May 20,2021

Crapo Files Amendments to Protect American Companies’ Intellectual Property Rights and Enforce Global Trade Rules

Washington, D.C--U.S. Senate Finance Committee Ranking Member Mike Crapo (R-Idaho) filed two amendments to the U.S. Innovation and Competition Act: an amendment to provide for transparency and congressional review of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement); and The Trade Act of 2021.


TRIPS Agreement Amendment


Ranking Member Crapo and seventeen of his Senate Republican colleagues introduced an amendment to bring deliberation, transparency, and reinforced congressional oversight over the Administration’s decision to pursue a waiver to the TRIPS Agreement. 


On May 5, 2021, the Administration announced it would support a waiver of the intellectual property protections in the TRIPS Agreement—a congressionally approved trade agreement—with respect to vaccines related to addressing the pandemic.  The Administration did so without consulting Congress, or providing any evidence that waiving the IP rights of the U.S. innovators would facilitate global vaccine access. 


At a hearing on May 12, the U.S. Trade Representative would not commit that she would share with Congress, in advance, the text of any proposed changes to the TRIPS Agreement nor would she assure the waiver would not extend to Russia, or China—which has been aggressively trying to steal U.S. vaccine research.


“Finding effective solutions to promote global vaccine access is a broadly held congressional objective,” said Ranking Member Crapo.  “I am concerned the Administration did not—because it could not—provide any evidentiary support for its claim that a waiver would facilitate access.  I am also deeply troubled the Administration believes it can suspend U.S. rights under a congressionally-approved trade agreement without first securing Congress’s assent.  The Constitution still vests control over international trade with Congress.”  


Critically, the amendment will guarantee the Administration a congressional vote on its waiver proposal provided it (1) consults with Congress; (2) actually facilitates global vaccine access while not compromising U.S. national security—as determined by the Administration’s own agencies; and (3) does not extend to Russia or China.


Key elements:


·         Findings and Sense of Senate: The proposal highlights a number of factual, constitutional and practical issues for why the amendment is warranted.


·         Strength against China and Russia: Prohibits the Administration from tabling any proposal that would impair the rights of the United States or of its citizens with respect to Russia.


·         Transparency: Requires the Administration to allow for public comment on the matter before engaging in negotiations.


·         Objective evaluation: Requires the Administration to submit its initial plan and any eventual outcome to the International Trade Commission for its evaluation of any waiver impact on jobs and growth.


·         Specific evaluation for TRIPS modification: Requires the Administration to prepare two reports that relate particularly to a proposed waiver of intellectual property (IP) protections for vaccines.  The first, led by the U.S. Department of Commerce in conjunction with U.S. Food and Drug Administration and the Centers for Disease Control and Prevention (CDC), would be to evaluate the Administration’s waiver proposal to determine if it would improve global vaccine access.  The second, led by the U.S. Department of Defense, would be to confirm there would be no adverse impact on U.S. national security.  The Administration may continue its negotiations for a waiver if its own agencies confirm it is warranted.


·         Consultation with Congress during negotiations: Requires the Administration to share text with the Senate Finance and House Ways and Means Committees, and authorizes Members of Congress and certain staff to attend negotiations if they wish (as they do now during free trade agreement negotiations).


·         Congressional approval: Congress will guarantee a vote on the suspension or modification to TRIPS, with procedures similar to fast track (a joint resolution of approval), if the Administration complies with consultation requirements.


Crapo added, “If any Administration believes a waiver proposal or other abridgement of a congressionally approved trade agreement is so compelling, then it should not be afraid to allow its action to be considered transparently, independently, and subject to a guaranteed vote before Congress.”


The amendment is co-sponsored by Senate Health, Education, Labor and Pensions Ranking Member Richard Burr (R-North Carolina), Senate Judiciary Ranking Member Chuck Grassley (R-Iowa), Senate Committee on Energy and Natural Resources Ranking Member John Barrasso (R-Wyoming), Senate Foreign Relations Committee Ranking Member Jim Risch (R-Idaho), Senate Banking Committee Ranking Member Patrick Toomey (R-Pennsylvania), and Senators Steve Daines (R-Montana), Todd Young (R-Indiana), Tommy Tuberville (R-Alabama), Bill Cassidy (R-Louisiana), Ben Sasse (R-Nebraska), Mitt Romney (R-Utah), Roger Marshal (R-Kansas), Mike Braun (R-Indiana), Tim Scott (R-South Carolina), John Cornyn (R-Texas), James Lankford (R-Oklahoma) and John Thune (R-South Dakota).


The full text of the legislation is available here.


Trade Act of 2021


The “Trade Act of 2021” provides a comprehensive approach to combat China’s manufacturing imbalances, threats to free and fair trade, and illicit activity which undermine America’s leadership in innovation. This legislation will level the playing field for American consumers and companies, including workers, farmers, fishers and families by taking aim at China’s worst practices.  The proposal itself is intended to carry a bipartisan approach into a Senate-wide effort to ensure the United States is positioned to compete on a fair playing field globally, especially with China.


“Our good faith, bipartisan effort among various stakeholders and Members of Congress yields critical outcomes that will advance our strategic, economic and human rights interests regarding China,” said Crapo.  “This amendment demonstrates that the United States can prevail in any contest with China by staying true to what makes America successful: a proven democratic process that supports free markets and free societies.”  


Key Elements:


  • Bolsters efforts to prohibit goods made with forced labor from reaching the United States by strengthening Customs and Border Protection (CBP) enforcement efforts, and by expanding the Seafood Import Monitoring Program (SIMP). 


  • Provides modernized trade enforcement tools to U.S. Trade Representative (USTR) to address anti-competitive digital trade and censorship practices like China’s Great Firewall, including by requiring USTR to identify trading partners that disrupt digital trade; allows for the investigation of unreasonable digital trade measures detrimental to Americans; and provides for an expedited review of discriminatory digital trade proposals. 


  • Requires a review of trade in essential supplies, including the sources of imports and an analysis of any vulnerabilities, as well as additional tools for businesses in the United States seeking reliable suppliers. 


  • Strengthens oversight over U.S. trade policy by providing an Inspector General to USTR and by ensuring the application of Section 301 tariffs related to China are calibrated to provide leverage, while ensuring U.S. competitiveness and manufacturing.


  • Reauthorizes the Miscellaneous Tariff Bill (MTB) and an improved Generalized System of Preferences (GSP) that will promote human rights, the environment, women’s economic empowerment, the rule of law and digital trade.


The full text of the legislation is available here