Trade Promotion Authority (TPA) and the
Role of Congress in Trade Policy
J. F. Hornbeck
Specialist in International Trade and Finance
William H. Cooper
Specialist in International Trade and Finance
April 7, 2011
Congressional Research Service
7-5700
www.crs.gov
RL33743
CRS Report for Congress
P
repared for Members and Committees of Congress
Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy
Summary
On July 1, 2007, Trade Promotion Authority (TPA—previously fast track), expired. TPA is the
authority Congress grants to the President to enter into certain reciprocal (free) trade agreements
(FTAs), and to have their implementing bills considered under expedited legislative procedures,
provided he observes certain statutory obligations in negotiating them. TPA defines how Congress
has chosen to exercise its constitutional authority over a particular aspect of trade policy, while
presumably giving the President added leverage to exercise his authority to negotiate trade
agreements by effectively assuring U.S. trade partners that final agreements will be given swift
and unamended consideration.
TPA reflects years of debate, cooperation, and compromise between Congress and the Executive
Branch in finding a pragmatic accommodation to the exercise of each branch’s respective
authorities over trade policy. The core provisions of the fast track legislative procedures have not
changed since first enacted in 1974, although Congress has expanded trade negotiation objectives,
oversight, and presidential notification requirements. While early versions of fast track/TPA
received broad bipartisan support, renewal efforts have become increasingly controversial as fears
have grown over the negative effects of trade, and as the trade debate has become more partisan
and constituent driven, culminating in a party-line vote on the 2002 renewal. Debate on TPA
renewal may center on clarifying key aspects of: the congressional role in making trade policy;
Congress’s oversight of trade negotiations; trade agreement enforcement; and further refinement
of trade negotiation objectives on labor, environment, and public health issues, among others.
A congressional decision on TPA renewal could affect multiple trade negotiations and pending
agreements. The 112th Congress has inherited agreements with Colombia, Panama, and South
Korea that were signed in time to be considered under the 2002 TPA. In the cases of Panama and
South Korea, it appears that implementing legislation, should it be introduced, would still be
eligible for fast-track expedited procedures. Colombia, however, presents a different scenario
because implementing legislation was introduced in the House during the 110th Congress, only to
be denied such expedited procedures by a House-passed resolution. Because subsequent
Parliamentarian rulings in the House and the Senate differed on the possible future use of fast
track for the Colombia FTA, an initial debate may involve clarifying the rules under which an
implementing bill might be considered. In addition, the status of TPA renewal could affect or be
influenced by progress made toward the Trans-Pacific Partnership (TPP) Agreement or the World
Trade Organization (WTO) Doha Round of multilateral negotiations.
The prospects for renewing TPA are unclear and depend on one’s perspective as to whether
having TPA in place benefits the U.S. negotiation position. Technically, TPA is not necessary to
begin or even conclude trade negotiations, but it is widely understood to be a key element of
getting a trade implementing bill passed in Congress, and so its renewal can be construed as
signaling U.S. support for moving ahead with trade negotiations. When Congress decides to
consider the issue, it has many options including: take no action; extend temporarily; revise and
renew; grant permanent authority; or devise some hybrid solution. How this issue plays out
depends on a host of political and economic variables, including congressional action on restoring
a “political compact” that sits at the center of a well functioning TPA process.
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Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy
Contents
Introduction ................................................................................................................................ 1
A Brief History of TPA ............................................................................................................... 2
The U.S. Constitution and Foreign Trade............................................................................... 2
The Evolution of the Congressional-Executive Partnership.................................................... 3
The Creation of Fast Track Trade Authority........................................................................... 4
Subsequent Renewals of Fast Track Trade Authority ............................................................. 5
The Trade Agreements Act of 1979 ................................................................................. 5
The Trade and Tariff Act of 1984..................................................................................... 6
Omnibus Trade and Competitiveness Act of 1988 (OTCA).............................................. 6
A Hiatus.......................................................................................................................... 6
The Bipartisan Trade Promotion Authority Act of 2002 ................................................... 7
The Elements of TPA .................................................................................................................. 8
Trade Agreements Authority.................................................................................................. 8
Implementation of Trade Agreements .................................................................................... 9
Expedited Legislative Procedures.......................................................................................... 9
Negotiating Objectives........................................................................................................ 10
Notification and Consultation.............................................................................................. 11
Congressional Procedures Outside TPA............................................................................... 12
Hearings and Mock Markups ........................................................................................ 12
Side Agreements and Letters ......................................................................................... 13
Informal Agreements..................................................................................................... 14
Limiting Trade Agreements Authority ................................................................................. 14
Sunset Provision ........................................................................................................... 14
Extension Disapproval .................................................................................................. 14
Procedural Disapproval ................................................................................................. 14
Withdrawal of Expedited Procedures............................................................................. 15
Issues for Congress ................................................................................................................... 15
The Need for TPA ............................................................................................................... 15
Options for Congress and Prospects for Renewal....................................................................... 16
Figures
Figure A-1. Congressional Timeline Under TPA........................................................................ 18
Appendixes
Appendix A. Congressional Timeline Under TPA ...................................................................... 18
Appendix B. A Short Guide to the Expedited Legislative Procedures for Passage of Trade
Implementing Bills Under TPA .............................................................................................. 19
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Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy
Contacts
Author Contact Information ...................................................................................................... 20
Congressional Research Service
Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy
n July 1, 2007, Trade Promotion Authority (TPA—previously fast track) expired, and
with it the authority that Congress grants to the President to enter into certain reciprocal
O (free) trade agreements, and to have the requisite implementing legislation considered
under expedited legislative procedures. Although the President has the authority under the
Constitution to negotiate free trade agreements (FTAs), typically implementing legislation and
thus congressional action are required to bring them into force. This report presents background
and analysis on the development of TPA, a summary of the major provisions under the expired
authority, and a discussion of the issues that have arisen in the debate over TPA renewal. It also
explores the policy options available to Congress.
Introduction
The 112th Congress has inherited a number of trade issues. Among them are reciprocal free trade
agreements with Colombia, Panama, and South Korea, which were negotiated and signed during
the 110th Congress. It appears increasingly likely that an accommodation between the Executive
and Legislative branches may allow for the introduction of implementing bills for all three FTAs
in 2011. Each was signed prior to the expiration of TPA authority, and in the cases of Panama and
South Korea, are likely to be eligible for consideration under TPA rules. Colombia, however,
presents a different scenario because implementing legislation was introduced in the House
during the 110th Congress, only to be denied such expedited procedures by a House-passed
resolution. Parliamentarian determinations since then differed in the House and the Senate as to
whether the fast-track procedures will be available for a future implementing bill, should one be
introduced. Given recent changes made to the U.S.-Korea FTA, Congress may also have to decide
how or if TPA would apply in this case as well.1
Other pertinent trade issues related to the possible need for TPA are the prospect for passage of
either the Doha Development Round of World Trade Organization (WTO) multilateral
negotiations, and the Trans-Pacific Partnership (TPP) Agreement.2 Although both are still far
from complete, congressional approval likely would require renewed TPA.
For over 30 years, Congress has granted the President TPA/fast track authority, agreeing to
consider trade implementing legislation expeditiously and to vote on it without amendment,
provided the President meets certain statutory negotiating objectives and consultation
requirements, and the implementing bill contains the necessary and limited qualifying provisions.
TPA strikes a delicate balance by clarifying how Congress chooses to exercise its constitutional
authority over a particular aspect of trade policy, while presumably giving the President
additional negotiating leverage by effectively assuring trade partners that a final agreement will
be given swift and unamended consideration by Congress.3 Earlier incarnations of TPA, although
controversial, were adopted with substantial bipartisan majorities. Over time, however, trade
negotiations have become more complex. Congress has insisted on tighter oversight and
consultation requirements, and the trade debate has become more partisan in nature, making
congressional renewal of TPA even more controversial.
1 For details, see CRS Report R41544, Trade Promotion Authority and the U.S.-South Korea Free Trade Agreement, by
Emily C. Barbour
2 CRS Report R40502, The Trans-Pacific Partnership Agreement, by Ian F. Fergusson and Bruce Vaughn.
3 Such a presumption has come under question since the three negotiated FTAs have languished for over three years
without congressional action.
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A future discussion of the parameters of renewed TPA will likely center on clarifying key aspects
of the congressional role in (1) making trade policy, (2) overseeing trade negotiations, (3)
defining trade agreement enforcement, and (4) further refining labor, environment, and public
health trade negotiation objectives, among others. The last issue remains perhaps among the most
controversial areas of policy debate, as reflected in the bipartisan agreement reached on May 10,
2007. The agreement, crafted jointly by congressional leadership and the Bush Administration,
incorporates important changes, some with broad implications. These have already altered the
language of the FTAs with Peru, Colombia, Panama, and South Korea. Among important changes
from previous FTAs, signatories must now (1) adopt as fully enforceable commitments the five
basic labor rights defined in the United Nations International Labor Organization’s (ILO)
Fundamental Principles and Rights at Work and its Follow-up (1998) Declaration, (2) adhere to
numerous multilateral environmental agreements (MEAs), and (3) accept pharmaceutical
intellectual property rights (IPR) provisions that could expedite that country’s access to generic
drugs.4
The expiration of TPA raises the central question of whether, when, and in what form TPA should
be renewed, including to what degree, if any, provisions of the May 10 agreement might be
incorporated. Congressional interest in moving ahead with one or more of the outstanding FTAs
could be one catalyst for action. Progress on the TPP or Doha Round could also lead to renewed
interest in TPA, but there is no sense that a conclusion to either of these negotiations will
materialize in the near future.
A Brief History of TPA
TPA is the product of many years of debate, cooperation, and compromise between Congress and
the Executive Branch. At its foundation lie the respective constitutional powers granted to
Congress and the President, as well as the pragmatic realization that a certain cooperative
flexibility is needed if the United States is to negotiate trade agreements credibly. The evolution
of TPA to date shows, among other things, that the Congressional-Executive partnership on trade
policymaking can be strained as it adjusts to evolving political and economic conditions and
shifting priorities of the two Branches.
The U.S. Constitution and Foreign Trade
The U.S. Constitution assigns express authority over foreign trade to Congress. Article I, Section
8 gives Congress the power to “regulate commerce with foreign nations ...” and to “... lay and
collect taxes, duties, imposts, and excises....” In contrast, the Constitution assigns no specific
responsibility for trade to the President.5 Under Article II, however, the President has exclusive
authority to negotiate treaties and international agreements and exercises broad authority over the
conduct of the nation’s foreign affairs. Both legislative and executive authorities come into play
in the development and execution of U.S. trade agreements and trade policy.
4 Available at: http://www.ustr.gov/sites/default/files/uploads/factsheets/2007/asset_upload_file127_11319.pdf.
5 Destler, I. M. American Trade Politics. Fourth Edition. Institute for International Economics. Washington, DC. 2005.
p. 14.
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The Evolution of the Congressional-Executive Partnership
For roughly the first 150 years of the United States, the Congress exercised its authority over
foreign trade by setting tariff rates on all imported products. The tariff was the main trade policy
instrument and primary source of federal revenue. Early congressional trade debates pitted
members from northern manufacturing regions, who benefitted from protectionist tariffs, against
those from largely southern raw material exporting regions, who lobbied for low tariffs. During
this period, the President’s primary role in setting trade policy was to use his foreign affairs
authority to negotiate, bring into force, and implement (with the advice and consent of the Senate)
general bilateral treaties of friendship, commerce, and navigation. These treaties provided
nondiscriminatory or most-favored-nation (MFN) treatment to the goods of the parties to those
treaties with United States; that is, reductions in tariffs on imports from one trade partner applied
to imports from all other countries with which the United States had such trade agreements.6
Two legislative events occurred in the 1930s that radically changed the shape and conduct of U.S.
trade policy. The first was the “Smoot-Hawley” Tariff Act of 1930 (P.L. 71-361), which set
prohibitively high tariff rates in response to U.S. producers seeking protection during the height
of the Great Depression. The tariffs led to retaliatory tariffs from the major U.S. trading partners,
severely restricting trade, thus deepening and prolonging the effects of the depression.
The damaging effects of Smoot-Hawley prompted the second major trade legislative event in the
1930s. Congress, with the guidance and encouragement of Secretary of State Cordell Hull,
himself a former Senator, developed and enacted the Reciprocal Trade Agreements Act of 1934
(RTAA; P.L. 73-316). The RTAA authorized the President to negotiate reciprocal agreements that
reduced tariffs within pre-approved levels. The tariffs were applied on an MFN basis. Under the
RTAA, Congress authorized the president to implement the new tariffs by proclamation without
additional legislation. The RTAA is important for several reasons:
• For the first time, Congress expressly delegated to the President major trade
negotiating authority. In so doing, it is argued, Congress aimed to lessen the
protectionist pressure on itself.7
• The Smoot-Hawley tariff was the last general tariff legislation passed by
Congress. While still on the books, the Smoot-Hawley tariffs are only applied to
imports from those few countries, namely Cuba and North Korea, not receiving
MFN status, now called normal trade relations status (NTR) in U.S. trade laws.
• While delegating some authority, Congress in no way surrendered its trade
authority. Congress subjected the tariff negotiating authority to periodic review.
Congress renewed presidential reciprocal trade authority eleven times until 1962 through trade
agreement extension acts. General tariff levels declined and their significance as a trade barrier
lessened.8 In addition, with the establishment of the General Agreement on Tariffs and Trade
6 Hal Shapiro and Lael Brainard, "Trade Promotion Authority Formerly Known as Fast Track: Building Common
Ground on Trade Demands More Than a Name Change," The George Washington International Law Review, vol. 35,
no. 1 (2003). MFN, also known in U.S. law as normal trade relations (NTR) status, means that the United States would
treat the imports from that trading partner no less favorably than the imports from other trading partners.
7 Destler, American Trade Politics, pp. 14-15 and Pastor, Robert A. Congress and the Politics of U.S. Foreign
Economic Policy 1929-1976. University of California Press. Berkeley, 1980. pp. 79-80.
8 Shapiro and Brainard, Trade Promotion Authority Formerly Known as Fast Track, p. 11.
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(GATT) in 1948, the major forum for trade negotiations shifted from bilateral to multilateral
negotiations, and trade negotiations were eventually expanded beyond tariffs.9
Under the Trade Expansion Act of 1962, Congress granted the President authority for five years
to negotiate the reduction or elimination of tariffs and expanded its role in the process by
requiring the President to submit for congressional review a copy of each concluded agreement
and a presidential statement explaining why the agreement was concluded. It allowed the
President to negotiate the GATT Kennedy Round (1963-1967), the last round in which tariff
reduction was the primary focus of trade negotiations.
Along with a number of tariff reduction agreements (which Congress authorized the President to
implement by proclamation), the GATT countries reached agreements in two areas related to non-
tariff barriers (NTBs), that is, laws and rules other than tariffs that are used to restrict imports.
The first was a customs valuation agreement that would have required the United States to
eliminate the American Selling Price method of pricing goods at the border. The second was an
antidumping agreement that would have required changes in U.S. antidumping practices.10
Because U.S. adherence to these agreements required changes in U.S. law or regulations beyond
tariff modifications, many in Congress concluded that the President had exceeded his authority. In
fact, Congress passed a resolution in 1966 opposing “nontariff commitments” made by the
Johnson Administration that had not been approved by Congress, setting up the debate that would
eventually be resolved with the creation of the fast track authority for trade agreements.11
The Creation of Fast Track Trade Authority
The results of the Kennedy Round made evident that non-tariff barriers would increasingly
dominate the agenda of future multilateral trade agreements, and would require changes in U.S.
law if the United States were to adhere to them. Concern over presidential encroachment on its
legislative authority prompted Congress to seek a legislative remedy.
After the expiration of the tariff modification authority in the Trade Expansion Act of 1962, the
Administration sought new authority to negotiate the Tokyo Round in the GATT, which Congress
granted in the Trade Act of 1974 (P.L. 93-618). As before, the act provided the President with the
authority to negotiate and implement the reduction and elimination of tariffs within certain
parameters. To address the issue of agreements that required changes in U.S. law beyond tariff
modifications, the act stipulated that non-tariff barrier agreements entered into under the statute
could only enter into force if Congress passed implementing legislation.
It was argued that subjecting implementing legislation to ordinary congressional debate and
amendment procedures would defeat the purpose for delegating trade negotiating authority to the
President in the first place—to reduce the parochial pressures implicit in trade policymaking.
Many members also recognized that trade partners would not be willing to negotiate agreements
9 The General Agreement on Tariffs and Trade (GATT) went into effect in 1948 as a set of rules governing
international trade. Over time, the number of GATT signatories grew and the body of rules was expanded in a series of
negotiations called rounds. During the Uruguay Round, the signatories agreed to establish the World Trade
Organization (WTO), now 153 members, to administer the GATT and other multilateral trade agreements.
10 Destler, I. M. Renewing Fast-Track Legislation. Institute for International Economics. Washington, DC. September
1997. p. 6.
11 Destler, I. M., American Trade Politics, pp. 71-72.
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that would be subject to unlimited congressional debate and amendments. As stated in the Senate
Finance Committee report accompanying the Trade Act of 1974:
The Committee recognizes ... that such agreements negotiated by the Executive should be
given an up-or-down vote by the Congress. Our negotiators cannot be expected to
accomplish the negotiating goals ... if there are no reasonable assurances that the negotiated
agreements would be voted up-or-down on their merits. Our trading partners have expressed
an unwillingness to negotiate without some assurances that the Congress will consider the
agreements within a definite time-frame.12
As a solution, Congress agreed that each Chamber would suspend its ordinary legislative
procedures and give trade agreements expedited treatment, which became known as “fast track.”
The relevant committees would be given limited time to consider implementing bills. Once they
reached the floor, the implementing bills would be subject to time-limited debate and no
amendments. In exchange, Congress required the Executive Branch to consult with relevant
committees during the negotiations and to notify Congress 90 calendar days before signing an
agreement. The act also provided for the accreditation of 10 members of Congress as advisers to
the U.S. delegation of negotiators. (The Trade Act of 1962 had provided for five such advisers.)
Thus, fast track for trade agreements was born!
With the trade “negotiating” authority and the “fast track” provisions of the Trade Act of 1974,
the United States participated in the Tokyo Round (1973-1979). As expected, this round resulted
in a number of agreements on NTBs, such as government procurement practices, product
standards, customs regulations, and rules for administering antidumping and countervailing duty
procedures. The Trade Agreements Act of 1979 (P.L. 96-39) was the first trade agreement bill
implemented by Congress under fast track procedures.
Subsequent Renewals of Fast Track Trade Authority
The core provisions of the fast track procedures have remained virtually unchanged since they
were first enacted. (The next section of this report examines fast track procedures and the trade
agreements authority in more detail.) These provisions are ensconced in Sections 151-154 of the
Trade Act of 1974, as amended, and are not subject to sunset provisions. The ability to use them,
however, is subject to time limits, and Congress has revised them over the years. The initial grant
of trade “negotiating” authority and the authority to enact tariff modifications by proclamation
under the Trade Act of 1974 were in effect for five years ending on January 2, 1980. A residual
presidential authority to proclaim tariff modifications expired January 2, 1982.
The Trade Agreements Act of 1979
Along with implementing the Tokyo Round agreements, the Trade Agreements Act of 1979
extended for eight years, until January 2, 1988, the presidential authority to enter into agreements
on non-tariff barriers but made no other changes to the original authority. The act did not extend
presidential tariff modification authority.
12 U.S. Congress. Senate. Committee on Finance. Trade Reform Act of 1974; report...on H.R. 10710...(S.Rept. 93-1298)
November 26, 1974. U.S. Govt. Print. Off., 1974. p. 107.
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The Trade and Tariff Act of 1984
This act amended the Trade Act of 1974 to provide for the negotiation and implementation of
bilateral free trade agreements that both reduce or eliminate tariffs and address non-tariff barriers.
Congress was taking into account the U.S.-Israel and U.S.-Canada FTAs that were under
consideration. The legislation waived for the U.S.-Israel FTA the requirement of 90-day
notification to Congress prior to entering the agreement. However, for negotiations with other
countries, it required the President to notify the House Ways and Means Committee and the
Senate Finance Committee of his intention to begin FTA negotiations 60 days prior to entering
the negotiations and provided for denial of fast track consideration if either Committee
disapproved of the negotiation within 60 days after receiving the notification. The act also
required that agreements that lead to tariff modifications beyond a certain threshold be subject to
congressional approval via implementing legislation.
Omnibus Trade and Competitiveness Act of 1988 (OTCA)
The OTCA extended the president’s authority to enter into trade agreements before June 1, 1993,
but extended the application of fast track procedures only for agreements entered into before June
1, 1991. Legislation for agreements entered into after that date, but before June 1, 1993, could be
approved under fast track procedures, if the President requested an extension of such authority
and it was not disapproved by either the House or the Senate. (The President requested the
extension, which survived proposed House and Senate resolutions of disapproval.) The OTCA
also provided that Congress could withhold a trade agreement from fast track consideration, by
passing a resolution of disapproval, if it determined that the USTR had failed to consult with
Congress adequately during the trade negotiations. Under the OTCA provisions, Congress passed
implementing legislation for the North American Free Trade Agreement (NAFTA) in 1993 (P.L.
103-182).
However, negotiations under the Uruguay Round of the GATT were not going to finish in time to
meet the June 1, 1993 expiration deadline. Congress, therefore, passed H.R. 1876, signed by the
President on July 2, 1993 (P.L. 103-49), extending the authority and implementing procedures
until April 16, 1994, for the Uruguay Round agreements. The votes reflected strong congressional
support for extending the authority in the House (295-126) and in the Senate (76-16). The law did
not change any other aspects of the fast track authority.
A Hiatus
After the fast track authority expired on April 16, 1994, Congress did not approve new authority
until the Trade Act of 2002 (H.R. 3009; P.L. 107-210). The eight-year period was the longest
hiatus since fast track was initially approved in 1974. In 1997, both the Senate Finance and the
House Ways and Means Committees reported out legislation to renew fast track. House
Republican leaders pulled it before a floor vote at the request of the Clinton Administration
because it lacked sufficient support in the House. In September 1998, the House voted on fast
track authority legislation, but the bill failed to pass (180-243).
Several reasons may explain the failure of the Clinton Administration and Congress to get fast
track procedures re-authorized. For one, although both the Republican congressional leadership
and the Clinton Administration wanted fast track authority, the two sides could not agree on how
labor and environmental issues should be addressed in trade agreements negotiated under
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renewed authority. Republicans wanted limited coverage while the Clinton Administration and
many Democrats in Congress preferred broader coverage. In addition, the WTO failed to launch a
new round of negotiations at the 1999 Ministerial meeting in Seattle, and therefore, no major
trade negotiations were underway that might have made the adoption of a fast track statute a
political priority.
The Bipartisan Trade Promotion Authority Act of 2002
In 2001, President Bush requested a renewal of fast track authority, which was renamed in the
legislation “trade promotion authority (TPA),” in part to counter a negative connotation
associated with the fast track name. The renewed authority is contained in the Bipartisan Trade
Promotion Authority Act (BTPAA) of 2002, which was enacted as Title XXI of The Trade Act of
2002 (P.L. 107-210).
The structure of TPA was consistent with previous negotiating authority. It included labor and
environmental provisions as “principal negotiating objectives,” but did not mandate the inclusion
of minimal enforceable labor standards in trade agreements.13 The lack of a mandate to include
such standards was the source of much of the opposition from labor groups and many members of
Congress. The act also created a new mechanism for congressional consultation, the
Congressional Oversight Group (COG), to operate in addition to the congressional trade advisors
that have been appointed under previous versions. (A more detailed discussion of the notification
and consultation requirements appears in the next section.)
The original House version of the BTPAA (H.R. 3005) passed by one vote (215-214), largely
along party lines, with Republicans mostly supporting the bill and Democrats largely opposing it.
The legislation was combined in the Senate with the renewal of Trade Adjustment Assistance
(TAA), the Andean Trade Preference Act (ATPA), and the Generalized System of Preferences
(GSP). It passed 66 to 30. The conference report on the final bill, H.R. 3009, the Trade Act of
2002, was adopted by the House (215-212) and Senate (64-34).14
Under the 2002 version of TPA, Congress approved implementing legislation for FTAs with
Chile, Singapore, Australia, Morocco, the Dominican Republic, the Central American countries,
Bahrain, Oman, and Peru. In addition, the United States signed FTAs with Colombia, Panama,
and South Korea just before TPA expired on July 1, 2007. The United States was also interested
in FTA negotiations with Malaysia, Thailand, the United Arab Emirates, and the members of the
South African Customs Union (SACU), which are currently suspended and would have to be
taken up under some future TPA authority for legislation to considered under expedited
procedures.
The United States and more than 150 other members of the WTO are also engaged the Doha
Development Agenda (DDA), a protracted round of multilateral negotiations set to revise and
expand rules for conducting trade in agriculture, manufactured goods, and services, with an
emphasis on meeting the needs of developing countries.15 In addition, negotiations on the TPP
13 Devereaux, Charan, Robert Z. Lawrence, and Michael D. Watkins. Case Studies in US Trade Negotiation, Volume 1:
Making the Rules. Institute for International Economics. Washington, DC. September 2006. p. 229.
14 For details on votes on this legislation, see CRS Report RS21004, Trade Promotion Authority and Fast-Track
Negotiating Authority for Trade Agreements: Major Votes, by Carolyn C. Smith.
15 For more information on current U.S. trade negotiations, see CRS Report RL33463, Trade Negotiations During the
(continued...)
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may become a compelling reason to reconsider the need for TPA. Although many argue that TPA
is necessary for the U.S. bargaining position to remain credible, others note that TPA is not
required to complete the negotiations (as the example of the Uruguay Round discussed above
suggests). Should a breakthrough be made on an agreement that the U.S. Congress would
approve, Congress could extend TPA exclusively for the TPP or Doha Round at any time.
The Elements of TPA
Through TPA/fast track, in its various iterations, Congress has sought to achieve four major goals
in the context of supporting trade negotiations: (1) to define trade policy priorities and to have
those priorities reflected in trade agreement negotiating objectives; (2) to ensure that the
Executive Branch adheres to these objectives by requiring periodic notification and consultation;
(3) to define the terms, conditions, and procedures under which the President may enter into trade
agreements and under which the respective implementing bills are approved; and (4) to reaffirm
Congress’s overall constitutional authority over trade by placing limitations on the trade
agreements authority. These four goals, and some important procedural precedents that fall
outside the formal legal TPA process, are examined below.
Trade Agreements Authority
As discussed above, when the statutory authority to negotiate trade agreements was limited to
reducing tariffs, the trade agreement was implemented by presidential proclamation and without
further congressional action, provided the tariff rate reductions were within legislatively pre-
approved limits. This process changed when trade negotiations were expanded to include non-
tariff barriers (NTBs). These more complex agreements led Congress to tighten its control over
trade policy by establishing fast track trade negotiating authority. As set out in the Trade Act of
1974, NTB agreements could enter into force for the United States only with passage of
implementing legislation.16
At the heart of what is now called TPA are the expedited procedures for moving trade
implementing legislation through Congress (Section 151 of the Trade Act of 1974—see below),
which have been used for nearly all reciprocal trade agreements.17 Under Section 2103 of the
Trade Act of 2002, Trade Agreements Authority, Congress makes these expedited procedures
available only for a qualifying bill, which is referred to as a trade implementing bill. The bill
qualifies only if certain conditions are met. First, the trade agreement entered into must make
(...continued)
110th Congress.
16 Under TPA, reciprocal FTAs and multilateral NTB agreements that go beyond tariff reductions are treated as
congressional-executive agreements, which require the approval of both Houses of Congress. Such approval expresses
Congress’ consent to bind the United States to the commitments of the agreement under international law. This type of
agreement is distinguished from both the executive agreement, requiring only presidential action, and the treaty,
requiring a two-thirds vote of the Senate. Because reciprocal trade agreements typically result in tariff rate (revenue)
changes, the House of Representatives is necessarily involved. For a more detailed legal discussion, see CRS Report
97-896, Why Certain Trade Agreements Are Approved as Congressional-Executive Agreements Rather Than as
Treaties, by Jeanne J. Grimmett; and Shapiro, Hal S. Fast Track: A Legal, Historical, and Political Analysis. Ardsley,
NY, Transnational Publishers. 2006. p. 22.
17 The U.S.-Jordan free trade agreement is the exception.
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progress in meeting TPA’s negotiating objectives, and the President must satisfy the notification
and consultation requirements of the TPA statute (see below). Second, the implementing bill must
contain provisions that approve the agreement and the statement of administrative action, and
contain only those other provisions “necessary or appropriate” to implement the agreement
(“either repealing or amending existing laws or providing new statutory authority.”)18
Importantly, Congress has been explicit that the fast track procedures “are enacted as an exercise
of the rulemaking power of the House and the Senate, with the recognition of the right of either
House to change the rules at any time.”19 This provision is one of many that conveys a
congressional priority in controlling the approval and implementation of trade agreements.
Implementation of Trade Agreements
A trade agreement enters into force under Section 2105 of the Trade Act of 2002 “if and only if”:
1) at least 90 calendar days prior to signing the agreement, the President notifies Congress of his
intention to do so (to provide opportunity for congressional review and possibly provide input
before the agreement is signed, at which point it can no longer be changed);
2) within 60 calendar days of signing the agreement, the President provides Congress with a list
of required changes to U.S. law needed for the United States to bring the United States into
compliance with the agreement;
3) after entering into the agreement, on a day in which both Houses of Congress are in session,
the President transmits a copy of the final legal text of the trade agreement, a draft implementing
bill, statement of administrative action proposed to implement the agreement, and supporting
statements on how the agreement meets congressional objectives, changes existing agreements,
serves the purpose of U.S. commercial interests, and on how the implementing bill meets the
statute’s requirements for being an implementing bill (see section above), and;
4) the implementing bill is enacted into law.
Expedited Legislative Procedures
Should the above requirements be fulfilled to the satisfaction of Congress, it has agreed to follow
certain expedited legislative procedures as defined in Sections 151-154 of the Trade Act of 1974,
as amended. In effect, these rules require that Congress must act on the bill sent over by the White
18 These conditions are reinforced in U.S. Congress, Committee on Conference, Trade Act of 2002, Conference Report
to accompany H.R. 3009, 107th Cong., 2nd sess., July 26, 2002, H.Rept. 107-624 (Washington: GPO, 2002), p. 161.
19 In addition to the statute, this rule is reinforced in the conference report, ibid., pp. 166-167. Indeed, the House did
change the rules on April 10, 2008, when it approved H.Res. 1092 (224-195). That measure stated that Sections
151(e)(1) and Section 151(f)(1) of the Trade Act of 1974 would not apply to H.R. 5724, the implementing legislation
for the U.S.-Colombia FTA. Section 151 establishes the expedited (fast-track) procedures. Section 151(e)(1) establishes
the time limits for committee and floor consideration of the implementing bill. Section 151(f)(1) establishes the
procedures for consideration of a motion in the House for consideration of the implementing bill. Other elements of the
expedited procedures, for example, the prohibition on amendments to the implementing bill (Section 151 (d)) would
still have applied to H.R. 5724. Also, H.Res. 1092 only applied to the U.S.-Colombia FTA.
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House, and in other ways represent a significant departure from ordinary legislative procedures.
The major rules are listed below (see Appendix B for greater detail):
1) mandatory introduction of the implementing bill in both Houses of Congress and immediate
referral to the appropriate committees (House Ways and Means, Senate Finance, and possibly
others);20
2) automatic discharge from House and Senate Committees after a limited period of time;
3) limited floor debate; and
4) no amendment, meaning that Congress must vote either up or down on the bill, which passes
with a simple majority.
Negotiating Objectives
Congress exercises its trade policy role, in part, by defining trade negotiation objectives in TPA
legislation. In the 2002 TPA, Congress made clear that trade is an important aspect of U.S.
foreign economic and security policy because it generates broad benefits for the United States and
the global economy. To take the fullest advantage of these benefits, Congress, drawing on its
constitutional authority and historical precedent, defined the objectives that the President is to
pursue in trade negotiations. Although the Executive Branch has some discretion over
implementing these goals, they are definitive statements of U.S. trade policy that the
Administration is expected to honor, if it expects the trade legislation to be considered under
expedited rules. For this reason, trade negotiating objectives stand at the center of the
congressional debate on TPA.
Congress establishes trade negotiating objectives in three categories: (1) overall objectives; (2)
principal objectives; and (3) other priorities. These begin with broadly focused goals that
encapsulate the “overall” direction trade negotiations are expected to take, such as enhancing U.S.
and global economies. Principal objectives are far more specific and provide detailed goals that
Congress expects to be integrated into trade agreements, such as reducing barriers to various
types of trade (e.g., goods, services, agriculture, electronic commerce); protecting foreign
investment and intellectual property rights; encouraging transparency, fair regulatory practices,
and anti-corruption; ensuring that countries protect environment and labor conditions and rights;
providing for an effective dispute settlement process; and protecting the U.S. right to enforce its
trade remedy laws. Objectives also include an important obligation to consult Congress, discussed
in detail below.
In the past, language defining trade negotiating objectives has been highly contested, contributing
to the 2002 renewal controversy in which TPA passed virtually along partisan lines and by only
the narrowest of margins. This controversy reflects the importance of TPA negotiating objectives
as a template for future trade agreements negotiated under these guidelines. For example, if the
language of a TPA objective is highly contentious, it stands to reason that the same issue may
prove even more acerbic when a specific trade agreement is brought before Congress for
approval. The labor provisions, which are emphasized repeatedly in all three groups of
20 Additional referrals depend on whether there are provisions in the agreement that require changes in law under the
jurisdiction of other committees.
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negotiating objectives, provide the best illustration. In particular, the decision not to include
minimal enforceable standards anywhere in TPA caused acrimonious debate over both TPA and
the FTAs that later adopted the TPA language on labor. This issue was perhaps most evident in the
debate on the Dominican Republic-Central America-United States Free Trade Agreement
(CAFTA-DR).
Because the structure of trade agreements mirrors TPA objectives, and highly disputed
agreements based on those objectives brought before Congress under TPA have so far survived,
often narrowly, all challenges from opponents, the vote on renewing TPA/fast track authority is
among the most critical trade votes Congress takes. In the aftermath of the CAFTA-DR and Peru
FTA votes, however, Congress has not taken up any of three remaining FTAs. This impasse is, in
part, the result of broad dissatisfaction in the way TPA defined negotiating objectives, and by
extension, related language in the FTAs themselves. It also reflects a growing skepticism in
Congress and the public at large over the net benefits of trade. Future discussions on TPA may
include options for addressing these concerns.
Notification and Consultation
The trade agreements authority is extended to the President provided he consults regularly with
Congress, including the Congressional Oversight Group (COG) created in the 2002 trade act,
whose members are accredited as official advisors to the trade negotiation delegations.
Notification and consultation requirements have been expanded in each renewal of authority.
Most of these requirements are found in Section 2104 of the TPA statute. The timing of these
notifications is detailed in the time line presented in Appendix A. First, the President must
conduct certain notifications and consultations before negotiations begin that include:
1) notifying Congress in writing of his intention to enter into negotiations at least 90 calendar
days prior to commencing negotiations;
2) consulting with the House Ways and Means, Senate Finance, other relevant committees, and
the COG on the nature of the negotiations; and
3) providing special consultations on agriculture, import sensitive agricultural products, fishing
and textile industry tariffs, and other issues.
The president must also conduct specific notifications and consultations before (and after)
agreements are entered into (signed), to include:
1) notifying Congress in writing of his intention to enter into an agreement at least 90 calendar
days prior to doing so;
2) consulting with House Ways and Means, Senate Finance, other relevant committees, and the
COG with respect to the nature of the agreement, how it achieves the purposes defined in TPA,
and any potential effects it may have on existing laws;
3) notifying the revenue committees at least 180 calendar days prior to entering into the
agreement of any potential changes to U.S. trade remedy laws that may be required;
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4) submitting private sector advisory committee reports to Congress, the President, and the USTR
no later than 30 calendar days after notifying Congress of his intention to enter into an
agreement;21
5) providing the U.S. International Trade Commission (USITC) with trade agreement details at
least 90 days before entering into an agreement; and
6) presenting to Congress no later than 90 calendar days after the President enters into the
agreement, the USITC report on the impact of the agreement on the U.S. economy.
The congressional consultation process is a long-standing precedent and an integral part of TPA.
It reflects Congress’s ongoing interest in ensuring that trade policy remains under the purview of
the legislative branch by establishing in law opportunities to affect the nature and direction of
trade negotiations. The effectiveness of the consultation process, however, has been questioned.
The Government Accountability Office (GAO) evaluated this process based on multiple
interviews with current and former congressional staff and executive branch employees. It found
that from 2002 to 2007, the USTR had conducted “extensive” consultations with members and
staff of Congress on all FTAs that were to be presented to Congress for approval under TPA.22
A majority of congressional staff, however, indicated that despite the frequency and high quality
of information conveyed, the meetings with USTR officials often did not allow for sufficient time
to provide input into the negotiation process, were often cast more as briefings than true
consultations that imply an exchange of views, and did not always include last minute changes to
draft FTA texts. In short, there was ongoing concern expressed that the congressional consultation
process did not satisfy many in Congress and may need to be amended to allow for greater
congressional input into the crafting of FTAs.23
Congressional Procedures Outside TPA
In addition to the expedited procedures defined in TPA, Congress, generally with the effective
support and consent of the Executive Branch, has followed certain procedures during the
consideration of trade agreement implementing bills that, although not formally defined in TPA,
have been integrated into the process of congressional approval of trade agreements. Three in
particular stand out:
Hearings and Mock Markups
Congress has insisted on reviewing the trade agreement prior to the implementing bill being
introduced. This is done first in hearings before the House Ways and Means and Senate Finance
21 The private sector advisory system was established by Congress in 1974 to ensure that U.S. trade policy and
negotiations benefit from, and reflect, a broad array of private sector U.S. interests. It consists of 28 committees and
over 700 advisors, coordinated by the Office of the United States Trade Representative. USTR. 2009 Trade Policy
Agenda and 2008 Annual Report of the President of the United States on the Trade Agreements Program. Washington,
DC. March 2009. pp. 237-240.
22 United States General Accountability Office. Report to the Chairman, Committee on Finance. International Trade:
An Analysis of Free Trade Agreements and Congressional and Private Sector Consultations under Trade Promotion
Authority. GAO-08-59. November 2007. pp. 29 and 41-42
23 Ibid., pp. 29 and 43-46.
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Committees, as well as possibly other interested committees. The Ways and Means and Finance
Committees typically follow with an “unofficial” or “informal” markup session, which may be
followed by a “mock conference” of an informal draft version of the implementing bill, which is
sent over by the White House along with a draft of the final text of the trade agreement.
The informal markup is, in effect, a test run of congressional response to the trade bill. Because it
is only an informal draft bill, there is no real legislation to “mark up,” but the meetings afford
Committee members an opportunity to raise concerns on the draft trade agreement, as well as the
informal draft implementing legislation, and offer amendments that serve as important signals to
the Administration of changes to the actual implementing bill they would like to see made. The
two revenue committees may use the “mock conference” to reconcile any differences in their
informal markups to reinforce their positions.24
Although the agreement at this point has already been concluded, a clarification or “translation”
of key points that do not alter the basic agreement can be made in the final implementing bill.25
The Administration, however, can exercise discretion in accepting suggested changes from
Congress. For example, while the committees offered many changes to the CAFTA-DR
agreement that the Bush Administration tried to accommodate, the same Administration declined
to include the language of an amendment unanimously supported by the Senate Finance
Committee with respect to the U.S.-Oman FTA implementing legislation, citing TPA’s own
requirement that only legislation “necessary or appropriate” to implement the agreement be
included. The Oman bill passed, but a new bipartisan call for better consultation prior to the
President entering into a trade agreement arose because of dissatisfaction with both the Oman
FTA and the TPA process.26
Side Agreements and Letters
Outside of formal TPA statutory requirements, Congress has insisted on or agreed to additions or
clarifications to trade agreements, resulting in side agreements or side letters. Side agreements
can involve additional obligations accepted by all parties after the original trade agreement has
been signed. The most notable examples are the environment and labor side agreements of
NAFTA. Their status with respect to being subject to fast track procedures, however, can be less
than clear.27 Side letters, by contrast, generally act as clarifying devices, usually applied to a very
specific issue. They can be used to assuage a particular congressional concern. Side letters are
typically addressed from and to the top trade negotiating representative (e.g. the USTR, trade
minister, or equivalent.) Side agreements and letters accompany the agreement, but do not change
its text, and both require official signatures of all the negotiating parties to be considered in force,
although their enforceability so far has been untested, and so is also unclear.
24 Congressional intent to influence the implementing bill is conveyed in U.S. Congress, Committee on Conference,
Trade Act of 2002, Conference Report to accompany H.R. 3009, 107th Cong., 2nd sess., July 26, 2002, Report 107-624
(Washington: GPO, 2002), pp. 166-167.
25 This idea is elaborated in: VanGrasster, Craig. Is the Fast Track Really Necessary? Journal of World Trade. Vol. 31,
No. 2. April 1997. p. 106.
26 Inside Trade. Grassley Presses USTR To Improve Consultations on FTAs. July 7, 2006.
27 For example, while Congress authorized funding for U.S. contributions and for participation in the administrative
bodies created by the NAFTA side agreements, it did not expressly approve the agreements themselves. See 19 U.S.C.
Sections 3471-3472.
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Informal Agreements
Some members of Congress have also relied on promises from the Executive Branch to address
issues raised in mock markups. These often relate to special interests and concerns, and their
fulfillment relies on a measure of good will between Congress and the Executive Branch. In the
case of the CAFTA-DR implementing bill, for example, the Bush Administration made
accommodations to sugar, textile, and labor interests to secure congressional support.28
Limiting Trade Agreements Authority
Congress adopted TPA rules on pragmatic grounds as self-limiting conditions to prevent trade
implementing bills from being delayed or obstructed by congressional procedures that can either
keep a bill from moving out of committee, or delay it on the floor of the House or Senate with
extended debate. Trade agreements can also be the product of a fragile consensus between trade
partners, and TPA procedures were designed to protect such a consensus from unraveling due to
congressional amendments that would change the basic agreement. In crafting TPA, however,
Congress did not agree to surrender its constitutional authority over trade matters and wrote into
TPA a number of provisions that can limit the use of the expedited procedures.
Sunset Provision
Each renewal of the trade agreements authority has provided the use of expedited procedures for
trade agreement implementing bills for a limited time. The 2002 statute made these procedures
available for trade agreements entered into before July 1, 2007. Importantly, however, the act
provides no deadline for submitting implementing legislation for the agreement if it is entered
into before the July 1 deadline.
Extension Disapproval
TPA legislation requires that the President request an extension of the TPA authority after a
certain period of time. The extension is granted unless either House of Congress adopts a
disapproval resolution. Such a resolution of disapproval may not be considered unless it is
reported out of either the House Ways and Means or Senate Finance Committee. Although such
resolutions have been reported out of committee in the past, none has been passed in either House
of Congress. This process is a reminder to the Executive Branch that the availability of expedited
legislative procedures is a congressional prerogative that can be denied if Congress becomes
dissatisfied with how the President has conducted trade agreement negotiations.
Procedural Disapproval
The requirement that the President fulfill consultation and reporting obligations also helps
preserve the congressional role on trade agreements by giving Congress the opportunity to
influence the agreement before it is finalized. Should Congress determine that the President has
failed to meet these requirements, it may decide that the implementing bill is not eligible to be
28 For details, see CRS Report RL31870, The Dominican Republic-Central America-United States Free Trade
Agreement (CAFTA-DR), by J. F. Hornbeck.
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considered under TPA rules. It would implement this decision by adopting a joint “procedural
disapproval” resolution in both Houses of Congress.
Withdrawal of Expedited Procedures
The Trade Act of 1974, as amended, provides that the expedited procedures for consideration of
trade implementing bills are enacted as rules of procedures for each House, “with the full
recognition of the constitutional right of either House to change the rules (so far as relating to the
procedure of that House) at any time.”29 That is, Congress reserves its constitutional right to
withdraw or override the fast track rule, which can take effect with a vote by either House of
Congress.30
This summary suggests that in addition to binding rules, the long-term success of TPA rests on a
cooperative spirit and partnership between the Legislative and Executive Branches of
government, and by extension, between the two major political parties.31 Many have noted that
the sense of such cooperation was absent under the previous TPA, placing a strain on the trade
legislative process in recent years. In fact, a bipartisan agreement on TPA has been absent since at
least 1993, as evident in the eight-year lapse during the Clinton Administration and the highly
partisan passage of the 2002 TPA renewal. The current dissatisfaction with TPA results from
philosophical differences that have developed, in part, along partisan lines and raises the distinct
possibility that TPA, now lapsed once again, may not be renewed in its current form.
Issues for Congress
TPA expired on July 1, 2007, and the decision to defer TPA renewal rests with a number of
concerns. First, increasingly Congress is focused on addressing the negative effects of trade
policy and, more broadly, “globalization,” particularly in light of the devastating economic
consequences of the 2008 global financial crisis. Second, many members are also displeased with
the perceived inadequate enforcement of trade obligations undertaken by China and other U.S.
trade partners. Third, TPA renewal may require lengthy deliberations to craft a new model for
future U.S. trade policy.
The Need for TPA
A recurring question is whether TPA is really necessary. One way to explore this issue is to
consider the alternatives. First, given the breadth and scope of modern trade accords, executive
agreements are generally an insufficient means for fully implementing trade agreements where
the amendment, repeal, or enactment of new laws is required. Second, the treaty approach
presents two problems: the high hurdle of a two-thirds vote of approval in the U.S. Senate and
lack of House action for an agreement involving revenue.32 Further, Congress has long considered
29 Section 151(a)(2) of the Trade Act of 1974 (P.L. 93-618).
30 See Shapiro, Fast Track: A Legal, Historical, and Political Analysis, p. 28.
31 See Carrier, Michael A. All Aboard the Congressional Fast Track: From Trade to Beyond. George Washington
Journal of International Law and Economics. Washington, D.C. 1996.
32 See Article 1, Section 7, of the U.S. Constitution, which requires that all bills for raising revenue originate in the
House.
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U.S. trade agreements to be non-self-executing, that is, requiring implementing legislation if
existing law is insufficient to carry out agreement obligations.33 Because legislative action
involving both Houses of Congress is needed, the options appear limited to either a TPA
approach, or relying on ordinary rules of procedure to consider trade implementing legislation.
If the success of TPA were to be measured simply by the number of trade agreements that have
been approved and implemented under its authority, then it might be argued that TPA has proven
its merit. Many members of Congress, however, have complained that in recent years the TPA
process has failed, demonstrating that binding congressional rules of procedure are not sufficient
to guarantee a consensus position or even a cooperative working arrangement on trade. In the
words of one analysis still relevant today, “The real power of fast track (TPA) is the underlying
political compact between Congress and the president rather than its statutory guarantees, which
are technically quite fragile.”34 Addressing congressional concerns, therefore, is likely to be
critical for TPA renewal.
Complaints point to multiple problems: (1) trade negotiation objectives that do not include all key
concerns of Congress (e.g., enforceable labor standards) and are open to interpretation by the
Executive Branch; (2) an Executive Branch consultation process, including the COG, denounced
as superficial and unresponsive to congressional input; (3) the passage of widely unpopular FTAs
negotiated under TPA authority; and (4) ineffectiveness of procedures for deterring the use of TPA
(e.g., the extension disapproval resolution and repeal of fast track rules) because power has at
times been held closely through partisan control of committee chairs.35 In short, there has been a
growing sense for the need to rekindle trust between the Executive Branch and Congress, as well
as ensure greater bipartisan cooperation within Congress on trade matters.
Options for Congress and Prospects for Renewal
With the expiration of TPA on July 1, 2007, Congress has a number of options with respect to its
possible renewal. Four that span the spectrum are:
• No TPA Renewal. Although the lack of TPA may delay action on future
reciprocal trade agreements, many sector-specific and other more narrowly
targeted agreements have been concluded in the past without TPA. The United
States has also launched trade negotiations prior to having TPA authority in place.
• Extend TPA Temporarily. Congress could extend the current TPA with few or
no revisions long enough to allow the United States to complete a specific
agreement such as the TPP or the WTO Doha Round agreement.
33 See U.S. Congress. 103rd Cong., 2nd sess., House, Uruguay Round Agreements Act. (H.Rept. 103-826) October 3,
1994. p. 25.
34 Shapiro and Brainard, Trade Promotion Authority Formerly Known as Fast Track, p. 1. See also, Gary G. Yerkey,
Renewal of TPA Seen as Highly Unlikely Next Year, Particularly if Democrats Triumph, International Trade Reporter,
October 26, 2006, p. 1528.
35 Reuters. Bush’s Trade Authority Renewal: Dead on Arrival? October 19, 2006 and Vaughn, Martin, What If: Trade.
The Congressional Daily. October 17, 2006.
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• Renew TPA Authority. Under this option, Congress could grant the President
new authority with or without major changes in its structure, and without
restricting it to specific agreement negotiations.
• Grant Permanent TPA Authority. Congress could grant the President a form of
permanent fast track/TPA in a two-tier procedure: (1) Congress would enact into
law permanent fast track procedures; and (2) before specific negotiations can
begin, both Houses of Congress would have to pass a resolution approving the
negotiations and objectives designed for the specific set of negotiations.36
Whether TPA will be a top trade issue for the 112th Congress is unclear at this time. Trade
adjustment assistance, trade enforcement legislation, concerns about global imbalances in trade
and investment, and consideration of pending reciprocal trade agreements with Colombia,
Panama, and South Korea have much more visibility. It is generally understood, however, that
TPA may be necessary to pass a TPP or a multilateral agreement, should either come to fruition,
and it has also been argued that TPA is necessary to increase U.S. negotiating credibility with
these two agreements.
36 See for example, Destler, I. M. Renewing Fast-Track Legislation. Institute for International Economics. Washington.
September 1997. pp. 41-43, and Mastel, Greg and Hal Shapiro. Fast Track Forever? The International Economy.
Summer 2006. pp. 54-55.
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Appendix A. Congressional Timeline Under TPA
Figure A-1. Congressional Timeline Under TPA
Source: CRS
CRS-18
Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy
Appendix B. A Short Guide to the Expedited
Legislative Procedures for Passage of Trade
Implementing Bills Under TPA37
I. Before the formal TPA expedited procedures come into play, the House Ways and Means and
Senate Finance Committees typically hold “mock markups” on informal drafts of the
implementing legislation, voting to approve or disapprove. The vote and any amendments to the
draft legislation, however, are not binding on the Administration. These meetings provide the last
opportunity for Congress to register concerns with the Administration before it sends final
implementing legislation to Congress, which initiates the expedited procedures.
II. The President sends a final legal draft text of the trade agreement and a draft implementing bill
(with supporting materials) to Congress on a day that it is in session. The draft bill may, or may
not, reflect some or all of any amendments adopted by committees in the mock markup.
III. Identical bills are subject to mandatory introduction in each House of Congress on the day
received. The bills are referred to the House Ways and Means and Senate Finance Committees
jointly, with others if jurisdiction warrants.38
IV. Each committee has 45 in session days to report the bill or it is automatically discharged and
the bill is placed on the appropriate calendar.39 An implementing bill subject to TPA procedures is
likely to be a revenue bill, in which case the Constitution requires that the Senate ultimately act
on the House bill. Under these conditions, the Senate Finance Committee has until the later of the
45th day of session after the Senate bill is introduced or the 15th day of session after the Senate
receives the House bill.
V. In each House, after the implementing bill is reported or discharged, any member may offer a
non-debatable motion to consider it. Debate is limited to 20 hours evenly divided between those
for and against. The measure cannot be amended, and a motion or unanimous-consent request to
suspend this restriction is not in order. If the chamber has not completed floor action by the 15th
day after the bill is reported or discharged, any member may bring it to a vote.
VI. A bill passes by simple majority under the statute. Whichever House acts second (typically
the Senate assuming the bill is a revenue bill) considers and debates its own bill, but takes its final
vote on the bill received from the other House (typically the House of Representatives).40 This
procedure ensures that both Houses will ultimately act on the same measure, thereby clearing it to
37 Title XXI of the Trade Act of 2002 (P.L. 107-210) and Section 151 of the Trade Act of 1974, as amended.
38 For example, the U.S.-Chile Free Trade Agreement contained a provision affecting immigration law, requiring the
implementing bill to be referred to the House and Senate Judiciary Committees.
39 Cumulatively, the whole process can take as long as 90 in session days, potentially lasting many months.
40 In fact, the Senate can act, and has acted, on its own bill before receiving the House bill. In the case of the U.S.-Chile
FTA implementing bill, the Senate Finance Committee reported out first. When the House bill, which was identical,
came over, it was put on the Senate calendar directly. For the CAFTA-DR implementing bill, the Senate actually voted
first on its own bill, necessitating a later (procedural) vote to substitute the (identical) language of the Senate bill into
the House-passed bill when received. These proceedings in the Senate permitted final action to occur on the House
measure, as constitutionally required.
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be presented to the President (without the need for conference). After the implementing bill is
signed, under its terms, the agreement enters into force for the United States when the President
implements it by proclamation.
Author Contact Information
J. F. Hornbeck
William H. Cooper
Specialist in International Trade and Finance
Specialist in International Trade and Finance
jhornbeck@crs.loc.gov, 7-7782
wcooper@crs.loc.gov, 7-7749
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