[Congressional Record Volume 149, Number 45 (Thursday, March 20, 2003)]
[Senate]
[Pages S4173-S4174]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BAUCUS (for himself, Mr. Craig, Mr. Bayh, and Mr. 
        Rockefeller):
  S. 676. A bill to establish a WTO Dispute Settlement Review 
Commission, and for other purposes; to the Committee on Finance.
  Mr. BAUCUS. Mr. President, I rise today to offer, along with Senator 
Craig, much needed trade legislation. I also want to thank Senators 
Bayh and Rockefeller for their support for this legislation.
  The bill that we are introducing would create a Commission to review 
decisions of the World Trade Organization.
  Why is this legislation necessary? Simply put--we must ensure that 
the United States is getting the benefit of the agreements we 
negotiated.
  WTO panels have handed down several decisions recently that go well 
beyond the scope of their authority. These decisions have had a wide-
ranging impact, undermining our ability to use antidumping and 
safeguard laws and calling major portions of the U.S. tax code into 
question.
  Most recently, the WTO ruled that the so-called ``Byrd Amendment'' 
violates WTO rules. In fact, the Byrd Amendment simply takes duties 
collected on unfairly traded products out of the U.S. Treasury and 
redistributes them to companies and workers hurt by that unfair trade.
  The Byrd Amendment adds no burden whatsoever on imports. But despite 
this, a WTO panel has inexplicably ruled that this law imposes an 
impermissible penalty for dumping.
  I would note here that the Administration has proposed repealing the 
Byrd Amendment. I strongly oppose that. And so does an overwhelming 
majority of the Senate.
  In fact, last month 70 Senators sent a letter to the President in 
support of this important law.
  Another area that I have great concerns about involves the softwood 
lumber dispute. The WTO currently found that Canada subsidizes its 
lumber industry, and I applaud that decision.
  But then the WTO undercut the benefits of that decision. They ruled 
that when determining a market price, Commerce must use the subsidy-
distorted Canadian timber prices rather than the market-based U.S. 
prices. This practice is wholly inconsistent with previous WTO 
practice.
  We need to start seriously examining why it is that we are losing 
these and other cases.
  In my view, it is because WTO panels have ceased intepreting our 
trade agreements and have begun legislating. Instead of following the 
rules, they are flouting the rules. And they are substituting their own 
judgment in place of carefully negotiated principles.
  In the process, they are eroding U.S. trade laws, taking away rights 
the U.S. bargained for, and imposing new obligations we never agreed to 
accept.
  Just as troubling, they are doing so mostly under the radar of 
Congress and the American public.
  The purpose of the legislation Senator Craig and I are proposing is 
to open the performance of WTO panels to public debate.
  Under the legislation, the President, in consultation with Congress, 
would create a Commission by appointing 5 retired federal appellate 
judges to serve 5-year terms.
  The Commission would review WTO decisions adverse to the United 
States to examine whether the panelists have exceeded their authority. 
The Commissioners would then report their findings to Congress.
  Increasing the transparency of the WTO in this manner is entirely 
consistent with the Administration's stated objectives. It would also 
allow us to discuss openly and fairly whether the WTO is working as it 
should.
  The legislation offers something for everyone. If the Commission 
finds that the WTO is applying the rules properly it will silence 
critics--and perhaps earn converts.
  But if the WTO is in fact straying beyond the carefully negotiated 
boundaries of our trade agreements, Congress needs to have the 
oversight in place so that we can remedy the situation.
  I understand and support the need for a global trading system. But we 
need to ensure that the WTO is respecting the limits of its authority 
and honestly applying the rules under which it operates.
  I hope that my colleagues will join me in helping to pass this 
important legislation.
  I ask unanimous consent that the text bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 676

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

     SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

       (a) Short Title.--This Act may be cited as the ``World 
     Trade Organization Dispute Settlement Review Commission 
     Act''.
       (b) Findings.--Congress finds the following:
       (1) The United States joined the World Trade Organization 
     (in this Act referred to as the ``WTO'') as an original 
     member with the goal of creating an improved global trading 
     system and providing expanded economic opportunities for 
     United States firms and workers, while preserving United 
     States sovereignty.
       (2) The American people must receive assurances that United 
     States sovereignty will be protected, and United States 
     interests will be advanced, within the global trading system 
     which the WTO will oversee.
       (3) The WTO's dispute settlement rules are meant to enhance 
     the likelihood that governments will observe their WTO 
     obligations. These dispute settlement rules will help ensure 
     that the United States will reap the full benefits of its 
     participation in the WTO.
       (4) United States support for the WTO depends on obtaining 
     mutual trade benefits through the openness of foreign markets 
     and the maintenance of effective United States and WTO 
     remedies against unfair and otherwise harmful trade 
     practices.
       (5) Congress passed the Uruguay Round Agreements Act based 
     on its understanding that effective trade remedies would not 
     be eroded. These remedies are essential to continue the 
     process of opening foreign markets to imports of goods and 
     services and to prevent harm to American industry and 
     agriculture.
       (6) In particular, WTO dispute panels and the Appellate 
     Body should--
       (A) operate with fairness and in an impartial manner;
       (B) not add to the obligations, or diminish the rights, of 
     WTO members under the Uruguay Round Agreements; and
       (C) observe the terms of reference and any applicable WTO 
     standard of review.
       (c) Purpose.--It is the purpose of this Act to provide for 
     the establishment of the WTO Dispute Settlement Review 
     Commission to achieve the objectives described in subsection 
     (b)(6).

      SEC. 2. DEFINITIONS.

       In this Act:
       (1) Adverse finding.--The term ``adverse finding'' means--
       (A) in a panel or Appellate Body proceeding initiated 
     against the United States, a finding by the panel or the 
     Appellate Body that, any law or regulation of, or application 
     thereof by, the United States, or any State, is inconsistent 
     with the obligations of the United States under a Uruguay 
     Round Agreement (or nullifies or impairs benefits accruing to 
     a WTO member under such an Agreement); or
       (B) in a panel or Appellate Body proceeding in which the 
     United States is a complaining party, any finding by the 
     panel or the Appellate Body that a measure of the party 
     complained against is not inconsistent with that

[[Page S4174]]

     party's obligations under a Uruguay Round Agreement (or does 
     not nullify or impair benefits accruing to the United States 
     under such an Agreement).
       (2) Affirmative report.--The term ``affirmative report'' 
     means a report described in section 234(b)(2) which contains 
     affirmative determinations made by the Commission under 
     paragraph (3) of section 4(a).
       (3) Appellate body.--The term ``Appellate Body'' means the 
     Appellate Body established by the Dispute Settlement Body 
     pursuant to Article 17.1 of the Dispute Settlement 
     Understanding.
       (4) Dispute settlement body.--The term ``Dispute Settlement 
     Body'' means the Dispute Settlement Body established pursuant 
     to the Dispute Settlement Understanding.
       (5) Dispute settlement panel; panel.--The terms ``dispute 
     settlement panel'' and ``panel'' mean a panel established 
     pursuant to Article 6 of the Dispute Settlement 
     Understanding.
       (6) Dispute settlement understanding.--The term ``Dispute 
     Settlement Understanding'' means the Understanding on Rules 
     and Procedures governing the Settlement of Disputes referred 
     to in section 101(d)(16) of the Uruguay Round Agreements Act.
       (7) Terms of reference.--The term ``terms of reference'' 
     has the meaning given such term in the Dispute Settlement 
     Understanding.
       (8) Trade representative.--The term ``Trade 
     Representative'' means the United States Trade 
     Representative.
       (9) Uruguay round agreement.--The term ``Uruguay Round 
     Agreement'' means any of the Agreements described in section 
     101(d) of the Uruguay Round Agreements Act.
       (10) World trade organization; wto.--The terms ``World 
     Trade Organization'' and ``WTO'' mean the organization 
     established pursuant to the WTO Agreement.
       (11) WTO agreement.--The term ``WTO Agreement'' means the 
     Agreement Establishing the World Trade Organization entered 
     into on April 15, 1994.

      SEC. 3. ESTABLISHMENT OF COMMISSION.

       (a) Establishment.--There is established a commission to be 
     known as the World Trade Organization Dispute Settlement 
     Review Commission (in this Act referred to as the 
     ``Commission'').
       (b) Membership.--
       (1) Composition.--The Commission shall be composed of 5 
     members, all of whom shall be retired judges of the Federal 
     judicial circuits, and who shall be appointed by the 
     President, after consultation with the Majority Leader and 
     Minority Leader of the House of Representatives, the Majority 
     Leader and Minority Leader of the Senate, the chairman and 
     ranking member of the Committee on Ways and Means of the 
     House of Representatives, and the chairman and ranking member 
     of the Committee on Finance of the Senate.
       (2) Date of appointment.--The appointments of the members 
     of the Commission shall be made not later than 90 days after 
     the date of enactment of this Act.
       (c) Period of Appointment; Vacancies.--
       (1) In general.--Members of the Commission first appointed 
     shall each be appointed for a term of 5 years.
       (2) Subsequent terms.--After the initial 5-year term, 3 
     members of the Commission shall be appointed for terms of 3 
     years and the remaining 2 members shall be appointed for 
     terms of 2 years.
       (3) Vacancies.--
       (A) In general.--Any vacancy on the Commission shall not 
     affect its powers, but shall be filled in the same manner as 
     the original appointment and shall be subject to the same 
     conditions as the original appointment.
       (B) Unexpired term.--An individual chosen to fill a vacancy 
     shall be appointed for the unexpired term of the member 
     replaced.
       (d) Meetings.--
       (1) Initial meeting.--Not later than 30 days after the date 
     on which all members of the Commission have been appointed, 
     the Commission shall hold its first meeting.
       (2) Subsequent meetings.--The Commission shall meet 
     subsequently at the call of the chairperson.
       (e) Quorum.--A majority of the members of the Commission 
     shall constitute a quorum, but a lesser number of members may 
     hold hearings.
       (f) Chairperson and Vice Chairperson.--The Commission shall 
     select a chairperson and vice chairperson from among its 
     members.
       (g) Affirmative Determinations.--An affirmative vote by a 
     majority of the members of the Commission shall be required 
     for any affirmative determination by the Commission under 
     section 4.

      SEC. 4. DUTIES OF THE COMMISSION.

       (a) Review of World Trade Organization Dispute Settlement 
     Reports.--
       (1) In general.--The Commission shall review--
       (A) all reports of dispute settlement panels or the 
     Apellate Body of the WTO in proceedings initiated by other 
     parties to the WTO that are adverse to the United States and 
     that are adopted by the Dispute Settlement Body; and
       (B) upon request of the Trade Representative, the chairman 
     or ranking member of the Committee on Ways and Means of the 
     House of Representatives, or the chairman or ranking member 
     of the Committee on Finance of the Senate, any other report 
     of a dispute settlement panel, or the Appellate Body that is 
     adopted by the Dispute Settlement Body.
       (2) Scope of review.--In the case of a report described in 
     paragraph (1), the Commission shall conduct a complete review 
     and determine whether the panel or Appellate Body, as the 
     case may be--
       (A) exceeded its authority or its terms of reference;
       (B) added to the obligations, or diminished the rights of 
     the United States under the Uruguay Round Agreement that is 
     the subject of the report;
       (C) acted arbitrarily or capriciously, engaged in 
     misconduct, or demonstrably departed from the procedures 
     specified for panels and Appellate Bodies in the applicable 
     Uruguay Round Agreement; and
       (D) deviated from the applicable standard of review, 
     including in antidumping, countervailing duty, and other 
     unfair trade remedy cases, the standard of review set forth 
     in Article 17.6 of the Agreement on Implementation of Article 
     VI of the General Agreement on Tariffs and Trade, 1994.
       (3) Affirmative determination.--If the Commission makes an 
     affirmative determination with respect to the action of a 
     panel or an Appellate Body under subparagraph (A), (B), (C), 
     or (D) of paragraph (2), the Commission shall determine 
     whether the action of the panel or Appellate Body materially 
     affected the outcome of the report of the panel or Appellate 
     Body.
       (b) Determination; Report.--
       (1) Determination.--Not later than 120 days after the date 
     that a report of a panel or Appellate Body described in 
     subsection (a) is adopted by the Dispute Settlement Body, the 
     Commission shall make a written determination with respect to 
     matters described in subsection (a) (2) and (3).
       (2) Reports.--The Commission shall report the determination 
     described in paragraph (1) to the Committee on Ways and Means 
     of the House of Representatives and the Committee on Finance 
     of the Senate.

      SEC. 5. POWERS OF THE COMMISSION.

       (a) Hearings.--The Commission may hold any hearings, sit 
     and act at any time and place, take any testimony, and 
     receive any evidence as the Commission considers advisable to 
     carry out the purposes of this Act. The Commission shall 
     provide reasonable notice of a hearing held pursuant to this 
     subsection.
       (b) Information From Interested Parties and Federal 
     Agencies.--
       (1) Notice of panel or appellate body report.--The Trade 
     Representative shall advise the Commission not later than 5 
     days after the date the Dispute Settlement Body adopts the 
     report of a panel or Appellate Body that is adverse to the 
     United States and shall immediately publish notice of that 
     advice in the Federal Register, along with notice of an 
     opportunity for interested parties to submit comments to the 
     Commission.
       (2) Submissions and requests for information.--Any 
     interested party may submit comments to the Commission 
     regarding the panel or Appellate Body report. The Commission 
     may also secure directly from any Federal department or 
     agency any information the Commission considers necessary to 
     carry out the provisions of this Act. Upon request of the 
     chairperson of the Commission, the head of that department or 
     agency shall furnish the requested information to the 
     Commission.
       (3) Access to panel and appellate body documents.--
       (A) In general.--The Trade Representative shall make 
     available to the Commission all submissions and relevant 
     documents relating to the panel or Appellate Body report, 
     including any information contained in submissions identified 
     by the provider of the information as proprietary information 
     or information treated as confidential by a foreign 
     government.
       (B) Public access.--Any document which the Trade 
     Representative submits to the Commission shall be available 
     to the public, except information which is identified as 
     proprietary or confidential.
       (4) Assistance from federal agencies; confidentiality.--
       (A) Administrative assistance.--Any agency or department of 
     the United States that is designated by the President shall 
     provide administrative services, funds, facilities, staff, or 
     other support services to the Commission to assist the 
     Commission with the performance of the Commission's 
     functions.
       (B) Confidentiality.--The Commission shall protect from 
     disclosure any document or information submitted to it by a 
     department or agency of the United States which the agency or 
     department requests be kept confidential. The Commission 
     shall not be considered to be an agency for purposes of 
     section 552 of title 5, United States Code.
                                 ______