B-245134 September 25, 1992

B-245134 September 25, 1992

MISCELLANEOUS TOPICS Federal Administrative/Legislative Matters Congressional committees Rulemaking Acceleration Authority Section 1102(a)(6) of the Omnibus Trade and Competitiveness Act of 1988 provides a basis for the application of the congressional fast-track procedures contained in section 1103 of the Act to bills implementing multilateral free trade agreements which include tariff modification provisions requiring congressional approval, such as the proposed North American Free Trade Agreement (NAFA). MISCELLANEOUS TOPICS Federal Administrative/Legislative Matters Congressional committees Rulemaking Acceleration Amendments If a Member of Congress is granted a rule to offer an amendment during consideration of a bill implementing a multilateral trade agreement such as the NAFTA under fast-track procedures, he/she is not precluded from offering such an amendment by the prohibition on amendments imposed by the fast-track procedures. Section 1103(d)(2) of the Omnibus Trade and Competitiveness Act of 1988, which provides for consideration under fast- track procedures, specifically recognizes the right of either House to change the rule relating to the procedures of that House at any time.

The Honorable John J. LaFalce House of Representatives

Dear Mr. LaFalce:

This is in response to your request that we review whether the "fast- track" procedures for expedited consideration of bills implementing international trade agreements can be applied to the North American Free Trade Agreement (NAFTA). Specifically, one question you raised is whether under section 1103 of the Omnibus Trade and Competitiveness Act of 1988, "fast-track" procedures apply to consideration of bills implementing multilateral agreements that contain not only non-tariff provisions, but also tariff provisions otherwise requiring congressional approval. The second question concerns whether, if fast-track procedures apply, members would be precluded from offering amendments to the implementing bill during consideration.

Ultimately, the responsibility for the interpretation of House and Senate rules lies with the Parliamentarians. However, we offer the following observations based on our review of the statute. We believe that the fast-track procedures can be applied to agreements such as the NAFTA. Further, the specific requirements of the procedures, such as the prohibition on amendments during consideration, may be overcome by subsequent rules adopted by either House of Congress.

BACKGROUND

Three separate provisions of the Omnibus Trade and Competitiveness Act of 1988, Pub. Law No. 100-418, 102 Stat. 1107 (1988) (the Act), establish the authority for the President to enter into trade agreements. Section 1102(a)(1) of the Act, 19 U.S.C. Sec. 2902(a)(1), provides authority for the President to enter into "trade agreements with foreign countries" whenever "the President determines that one or more existing duties are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, and objectives of this title will be promoted thereby," and to proclaim such additional duties or modifications of existing duties as he determines necessary to carry out the agreement. The provision thus contemplates multilateral agreements for the increase or reduction of tariffs. Section 1102(a)(2), 19 U.S.C. Sec. 2902(a)(2), provides that no proclamation may be made under Sec. 1102(a)(1) that would reduce tariffs to a rate less than 50 percent of its rate or increase any rate of duty above the rate that applies on August 23, 1988.

Section 1102(b) of the Act, 19 U.S.C. Sec. 2902(b), provides the President with authority to enter into agreements with foreign countries which reduce or eliminate "any barrier to, or other distortion of, international trade." The provision thus authorizes multilateral agreements for the reduction of non-tariff barriers.

Section 1102(c) of the Act, 19 U.S.C. Sec. 2902(c), provides, in pertinent part:

"Before June 1, 1993, the President may enter into bilateral trade agreements with foreign countries that provide for the elimination or reduction of any duty imposed by the United States. A trade agreement entered into under this paragraph may also provide for the reduction or elimination of non-tariff barriers to, or other distortions of, the international trade of the foreign country or the United States."

This provision thus contemplates bilateral agreements for the reduction of both tariff and non-tariff barriers.

Section 1102(a)(6) of the Act, 19 U.S.C. Sec. 2902(a)(6), provides that a tariff modification which cannot be proclaimed under section 1102(a)(2) may take effect only if it is included within an implementing bill provided for under section 1103 which is enacted into law.

Section 1103(a) states that any agreement under section 1102(b) or (c) shall enter into force only if the President notifies Congress 90 days before he enters into the agreement and subsequently submits an implementing bill together with supporting documents as required by the section.

The general "fast-track" procedures for expedited consideration of the implementing bills for certain trade agreements are set out in 19 U.S.C. Sec. 2191. Under that provision, the President must notify Congress at least 90 calendar days before entering into a negotiated agreement. Congress then has 90 days to accept or reject the agreement. Subsection (d) of section 2191 prohibits amendments to the agreement during its consideration.

Section 1103(b) of the Act, 19 U.S.C. Sec. 2903(b), provides that the fast-track procedures under 19 U.S.C. Sec. 2191 apply to implementing bills submitted with respect to trade agreements entered into under section 1102(b) or (c) before the expiration of the provision. The provision is set to expire on June 1, 1993. Thus, section 1103(b) appears to apply fast-track procedures to any multilateral non-tariff or bilateral agreement entered into within the specified time period, but not to multilateral tariff agreements otherwise requiring congressional approval under section 1102(a).

Because section 1103(b) applies "fast-track" procedures only to multilateral non-tariff barrier agreements negotiated under section 1102(b) and bilateral agreements negotiated under section 1102(c), and because the multilateral NAFTA covers both tariff as well as non-tariff barriers, you have suggested that fast-track procedures would not apply to NAFTA under section 1103. While tariff reductions not in excess of 50% could be implemented by Presidential proclamation, tariff reductions in excess of that percentage would require congressional approval. A trade agreement containing such reductions, you suggest, may not be submitted for approval under fast-track procedures. Rather, such an agreement would be subject to ordinary congressional scheduling and consideration procedures, including amendments.

OPINION

Application of fast-track procedures. While section 1103 of the Act applies fast-track procedures only to multilateral non-tariff barrier agreements and bilateral tariff and non-tariff barrier agreements, we believe that section 1102(a)(6) provides a basis for the application of fast-track procedures to multilateral tariff agreements requiring congressional approval. Section 1102(a)(6) states:

"A rate of duty reduction or increase that may not be proclaimed by reason of section 1102(a)(2) may take effect only if a provision authorizing such reduction or increase is included within an implementing bill provided for under section 1103 of this title and that bill is enacted into law."

As discussed above, section 1103 establishes procedures for the approval of multilateral nontariff and bilateral tariff agreements that are entered into before June 1, 1993. Section 1102(a)(6) thus expands the scope of section 1103 to include bills implementing multilateral trade agreements containing tariff reductions or increases that fall outside the scope of the President's proclamation authority and require congressional approval under section 1102(a)(2). This interpretation is supported by the conference report accompanying the Act, which states:

"Any duty reductions that exceed 50 percent of the existing duty or any tariff increases are subject to Congressional approval under the "fast track" implementing procedure." H.R. Conf. Rep. No. 576, 100th Cong., 2nd Sess. 530 (1988). (Emphasis added.)

The emphasized language clearly refers to those agreements arising under section 1102(a)(2) which require congressional approval.

We therefore conclude that fast-track procedures would apply to legislation implementing a North American Free Trade Agreement entered into before June 1, 1993 that contained tariff modifications requiring congressional approval.

We solicited the opinion of the Office of the United States Trade Representative (OUSTR) on this issue. In its response, OUSTR also takes the view that section 1102(a)(6) of the Act provides for the application of fast-track procedures to multilateral tariff agreements that fall outside the scope of the President's proclamation authority.

Amendments offered during congressional consideration. You also questioned whether amendments could be offered if a bill implementing the NAFTA is considered under fast-track procedures. Specifically, your question is whether a Member of Congress who desires to offer an amendment to that agreement and is granted a rule to do so could be precluded from offering such an amendment based on prior limitations imposed by fast- track procedures. The question arises because of the prohibitive language contained in 19 U.S.C. Sec. 2191(d):

"(d) Amendments prohibited. - No amendment to an implementing bill or approval resolution shall be in order in either the House of Representatives or the Senate; and no motion to suspend the application of this subsection shall be in order in either House, nor shall it be in order in either House for the Presiding Officer to entertain a request to suspend the application of this subsection by unanimous consent."

It is fundamental that one Congress cannot bind a future Congress. Railroad Rehabilitation and Improvement Fund, 65 Comp.Gen. 524, 527 (1986); Maybank Amendment, 57 Comp.Gen. 34, 41 (1977). This limitation is acknowledged in the Omnibus Trade and Competitiveness Act of 1988 in the same section that incorporates the expedited procedures contained in 19 U.S.C. Sec. 2191. Section 1103(d) of the Act, 19 U.S.C. 2903(d), states:

"Subsections (b) and (c) of this section are enacted by the Congress-

(1) as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such is deemed a part of the rules of each House, respectively, and such procedures supersede other rules only to the extent that they are inconsistent with such other rules; and

(2) with the full recognition of the constitutional right of either House to change the rules (so far as relating to the procedures of that House) at any time, in the same manner, and to the same extent as any other rule of that House."

Consequently, section 1103 of the Act and 19 U.S.C. Sec. 2191 could not be used to preclude consideration of an amendment that a Member wished to introduce, if the rules were modified to permit the introduction of such an amendment.

We trust this is responsive to your inquiry.