SUBCHAPTER III—ENFORCEMENT OF UNITED STATES RIGHTS UNDER TRADE AGREEMENTS AND RESPONSE TO CERTAIN FOREIGN TRADE PRACTICES
§2411. Actions by United States Trade Representative
(a) Mandatory action
(1) If the United States Trade Representative determines under
(A) the rights of the United States under any trade agreement are being denied; or
(B) an act, policy, or practice of a foreign country—
(i) violates, or is inconsistent with, the provisions of, or otherwise denies benefits to the United States under, any trade agreement, or
(ii) is unjustifiable and burdens or restricts United States commerce;
the Trade Representative shall take action authorized in subsection (c), subject to the specific direction, if any, of the President regarding any such action, and shall take all other appropriate and feasible action within the power of the President that the President may direct the Trade Representative to take under this subsection, to enforce such rights or to obtain the elimination of such act, policy, or practice. Actions may be taken that are within the power of the President with respect to trade in any goods or services, or with respect to any other area of pertinent relations with the foreign country.
(2) The Trade Representative is not required to take action under paragraph (1) in any case in which—
(A) the Dispute Settlement Body (as defined in
(i) the rights of the United States under a trade agreement are not being denied, or
(ii) the act, policy, or practice—
(I) is not a violation of, or inconsistent with, the rights of the United States, or
(II) does not deny, nullify, or impair benefits to the United States under any trade agreement; or
(B) the Trade Representative finds that—
(i) the foreign country is taking satisfactory measures to grant the rights of the United States under a trade agreement,
(ii) the foreign country has—
(I) agreed to eliminate or phase out the act, policy, or practice, or
(II) agreed to an imminent solution to the burden or restriction on United States commerce that is satisfactory to the Trade Representative,
(iii) it is impossible for the foreign country to achieve the results described in clause (i) or (ii), as appropriate, but the foreign country agrees to provide to the United States compensatory trade benefits that are satisfactory to the Trade Representative,
(iv) in extraordinary cases, where the taking of action under this subsection would have an adverse impact on the United States economy substantially out of proportion to the benefits of such action, taking into account the impact of not taking such action on the credibility of the provisions of this subchapter, or
(v) the taking of action under this subsection would cause serious harm to the national security of the United States.
(3) Any action taken under paragraph (1) to eliminate an act, policy, or practice shall be devised so as to affect goods or services of the foreign country in an amount that is equivalent in value to the burden or restriction being imposed by that country on United States commerce.
(b) Discretionary action
If the Trade Representative determines under
(1) an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce, and
(2) action by the United States is appropriate, the Trade Representative shall take all appropriate and feasible action authorized under subsection (c), subject to the specific direction, if any, of the President regarding any such action, and all other appropriate and feasible action within the power of the President that the President may direct the Trade Representative to take under this subsection, to obtain the elimination of that act, policy, or practice. Actions may be taken that are within the power of the President with respect to trade in any goods or services, or with respect to any other area of pertinent relations with the foreign country.
(c) Scope of authority
(1) For purposes of carrying out the provisions of subsection (a) or (b) or
(A) suspend, withdraw, or prevent the application of, benefits of trade agreement concessions to carry out a trade agreement with the foreign country referred to in such subsection;
(B) impose duties or other import restrictions on the goods of, and, notwithstanding any other provision of law, fees or restrictions on the services of, such foreign country for such time as the Trade Representative determines appropriate;
(C) in a case in which the act, policy, or practice also fails to meet the eligibility criteria for receiving duty-free treatment under subsections (b) and (c) of
(D) enter into binding agreements with such foreign country that commit such foreign country to—
(i) eliminate, or phase out, the act, policy, or practice that is the subject of the action to be taken under subsection (a) or (b),
(ii) eliminate any burden or restriction on United States commerce resulting from such act, policy, or practice, or
(iii) provide the United States with compensatory trade benefits that—
(I) are satisfactory to the Trade Representative, and
(II) meet the requirements of paragraph (4).
(2)(A) Notwithstanding any other provision of law governing any service sector access authorization, and in addition to the authority conferred in paragraph (1), the Trade Representative may, for purposes of carrying out the provisions of subsection (a) or (b)—
(i) restrict, in the manner and to the extent the Trade Representative determines appropriate, the terms and conditions of any such authorization, or
(ii) deny the issuance of any such authorization.
(B) Actions described in subparagraph (A) may only be taken under this section with respect to service sector access authorizations granted, or applications therefor pending, on or after the date on which—
(i) a petition is filed under
(ii) a determination to initiate an investigation is made by the Trade Representative under
(C) Before the Trade Representative takes any action under this section involving the imposition of fees or other restrictions on the services of a foreign country, the Trade Representative shall, if the services involved are subject to regulation by any agency of the Federal Government or of any State, consult, as appropriate, with the head of the agency concerned.
(3) The actions the Trade Representative is authorized to take under subsection (a) or (b) may be taken against any goods or economic sector—
(A) on a nondiscriminatory basis or solely against the foreign country described in such subsection, and
(B) without regard to whether or not such goods or economic sector were involved in the act, policy, or practice that is the subject of such action.
(4) Any trade agreement described in paragraph (1)(D)(iii) shall provide compensatory trade benefits that benefit the economic sector which includes the domestic industry that would benefit from the elimination of the act, policy, or practice that is the subject of the action to be taken under subsection (a) or (b), or benefit the economic sector as closely related as possible to such economic sector, unless—
(A) the provision of such trade benefits is not feasible, or
(B) trade benefits that benefit any other economic sector would be more satisfactory than such trade benefits.
(5) If the Trade Representative determines that actions to be taken under subsection (a) or (b) are to be in the form of import restrictions, the Trade Representative shall—
(A) give preference to the imposition of duties over the imposition of other import restrictions, and
(B) if an import restriction other than a duty is imposed, consider substituting, on an incremental basis, an equivalent duty for such other import restriction.
(6) Any action taken by the Trade Representative under this section with respect to export targeting shall, to the extent possible, reflect the full benefit level of the export targeting to the beneficiary over the period during which the action taken has an effect.
(d) Definitions and special rules
For purposes of this subchapter—
(1) The term "commerce" includes, but is not limited to—
(A) services (including transfers of information) associated with international trade, whether or not such services are related to specific goods, and
(B) foreign direct investment by United States persons with implications for trade in goods or services.
(2) An act, policy, or practice of a foreign country that burdens or restricts United States commerce may include the provision, directly or indirectly, by that foreign country of subsidies for the construction of vessels used in the commercial transportation by water of goods between foreign countries and the United States.
(3)(A) An act, policy, or practice is unreasonable if the act, policy, or practice, while not necessarily in violation of, or inconsistent with, the international legal rights of the United States, is otherwise unfair and inequitable.
(B) Acts, policies, and practices that are unreasonable include, but are not limited to, any act, policy, or practice, or any combination of acts, policies, or practices, which—
(i) denies fair and equitable—
(I) opportunities for the establishment of an enterprise,
(II) provision of adequate and effective protection of intellectual property rights notwithstanding the fact that the foreign country may be in compliance with the specific obligations of the Agreement on Trade-Related Aspects of Intellectual Property Rights referred to in
(III) nondiscriminatory market access opportunities for United States persons that rely upon intellectual property protection, or
(IV) market opportunities, including the toleration by a foreign government of systematic anticompetitive activities by enterprises or among enterprises in the foreign country that have the effect of restricting, on a basis that is inconsistent with commercial considerations, access of United States goods or services to a foreign market,
(ii) constitutes export targeting,
(iii) constitutes a persistent pattern of conduct that—
(I) denies workers the right of association,
(II) denies workers the right to organize and bargain collectively,
(III) permits any form of forced or compulsory labor,
(IV) fails to provide a minimum age for the employment of children, or
(V) fails to provide standards for minimum wages, hours of work, and occupational safety and health of workers, or
(iv) constitutes a persistent pattern of conduct by the government of a foreign country under which that government fails to effectively enforce commitments under agreements to which the foreign country and the United States are parties, including with respect to trade in goods, trade in services, trade in agriculture, foreign investment, intellectual property, digital trade in goods and services and cross-border data flows, regulatory practices, state-owned and state-controlled enterprises, localization barriers to trade, labor and the environment, anticorruption, trade remedy laws, textiles, and commercial partnerships.
(C)(i) Acts, policies, and practices of a foreign country described in subparagraph (B)(iii) shall not be treated as being unreasonable if the Trade Representative determines that—
(I) the foreign country has taken, or is taking, actions that demonstrate a significant and tangible overall advancement in providing throughout the foreign country (including any designated zone within the foreign country) the rights and other standards described in the subclauses of subparagraph (B)(iii), or
(II) such acts, policies, and practices are not inconsistent with the level of economic development of the foreign country.
(ii) The Trade Representative shall publish in the Federal Register any determination made under clause (i), together with a description of the facts on which such determination is based.
(D) For purposes of determining whether any act, policy, or practice is unreasonable, reciprocal opportunities in the United States for foreign nationals and firms shall be taken into account, to the extent appropriate.
(E) The term "export targeting" means any government plan or scheme consisting of a combination of coordinated actions (whether carried out severally or jointly) that are bestowed on a specific enterprise, industry, or group thereof, the effect of which is to assist the enterprise, industry, or group to become more competitive in the export of a class or kind of merchandise.
(F)(i) For the purposes of subparagraph (B)(i)(II), adequate and effective protection of intellectual property rights includes adequate and effective means under the laws of the foreign country for persons who are not citizens or nationals of such country to secure, exercise, and enforce rights and enjoy commercial benefits relating to patents, trademarks, copyrights and related rights, mask works, trade secrets, and plant breeder's rights.
(ii) For purposes of subparagraph (B)(i)(IV), the denial of fair and equitable nondiscriminatory market access opportunities includes restrictions on market access related to the use, exploitation, or enjoyment of commercial benefits derived from exercising intellectual property rights in protected works or fixations or products embodying protected works.
(4)(A) An act, policy, or practice is unjustifiable if the act, policy, or practice is in violation of, or inconsistent with, the international legal rights of the United States.
(B) Acts, policies, and practices that are unjustifiable include, but are not limited to, any act, policy, or practice described in subparagraph (A) which denies national or most-favored-nation treatment or the right of establishment or protection of intellectual property rights.
(5) Acts, policies, and practices that are discriminatory include, when appropriate, any act, policy, and practice which denies national or most-favored-nation treatment to United States goods, services, or investment.
(6) The term "service sector access authorization" means any license, permit, order, or other authorization, issued under the authority of Federal law, that permits a foreign supplier of services access to the United States market in a service sector concerned.
(7) The term "foreign country" includes any foreign instrumentality. Any possession or territory of a foreign country that is administered separately for customs purposes shall be treated as a separate foreign country.
(8) The term "Trade Representative" means the United States Trade Representative.
(9) The term "interested persons", only for purposes of sections 2412(a)(4)(B), 2414(b)(1)(A), 2416(c)(2),1 and 2417(a)(2) of this title, includes, but is not limited to, domestic firms and workers, representatives of consumer interests, United States product exporters, and any industrial user of any goods or services that may be affected by actions taken under subsection (a) or (b).
(
Editorial Notes
References in Text
Prior Provisions
A prior section 301 of
Amendments
2016—Subsec. (c)(1).
Subsec. (d)(3)(B)(iv).
1996—Subsec. (c)(4).
1994—Subsec. (a)(1).
Subsec. (a)(2)(A).
Subsec. (b)(2).
Subsec. (c)(1)(B) to (D).
Subsec. (c)(5).
Subsec. (d)(3)(B)(i)(II) to (IV).
"(II) provision of adequate and effective protection of intellectual property rights, or
"(III) market opportunities, including the toleration by a foreign government of systematic anticompetitive activities by private firms or among private firms in the foreign country that have the effect of restricting, on a basis that is inconsistent with commercial considerations, access of United States goods to purchasing by such firms,".
Subsec. (d)(3)(F).
1988—
1984—Subsec. (a).
Subsec. (b)(1).
Subsec. (b)(2).
Subsecs. (c), (d).
Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 1994 Amendment
Amendment by section 314(a)–(c) of
Amendment by section 621(a)(9) of
Effective Date of 1988 Amendment
"(1) petitions filed, and investigations initiated, under section 302 of the Trade Act of 1974 [
"(2) petitions filed, and investigations initiated, before the date of enactment of this Act, if by that date no decision had been made under section 304 [
Effective Date
Executive Documents
Ex. Ord. No. 13155. Access to HIV/AIDS Pharmaceuticals and Medical Technologies
Ex. Ord. No. 13155, May 10, 2000, 65 F.R. 30521, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 141 and
(1) promotes access to HIV/AIDS pharmaceuticals or medical technologies for affected populations in that country; and
(2) provides adequate and effective intellectual property protection consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) referred to in section 101(d)(15) of the Uruguay Round Agreements Act (
(b) The United States shall encourage all beneficiary sub-Saharan African countries to implement policies designed to address the underlying causes of the HIV/AIDS crisis by, among other things, making efforts to encourage practices that will prevent further transmission and infection and to stimulate development of the infrastructure necessary to deliver adequate health services, and by encouraging policies that provide an incentive for public and private research on, and development of, vaccines and other medical innovations that will combat the HIV/AIDS epidemic in Africa.
(1) since the onset of the worldwide HIV/AIDS epidemic, approximately 34 million people living in sub-Saharan Africa have been infected with the disease;
(2) of those infected, approximately 11.5 million have died;
(3) the deaths represent 83 percent of the total HIV/AIDS-related deaths worldwide; and
(4) access to effective therapeutics for HIV/AIDS is determined by issues of price, health system infrastructure for delivery, and sustainable financing.
(b) In light of these findings, this order recognizes that:
(1) it is in the interest of the United States to take all reasonable steps to prevent further spread of infectious disease, particularly HIV/AIDS;
(2) there is critical need for effective incentives to develop new pharmaceuticals, vaccines, and therapies to combat the HIV/AIDS crisis, including effective global intellectual property standards designed to foster pharmaceutical and medical innovation;
(3) the overriding priority for responding to the crisis of HIV/AIDS in sub-Saharan Africa should be to improve public education and to encourage practices that will prevent further transmission and infection, and to stimulate development of the infrastructure necessary to deliver adequate health care services;
(4) the United States should work with individual countries in sub-Saharan Africa to assist them in development of effective public education campaigns aimed at the prevention of HIV/AIDS transmission and infection, and to improve their health care infrastructure to promote improved access to quality health care for their citizens in general, and particularly with respect to the HIV/AIDS epidemic;
(5) an effective United States response to the crisis in sub-Saharan Africa must focus in the short term on preventive programs designed to reduce the frequency of new infections and remove the stigma of the disease, and should place a priority on basic health services that can be used to treat opportunistic infections, sexually transmitted infections, and complications associated with HIV/AIDS so as to prolong the duration and improve the quality of life of those with the disease;
(6) an effective United States response to the crisis must also focus on the development of HIV/AIDS vaccines to prevent the spread of the disease;
(7) the innovative capacity of the United States in the commercial and public pharmaceutical research sectors is unmatched in the world, and the participation of both these sectors will be a critical element in any successful program to respond to the HIV/AIDS crisis in sub-Saharan Africa;
(8) the TRIPS Agreement recognizes the importance of promoting effective and adequate protection of intellectual property rights and the right of countries to adopt measures necessary to protect public health;
(9) individual countries should have the ability to take measures to address the HIV/AIDS epidemic, provided that such measures are consistent with their international obligations; and
(10) successful initiatives will require effective partnerships and cooperation among governments, international organizations, nongovernmental organizations, and the private sector, and greater consideration should be given to financial, legal, and other incentives that will promote improved prevention and treatment actions.
(b) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not create, any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
William J. Clinton.
1 See References in Text note below.
§2412. Initiation of investigations
(a) Petitions
(1) Any interested person may file a petition with the Trade Representative requesting that action be taken under
(2) The Trade Representative shall review the allegations in any petition filed under paragraph (1) and, not later than 45 days after the date on which the Trade Representative received the petition, shall determine whether to initiate an investigation.
(3) If the Trade Representative determines not to initiate an investigation with respect to a petition, the Trade Representative shall inform the petitioner of the reasons therefor and shall publish notice of the determination, together with a summary of such reasons, in the Federal Register.
(4) If the Trade Representative makes an affirmative determination under paragraph (2) with respect to a petition, the Trade Representative shall initiate an investigation regarding the issues raised in the petition. The Trade Representative shall publish a summary of the petition in the Federal Register and shall, as soon as possible, provide opportunity for the presentation of views concerning the issues, including a public hearing—
(A) within the 30-day period beginning on the date of the affirmative determination (or on a date after such period if agreed to by the petitioner) if a public hearing within such period is requested in the petition, or
(B) at such other time if a timely request therefor is made by the petitioner or by any interested person.
(b) Initiation of investigation by means other than petition
(1)(A) If the Trade Representative determines that an investigation should be initiated under this subchapter with respect to any matter in order to determine whether the matter is actionable under
(B) The Trade Representative shall, before making any determination under subparagraph (A), consult with appropriate committees established pursuant to
(2)(A) By no later than the date that is 30 days after the date on which a country is identified under
(i) was the basis for such identification, and
(ii) is not at that time the subject of any other investigation or action under this subchapter.
(B) The Trade Representative is not required under subparagraph (A) to initiate an investigation under this subchapter with respect to any act, policy, or practice of a foreign country if the Trade Representative determines that the initiation of the investigation would be detrimental to United States economic interests.
(C) If the Trade Representative makes a determination under subparagraph (B) not to initiate an investigation, the Trade Representative shall submit to the Congress a written report setting forth, in detail—
(i) the reasons for the determination, and
(ii) the United States economic interests that would be adversely affected by the investigation.
(D) The Trade Representative shall, from time to time, consult with the Register of Copyrights, the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, and other appropriate officers of the Federal Government, during any investigation initiated under this subchapter by reason of subparagraph (A).
(c) Discretion
In determining whether to initiate an investigation under subsection (a) or (b) of any act, policy, or practice that is enumerated in any provision of
(
Editorial Notes
Prior Provisions
A prior section 302 of
Amendments
1999—Subsec. (b)(2)(D).
1988—
1984—
Statutory Notes and Related Subsidiaries
Effective Date of 1999 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
§2413. Consultation upon initiation of investigation
(a) In general
(1) On the date on which an investigation is initiated under
(2) If the investigation initiated under
(A) the close of the consultation period, if any, specified in the trade agreement, or
(B) the 150th day after the day on which consultation was commenced,
the Trade Representative shall promptly request proceedings on the matter under the formal dispute settlement procedures provided under such agreement.
(3) The Trade Representative shall seek information and advice from the petitioner (if any) and the appropriate committees established pursuant to
(b) Delay of request for consultations
(1) Notwithstanding the provisions of subsection (a)—
(A) the United States Trade Representative may, after consulting with the petitioner (if any), delay for up to 90 days any request for consultations under subsection (a) for the purpose of verifying or improving the petition to ensure an adequate basis for consultation, and
(B) if such consultations are delayed by reason of subparagraph (A), each time limitation under
(2) The Trade Representative shall—
(A) publish notice of any delay under paragraph (1) in the Federal Register, and
(B) report to Congress on the reasons for such delay in the report required under
(
Editorial Notes
Amendments
1988—
1984—Subsec. (a).
Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Amendment by
§2414. Determinations by Trade Representative
(a) In general
(1) On the basis of the investigation initiated under
(A) determine whether—
(i) the rights to which the United States is entitled under any trade agreement are being denied, or
(ii) any act, policy, or practice described in subsection (a)(1)(B) or (b)(1) of
(B) if the determination made under subparagraph (A) is affirmative, determine what action, if any, the Trade Representative should take under subsection (a) or (b) of
(2) The Trade Representative shall make the determinations required under paragraph (1) on or before—
(A) in the case of an investigation involving a trade agreement, except an investigation initiated pursuant to
(i) the date that is 30 days after the date on which the dispute settlement procedure is concluded, or
(ii) the date that is 18 months after the date on which the investigation is initiated, or
(B) in all cases not described in subparagraph (A) or paragraph (3), the date that is 12 months after the date on which the investigation is initiated.
(3)(A) If an investigation is initiated under this subchapter by reason of
(i) the Trade Representative considers that rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights or the GATT 1994 relating to products subject to intellectual property protection are involved, the Trade Representative shall make the determination required under paragraph (1) not later than 30 days after the date on which the dispute settlement procedure is concluded; or
(ii) the Trade Representative does not consider that a trade agreement, including the Agreement on Trade-Related Aspects of Intellectual Property Rights, is involved or does not make a determination described in subparagraph (B) with respect to such investigation, the Trade Representative shall make the determinations required under paragraph (1) with respect to such investigation not later than the date that is 6 months after the date on which such investigation is initiated.
(B) If the Trade Representative determines with respect to an investigation initiated by reason of
(i) complex or complicated issues are involved in the investigation that require additional time,
(ii) the foreign country involved in the investigation is making substantial progress in drafting or implementing legislative or administrative measures that will provide adequate and effective protection of intellectual property rights, or
(iii) such foreign country is undertaking enforcement measures to provide adequate and effective protection of intellectual property rights,
the Trade Representative shall publish in the Federal Register notice of such determination and shall make the determinations required under paragraph (1) with respect to such investigation by no later than the date that is 9 months after the date on which such investigation is initiated.
(4) In any case in which a dispute is not resolved before the close of the minimum dispute settlement period provided for in a trade agreement, the Trade Representative, within 15 days after the close of such dispute settlement period, shall submit a report to Congress setting forth the reasons why the dispute was not resolved within the minimum dispute settlement period, the status of the case at the close of the period, and the prospects for resolution. For purposes of this paragraph, the minimum dispute settlement period provided for under any such trade agreement is the total period of time that results if all stages of the formal dispute settlement procedures are carried out within the time limitations specified in the agreement, but computed without regard to any extension authorized under the agreement at any stage.
(b) Consultation before determinations
(1) Before making the determinations required under subsection (a)(1), the Trade Representative, unless expeditious action is required—
(A) shall provide an opportunity (after giving not less than 30 days notice thereof) for the presentation of views by interested persons, including a public hearing if requested by any interested person,
(B) shall obtain advice from the appropriate committees established pursuant to
(C) may request the views of the United States International Trade Commission regarding the probable impact on the economy of the United States of the taking of action with respect to any goods or service.
(2) If the Trade Representative does not comply with the requirements of subparagraphs (A) and (B) of paragraph (1) because expeditious action is required, the Trade Representative shall, after making the determinations under subsection (a)(1), comply with such subparagraphs.
(c) Publication
The Trade Representative shall publish in the Federal Register any determination made under subsection (a)(1), together with a description of the facts on which such determination is based.
(
Editorial Notes
Amendments
2004—Subsec. (a)(2)(A).
Subsec. (a)(3)(A).
1996—Subsec. (a)(3)(A).
1994—Subsec. (a)(2)(A).
Subsec. (a)(3)(A).
Subsec. (a)(3)(B).
Subsec. (a)(4).
1988—
1984—Subsec. (a)(1).
Subsec. (b)(2).
Statutory Notes and Related Subsidiaries
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
§2415. Implementation of actions
(a) Actions to be taken under section 2411
(1) Except as provided in paragraph (2), the Trade Representative shall implement the action the Trade Representative determines under
(2)(A) Except as otherwise provided in this paragraph, the Trade Representative may delay, by not more than 180 days, the implementation of any action that is to be taken under
(i) if—
(I) in the case of an investigation initiated under
(II) in the case of an investigation initiated under
(ii) if the Trade Representative determines that substantial progress is being made, or that a delay is necessary or desirable, to obtain United States rights or a satisfactory solution with respect to the acts, policies, or practices that are the subject of the action.
(B) The Trade Representative may not delay under subparagraph (A) the implementation of any action that is to be taken under
(C) The Trade Representative may not delay under subparagraph (A) the implementation of any action that is to be taken under
(b) Alternative actions in certain cases of export targeting
(1) If the Trade Representative makes an affirmative determination under
(A) shall establish an advisory panel to recommend measures which will promote the competitiveness of the domestic industry affected by the export targeting,
(B) on the basis of the report of such panel submitted under paragraph (2)(B) and subject to the specific direction, if any, of the President, may take any administrative actions authorized under any other provision of law, and, if necessary, propose legislation to implement any other actions, that would restore or improve the international competitiveness of the domestic industry affected by the export targeting, and
(C) shall, by no later than the date that is 30 days after the date on which the report of such panel is submitted under paragraph (2)(B), submit a report to the Congress on the administrative actions taken, and legislative proposals made, under subparagraph (B) with respect to the domestic industry affected by the export targeting.
(2)(A) The advisory panels established under paragraph (1)(A) shall consist of individuals appointed by the Trade Representative who—
(i) earn their livelihood in the private sector of the economy, including individuals who represent management and labor in the domestic industry affected by the export targeting that is the subject of the affirmative determination made under
(ii) by education or experience, are qualified to serve on the advisory panel.
(B) By no later than the date that is 6 months after the date on which an advisory panel is established under paragraph (1)(A), the advisory panel shall submit to the Trade Representative and to the Congress a report on measures that the advisory panel recommends be taken by the United States to promote the competitiveness of the domestic industry affected by the export targeting that is the subject of the affirmative determination made under
(
Editorial Notes
Amendments
2004—Subsec. (a)(2)(B).
1988—
1984—Subsec. (c).
Statutory Notes and Related Subsidiaries
Effective Date of 1988 Amendment
Amendment by
§2416. Monitoring of foreign compliance
(a) In general
The Trade Representative shall monitor the implementation of each measure undertaken, or agreement that is entered into, by a foreign country to provide a satisfactory resolution of a matter subject to investigation under this subchapter or subject to dispute settlement proceedings to enforce the rights of the United States under a trade agreement providing for such proceedings.
(b) Action on the basis of monitoring
(1) In general
If, on the basis of the monitoring carried out under subsection (a), the Trade Representative considers that a foreign country is not satisfactorily implementing a measure or agreement referred to in subsection (a), the Trade Representative shall determine what further action the Trade Representative shall take under
(2) WTO dispute settlement recommendations
(A) Failure to implement recommendation
If the measure or agreement referred to in subsection (a) concerns the implementation of a recommendation made pursuant to dispute settlement proceedings under the World Trade Organization, and the Trade Representative considers that the foreign country has failed to implement it, the Trade Representative shall make the determination in paragraph (1) no later than 30 days after the expiration of the reasonable period of time provided for such implementation under paragraph 21 of the Understanding on Rules and Procedures Governing the Settlement of Disputes that is referred to in
(B) Revision of retaliation list and action
(i) In general
Except as provided in clause (ii), in the event that the United States initiates a retaliation list or takes any other action described in section 2411(c)(1)(A) or (B) of this title against the goods of a foreign country or countries because of the failure of such country or countries to implement the recommendation made pursuant to a dispute settlement proceeding under the World Trade Organization, the Trade Representative shall periodically revise the list or action to affect other goods of the country or countries that have failed to implement the recommendation.
(ii) Exception
The Trade Representative is not required to revise the retaliation list or the action described in clause (i) with respect to a country, if—
(I) the Trade Representative determines that implementation of a recommendation made pursuant to a dispute settlement proceeding described in clause (i) by the country is imminent; or
(II) the Trade Representative together with the petitioner involved in the initial investigation under this subchapter (or if no petition was filed, the affected United States industry) agree that it is unnecessary to revise the retaliation list.
(C) Schedule for revising list or action
The Trade Representative shall, 120 days after the date the retaliation list or other section 2411(a) action is first taken, and every 180 days thereafter, review the list or action taken and revise, in whole or in part, the list or action to affect other goods of the subject country or countries.
(D) Standards for revising list or action
In revising any list or action against a country or countries under this subsection, the Trade Representative shall act in a manner that is most likely to result in the country or countries implementing the recommendations adopted in the dispute settlement proceeding or in achieving a mutually satisfactory solution to the issue that gave rise to the dispute settlement proceeding. The Trade Representative shall consult with the petitioner, if any, involved in the initial investigation under this subchapter.
(E) Retaliation list
The term "retaliation list" means the list of products of a foreign country or countries that have failed to comply with the report of the panel or Appellate Body of the WTO and with respect to which the Trade Representative is imposing duties above the level that would otherwise be imposed under the Harmonized Tariff Schedule of the United States.
(F) Requirement to include reciprocal goods on retaliation list
The Trade Representative shall include on the retaliation list, and on any revised lists, reciprocal goods of the industries affected by the failure of the foreign country or countries to implement the recommendation made pursuant to a dispute settlement proceeding under the World Trade Organization, except in cases where existing retaliation and its corresponding preliminary retaliation list do not already meet this requirement.
(c) Exercise of WTO authorization to suspend concessions or other obligations
If—
(1) action has terminated pursuant to
(2) the petitioner or any representative of the domestic industry that would benefit from reinstatement of action has submitted to the Trade Representative a written request for reinstatement of action, and
(3) the Trade Representatives 1 has completed the requirements of subsection (d) and
the Trade Representative may at any time determine to take action under
(d) Consultations
Before making any determination under subsection (b) or (c), the Trade Representative shall—
(1) consult with the petitioner, if any, involved in the initial investigation under this subchapter and with representatives of the domestic industry concerned; and
(2) provide an opportunity for the presentation of views by interested persons.
(
Editorial Notes
References in Text
The Harmonized Tariff Schedule of the United States, referred to in subsec. (b)(2)(E), is not set out in the Code. See Publication of Harmonized Tariff Schedule note set out under
Amendments
2016—Subsec. (b).
Subsec. (c).
Subsec. (d).
2000—Subsec. (b)(2).
1996—Subsec. (b)(1).
1994—Subsecs. (a), (b).
"(a)
"(1) to enforce the rights of the United States under any trade agreement, or
"(2) to eliminate any act, policy, or practice described in subsection (a)(1)(B) or (b)(1) of
"(b)
1988—
Statutory Notes and Related Subsidiaries
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1988 Amendment
Amendment by
1 So in original. Probably should be "Representative".
§2417. Modification and termination of actions
(a) In general
(1) The Trade Representative may modify or terminate any action, subject to the specific direction, if any, of the President with respect to such action, that is being taken under
(A) any of the conditions described in
(B) the burden or restriction on United States commerce of the denial rights, or of the acts, policies, and practices, that are the subject of such action has increased or decreased, or
(C) such action is being taken under
(2) Before taking any action under paragraph (1) to modify or terminate any action taken under
(b) Notice; report to Congress
The Trade Representative shall promptly publish in the Federal Register notice of, and report in writing to the Congress with respect to, any modification or termination of any action taken under
(c) Review of necessity
(1) If—
(A) a particular action has been taken under
(B) neither the petitioner nor any representative of the domestic industry which benefits from such action has submitted to the Trade Representative during the last 60 days of such 4-year period a written request for the continuation of such action,
such action shall terminate at the close of such 4-year period.
(2) The Trade Representative shall notify by mail the petitioner and representatives of the domestic industry described in paragraph (1)(B) of any termination of action by reason of paragraph (1) at least 60 days before the date of such termination.
(3) If a request is submitted to the Trade Representative under paragraph (1)(B) to continue taking a particular action under
(A) the effectiveness in achieving the objectives of
(i) such action, and
(ii) other actions that could be taken (including actions against other products or services), and
(B) the effects of such actions on the United States economy, including consumers.
(
Editorial Notes
Amendments
2016—Subsec. (c)(3).
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to petitions filed, and investigations initiated, under
§2418. Request for information
(a) In general
Upon receipt of written request therefor from any person, the Trade Representative shall make available to that person information (other than that to which confidentiality applies) concerning—
(1) the nature and extent of a specific trade policy or practice of a foreign country with respect to particular goods, services, investment, or intellectual property rights, to the extent that such information is available to the Trade Representative or other Federal agencies;
(2) United States rights under any trade agreement and the remedies which may be available under that agreement and under the laws of the United States; and
(3) past and present domestic and international proceedings or actions with respect to the policy or practice concerned.
(b) If information not available
If information that is requested by a person under subsection (a) is not available to the Trade Representative or other Federal agencies, the Trade Representative shall, within 30 days after receipt of the request—
(1) request the information from the foreign government; or
(2) decline to request the information and inform the person in writing of the reasons for refusal.
(c) Certain business information not made available
(1) Except as provided in paragraph (2), and notwithstanding any other provision of law (including
(A) the person providing such information certifies that—
(i) such information is business confidential,
(ii) the disclosure of such information would endanger trade secrets or profitability, and
(iii) such information is not generally available;
(B) the Trade Representative determines that such certification is well-founded; and
(C) to the extent required in regulations prescribed by the Trade Representative, the person providing such information provides an adequate nonconfidential summary of such information.
(2) The Trade Representative may—
(A) use such information, or make such information available (in his own discretion) to any employee of the Federal Government for use, in any investigation under this subchapter, or
(B) may make such information available to any other person in a form which cannot be associated with, or otherwise identify, the person providing the information.
(
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to petitions filed, and investigations initiated, under
§2419. Administration
The Trade Representative shall—
(1) issue regulations concerning the filing of petitions and the conduct of investigations and hearings under this subchapter,
(2) keep the petitioner regularly informed of all determinations and developments regarding the investigation conducted with respect to the petition under this subchapter, including the reasons for any undue delays, and
(3) submit a report to the House of Representatives and the Senate semiannually describing—
(A) the petitions filed and the determinations made (and reasons therefor) under
(B) developments in, and the current status of, each investigation or proceeding under this subchapter,
(C) the actions taken, or the reasons for no action, by the Trade Representative under
(D) the commercial effects of actions taken under
(
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to petitions filed, and investigations initiated, under
§2420. Trade enforcement priorities
(a) Trade enforcement priorities, consultations, and report
(1) Trade enforcement priorities consultations
Not later than May 31 of each calendar year that begins after February 24, 2016, the United States Trade Representative (in this section referred to as the "Trade Representative") shall consult with the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives with respect to the prioritization of acts, policies, or practices of foreign governments that raise concerns with respect to obligations under the WTO Agreements or any other trade agreement to which the United States is a party, or otherwise create or maintain barriers to United States goods, services, or investment.
(2) Identification of trade enforcement priorities
In identifying acts, policies, or practices of foreign governments as trade enforcement priorities under this subsection, the Trade Representative shall focus on those acts, policies, and practices the elimination of which is likely to have the most significant potential to increase United States economic growth, and take into account all relevant factors, including—
(A) the economic significance of any potential inconsistency between an obligation assumed by a foreign government pursuant to a trade agreement to which both the foreign government and the United States are parties and the acts, policies, or practices of that government;
(B) the impact of the acts, policies, or practices of a foreign government on maintaining and creating United States jobs and productive capacity;
(C) the major barriers and trade distorting practices described in the most recent National Trade Estimate required under
(D) the major barriers and trade distorting practices described in other relevant reports addressing international trade and investment barriers prepared by a Federal agency or congressional commission during the 12 months preceding the date of the most recent report under paragraph (3);
(E) a foreign government's compliance with its obligations under any trade agreements to which both the foreign government and the United States are parties;
(F) the implications of a foreign government's procurement plans and policies; and
(G) the international competitive position and export potential of United States products and services.
(3) Report on trade enforcement priorities and actions taken to address
(A) In general
Not later than July 31 of each calendar year that begins after February 24, 2016, the Trade Representative shall report to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives on acts, policies, or practices of foreign governments identified as trade enforcement priorities based on the consultations under paragraph (1) and the criteria set forth in paragraph (2).
(B) Report in subsequent years
The Trade Representative shall include, when reporting under subparagraph (A) in any calendar year after the calendar year that begins after February 24, 2016, a description of actions taken to address any acts, policies, or practices of foreign governments identified as trade enforcement priorities under this subsection in the calendar year preceding that report and, as relevant, any calendar year before that calendar year.
(b) Semiannual enforcement consultations
(1) In general
At the same time as the reporting under subsection (a)(3), and not later than January 31 of each following year, the Trade Representative shall consult with the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives with respect to the identification, prioritization, investigation, and resolution of acts, policies, or practices of foreign governments of concern with respect to obligations under the WTO Agreements or any other trade agreement to which the United States is a party, or that otherwise create or maintain trade barriers.
(2) Acts, policies, or practices of concern
The semiannual enforcement consultations required by paragraph (1) shall address acts, policies, or practices of foreign governments that raise concerns with respect to obligations under the WTO Agreements or any other trade agreement to which the United States is a party, or otherwise create or maintain trade barriers, including—
(A) engagement with relevant trading partners;
(B) strategies for addressing such concerns;
(C) availability and deployment of resources to be used in the investigation or resolution of such concerns;
(D) the merits of any potential dispute resolution proceeding under the WTO Agreements or any other trade agreement to which the United States is a party relating to such concerns; and
(E) any other aspects of such concerns.
(3) Active investigations
The semiannual enforcement consultations required by paragraph (1) shall address acts, policies, or practices that the Trade Representative is actively investigating with respect to obligations under the WTO Agreements or any other trade agreement to which the United States is a party, including—
(A) strategies for addressing concerns raised by such acts, policies, or practices;
(B) any relevant timeline with respect to investigation of such acts, policies, or practices;
(C) the merits of any potential dispute resolution proceeding under the WTO Agreements or any other trade agreement to which the United States is a party with respect to such acts, policies, or practices;
(D) barriers to the advancement of the investigation of such acts, policies, or practices; and
(E) any other matters relating to the investigation of such acts, policies, or practices.
(4) Ongoing enforcement actions
The semiannual enforcement consultations required by paragraph (1) shall address all ongoing enforcement actions taken by or against the United States with respect to obligations under the WTO Agreements or any other trade agreement to which the United States is a party, including—
(A) any relevant timeline with respect to such actions;
(B) the merits of such actions;
(C) any prospective implementation actions;
(D) potential implications for any law or regulation of the United States;
(E) potential implications for United States stakeholders, domestic competitors, and exporters; and
(F) other issues relating to such actions.
(5) Enforcement resources
The semiannual enforcement consultations required by paragraph (1) shall address the availability and deployment of enforcement resources, resource constraints on monitoring and enforcement activities, and strategies to address those constraints, including the use of available resources of other Federal agencies to enhance monitoring and enforcement capabilities.
(c) Investigation and resolution
In the case of any acts, policies, or practices of a foreign government identified as a trade enforcement priority under subsection (a), the Trade Representative shall, not later than the date of the first semiannual enforcement consultations held under subsection (b) after the identification of the priority, take appropriate action to address that priority, including—
(1) engagement with the foreign government to resolve concerns raised by such acts, policies, or practices;
(2) initiation of an investigation under
(3) initiation of negotiations for a bilateral agreement that provides for resolution of concerns raised by such acts, policies, or practices; or
(4) initiation of dispute settlement proceedings under the WTO Agreements or any other trade agreement to which the United States is a party with respect to such acts, policies, or practices.
(d) Enforcement notifications and consultation
(1) Initiation of enforcement action
The Trade Representative shall notify and consult with the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives in advance of the initiation of any formal trade dispute by or against the United States taken in regard to an obligation under the WTO Agreements or any other trade agreement to which the United States is a party. With respect to a formal trade dispute against the United States, if advance notification and consultation are not possible, the Trade Representative shall notify and consult at the earliest practicable opportunity after initiation of the dispute.
(2) Circulation of reports
The Trade Representative shall notify and consult with the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives in advance of the announced or anticipated circulation of any report of a dispute settlement panel or the Appellate Body of the World Trade Organization or of a dispute settlement panel under any other trade agreement to which the United States is a party with respect to a formal trade dispute by or against the United States.
(e) Definitions
In this section:
(1) WTO
The term "WTO" means the World Trade Organization.
(2) WTO agreement
The term "WTO Agreement" has the meaning given that term in
(3) WTO agreements
The term "WTO Agreements" means the WTO Agreement and agreements annexed to that Agreement.
(
Editorial Notes
Amendments
2016—
1994—
Executive Documents
Ex. Ord. No. 12901. Identification of Trade Expansion Priorities
Ex. Ord. No. 12901, Mar. 3, 1994, 59 F.R. 10727, as amended by Ex. Ord. No. 12973, Sept. 27, 1995, 60 F.R. 51665, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 141 and 301–310 of the Trade Act of 1974, as amended (the "Act") (
(b) In identifying priority foreign country practices under paragraph (a) of this section, the Trade Representative shall take into account all relevant factors, including:
(1) the major barriers and trade distorting practices described in the National Trade Estimate Report;
(2) the trade agreements to which a foreign country is a party and its compliance with those agreements;
(3) the medium-term and long-term implications of foreign government procurement plans; and
(4) the international competitive position and export potential of United States products and services.
(c) The Trade Representative may include in the report, if appropriate, a description of the foreign country practices that may in the future warrant identification as priority foreign country practices. The Trade Representative also may include a statement about other foreign country practices that were not identified because they are already being addressed by provisions of United States trade law, existing bilateral trade agreements, or in trade negotiations with other countries and progress is being made toward their elimination.
William J. Clinton.
Ex. Ord. No. 13116. Identification of Trade Expansion Priorities and Discriminatory Procurement Practices
Ex. Ord. No. 13116, Mar. 31, 1999, 64 F.R. 16333, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including title III of the Act of March 3, 1993 [1933], as amended ([former] 41 U.S.C. 10d) [see
Part I: Identification of Trade Expansion Priorities
(b) In identifying priority foreign country practices under paragraph (a) of this section, the Trade Representative shall take into account all relevant factors, including:
(1) the major barriers and trade distorting practices described in the National Trade Estimate Report;
(2) the trade agreements to which a foreign country is a party and its compliance with those agreements;
(3) the medium-term and long-term implications of foreign government procurement plans; and
(4) the international competitive position and export potential of United States products and services.
(c) The Trade Representative may include in the report, if appropriate, a description of the foreign country practices that may in the future warrant identification as priority foreign country practices. The Trade Representative also may include a statement about other foreign country practices that were not identified because they are already being addressed by provisions of United States trade law, existing bilateral trade agreements, or in trade negotiations with other countries and progress is being made toward their elimination.
Part II: Identification of Discriminatory Government Procurement Practices
(b) In the report, the Trade Representative shall identify countries that:
(1) are not in compliance with their obligations under the World Trade Organization Agreement on Government Procurement (the GPA),
(2) maintain, in government procurement, a significant and persistent pattern or practice of discrimination against U.S. products or services that results in identifiable harm to U.S. businesses and whose products or services are acquired in significant amounts by the United States Government.
(b) take into account, among other factors, whether and to what extent countries that are parties to the GPA, NAFTA, or other procurement agreements, and other countries described in section 1 of this part:
(1) use sole-sourcing or otherwise noncompetitive procedures for procurement that could have been conducted using competitive procedures;
(2) conduct what normally would have been one procurement as two or more procurements, to decrease the anticipated contract values below the value threshold of the GPA, NAFTA, or other procurement agreements, or to make the procurement less attractive to U.S. businesses;
(3) announce procurement opportunities with inadequate time intervals for U.S. businesses to submit bids; and
(4) use specifications in such a way as to limit the ability of U.S. suppliers to participate in procurements; and
(c) consider information included in the National Trade Estimate Report, and any other additional criteria deemed appropriate, including, to the extent such information is available, the failure to apply transparent and competitive procedures or maintain and enforce effective prohibitions on bribery and other corrupt practices in connection with government procurement.
(1) was the basis for the identification of a country under section 1; and
(2) is not at that time the subject of any other investigation or action under title III,
unless during the 90-day period the Trade Representative determines that a satisfactory resolution of the matter to be investigated has been achieved.
(b) For investigations initiated under paragraph (a) of this section (other than an investigation involving the GPA or NAFTA), the Trade Representative shall apply the time limits and procedures in section 304(a)(3) of the Act (
(1) complex or complicated issues are involved in the investigation that require additional time;
(2) the foreign country involved in the investigation is making substantial progress in drafting or implementing legislative or administrative measures that will end the discriminatory procurement practice; or
(3) such foreign country is undertaking enforcement measures to end the discriminatory procurement practice.
Part III: Direction
William J. Clinton.