[108th Congress Public Law 286]
[From the U.S. Government Printing Office]
[DOCID: f:publ286.108]
[[Page 118 STAT. 919]]
Public Law 108-286
108th Congress
An Act
To implement the United States-Australia Free Trade
Agreement. <<NOTE: Aug. 3, 2004 - [H.R. 4759]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: United States-
Australia Free Trade Agreement Implementation Act. 19 USC 3805 note.>>
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``United States-
Australia Free Trade Agreement Implementation Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.
TITLE I--APPROVAL OF, AND GENERAL PROVISIONS RELATING TO, THE AGREEMENT
Sec. 101. Approval and entry into force of the Agreement.
Sec. 102. Relationship of the Agreement to United States and State law.
Sec. 103. Implementing actions in anticipation of entry into force and
initial regulations.
Sec. 104. Consultation and layover provisions for, and effective date
of, proclaimed actions.
Sec. 105. Administration of dispute settlement proceedings.
Sec. 106. Effective dates; effect of termination.
TITLE II--CUSTOMS PROVISIONS
Sec. 201. Tariff modifications.
Sec. 202. Additional duties on certain agricultural goods.
Sec. 203. Rules of origin.
Sec. 204. Customs user fees.
Sec. 205. Disclosure of incorrect information.
Sec. 206. Enforcement relating to trade in textile and apparel goods.
Sec. 207. Regulations.
TITLE III--RELIEF FROM IMPORTS
Sec. 301. Definitions.
Subtitle A--Relief From Imports Benefiting From the Agreement
Sec. 311. Commencing of action for relief.
Sec. 312. Commission action on petition.
Sec. 313. Provision of relief.
Sec. 314. Termination of relief authority.
Sec. 315. Compensation authority.
Sec. 316. Confidential business information.
Subtitle B--Textile and Apparel Safeguard Measures
Sec. 321. Commencement of action for relief.
Sec. 322. Determination and provision of relief.
Sec. 323. Period of relief.
Sec. 324. Articles exempt from relief.
Sec. 325. Rate after termination of import relief.
Sec. 326. Termination of relief authority.
[[Page 118 STAT. 920]]
Sec. 327. Compensation authority.
Sec. 328. Business confidential information.
Subtitle C--Cases Under Title II of the Trade Act of 1974
Sec. 331. Findings and action on goods from Australia.
TITLE IV--PROCUREMENT
Sec. 401. Eligible products.
SEC. 2. PURPOSES. <<NOTE: 19 USC 3805 note.>>
The purposes of this Act are--
(1) to approve and implement the Free Trade Agreement
between the United States and Australia, entered into under the
authority of section 2103(b) of the Bipartisan Trade Promotion
Authority Act of 2002 (19 U.S.C. 3803(b));
(2) to strengthen and develop economic relations between the
United States and Australia for their mutual benefit;
(3) to establish free trade between the 2 nations through
the reduction and elimination of barriers to trade in goods and
services and to investment; and
(4) to lay the foundation for further cooperation to expand
and enhance the benefits of such Agreement.
SEC. 3. DEFINITIONS. <<NOTE: 19 USC 3805 note.>>
In this Act:
(1) Agreement.--The term ``Agreement'' means the United
States-Australia Free Trade Agreement approved by Congress under
section 101(a)(1).
(2) HTS.--The term ``HTS'' means the Harmonized Tariff
Schedule of the United States.
(3) Textile or apparel good.--The term ``textile or apparel
good'' means a good listed in the Annex to the Agreement on
Textiles and Clothing referred to in section 101(d)(4) of the
Uruguay Round Agreements Act (19 U.S.C. 3511(d)(4)).
TITLE I--APPROVAL OF, AND GENERAL PROVISIONS RELATING TO, THE AGREEMENT
SEC. 101. <<NOTE: 19 USC 3805 note.>> APPROVAL AND ENTRY INTO FORCE OF
THE AGREEMENT.
(a) Approval of Agreement and Statement of Administrative Action.--
Pursuant to section 2105 of the Bipartisan Trade Promotion Authority Act
of 2002 (19 U.S.C. 3805) and section 151 of the Trade Act of 1974 (19
U.S.C. 2191), Congress approves--
(1) the United States-Australia Free Trade Agreement entered
into on May 18, 2004, with the Government of Australia and
submitted to Congress on July 6, 2004; and
(2) the statement of administrative action proposed to
implement the Agreement that was submitted to Congress on July
6, 2004.
(b) <<NOTE: President.>> Conditions for Entry Into Force of the
Agreement.--At such time as the President determines that Australia has
taken measures necessary to bring it into compliance with those
provisions of the Agreement that are to take effect on the date on which
the Agreement enters into force, the President is authorized to exchange
notes with the Government of Australia providing for
[[Page 118 STAT. 921]]
the entry into force, on or after January 1, 2005, of the Agreement with
respect to the United States.
SEC. 102. <<NOTE: 19 USC 3805 note.>> RELATIONSHIP OF THE AGREEMENT TO
UNITED STATES AND STATE LAW.
(a) Relationship of Agreement to United States Law.--
(1) United states law to prevail in conflict.--No provision
of the Agreement, nor the application of any such provision to
any person or circumstance, which is inconsistent with any law
of the United States shall have effect.
(2) Construction.--Nothing in this Act shall be construed--
(A) to amend or modify any law of the United States,
or
(B) to limit any authority conferred under any law
of the United States,
unless specifically provided for in this Act.
(b) Relationship of Agreement to State Law.--
(1) Legal challenge.--No State law, or the application
thereof, may be declared invalid as to any person or
circumstance on the ground that the provision or application is
inconsistent with the Agreement, except in an action brought by
the United States for the purpose of declaring such law or
application invalid.
(2) Definition of state law.--For purposes of this
subsection, the term ``State law'' includes--
(A) any law of a political subdivision of a State;
and
(B) any State law regulating or taxing the business
of insurance.
(c) Effect of Agreement With Respect to Private Remedies.--No person
other than the United States--
(1) shall have any cause of action or defense under the
Agreement or by virtue of congressional approval thereof; or
(2) may challenge, in any action brought under any provision
of law, any action or inaction by any department, agency, or
other instrumentality of the United States, any State, or any
political subdivision of a State, on the ground that such action
or inaction is inconsistent with the Agreement.
SEC. 103. <<NOTE: 19 USC 3805 note.>> IMPLEMENTING ACTIONS IN
ANTICIPATION OF ENTRY INTO FORCE AND INITIAL REGULATIONS.
(a) Implementing Actions.--
(1) Proclamation authority.--After the date of the enactment
of this Act--
(A) the President may proclaim such actions, and
(B) other appropriate officers of the United States
Government may issue such regulations,
as may be necessary to ensure that any provision of this Act, or
amendment made by this Act, that takes effect on the date the
Agreement enters into force is appropriately implemented on such
date, but no such proclamation or regulation may have an
effective date earlier than the date on which the Agreement
enters into force.
(2) Effective date of certain proclaimed actions.--Any
action proclaimed by the President under the authority of this
Act that is not subject to the consultation and layover
provisions under section 104, may not take effect before the
[[Page 118 STAT. 922]]
15th day after the date on which the text of the proclamation is
published in the Federal Register.
(3) Waiver of 15-day restriction.--The 15-day restriction in
paragraph (2) on the taking effect of proclaimed actions is
waived to the extent that the application of such restriction
would prevent the taking effect on the date the Agreement enters
into force of any action proclaimed under this section.
(b) <<NOTE: Deadlines.>> Initial Regulations.--Initial regulations
necessary or appropriate to carry out the actions required by or
authorized under this Act or proposed in the statement of administrative
action submitted under section 101(a)(2) to implement the Agreement
shall, to the maximum extent feasible, be issued within 1 year after the
date on which the Agreement enters into force. In the case of any
implementing action that takes effect on a date after the date on which
the Agreement enters into force, initial regulations to carry out that
action shall, to the maximum extent feasible, be issued within 1 year
after such effective date.
SEC. 104. <<NOTE: President. 19 USC 3805 note.>> CONSULTATION AND
LAYOVER PROVISIONS FOR, AND EFFECTIVE DATE OF, PROCLAIMED
ACTIONS.
If a provision of this Act provides that the implementation of an
action by the President by proclamation is subject to the consultation
and layover requirements of this section, such action may be proclaimed
only if--
(1) the President has obtained advice regarding the proposed
action from--
(A) the appropriate advisory committees established
under section 135 of the Trade Act of 1974 (19 U.S.C.
2155); and
(B) the United States International Trade
Commission;
(2) <<NOTE: Reports.>> the President has submitted a report
to the Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives that sets forth--
(A) the action proposed to be proclaimed and the
reasons therefor; and
(B) the advice obtained under paragraph (1);
(3) a period of 60 calendar days, beginning on the first day
on which the requirements set forth in paragraphs (1) and (2)
have been met has expired; and
(4) the President has consulted with such Committees
regarding the proposed action during the period referred to in
paragraph (3).
SEC. 105. ADMINISTRATION OF DISPUTE SETTLEMENT PROCEEDINGS.
(a) <<NOTE: President. 19 USC 3805 note.>> Establishment or
Designation of Office.--The President is authorized to establish or
designate within the Department of Commerce an office that shall be
responsible for providing administrative assistance to panels
established under chapter 21 of the Agreement. The office may not be
considered to be an agency for purposes of section 552 of title 5,
United States Code.
(b) Authorization of Appropriations.--There are authorized to be
appropriated for each fiscal year after fiscal year 2004 to the
Department of Commerce such sums as may be necessary for the
establishment and operations of the office under subsection (a) and for
the payment of the United States share of the expenses of panels
established under chapter 21 of the Agreement.
[[Page 118 STAT. 923]]
SEC. 106. EFFECTIVE DATES; EFFECT OF <<NOTE: 19 USC 3805
note.>> TERMINATION.
(a) Effective Dates.--Except as provided in subsection (b), the
provisions of this Act and the amendments made by this Act take effect
on the date on which the Agreement enters into force.
(b) Exceptions.--Sections 1 through 3 and this title take effect on
the date of the enactment of this Act.
(c) Termination of the Agreement.--On the date on which the
Agreement terminates, the provisions
of this Act (other than this subsection) and the amendments made by this
Act shall cease to be effective.
TITLE II--CUSTOMS PROVISIONS
SEC. 201. TARIFF <<NOTE: 19 USC 3805 note.>> MODIFICATIONS.
(a) Tariff Modifications Provided for in the Agreement.--The
President may proclaim--
(1) such modifications or continuation of any duty,
(2) such continuation of duty-free or excise treatment, or
(3) such additional duties,
as the President determines to be necessary or appropriate to carry out
or apply articles 2.3, 2.5, and 2.6, and Annex 2-B of the Agreement.
(b) Other Tariff Modifications.--Subject to the consultation and
layover provisions of section 104, the President may proclaim--
(1) such modifications or continuation of any duty,
(2) such modifications as the United States may agree to
with Australia regarding the staging of any duty treatment set
forth in Annex 2-B of the Agreement,
(3) such continuation of duty-free or excise treatment, or
(4) such additional duties,
as the President determines to be necessary or appropriate to maintain
the general level of reciprocal and mutually advantageous concessions
with respect to Australia provided for by the Agreement.
(c) Conversion to Ad Valorem Rates.--For purposes of subsections (a)
and (b), with respect to any good for which the base rate in the
Schedule of the United States to Annex 2-B of the Agreement is a
specific or compound rate of duty, the President may substitute for the
base rate an ad valorem rate that the President determines to be
equivalent to the base rate.
SEC. 202. <<NOTE: 19 USC 3805 note.>> ADDITIONAL DUTIES ON CERTAIN
AGRICULTURAL GOODS.
(a) General Provisions.--
(1) Applicability of subsection.--This subsection applies to
additional duties assessed under subsections (b), (c), and (d).
(2) Applicable ntr (mfn) rate of duty.--For purposes of
subsections (b), (c), and (d), the term ``applicable NTR (MFN)
rate of duty'' means, with respect to a safeguard good, a rate
of duty that is the lesser of--
(A) the column 1 general rate of duty that would
have been imposed under the HTS on the same safeguard
good entered, without a claim for preferential
treatment, at the time the additional duty is imposed
under subsection (b), (c), or (d), as the case may be;
or
(B) the column 1 general rate of duty that would
have been imposed under the HTS on the same safeguard
good
[[Page 118 STAT. 924]]
entered, without a claim for preferential treatment, on
December 31, 2004.
(3) Schedule rate of duty.--For purposes of subsections (b)
and (c), the term ``schedule rate of duty'' means, with respect
to a safeguard good, the rate of duty for that good set out in
the Schedule of the United States to Annex 2-B of the Agreement.
(4) Safeguard good.--In this subsection, the term
``safeguard good'' means--
(A) a horticulture safeguard good described
subsection (b)(1)(B); or
(B) a beef safeguard good described in subsection
(c)(1) or subsection (d)(1)(A).
(5) Exceptions.--No additional duty shall be assessed on a
good under subsection (b), (c), or (d) if, at the time of entry,
the good is subject to import relief under--
(A) subtitle A of title III of this Act; or
(B) chapter 1 of title II of the Trade Act of 1974
(19 U.S.C. 2251 et seq.).
(6) Termination.--The assessment of an additional duty on a
good under subsection (b) or (c), whichever is applicable, shall
cease to apply to that good on the date on which duty-free
treatment must be provided to that good under the Schedule of
the United States to Annex 2-B of the Agreement.
(7) <<NOTE: Deadline.>> Notice.--Not later than 60 days
after the date on which the Secretary of the Treasury assesses
an additional duty on a good under subsection (b), (c), or (d),
the Secretary shall notify the Government of Australia in
writing of such action and shall provide to that Government data
supporting the assessment of the additional duty.
(b) Additional Duties on Horticulture Safeguard Goods.--
(1) Definitions.--In this subsection:
(A) F.O.B.--The term ``F.O.B.'' means free on
board, regardless of the mode of transportation, at the
point of direct shipment by the seller to the buyer.
(B) Horticulture safeguard good.--The term
``horticulture safeguard good'' means a good--
(i) that qualifies as an originating good
under section 203;
(ii) that is included in the United States
Horticulture Safeguard List set forth in Annex 3-A
of the Agreement; and
(iii) for which a claim for preferential
treatment under the Agreement has been made.
(C) Unit import price.--The ``unit import price'' of
a good means the price of the good determined on the
basis of the F.O.B. import price of the good, expressed
in either dollars per kilogram or dollars per liter,
whichever unit of measure is indicated for the good in
the United States Horticulture Safeguard List set forth
in Annex 3-A of the Agreement.
(D) Trigger price.--The ``trigger price'' for a good
is the trigger price indicated for that good in the
United States Horticulture Safeguard List set forth in
Annex 3-A of the Agreement or any amendment thereto.
[[Page 118 STAT. 925]]
(2) Additional duties.--In addition to any duty proclaimed
under subsection (a) or (b) of section 201, and subject to
subsection (a) of this section, the Secretary of the Treasury
shall assess a duty on a horticulture safeguard good, in the
amount determined under paragraph (3), if the Secretary
determines that the unit import price of the good when it enters
the United States is less than the trigger price for that good.
(3) Calculation of additional duty.--The additional duty
assessed under this subsection on a horticulture safeguard good
shall be an amount determined in accordance with the following
table:
If the excess of the trigger price The additional duty is an amount equal to:
over the unit import price is:
Not more than 10 percent of the 0.
trigger price........................
More than 10 percent but not more than 30 percent of the excess of the applicable NTR (MFN) rate of duty
40 percent of the trigger price...... over the schedule rate of duty.
More than 40 percent but not more than 50 percent of such excess.
60 percent of the trigger price......
More than 60 percent but not more than 70 percent of such excess.
75 percent of the trigger price......
More than 75 percent of the trigger 100 percent of such excess.
price................................
(c) Additional Duties on Beef Safeguard Goods Based on Quantity of
Imports.--
(1) Definition.--In this subsection, the term ``beef
safeguard good'' means a good--
(A) that qualifies as an originating good under
section 203;
(B) that is listed in paragraph 3 of Annex I of the
General Notes to the Schedule of the United States to
Annex 2-B of the Agreement; and
(C) for which a claim for preferential treatment
under the Agreement has been made.
(2) Additional duties.--In addition to any duty proclaimed
under subsection (a) or (b) of section 201, and subject to
subsection (a) of this section and paragraphs (4) and (5) of
this subsection, the Secretary of the Treasury shall assess a
duty, in the amount determined under paragraph (3), on a beef
safeguard good imported into the United States in a calendar
year if the Secretary determines that, prior to such
importation, the total volume of beef safeguard goods imported
into the United States in that calendar year is equal to or
greater than 110 percent of the volume set out for beef
safeguard goods in the corresponding year in the table contained
in paragraph 3(a) of Annex I of the General Notes to the
Schedule of the United States to Annex 2-B of the Agreement. For
purposes of this subsection, the years 1 through 19 set out in
the table contained in paragraph 3(a) of such Annex I correspond
to the calendar years 2005 through 2023.
(3) Calculation of additional duty.--The additional duty on
a beef safeguard good under this subsection shall
[[Page 118 STAT. 926]]
be an amount equal to 75 percent of the excess of the applicable
NTR (MFN) rate of duty over the schedule rate of duty.
(4) Waiver.--
(A) In general.--The United States Trade
Representative is authorized to waive the application of
this subsection, if the Trade Representative determines
that extraordinary market conditions demonstrate that
the waiver would be in the national interest of the
United States, after the requirements of subparagraph
(B) are met.
(B) Notice and consultations.--Promptly after
receiving a request for a waiver of this subsection, the
Trade Representative shall notify the Committee on Ways
and Means of the House of Representatives and the
Committee on Finance of the Senate, and may make the
determination provided for in subparagraph (A) only
after consulting with--
(i) appropriate private sector advisory
committees established under section 135 of the
Trade Act of 1974 (19 U.S.C. 2155); and
(ii) the Committee on Ways and Means of the
House of Representatives and the Committee on
Finance of the Senate regarding--
(I) the reasons supporting the
determination to grant the waiver; and
(II) the proposed scope and duration
of the waiver.
(C) <<NOTE: Federal Register,
publication.>> Notification of the secretary of
the treasury and publication.--Upon granting a
waiver under this paragraph, the Trade
Representative shall promptly notify the Secretary
of the Treasury of the period in which the waiver
will be in effect, and shall publish notice of the
waiver in the Federal Register.
(5) <<NOTE: Termination date.>> Effective dates.--This
subsection takes effect on January 1, 2013, and shall not be
effective after December 31, 2022.
(d) Additional Duties on Beef Safeguard Goods Based on Price.--
(1) Definitions.--In this subsection:
(A) Beef safeguard good.--The term ``beef safeguard
good'' means a good--
(i) that qualifies as an originating good
under section 203;
(ii) that is classified under subheading
0201.10.50, 0201.20.80, 0201.30.80, 0202.10.50,
0202.20.80, or 0202.30.80 of the HTS; and
(iii) for which a claim for preferential
treatment under the Agreement has been made.
(B) Calendar quarter.--
(i) In general.--The term ``calendar quarter''
means any 3-month period beginning on January 1,
April 1, July 1, or October 1 of a calendar year.
(ii) First calendar quarter.--The term ``first
calendar quarter'' means the calendar quarter
beginning on January 1.
[[Page 118 STAT. 927]]
(iii) Second calendar quarter.--The term
``second calendar quarter'' means the calendar
quarter beginning on April 1.
(iv) Third calendar quarter.--The term ``third
calendar quarter'' means the calendar quarter
beginning on July 1.
(v) Fourth calendar quarter.--The term
``fourth calendar quarter'' means the calendar
quarter beginning on October 1.
(C) Monthly average index price.--The term ``monthly
average index price'' means the simple average, as
determined by the Secretary of Agriculture, for a
calendar month of the daily average index prices for
Wholesale Boxed Beef Cut-Out Value Select 1-3 Central
U.S. 600-750 lbs., or its equivalent, as such simple
average is reported by the Agricultural Marketing
Service of the Department of Agriculture in Report LM-
XB459 or any equivalent report.
(D) 24-month trigger price.--The term ``24-month
trigger price'' means, with respect to any calendar
month, the average of the monthly average index prices
for the 24 preceding calendar months, multiplied by
0.935.
(2) Additional duties.--In addition to any duty proclaimed
under subsection (a) or (b) of section 201, and subject to
subsection (a) of this section and paragraphs (4) through (6) of
this subsection, the Secretary of the Treasury shall assess a
duty, in the amount determined under paragraph (3), on a beef
safeguard good imported into the United States if--
(A)(i) the good is imported in the first calendar
quarter, second calendar quarter, or third calendar
quarter of a calendar year; and
(ii) the monthly average index price, in any 2
calendar months of the preceding calendar quarter, is
less than the 24-month trigger price; or
(B)(i) the good is imported in the fourth calendar
quarter of a calendar year; and
(ii)(I) the monthly average index price, in any 2
calendar months of the preceding calendar quarter, is
less than the 24-month trigger price; or
(II) the monthly average index price, in any of the
4 calendar months preceding January 1 of the succeeding
calendar year, is less than the 24-month trigger price.
(3) Calculation of additional duty.--The additional duty on
a beef safeguard good under this subsection shall be an amount
equal to 65 percent of the applicable NTR (MFN) rate of duty for
that good.
(4) Limitation.--An additional duty shall be assessed under
this subsection on a beef safeguard good imported into the
United States in a calendar year only if, prior to the
importation of that good, the total quantity of beef safeguard
goods imported into the United States in that calendar year is
equal to or greater than the sum of--
(A) the quantity of goods of Australia eligible to
enter the United States in that year specified in
Additional United States Note 3 to Chapter 2 of the HTS;
and
(B)(i) in 2023, 70,420 metric tons; or
[[Page 118 STAT. 928]]
(ii) in 2024, and in each year thereafter, a
quantity that is 0.6 percent greater than the quantity
provided for in the preceding year under this
subparagraph.
(5) Waiver.--
(A) In general.--The United States Trade
Representative is authorized to waive the application of
this subsection, if the Trade Representative determines
that extraordinary market conditions demonstrate that
the waiver would be in the national interest of the
United States, after the requirements of subparagraph
(B) are met.
(B) Notice and consultations.--Promptly after
receiving a request for a waiver of this subsection, the
Trade Representative shall notify the Committee on Ways
and Means of the House of Representatives and the
Committee on Finance of the Senate, and may make the
determination provided for in subparagraph (A) only
after consulting with--
(i) appropriate private sector advisory
committees established under section 135 of the
Trade Act of 1974 (19 U.S.C. 2155); and
(ii) the Committee on Ways and Means of the
House of Representatives and the Committee on
Finance of the Senate regarding--
(I) the reasons supporting the
determination to grant the waiver; and
(II) the proposed scope and duration
of the waiver.
(C) <<NOTE: Federal Register,
publication.>> Notification of the secretary of
the treasury and publication.--Upon granting a
waiver under this paragraph, the Trade
Representative shall promptly notify the Secretary
of the Treasury of the period in which the waiver
will be in effect, and shall publish notice of the
waiver in the Federal Register.
(6) Effective date.--This subsection takes effect on January
1, 2023.
SEC. 203. RULES OF <<NOTE: 19 USC 3805 note.>> ORIGIN.
(a) Application and Interpretation.--In this section:
(1) Tariff classification.--The basis for any tariff
classification is the HTS.
(2) Reference to hts.--Whenever in this section there is a
reference to a heading or subheading, such reference shall be a
reference to a heading or subheading of the HTS.
(3) Cost or value.--Any cost or value referred to in this
section shall be recorded and maintained in accordance with the
generally accepted accounting principles applicable in the
territory of the country in which the good is produced (whether
Australia or the United States).
(b) Originating Goods.--For purposes of this Act and for purposes of
implementing the preferential treatment provided for under the
Agreement, a good is an originating good if--
(1) the good is a good wholly obtained or produced entirely
in the territory of Australia, the United States, or both;
(2) the good--
(A) is produced entirely in the territory of
Australia, the United States, or both, and--
[[Page 118 STAT. 929]]
(i) each of the nonoriginating materials used
in the production of the good undergoes an
applicable change in tariff classification
specified in Annex 4-A or Annex 5-A of the
Agreement;
(ii) the good otherwise satisfies any
applicable regional value-content requirement
referred to in Annex 5-A of the Agreement; or
(iii) the good meets any other requirements
specified in Annex 4-A or Annex 5-A of the
Agreement; and
(B) the good satisfies all other applicable
requirements of this section;
(3) the good is produced entirely in the territory of
Australia, the United States, or both, exclusively from
materials described in paragraph (1) or (2); or
(4) the good otherwise qualifies as an originating good
under this section.
(c) De Minimis Amounts of Nonoriginating Materials.--
(1) In general.--Except as provided in paragraphs (2) and
(3), a good that does not undergo a change in tariff
classification pursuant to Annex 5-A of the Agreement is an
originating good if--
(A) the value of all nonoriginating materials that--
(i) are used in the production of the good,
and
(ii) do not undergo the required change in
tariff classification,
does not exceed 10 percent of the adjusted value of the
good;
(B) the good meets all other applicable requirements
of this section; and
(C) the value of such nonoriginating materials is
included in the value of nonoriginating materials for
any applicable regional value-content requirement for
the good.
(2) Exceptions.--Paragraph (1) does not apply to the
following:
(A) A nonoriginating material provided for in
chapter 4 of the HTS or in subheading 1901.90 that is
used in the production of a
good provided for in chapter 4 of the HTS.
(B) A nonoriginating material provided for in
chapter 4 of the HTS or in subheading 1901.90 that is
used in the production of a good provided for in
subheading 1901.10, 1901.20, or 1901.90, heading 2105,
or subheading 2106.90, 2202.90, or 2309.90.
(C) A nonoriginating material provided for in
heading 0805 or any of subheadings 2009.11 through
2009.39 that is used in the production of a good
provided for in any of subheadings 2009.11 through
2009.39, or in subheading 2106.90 or 2202.90.
(D) A nonoriginating material provided for in
chapter 15 of the HTS that is used in the production of
a good provided for in any of headings 1501.00.00
through 1508, or in heading 1512, 1514, or 1515.
(E) A nonoriginating material provided for in
heading 1701 that is used in the production of a good
provided for in any of headings 1701 through 1703.
[[Page 118 STAT. 930]]
(F) A nonoriginating material provided for in
chapter 17 of the HTS or heading 1805.00.00 that is used
in the production of a good provided for in subheading
1806.10.
(G) A nonoriginating material provided for in any of
headings 2203 through 2208 that is used in the
production of a good provided for in heading 2207 or
2208.
(H) A nonoriginating material used in the production
of a good provided for in any of chapters 1 through 21
of the HTS unless the nonoriginating material is
provided for in a different subheading than the good for
which origin is being determined under this section.
(3) Textile and apparel goods.--
(A) In general.--Except as provided in subparagraph
(B), a textile or apparel good that is not an
originating good because certain fibers or yarns used in
the production of the component of the good that
determines the tariff classification of the good do not
undergo an applicable change in tariff classification
set out in Annex 4-A of the Agreement shall be
considered to be an originating good if the total weight
of all such fibers or yarns in that component is not
more than 7 percent of the total weight of that
component.
(B) Certain textile or apparel goods.--A textile or
apparel good containing elastomeric yarns in the
component of the good that determines the tariff
classification of the good shall be considered to be an
originating good only if such yarns are wholly formed in
the territory of Australia or the United States.
(C) Yarn, fabric, or fiber.--For purposes of this
paragraph, in the case of a textile or apparel good that
is a yarn, fabric, or group of fibers, the term
``component of the good that determines the tariff
classification of the good'' means all of the fibers in
the yarn, fabric, or group of fibers.
(d) Accumulation.--
(1) Originating materials used in production of goods of
other country.--Originating materials from the territory of
Australia or the United States that are used in the production
of a good in the territory of the other country shall be
considered to originate in the territory of the other country.
(2) Multiple procedures.--A good that is produced in the
territory of Australia, the United States, or both, by 1 or more
producers, is an originating good if the good satisfies the
requirements of subsection (b) and all other applicable
requirements of this section.
(e) Regional Value-Content.--
(1) In general.--For purposes of subsection (b)(2), the
regional value-content of a good referred to in Annex 5-A of the
Agreement, except for goods to which paragraph (4) applies,
shall be calculated by the importer, exporter, or producer of
the good, on the basis of the build-down method described in
paragraph (2) or the build-up method described in paragraph (3).
(2) Build-down method.--
(A) In general.--The regional value-content of a
good may be calculated on the basis of the following
build-down method:
[[Page 118 STAT. 931]]
av-vnm
rvc = -------- <dbl-dagger> 100
av
(B) Definitions.--In subparagraph (A):
(i) RVC.--The term ``RVC'' means the regional
value-content of the good, expressed as a
percentage.
(ii) AV.--The term ``AV'' means the adjusted
value of the good.
(iii) VNM.--The term ``VNM'' means the value
of nonoriginating materials that are acquired and
used by the producer in the production of the
good, but does not include the value of a material
that is self-produced.
(3) Build-up method.--
(A) In general.--The regional value-content of a
good may be calculated on the basis of the following
build-up method:
vom
rvc = -------- <dbl-dagger> 100
av
(B) Definitions.--In subparagraph (A):
(i) RVC.--The term ``RVC'' means the regional
value-content of the good, expressed as a
percentage.
(ii) AV.--The term ``AV'' means the adjusted
value of the good.
(iii) VOM.--The term ``VOM'' means the value
of originating materials that are acquired or
self-produced, and used by the producer in the
production of the good.
(4) Special rule for certain automotive goods.--
(A) In general.--For purposes of subsection (b)(2),
the regional value-content of an automotive good
referred to in Annex 5-A of the Agreement shall be
calculated by the importer, exporter, or producer of the
good, on the basis of the following net cost method:
nc-vnm
rvc = -------- <dbl-dagger> 100
nc
(B) Definitions.--In subparagraph (A):
(i) Automotive good.--The term ``automotive
good'' means a good provided for in any of
subheadings 8407.31 through 8407.34, subheading
8408.20, heading 8409, or in any of headings 8701
through 8708.
(ii) RVC.--The term ``RVC'' means the regional
value-content of the automotive good, expressed as
a percentage.
(iii) NC.--The term ``NC'' means the net cost
of the automotive good.
(iv) VNM.--The term ``VNM'' means the value of
nonoriginating materials that are acquired and
used by the producer in the production of the
automotive good, but does not include the value of
a material that is self-produced.
(C) Motor vehicles.--
[[Page 118 STAT. 932]]
(i) Basis of calculation.--For purposes of
determining the regional value-content under
subparagraph (A) for an automotive good that is a
motor vehicle provided for in any of headings 8701
through 8705, an importer, exporter, or producer
may average the amounts calculated under the
formula contained in subparagraph (A), over the
producer's fiscal year--
(I) with respect to all motor
vehicles in any one of the categories
described in clause (ii); or
(II) with respect to all motor
vehicles in any such category that are
exported to the territory of the United
States or Australia.
(ii) Categories.--A category is described in
this clause if it--
(I) is the same model line of motor
vehicles, is in the same class of
vehicles, and is produced in the same
plant in the territory of Australia or
the United States, as the good described
in clause (i) for which regional value-
content is being calculated;
(II) is the same class of motor
vehicles, and is produced in the same
plant in the territory of Australia or
the United States, as the good described
in clause (i) for which regional value-
content is being calculated; or
(III) is the same model line of
motor vehicles produced in either the
territory of Australia or the United
States, as the good described in clause
(i) for which regional value-content is
being calculated.
(D) Other automotive goods.--For purposes of
determining the regional value-content under
subparagraph (A) for automotive goods provided for in
any of subheadings 8407.31 through 8407.34, in
subheading 8408.20, or in heading 8409, 8706, 8707, or
8708, that are produced in the same plant, an importer, exporter, or
producer may--
(i) average the amounts calculated under the
formula contained in subparagraph (A) over--
(I) the fiscal year of the motor
vehicle producer to whom the automotive
goods are sold,
(II) any quarter or month, or
(III) its own fiscal year,
if the goods were produced during the fiscal year,
quarter, or month that is the basis for the
calculation;
(ii) determine the average referred to in
clause (i) separately for such goods sold to one
or more motor vehicle producers; or
(iii) make a separate determination under
clause (i) or (ii) for automotive goods that are
exported to the territory of the United States or
Australia.
(E) Calculating net cost.--Consistent with the
provisions regarding allocation of costs set out in
generally accepted accounting principles, the net cost
of the automotive good under subparagraph (B) shall be
calculated by--
(i) calculating the total cost incurred with
respect to all goods produced by the producer of
the automotive
[[Page 118 STAT. 933]]
good, subtracting any sales promotion, marketing
and after-sales service costs, royalties, shipping
and packing costs, and nonallowable interest costs
that are included in the total cost of all such
goods, and then reasonably allocating the
resulting net cost of those goods to the
automotive good;
(ii) calculating the total cost incurred with
respect to all goods produced by that producer,
reasonably allocating the total cost to the
automotive good, and then subtracting any sales
promotion, marketing and after-sales service
costs, royalties, shipping and packing costs, and
nonallowable interest costs that are included in
the portion of the total cost allocated to the
automotive good; or
(iii) reasonably allocating each cost that
forms part of the total cost incurred with respect
to the automotive good so that the aggregate of
these costs does not include any sales promotion,
marketing and after-sales service costs,
royalties, shipping and packing costs, or
nonallowable interest costs.
(f) Value of Materials.--
(1) In general.--For the purpose of calculating the regional
value-content of a good under subsection (e), and for purposes
of applying the de minimis rules under subsection (c), the value
of a material is--
(A) in the case of a material that is imported by
the producer of the good, the adjusted value of the
material;
(B) in the case of a material acquired in the
territory in which the good is produced, the value,
determined in accordance with Articles 1 through 8,
article 15, and the corresponding interpretive notes of
the Agreement on Implementation of Article VII of the
General Agreement on Tariffs and Trade 1994 referred to
in section 101(d)(8) of the Uruguay Round Agreements
Act, as set forth in regulations promulgated by the
Secretary of the Treasury providing for the application
of such Articles in the absence of an importation; or
(C) in the case of a material that is self-produced,
the sum of--
(i) all expenses incurred in the production of
the material, including general expenses; and
(ii) an amount for profit equivalent to the
profit added in the normal course of trade.
(2) Further adjustments to the value of materials.--
(A) Originating material.--The following expenses,
if not included in the value of an originating material
calculated under paragraph (1), may be added to the
value of the originating material:
(i) The costs of freight, insurance, packing,
and all other costs incurred in transporting the
material within or between the territory of
Australia, the United States, or both, to the
location of the producer.
(ii) Duties, taxes, and customs brokerage fees
on the material paid in the territory of
Australia, the United States, or both, other than
duties or taxes that are waived, refunded,
refundable, or otherwise
[[Page 118 STAT. 934]]
recoverable, including credit against duty or tax
paid or payable.
(iii) The cost of waste and spoilage resulting
from the use of the material in the production of
the good, less the value of renewable scrap or
byproducts.
(B) Nonoriginating material.--The following
expenses, if included in the value of a nonoriginating
material calculated under paragraph (1), may be deducted
from the value of the nonoriginating material:
(i) The costs of freight, insurance, packing,
and all other costs incurred in transporting the
material within or between the territory of
Australia, the United States, or both, to the
location of the producer.
(ii) Duties, taxes, and customs brokerage fees
on the material paid in the territory of
Australia, the United States, or both, other than
duties or taxes that are waived, refunded,
refundable, or otherwise recoverable, including
credit against duty or tax paid or payable.
(iii) The cost of waste and spoilage resulting
from the use of the material in the production of
the good, less the value of renewable scrap or
byproducts.
(iv) The cost of processing incurred in the
territory of Australia, the United States, or
both, in the production of the nonoriginating
material.
(v) The cost of originating materials used in
the production of the nonoriginating material in
the territory of Australia, the United States, or
both.
(g) Accessories, Spare Parts, or Tools.--
(1) In general.--Subject to paragraph (2), accessories,
spare parts, or tools delivered with a good that form part of
the good's standard accessories, spare parts, or tools shall--
(A) be treated as originating goods if the good is
an originating good; and
(B) be disregarded in determining whether all the
nonoriginating materials used in the production of the
good undergo the applicable change in tariff
classification set out in Annex 5-A of the Agreement.
(2) Conditions.--Paragraph (1) shall apply only if--
(A) the accessories, spare parts, or tools are not
invoiced separately from the good;
(B) the quantities and value of the accessories,
spare parts, or tools are customary for the good; and
(C) if the good is subject to a regional value-
content requirement, the value of the accessories, spare
parts, or tools is taken into account as originating or
nonoriginating materials, as the case may be, in
calculating the regional value-content of the good.
(h) Fungible Goods and Materials.--
(1) In general.--
(A) Claim for preferential treatment.--A person
claiming that a fungible good or fungible material is an
originating good may base the claim either on the
physical segregation of the fungible good or fungible
material or by using an inventory management method with
respect to the fungible good or fungible material.
[[Page 118 STAT. 935]]
(B) Inventory management method.--In this
subsection, the term ``inventory management method''
means--
(i) averaging;
(ii) ``last-in, first-out'';
(iii) ``first-in, first-out''; or
(iv) any other method--
(I) recognized in the generally
accepted accounting principles of the
country in which the production is
performed (whether Australia or the
United States); or
(II) otherwise accepted by that
country.
(2) Election of inventory method.--A person selecting an
inventory management method under paragraph (1) for a particular
fungible good or fungible material shall continue to use that
method for that fungible good or fungible material throughout
the fiscal year of that person.
(i) Packaging Materials and Containers for Retail Sale.--Packaging
materials and containers in which a good is packaged for retail sale, if
classified with the good, shall be disregarded in determining whether
all the nonoriginating materials used in the production of the good
undergo the applicable change in tariff classification set out in Annex
4-A or Annex 5-A of the Agreement, and, if the good is subject to a
regional value-content requirement, the value of such packaging
materials and containers shall be taken into account as originating or
nonoriginating materials, as the case may be, in calculating the
regional value-content of the good.
(j) Packing Materials and Containers for Shipment.--Packing
materials and containers for shipment shall be disregarded in
determining whether--
(1) the nonoriginating materials used in the production of a
good undergo the applicable change in tariff classification set
out in Annex 4-A or Annex 5-A of the Agreement; and
(2) the good satisfies a regional value-content requirement.
(k) Indirect Materials.--An indirect material shall be treated as an
originating material without regard to where it is produced, and its
value shall be the cost registered in the accounting records of the
producer of the good.
(l) Third Country Operations.--A good that has undergone production
necessary to qualify as an originating good under subsection (b) shall
not be considered to be an originating good if, subsequent to that
production, the good undergoes further production or any other operation
outside the territory of Australia or the United States, other than
unloading, reloading, or any other operation necessary to preserve the
good in good condition or to transport the good to the territory of
Australia or the United States.
(m) Textile and Apparel Goods Classifiable as Goods Put Up in
Sets.--Notwithstanding the rules set forth in Annex 4-A of the
Agreement, textile or apparel goods classifiable as goods put up in sets
for retail sale as provided for in General Rule of Interpretation 3 of
the HTS shall not be considered to be originating goods unless each of
the goods in the set is an originating good or the total value of the
nonoriginating goods in the set does not exceed 10 percent of the value
of the set determined for purposes of assessing customs duties.
(n) Definitions.--In this section:
[[Page 118 STAT. 936]]
(1) Adjusted value.--The term ``adjusted value'' means the
value determined under Articles 1 through 8, Article 15, and the
corresponding interpretive notes of the Agreement on
Implementation of Article VII of the General Agreement on
Tariffs and Trade 1994 referred to in section 101(d)(8) of the
Uruguay Round Agreements Act, adjusted to exclude any costs,
charges, or expenses incurred for
transportation, insurance, and related services incident to the
international shipment of the good from the country of exportation to
the place of importation.
(2) Class of motor vehicles.--The term ``class of motor
vehicles'' means any one of the following categories of motor
vehicles:
(A) Motor vehicles provided for in subheading
8701.20, 8704.10, 8704.22, 8704.23, 8704.32, or 8704.90,
or heading 8705 or 8706, or motor vehicles for the
transport of 16 or more persons provided for in
subheading 8702.10 or 8702.90.
(B) Motor vehicles provided for in subheading
8701.10 or any of subheadings 8701.30 through 8701.90.
(C) Motor vehicles for the transport of 15 or fewer
persons provided for in subheading 8702.10 or 8702.90,
or motor vehicles provided for in subheading 8704.21 or
8704.31.
(D) Motor vehicles provided for in any of
subheadings 8703.21 through 8703.90.
(3) Fungible good or fungible material.--The term ``fungible
good'' or ``fungible material'' means a good or material, as the
case may be, that is interchangeable with another good or
material for commercial purposes and the properties of which are
essentially identical to such other good or material.
(4) Generally accepted accounting principles.--The term
``generally accepted accounting principles'' means the
recognized consensus or substantial authoritative support in the
territory of Australia or the United States, as the case may be,
with respect to the recording of revenues, expenses, costs,
assets, and liabilities, the disclosure of information, and the
preparation of financial statements. These standards may
encompass broad guidelines of general application as well as
detailed standards, practices, and procedures.
(5) Good wholly obtained or produced entirely in the
territory of Australia, the United States, or both.--The term
``good wholly obtained or produced entirely in the territory of
Australia, the United States, or both'' means--
(A) a mineral good extracted in the territory of
Australia, the United States, or both;
(B) a vegetable good, as such goods are provided for
in the HTS, harvested in the territory of Australia, the
United States, or both;
(C) a live animal born and raised in the territory
of Australia, the United States, or both;
(D) a good obtained from hunting, trapping, fishing,
or aquaculture conducted in the territory of Australia,
the United States, or both;
[[Page 118 STAT. 937]]
(E) a good (fish, shellfish, and other marine life)
taken from the sea by vessels registered or recorded
with Australia or the United States and flying the flag
of that country;
(F) a good produced exclusively from products
referred to in subparagraph (E) on board factory ships
registered or recorded with Australia or the United
States and flying the flag of that country;
(G) a good taken by Australia or the United States
or a person of Australia or the United States from the
seabed or beneath the seabed outside territorial waters,
if Australia or the United States has rights to exploit
such seabed;
(H) a good taken from outer space, if such good is
obtained by Australia or the United States or a person
of Australia or the United States and not processed in
the territory of a country other than Australia or the
United States;
(I) waste and scrap derived from--
(i) production in the territory of Australia,
the United States, or both; or
(ii) used goods collected in the territory of
Australia, the United States, or both, if such
goods are fit only for the recovery of raw
materials;
(J) a recovered good derived in the territory of
Australia or the United States from goods that have
passed their life expectancy, or are no longer usable
due to defects, and utilized in the territory of that
country in the production of remanufactured goods; or
(K) a good produced in the territory of Australia,
the United States, or both, exclusively--
(i) from goods referred to in any of
subparagraphs (A) through (I), or
(ii) from the derivatives of goods referred to
in clause (i),
at any stage of production.
(6) Indirect material.--The term ``indirect material'' means
a good used in the production, testing, or inspection of a good
but not physically incorporated into the good, or a good used in
the maintenance of buildings or the operation of equipment
associated with the production of a good, including--
(A) fuel and energy;
(B) tools, dies, and molds;
(C) spare parts and materials used in the
maintenance of equipment or buildings;
(D) lubricants, greases, compounding materials, and
other materials used in production or used to operate
equipment or buildings;
(E) gloves, glasses, footwear, clothing, safety
equipment, and supplies;
(F) equipment, devices, and supplies used for
testing or inspecting the good;
(G) catalysts and solvents; and
(H) any other goods that are not incorporated into
the good but the use of which in the production of the
[[Page 118 STAT. 938]]
good can reasonably be demonstrated to be a part of that
production.
(7) Material.--The term ``material'' means a good that is
used in the production of another good.
(8) Material that is self-produced.--The term ``material
that is self-produced'' means an originating material that is
produced by a producer of a good and used in the production of
that good.
(9) Model line.--The term ``model line'' means a group of
motor vehicles having the same platform or model name.
(10) Nonallowable interest costs.--The term ``nonallowable
interest costs'' means interest costs incurred by a producer
that exceed 700 basis points above the applicable official
interest rate for comparable maturities of the country (whether
Australia or the United States).
(11) Nonoriginating material.--The term ``nonoriginating
material'' means a material that does not qualify as originating
under this section.
(12) Preferential treatment.--The term ``preferential
treatment'' means the customs duty rate, and the treatment under
article 2.12 of the Agreement, that are applicable to an
originating good pursuant to the Agreement.
(13) Producer.--The term ``producer'' means a person who
engages in the production of a good in the territory of
Australia or the United States.
(14) Production.--The term ``production'' means growing,
raising, mining, harvesting, fishing, trapping, hunting,
manufacturing, processing, assembling, or disassembling a good.
(15) Reasonably allocate.--The term ``reasonably allocate''
means to apportion in a manner that would be appropriate under
generally accepted accounting principles.
(16) Recovered goods.--The term ``recovered goods'' means
materials in the form of individual parts that result from--
(A) the complete disassembly of goods which have
passed their life expectancy, or are no longer usable
due to defects, into individual parts; and
(B) the cleaning, inspecting, or testing, or other
processing that is necessary for improvement to sound
working condition of such individual parts.
(17) Remanufactured good.--The term ``remanufactured good''
means an industrial good that is assembled in the territory of
Australia or the United States, that is classified under chapter
84, 85, or 87 of the HTS or heading 9026, 9031, or 9032, other
than a good classified under heading 8418 or 8516 or any of
headings 8701 through 8706, and that--
(A) is entirely or partially comprised of recovered
goods;
(B) has a similar life expectancy to, and meets the
same performance standards as, a like good that is new;
and
(C) enjoys a factory warranty similar to a like good
that is new.
(18) Total cost.--The term ``total cost'' means all product
costs, period costs, and other costs for a good incurred in the
territory of Australia, the United States, or both.
(19) Used.--The term ``used'' means used or consumed in the
production of goods.
[[Page 118 STAT. 939]]
(o) Presidential Proclamation Authority.--
(1) In general.--The President is authorized to proclaim, as
part of the HTS--
(A) the provisions set out in Annex 4-A and Annex 5-
A of the Agreement; and
(B) any additional subordinate category necessary to
carry out this title consistent with the Agreement.
(2) Modifications.--
(A) In general.--Subject to the consultation and
layover provisions of section 104, the President may
proclaim modifications to the provisions proclaimed
under the authority of paragraph (1)(A), other than
provisions of chapters 50 through 63 of the HTS, as
included in Annex 4-A of the Agreement.
(B) Additional proclamations.--Notwithstanding
subparagraph (A), and subject to the consultation and
layover provisions of section 104, the President may
proclaim--
(i) modifications to the provisions proclaimed
under the authority of paragraph (1)(A) as are
necessary to implement an agreement with Australia
pursuant to article 4.2.5 of the Agreement; and
(ii) before the end of the 1-year period
beginning on the date of the enactment of this
Act, modifications to correct any typographical,
clerical, or other nonsubstantive technical error
regarding the provisions of chapters 50 through 63
of the HTS, as included in Annex 4-A of the
Agreement.
SEC. 204. CUSTOMS USER <<NOTE: 19 USC 3805 note.>> FEES.
Section 13031(b) of the Consolidated Omnibus Budget Reconciliation
Act of 1985 (19 U.S.C. 58c(b)) is amended by adding after paragraph (13)
the following:
``(14) No fee may be charged under subsection (a) (9) or (10) with
respect to goods that qualify as originating goods under section 203 of
the United States-Australia Free Trade Agreement
Implementation Act. Any service for which an exemption from such fee is
provided by reason of this paragraph may not be funded with money
contained in the Customs User Fee Account.''.
SEC. 205. DISCLOSURE OF INCORRECT <<NOTE: 19 USC 3805
note.>> INFORMATION.
Section 592(c) of the Tariff Act of 1930 (19 U.S.C. 1592(c)) is
amended--
(1) by redesignating paragraph (8) as paragraph (9); and
(2) by inserting after paragraph (7) the following new
paragraph:
``(8) Prior disclosure regarding claims under the united
states-australia free trade agreement.--
``(A) <<NOTE: Regulations.>> In general.--An
importer shall not be subject to penalties under
subsection (a) for making an incorrect claim that a good
qualifies as an originating good under section 203 of
the United States-Australia Free Trade Agreement
Implementation Act if the importer, in accordance with
regulations issued by the Secretary of the Treasury,
voluntarily and promptly makes a corrected declaration
and pays any duties owing.
``(B) Time periods for making corrections.--In the
regulations referred to in subparagraph (A), the
Secretary
[[Page 118 STAT. 940]]
of the Treasury is authorized to prescribe time periods
for making a corrected declaration and paying duties
owing under subparagraph (A), if such periods are not
shorter than 1 year following the date on which the
importer makes the incorrect claim.''.
SEC. 206. <<NOTE: 19 USC 3805 note.>> ENFORCEMENT RELATING TO TRADE IN
TEXTILE AND APPAREL GOODS.
(a) Action During Verification.--
(1) In general.--If the Secretary of the Treasury requests
the Government of Australia to conduct a verification pursuant
to article 4.3 of the Agreement for purposes of making a
determination under paragraph (2), the President may direct the
Secretary to take appropriate action described in subsection (b)
while the verification is being conducted.
(2) Determination.--A determination under this paragraph is a
determination--
(A) that an exporter or producer in Australia is
complying with applicable customs laws, regulations,
procedures, requirements, or practices affecting trade
in textile or apparel goods; or
(B) that a claim that a textile or apparel good
exported or produced by such exporter or producer--
(i) qualifies as an originating good under
section 203 of this Act; or
(ii) is a good of Australia,
is accurate.
(b) Appropriate Action Described.--Appropriate action under
subsection (a)(1) includes--
(1) suspension of liquidation of the entry of any textile or
apparel good exported or produced by the person that is the
subject of a verification under subsection (a)(1) regarding
compliance described in subsection (a)(2)(A), in a case in which
the request for verification was based on a reasonable suspicion
of unlawful activity related to such goods; and
(2) suspension of liquidation of the entry of a textile or
apparel good for which a claim has been made that is the subject
of a verification under subsection (a)(1) regarding a claim
described in subsection (a)(2)(B).
(c) Action When Information is Insufficient.--If the Secretary of
the Treasury determines that the information obtained within 12 months
after making a request for a verification under subsection (a)(1) is
insufficient to make a determination under subsection (a)(2), the
President may direct the Secretary to take appropriate action described
in subsection (d) until such time as the Secretary receives information
sufficient to make a determination under subsection (a)(2) or until such
earlier date as the President may direct.
(d) Appropriate Action Described.--Appropriate action referred to in
subsection (c) includes--
(1) publication of the name and address of the person that
is the subject of the verification;
(2) denial of preferential tariff treatment under the
Agreement to--
(A) any textile or apparel good exported or produced
by the person that is the subject of a verification
under
[[Page 118 STAT. 941]]
subsection (a)(1) regarding compliance described in
subsection (a)(2)(A); or
(B) a textile or apparel good for which a claim has
been made that is the subject of a verification under
subsection (a)(1) regarding a claim described in
subsection (a)(2)(B); and
(3) denial of entry into the United States of--
(A) any textile or apparel good exported or produced
by the person that is the subject of a verification
under subsection (a)(1) regarding compliance described
in subsection (a)(2)(A); or
(B) a textile or apparel good for which a claim has
been made that is the subject of a verification under
subsection (a)(1) regarding a claim described in
subsection (a)(2)(B).
SEC. 207. <<NOTE: 19 USC 3805 note.>> REGULATIONS.
The Secretary of the Treasury shall prescribe such regulations as
may be necessary to carry out--
(1) subsections (a) through (n) of section 203 and section
204;
(2) amendments to existing law made by the sections referred
to in paragraph (1); and
(3) proclamations issued under section 203(o).
TITLE III--RELIEF FROM IMPORTS
SEC. 301. <<NOTE: 19 USC 3805 note.>> DEFINITIONS.
As used in this title:
(1) Australian article.--The term ``Australian article''
means an article that qualifies as an originating good under
section 203(b) of this Act.
(2) Australian textile or apparel article.--The term
``Australian textile or apparel article'' means an article--
(A) that is listed in the Annex to the Agreement on
Textiles and Clothing referred to in section 101(d)(4)
of the Uruguay Round Agreements Act (19 U.S.C.
3511(d)(4)); and
(B) that is an Australian article.
(3) Commission.--The term ``Commission'' means the United
States International Trade Commission.
Subtitle A--Relief From Imports Benefiting From the Agreement
SEC. 311. COMMENCING OF ACTION FOR <<NOTE: 19 USC 3805 note.>> RELIEF.
(a) Filing of Petition.--
(1) In general.--A petition requesting action under this
subtitle for the purpose of adjusting to the obligations of the
United States under the Agreement may be filed with the
Commission by an entity, including a trade association, firm,
certified or recognized union, or group of workers, that is
representative of an industry. <<NOTE: Records.>> The Commission
shall
transmit a copy of any petition filed under this subsection to the
United States Trade Representative.
[[Page 118 STAT. 942]]
(2) Provisional relief.--An entity filing a petition under
this subsection may request that provisional relief be provided
as if the petition had been filed under section 202(a) of the
Trade Act of 1974 (19 U.S.C. 2252(a)).
(3) Critical circumstances.--Any allegation that critical
circumstances exist shall be included in the petition.
(b) Investigation and Determination.--Upon the filing of a petition
under subsection (a), the Commission, unless subsection (d) applies,
shall promptly initiate an investigation to determine whether, as a
result of the reduction or elimination of a duty provided for under the
Agreement, an Australian article is being imported into the United
States in such increased quantities, in absolute terms or relative to
domestic production, and under such conditions that imports of the
Australian article constitute a substantial cause of serious injury or
threat thereof to the domestic industry producing an article that is
like, or directly competitive with, the imported article.
(c) Applicable Provisions.--The following provisions of section 202
of the Trade Act of 1974 (19 U.S.C. 2252) apply with respect to any
investigation initiated under subsection (b):
(1) Paragraphs (1)(B) and (3) of subsection (b).
(2) Subsection (c).
(3) Subsection (d).
(4) Subsection (i).
(d) Articles Exempt From Investigation.--No investigation may be
initiated under this section with respect to any Australian article if,
after the date on which the Agreement enters into force, import relief
has been provided with respect to that Australian article under this
subtitle.
SEC. 312. COMMISSION ACTION ON <<NOTE: 19 USC 3805 note.>> PETITION.
(a) <<NOTE: Deadline.>> Determination.--Not later than 120 days (180
days if critical circumstances have been alleged) after the date on
which an investigation is initiated under section 311(b) with respect to
a petition, the Commission shall make the determination required under
that section.
(b) Applicable Provisions.--For purposes of this subtitle, the
provisions of paragraphs (1), (2), and (3) of section 330(d) of the
Tariff Act of 1930 (19 U.S.C. 1330(d) (1), (2), and (3)) shall be
applied with respect to determinations and findings made under this
section as if such determinations and findings were made under section
202 of the Trade Act of 1974 (19 U.S.C. 2252).
(c) Additional Finding and Recommendation if Determination
Affirmative.--If the determination made by the Commission under
subsection (a) with respect to imports of an article is affirmative, or
if the President may consider a determination of the Commission to be an
affirmative determination as provided for under paragraph (1) of section
330(d) of the Tariff Act of 1930) (19 U.S.C. 1330(d)), the Commission
shall find, and recommend to the President in the report required under
subsection (d), the amount of import relief that is necessary to remedy
or prevent the injury found by the Commission in the determination and
to facilitate the efforts of the domestic industry to make a positive
adjustment to import competition. The import relief recommended by the
Commission under this subsection shall be limited to that described in
section 313(c). Only those members of the Commission who voted in the
affirmative under subsection (a) are eligible to
[[Page 118 STAT. 943]]
vote on the proposed action to remedy or prevent the injury found by the
Commission. Members of the Commission who did not vote in the
affirmative may submit, in the report required under subsection (d),
separate views regarding what action, if any, should be taken to remedy
or prevent the injury.
(d) Report to President.--Not later than the date that is 30 days
after the date on which a determination is made under subsection (a)
with respect to an investigation, the Commission shall submit to the
President a report that includes--
(1) the determination made under subsection (a) and an
explanation of the basis for the determination;
(2) if the determination under subsection (a) is
affirmative, any findings and recommendations for import relief
made under subsection (c) and an explanation of the basis for
each recommendation; and
(3) any dissenting or separate views by members of the
Commission regarding the determination and recommendation
referred to in paragraphs (1) and (2).
(e) <<NOTE: Federal Register, publication.>> Public Notice.--Upon
submitting a report to the President under subsection (d), the
Commission shall promptly make public such report (with the exception of
information which the Commission determines to be confidential) and
shall cause a summary thereof to be published in the Federal Register.
SEC. 313. PROVISION OF <<NOTE: 19 USC 3805
note. Deadline. President.>> RELIEF.
(a) In General.--Not later than the date that is 30 days after the
date on which the President receives the report of the Commission in
which the Commission's determination under section 312(a) is
affirmative, or which contains a determination under section 312(a) that
the President considers to be affirmative under paragraph (1) of section
330(d) of the Tariff Act of 1930 (19 U.S.C. 1330(d)(1)), the President,
subject to subsection (b), shall provide relief from imports of the
article that is the subject of such determination to the extent that the
President determines necessary to remedy or prevent the injury found by
the Commission and to facilitate the efforts of the domestic industry to
make a positive adjustment to import competition.
(b) Exception.--The President is not required to provide import
relief under this section if the President determines that the provision
of the import relief will not provide greater economic and social
benefits than costs.
(c) Nature of Relief.--
(1) In general.--The import relief (including provisional
relief) that the President is authorized to provide under this
section with respect to imports of an article is as follows:
(A) The suspension of any further reduction provided
for under Annex 2-B of the Agreement in the duty imposed
on such article.
(B) An increase in the rate of duty imposed on such
article to a level that does not exceed the lesser of--
(i) the column 1 general rate of duty imposed
under the HTS on like articles at the time the
import relief is provided; or
(ii) the column 1 general rate of duty imposed
under the HTS on like articles on the day before
the date on which the Agreement enters into force.
[[Page 118 STAT. 944]]
(C) In the case of a duty applied on a seasonal
basis to such article, an increase in the rate of duty
imposed on the article to a level that does not exceed
the lesser of--
(i) the column 1 general rate of duty imposed
under the HTS on like articles for the immediately
preceding corresponding season; or
(ii) the column 1 general rate of duty imposed
under the HTS on like articles on the day before
the date on which the Agreement enters into force.
(2) <<NOTE: President.>> Progressive liberalization.--If the
period for which import relief is provided under this section is
greater than 1 year, the President shall provide for the
progressive liberalization (described in article 9.2.7 of the
Agreement) of such relief at regular intervals during the period
in which the relief is in effect.
(d) Period of Relief.--
(1) In general.--Subject to paragraph (2), any import relief
that the President provides under this section may not be in
effect for more than 2 years.
(2) Extension.--
(A) In general.--Subject to subparagraph (C), the
President, after receiving an affirmative determination
from the Commission under subparagraph (B), may extend
the effective period of any import relief provided under
this section if the President determines that--
(i) the import relief continues to be
necessary to remedy or prevent serious injury and
to facilitate adjustment by the domestic industry
to import competition; and
(ii) there is evidence that the industry is
making a positive adjustment to import
competition.
(B) <<NOTE: Deadline.>> Action by commission.--(i)
Upon a petition on behalf of the industry concerned that
is filed with the Commission not earlier than the date
which is 9 months, and not later than the date which is
6 months, before the date any action taken under
subsection (a) is to terminate, the Commission shall
conduct an investigation to determine whether action
under this section continues to be necessary to remedy
or prevent serious injury and whether there is evidence
that the industry is making a positive adjustment to
import competition.
(ii) <<NOTE: Federal Register, publication.>> The
Commission shall publish notice of the commencement of
any proceeding under this subparagraph in the Federal
Register and shall, within a reasonable time thereafter,
hold a public hearing at which the Commission shall
afford interested parties and consumers an opportunity
to be present, to present evidence, and to respond to
the presentations of other parties and consumers, and
otherwise to be heard.
(iii) <<NOTE: Reports. Deadline.>> The Commission
shall transmit to the President a report on its
investigation and determination under this subparagraph
not later than 60 days before the action under
subsection (a) is to terminate, unless the President
specifies a different date.
(C) Period of import relief.--Any import relief
provided under this section, including any extensions
thereof,
[[Page 118 STAT. 945]]
may not, in the aggregate, be in effect for more than 4
years.
(e) Rate After Termination of Import Relief.--When import relief
under this section is terminated with respect to an article--
(1) the rate of duty on that article after such termination
and on or before December 31 of the year in which such
termination occurs shall be the rate that, according to the
Schedule of the United States to Annex 2-B of the Agreement for
the staged elimination of the tariff, would have been in effect
1 year after the provision of relief under subsection (a); and
(2) the rate of duty for that article after December 31 of
the year in which termination occurs shall be, at the discretion
of the President, either--
(A) the applicable NTR (MFN) rate of duty for that
article set out in the Schedule of the United States to
Annex 2-B of the Agreement; or
(B) the rate of duty resulting from the elimination
of the tariff in equal annual stages ending on the date
set out in the Schedule of the United States to Annex 2-
B of the Agreement for the elimination of the tariff.
(f) Articles Exempt From Relief.--No import relief may be provided
under this section on any article that--
(1) is subject to--
(A) import relief under subtitle B; or
(B) an assessment of additional duty under
subsection (b), (c), or (d) of section 202; or
(2) has been subject to import relief under this subtitle
after the date on which the Agreement enters into force.
SEC. 314. TERMINATION OF RELIEF <<NOTE: 19 USC 3805 note.>> AUTHORITY.
(a) General Rule.--Subject to subsection (b), no import relief may
be provided under this subtitle after the date that is 10 years after
the date on which the Agreement enters into force.
(b) Exception.--If an article for which relief is provided under
this subtitle is an article for which the period for tariff elimination,
set out in the Schedule of the United States to Annex 2-B of the
Agreement, is greater than
10 years, no relief under this subtitle may be provided for that article
after the date on which such period ends.
(c) Presidential Determination.--Import relief may be provided under
this subtitle in the case of an Australian article after the date on
which such relief would, but for this subsection, terminate under
subsection (a) or (b), if the President determines that Australia has
consented to such relief.
SEC. 315. COMPENSATION <<NOTE: 19 USC 3805 note.>> AUTHORITY.
For purposes of section 123 of the Trade Act of 1974 (19 U.S.C.
2133), any import relief provided by the President under section 313
shall be treated as action taken under chapter 1 of title II of such
Act.
SEC. 316. CONFIDENTIAL BUSINESS <<NOTE: 19 USC 3805 note.>> INFORMATION.
Section 202(a)(8) of the Trade Act of 1974 (19 U.S.C. 2252(a)(8)) is
amended in the first sentence--
(1) by striking ``and''; and
(2) by inserting before the period at the end ``, and title
III of the United States-Australia Free Trade Agreement
Implementation Act''.
[[Page 118 STAT. 946]]
Subtitle B--Textile and Apparel Safeguard Measures
SEC. 321. COMMENCEMENT OF ACTION FOR <<NOTE: President. 19 USC 3805
note.>> RELIEF.
(a) In General.--A request under this subtitle for the purpose of
adjusting to the obligations of the United States under the Agreement
may be filed with the President by an interested party. Upon the filing
of a request, the President shall review the request to determine, from
information presented in the request, whether to commence consideration
of the request.
(b) Allegation of Critical Circumstances.--An interested party
filing a request under this section may--
(1) allege that critical circumstances exist such that delay
in the provision of relief would cause damage that would be
difficult to repair; and
(2) based on such allegation, request that relief be
provided on a provisional basis.
(c) <<NOTE: Federal Register, publication.>> Publication of
Request.--If the President determines that the request under subsection
(a) provides the information necessary for the request to be considered,
the President shall cause to be published in the Federal Register a
notice of commencement of consideration of the request, and notice
seeking public comments regarding the request. The notice shall include
a summary of the request and the dates by which comments and rebuttals
must be received.
SEC. 322. DETERMINATION AND PROVISION OF <<NOTE: President. 19 USC 3805
note.>> RELIEF.
(a) Determination.--
(1) In general.--If a positive determination is made under
section 321(c), the President shall determine whether, as a
result of the reduction or elimination of a duty under the
Agreement, an Australian textile or apparel article is being
imported into the United States in such increased quantities, in
absolute terms or relative to the domestic market for that
article, and under such conditions as to cause serious damage,
or actual threat thereof, to a domestic industry producing an
article that is like, or directly competitive with, the imported
article.
(2) Serious damage.--In making a determination under
paragraph (1), the President--
(A) shall examine the effect of increased imports on
the domestic industry, as reflected in changes in such
relevant economic factors as output, productivity,
utilization of capacity, inventories, market share,
exports, wages, employment, domestic prices, profits,
and investment, none of which is necessarily decisive;
and
(B) shall not consider changes in technology or
consumer preference as factors supporting a
determination of serious damage or actual threat
thereof.
(b) Provision of Relief.--
(1) In general.--If a determination under subsection (a) is
affirmative, the President may provide relief from imports of
the article that is the subject of such determination, as
described in paragraph (2), to the extent that the President
determines necessary to remedy or prevent the serious damage
[[Page 118 STAT. 947]]
and to facilitate adjustment by the domestic industry to import
competition.
(2) Nature of relief.--The relief that the President is
authorized to provide under this subsection with respect to
imports of an article is an increase in the rate of duty imposed
on the article to a level that does not exceed the lesser of--
(A) the column 1 general rate of duty imposed under
the HTS on like articles at the time the import relief
is provided; or
(B) the column 1 general rate of duty imposed under
the HTS on like articles on the day before the date on
which the Agreement enters into force.
(c) Critical Circumstances.--
(1) <<NOTE: Deadline.>> Presidential determination.--When a
request filed under section 321(a) contains an allegation of
critical circumstances and a request for provisional relief
under section 321(b), the President shall, not later than 60
days after the request is filed, determine, on the basis of
available information, whether--
(A) there is clear evidence that--
(i) imports from Australia have increased as
the result of the reduction or elimination of a
customs duty under the Agreement; and
(ii) such imports are causing serious damage,
or actual threat thereof, to the domestic industry
producing an article like or directly competitive
with the imported article; and
(B) delay in taking action under this subtitle would
cause damage to that industry that would be difficult to
repair.
(2) Extent of provisional relief.--If the determinations
under subparagraphs (A) and (B) of paragraph (1) are
affirmative, the President shall determine the extent of
provisional relief that is necessary to remedy or prevent the
serious damage. The nature of the provisional relief available
shall be the relief described in subsection
(b)(2). <<NOTE: Deadline.>> Within 30 days after making
affirmative determinations under subparagraphs (A) and (B) of
paragraph (1), the President, if the President considers
provisional relief to
be warranted, shall provide, for a period not to exceed 200 days, such
provisional relief that the President considers necessary to remedy or
prevent the serious damage.
(3) Suspension of liquidation.--If provisional relief is
provided under paragraph (2), the President shall order the
suspension of liquidation of all imported articles subject to
the affirmative determinations under subparagraphs (A) and (B)
of paragraph (1) that are entered, or withdrawn from warehouse
for consumption, on or after the date of the determinations.
(4) Termination of provisional relief.--
(A) In general.--Any provisional relief implemented
under this subsection with respect to an imported
article shall terminate on the day on which--
(i) the President makes a negative
determination under subsection (a) regarding
serious damage or actual threat thereof by imports
of such article;
[[Page 118 STAT. 948]]
(ii) action described in subsection (b) takes
effect with respect to such article;
(iii) a decision by the President not to take
any action under subsection (b) with respect to
such article becomes final; or
(iv) the President determines that, because of
changed circumstances, such relief is no longer
warranted.
(B) Suspension of liquidation.--Any suspension of
liquidation ordered under paragraph (3) with respect to
an imported article shall terminate on the day on which
provisional relief is terminated under subparagraph (A)
with respect to the article.
(C) Rates of duty.--If an increase in, or the
imposition of, a duty that is provided under subsection
(b) on an imported article is different from a duty
increase or imposition that was provided for such an
article under this subsection, then the entry of any
such article for which liquidation was suspended under
paragraph (3) shall be liquidated at whichever of such
rates of duty is lower.
(D) Rate of duty if provisional relief.--If
provisional relief is provided under this subsection
with respect to an imported article and neither a duty
increase nor a duty imposition is provided under
subsection (b) for such article, the entry of any such
article for which liquidation was suspended under
paragraph (3) shall be liquidated at the rate of duty
that applied before the provisional relief was provided.
SEC. 323. PERIOD OF <<NOTE: 19 USC 3805 note.>> RELIEF.
(a) In General.--Subject to subsection (b), the import relief that
the President provides under subsections (b) and (c) of section 322 may
not, in the aggregate, be in effect for more than 2 years.
(b) Extension.--
(1) In general.--Subject to paragraph (2), the President may
extend the effective period of any import relief provided under
this subtitle for a period of not more than 2 years, if the
President determines that--
(A) the import relief continues to be necessary to
remedy or prevent serious damage and to facilitate
adjustment by the domestic industry to import
competition; and
(B) there is evidence that the industry is making a
positive adjustment to import competition.
(2) Limitation.--Any relief provided under this subtitle,
including any extensions thereof, may not, in the aggregate, be
in effect for more than 4 years.
SEC. 324. ARTICLES EXEMPT FROM <<NOTE: 19 USC 3805 note.>> RELIEF.
The President may not provide import relief under this subtitle
with respect to any article if--
(1) import relief previously has been provided under this
subtitle with respect to that article; or
(2) the article is subject to import relief under--
(A) subtitle A; or
(B) chapter 1 of title II of the Trade Act of 1974
(19 U.S.C. 2251 et seq.).
[[Page 118 STAT. 949]]
SEC. 325. RATE AFTER TERMINATION OF IMPORT <<NOTE: 19 USC 3805
note.>> RELIEF.
When import relief under this subtitle is terminated with respect
to an article, the rate of duty on that article shall be the rate that
would have been in effect, but for the provision of such relief, on the
date the relief terminates.
SEC. 326. TERMINATION OF RELIEF <<NOTE: 19 USC 3805 note.>> AUTHORITY.
No import relief may be provided under this subtitle with respect
to any article after the date that is 10 years after the date on which
duties on the article are eliminated pursuant to the Agreement.
SEC. 327. COMPENSATION <<NOTE: 19 USC 3805 note.>> AUTHORITY.
For purposes of section 123 of the Trade Act of 1974 (19 U.S.C.
2133), any import relief provided by the President under this subtitle
shall be treated as action taken under chapter 1 of title II of such
Act.
SEC. 328. BUSINESS CONFIDENTIAL <<NOTE: 19 USC 3805 note.>> INFORMATION.
The President may not release information which is submitted in a
proceeding under this subtitle and which the President considers to be
confidential business information unless the party submitting the
confidential business information had notice, at the time of submission,
that such information would be released, or such party subsequently
consents to the release of the information. To the extent a party
submits confidential business information to the President in a
proceeding under this subtitle, the party also shall submit a
nonconfidential version of the information, in which the confidential
business information is summarized or, if necessary, deleted.
Subtitle C--Cases Under Title II of the Trade Act of 1974
SEC. 331. FINDINGS AND ACTION ON GOODS FROM <<NOTE: 19 USC 3805
note.>> AUSTRALIA.
(a) Effect of Imports.--If, in any investigation initiated under
chapter 1 of title II of the Trade Act of 1974 (19 U.S.C. 2251 et seq.),
the Commission makes an affirmative determination (or a determination
which the President may treat as an affirmative determination under such
chapter by reason of section 330(d) of the Tariff Act of 1930), the
Commission shall also find (and report to the President at the time such
injury determination is submitted to the President) whether imports of
the article from Australia are a substantial cause of serious injury or
threat thereof.
(b) Presidential Determination Regarding Australian Imports.--In
determining the nature and extent of action to be taken under chapter 1
of title II of the Trade Act of 1974, the President shall determine
whether imports from Australia are a substantial cause of the serious
injury or threat thereof found by the Commission and, if such
determination is in the negative, may exclude from such action imports
from Australia.
[[Page 118 STAT. 950]]
TITLE IV--PROCUREMENT
SEC. 401. ELIGIBLE <<NOTE: 19 USC 3805 note.>> PRODUCTS.
Section 308(4)(A) of the Trade Agreements Act of 1979 (19 U.S.C.
2518(4)(A)) is amended--
(1) by striking ``or'' at the end of clause (i);
(2) by striking the period at the end of clause (ii) and
inserting ``; or''; and
(3) by adding at the end the following new clause:
``(iii) a party to a free trade agreement that
entered into force with respect to the United
States after December 31, 2003, and before January
2, 2005, a product or service of that country or
instrumentality which is covered under the free
trade agreement for procurement by the United
States.''.
Approved August 3, 2004.
LEGISLATIVE HISTORY--H.R. 4759 (S. 2610):
---------------------------------------------------------------------------
HOUSE REPORTS: No. 108-597 (Comm. on Ways and Means).
CONGRESSIONAL RECORD, Vol. 150 (2004):
July 14, considered and passed House.
July 15, considered and passed Senate.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 40 (2004):
Aug. 3, Presidential remarks.
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