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[Page: S4297] GPO's PDF---
The PRESIDING OFFICER. Under the previous order, the Senate will now resume consideration of H.R. 3009, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (H.R. 3009) to extend the Andean Trade Preference Act, to grant additional trade benefits under that Act, and for other purposes.
Pending:
Baucus/Grassley amendment No. 3401, in the nature of a substitute.
Baucus amendment No. 3405 (to amendment No. 3401), to clarify the principal negotiating objectives of the United States with respect to foreign investment.
AMENDMENT NO. 3405
The PRESIDING OFFICER. Under the previous order, there will now be 10 minutes debate in relation to the pending Baucus amendment. Who yields time?
The Senator from Montana.
Mr. BAUCUS. Madam President, is there a time allotted?
The PRESIDING OFFICER. There will be 10 minutes debate in relation to the pending Baucus amendment.
Mr. BAUCUS. It is my understanding that the Senator from Massachusetts will have 5 minutes and the other 5 minutes will be allotted to Senator Grassley and myself. I will take 2 1/2 minutes of that.
I rise once again to urge my colleagues to support the amendment that I laid down yesterday on behalf on myself and Senators GRASSLEY and WYDEN.
[Page: S4298] GPO's PDF
The amendment is a short but very important clarification to the trade bill's negotiating objective on investment. when we negotiate investment agreements, our primary objective is to ensure that U.S. investors abroad have rights and protections comparable to the rights and protections they enjoy in the United States. In fulfilling that objective, we generally undertake reciprocal obligations with respect to foreign investors.
Our amendment makes absolutely clear that the rights we extend to foreign investors must not exceed the rights we afford our own citizens.
I expect that this is not the end of our debate on investor-state dispute settlement. As the debate goes forward, it is important to understand that we are trying to achieve a balance. In taking steps to protect U.S. investors abroad, we must not sacrifice the sovereignty of Federal, State, and local governments here at home. Striking the right balance is precisely what we have done in the trade bill. When it was brought to our attention that we might improve that balance, we did so in the amendment laid down yesterday.
In the days ahead, it is important that we not upend the balance. We have carefully crafted a foundation for future investment agreements. I strongly urge my colleagues to support that foundation and to support the Baucus-Grassley-Wyden amendment.
I reserve the remainder of my 2 1/2 minutes.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KERRY. Madam President, I appreciate enormously the efforts of the chairman and ranking member to move what is always a very difficult issue through the Senate. They have done a good job of trying to resolve a great many issues. I don't oppose this amendment of theirs, but, in fact, I urge my colleagues to vote for the amendment.
I emphasize to my colleagues that this amendment does not fix the chapter 11 problem that still exists with respect to the sovereignty of American businesses and the rights of Americans and of our communities to be able to be protected. I am very grateful for the chairman's willingness to try to respond, but substantial disagreements still exist with respect to how we best protect American businesses and our communities, according to our rights.
As our colleagues know, it is clear that the NAFTA investor-State dispute resolution process, which is known as chapter 11 , is going to be the model on which future agreements are predicated. And chapter 11 , in its current form, is a flawed model. It is not a failed model; it is simply flawed. We have the ability to be able to fix it.
Last night, Senator Baucus referenced letters written by several organizations that urged correction of the no-lesser-rights language, which is precisely what will happen in this particular amendment. I appreciate his response, but let me point out that in those letters he referenced, there are a whole set of other issues that are unaddressed in this amendment. Specifically, from the National League of Cities, they say: We are concerned that future trade negotiations, particularly for a hemispheric free trade area of the Americas, could include provisions that expand the definition of a regulatory taking. As evidenced by disputes under chapter 11 of NAFTA , vague expropriation language has allowed new avenues of recourse for foreign investors to challenge current State and local ordinances.
So we are allowing a foreign investor to come in and actually undo the intent of our local and State communities to enforce certain kinds of health or other kinds of restraints.
From the National Association of Towns and Townships:
In particular, we are troubled that a claim by a foreign company that a local government's regulation or zoning laws constitutes a taking against the company will make it impossible for the locality to enforce that law or regulation.
From the National Conference of State Legislators:
The bill does not adequately and explicitly guarantee that trade agreements negotiated under this authority will respect State sovereignty, nor incorporate well defined and constitutional Fifth Amendment takings principles.
Regrettably, the Baucus-Grassley amendment does not, despite what they claim in the no-greater-rights-than language, address the shortcomings of the chapter 11 model. Adopting their language without other needed changes is still going to allow future chapter 11 -like tribunals to rule against legitimate U.S. public health and safety laws using a standard of expropriation that goes well beyond the clear standard that the Supreme Court has established in all of its expropriation cases.
The amendment before us does not give assurances that the due process claims of the Constitution will be respected, nor does it provide safe harbor for legitimate U.S. public health and safety laws.
I will propose an amendment, and we will debate this amendment over the course of the next couple of days. I urge my colleagues to adopt a policy that will fully protect the constitutional rights of American businesses and the constitutional right of our States, the expropriation laws and standards of the Supreme Court. I urge them to vote for this amendment recognizing this does not complete the task.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Madam President, the amendment that is before us was introduced by Senator Baucus and myself and is designed to make it crystal clear that in pursuing these objectives, foreign investors are not to be granted any greater rights in the United States than our own U.S. investors have rights within the United States. This provision builds upon the already strong improvements to the investment objectives within this bill. These provisions strike a very careful balance between the needs to protect U.S. citizens from arbitrary takings of their property overseas and the need to ensure that the investor-State dispute settlement process is not abused.
Critics of the investment provisions insist that the investor-State dispute settlement process has somehow run amok. Not true. The fact is that no U.S. environmental, health, or safety regulations have ever been overturned by the international investment arbitration. Only 13 investor-State claims have been filed under NAFTA chapter 11 in the entire 8 years of its existence. Meanwhile, U.S. investors continue to face discriminatory and arbitrary government action in most of the developing world. We need to maintain U.S. investors' ability to get redress in impartial tribunals while ensuring that the investor-State dispute settlement process continues to protect our own investors overseas. This simply is what the Baucus-Grassley amendment does.
I urge support for this amendment and support for the Baucus-Grassley compromise.
I yield the floor.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Madam President, I yield back the remainder of my time.
The PRESIDING OFFICER. All time is yielded back.
Mr. BAUCUS. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the amendment.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Georgia (Mr. MILLER) is necessarily absent.
Mr. NICKLES. I announce that the Senator from North Carolina (Mr. HELMS) is necessarily absent.
I further announce that if present and voting the Senator from North Carolina (Mr. HELMS) would vote ``yea.''
The PRESIDING OFFICER (Mr. REED). Are there any other Senators in the Chamber desiring to vote?
The result was announced--yeas 98, nays 0, as follows:
Akaka
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
[Page: S4299] GPO's PDF
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden
Helms
Miller
The amendment (No. 3405) was agreed to.
Mr. REID. I move to reconsider the vote.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
AMENDMENT NO. 3408
The PRESIDING OFFICER. Under the previous order, the Senator from Minnesota is recognized to offer an amendment.
Mr. DAYTON. I call up amendment No. 3408.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Minnesota [Mr. Dayton], for himself and Mr. Craig, proposes an amendment numbered 3408 to amendment No. 3401.
Mr. DAYTON. I ask unanimous consent the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of section 2103(b), add the following:
(4) LIMITATIONS ON TRADE AUTHORITIES PROCEDURES.--
(A) IN GENERAL.--Notwithstanding any other provision of law, the provisions of section 151 of the Trade Act of 1974 (trade authorities procedures) shall not apply to any provision in an implementing bill being considered by the Senate that modifies or amends, or requires a modification of, or an amendment to, any law of the United States that provides safeguards from unfair foreign trade practices to United States businesses or workers, including--
(i) imposition of countervailing and antidumping duties (title VII of the Tariff Act of 1930; 19 U.S.C. 1671 et seq.);
(ii) protection from unfair methods of competition and unfair acts in the importation of articles (section 337 of the Tariff Act of 1930; 19 U.S.C. 1337);
(iii) relief from injury caused by import competition (title II of the Trade Act of 1974; 19 U.S.C. 2251 et seq.);
(iv) relief from unfair trade practices (title III of the Trade Act of 1974; 19 U.S.C. 2411 et seq.); or
(v) national security import restrictions (section 232 of the Trade Expansion Act of 1962; 19 U.S.C. 1862).
(B) POINT OF ORDER IN SENATE.--
(i) IN GENERAL.--When the Senate is considering an implementing bill, upon a point of order being made by any Senator against any part of the implementing bill that contains material in violation of subparagraph (A), and the point of order is sustained by the Presiding Officer, the part of the implementing bill against which the point of order is sustained shall be stricken from the bill.
(ii) WAIVERS AND APPEALS.--
(I) WAIVERS.--Before the Presiding Officer rules on a point of order described in clause (i), any Senator may move to waive the point of order and the motion to waive shall not be subject to amendment. A point of order described in clause (i) is waived only by the affirmative vote of a majority of the Members of the Senate, duly chosen and sworn.
(II) APPEALS.--After the Presiding Officer rules on a point of order under this subparagraph, any Senator may appeal the ruling of the Presiding Officer on the point of order as it applies to some or all of the provisions on which the Presiding Officer ruled. A ruling of the Presiding Officer on a point of order described in clause (i) is sustained unless a majority of the Members of the Senate, duly chosen and sworn, vote not to sustain the ruling.
(III) DEBATE.--Debate on a motion to waive under subclause (I) or on an appeal of the ruling of the Presiding Officer under subclause (II) shall be limited to 1 hour. The time shall be equally divided between, and controlled by, the majority leader and the minority leader, or their designees.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
AMENDMENT NO. 3409 TO AMENDMENT NO. 3408
Mr. GRASSLEY. Mr. President, I send an amendment to the desk as a second-degree amendment, for Senator Baucus and myself.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Iowa [Mr. Grassley] proposes an amendment numbered 3409 to amendment No. 3408.
Mr. GRASSLEY. I ask unanimous consent the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
In lieu of the matter proposed to be inserted by the amendment, insert the following:
(4) ADDITIONAL PRINCIPAL TRADE NEGOTIATING OBJECTIVE.--
(A) IN GENERAL.--Section 2102(b) of this Act is amended by adding at the end the following:
``(15) TRADE REMEDY LAWS.--The principal negotiating objectives of the United States with respect to trade remedy laws are--
``(A) to preserve the ability of the United States to enforce rigorously its trade laws, including the antidumping, countervailing duty, and safeguard laws, and avoid agreements that lessen the effectiveness of domestic and international disciplines on unfair trade, especially dumping and subsidies, or that lessen the effectiveness of domestic and international safeguard provisions, in order to ensure that United States workers, agricultural producers, and firms can compete fully on fair terms and enjoy the benefits of reciprocal trade concessions; and
``(B) to address and remedy market distortions that lead to dumping and subsidization, including overcapacity, cartelization, and market-access barriers.''.
(B) CONFORMING AMENDMENTS.--
(i) Section 2102(c) of this Act is amended--
(I) by striking paragraph (9);
(II) by redesignating paragraphs (10) through (12) as paragraphs (9) through (11 ), respectively; and
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