Order Code RL31376
Report for Congress
Received through the CRS Web
Trade Promotion (Fast-Track) Authority:
Summary and Analysis of Selected Major
Provisions of H.R. 3005 and Title XXI of
Updated June 14, 2002
Lenore Sek and William H. Cooper, Coordinators,
Mary Jane Bolle and Vladimir N. Pregelj
Foreign Affairs, Defense, and Trade Division
Charles E. Hanrahan
Mary E. Tiemann
Resources, Science, and Industry Division
Richard S. Beth
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Trade Promotion (Fast-Track) Authority:
Summary and Analysis of Selected Major Provisions of
H.R. 3005 and Title XXI of H.R. 3009
A major trade issue in the 107th Congress is whether or not Congress will
approve authority for the President to negotiate trade agreements and submit the
agreements for implementation under expedited legislative procedures. The House
approved its version of a fast-track/Trade Promotion Authority (TPA) bill, H.R.
3005, on December 6, 2001. The Senate approved its version on May 23, 2002, as
Title XXI of an omnibus trade bill, H.R. 3009. Along with TPA, H.R. 3009 contains
reauthorizations of Trade Adjustment Assistance (TAA), the Andean Trade
Preference Act (ATPA), and the Generalized System of Preferences (GSP).
Differences between the bills must now b resolved by a conference committee.
H.R. 3005 (House) and Title XXI of H.R. 3009 (Senate) are similar in their
basic structure and in most provisions. The latter bill, however, gives more attention
to small businesses, trade remedy laws, and trade disputes. The Senate bill also
contains the highly controversial Craig-Dayton amendment regarding provisions of
trade agreements that would amend U.S. trade remedy laws. The two bills have
many similarities to prior fast-track law, but they depart by giving more importance
to labor, the environment, and other non-traditional priorities as part of U.S. trade
policy. Also, for the first time, they would establish a Congressional Oversight
Group to monitor trade negotiations more closely than before. Both bills include
more detailed requirements on labor than under prior law. They are similar to each
other with the exception of a required labor rights report and whether to attach a trade
adjustment bill to TPA legislation.
Both versions bills give greater attention to environmental matters than
previously. One shared negotiating objective is to ensure that parties do not fail to
effectively enforce environmental laws and to make such trade-related failures
subject to dispute settlement. The bills also seek language in trade agreements to
discourage parties from weakening environmental laws to encourage trade.
With regard to agriculture, both versions state that the principal negotiating
objective is to obtain competitive, fairer, and more open market opportunities for
U.S. agricultural exports. In addition to consultation requirements for importsensitive products, both bills establish additional requirements for consultation with
the agriculture committees.
Current proposals would permit either house to limit the deadline for trade
agreements eligible for expedited implementation by adopting an extension
disapproval resolution. Also, if required consultations do not occur, or if an
agreement fails to promote required objectives, Congress could withdraw expedited
implementation through procedural disapproval resolutions. These and other
restrictions might also be enforced through other procedures available under general
rules in each House.
The U.S. Trade Negotiating Agenda and Trade Promotion Authority . . . . . . . . . 2
World Economic Slowdown and
Changes in the International Trade System . . . . . . . . . . . . . . . . . . . . . . 2
U.S. Trade Negotiating Agenda and TPA Legislation . . . . . . . . . . . . . . . . . . 3
Summary of Major Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trade Negotiating Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trade Agreements Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Consultations and Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Labor-Related Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Labor Provisions of Expired Fast-Track, H.R. 3005 (House),
and H.R. 3009 (Senate) Compared . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Principal Negotiating Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Congressional and Administrative Oversight Provisions
(“Certain Priorities”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Major Controversies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Labor Rights Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
TAA Amendments: Including S. 1209 in H.R. 3009 . . . . . . . . . . . . . . 11
TAA Health Care and Other Compromises . . . . . . . . . . . . . . . . . . . . . 13
Environment-Related Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Environmental Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Other Environment-Relevant Objectives . . . . . . . . . . . . . . . . . . . . . . . 15
Promotion of Certain Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
TPA and Agricultural Interest Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Agricultural Negotiating Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Import-Sensitive Agricultural Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Requirements for Consultation with Agriculture Committees . . . . . . . . . . 21
TPA and Agricultural Negotiating Issues . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Congressional Oversight and President’s Consultations with the Congress . . . . 22
Congressional Oversight Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
President’s Consultations with and Reports to Congress . . . . . . . . . . . . . . 23
Expedited Procedures and
Procedural Controls on Their Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Enforcing Time Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Enforcing Notifications and Consultations . . . . . . . . . . . . . . . . . . . . . . . . . 28
Enforcing Pursuit of Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Enforcing Restrictions on Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Non-Statutory Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Appendix: Expedited Procedures in Current Law . . . . . . . . . . . . . . . . . . . . . . . 32
Section 151: Implementing Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 152: Extension and Procedural Disapproval Resolutions . . . . . . . 33
Figure 1. Labor Provisions in H.R. 3005 (House) and
H.R. 3009 (Senate) Compared
(exclusive of Senate TAA and Related Amendments) . . . . . . . . . . . . . . . . 10
Trade Promotion (Fast-Track) Authority:
Summary and Analysis of Selected Major
Provisions of H.R. 3005 and Title XXI of
One of the major trade issues in the 107th Congress is whether Congress will
approve legislation that sets conditions under which the President can negotiate
certain trade agreements and submit the agreements for approval and implementation
under expedited legislative procedures. Under this authority, formerly called “fasttrack authority” and now often called “trade promotion authority” or “TPA,”
Congress agrees to consider legislation to implement certain trade agreements under
a procedure with mandatory deadlines, no amendment, and limited debate, while the
President is required to notify and consult with Congress at various stages of
The President was granted fast-track authority almost continuously from 1974
to 1994. In 1994, the authority lapsed and has not been renewed. Under the current
absence of fast-track authority, if the Administration concludes a trade agreement that
requires congressional action, implementing legislation will be considered under
normal legislative procedures.
This report analyzes and compares the versions of TPA legislation passed by the
House and the Senate. House Ways and Means Committee Chairman Thomas
introduced H.R. 3005 on October 3, 2001 which the House passed on December 6,
2001, by a vote of 215-214 along party lines as the Bipartisan Trade Promotion
Authority Act of 2001. On December 18, 2001, the Senate Finance Committee
ordered the bill reported with an amendment in the nature of a substitute (S.Rept.
107-139) on an 18-3 vote.
On May 10, 2002, Senators Baucus and Grassley, Chairman and Ranking
Member, respectively, of the Senate Finance Committee, offered on the floor of the
Senate an omnibus bill as a manager’s amendment (S.Amdt. 3401) in the form of a
substitute to H.R. 3009 (the Andean Trade Preferences Expansion Act). Title XXI
of the bill, titled the Bipartisan Trade Promotion Authority Act of 2002 contained,
with minor changes, the version of H.R. 3005 reported out by the Senate Finance
Committee. The amendment also included the Andean Trade Preferences Act
(ATPA) legislation and legislation to reauthorize the Trade Adjustment Assistance
(TAA) programs and the Generalized System of Preferences (GSP) program. On
May 23, 2002, the Senate passed the amended .R. 3009 (66-30).
The purpose of this report is to review and compare major selected provisions
of H.R. 3005, as passed by the House, and Title XXI of H.R. 3009, as passed by the
Senate.. It also includes comparisons of the two bills with the Omnibus Trade and
Competitiveness Act of 1988 (1988 Trade Act; P.L. 100-418), under which fast-track
procedures were last approved.
The report begins with an overview of the U.S. trade policy agenda and what
role TPA plays in trade policy. It then summarizes the major provisions of H.R.
3005 and of Title XXI of Senate-passed H.R. 3009 and discusses the labor
(including some discussion on Trade Adjustment Assistance), environmental, and
agriculture provisions in particular. It includes a review of consultation and
notification provisions, and concludes with a discussion of expedited procedures and
controls that the two bills propose on their use. An Appendix presents information
on expedited procedures for implementing bills for trade agreements (fast-track/TPA
procedures) and on other procedures included in the bill.
The U.S. Trade Negotiating Agenda and Trade
Promotion Authority *
Congressional consideration of trade promotion authority (TPA) legislation and
the ensuing debate over U.S. trade negotiating objectives are occurring during a
period of growing global economic uncertainty and of a changing international
trading system that shape a very active U.S. trade negotiating agenda. As has been
the case with previous fast-track trade authority legislation, the congressional debate
not only involves whether to grant the President the authority, but also what U.S.
trade negotiating objectives should be. Members of the 107th Congress are deeply
divided over U.S. trade policy objectives, such as to what degree, if any, should nontrade issues (for example, labor and environment) be included in trade agreements.
World Economic Slowdown and Changes in the International
Many of the world’s major economies have been experiencing slow economic
growth or recessions. After a decade of robust growth and low unemployment rates,
the U.S. economy shifted downward with increasing unemployment over the near
term. The European economies have endured slow economic growth, while Japan
continues to suffer its worst economic slowdown of the post-World War II period.
Furthermore, the economic problems of the industrialized countries have spilled over
to developing countries that rely on them as export markets. The Bush
Administration and other supporters of TPA have argued that the United States must
take the lead in trade negotiations to spur economic growth and that TPA is necessary
before trade partners will negotiate with the United States seriously. This argument
is also present in the committee reporting language accompanying H.R. 3005 and
Title XXI of H.R. 3009, as passed by the Senate.
Prepared by William H. Cooper; Specialist in International Trade and Finance; Foreign
Affairs, Defense, and Trade Division.
The international trading system is undergoing change by moving beyond
multilateral negotiations among developed nations. For example, an increasing
number of developing countries are active participants in the international trading
system. One hundred of the 142 members of the World Trade Organization (WTO)
are developing countries; 30 of them are classified as least-developed countries.
These countries have become more assertive in pressing their agendas, which
frequently differ from those of the United States and other developed countries.
Furthermore, China’s recent entry into the WTO, gives more weight to the
developing country agenda. The former communist countries of Central and Eastern
Europe and of the former Soviet Union are also integrating themselves into the
international trading system. In addition, the proliferation of bilateral and regional
trade agreements is changing the international trading system. According to the
WTO, about 100 bilateral and regional agreements have been established since 1995.
The international trade structure is also changing in that a growing number of
activities are considered to be “trade” or “trade-related.” Such activities include
intellectual property rights protection, foreign investment, services, and government
regulations. These changes in the international trading system will require new trade
agreements to be negotiated, and the Bush Administration has argued that it needs
TPA now so that the United States can ensure that the changing international trade
system reflects U.S. interests.2
U.S. Trade Negotiating Agenda and TPA Legislation
The economic slowdown in the United States and other countries and the
changes in the international trading system are shaping the U.S. trade negotiating
agenda. That agenda is reflected in the pending TPA legislation and can be divided
into three overall goals:
to create favorable conditions for U.S. exporters by eliminating tariff
and nontariff barriers;
to protect domestic industries from the adverse effects of unfair
foreign trade practices and to provide temporary relief to domestic
industries adjusting to rapid increases in fairly-traded imports; and
to ensure that international trade rules, that are used to meet the first
two goals, apply to all relevant economic activities.
These three goals have guided U.S. negotiators in previous trade negotiations
and will likely do so in upcoming negotiations. The goals are reflected in the
negotiating objectives set out in the version of H.R. 3005 passed by the House and
Title XXI of H.R. 3009 as passed by the Senate. (The negotiating objectives are
discussed further in other sections of this report.)
Zoellick, Robert B. Falling Behind on Free Trade. The New York Times. April 14, 2002.
U.S. trade negotiators are pursuing the agenda in multilateral negotiations in the
WTO and in negotiations to establish regional and bilateral trade areas. These
negotiations cut across geographical areas and economic activities. Any agreements
reached from these negotiations will probably require congressional approval before
implementation. TPA would provide that implementing legislation be considered
without amendment, thereby increasing prospects for passage.
On November 14, 2001, in Doha, Qatar, trade ministers from 142 WTOmember countries agreed to launch wide-ranging multilateral negotiations. The new
negotiations will cover a broad range of issues, such as agricultural trade
liberalization, trade in services, industrial tariffs, trade-related intellectual property
rights, and rules on antidumping and countervailing duty investigations. The
negotiations are tentatively scheduled to be completed by 2005.
In the meantime, the United States has been negotiating bilateral and regional
free trade agreements and will likely begin negotiations on even more agreements.
At the end of 2000, the United States launched negotiations with Singapore
(November 2000) and Chile (December 2000), to establish bilateral free trade areas.
Such arrangements would lead, at a minimum, to the elimination of tariffs in bilateral
merchandise trade, the reduction or removal of other barriers in trade in goods and
services, and concessions on treatment of foreign investments. While negotiators
have confronted stumbling blocks in both sets of negotiations, the agreements are
expected to be reached in mid to late 2002. Similarly, the United States and 33 other
countries of the Western Hemisphere agreed in December 1994 to begin negotiations
to establish a Free Trade Area of the Americas (FTAA) by 2005. In addition, the
Bush Administration has expressed the goal of exploring the possibility of
establishing a free trade agreement with the countries of Central America, and USTR
Zoellick has indicated the Administration will consider forming a free trade area with
South Africa. Australia, New Zealand, Egypt, and other countries have also either
expressed strong interest in forming free trade areas with the United States or have
been suggested as potential FTAs partners.
Committee reporting language for H.R. 3005 and for Title XXI of H.R. 3009
explicitly state that the authority will be applicable to all trade agreements that are
reached before June 1, 2005 (or before June 1, 2007, if the authority is extended) and
that meet the other conditions for such authority. In addition, unlike the 1988 fast
track authority, no distinction is made between multilateral agreements, on the one
hand, and regional and bilateral agreements on the other hand, in terms of the
applicability of the TPA. Furthermore, both bills recognize that negotiations are
already underway with Chile, Singapore, and the FTAA partner-countries and waives
certain notification requirements in anticipation of such agreements being concluded
Summary of Major Provisions*
The TPA provisions approved by the House and by the Senate, like those of
many fast-track/trade promotion authority bills, can be considered in five parts. First,
they outline trade negotiating objectives. Second, they set conditions under which
the bills’ provisions would apply to trade agreements and implementing legislation.
Third, they set out notification and consultation requirements for the executive
branch. Fourth, they specify actions related to implementation, such as documents
the President must submit. Fifth, they might include other, related provisions.3
Trade Negotiating Objectives
Although the executive branch conducts the actual negotiations, Congress,
acting under the section on trade negotiating objectives, communicates to negotiators
the goals that it expects a trade agreement to achieve. Similar to the 1988 Trade Act,
H.R.3005 and Senate-passed H.R. 3009 outline these negotiating objectives as
“overall negotiating objectives” and “principal negotiating objectives,” but unlike the
1988 Trade Act, the two bills add a third category called “promotion of certain
“Overall negotiating objectives” are usually broad objectives or goals. The
Trade Act of 1988 had three overall objectives that are included in H.R. 3005 and
Senate-passed H.R. 3009: market access, elimination of trade barriers, and stronger
international trading disciplines. The two bills add four more overall objectives:
economic growth, mutually supportive trade and environmental policies, respect for
worker rights, and provisions to discourage weakening environmental or labor laws
to encourage trade. Senate-passed H.R. 3009 has one more overall objective that is
not in the House version: fair and equal treatment for small businesses. The
enlargement of the section on overall objectives from prior law indicates a
broadening of the purpose of trade negotiations beyond market opening to include
other policies such as labor rights and environmental protection.
“Principal negotiating objectives” usually are more defined goals or issues.
H.R. 3005 has 13 principal objectives: trade barriers and distortions to trade, trade
in services, foreign investment, intellectual property rights (IPR), transparency, anticorruption, improvement of the WTO and multilateral trade agreements, regulatory
practices, electronic commerce, reciprocal trade in agriculture, labor and the
environment, dispute settlement and enforcement, and WTO extended negotiations.
The Senate bill includes these 13 objectives, with identical language for most, but
some differences for five: trade barriers and distortions to trade, foreign investment,
intellectual property rights, agriculture, and dispute settlement. The Senate bill also
Prepared by Lenore Sek; Specialist in International Trade and Finance; Foreign Affairs,
Defense, and Trade Division.
For a detailed comparison of the TPA provisions in House-approved H.R. 3005 and
Senate-passed H.R. 3009, see CRS Report RL31445, Trade Promotion (Fast-Track)
Authority: A Comparison of Bills Approved by the House (H.R. 3005) and by the Senate
(Title XXI of H.R. 3009), by Lenore Sek and William H. Cooper.
adds four additional principal objectives (for a total of 17): adherence to civil,
political, and human rights; revision of WTO rules on border taxes; equivalent
opportunities in textile and apparel trade; and regulation of products resulting from
the worst forms of child labor.
The principal objectives of H.R. 3005 and Senate-passed H.R. 3009 show some
similarities to the principal objectives of the 1988 Trade Act. For example, they all
share some objectives that are often part of trade negotiations, such as trade barriers,
services, agriculture, and intellectual property rights. However, the current bills
show some dissimilarities to the 1988 Trade Act. For example, both of the current
bills (but not the 1988 Trade Act) include principal objectives on anti-corruption,
regulatory practices, and electronic commerce. The 1988 Trade Act (but not the
current legislation) included principal objectives on developing countries, current
account surpluses, and access to high technology. On the controversial issues of
labor and the environment, the 1988 Trade Act had a principal objective on “worker
rights,” and the current bills have a principal objective on “labor and the
environment,” but these objectives (and related language in other principal
objectives) are substantially different. The differences are discussed further in later
sections of this report.
H.R. 3005 and Senate-passed H.R. 3009 also include a third section under
negotiating objectives (“promotion of certain priorities”) that was not in the 1988
Trade Act. This section directs the President to take actions to promote certain
priorities. Beginning in the 1990s, many fast-track bills added a third section under
negotiating objectives in an attempt to address the role of labor and the environment
in trade negotiations. In some cases, this third section was to separate labor and the
environment from overall and principal objectives. In other cases, it was to give
detailed direction to the executive branch on domestic action to take related to the
negotiations. The Senate Finance Committee, in reporting a bill that included these
same provisions on “promotion of certain priorities,” explains: “While these
priorities are not formally described as negotiating objectives, their importance as
statements of the trade policy of the United States is equal to the importance of the
general and specific objectives set forth in subsections [on overall and principal
Both the House and the Senate bill list 12 actions under this third section of
negotiating objectives (“promotion of certain priorities”). Most of these actions (nine
out of 12) involve labor and the environment. (These are discussed in more detail
later.) The other actions involve preserving the ability of the United States to
rigorously enforce its trade laws, a report on the effectiveness of a trade remedy, and
consultation with other countries on how currency movements affect trade. The two
bills have almost identical language, except the Senate bill expands on a review of
trade agreements and employment, both bills have different provisions on a report on
other countries’ labor conditions, and the Senate bill requires the President to address
distortions that lead to unfair foreign trade actions.
U.S. Senate. Bipartisan Trade Promotion Authority Act of 2002. Report to accompany
H.R. 3005. S.Rept. 107-139. Feb. 28, 2002. p. 36.
Trade Agreements Authority
After specifying negotiating objectives, H.R. 3005 and Senate-passed H.R. 3009
set out conditions under which the bills’ provisions would apply to trade agreements.
Those conditions are almost identical in both bills with one major exception, and
they are similar to past law in many respects. One condition is that a trade agreement
(tariff or nontariff) must be entered into by a given deadline (June 1, 2005 in both the
House and Senate bills), with a possible two-year extension if specified conditions
are met. In the case of certain tariff agreements, the Congress would delegate to the
President the authority to enter into those agreements and implement the tariff
changes by proclamation; no implementing legislation would be necessary.
In the case of all other trade agreements, H.R. 3005 and Senate-passed H.R.
3009 would allow the President to enter into those agreements and submit them for
approval and implementation under expedited procedures (mandatory deadlines,
limited debate, no amendment), as long as specified conditions are met. For
expedited procedures (called “trade promotion procedures” in the bills) to apply, the
agreement would have to make progress in meeting the overall and principal
objectives (this is the same as the 1988 Trade Act), and the President would have to
satisfy the consultation requirements. Trade promotion procedures would apply to
an implementing bill with: (1) provisions approving a trade agreement and any
statement of administrative action; and (2) provisions “necessary or appropriate” to
implement a trade agreement, if changes in law are required to implement the
agreement. (The 1988 Trade Act did not have comparable provisions on
implementing bills that qualify for expedited procedures.) The President could
negotiate a trade agreement without meeting the above requirements, but in that case,
implementing legislation would be considered under the normal legislative process.
The Senate bill adds a controversial provision that is in neither the House bill
nor the 1988 Trade Act. This provision is commonly called the Dayton-Craig
amendment. The amendment states that trade authorities procedures would not apply
to any provision in an implementing bill that modifies or amends any U.S. law that
provides remedies from unfair foreign trade practices (e.g., U.S. antidumping,
countervailing duty, and safeguard laws). Such a provision would be stricken from
the implementing bill if: (1) any Senator makes a point of order against the provision;
and (2) the point of order is sustained by the Presiding Officer. The point of order
may be waived or appealed (before or after action the Presiding Officer, respectively)
with the support of a majority of Senators.
Consultations and Assessment
H.R. 3005 and Senate-passed H.R. 3009 set out requirements for the President
to notify and consult with Congress at various stages of negotiation. The two
versions are similar in many respects, although the Senate bill adds to the provisions
on import-sensitive agricultural products, includes consultation requirements for
negotiations related to fish or shellfish trade, and requires additional reports when
changes to U.S. trade remedy laws are proposed in implementing legislation. The
House and Senate bills expand on the requirements of the 1988 Trade Act. Of note,
the two bills would establish a new body of congressional trade advisors, the
Congressional Oversight Group (COG), which would be created in addition to the
current body of congressional trade advisors and seems intended to be a more active
group of official advisors to negotiations. (Consultation and notification
requirements are discussed further in a later section.)
The versions of the TPA bill that were passed by the House as H.R. 3005 and
Senate as H.R. 3009 include 13 labor-related provisions which are similar in both
bills, plus an expanded trade adjustment assistance (TAA) package based on that
originally passed as S. 1209.
The similar aspects of the House and Senate bills are both more detailed and
slightly different from those in previous fast-track authority under the 1988 Trade
Act. They evolved from concerns that intensified after the North American Free
Trade Agreement (NAFTA) went into effect in January, 1994.
The next few pages: (a) spell out and compare the labor provisions in the
expired fast-track language with all those in the passed House and Senate bills; and
(b) address related issues for Congress, identifying arguments on both sides.
Labor Provisions of Expired Fast-Track, H.R. 3005 (House),
and H.R. 3009 (Senate) Compared
The fast-track authority which expired in 1994 identified as a principal labor
(a) to promote respect for worker rights;
(b) to secure a review of the relationship between worker rights and GATT
(succeeded by the World Trade Organization – the WTO), aiming to
ensure that the benefits of the trading system are made available to all
(c) to adopt as a principle of the GATT that the denial of worker rights should
not be a means for a country or its industries to gain competitive advantage
in international trade.
These above-mentioned objectives were addressed in the two major trade
agreements negotiated and adopted under the expired fast-track authority: NAFTA
includes a labor side agreement which aims to promote respect for worker rights, as
identified in (a) above. It also requires that each country enforce its own laws, as
implied in (c) above. Implementing language for the Uruguay Round trade
agreements, which created the WTO, required the President to seek a working party
in the WTO to examine the relationship between internationally recognized worker
rights and trade, as required in (b) above.
Prepared by Mary Jane Bolle; Specialist in International Trade; Foreign Affairs, Defense
and Trade Division. For further information, see CRS Report RL31178, Trade Promotion
Authority (Fast-Track): Labor Issues (Including H.R. 3005 and H.R. 3019), by Mary Jane
In contrast to the expired fast-track authority, H.R. 3005 and Senate-passed H.R.
3009 include much more detailed requirements. They include about a dozen separate
provisions which set out very specific guidelines and limits for the promotion of
worker rights protections in the international trade arena.
Figure 1 lists similar House and Senate provisions in three categories: overall
negotiating objectives, principal negotiating objectives, and the “promotion of certain
priorities,”which has congressional and administrative oversight provisions.
Overall negotiating objectives reiterate the concepts included in the expired
1988 authority of: (1) promoting respect for worker rights, (but specifying that it shall
be done in the International Labor Organization) and (2) seeking provisions in trade
agreements to ensure that domestic labor laws are not weakened as an encouragement
The principal negotiating objectives on “labor and the environment” include
among their goals: (1) strengthen the capacity of U.S. trading partners to promote
respect for worker rights, (2) ensure that a party does not fail to enforce its own labor
laws in a manner affecting trade; and (3) ensure that labor policies do not
unjustifiably discriminate against U.S. exports or serve as disguised barriers to trade.
Congressional and administrative oversight provisions under “promotion of
certain priorities” include several requirements for the President. Among these are
the labor-related actions: (1) to seek greater cooperation between the ILO and the
WTO, (2) to review the impact of future trade agreements on U.S. employment and
report to key congressional committees, (3) to arrange for consultation and technical
assistance by the Secretary of Labor, regarding the labor laws of any country seeking
a U.S. trade agreement, and (4) to report on the effectiveness of penalties in changing
Figure 1. Labor Provisions in H.R. 3005 (House) and
H.R. 3009 (Senate) Compared
(exclusive of Senate TAA and Related Amendments)
Overall Negotiating Objectives
The overall negotiating objectives of H.R. 3005and Senate-passed H.R. 3009 relating to labor are:
(1) to promote respect for worker rights and the rights of children consistent with core labor standards in
the International Labor Organization (ILO), and an understanding of the relationship between trade
and worker rights [H. – Sec. 2(a)(6); S. – Sec. 2102(a)(6)]; and
(2) to seek provisions in trade agreements under which parties strive to ensure that they do not weaken or
reduce the protections afforded in domestic (environmental and ) labor laws as an encouragement for
trade [H – Sec. 2(a)(7); S. – Sec. 2102(a)(7)].
Note: H.R. 3005 and H.R. 3009 define core labor standards to include: (a) the right of association; (b) the
right to organize and bargain collectively; (c) a prohibition on the use of any form of forced or compulsory
labor; (d) a minimum age for the employment of children; and (e) acceptable conditions of worker with
respect to minimum wages, hours of work, and occupational safety and health. [H. – Sec. 10, S. – Sec.
Principal Negotiating Objectives
The principal negotiating objectives in H.R. 3005/Senate H.R. 3009 relating to labor are:
(1) to strengthen the capacity of U.S. trading partners to promote respect for core labor standards [H. Sec.
2(b)(11)(C); S. – Sec. 2102(b)(11)(C)];
(2) to ensure that a party does not fail to enforce its own labor laws through a sustained course of action
or inaction in a manner affecting trade [H. – Sec. 2(b)(11)(A); S. – Sec. 2102 (b)(11)(A)];
(3) to recognize the right of parties to exercise discretion regarding the allocation of resources on
enforcement [H. – Sec. 2(b)(11)(B): S. – Sec. 2102(b)(11)(B)];
(4) to ensure that labor policies and practices do not unjustifiably discriminate against U.S. exports or serve
as disguised barriers to trade [H. – Sec. 2(b)(11)(G); S. – Sec. 2102(b)(11)(G)]; and
(5) to seek (dispute settlement) procedures that treat U.S. principal negotiating objectives equally with other
negotiating objectives (i.e. treat labor issues equally with foreign investment, intellectual property, etc.) [H.
– Sec. 2(b)(12)(F); S. – Sec. 2102(b)(13)(F)].
Congressional and Administrative Oversight Provisions (“Certain Priorities”)
Both H.R. 3005 and Senate-passed H.R. 3009 have identical Congressional and Administrative Oversight
requirements with one exception. The identical provisions are:
(1) for the President to seek greater cooperation between the ILO and the WTO [H. – Sec. 2(c)(1); S. – Sec.
(2) for the President to review the impact of future trade agreements on U.S. employment and report to the
House Ways and Means and Senate Finance Committees [H. – Sec. 2(c)(5); S. – Sec. 2102(c)(5)];
(3) for the President to seek consultative mechanisms among Parties to promote respect for core labor
standards and report to the House Ways and Means and Senate Finance Committees [H. – Sec.
2(c)(2); S. – Sec. 2102(c)(2)];
(4) for the President to have the Secretary of Labor consult with any country seeking a U.S. trade
agreement about its labor laws and provide technical assistance if needed [H. – Sec. 2(c)(7); S. – Sec.
(5) for the President to report to the House Ways and Means and Senate Finance Committees within 12
months after a penalty is imposed, on its effectiveness in enforcing U.S. rights under the trade
agreement (i.e., in changing the behavior of the targeted party, and any impacts on parties not
involved in the dispute) [H. – Sec. 2(c)(11); S. – Sec. 2102(c)(11)].
The differing House and Senate provisions have to do with a labor rights report to Congress:
H.R. 3005 [Sec. 2(c)(8) – House] requires that the President submit to Congress in general, for any trade
agreement, a report showing the extent to which countries which are party to the agreement have in
effect laws governing exploitative child labor.
H.R. 3009[Sec. 2102(c)(8) – Senate] requires that the President submit to the House Ways and Means and
Senate Finance Committees, for any trade negotiations entered into under this Act, a meaningful
labor rights report on the country with which the President is negotiating, in a time frame determined
by the U.S. Trade Representative’s (USTR) Office in consultation with the Chairmen and Ranking
Minority Members of the two Committees.
The House-Senate conference debate over TPA labor provisions will likely
center on minor differences in language relating to a labor rights report, and major
differences arising from the fact that the Senate bill includes, among other provisions,
amendments to the trade adjustment assistance program(TAA).
Labor Rights Report. On the first issue, the labor rights report, the Senate
bill would require a much more in-depth report than the House. The House bill
requires that the President submit to Congress a report showing, for any new trade
agreement, the extent to which countries currently have in effect laws governing
exploitative child labor. The Senate bill, in contrast, requires that the President
submit to the House Ways and Means and Senate Finance Committees a
“meaningful” labor rights report on the country with which the President is
negotiating. (See actual language for these requirements at the bottom of figure 1.)
Currently, the State Department annually publishes one to several pages on worker
rights practices for roughly 75 countries in Country Reports on Economic Policy and
Trade Practices, in accordance with Section 2202 of the 1988 Trade Act. Therefore,
considerable research to support a labor rights report for many, though not all
countries, may be ongoing within the State Department.
TAA Amendments: Including S. 1209 in H.R. 3009.7 The second issue
was whether or not to include provisions of S. 1209 in H.R. 3009 in the Senate.
Many Senate Democrats argued that TPA would not get to the floor without an
expansion of the TAA program. This program provides financial and technical
assistance to workers and firms to help them adjust to import competition. The
White House proposal, offered to the Senate Finance Committee on March 19, 2002,
differed on two key issues from S. 1209 (whose provisions are detailed below). First,
it excluded TAA benefits for secondary workers and farmers, although the
Administration more recently has indicated it will support this proposal. Second,
disagreement remained over the Democrats’ proposal to provide health insurance
benefits to TAA beneficiaries. Republican opponents argued that this would amount
to creating a massive new federal entitlement program, according to the Washington
Trade Daily, April 10, 2002.
S. 1209 was reported by the Senate Finance Committee on February 4, 2002
(S. Report 107-134). On March 19, 2002, the Administration delivered its proposal
in bill form (the Trade Adjustment Assistance [TAA] Reform Act of 2002) to the
Senate Finance Committee. One of two elements of S. 1209 attracting the most
discussion was that S. 1209 would have combined the old TAA and NAFTA-TAA
programs and would have expanded both to reach three new groups : (a) all workers
who lose their jobs because their plants relocate to foreign countries; (Both the TAA
and NAFTA-TAA programs have traditionally covered workers who lose their jobs
because of increased imports, but only the NAFTA-TAA program has also covered
workers who lose their jobs because of a shift in production abroad) (b) secondary
workers whose job loss is dependent on the job loss of workers directly affected by
Information for this section was taken from CRS Report RS21078, Trade Adjustment
Assistance for Workers: Legislation in the 107th Congress, by Paul J. Graney.
trade; and (c) several groups of workers not previously covered by TAA legislation
(including farmers, fishermen, taconite workers, and those engaged in exploration or
drilling for oil or natural gas). The Congressional Budget Office (CBO) estimates
that these changes would nearly double the TAA caseload. The provision covering
secondary workers would make up about three-fourths of the increase in caseload.
Covering shifts in production would make up about one-fifth of the increase.8
The second controversial element of S. 1209 was the inclusion of premium
assistance for health care coverage for TAA recipients. The proposed subsidy would
have paid 70% of health insurance premiums for eligible workers and temporary
Medicaid insurance for certain uninsured individuals. Adjusting downward from
CBO’s earlier estimates for higher coverage, this could result in an estimated budget
outlay in 2003 of $244 million. The Administration’s proposal would not have
included health insurance benefits.9
The controversial premium assistance provision mentioned above was not
included in the House version of H.R. 3005 or in the House-passed reauthorization
of TAA (H.R. 3008). In a February 26, 2002 speech, Senator Max Baucus, Chairman
of the Senate Finance Committee, indicated that TAA is an essential element in a
new trade consensus, and remained the only issue under discussion that had the
potential to deliver a substantial new bloc of votes to the fast-track trade bill.10 On
March 14, 2002, a majority of Senate Democrats signed a letter to Senator Tom
Daschle, Senate Majority Leader, supporting the retention in TPA legislation of
health care provisions included in S. 1209 as reported.11
The expansion of the TAA program has been long called for by labor
proponents who have argued that all workers who lose their jobs for trade-related
reasons (whether from increased imports or from plant relocations) should be eligible
for the same benefits – benefits that will offer financial support, retraining, and
relocation benefits as they work to upgrade their skills and transition into more
complex jobs that offer them the best opportunity of reclaiming old earnings levels.
On the other hand, some argue that the expansion of the TAA program would
increase costs significantly. President Bush proposed in his FY 2003 budget to
extend the TAA and NAFTA-TAA programs. The Administration’s FY2003 budget
request includes total funding of $462 million for the TAA and NAFTA-TAA
programs – an increase of $46 million over FY2002 funding levels of $416 million.
CBO estimated that the changes in direct spending for the new TAA program for
Trade Adjustment Assistance for Workers, Farmers, Fishermen, Communities, and Firms
Act of 1001. Report to accompany S. 1209. S. Report. 107-134, February 4, 2002, p. 52.
Ibid., p. 50, Table 1. The CBO’s estimate was $262 million for 75% health insurance
Baucus Stresses TAA’s Importance; Signals Minimal Changes Lie Ahead. Inside U.S.
Trade. March 1, 2002.
Senate Democrats Take Hardline on TAA-Health Care Debate. Inside U.S. Trade, March
15, 2002, p. 36.
workers under S. 1209 as passed, including the health insurance coverage, would
result in estimated budget outlays in 2003 of $996 million.
TAA Health Care and Other Compromises. Compromises within the
Senate on a number of issues including the TAA health care issue, allowed fast
track/TPA to move forward. The compromise translates into an estimated three-fold
increase in the cost of the TAA program to total an estimated $12 billion over 10
years. Some details of the agreement include the following:12
70% Tax Credit for Health Insurance Premiums. Displaced
workers will be eligible for a 70% advanceable, refundable tax credit
for certain health insurance premiums under Federal COBRA
program or through group insurance pools set up in the states.13 In
addition, the legislation provides for a 2-year bridge program
through the National Emergency Grant program (retroactive to April
Expansion and Extension of TAA Program. The existing TAA
program will be expanded and extended. The bill offers new
benefits for oil and natural gas producers14 and makers of taconite
pellets, and a new TAA program for farmers and fishermen. Benefits
including the health insurance coverage will now be available to
“primary” workers (those directly affected by trade) under the
– Decrease in sales or production because of increased imports. Sales,
production, or both for the firm or subdivision must have decreased
absolutely; the value or volume of imports like or directly competitive
with articles produced by that firm or subdivision must have increased, and
that increase must have “contributed importantly” to the workers’
separation or threat of separation and to the decline in sales or production
of that firm; or
– Shift in production abroad. Production of articles like or directly
competitive with articles produced by that firm or subdivision must have
shifted abroad, and that shift must have “contributed importantly” to the
workers’ separation or threat of separation.
Benefits for Secondary Workers. Adversely affected “upstream”
and “downstream” workers are also eligible for TAA benefits.
This information is taken both from the bill itself and from the Finance Committeeissued fact sheet on Senate-passed H.R. 3009.
“Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
requires employers with 20 or more workers to offer the option of continuing coverage
under the employer’s group health insurance plan following a qualifying event, such as a job
layoff.” Source: Analysis of COBRA coverage among former employees, by Chris L.
Peterson. CRS Report RS21159 .
Any firm or subdivision of a firm that engages in exploration or drilling for oil or natural
gas shall be considered to be producing articles directly competitive with imports.
These are workers who either supply materials to (i.e., “upstream”
workers) or use goods produced by (i.e., “downstream” workers)
other firms whose workers are certified as eligible for TAA benefits.
But the articles produced by these secondary workers must be related
to the article(s) on which the original certification was based. In
addition, the products produced by workers of “downstream”
producers must have been affected by an increase in imports from or
a shift in production to Mexico or Canada.
Other key provisions:
– A new pilot program for wage insurance for older workers;
– Expansion of training, nearly tripling the training budget to $300 million;
– Extension of income benefits by 6 months (harmonizing income maintenance
and training time;
– Expansion of programs for communities. Establishes a program to help
communities develop strategic plans following job losses, and provides
technical assistance, loans, and grants.
House-passed H.R. 3005 and Senate-passed H.R. 3009 both contain several
environmental objectives and related provisions, and, overall, give substantially
greater consideration to environmental matters than did previous fast-track trade
agreement authority under the 1988 Trade Act. In that Act, environmental concerns
were addressed only in negotiating objectives regarding trade in services and foreign
direct investment. These provisions directed U.S. negotiators, in pursuing stated
take into account legitimate United States domestic objectives including, but not
limited to, the protection of legitimate health or safety, essential security,
environmental, consumer or employment opportunity interests and the law and
regulations related thereto.
(1988 Trade Act, §§ 1101(b)(9), (11); 19 U.S.C. §§ 2901(b)(9), (11))
Agreements entered into under this authority were the North American Free
Trade Agreement (NAFTA) and the Uruguay Round Agreements which included the
establishment of the World Trade Organization (WTO). Despite the lack of explicit
environmental directives in the 1988 Trade Act, environmental concerns were
addressed in varying degrees in the NAFTA, the NAFTA environmental side
agreement, and certain Uruguay Round Agreements and Ministerial Decisions.
Environmental Objectives. H.R. 3005 and Senate-passed H.R. 3009 include
two identical overall negotiating objectives on environment. The first objective is “to
ensure that trade and environmental policies are mutually supportive and to seek to
protect and preserve the environment and enhance the international means of doing
Prepared by Mary Tiemann; Specialist in Environmental Policy; Resources, Science, and
so, while optimizing the use of the world’s resources.” The second objective is to
seek provisions in trade agreements under which parties “strive to ensure that they
do not weaken or reduce the protections afforded in domestic environmental ... laws
as an encouragement for trade” (H.R. 3005, Sections 2(a)(5) and (7), and H.R. 3009,
2102(a)(5) and (7)).
This second objective parallels language contained in the U.S.-Jordan Free
Trade Agreement (FTA) and the NAFTA (Chapter 11, Investment). Both agreements
assert that it is inappropriate to encourage trade by relaxing domestic environmental
laws and generally state that a party should not waive or otherwise derogate from
such measures to attract investment. NAFTA, Article 1114, further provides that a
party may request consultations if it considers that another party has done so.
Environmental groups have argued for TPA language that seeks to prevent
countries from weakening environmental standards to promote a trade advantage, and
the language in both bills appears to respond to that issue. Environmental interests
have further called for making such action subject to dispute settlement procedures.
Those opposing this proposal by environmentalists have expressed concern that, in
doing so, legitimate changes in domestic environmental measures could be subject
to challenge by U.S. trading partners. Neither bill includes such an objective.
The House and Senate bills also contain several identical principal negotiating
objectives on environment (Section 2(b)(11) and Section 2102(b)(11)). Perhaps most
significantly, each bill provides that it is a principal negotiating objective “to ensure
that a party to a trade agreement with the United States does not fail to effectively
enforce its environmental ... laws, through a sustained or recurring course of action
or inaction, in a manner affecting trade between the United States and that party.”
A further objective is to recognize that parties retain the right to exercise
discretion with respect to prosecutorial, regulatory, and compliance matters. These
objectives mirror provisions contained in the U.S.-Jordan Free Trade Agreement
(FTA) and the NAFTA environmental side agreement. This objective goes further
than the U.S.-Jordan FTA to clarify the rights of a government to establish its own
levels of environmental protection by adding, “no retaliation may be authorized based
on the exercise of these rights or the right to establish domestic labor standards and
levels of environmental protection.”
Other principal negotiating objectives on environment contained in both bills
include: strengthening trading partners’ capacity to protect the environment through
the promotion of sustainable development; reducing or eliminating government
practices or policies that unduly threaten sustainable development; seeking market
access for U.S. environmental technologies, goods, and services; and ensuring that
environmental, health or safety policies or practices of the parties do not arbitrarily
discriminate against U.S. exports or serve as disguised barriers to trade.
Other Environment-Relevant Objectives. The bills set forth other
objectives that have implications for environmental laws and related disputes under
trade agreements. These include the objectives on dispute settlement, foreign
investment, transparency, and regulatory practices.
Dispute Settlement and Enforcement. The effectiveness of trade
agreement obligations is related to the strength of an agreement’s dispute settlement
process. Environmental interests argue that environmental obligations should be
included within trade agreements and that disputes involving these obligations should
be treated the same as commercial disputes, including using the same remedies.
Business interests and others favor flexibility in addressing various kinds of disputes.
Provisions in both bills parallel the U.S.-Jordan FTA and go beyond NAFTA by
calling for the inclusion of an obligation to enforce domestic environmental laws
within the texts of trade agreements. The dispute settlement objectives of H.R. 3005
and H.R. 3009, set forth at Section 2(b)(12) and Section 2102(b)(13), respectively,
call for seeking provisions that treat all principal negotiating objectives equally with
respect to the ability to resort to dispute settlement, and to have available equivalent
dispute settlement procedures and remedies. Thus, the bills envision that
environmental obligations in a trade agreement would be subject to dispute
settlement under the agreement.
A further negotiating objective for dispute settlement shared by the House and
Senate bills is to seek provisions to impose a penalty upon a party to a dispute that
encourages compliance with the agreement and “is appropriate to the parties, nature,
subject matter, and scope of the violation, and has the aim of not adversely affecting
parties or interests not party to the dispute while maintaining the effectiveness of the
enforcement mechanism.” Both bills thus seek to make all disputes equally subject
to dispute settlement but would provide flexibility in procedures and remedies.
Foreign Investment. Investment provisions have become an environmental
issue because of the types of claims that have been brought under NAFTA
investment provisions allowing foreign investors to arbitrate disputes with NAFTA
parties. In some cases, foreign investors have sought compensation for the negative
impacts of government environmental regulations, claiming that the government
action is a form of “indirect expropriation” or is “tantamount to expropriation.”
NAFTA provides that compensation must be equal to the fair market value of the
expropriated investment. These NAFTA provisions and related claims have prompted
concerns by some that this language may dampen the enforcement of environmental
regulations in signatory countries, and that foreign investors may have greater rights
under the NAFTA with respect to expropriations by federal, state, or local
government in the United States than domestic investors have under the Fifth
Amendment Takings Clause.14
The House and Senate bills each appear to attempt to address this concern to
some degree, although the bills’ provisions differ in several regards. The principal
negotiating objectives for investment in each bill (Sections 2(b)(3) and 2102(b)(3))
seek to reduce barriers to trade-related foreign investment, and to “secure for
investors important rights comparable to those that would be available under United
States legal principles and practice.” Both bills call for achieving these objectives
by seeking the establishment of “standards for expropriation and compensation for
For further discussion, see CRS Trade Electronic Briefing Book, hot topic, NAFTA
Chapter 11: Investor-State Dispute Settlement, and CRS Report RS20904, International
Investor Protection: “Indirect Expropriation” Claims Under NAFTA Chapter 11.
expropriation, consistent with United States legal principles and practice.” The
Senate bill further calls for “seeking to establish standards for fair and equitable
treatment consistent with United States legal principles and practice, including the
principle of due process.” The Senate bill, as amended by S.Amdt. 3405, further calls
for ensuring that “foreign investors in the United States are not accorded greater
rights than United States investors in the United States.”
The House and Senate bills also call for negotiators to seek to improve
mechanisms used to resolve disputes between an investor and a government through
various means, including mechanisms to eliminate frivolous claims. The Senate bill
further calls for mechanisms to deter the filing of frivolous claims; procedures to
enhance opportunities for public input into the formulation of government positions;
and the establishment of an appellate body to review decisions in investor-togovernment disputes and, thus, “provide coherence to the interpretations of
investment provisions in trade agreements.” In contrast, the House bill calls for
negotiators to provide in trade agreements an appellate or “similar” review
mechanism to correct “manifestly erroneous” legal interpretations.
Both bills similarly call for negotiators to ensure the “fullest measure of
transparency” in investment disputes by: ensuring that requests for dispute settlement
are promptly made public, ensuring that proceedings, submissions, findings and
decisions are made public; and establishing a mechanism for accepting amicus curiae
submissions from businesses, unions, and nongovernmental organizations.
Environmental groups favor adding language in TPA investment objectives that
directs negotiators to seek provisions in trade agreements that provide explicit
protection for environmental measures that may affect foreign investors. Other
stakeholders want to ensure checks are maintained against the potential for disguised
or unfair barriers to foreign investment. Neither bill calls for negotiators to seek
explicit exceptions for environmental measures in the investment-related provisions
of trade agreements.15
Various interests, including the Administration,
environmental groups and others, have put a priority on increasing transparency (i.e.,
openness) in trade matters and increasing public access to the dispute resolution
process. Environmental and business interests agree that greater openness would
allow increased awareness of the possible impacts of trade decisions relevant to their
concerns. The House and Senate bills contain identical provisions to significantly
increase public participation in trade matters, compared to current practice. H.R.
3005, Section 2(b)(5), and H.R. 3009, Section 2102(b)(5), provide that a principal
negotiating objective is to obtain wider application of the principle of transparency
through: increased and more timely public access to information on trade issues and
activities of international trade institutions; increased openness at the WTO and other
trade fora, including with regard to dispute settlement and investment; and increased
and more timely public access to all notifications and supporting documentation
For further discussion, see: NAFTA Chapter 11: Investor-State Dispute Settlement, CRS
Electronic Briefing Book on Trade, at: [http://www.congress.gov/brbk/html/ebtra131.html].
submitted by WTO parties. Each bill contains additional transparency provisions for
the principal trade negotiating objective on investment.
Regulatory Practices. Further, with respect to transparency, both H.R.
3005, Section 2(b)(8), and Senate-passed H.R. 3009, Section 2102(b)(8), include an
identical principal negotiating objective on regulatory practices, addressing the use
of government practices to provide a competitive advantage for domestic producers,
service providers, or investors. The goal of this provision is to lessen the use of
regulations for the purpose of reducing market access for U.S. goods, services or
investments. This objective calls for U.S. negotiators “to achieve increased
transparency and opportunity for the participation of affected parties in the
development of regulations.” This objective would seemingly benefit both U.S.
business and environmental interests. Additionally, the negotiating objective is “to
require that proposed regulations be based on sound science, cost-benefit analyses,
risk assessment, or other objective evidence.” This language has drawn criticism
from environmental groups that have called for language that would protect the
ability of federal, state, and local governments to take precautionary measures against
risks in cases where scientific or other knowledge may be suggestive but incomplete.
Proponents argue that, without such disciplines, regulations can too easily be used
to create barriers to trade.
Promotion of Certain Priorities. In addition to negotiating objectives, the
House and Senate bills require the President to promote certain priorities “in order
to address and maintain U.S. competitiveness in the global economy.” The Senate
Finance Committee report accompanying H.R. 3005 (S. Rept. 107-139), explains that
the priorities are not negotiating objectives themselves, but that they “should inform
trade negotiations or be pursued parallel to trade negotiations.”16
Among these priorities, the bills contain several identical environmental and
environment-relevant provisions. Specifically, under each bill, the President must:
(1) seek to establish consultative mechanisms to strengthen U.S. trading partners’
capacity to develop and implement standards for protecting the environment and
human health based on sound science, and to report to the House Committee on
Ways and Means and the Senate Committee on Finance; (2) conduct environment
reviews of trade and investment agreements, consistent with Executive Order
13141,17 and report to the House Committee on Ways and Means and the Senate
Committee on Finance; (3) take into account other legitimate U.S. domestic
objectives including the protection of legitimate health or safety interests and related
laws and regulations; (4) continue to promote consideration of multilateral
environmental agreements (MEAs) and consult with parties to MEAs regarding the
consistency of an MEA containing trade measures with existing environmental
U.S. Senate. Bipartisan trade Promotion Authority Act of 2002. Report to accompany
H.R. 3005. S. Rept. 107-139. Feb. 28, 2002. p. 8.
E.O. 13141, issued by President Clinton on November 16, 1999, commits the United
States to “a policy of careful assessment and consideration of the environmental impacts of
trade agreements and to factor environmental considerations into the development of its
negotiating objectives.” The order requires an assessment be “undertaken sufficiently early
in the process to inform the development of negotiating positions.”
exceptions under the GATT; and (5) report to the House Ways and Means and Senate
Finance Committees no later than 12 months after the United States imposes a
penalty or remedy permitted by the trade agreement on its effectiveness in enforcing
TPA and Agricultural Interest Groups
TPA enjoys support throughout most, but not all, of the agricultural community.
For example, some 80 farm, agribusiness, and related organizations signed a June 18,
2001 letter to President Bush pledging their active support for TPA. On the other
hand, some farm groups, including the National Farmers Union (NFU), have opposed
TPA. The NFU joined nearly 50 labor, environmental, consumer, and allied
organizations in signing a June 19, 2001, letter to Members of Congress opposing
what then was the leading Republican alternative, because, they argued, it would not
address labor, environmental, and related concerns.
During the debate on the 2002 farm bill, key House Members with agricultural
constituencies – including the chairman of the House Agriculture Committee –
threatened to withhold support for TPA unless the Administration promised to
support increases in U.S. farm subsidies in the House farm bill (H.R. 2646). The
Administration initially criticized the House-passed omnibus farm bill for its cost
($73.5 billion in new spending over 10 years) and potential for undermining U.S.
efforts to expand agricultural trade. However, the House committee chairman, and
the ranking Democrat, ultimately pledged their support for TPA after receiving
assurances that the Administration would agree to the new farm spending.
Both the House-passed version of H.R. 3005 and H.R. 3009 as passed by the
Senate contain a principal negotiating objective with respect to agriculture as well as
extensive provisions requiring consultation between the Office of the U.S. Trade
Representative (USTR) and the House Agriculture Committee and the Senate
Agriculture, Nutrition, and Forestry Committee. These provisions serve in part to
shore up support for TPA among agricultural groups and to address their specific
trade concerns, especially with respect to import-sensitive products. (For further
discussion, see Agriculture and Fast Track or Trade Promotion Authority, CRS
Report 97-817 ENR, May, 10, 2002.)
Agricultural Negotiating Objectives
Both TPA bills state that the principal negotiating objective for agriculture is to
obtain competitive, fairer, and more open market opportunities for U.S. agricultural
exports by (among other things):
Prepared by Charles E. Hanrahan, Senior Specialist in Agricultural Policy, Resources,
Science and Industry Division.
Reducing or eliminating tariffs and other charges by a date certain,
and reducing foreign ones to levels the same as or lower than U.S.
Reducing or eliminating subsidies that harm U.S. exports or unfairly
Allowing for the preservation of programs that support family farms
and rural communities;
Developing disciplines for domestic farm support so that production
in excess of domestic food security needs is sold at world prices, and
eliminating policies that create price-depressing surpluses;
Eliminating whenever possible state trading enterprises (STEs);
Strengthening dispute settlement mechanisms in order to eliminate
practices (including unfair or trade-distorting STE activities;
unjustified labeling that affects new technologies, including
biotechnology; unjustified technical, sanitary and other technical
barriers to trade; and restrictive administration of tariff rate quotas)
that impair U.S. market opportunities;
Eliminating practices that adversely affect trade in perishable or
cyclical products and addressing their trade problems; and ensuring
that import relief mechanisms for such products are as accessible
and useful to U.S. growers as they are to producers in other
Considering whether other countries have not lived up to existing
trade agreements, and how such agreements have impacted U.S.
Eliminating agricultural export subsidies, while maintaining bona
fide food assistance programs, and preserving U.S. market
development and export credit programs.
The bills call for U.S. negotiators to establish, as the base year for calculating
each country’s “Aggregate Measurement of Support” (i.e., the level of spending on
the most trade-distorting domestic agricultural subsidies), to be the end of its
Uruguay Round Agreement on Agriculture (URAA) implementation period.
Likewise, both bills call upon the USTR, before commencing negotiations on
agriculture, in consultation with Congress, to seek to develop a position on the
treatment of seasonal and perishable agricultural products in the negotiations. The
position developed would be used in negotiations to develop an international
consensus on treatment of seasonal or perishable products in dumping and safeguard
H.R. 3009 as passed by the Senate expands on the House bill’s broadly worded
objective of reducing or eliminating subsidies that decrease market opportunities or
unfairly distort agricultural markets. The language of the substitute calls for
eliminating all export subsidies on agricultural commodities while maintaining bona
fide food aid and preserving U.S. agricultural market development and export credit
programs that will allow the United States to compete with other foreign export
Import-Sensitive Agricultural Products
To garner more support from agricultural members, the bill’s House sponsors
added language to the committee-passed version which removes import-sensitive
agricultural products from the President’s tariff proclamation authority. At the same
time, the House bill expanded the consultation requirements that U.S. officials must
follow before undertaking tariff reduction negotiations on agricultural products
considered “import-sensitive” (defined in both House and Senate Finance Committee
versions as those subject to the minimum 2.5% annual reduction required under the
1994 URAA). The USTR would have to identify such products – likely more than
200 specific items ranging from cheese and many other dairy products to citrus and
various other fresh fruits and vegetables, sugar and other sweeteners, beef and lamb,
oilseeds, wine, tobaccos, cotton, wool, and chocolate – and consult with Congress on
how domestic producers would be affected by tariff cuts, among other requirements.
The Baucus-Grassley bill, which includes fish and shellfish in the requirement for
special consultation, contains somewhat different language but with the same intent.
Requirements for Consultation with Agriculture Committees
In addition to consultation requirements for import-sensitive agricultural
products, both bills establish additional requirements for consultation with House and
Senate Agriculture Committees. Before initiating (or continuing) a negotiation, the
President is required to assess whether U.S. tariffs are lower than tariffs of other
WTO member countries and whether negotiations provide an opportunity to address
tariff disparities. Following the assessment, the President must consult with the
House Agriculture and the Senate Agriculture, Nutrition and Forestry Committees
in addition to consulting with both House Ways and Means and Senate Finance
Committees on the appropriateness of the United States agreeing to further tariff
reductions. Both bills also require the USTR to consult closely and on a timely basis
(including immediately before initialing an agreement) and to keep the agriculture
committees in each chamber fully informed.
Both bills establish a new Congressional Oversight Group (see discussion infra).
Membership in this group would include the chairman and ranking member, plus
three additional members, from the House Ways and Means Committee and from
of the Senate Finance Committee. Membership in this group also would include the
chairman and ranking member of committees which would have jurisdiction over
provisions of law affected by trade agreement negotiations. Thus agriculture
committee leadership would become members of this group if provisions of
agricultural laws were affected by negotiations.
TPA and Agricultural Negotiating Issues
Some analysts note that while both bills would give the President the authority
he sought to proceed with negotiations, provisions in those bills also could make it
difficult for the President to achieve stated negotiating objectives for agriculture. In
particular, analysts say both versions’ requirement to consult in advance with
Congress before negotiating cuts in tariffs on import-sensitive products, will make
negotiating tariff reductions more difficult and could prevent negotiations of trade-
offs between sectors. Similarly, the Senate committee bill, by including the
preservation of U.S. export credit and food aid programs among the negotiating
objectives for agriculture, may render negotiations on export subsidy reduction or
elimination (a stated U.S. position in WTO agriculture negotiations) more difficult.
The Administration, however, has expressed the view that while the fast track bills
pose additional hurdles for lowering tariffs on import-sensitive products, in the longrun (because they involve extensive consultation with Congress) they provide a
“better basis” for negotiations.
Of interest to agricultural interest groups is an amendment to H.R. 3009 as
passed by the Senate (S.Amdt. 3408), agreed by voice vote on May 14, 2002, which
provides for the exclusion from fast-track consideration of provisions in a trade
agreement which modify or amend U.S. trade remedy laws. The Secretary of
Agriculture joined with USTR Zoellick to say that the President would veto a final
TPA bill which contained the amendment. Agricultural interests, who have made
extensive use of U.S. trade remedy statutes, are divided over inclusion of the
amendment in a final bill. Many agricultural groups have expressed opposition to the
amendment, arguing that it would be counterproductive to U.S. negotiations to bring
other countries trade remedy laws up to U.S. standards. Other groups, supporting the
amendment, express fears that U.S. negotiators will make concessions that would
weaken U.S. trade remedy laws. Proponents of excluding trade remedy provisions
from fast-track consideration say that U.S. negotiators “gave up” Section 22–a law
that provided for imposition of import quotas when imports disrupted the operation
of U.S. farm programs–during NAFTA and Uruguay Round negotiations. (For more
detail, see Trade Remedies and Agriculture, CRS Report RL31296, February
Congressional Oversight and President’s
Consultations with the Congress*
There are only a few differences between the Bipartisan Trade Promotion
Authority Act of 2002 as passed by the House (H.R. 3005) and as amended and
passed by the Senate (H.R. 3009). The most significant are those added by the
Senate regarding negotiations on fish and shellfish trade, the effect of agreements on
U.S. environment and labor, and reflecting its intention to exclude from the
agreements negotiated under the Act’s authority those provisions that would weaken
the U.S. trade remedial procedures (antidumping, countervailing, and safeguards).
Items in which the Senate version differs from the House version are printed in
Congressional Oversight Group
The Bipartisan Trade Promotion Authority Act, in Section 7 (2107), provides
for the establishment of the Congressional Oversight Group, a new, formally
Prepared by Vladimir N. Pregelj; Specialist in International Trade and Finance; Foreign
Affairs, Defense, and Trade Division.
constituted congressional body to facilitate timely exchange, with the U.S. Trade
Representative (USTR), of information related to the negotiation of trade agreements,
including regular briefings, access to pertinent documents, and coordination at all
critical periods during the negotiations. The Group would consult with and provide
advice to the USTR regarding the formulation of specific objectives, negotiating
strategies and positions, the development of the applicable trade agreement, and
compliance with and enforcement of the commitments negotiated under the
agreement. The guidelines for the Group’s functions – slightly more extensive in the
Senate version – and their later revisions would be developed by the USTR in
consultation with the chairmen and ranking minority members of the House Ways
and Means and the Senate Finance committees. Members of the Group would be
accredited by the USTR on behalf of the President as official advisers to the U.S.
delegation in the negotiations of trade agreements to which the Act applies.
The Group would be convened, initially within 60 days after the enactment date
of the Act and subsequently within 30 days after the convening of each Congress, by
the chairmen of the House Ways and Means, and the Senate Finance committees, and
would consist of the chairmen and ranking members of those two committees, or
their designees, and three additional members of each of those committees (not more
than two of whom may be members of the same political party). Moreover, in the
negotiations of a trade agreement concerning matters within the jurisdiction of any
other House or Senate committee, the chairmen and ranking members of such
committees, or their designees, would be included in the membership of the Group.
The Group would be chaired by the chairmen of the House Ways and Means, and the
Senate Finance committees.
In its functions, the Congressional Oversight Group would complement, with
respect to agreements negotiated and implemented under the authority of the Act, the
similar, but more general, functions of the slightly more numerous congressional
advisers for trade policy and negotiations, provided for in Section 161 of the Trade
Act of 1974, as amended (19 USC 2211) and appointed to their positions at the
beginning of each session by the Speaker of the House and the President pro tempore
of the Senate.
President’s Consultations with and Reports to Congress
In view of the fact that the legislation to implement a bilateral or multilateral
trade agreement dealing with matters other than solely tariff concessions, as
authorized by the Act, and qualifying for the expedited (“fast track”) legislative
procedure, may not be amended, the Congress has — since the original authorization
of such procedure by the Trade Act of 1974 — required that the President report to
and/or consult with the Congress at various stages before and during the negotiation
of such an agreement. With this requirement, the Congress has retained for itself a
means whereby it can be currently informed on and play an active role in fashioning
the language of the agreement and of the implementing legislation to reflect the
agreement’s required statutory objectives as well as its own diverse interests and
goals. Consultation with the Congress is also called for with respect to certain aspects
of any type of trade agreement.
Like the earlier versions of comparable legislation, both versions contain
virtually identical provisions which require the President (in this context including
also the USTR as the President’s principal trade official) to consult with or report to
Congress at specified stages of the trade agreement negotiation process. Except for
the addition of several requirements for advance notices of certain stages of
negotiations, specific provisions regarding consultations on agricultural trade, reports
on labor rights and standards and environmental protection in the negotiating
countries, the effectiveness of trade remedies imposed, and the inclusion of the newly
created Congressional Oversight Group in the consultations, other consultation
requirements and sanctions for failure to consult provided in H.R. 3005 do not differ
essentially from those enacted most recently by the 1988 Trade Act.
The required consultations and reports are arranged below in the approximate
sequence in which they would take place.
(1) In the preliminary stage of setting the comprehensive and detailed trade
negotiating objectives in agricultural trade, the USTR is required to seek to develop
before commencing negotiations, in consultation with the Congress, a negotiating
position with respect to the treatment of seasonal or perishable agricultural products,
particularly in dumping and safeguards investigations ( Section 2(b)(10);
(2) In connection with any negotiation under the Act, the President is to submit
to Congress (the Ways and Means, and Finance Committees) a report on the extent
to which the prospective parties to an agreement have in effect laws governing
exploitative child labor (a meaningful labor rights report) ( Section 2 (c)(8);
(3) With respect to agreements dealing with tariff barriers, the President is
required to notify Congress of his intention to enter into an agreement (Section
(4) With respect to agreements dealing with tariff and nontariff barriers (e.g.,
implementing free trade agreements), the President is required to submit to the
Congress, at least 90 days before initiating negotiations, a written notice of his
intention to enter into negotiations, together with sundry other information, and,
before and after its submission, consult regarding the negotiations with the Senate
Finance Committee, House Ways and Means Committee, such other House and
Senate committees as the President deems appropriate, and the Congressional
Oversight Group (and, upon the Oversight Groups’ request, meet, with them before
initiating the negotiations and at any other time concerning the negotiations) (Section
(5) Before initiating negotiations to provide a “level playing field” for American
agriculture (one of the negotiating objectives), the President is required to assess
whether there are disparities between the U.S. and foreign tariffs on agricultural
products and to consult concerning the results of the assessment with respect to
objectives to be achieved in this regard, with the House Ways and Means, and
Agriculture committees, and the Senate Finance, and Agriculture, Nutrition, and
Forestry Committees (Section 4(b)(1); 2104(b)(1)).
(6) Before initiating negotiations with regard to agriculture, and, with respect
to the Free Trade Area of the Americas and with regard to agriculture under the
auspices of the World Trade Organization, as soon as practicable after enactment, the
USTR is required to identify import-sensitive agricultural products and consult with
the House Ways and Means, and Agriculture Committees, and the Senate Finance,
and Agriculture, Nutrition, and Forestry Committees, on various aspects of their
importation (Section 4(b)2); 2104(b)(2)).
(7) Before initiating negotiations on fish and shellfish trade, the President is
required to consult with the House Ways and Means, and Resources Committees and
the Senate Finance, and Commerce, Science, and Transportation Committees, and
keep them apprised of negotiations on a continuing basis (Section 2104(b)(3)).
(8) Before initiating negotiations on textiles and apparel, the President is
required to assess the post-Uruguay Round disparities between U.S. and other
countries’ tariff rates on textiles and consult thereon with the House Ways and Means
and the Senate Finance Committees (Section 4(c); 2104(c)).
(9) In order to address in the negotiations U.S. competitiveness in world
economy, the President is required to submit to the House Ways and Means, and the
Senate Finance committees reports on trading partners’ respect for core labor
standards and protection of the environment, on impact of future trade agreements
on environment and U.S. employment, on labor rights in countries with which a trade
agreement is being negotiated, and on the effectiveness of a trade penalty or remedy
imposed as permitted by the agreement (Section 2102(c)).
(10) In the course of any negotiation conducted under the authority of the Act,
the USTR must consult “closely and on a timely basis” with the Congressional
Oversight Group and all committees of both Houses with jurisdiction over laws that
would be affected by the agreement being negotiated (Section 2(d)(1); 2102(d)(1)).
(11) The USTR must consult (including immediately before initialing an
agreement) with the congressional trade advisers, the House Committee on Ways and
Means, the Senate Committee on Finance, and the Congressional Oversight Group.
In addition, such consultations must be held with the House Committee on
Agriculture and the Senate Committee on Agriculture, Nutrition, and Forestry with
regard to negotiations and agreements relating to agricultural trade (Section 2(d)(2);
(12) At least 90 days before the President enters into a trade agreement, he must
notify the House Ways and Means and the Senate Finance Committees of any
amendments of the countervailing, antidumping, and safeguards law, proposed to be
included in the agreement-implementing legislation, and report on the reasons for
such changes (Section 2104(d)(3)).
(13) Before entering into an agreement dealing with tariff and nontariff matters,
the President is required to consult with the House Ways and Means Committee and
the Senate Finance Committee, with any other committee of either House and any
joint committee with jurisdiction over legislation in matters affected by the trade
agreement, and with the Congressional Oversight Group, with respect to the nature
of the agreement, how and to what extent the agreement will achieve applicable
purposes policies and objectives of the Act, and the implementation of the agreement
(Section 4(d)(1); 2104(d)(1)).
(14) The President’s failure or refusal to notify or consult with Congress with
respect to a tariff and nontariff agreement would result in the denial of the trade
authorities (fast-track) procedures for the consideration of a bill implementing that
agreement, if both Houses separately agree (under a specific expedited procedure)
within 60 days of each other to a procedural disapproval resolution denying such
procedures to the implementing bill in question due to failure to consult (Section
(15) Such disapproval resolution, however, is not in order in the event that the
President’s failure to give the 90-days notice prior to initiating negotiations and to
consult in connection with the negotiations of any of the four specified agreements
(which are likely to be negotiated in the foreseeable future), if the negotiations were
already in progress at the time of enactment of the Act. The President, however,
must notify the Congress of such negotiations and consult on them with the entities
listed in Section 4(a) (2104(a)); see (3) above) as soon as feasible (Section 6; 2106)).
Expedited Procedures and
Procedural Controls on Their Use*
Although current legislation to extend trade authorities procedures is said to
provide “trade agreements authority,” it does not itself grant the President any new
authority. With or without specific statutory authority, the President can negotiate
trade agreements, and their implementation would normally require new legislation.
Instead, as the official title of H.R. 3005 (“An Act to Extend Trade Authorities
Procedures...”) indicates, the legislation only “extends trade authorities procedures.”
That is, it extends to a specified class of trade agreements the eligibility for an
implementing bill to be considered under certain expedited procedures. These
expedited procedures, originally established by section 151 of the Trade Act of
1974,18 are also called “fast track” procedures. Their intent is to ensure that each
house of Congress will (1) consider and vote on the implementing bill and (2)
entertain no amendments to the bill.
The availability of this expedited treatment encourages trade negotiations, by
assuring the President and other participants that Congress will vote on any
agreement they reach in the form they negotiated it. For just this reason, however,
these procedures significantly constrain the discretion Congress normally exercises
over its legislative agenda. Current proposals compensate for these constraints by (1)
restricting the class of trade agreements eligible for expedited consideration, and (2)
Prepared by Richard S. Beth; Specialist in the Legislative Process; Government and
P.L. 93-618 (88 Stat. 1978), as amended; 19 U.S.C. 2191. The appendix provides
providing procedural means for each house to ensure that these restrictions will not
be breached. Through these procedural enforcement mechanisms, Congress retains
substantial control over whether trade agreements may be considered under expedited
procedures. Each mechanism is derived from similar ones that appeared in earlier
statutes making trade authorities procedures available and proposals for doing so.
Earlier sections of this report have already identified the various restrictions that
current proposals would place on trade agreements eligible for expedited
implementation. They are principally of four kinds:
the agreement must be reached within a specified time period;
specified notifications to and consultations with Congress must
occur during its negotiation;
it must promote specified objectives; and
the implementing bill must contain only specified kinds of
provisions, and specified forms of supporting information must be
To enforce the first three kinds of restriction, current legislation adapts several
specific procedural mechanisms provided for in earlier statutes and proposals. The
Senate-passed bill also introduces some requirements of the fourth kind that would
be enforced through procedural mechanisms. Also, all four could be enforced
through various applications of the general constitutional power of each house of
Congress to determine its own rules.
Except as noted in the following discussion, the procedural mechanisms
provided for in H.R. 3005 as passed by the House and Title XXI of H.R. 3009, as
passed by the Senate, are substantially similar. Like most statutes establishing
expedited procedures, both versions of the current legislation declare the procedural
enforcement mechanisms they share to be enacted as an exercise of the constitutional
rulemaking power of each house. The Senate bill does not extend this declaration to
the new procedural mechanisms it introduces.
Enforcing Time Restrictions
Both the House-passed and Senate-passed bills make the expedited procedures
of section 151 available for bills to implement trade agreements entered into before
June 1, 2005. This sunset provision is one way in which Congress limits the extent
of the constraint that the trade authorities procedures place on its legislative
discretion. The bills would also allow the President to extend the availability of the
expedited procedures to agreements entered into until June 1, 2007, by so requesting,
unless either house, before June 30, 2005, disapproves the request by adopting an
“extension disapproval resolution” (referred to below as an “EDR”).
An EDR is to be considered under a separate set of expedited procedures,
intended to guarantee consideration and prohibit amendment, which is contained in
section 152 of the Trade Act of 1974.19 In the House, the resolution would be
referred to the Committees on Ways and Means and Rules, and could be considered
on the floor only if reported. The provisions for the Senate do not specify a referral,
but permit floor consideration only if the Committee on Finance reports the
resolution.20 These requirements effectively afford the revenue committees control
over this means of regulating the availability of the trade authorities procedures.
Enforcing Notifications and Consultations
The current proposals establish a similar remedy if Congress finds that the
notifications and consultations required for any covered trade negotiation have not
occurred. The bills make the expedited procedures of section 152 applicable to a
“procedural disapproval resolution” (here called a “PDR”), stating that the President
has “failed or refused to notify or consult” as required with respect to specified trade
negotiations. If both houses adopt PDR’s with respect to the same negotiation,
within 60 days of one another, the trade agreement becomes ineligible for expedited
consideration. Accordingly, while an extension request may be disapproved through
action by only one chamber, withdrawal from an implementing bill of eligibility for
expedited consideration requires action by both.
Both the House-passed and Senate-passed bills specify that any Member of the
respective house may introduce a PDR in that house. H.R. 3005 provides that the
PDR be referred in the House to the Committees on Ways and Means and on Rules,
and may be considered on the floor only if reported by those committees. As passed
by the Senate, H.R. 3009 adds corresponding requirements in the Senate for referral
to and reporting by the Committee on Finance. As with the EDR, these arrangements
vest in the revenue committees effective control over this means to limit the
availability of the trade authorities procedures.
As currently proposed, this mechanism is stronger and more flexible than in
either previous law or earlier versions. First, the current legislation contains new
language providing explicitly that “failure to consult” includes failure to develop
guidelines for consultations with the Congressional Oversight Group (described in
earlier sections) or to meet with the Group on request.
Second, under the 1988 Trade Act, adoption by both houses of PDRs terminated
the trade promotion authority altogether. The current proposal permits the
mechanism to be used against an individual trade agreement, or any specified set of
otherwise eligible trade agreements. It also introduces the new restriction that each
house may consider only one PDR with respect to any given trade agreement under
the expedited procedure during a single Congress.
Third, under both the 1988 Trade Act and the House-reported version of H.R.
3005, a PDR could be introduced in the House only by the chairman or ranking
minority member of the Committee on Ways and Means or on Rules, and, in the
19 U.S.C. 2192. The appendix provides specifics.
The provision in this form allows for the possibility that the Committee on Finance could
report the EDR as an original measure.
Senate, the PDR had to be originated by the Committee on Finance. The Housepassed and Senate-passed bills eliminate this restriction, which increases the ability
of individual Members to influence the availability of the trade authorities procedure.
The retention of the reporting requirement nevertheless preserves committee control
over this decision.
H.R. 3009 as passed by the Senate also excludes agreements negotiated under
the auspices of the World Trade Organization (WTO) from expedited consideration
unless the Secretary of Commerce submits a report to Congress on plans for
correcting dispute resolutions by the WTO that have “added to obligations or
diminished rights of the United States.” This requirement, however, is not
specifically associated with any procedural enforcement mechanism.
Enforcing Pursuit of Objectives
As reported in the House, H.R. 3005 established no specific procedural means
for Congress to enforce the requirements it places on the objectives covered trade
agreements must serve. This limitation maintained the situation that existed under
the 1988 Trade Act and other earlier statutes. For example, one of the revenue
committees might become convinced, through the required consultations, that a given
negotiation was not fostering the statutory negotiating objectives. Under the Housereported version of H.R. 3005, the committee could not use a PDR to withdraw
eligibility for expedited consideration for this reason, as long as the consultations
were in fact taking place.
Both the House-passed and Senate-passed bills, however, include a new
provision under which “failure or refusal to notify or consult” also includes failure
of the pertinent trade agreement to “make progress in achieving the purposes,
policies, priorities, and objectives” the bill would establish. This language extends
the applicability of the PDR mechanism, enabling Congress to withdraw eligibility
for expedited consideration from a bill to implement a trade agreement that Congress
believes does not promote the established objectives.
Enforcing Restrictions on Contents
Earlier statutes providing trade promotion authority contained no specific
procedural mechanisms to enforce requirements they established for the contents of
implementing bills and supporting information required to be submitted to Congress.
If such requirements could be enforced procedurally at all, it would most likely be
through points of order. For example, if an implementing bill included provisions
of kinds the statute did not authorize, it might be possible for a Member in either
house to raise a point of order on the floor that the measure was for this reason
ineligible for expedited consideration. If the chair sustained the point of order, it
would in effect vitiate the opportunity for that implementing bill to receive expedited
Most content and information requirements of the current proposals authority
retain this approach. For example, the Senate-passed version of H.R. 3009
introduces a new requirement that the Department of Commerce report to Congress
by the end of 2002 on steps taken to correct decisions of WTO dispute settlement
organs that increase obligations or diminish rights of the United States. Unless this
information requirement is met, bills to implement trade agreements reached under
the WTO may not receive expedited consideration. The bill does not provide any
specific mechanism for enforcing this restriction. Presumably, however, if the report
were not to be made, and an attempt were made in either house to consider an
implementing bill, a point of order might be raised against doing so under the trade
The Senate bill, however, also adds some new content and information
requirements for which it provides specific procedural enforcement mechanisms.
These requirements relate to proposals affecting existing U.S. trade remedy laws.
First, if a trade agreement requires changes in existing trade remedy laws, the Chair
and ranking minority member of each revenue committee must report to Congress
on whether those changes would be consistent with applicable trade negotiating
objectives. Second, under the so-called Craig-Dayton amendment, an implementing
bill that contains provisions changing existing trade remedy laws is declared
ineligible for consideration under the trade authorities procedures in the Senate. The
Senate legislation explicitly provides that a point of order may be raised against such
provisions. If sustained, the provisions will be stricken from the bill, which would
then presumably become eligible for expedited consideration. Alternatively, a
majority of the full Senate may vote to waive the point of order or reverse the ruling
of the chair on appeal.
This mechanism affords the Senate an opportunity to decide case by case
whether to extend expedited consideration to an implementing bill containing
provisions of this kind. On the other hand, it makes no provision for the potential
consequences of striking out portions of the bill. Even if the Senate then passed the
bill in the altered form under the expedited procedures, it could not be enacted until
both houses accepted the same version. The Senate proposal affords no mechanism
to expedite the reaching of agreement through a conference committee or by
exchanging amendments between the Houses. Indeed, no effectual mechanism for
compelling the two Houses to agree can readily be conceived; no existing statute
providing for an expedited procedure affords any model for ensuring that a measure
can be cleared for Presidential action under such conditions.21
The ability of Congress to enforce restrictions on the eligibility of trade
agreements for expedited implementation is not limited to the procedural
enforcement mechanisms for which current legislation explicitly provides. Each
House would presumably also be able to enforce all four kinds of restriction
discussed above by direct use of its constitutional power to determine its own rules
and their application. As noted above, in many instances each House could
During consideration of the renewal of trade promotion authority in the 105th Congress,
however, S. 253 incorporated a proposed mechanism to help ensure that, if one house
amended an implementing bill, the two chambers would have an opportunity to adopt a
presumably enforce statutory provisions that operate as procedural rules through
rulings on points of order. Each house also always retains the ability permanently to
alter or supersede a statutory procedure by adopting a resolution for the purpose, just
as it may do for its own standing rules. Like most statutes establishing expedited
procedures, existing trade law and the current proposals explicitly reserve to each
house this use of the constitutional rulemaking power in relation to some of the
procedural mechanisms described above.
In the House, however, if an implementing bill did not meet statutory
requirements, it would be more likely for the Committee on Ways and Means to ask
the Committee on Rules to report a special rule proposing that the measure be
considered other than under the statutory expedited procedures. This special rule
could make amendments in order, or even provide that some alternative measure be
considered instead of the implementing bill. Even when a measure does meet the
criteria of eligibility for expedited consideration, in fact, the House has sometimes
considered it under the terms of a special rule instead. The Senate normally alters its
established procedures for considering a measure only by entering into a unanimous
consent agreement. Yet it also retains the ability to reject the motion to proceed to
consider an implementing bill that the statute authorizes, and then instead take up the
measure (or an alternative) under its general procedures.
In this context, extension and procedural disapproval resolutions appear as
having a function parallel to, though in a sense opposite from, special rules in the
House. Like special rules, the two kinds of disapproval resolution have the function
of regulating procedure. Whereas special rules establish the procedures under which
a specified measure shall be considered, disapproval resolutions determine that
certain procedures shall not be used to consider specified measures. In this light, for
example, the statutory prohibition on amending an implementing bill appears not as
a conclusive limitation on the authority of Congress, but rather as parallel to the
closed rule that the Committee on Ways and Means customarily requests for
consideration of revenue measures.
Appendix: Expedited Procedures in Current Law*
Section 151: Implementing Bills
Section 151 of the Trade Act of 1974 establishes expedited procedures for bills
to implement trade agreements. The following paragraphs list provisions of this
section that would apply to the new class of implementing bills that H.R. 3005 would
The implementing bill is to be introduced in each house, jointly by the two floor
leaders or their designees, on the first day each house meets after the President
submits his draft bill.
The bill is to be referred to the committees of jurisdiction. The principal
committees involved will normally be the House Committee on Ways and Means and
the Senate Committee on Finance. In each chamber, if committees of referral do not
report by the end of 45 days of session, they are automatically discharged. (If the
implementing bill contains revenue provisions, however, the Senate must for
constitutional reasons pass the House bill. In this case, the Senate committee is to
report the House bill, received after House passage. If necessary, the 45-day deadline
is extended so that the Senate committee has 15 days to report after it receives the
Once the committees have reported or been discharged, a motion to proceed to
consider the bill is privileged (and nondebatable) in each house, so that no special
rule (in the House) or other special leadership action is necessary to call it up. The
motion to consider may not be amended, and the vote on it may not be reconsidered.
The time for floor consideration is limited to 20 hours, equally divided and
controlled (between the two party floor leaders, in the Senate; between supporters
and opponents, in the House). A nondebatable motion to reduce this time further is
made in order. Each house is to complete floor action within 15 days of session after
committees report or are discharged. No separate mechanism to enforce this deadline
In the House, no motion to recommit the bill is in order. Also, appeals and
motions to postpone consideration or turn to other business are nondebatable. In the
Senate, debate on an appeal or debatable motion is limited to one hour.
In both chambers, no amendment may be offered to the implementing bill, either
in committee or on the floor. This prohibition may not be suspended by motion or
Because the bills must be introduced in identical form and cannot be amended,
the versions passed by both chambers will presumably be identical. After one house
passes an implementing bill, the final vote in the other house is to occur on the bill
Prepared by Richard S. Beth; Specialist in the Legislative Process; Government and
already received from the house that acted first. Since both bills will be identical, no
action to resolve House-Senate differences can become necessary, and this action will
clear the measure to be presented to the President.
If the President were to veto the bill, any attempt to override the veto would take
place under the general rules of each house. Section 151 establishes no special
procedures for this purpose.
Extension and Procedural Disapproval
Section 152 of the Trade Act of 1974 establishes expedited procedures for
certain congressional actions to make certain implementing bills ineligible for
expedited consideration under section 151. As explained in the body of the report,
H.R. 3005 makes these extension disapproval resolutions and procedural disapproval
resolutions eligible for expedited consideration only if they are reported from the
committees of referral (the respective revenue committees and, in the House, the
Committee on Rules). The following paragraphs list provisions of section 152 that
would apply to these resolutions under the terms of H.R. 3005.
Once the resolution is reported, a motion to proceed to consider it is privileged
and not debatable in both houses. Amendments to, or motions to reconsider the vote
on, the motion are not in order.
Debate on the resolution is limited to 20 hours, equally divided (in the House,
between supporters and opponents; in the Senate, between the two floor leaders).
In both houses, amendments to, or motions to recommit, the resolution are not
in order. In the House, motions to reconsider the vote on the resolution also are not
In the House, appeals and motions to postpone consideration of the resolution,
or to proceed to consider other business, are not debatable. In the Senate, debate on
an appeal or debatable motion is limited to one hour. A nondebatable motion is in
order to limit this debate time further.
No provisions are made for the resolution of any differences between the
houses, because both extension and procedural disapproval resolutions are simple
resolutions of each house separately.