expiration and other options for Congress are mentioned. History and Rationale of the GSP The basic principle behind the GSP is to provide certain goods originating in developing countries with preferential market access (usually in the form of lower tariff rates or duty-free status) to developed country markets in order to spur economic growth. The program was first adopted internationally in 1968 by the United Nations Conference on Trade and Development (UNCTAD) at the UNCTAD II Conference.2 Economic Basis The GSP was established based on an economic theory that preferential tariff rates in developed country markets could promote export-driven industry growth in developing countries. It was believed that this, in turn, would help to free beneficiaries from heavy dependence on trade in primary products, whose slow longterm growth and price instability contributed to chronic trade deficits.3 It was thought that only the larger markets of industrialized trading partners were large enough to provide enough economic stimulus to attain these goals.4 Some economists also mention that the Generalized System of Preferences was established, in part, as a means of reconciling two widely divergent economic perspectives of trade equity that arose during early negotiations on the General Agreement on Tariffs and Trade (GATT).5 Industrialized, developed nations argued that the most-favored-nation principle6 should be the fundamental principle governing multilateral trade, while lesser-developed countries believed that equal treatment of unequal trading partners did not constitute equity and called for “special 2 U.N. Conference on Trade and Development, “About GSP,” at [http://www.unctad.org]. In addition to the United States, the European Union and 11 other industrialized countries — Australia, Belarus, Bulgaria, Canada, Japan, New Zealand, Norway, Switzerland, and the Russian Federation — currently have GSP programs. 3 OECD Secretary-General. The Generalized System of Preferences: Review of the First Decade. Organization of Economic Cooperation and Development, 1983, p. 9 (hereinafter OECD GSP Review). 4 Ibid. 5 Sapir, A. and L. Lundberg, “The U.S. Generalized System of Preferences and its Impacts,” in R. Baldwin and A. Krueger (eds.) The Structure and Evolution of Recent U.S. Trade Policy, Chicago: The University of Chicago Press, 1984. 6 The most-favored-nation principle means that countries must treat imports from other trading partners on the same basis as that given to the most favored other nation. Therefore, with certain exceptions (including GSP, regional trading arrangements, and free trade agreements), every country gets the lowest tariff that any country gets, and reductions in tariffs to one country are provided also to others. The term “most-favored-nation” has been changed in U.S. law to “normal trade relations.” CRS-3 and differential treatment” for developing countries. GSP schemes thus became one of the means of offering a form of special treatment that developing nations sought while allaying the fears of developed countries that tariff “disarmament” might create serious disruptions in their domestic markets.7 Due to differences in developed countries’ economic structures and tariff programs — as well as different domestic industries and products each wanted to shield from such competition — it proved difficult to create one unified system of identical tariff concessions. Therefore, the GSP became a system of individual national schemes based on common goals and principles — each with a view toward providing developing countries with generally equivalent opportunities for export growth.8 As a result, the preference-granting countries implemented various individual schemes of temporary, generalized, non-reciprocal, non-discriminatory preferences under which tariffs were lowered or eliminated on certain imports from developing countries. As a condition for providing such tariff preferences, GSP preference-granting countries reserved the right to (1) exclude certain countries; (2) determine product coverage; (3) determine rules of origin governing the preference; (4) determine the duration of the scheme; (5) reduce any preferential margins accruing to developing countries by continuing to lower or remove tariffs as a result of multilateral negotiations; (6) prevent the concentration of benefits among a few countries; and (7) include safeguard mechanisms or “escape” clauses.9 Although GSP programs were intended to be temporary, an international legal framework under the GATT (as discussed below) was developed to allow these programs to continue. Additionally, many developed countries have also decided to grant additional market access, through GSP or other preferential programs, to products of countries they designate as least-developed countries (LDCs). At the sixth World Trade Organization (WTO) Ministerial Conference in Hong Kong in December 2005, developed country WTO members and “developing country members declaring themselves in a position to do so” agreed to deepen this commitment by providing “duty-free and quota-free market [DFQF] access on a lasting basis, for all products originating from all least developed countries by 2008 or no later than the start of the implementation period in a manner that ensures stability, security and predictability.”10 Members “facing difficulties” with providing such access would be permitted to exempt 3% of all tariff lines, provided they take steps to achieve the goal of total duty- and quota-free access by incrementally building on the list of covered products.11 Since DDA talks have been suspended, this duty-free/quota-free offer is in jeopardy. 7 OECD GSP Review, p. 11. 8 Ibid., p. 10. 9 Wall, David. “Problems with Preferences.” International Affairs, vol. 47, October 1971, p. 95. 10 World Trade Organization. Ministerial Declaration, Annex F. December 18, 2005, WT/MIN(05)/DEC. 11 Ibid. CRS-4 International Legal Framework12 Because it is a preference program, by its very nature, the GSP posed a problem under the GATT in that the granting of preferences would be facially inconsistent with the fundamental obligation placed on GATT Parties in GATT Article I:1 to grant most-favored-nation (MFN) tariff treatment to the products of all other GATT Parties. As noted, however, preference programs were viewed as vehicles of trade liberalization and economic development for developing countries. Thus, GATT Parties accommodated them in a series of joint actions. In 1965, the GATT Parties added Part IV to the General Agreement, an amendment that recognizes the special economic needs of developing countries and asserts the principle of non-reciprocity. Under this principle, developed countries forego the receipt of reciprocal benefits for their negotiated commitments to reduce or eliminate tariffs and restrictions on the trade of less developed contracting parties.13 Because of the underlying MFN issue, GATT Parties in 1971 adopted a waiver of Article I for GSP programs, which allowed developed contracting parties to accord more favorable tariff treatment to the products of developing countries for ten years.14 The GSP was described in the decision as a “system of generalized, nonreciprocal and non-discriminatory preferences beneficial to the developing countries.” At the end of the Tokyo Round of Multilateral Trade Negotiations in 1979, developing countries secured adoption of the Enabling Clause, a permanent deviation from MFN by joint decision of the GATT Contracting Parties.15 The Clause states that notwithstanding GATT Article I, “contracting parties may accord differential and more favourable treatment to developing countries, without according such treatment to other contracting parties” (¶1) and applies this exception to: (a) Preferential tariff treatment accorded by developed contracting parties to products originating in developing countries in accordance with the Generalized System of Preferences; 12 This section was written by Jeanne Grimmett, Legislative Attorney, American Law Division. For further discussion of trade preference programs in light of obligations under the General Agreement on Tariffs and Trade (GATT), see CRS Report RS22183, Trade Preferences for Developing Countries and the WTO, by Jeanne J. Grimmett [hereinafter CRS Report RS22183]. 13 Edmond McGovern, International Trade Regulation ¶ 9.212 (updated 1999)[hereinafter McGovern]. Part IV is generally viewed as non-binding, though some have argued otherwise with regard to certain of its provisions. Id.; John H. Jackson, William J. Davey & Alan O. Sykes, Jr., Legal Problems of International Economic Relations 1171 (4th ed. 2002). 14 GATT, Generalized System of Preferences; Decision of 25 June 1971, L/3545 (June 28, 1971), available at [http://www.wto.org/gatt_docs/English/SULPDF/90840258.pdf]. 15 GATT, Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries; Decision of 28 November 1979, L/4903 (December 3, 1979)(footnotes omitted), available at [http://www.wto.org/gatt_docs/English/SULPDF/ 90970166.pdf] [hereinafter Enabling Clause]. CRS-5 (b) Differential and more favorable treatment with respect to the provisions of the General Agreement concerning non-tariff measures governed by the provisions of instruments multilaterally negotiated under the auspices of the GATT; (c) Regional or global arrangements entered into amongst less-developed contracting parties for the mutual reductions or elimination of tariffs and, in accordance with criteria or conditions which may be prescribed by the CONTRACTING PARTIES for the mutual reduction or elimination of non-tariff measures, on products imported from one another; (d) Special treatment on the least developed among the developing countries in the context of any general or specific measures in favour of developing countries (¶ 2). To describe the GSP, the Clause refers to the above-quoted description in the 1971 waiver, i.e., a “system of generalized, non-reciprocal and non-discriminatory preferences beneficial to the developing countries.”16 Among other things, the Clause further provides, at ¶ 3(c), that any differential and more favorable treatment provided under the Clause “shall in the case of such treatment accorded by developed contracting parties to developing countries be designed and, if necessary, modified, to respond positively to the development, financial and trade needs of developing countries.” In addition, if a GATT Party (now WTO Member) who has instituted a GSP program subsequently takes action “to introduce modification or withdrawal of the differential treatment so provided,” the Member is required to notify and consult with other WTO Members. Specifically, ¶ 4(a) requires the acting Member to notify WTO Members as a whole and to “furnish them with all the information they may deem appropriate relating to such action.” Further, under ¶ 4(b), the Member must “afford adequate opportunity for prompt consultations at the request of any interested contracting party with respect to any difficulty or matter that may arise.” If requested by any such interested party, WTO Members must as a whole consult with all WTO Members concerned over the issue at hand with the aim of reaching a solution that is satisfactory to all such Members. This requirement does not affect any Member’s rights under the GATT.17 Paragraph 7 of the Clause provides that the less-developed WTO Members “expect that their capacity to make contributions or negotiated concessions or take other mutually agreed action under the provisions and procedures of the General Agreement would improve with their progressive development of their economies and improvement in their trade situation and they would accordingly expect to participate more fully in the framework of rights and obligations under the General Agreement.” This paragraph is generally considered to support the “graduation”of a beneficiary country out of a grantor’s GSP program by the grantor, either entirely or with respect to particular products, once the beneficiary country has attained a 16 Id. at ¶ 2, note 3. 17 Id. at ¶ 4, note 1. CRS-6 certain level of economic development.18 The Enabling Clause does not contain express criteria or procedures for graduation, however, leaving grantor countries to establish criteria on a unilateral basis. The Enabling Clause also states that it “would remain open for the CONTRACTING PARTIES to consider on an ad hoc basis under the GATT provisions for joint action any proposals for differential and more favourable treatment not falling within the scope of this paragraph,” that is, a program that does not fit within one of the four categories described above.19 This provision suggests the use of GATT waivers for more ambitious programs; in practice, waivers have been adopted for a variety of such programs, including several U.S. non-GSP tariff preferences.20 The Enabling Clause was incorporated into the GATT 1994 upon the entry into force of the Uruguay Round agreements on January 1, 1995.21 In 1999, the WTO General Council adopted a decision, captioned “Preferential Tariff Treatment for Least-Developed Countries,” which waived GATT Article I:1 until June 30, 2009, “to the extent necessary to allow developing country Members to provide preferential tariff treatment to products of least-developed countries, designated as such by the United Nations, without being required to extend the same tariff rates to like products of any other Member.”22 Along with setting out various standards and notification 18 Note also ¶ 4 of the Enabling Clause requiring grantors to notify GATT parties in the event of modification or withdrawal of GSP benefits. See generally Simon Lester, The Asian Newly Industrialized Countries to Graduate from Europe’s GSP Tariffs, 36 Harv. Int’l L. J. 220 (1995); Gregory O. Lunt, Graduation and the GATT: The Problem of the NICs, 31 Colum. J. Transnat’l L. 611 (1994); Robert E. Hudec, GATT and the Developing Countries, 1992 Colum. Bus. L. Rev. 67. 19 Enabling Clause, supra note 15, at ¶ 2, note 2. 20 CRS Report RS22183, supra note 12, at 3-4. The United States has pending waiver requests for the Caribbean Basin Economic Recovery Act, as amended by the United StatesCaribbean Trade Partnership Act (through September 30, 2008), the Andean Trade Preference Act, as amended by the Andean Trade Promotion and Drug Eradication Act (through December 31, 2006), and the African Growth and Opportunity Act (through September 30, 2015). Some WTO Members, e.g., China and Pakistan, have expressed concerns regarding U.S. treatment of textiles in these programs, while Paraguay has objected to the U.S. request in part because of its exclusion from the Andean preference scheme. See Goods Council approves waiver for EC’s trade preference scheme for the Western Balkans, WTO News Item, July 18, 2006, at [http://www.wto.org/english/news_e/news06_e/ gc_july06_e.htm]; Minutes of the Meeting of the Council for Trade in Goods, May 9, 2006, at 3-11, G/C/M/84 (June 29, 2006); Minutes of the Meeting of the Council for Trade in Goods, March 10, 2006, at 3-13, G/C/M/83 (May 1, 2006). 21 Agreement Establishing the World Trade Organization, Annex 1A, General Agreement on Tariffs and Trade 1994, ¶ 1(b)(iv); see Appellate Body Report, European Communities — Conditions for the Granting of Tariff Preferences to Developing Countries, ¶ 90.3, WT/DS246/AB/R (April 7, 2004)[hereinafter EC Preferences Appellate Body Report]. 22 Preferential Tariff Treatment for Least-Developed Countries; Decision on Waiver, WT/L/304 (June 17, 1999) (adopted June 15, 1999), at [http://docsonline.wto.org/ DDF (continued...) CRS-7 and procedural requirements, the waiver also provides that it “does not affect in any way and is without prejudice to rights of Members in their actions pursuant to” the Enabling Clause.”23 In addition, in a WTO dispute proceeding brought by India challenging special GSP benefits maintained by the European Communities (EC), European Communities — Conditions for the Granting of Tariff Preferences to Developing Countries (WT/DS246), the WTO Appellate Body addressed the issue of the extent to which a granting country may accord such benefits within a GSP program to countries meeting a separate set of criteria. The dispute stemmed from an EC Regulation which awarded tariff preferences to a closed group of 12 beneficiary countries on the condition that they combat illicit drug production (Drug Arrangements). India claimed that the Drug Arrangements were inconsistent with GATT Article I:1 and could not be justified by the Enabling Clause. In its 2004 report, the Appellate Body ruled that developed countries may grant preferences beyond those provided in their GSP to countries with particular needs, but only if identical treatment is available to all similarly situated GSP beneficiaries.24 Among other things, the Appellate Body cited ¶ 3(c) of the Enabling Clause, providing that any differential and more favorable treatment provided under the Clause “shall ... be designed and, if necessary modified to respond positively to the development, financial and trade needs of developing countries.”25 Comparison of International GSP Programs One economist has referred to the Generalized System of Preferences as a nonhomogeneous set of national schemes sharing certain common characteristics.26 Generally, each preference-granting country extends to qualifying beneficiary developing countries (as determined by each benefactor) an exemption from duties (either reduced tariffs or duty-free access) on most manufactured products and certain “non-sensitive” agricultural products, although product coverage and preferential treatment vary widely.27 Although most GSP schemes (including the U.S. program) admit eligible products duty-free, some countries provide tariff reductions, rather than complete 22 (...continued) Documents/t/WT/L/304.DOC][hereinafter 1999 LDC Waiver]; see also discussion in WTO Committee on Trade and Development, Note on the Meeting of 2 March 1999, at 2-6, WT/COMTD/M/24 (April 27, 1999). 23 1999 LDC Waiver, supra note 22, at ¶ 6. 24 EC Preferences Appellate Body Report, supra note 21. For further discussion of the Appellate Body report, see CRS Report RS22183, supra note 12, at 4-6. 25 EC Preferences Appellate Body Report, supra note 21, at ¶¶ 162-165. 26 Sanchez Arnau, Juan C. The Generalized System of Preferences and the World Trade Organization. London: Cameron May, Ltd., 2002, p. 187. 27 Ibid. CRS-8 exemption from duties.28 The Australian system, for example, is based on a five percentage point margin of preference. When the Australian General Tariff (GT) is 5% or higher, the amount of the tariff is reduced by 5% for products of beneficiary countries. When the GT rate is 5% or less, the preferential rate is zero.29 In the WTO, developing country status is generally based on self-determination. However, with regard to GSP, each preference-granting country establishes particular criteria and conditions for defining and identifying developing country beneficiaries. Consequently, the list of beneficiaries and exceptions may vary greatly between countries. If political changes have taken place in a beneficiary country, the country might be excluded from GSP programs in some countries (such as the United States) but not in others. Most countries exclude countries if they have entered into another kind of commercial arrangement (e.g. a free trade agreement) with any other GSPgranting developed country. In terms of additional GSP product coverage for LDCs, the European Community program, which offers duty-free access or reduced tariffs for “everything but arms,”30 is currently perhaps the most inclusive. GSP-granting countries may also have incentive-based programs that provide enhanced benefits for beneficiary countries that meet certain additional criteria. For example, in 2007 the European Community implemented a regulation that grants additional GSP benefits to those countries that have demonstrated their commitment to sustainable development and internationally recognized worker rights.31 Each preference-granting nation also has safeguards in place to ensure that any significant increases in imports of a certain product do not adversely affect the receiving country’s domestic market. Generally, these restrictions take the form of quantitative limits on goods entering under GSP. Under Japan’s system, for example, imports of certain products under the preference are limited by quantity or value (whichever is applicable) on a first-come, first-served basis as administered on a monthly (or daily, as indicated) basis. For other products, import ceilings and maximum country amounts are set by prior allotment.32 28 World Trade Organization. Committee on Trade and Development. The Generalized System of Preferences: A Preliminary Analysis of the GSP Schemes in the Quad. WTO Document WT/COMTD/W/93, October 5, 2001. 29 United Nations Conference on Trade and Development. Generalized System of Preferences on the Scheme of Australia. UNCTAD Technical Cooperation Project on Market Access, Trade Laws and Preferences, June 2000 (INT/97/A06), p. 5. [http://www.unctad.org/en/docs/itcdtsbmisc56_en.pdf]. European Communities. See Council Regulation (EC) N/ 980/2005 of 27 June 2005 applying a scheme of generalized tariff preferences (published in Official Journal of the European Communities (OJ)) L 169, 30.6.2005, p. 1. 30 31 32 Ibid. World Trade Organization. Committee on Trade and Development. Notification by Japan June 21, 2000, WT/COMTD/N/2/Add.9. CRS-9 Each GSP benefactor also has criteria for graduation — the point at which beneficiaries no longer qualify for benefits because they have reached a certain level of development. Most preference-granting countries require mandatory graduation based on a certain level of income per capita based on World Bank calculations. Some programs also provide for “graduation” of certain GSP recipients with respect to individual products or sectors of the economy. U.S. Implementation Congress authorized the U.S. Generalized System of Preferences scheme in Title V of the Trade Act of 1974 (P.L. 93-618), as amended.33 It authorizes the President to grant duty-free treatment under the GSP for any eligible product from any beneficiary developing country (BDC) or least-developed beneficiary developing country, provides the President with economic criteria in deciding whether to take any such action,34 and also specifies certain criteria for designating eligible countries and products. Based on the statutory requirements which countries must meet — and continue to practice — while participating in the program, the U.S. GSP program might be characterized as a foreign policy tool as well as an international trade device. Although GSP benefits are non-reciprocal, certain criteria speak to important U.S. commercial interests, such as ensuring “equitable and reasonable” access in the beneficiaries’ market to U.S. products, protecting intellectual property rights, and preventing the seizure of property belonging to U.S. citizens or businesses. In addition, since certain “import sensitive” products are excluded from eligibility and quantitative/value limitations apply to any eligible imports, the economic costs of the preference are quite small. Beneficiary Countries When designating beneficiary developing countries, the President is directed to take into account certain mandatory and discretionary criteria. The law prohibits (with certain exceptions) the President from extending GSP treatment to certain countries, as follows: ! other industrial countries; ! Communist countries, unless they are a WTO member, a member of the International Monetary Fund and receive Normal Trade Relations (NTR) treatment; 33 Trade Act of 1974, P.L. 93-618, Title V, as amended, 19 U.S.C. 2461-2467. The GSP Program was reauthorized and amended by the Trade and Tariff Act of 1984 (P.L. 98-573), and again by Subtitle J (the GSP Renewal Act of 1996) of P.L. 104-188. Six laws have authorized GSP with relatively minor modifications, most recently through December 31, 2006 (PLP.L. 107-210). See Table 5, “GSP Implementation and Extension, 1975-2002.” 34 19 U.S.C. 2461. CRS-10 ! countries that collude with other countries to withhold supplies or resources from international trade or raise the price of goods in a way that could cause serious disruption to the world economy; ! countries that provide preferential treatment to the products of another developed country in a manner likely to have an adverse impact on U.S. commerce; ! countries that nationalize or expropriate the property of U.S. citizens, or otherwise infringe on U.S. citizens’ property rights (including failure to recognize or enforce arbitral awards in favor of U.S. citizens or corporations); ! countries that grant sanctuary from prosecution to any individual or group that has committed an act of international terrorism, or has not taken steps to support U.S. efforts against terrorism; Mandatory criteria also require that beneficiary countries: ! have taken or be taking steps to grant internationally recognized worker rights (including collective bargaining, freedom from compulsory labor), minimum age for employment of children, and acceptable working conditions with respect to minimum wages, hours of work, occupational safety and health); and ! implement any commitments they make to eliminate the worst forms of child labor.35 The President is also directed to consider certain discretionary criteria, such as the following: 35 ! the country’s desire to be designated a beneficiary developing country for purposes of the U.S. program; ! the level of economic development of the country; ! whether or not other developed countries are extending similar preferential tariff treatment; ! its commitment to a liberal trade policy; 19 U.S.C. 2462(b). The most recent amendments required the support of U.S. efforts against terrorism and expanded the definition of internationally recognized worker rights (Section 4102 of P.L. 107-210). See also United States Trade Representative. U.S. Generalized System of Preferences Guidebook, January 2006, p. 19. (Hereinafter, USTR Guidebook.) CRS-11 ! the extent to which it provides adequate protection of intellectual property rights; ! the extent to which it has taken action to reduce trade-distorting investment policies and practices; and ! whether or not it has taken steps to grant internationally recognized worker rights.36 The law authorizes the President, based on the required and discretionary factors mentioned above, to withdraw, suspend or limit GSP treatment for any beneficiary developing country at any time.37 Reporting Requirements. The President must advise Congress of any changes in beneficiary developing country status, as necessary.38 The President must also submit an annual report to Congress on the status of internationally recognized worker rights within each BDC, including findings of the Secretary of Labor with respect to the beneficiary country’s implementation of its international commitments to eliminate the worst forms of child labor.39 Least-Developed Beneficiaries. The President is also authorized by statute to designate any BDC as a least-developed beneficiary, based on an assessment of the conditions and factors previously mentioned.40 Therefore, although factors such as per capita income level, economic stability, and quality of life indicators (on which the United Nations-designated list of LDCs is based) are taken into account,41 the U.S. administration also assesses the level of compliance with other GSP statutory requirements and comments from the public before identifying a country as “leastdeveloped” for purposes of the GSP.42 As requested by the WTO, the Bush Administration has formally notified its trading partners of all the domestic legislative and regulatory steps necessary in order to comply with the duty-free/quota-free access (DFQF) provision agreed to at the Hong Kong Ministerial. However, the United States also advised other WTO members that implementation of the initiative is contingent on successful completion of negotiations in the Doha Development Agenda.43 36 19 U.S.C. 2462(c). Ibid., p. 20. 37 19 U.S.C. 2462(d). 38 19 U.S.C. 2462(d)(3). 39 19 U.S.C. 2464. 40 19 U.S.C. 2462(a)(2). 41 19 U.S.C. 2462(c)(2). 42 See 71 F.R. 43543. 43 World Trade Organization. Committee on Trade and Development. “Duty-Free, QuotaFree Access for Least-Developed Countries.” Communication from the United States, May 16, 2006. WT/COMTD/W/149. CRS-12 Products The Trade Act of 1974 authorizes the President to designate articles (except those designated “import sensitive” in the statute) as eligible for duty-free treatment under the GSP after receiving advice from the International Trade Commission.44 “Import sensitive” products specifically excluded from preferential treatment include textiles and apparel; certain watches; footwear and other accessories; certain electronics, steel, and glass products; and certain agricultural products subject to tariff-rate quotas.45 The lists of eligible products and the list of beneficiary developing countries are reviewed and revised annually by the GSP Subcommittee.46 Any modifications to these lists usually take effect on July 1 of the following calendar year.47 In terms of product coverage, more than 3,400 products are currently eligible for duty-free treatment, and about 1,400 additional articles from least-developed BDCs may receive similar treatment (see Table 1).48 Leading imports in 2007 included petroleum products, especially crude oil ($8.8 billion); jewelry and jewelry parts ($3.1 billion); automobile and other passenger vehicle parts ($1.1 billion); ferroalloys ($1.0 billion); and rubber tires ($609.0 million). 44 19 U.S.C. 2463(a)(1). 45 19 U.S.C. 2463(b). 46 The GSP Subcommittee is a sub-group of the Trade Policy Staff Committee, given jurisdiction over designating beneficiary countries and covered products in the GSP program in Executive Order 11846, 40 F.R. 14291, as amended. 47 USTR Guidebook, p. 8. 48 USTR Guidebook, p. 6. CRS-13 Table 1. Dutiable and Duty-Free Tariff Lines in Harmonized Tariff Schedule by Product Category HTS Product Category Total Tariff Lines in Category MFN Duty-free Tariff Lines Duty-free under GSP Duty-free under GSP for LDC Additional Duty-free under other trade preferences Animal and plant products 1,096 304 282 402 16 Prepared food, beverages, spirits, tobacco 741 137 267 200 11 2,211 742 1,021 441 6 Wood and paper products 481 407 60 10 4 Textiles, leather, and footwear 1,320 257 176 30 223 Glassware, precious metals and stones, jewelry 388 144 177 51 6 Base metals and articles of base metals 855 491 321 41 2 Machinery, electronics, and high-tech apparatus 1,893 988 810 85 10 Aircraft, autos, and other transportation 240 123 77 40 0 Miscellaneous manufacturing 543 201 186 89 66 72 41 7 24 0 667 44 22 0 0 10,507 3,879 3,406 1,413 344 Chemicals and plastics Fuels Apparel Totals Source: U.S. General Accountability Office. Competitive Need Limits. The law establishes “competitive need limits” (CNLs) that require the President to automatically suspend GSP treatment if imports of a product from a single country reach a specified threshold value ($130 million in 2007, $135 million in 2008, and $140 million in 2009) or if 50% or more of total CRS-14 U.S. imports of a product entering under the preference come from a single country.49 CNL waivers for products imported from BDCs may be granted on the basis of certain criteria. In deciding whether to grant a waiver, the President must (1) receive advice from the International Trade Commission as to whether a U.S. domestic industry could be adversely affected by the waiver, (2) determine that the waiver is in the U.S. economic interest, and (3) publish the determination in the Federal Register.50 The President is also required to give “great weight” to the extent to which the BDC opens its markets and resources the United States, provides internationally recognized worker rights, and protects intellectual property rights.51 All competitive need limits are automatically waived for least-developed and sub-Saharan African beneficiaries.52 Waivers for BDCs may also be provided (in some cases automatically) if total U.S. imports of a product from all countries is small or “de minimis” ($19 million in 2008 and $19.5 million in 2009),53 or if the GSP-eligible article was not produced in the United States on January 1, 1995 (known as a 504(d) waiver).54 Rules of Origin. Eligible goods must also meet specific domestic content or “rules of origin” requirements in order to qualify for GSP status. According to the statute, duty-free entry is only allowed if the article is imported directly from the beneficiary country into the United States. In addition, at least 35% of the appraised value of the product must be the “growth, product or manufacture” of a beneficiary developing country, as defined by the sum of (1) the cost or value of materials produced in the beneficiary developing country (or any two or more beneficiary countries that are members of the same association or countries and are treated as one country for purposes of the U.S. law) plus (2) the direct costs of processing in the country.55 Any inputs from third countries must be “substantially transformed” into new and different constituent materials if they are to be considered part of the 35% domestic content rule.56 Annual Review The U.S. GSP program is subject to annual review by the GSP Subcommittee of the Trade Policy Staff Committee (TPSC), a body chaired by the Office of the U.S. Trade Representative (USTR), and including representatives from the Departments 49 19 U.S.C. 2463(c)(2)(A). USTR Guidebook, p. 10. 50 19 U.S.C. 2463(d). 51 19 U.S.C. 2463(d)(2). 52 19 U.S.C. 2462(c)(2)(D). USTR Guidebook, p. 11. 53 19 U.S.C. 2463(c)(2)(F). 54 19 U.S.C. 2463(c)(2)(E). 55 19 U.S.C. 2463(a). 56 19 U.S.C. 2463(a)(2) and (3). CRS-15 of Agriculture, Commerce, Interior, Labor, State, and the Treasury.57 The GSP Subcommittee (also responsible for making initial country eligibility recommendations) considers and makes recommendations to the President concerning the continued eligibility of countries to receive benefits. The GSP subcommittee also resolves questions regarding BDC’s observance of country practices (such as worker rights, or protection of intellectual property rights); investigates petitions to add or remove items from the list of eligible products; and considers which products should be removed on the basis that they are “sufficiently competitive” or “import sensitive.” In preparation for the annual review, the USTR may also seek an investigation by the International Trade Commission (ITC) for the purpose of providing advice concerning any possible modifications to the GSP.58 On May 15, 2008, the USTR announced the beginning of its 2008 Annual GSP Product and Country Eligibility Practices Review.59 Results of the 2007 review were published in the Federal Register on July 3, 2008, and are discussed in more detail below.60 Graduation The President may remove a beneficiary developing country from GSP eligibility because the country is determined to be sufficiently competitive or developed that it no longer requires GSP benefits. The President may graduate a BDC completely, or may do so with respect to the country’s individual products or industries. Mandatory country graduation occurs when (1) the BDC is determined to be a “high income country” (as defined by official International Bank for Reconstruction and Development statistics), or (2) as a result of a review of the BDC’s advances in economic development and trade competitiveness.61 The last beneficiaries to graduate from the GSP program were Trinidad and Tobago because the President determined that they had become “high income” countries.62 Countries also become ineligible for GSP benefits if they formally enter into a bilateral trading relationship with the United States or other developed country. Bulgaria and Romania were the last countries to become ineligible for this reason, “effective for each of the countries when it becomes a European Member State” as of January 1, 2007 (Presidential Proclamation 8098, December 29, 2007).63 57 Regulations for implementation of the GSP program were issued by the Office of the United States Trade Representatives at 15 C.F.R. Part 2007. Provisions for the GSP Annual Review are set out at 15 C.F.R. § 2007.2(c)-(h). 58 19 U.S.C. 1332(g), 19 U.S.C. 2463 59 73 F.R. 28174. 60 Presidential Proclamation 8272 of June 3, 2008, 73 F.R. 38297. 61 19 U.S.C. 2462(e). 62 73 F.R. 38297 at 38298. 63 72 F.R. 459. USTR officially announced the graduation of Bulgaria and Romania on January 22, 2007 (72 F.R. 2717). CRS-16 110th Congress Developments On February 7, 2008, House Ways and Mean Committee Chairman Rangel introduced H.R. 5264, a bill seeking to extend the GSP, the Andean Trade Preference Act (ATPA), and the Caribbean Basin Economic Recovery Act (CBERA) until September 2010. After committee consideration of the measure, the bill was amended to seek a ten-month extension for the ATPA only (was scheduled to expire on Friday, February 29), until December 31, 2008. The bill was subsequently reported out of committee, and passed the House on February 27 under suspension of the rules, and the Senate by unanimous consent on February 28. The President signed the bill on February 9, 2008 (became P.L. 110-191). This summer, the House also passed a one-year extension of the GSP as part of a as part of a bill also seeking to create a new preference program for the Dominican Republic’s pants producers in exchange for their use of U.S. pocketing fabric (H.R. 6560, passed House July 29, 2008). The bill is currently awaiting action in the Senate. On June 12, 2008, the Senate Finance Committee conducted an oversight hearing focusing on ways to reform trade preference programs, including the Generalized System of Preferences. According to committee staff, the hearing was a first step toward a possible bill seeking to reform trade preference programs.64On June 12, 2008, the Senate Finance Committee conducted an oversight hearing focusing on ways to reform trade preference programs, including the Generalized System of Preferences. According to committee staff, the hearing was a first step toward a possible bill seeking to reform trade preference programs.64 On September 29, 2008, the House passed H.R. 7222 (Rangel), a bill seeking to renew the Andean preference and the GSP until December 31, 2009. The bill passed in the Senate on October 2, 2008, and was signed by the President on October 16, 2008 (P.L. 110-436). Since the preference was only renewed for one year, its continued renewal, and that of other trade preference programs, will likely remain a legislative issue during the first session of the 111th Congress. Renewal Issues. In previous years that the GSP has been set to expire, its subsequent renewal has been generally considered non-controversial. In years that it was not renewed prior to repeal, it was widely expected that Congress would retroactively renew the preference as it did in the Trade Act of 2002.65 In 2008, however, as in the case of the previous (December 2006) renewal, the continuation GSP program is a matter of some debate. In part, some in Congress continue to be concerned that certain “more advanced” developing countries (such as India and Brazil) are receiving benefits to the exclusion of more lesser-developed countries. In addition, some GSP beneficiaries, such as Brazil, India, and Thailand are perceived by some Members as obstructing a successful conclusion to the Doha Round of trade talks in the World Trade Organization. Although the Bush Administration reportedly supports GSP renewal, USTR efforts have demonstrated a willingness to modify the program to address some of these congressional concerns. According to the GSP statute, the President has the authority to revise country eligibility criteria and allowable tariff lines (except for 64 “Senate Finance Mulls Preference Overhaul, May Focus on Poorest,” Washington Trade Daily, June 13, 2008. 65 In each instance since 1993 (the last time that the program expired) it was allowed to lapse and was extended retroactively from the expiration date to the date of enactment. P.L. 107210, for example, applied the preference to any goods entering the United States between September 30, 2001 and August 6, 2002. See Table 5, “GSP Implementation and Extension, 1975 - 2006). The 2006 renewal (until December 2008) was the first time since 1993 that the program had not been allowed to lapse prior to renewal. CRS-17 statutorily excluded products) without congressional action, and the administration seems to favor this approach as opposed to comprehensive legislative reform. 2006 Developments. As part of its 2006 annual review of the GSP, the USTR announced that the TPSC would conduct a more comprehensive evaluation of the GSP program than it had in previous years in order to find “whether the Administration’s operation of the program should be changed so that benefits are not focused on trade from a few countries and developing countries that traditionally have not been major traders under the program receive benefits.”66 When announcing the 2006 review, USTR Schwab indicated that the additional review was due to concerns of some in Congress that “GSP benefits go largely to a few countries, while many developing countries are not trading much under the program.”67 In that context, all previously granted CNL waivers were individually evaluated, in addition to the standard practice of examining requests for new CNL waivers. The TPSC also said that it would also examine the eligibility status of several “middle income” economies (Argentina, Brazil, Croatia, India, Indonesia, Kazakhstan, Philippines, Romania, Russia, South Africa, Thailand, Turkey, and Venezuela) based on (1) their World Bank classification as upper-middle-income economies and (2) the fact that exports from each of these countries accounted for more than 0.25% of world goods exports in 2005 as reported by the WTO.68 Although none of the above countries were graduated or otherwise removed from GSP eligibility as a result of the 2006 review, several competitive need limit waivers (meaning that these products had been permitted to be imported duty-free under GSP despite the statutory import thresholds) from these countries were revoked. For example, effective July 1, 2007, Brazil lost CNL waivers for ferrozirconium and some motor vehicle parts exports, and India and Thailand lost CNL waivers for precious metal jewelry articles. See Table 2 for the complete list of revoked CNL waivers in 2006 and 2007. Some in Congress objected to the revocation of these CNL waivers, and legislation was introduced (H.R. 3427, McDermott) to place conditions on revoking these and other waivers.69 66 Ibid. 67 “Schwab Calls for GSP Extension, Singles Openness to Some Changes,” Inside U.S. Trade, August 4, 2006. 68 69 71 F.R. 45079. The bill sought to require that, in order for a CNL waiver to be revoked, the ITC must determine that its revocation (1) will not reduce the current level of exports from the BDC; (2) will not materially benefit one or more countries that are not designated as BDCs; and (3) will not materially benefit one or more countries with a higher volume of exports of the same product to the United States. CRS-18 Table 2. Products for Which Competitive Need Limits Were Revoked in the 2006 and 2007 Annual Reviews HTS No. Description GSP Partner Total 2006 or 2007 Imports (millions) Share of U.S. Imports Rate of Duty (if not GSP) 0802.90.94 (2006) Kola nuts, fresh or dried, shelled Cote d’Ivoire $4.5 (2006) 86.3% 5 cents/kg 1202.20.40 (2007) Peanuts (groundnuts), not roasted or cooked, shelled, subject to add. US note 2 to Ch. 12 Argentina $6.6 (2007) 100.0% 6.6 cents/kg 2905.11.20 (2006) Methanol (Methyl alcohol) other than imported only for use in producing synthetic natural gas (SNG) or for direct use as fuel Venezuela $263.2 (2006) 16.2% 5.5% 7113.19.29 (2006) Gold necklaces and neck chains (o/than of rope or mixed links) India 266.4 (2006) 23.3% 5.5% 7113.19.50 (2006) Precious metal (other than silver) articles of jewelry and parts, whether or not plated or clad with precious metal, nesoi India $2,211.2 (2006) 33.2% 5.5% 7113.19.50 (2006) (see above) Thailand $700.4 (2006) 10.5% 5.5% 7113.19.50 (2007) (see above) Turkey $232.5 (2007) 3.7% 5.5% 7202.93.80 (2007) Ferroniobium, nesoi Brazil $151.2 (2007) 91.9% 5% 7202.99.10 (2006) Ferrozirconium India $0.5 (2006) 96.9% 4.2% 8544.30.00 (2006) Insulated ignition wiring sets and other wiring sets of a kind used in vehicles, aircraft, or ships Philippines $359.0 (2006) 6.0% 5.0% CRS-19 HTS No. Description GSP Partner Total 2006 or 2007 Imports (millions) Share of U.S. Imports Rate of Duty (if not GSP) 8708.30.50 (2006) Pts. and access. of motor vehicles of 8701, nesoi, and 8702-8705, brakes and servo-brakes & parts thereof Brazil $31.9 (2006) 6.0% 2.5% 9405.50.30 (2006) Non-electrical lamps and lighting fixtures, of brass India $17.3 (2006) 79.6% 5.7% Year in parentheses indicates year in which the CNL waiver for above products was revoked. Value of imports and import share reflect imports in year of revocation. Source: Trade Policy Staff Committee, GSP Subcommittee. 2007 Annual Review of GSP. Available at [http://www.ustr.gov]. 2007 Annual GSP Review Results Results of the 2007 annual review, as published in the Federal Register on July 3, 2008 (Proclamation 8272 of June 30, 2008) were as follows: ! ! ! ! ! ! Trinidad and Tobago was “graduated” from the GSP program as of January 1, 2010 on the basis that it has become a “high income” country. The Republic of Serbia and the Republic of Montenegro (as separate, independent countries) were designated as beneficiary developing countries for purposes of the GSP. Several existing CNL waivers (may be granted if GSP imports exceed statutory limits) were revoked, including peanuts from Argentina, jewelry from Turkey, and ferroniobium from Brazil (see above). Approved CNL waivers included imports of preserved cucumbers from India, rubber tires from Indonesia, and copper cables from Turkey. Almost 100 products were granted de minimis waivers (provided when U.S. imports of a product from ALL countries are small or de minimis). Investigations on country practice issues, such as worker rights (Bangladesh, Niger, Uzbekistan) and intellectual property violations (Lebanon, Russia, Uzbekistan, Philippines) were continued beyond the annual review date, with progress to be reviewed “in [a] specific timeframe.” Other Developments. The USTR has also published notices in the Federal Register soliciting public comments on the possible designation of Azerbaijan (73 F.R. 19909, April 11, 2008), Kosovo (73 F.R. 54637, September 22, 2008) and CRS-20 Vietnam (73 F.R. 35173, June 20, 2008). No determination has been announced on these proposals as of this writing. The Bush Administration is also seeking to expand the coverage of products from Georgia that receive duty-free access under GSP, along with other trade and investment initiatives. An expansion of the GSP preference in the manner proposed would require legislative approval from Congress.70 Effectiveness of GSP The statutory goals of the GSP are, in part, to (1) promote the development of developing countries, (2) promote trade, rather than aid, as a more efficient way of promoting economic development, (3) stimulate U.S. exports in developing country markets, and (4) promote trade liberalization in developing countries.71 It is difficult to assess whether or not the program has achieved these goals, however, because the GSP is only one of many such foreign aid initiatives employed by the United States to assist poorer countries. Economic success within countries is also related to internal factors, such as stability, wise policy decisions, availability of infrastructure to foster industry, and legal/financial frameworks that encourage foreign investment. What follows, therefore, are general comments, rather than hard data, about the impact of GSP on developing countries, and possible economic effects on the U.S. market. The positions of various stakeholders regarding the value of the program are also discussed. Effects on Developing Countries In the last ten years, total U.S. imports from BDCs have increased dramatically, from $107.8 billion in 1996 to $313.4 billion in 2007 (see Figure 1). This may indicate, in very general terms, that the GSP and other preferential programs have helped create some export-driven growth in developing countries. Total exports entering under the preference have also increased markedly, from $11.6 billion in 1996 to $32.6 billion in 2006. In 2007, imports under GSP declined slightly to $30.8 billion. However, the percentage of goods entering the United States under the GSP program, relative to total U.S. imports from BDCs, has remained relatively flat — at around 10%. This may be due, in part, to the presence of the automatic competitive need limits (absent CNL waivers) on GSP-eligible products, and mandatory graduation of countries from the program. 70 White House. “Statement by the President on Georgia.” Press Release, September 3, 2008 [http://www.whitehouse.gov]. 71 P.L. 98-573, section 501(b), 19 U.S.C. 2461 note. Additional factors are to allow for differences in developing countries; help developing countries generate foreign exchange reserves, further integrate developing countries into the international trading system; and encourage developing countries to eliminate trade barriers, guard intellectual property rights, provide worker rights; and address concerns of the United States with regard to adverse affects on U.S. producers and workers and compliance with GATT obligations. CRS-21 Figure 1. U.S. Imports from GSP Countries 300 Source: ITC Trade Dataweb 250 200 Total U.S. Imports from GSP Countries 150 100 50 Total U.S. Imports Entering under GSP 0 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Another indicator of the GSP’s impact on developing countries is the utilization rate of the preference. At first glance, it seems that only a few beneficiary developing countries use GSP to a great extent. However, as one study pointed out, the apparent lack of utilization masks the fact that many GSP-eligible goods may also be imported duty-free under other U.S. regional preference schemes, such as AGOA.72 The study also illustrated that, for certain industries in BDCs, the positive impact of GSP is quite significant. For example, for all agricultural commodities eligible for GSP treatment, the GSP utilization rate was approximately 58%.73 Therefore, for individual industries in developing countries, the positive impact of the GSP could be seen as quite significant. Many developing countries with a natural competitive advantage in certain products use trade preferences such as the GSP to gain a foothold in the international market. For example, India and Thailand have well-established jewelry industries, and Argentina enjoys an advantage in certain leather goods that are imported under the preference. Exporters in these industries have been able to expand their international reach through GSP programs. On the other hand, some countries may be encouraged by preferential programs to develop industry sectors where they will never be able to compete, thus diverting resources from other industries that might 72 Organization for Economic Cooperation and Development (OECD). Agriculture and Food. Preferential Trading Arrangements in Agricultural and Food Markets The Case of the European Union and the United States: United States Preference Schemes. Volume 2005, No. 1, p. 81. See also U.S. Government Accountability Office. U.S. Trade Preference Programs Provide Important Benefits, but a More Integrated Approach Would Better Ensure Programs Meet Shared Goals, March 2008, p. 19. 73 Ibid. CRS-22 actually become competitive over time (trade diversion).74 Although the costs of trade diversion are real, empirical evidence suggests that the overall effects of GSP are relatively small.75 The lack of reciprocity in the GSP program could also result in long-term costs for beneficiary countries. In multilateral trade negotiations, such as the DDA, countries may engage in reciprocal tariff reductions, meaning that all parties would agree to reduce their tariffs. By avoiding such reciprocal concessions, some developing countries may have tended to keep in place protectionist trade policies that may, in fact, impede their long-term growth. Moreover, these preferences can become an impediment to negotiations as developing countries seek ways of maintaining their preferences from eroding. For this reason, many economists prefer multilateral, nondiscriminatory tariff cuts because preferential tariff programs, such as the GSP, can lead to inefficient production and trade patterns. When tariffs are reduced across-the-board, rather than in a preferential manner, countries tend to produce and export on the basis of their comparative advantage — thus exporting products that they produce relatively efficiently and importing products that others produce relatively efficiently. However, while some developing country producers (especially those whose products do not qualify under GSP) may benefit from multilateral tariff reductions, other industries may be hurt because their margin of preference under GSP is reduced. Economic Effects on the U.S. Market Overall effects of the GSP on the U.S. economy are relatively small. Imports under the program in 2007 represented about $30.8 billion, in comparison to total U.S. imports of $1.9 trillion. In addition, the rate of increase of imports entering under GSP in the past ten years is relatively flat (see Figure 1), indicating that there may be little impact on the U.S. market as a whole by extending the preference. In federal budgetary terms, the Congressional Budget Office (CBO) estimated that revenue losses through forgone tariff receipts would amount to about $3.1 billion if GSP were extended from 2007 to 2011.76 U.S. producers of import-competing products are largely protected from severe economic impact. First, certain products, such as textiles and apparel, are designated “import sensitive” and therefore ineligible for duty-free treatment. Second, 74 OECD. “Making Open Markets Work for Development.” Policy Brief, October 2005, p. 2. 75 Laird, Samuel and Andre Sapir. Tariff Preferences. In Finger, J. Michael and Andrzej Olechowski, eds. The Uruguay Round: A Handbook on the Multilateral Trade Negotiations. Washington, World Bank, 1987, p. 105. 76 Congressional Budget Office. The Budget and Economic Outlook: Fiscal Years 2007 to 2016, Table 4.10, “Effects of Extending Tax Provisions Scheduled to Expire Before 2016.” CBO estimates that revenue losses would be $0.3 billion in FY2006, $0.6 billion in FY2007 and 0.7 billion in 2008 and 2009. Estimates are based on the assumption that the quantity of imports under the preference will increase over the term, but do not take into account any possible lowering of tariffs or reductions in value of imports. CRS-23 “competitive need limits” (discussed in more detail above) are triggered when imports of a product from a single country reach a specified threshold value or when 50% of total U.S. imports of a product come from a single country.77 Third, U.S. producers may petition the USTR that GSP treatment granted to eligible articles be withdrawn.78 The fact that, as illustrated in Figure 1, the dollar amount of imports entering under GSP has remained fairly level for at least the past 10 years may also indicate that the GSP has little impact on most domestic producers. Many U.S. manufacturers and importers benefit from the lower cost of consumer goods and raw materials imported under the GSP program. U.S. demand for certain individual products, such as jewelry, leather, and aluminum, is quite significant.79 However, it is difficult to gauge, other than anecdotally, the overall impact of the GSP program on the U.S. market when compared to similar imports from other countries that do not receive the preference. It is possible that some merchandise entering under the GSP could be competitive even without the preference, but it is also possible that the duty-free status is the primary factor that makes imports from these countries more attractive. Stakeholders’ Concerns Supporters of the GSP include beneficiary developing country governments and exporters, U.S. importers, and some U.S. manufacturers who use inputs entering under GSP in downstream products. Some policymakers favor GSP renewal because they believe it is an important development and foreign policy tool. Those who oppose the program include U.S. producers who manufacture competing products, and some in Congress who favor more reciprocal approaches to trade policy. What follows is a thematic approach to the major topics of discussion in the GSP renewal debate. “Special and Differential Treatment.””. Developing countries have long maintained that “special and differential treatment,” such as that provided by the GSP, is an important assurance of access to U.S. and other developed country markets in the midst of increasing globalization.80 Many of these countries have built industries (or segments of industries) based on receiving certain tariff preferences. Those who oppose automatic renewal of GSP have expressed the desire to see some “reciprocity” and “appreciation” on the part of BDCs — in the form of offers of improved market access — in return for renewal of the program.81 Some of these 77 19 U.S.C. 2463(c). 78 15 C.F.R. 2007.0(b). 79 In some product categories, imports under GSP account for 25% or more of total U.S. imports, including leather (45% of all U.S. leather imports), jewelry and jewelry parts (43%), ferroalloys (36%), copper wire (25%), and aluminum (25%). 80 Women in International Trade (WIIT) Event. The Value of Attending a World Trade Organization Ministerial Conference, January 20, 2006. 81 “Sen. Grassley Warns Brazil, India, on GSP; Stops Short of Predicting Graduation,” (continued...) CRS-24 policy makers favor continued progress in bilateral or multilateral negotiations in lieu of extending automatic, nonreciprocal benefits such as the GSP. Others have also charged some of the more advanced BDCs for obstructing multilateral trade talks, especially in the WTO Doha Round. Some observers have stated that many in Congress are becoming more skeptical about the efficacy of any further trade concessions as they hear from constituents about lost jobs and other domestic hardships attributed to global competition.82 Other Members believe that extension and expansion of these programs “will send a signal to developing countries that we will stand with them as they grow.”83 Erosion of Preferential Margins. Developing countries have expressed concern about the overall progressive erosion84 of preferential margins as a result of across-the-board tariff negotiations within the context of multilateral trade negotiations such as the Doha Round. In 1997, a study prepared by the Organization for Economic Cooperation and Development (OECD) found that the degree of erosion of preferences resulting from Uruguay Round (1986-1994) tariff concessions by the Quad countries (Canada, European Union, Japan, United States) was indeed significant.85 Some economists point out that if multilateral rounds of tariff reductions continue, the preference may disappear completely unless GSP tariff headings are expanded to include more “import-sensitive” products.86 Other economists say that preference erosion could be more than outweighed by the benefits of increased market access, even for developing countries, brought about by multilateral trade liberalization.87 These economists say that, rather than continuing GSP and other preferential programs (either through inertia or concern that removing them would be seen as “acting against” the world’s poorest 81 (...continued) Inside U.S. Trade, May 19, 2006. “Thomas Urges USTR to Shift from Lagging Doha Round to Completing FTAs.” Inside U.S. Trade, April 7, 2006. 82 Washington International Trade Association (WITA) event. “The 2006 Congressional Trade Agenda,” February 15, 2006. 83 “Rangel Bill Would Extend Trade Benefits for Developing Countries,” Press Release, March 30, 2006. 84 While overall multilateral preferences may be eroding, the tariff benefits for individual items is still quite significant. For example, the U.S. tariff on flashlights (eligible for dutyfree access for all BDCs) is 12.5% ad valorem. Some GSP-eligible jewelry items have tariffs as high as 13.5%. 85 Organization for International Cooperation and Development. Market Access for the Least-Developed Countries: Where are the Obstacles? Published by World Trade Organization, WT/LDC/HL/19*, October 21, 1997, Table 12, p. 47. The study estimated that in 1997, the loss in the Canadian market was approximately 71%, in the EU 26%, in Japan 34%, and in the United States, 50%. (Hereinafter, OECD study). 86 87 Sanchez Arnau, p. 282. Baldwin, R.E. and Murray, T. “MFN Tariff Reductions and Developing Country Trade Benefits Under the GSP,” Economic Journal 87:345, March 1977, p. 46. CRS-25 populations), a better approach might be to “assist them in addressing the constraints that really underlie their sluggish trade and growth performance.”88 Under-Utilization of GSP. Some who oppose the program say that the proportionately small amount of trade entering under the GSP means that the program is under used, and therefore can be easily eliminated. Some supporters agree that this is especially true for many least-developed country beneficiaries, who historically are not large users of the preference. Some in Congress favor graduating some of the more advanced BDCs, thinking that this would leave more room for other countries, especially LDCs, to take greater advantage of the program.89 However, some U.S. business interests have indicated that, absent GSP eligibility, importers are likely to seek out the best alternative source for the goods — which would probably be China.90 Some observers have also suggested that the GSP may not be used by some countries due to (1) unfamiliarity with the program, or because some BDC governments do a poor job of promoting the existence of available opportunities under the preference, (2) the lack of available infrastructure (for example, undeveloped or damaged roads and ports that impede the efforts to get goods into the international market), or (3) a combination of both.91 Such problems could be addressed through U.S. trade capacity building efforts. Trade as Foreign Assistance. The GSP program is supported by many observers who believe that it is an effective, low-cost means of providing economic help to developing countries. They maintain that encouraging trade by private companies through the GSP stimulates economic development much more effectively than intergovernmental aid and other means of assistance.92 Economic development assistance through trade is a long-standing element of U.S. policy, and other trade promotion programs such as the AGOA and the Caribbean Basin Trade Partnership Act (CBTPA) are also based on this premise. However, no other U.S. preference program is more broadly based or encompasses as many countries as the GSP. Conditionality of Preferences. Additionally, some supporters of the GSP and other non-reciprocal preferences believe that the conditions (such as worker rights, intellectual property requirements, or drug eradication) incumbent on developing countries if they are to qualify for GSP status provide the United States 88 OECD study, p. 27. 89 “USTR Considers Withholding Trade Benefits from India, Brazil in Wake of WTO Debacle,” International Trade Daily, August 9, 2006. 90 Comments of various industry representatives, District of Columbia Bar International Section meeting on GSP, September 21, 2006. 91 2008 GAO Report, pp.33-35. 92 September 21, 2006 DC Bar meeting. CRS-26 with international political leverage that can be used to preserve U.S. foreign and commercial interests.93 However, some beneficiary countries actively object to these “country practice” provisions and regard them as penalties. Some countries (such as Brazil and India) that have been targeted for eligibility review in the past perceive that such action indicates that they are being penalized for advocating for their own national development goals in multilateral talks.94 Moreover, some intellectual property industry representatives, worker rights groups, and other constituencies in the United States sometimes oppose, in their view, the U.S. administration’s allegedly inconsistent enforcement of these provisions. For example, one lobbying group expressed that they were “shocked and dumbfounded” that the GSP is being annually renewed for such countries as Brazil, Venezuela, and Russia in spite of intellectual property rights violations.95 This domestic opposition may indicate that, at times, the conditionality of the preferences is of limited usefulness. According to USTR, however, U.S. officials work with beneficiary countries during country practice reviews to actively address compliance issues prior to removing the country from eligibility. Between 2001 and 2006, one country was removed from eligibility for GSP because of intellectual property rights concerns but was reinstated a few years later after taking steps to resolve the problem.96 Lower Costs of Imports. U.S. importers of goods who import components, parts, or materials duty-free under the GSP maintain that the preference results in lower costs for these intermediate goods which, in turn, can be passed on to consumers. In a May 1, 2006 letter to the House Ways and Means and Senate Finance committees, a coalition of importers and retailers warned that if the GSP was allowed to expire, or if its benefits were reduced, it “would impose a costly hardship on not only beneficiary countries but their American customers as well.”97 Industry representatives mentioned that smaller domestic manufacturers who regularly import inputs under the preference may be especially affected by a lapse or expiration of the program because they are less able to adjust to the increased costs that would result.98 93 The Coalition for GSP. The U.S. Generalized System of Preferences Program: An Integral Part of the U.S. Economy. January 1997, p. 3. 94 September 6, 2006 public comment letter to USTR from ActionAid International USA, [http://www.ustr.gov]. 95 “Grassley Throws Up Obstacle to Trade-Preference Renewal.” Congress Daily, September 18, 2006. 96 United States Goverment Accountability Office. U.S. Trade Preference Programs: An Overview of Use by Beneficiaries and U.S. Administrative Reviews. GAO-07-1209, September 2007, p.4. 97 “U.S. Retailers, Importers Push for GSP Renewal Despite Opposition,” Inside U.S. Trade, May 5, 2006. 98 Discussion with officials of the Joint Industry Group, August 18, 2006. CRS-27 On the other hand, even though most U.S. producers are shielded by the automatic safeguards triggered by increased imports under the GSP, some U.S. manufacturers and workers might be adversely affected by the program due to CNL waivers.99 For example, in 2004, three U.S. producers of titanium complained that the Bush Administration refused to terminate duty-free market access for wrought titanium (ordinarily subject to a 15% duty assessment), despite a petition asking the government not to waive the import limits. Russian imports of titanium were allowed to continue to enter duty-free under the Presidential waiver even though its sales made up more than 60% of U.S. imports.100 Conclusion and Options for Congress The U.S. program (as established by Title V of the Trade Act of 1974) was extended for all countries (for which it had not previously been extended) through December 31, 2008, in section 8002 of P.L. 109-432, meaning that Congress may consider its extension (and that of other trade preference programs set to expire) during the second session of the 110th Congress. The African Growth and Opportunity Acceleration Act of 2004 (P.L. 108-274) had previously authorized an extension of GSP preferences for all beneficiary developing sub-Saharan African countries under the African Growth and Opportunity Act (AGOA) through September 30, 2015.101 The extension in the 109th Congress represented the first time since 1984 that the program had been extended without a lapse (see Table 5). Several options are available to Congress with respect to the treatment of the GSP program. As explained more fully below, Congress could allow the GSP program to expire, support reciprocal tariff and market access benefits through free trade agreements, renew the GSP for least-developed beneficiaries only, renew the existing program for all beneficiaries without major amendments, or extend the program in a modified form. Although the GSP is a unilateral and non-reciprocal tariff preference, any changes to the program would need to be considered in light of the requirements of the WTO Enabling Clause, as it has been interpreted by the WTO Appellate Body. At a minimum, the United States would need to notify and possibly consult with other WTO Members regarding any withdrawal or modification of GSP benefits, as required by ¶ 4 of the Clause. The United States could also pursue a WTO waiver were any modifications of the GSP program considered not to comport fully with U.S. WTO obligations. 99 19 U.S.C. 2463(c). 100 “Administration Decides to Keep Russian GSP Benefits for Titanium,” Inside U.S. Trade, July 9, 2004. 101 19 U.S.C. 2466b, as amended by section 7 of the AGOA Acceleration Act of 2004 (P.L. 108-274). CRS-28 Allow GSP To Expire The GSP statute will automatically expire for all beneficiary developing countries on December 31, 2008,102 except for all beneficiary sub-Saharan African countries, for which the preference is authorized through September 30, 2015.103 No legislative action would be required to pursue this option. Before the preference was renewed in 2006, some believed that if the GSP was not renewed, it might spur positive movement in the WTO Doha Development Agenda. This position was presented by then-House Ways and Means Chairman Bill Thomas and then-Senate Finance Committee Chairman Chuck Grassley.104 A similar position was also advocated in early 2002 when, while testifying on intellectual property issues, then-USTR Robert B. Zoellick mentioned that “the threat of loss of GSP ... benefits has proven to be an effective point of leverage with some of our trading partners.”105 On the other hand, country graduation, limitations on CNL waivers, or other modifications to the GSP program could also weaken the hand of U.S. negotiators in the DDA because it could no longer be used as an incentive for participation. Many developing nations already perceive the United States as generally unwilling to accept multilateral efforts to grant additional “special and differential treatment” for developing country WTO members (an important DDA goal) unless more reciprocal concessions for improved market access are made for U.S. products. As a result, GSP expiration could cause the negotiating positions of developing countries to harden, rather than soften, as they seek to make up for these lost benefits through the negotiations. The United States could also lose substantial leverage in addressing important trade-related foreign policy and development concerns that beneficiary nations must accept prior to BDC designation. Furthermore, interested parties may now file petitions requesting the USTR to review the GSP status of BDCs based on these statutory criteria (e.g. worker rights practices). If the program were no longer in effect, these avenues of encouraging certain developing country practices would no longer be available.106 Some domestic manufacturers, such as the U.S. automobile industry, may be adversely impacted by GSP expiration or modification, at least in the short term, due to dependence on duty-free (thus lower-cost) manufacturing inputs imported under the preference. Smaller businesses could be disproportionately affected because they 102 19 U.S.C. 2465. 103 19 U.S.C. 2466b, as amended by section 7 of the AGOA Acceleration Act of 2004 (P.L. 108-274). 104 “Thomas Urges USTR to Shift from Lagging Doha Round Completing FTAs,” Inside U.S. Trade, April 7, 2006. 105 U.S. Senate, Committee on Foreign Relations. “Examining the Theft of American Intellectual Property at Home and Abroad.” Hearing, February 12, 2002, S. Hrg. 107-457 106 15 C.F.R. 2007.0(b). CRS-29 are less able to adjust to increased costs of factors of production. On the other hand, some U.S. manufacturers of import-competing products might, at least marginally, benefit. Some least-developed GSP recipients could be harmed substantially by GSP expiration or other legislative changes. For example, Equatorial Guinea (91% of its exports, mostly petroleum products, enter under GSP in 2006) and Angola (59% of its exports to the United States entered under GSP in 2006), both sub-Saharan African countries not designated recipients under the AGOA preference,107 are both least-developed GSP beneficiaries. Other BDCs or regions with a significant percentage of U.S. trade entering under the GSP in 2006 included Yemen (leastdeveloped, about 87%), the West Bank (about 29%), Zimbabwe (66%), Armenia (60%), Paraguay (48%), Mozambique (least-developed, 70%), and Niue (70%) and Togo (64%). Scrap GSP in Favor of Free-Trade Agreements or Regional Trading Arrangements Some in Congress have suggested that the GSP should be abandoned in favor of free trade agreements (FTAs) or regional trading arrangements (RTAs) that would provide the United States with reciprocal benefits. Such arrangements could provide additional markets for U.S. exports, as well as stimulate the growth of industries in developing-country trading partners. Thus, U.S. exporters, as well as importers, could benefit from reciprocal tariff concessions. Since these tariff concessions under these agreements would probably apply to many more goods and industries than are covered by the existing GSP program, they might increase the likelihood of acrossthe-board economic stimulation in the developing country trading partner. In addition, absent a favorable conclusion to the DDA negotiations, FTAs and RTAs could also be used as a way to lead countries toward further multilateral trade liberalization. However, such reciprocal agreements could actually harm import-competing U.S. manufacturers more than unilateral preferences under the GSP, because automatic safeguards written into the statute, such as competitive need limitations, might no longer apply. Any such agreement could also involve a greater number of U.S. tariff concessions, thus certain import-sensitive items ineligible for GSP status could also be on the table. On the other hand, other U.S. manufacturers might benefit from the increased market access that an FTA or RTA would provide. Some developing countries could also be put at a greater disadvantage in an FTA or RTA because they are ill-equipped to implement the additional standards that accompany a comprehensive U.S. free trade agreement.108 Indeed, some countries such as South Africa and other countries in the South African Customs Union (SACU) have been unsuccessful in negotiating FTAs with the United States due to 107 108 See 66 F.R. 49059. Vamvakidis, Ahtanasios. “Regional Trade Agreements or Broad Liberalization: Which Path Leads to Faster Growth?” IMF Staff Papers, Vol. 46:1, March 1999, p. 42. CRS-30 their inability to reach these standards. In addition, since the GSP is the largest U.S. preferential trading program, some developing countries that currently receive GSP benefits could easily be left out of such agreements, either because their markets are of little commercial value to U.S. interests, or because time constraints involved in the negotiating process do not make it worthwhile for U.S. negotiators to include them. Authorize GSP Only for Least-Developed Countries Some in Congress favor modifying the GSP so that it applies only with respect to least-developed BDCs. Since many African least-developed beneficiaries will continue to receive the GSP preference until mid-2015 under AGOA, an LDC-only GSP extension would apply only to the following countries: Afghanistan, Bangladesh, Bhutan, Comoros, Cambodia, Central African Republic, Comoros, Congo (Kinshasa), Equatorial Guinea, Haiti, Kiribati, Mauritania, Nepal, Samoa, Somalia, Togo, Tuvalu, Vanuatu, and Yemen. Of these countries, only six (Afghanistan, Congo [Kinshasa], Equatorial Guinea, Samoa, Somalia, and Yemen) export goods that account for more than 10% of total U.S. imports under the program. Therefore, if the preference were extended to LDCs only (absent any other modifications), these countries, at least initially, would be the primary recipients to benefit. Modify GSP Another possible approach for Congress would be to modify the Generalized System of Preferences scheme as it applies to all beneficiary developing countries, including least-developed countries. Restrict Application of Preference. The following is a list of possible approaches if Congress desired to extend, but further restrict, imports under the GSP: ! ! ! ! Refine statutory criteria for GSP treatment. For example, make the existing discretionary criteria mandatory requirements. Strengthen the requirement that benefits under the preference may (or must) be terminated for non-compliance with mandatory or discretionary criteria. Add additional criteria to include movement toward sustainable development or environmental preservation. Reconsider criteria for graduation of countries from GSP, or strengthen the provision that allows graduation of individual industries within beneficiary countries. For example, the President could be required to grant BDC status only if a country (1) complies with all mandatory requirements and (2) has a per-capita income below a certain level. Modify the rules of origin requirement for qualifying products to require that a greater percentage of the direct costs of processing CRS-31 ! ! ! operations (currently 35%)109 originate in beneficiary developing countries. Lower the threshold at which the President may (or must) withdraw, suspend, or limit the application of duty-free treatment of certain products (competitive need limitation).110 Require the President to more frequently and actively monitor (currently an annual process) the economic progress of beneficiary countries, as well as compliance with mandatory and discretionary criteria. Weed out countries considered “unfriendly” to U.S. interests, such as Venezuela, India, and Brazil. Expand Application of GSP. Were Congress to expand or enhance application of the GSP, the following options could be exercised: ! ! ! ! Expand the list of tariff lines permitted duty-free access. Allow some “import sensitive” products (in which developing countries often have a competitive advantage) to receive preferential access. Improve rule of origin requirements to provide more predictability. Current rules provide no measurable definition of “substantial transformation,” therefore, U.S. officials often make eligibility decisions on a case-by-case basis; therefore BDCs sometimes have no predictable way of knowing before shipment whether certain foreign components can be included as part of the 35% domestic content.111 Eliminate competitive need limitations or raise the thresholds that trigger them. Ensure uniform application of country practice requirements, or eliminate them. 109 19 U.S.C. 2463(a)(2)(A)(ii)(II). The statute further specifies that a product may be made in one BDC or any two or more such countries that are members of the same association of countries and are treated as one under section 19 U.S.C. 2467(2). For beneficiary countries under AGOA, this percentage may also include up to 15% (as to value) of U.S. origin (19 U.S.C. 2466a(b)(2)). 110 19 U.S.C. 2463(c). 111 GAO Report, p. 55. CRS-32 Table 3. GSP Product Imports from Leading BDCs, 2007 Country HTS MFN Tariff Rate Angola 27090020 10.5 cents/bbl Angola 27090010 5.25 cents/bbl 5.25 cents/bbl Angola 27101905 Angola 10.5 27101125 cents/bbl Angola 84081000 2.5% Angola 85030095 3% Description Petroleum oils and oils from bituminous minerals, crude, testing 25 degrees A.P.I. or more Petroleum oils and oils from bituminous minerals, crude, testing under 25 degrees A.P.I. Distillate and residual fuel oil (including blends) derived from petroleum or oils from bituminous minerals, testing under 25 degrees A.P.I. Naphthas (exc. motor fuel/mtr fuel blend. stock) fr petroleum oils & bitumin minerals (o/than crude) or preps 70%+ by wt. fr petroleum oils Marine propulsion compressionignition internal-combustion piston engines Other parts, nesi, suitable for use solely or principally with the machines in heading 8501 or 8502 Angola All Other GSP (8 additional tariff lines) India 71131950 India 71131929 India 85023100 India 57031020 India 71131150 Thailand Value of Imports Under GSP $6,445,874,925 $325,972,329 $128,966,671 $22,983,363 $45,000 $32,757 $104,313 Angola Total GSP $6,923,979,358 Precious metal (o/than silver) articles of jewelry and parts thereo, whether 5.5% or not plated or clad with precious metal,nesoi Gold necklaces and neck chains 5.5% (o/than of rope or mixed links) Wind-powered electric generating 2.5% sets Hand-hooked carpets and other textile floor coverings, tufted, 6% whether or not made up, of wool or fine animal hair Silver articles of jewelry and parts 5% thereof, nesoi, valued over $18 per dozen pieces or parts India All Other GSP (1878 additional tariff lines) $1,085,429,686 India Total GSP Precious metal (o/than silver) articles of jewelry and parts thereo, whether or not plated or clad with precious metal,nesoi $4,734,516,356 71131950 5.5% $260,985,675 $109,429,188 $103,308,377 $87,680,414 $3,087,683,016 $303,273,565 CRS-33 Country Thailand Thailand Thailand Thailand Brazil Brazil Brazil Brazil Brazil Indonesia Indonesia Indonesia Indonesia Indonesia HTS MFN Tariff Rate Description Silver articles of jewelry and parts thereof, nesoi, valued over $18 per dozen pieces or parts New pneumatic radial tires, of 40112010 4% rubber, of a kind used on buses or trucks Insulated ignition wiring sets and 85443000 5% other wiring sets of a kind used in vehicles, aircraft or ships Food preparations not elsewhere 21069099 6.4% specified or included, not canned or frozen Thailand All Other GSP (1146 additional tariff lines) Thailand Total GSP 72029380 5% Ferroniobium, nesoi Doors of wood, other than French 44182080 4.8% doors Refined copper cathodes and sections 74031100 1% of cathodes Builders’ joinery and carpentry of 44189046 3.2% wood, nesoi AC motors nesi, multi-phase, of an 85015380 2.8% output exceeding 150 kW Brazil All Other GSP (1391 additional tariff lines) Brazil Total GSP Plywood sheets n/o 6 mm thick, with specified tropical wood outer ply, 44123140 8% with face ply nesoi, not surfacecovered beyond clear/transparent New pneumatic radial tires, of rubber, of a kind used on motor cars 40111010 4% (including station wagons and racing cars) Fatty substances of animal or 38249040 4.6% vegetable origin and mixtures thereof, nesoi Insulated ignition wiring sets and 85443000 5% other wiring sets of a kind used in vehicles, aircraft or ships Aluminum alloy, plates/sheets/strip, 76061230 3% w/thick. o/0.2mm, rectangular (incl. sq), not clad Indonesia All Other GSP (710 additional tariff lines) Indonesia Total GSP Value of Imports Under GSP $279,225,589 71131150 5% $192,021,536 $111,749,408 $92,263,248 $2,841,873,170 $3,820,406,516 $150,468,996 $97,297,376 $92,496,568 $84,445,460 $80,218,266 $2,921,911,225 $3,426,837,891 $158,646,527 $148,938,720 $144,667,698 $123,430,336 $120,444,937 $1,546,717,310 $2,242,845,528 Source: USITC Trade Dataweb, [http://dataweb.usitc.gov]. Note: Imports for consumption, actual U.S. dollars. Tariff rates are ad valorem unless otherwise specified. CRS-34 Table 4. Leading GSP Beneficiaries and Total, 2007 Rank Beneficiary Developing Country Total Imports ($ millions) GSP Duty-Free Imports ($ millions) 1 Angola $12,211 $6,924 2 India $23,857 $4,735 3 Thailand $22,685 $3,820 4 Brazil $25,018 $3,427 5 Indonesia $14,411 $2,243 6 Equatorial Guinea $1,683 $1,313 7 South Africa $9,132 $1,190 8 Philippines $9,397 $1,165 9 Turkey $4,616 $1,128 10 Argentina $4,258 $666 Imports from Top 10 Beneficiaries $127,268 $26,611 Total Imports from all Beneficiaries $313,405 $30,831 Source: U.S. International Trade Commission Dataweb, at [http://dataweb.usitc.gov]. CRS-35 Table 5. GSP Implementation and Extensions, 1975 - 2008 Public Law Effective Date Date Expired Notes P.L. 93-618, Title V, Trade Act of 1974 January 2, 1975 January 2, 1985 Statute originally enacted. P.L. 98-573, Title V, Trade and Tariff Act of 1984 October 30, 1984 July 4, 1993 Substantially amended and restated. P.L. 103-66, Section 13802 (in Omnibus Budget Reconciliation Act, 1993) August 10, 1993 September 30, 1994 Extended retroactively from July 5, 1993 to August 10, 1993. Also struck out reference to “Union of Soviet Socialist Republics” P.L. 103-465, Section 601 Uruguay Round Agreements Act December 8, 1994 July 31, 1995 Extended retroactively from September 30, 1994 to December 8, 1994. No other amendments to provision. P.L. 104-188, Subtitle J, section 1952 GSP Renewal Act of 1996 (in Small Business Job Protection Act of 1996) October 1, 1996 (for GSP renewal only) May 31, 1997 Substantially amended and restated. Extended retroactively from August 1, 1995 to October 1, 1996. P.L. 105-34, Subtitle H, section 981 (in Taxpayer Relief Act of 1997) August 5, 1997 June 30, 1998 Extended retroactively from May 31, 1997 to August 5, 1997. No other amendments to provision. P.L. 105-277, Subtitle B, section 101 (in Omnibus Consolidated and Emergency Supplemental Appropriations, 1999) October 21, 1998 June 30, 1999 Extended retroactively from July 1, 1998 to October 21, 1998. No other amendments to provision. P.L. 106-170, section 508, (in Ticket to Work and Work Incentives Act of 1999) December 17, 1999 September 30, 2001 Extended retroactively from July 1, 1999 to December 17, 1999. No other amendments to provision. CRS-36 Public Law Effective Date Date Expired Notes P.L. 107-210, Division D, Title XLI Trade Act of 2002 August 6, 2002 December 31, 2006 Extended retroactively from September 30, 2001 to August 6, 2002. Amended to (1) include requirement that BDCs take steps to support efforts of United States to combat terrorism and (2) further define the term “internationally recognized worker rights.” P.L. 109-432, Title VIII December 31, 2006 December 31, 2008 Extended before program lapse. P.L. 110-436, section 4 October 16, 2006 December 31, 2009 Extended before program lapse. CRS-37 Table 6. Beneficiary Developing Countries and Regions for Purposes of the Generalized System of Preferences (GSP), and Additional Qualifying Preference Programs, July 1, 2008 Afghanistan A+ Albania Algeria Angola A+ Argentina Armenia Bangladesh A+ Belize E BeninA+ BhutanA+ Bolivia J Bosnia and Hercegovina Botswana Brazil Burkina Faso A+ Burundi A+ Cambodia A+ Cameroon Cape Verde A+ Central African Republic A+ Chad A+ Colombia J Comoros A+ Congo (Brazzaville) Congo (Kinshasa) A+ Costa Rica E Cote d’Ivoire Croatia Djibouti A+ Dominica E East Timor Ecuador J Egypt Equatorial Guinea A+ Eritrea Ethiopia A+ Fiji Gabon Gambia, The A+ Georgia Ghana Grenada E Guinea A+ Guinea-Bissau A+ Guyana E Haiti A+ E India Indonesia Iraq Jamaica E Jordan Kazakhstan Kenya Kiribati A+ Kyrgyzstan Lebanon Lesotho A+ Liberia A+ Macedonia, Former Yugoslav Republic of Madagascar A+ Malawi A+ Mali A+ Mauritania A+ Mauritius Moldova Mongolia Mozambique A+ Namibia Nepal A+ Niger A+ Nigeria Oman Pakistan Panama E Papua New Guinea Paraguay Peru J Philippines Russia Rwanda A+ St. Kitts and Nevis E Saint Lucia E Saint Vincent and the Grenadines E Samoa A+ Sao Tome and Principe A+ Senegal Serbia and Montenegro Seychelles Sierra Leone A+ Solomon Islands Somalia A+ South Africa Sri Lanka Suriname Swaziland Tanzania A+ Thailand Togo A+ Tonga Trinidad and Tobago E Tunisia Turkey Tuvalu A+ Uganda A+ Ukraine Uruguay Uzbekistan Vanuatu A+ Venezuela Republic of Yemen A+ Zambia A+ Zimbabwe Source: Harmonized Tariff Schedule of the United States (2008). A+ GSP Least-Developed Beneficiary Developing Country J Beneficiary Country of Andean Trade Preference (ATPA) E Beneficiary Country of Caribbean Basin Economic Trade Partnership Act (CBTPA) G Beneficiary Country of African Growth and Opportunity Act (AGOA) CRS-38 Non-Independent Countries and Territories Anguilla British Indian Ocean Territory Christmas Island (Australia) Cocos (Keeling) Islands Cook Islands Falkland Islands (Islas Malvinas) Gibraltar Heard Island and McDonald Islands Montserrat Niue Norfolk Island Pitcairn Islands Saint Helena Tokelau Turks and Caicos Islands Virgin Islands, British Wallis and Fortuna West Bank and Gaza Strip Source: Harmonized Tariff Schedule of the United States, 2008 Associations of Countries (treated as one country) Member Countries of the Cartagena Agreement (Andean Group) Bolivia Colombia Ecuador Peru Member Countries of the West African Economic and Monetary Union (WAEMU) Benin Burkina Faso Cote d’Ivoire Guinea-Bissau Mali Niger Senegal Togo Qualifying Member Countries of the Southern Africa Development Community (SADC) Botswana Mauritius Tanzania Qualifying Member Countries of the South Asian Association for Regional Cooperation (SAARC) Bangladesh Bhutan India Nepal Pakistan Sri Lanka Qualifying Member Countries of the Association of South East Asian Nations (ASEAN) Cambodia Indonesia Philippines Thailand Source: Harmonized Tariff Schedule of the United States, 2008. Qualifying Member Countries of the Caribbean Common Market (CARICOM) Belize Dominica Grenada Guyana Jamaica Montserrat St. Kitts and Nevis Saint Lucia Saint Vincent and the Grenadines