19 U.S.C. § 2242 — Identification of countries that deny ade-

Page 556 TITLE 19—CUSTOMS DUTIES § 2242 [amending this section and enacting provisions set out under this section] shall be construed to expand the duty of any person to collect or pay taxes beyond that which existed immediately before the date of the enact- ment of this Act [Oct. 21, 1998].’’ Pub. L. 105–277, div. C, title XII, § 1205, Oct. 21, 1998, 112 Stat. 2681–728, provided that: ‘‘Nothing in this title [amending this section and enacting provisions set out under this section] shall limit or otherwise affect the implementation of the Telecommunications Act of 1996 (Public Law 104–104) [see Short Title of 1996 Amend- ment note set out under section 609 of Title 47, Tele- communications] or the amendments made by such Act.’’ DECLARATION THAT THE INTERNET SHOULD BE FREE OF FOREIGN TARIFFS, TRADE BARRIERS, AND OTHER RE- STRICTIONS Pub. L. 105–277, div. C, title XII, § 1203, Oct. 21, 1998, 112 Stat. 2681–727, provided that: ‘‘(a) IN GENERAL.—It is the sense of Congress that the President should seek bilateral, regional, and multilat- eral agreements to remove barriers to global electronic commerce through the World Trade Organization, the Organization for Economic Cooperation and Develop- ment, the Trans-Atlantic Economic Partnership, the Asia Pacific Economic Cooperation forum, the Free Trade Area of the America, the North American Free Trade Agreement, and other appropriate venues. ‘‘(b) NEGOTIATING OBJECTIVES.—The negotiating ob- jectives of the United States shall be— ‘‘(1) to assure that electronic commerce is free from— ‘‘(A) tariff and nontariff barriers; ‘‘(B) burdensome and discriminatory regulation and standards; and ‘‘(C) discriminatory taxation; and ‘‘(2) to accelerate the growth of electronic com- merce by expanding market access opportunities for— ‘‘(A) the development of telecommunications in- frastructure; ‘‘(B) the procurement of telecommunications equipment; ‘‘(C) the provision of Internet access and tele- communications services; and ‘‘(D) the exchange of goods, services, and digi- talized information. ‘‘(c) ELECTRONIC COMMERCE.—For purposes of this sec- tion, the term ‘electronic commerce’ has the meaning given that term in section 1104(3) [probably means Pub. L. 105–277, div. C, title XI, § 1105(3), set out in a note under section 151 of Title 47, Telecommunications].’’ § 2242. Identification of countries that deny ade- quate protection, or market access, for intel- lectual property rights (a) In general By no later than the date that is 30 days after the date on which the annual report is sub- mitted to Congressional committees under sec- tion 2241(b) of this title, the United States Trade Representative (hereafter in this section re- ferred to as the ‘‘Trade Representative’’) shall identify— (1) those foreign countries that— (A) deny adequate and effective protection of intellectual property rights, or (B) deny fair and equitable market access to United States persons that rely upon in- tellectual property protection, and (2) those foreign countries identified under paragraph (1) that are determined by the Trade Representative to be priority foreign countries. (b) Special rules for identifications (1) In identifying priority foreign countries under subsection (a)(2), the Trade Representa- tive shall only identify those foreign countries— (A) that have the most onerous or egregious acts, policies, or practices that— (i) deny adequate and effective intellectual property rights, or (ii) deny fair and equitable market access to United States persons that rely upon in- tellectual property protection, (B) whose acts, policies, or practices de- scribed in subparagraph (A) have the greatest adverse impact (actual or potential) on the relevant United States products, and (C) that are not— (i) entering into good faith negotiations, or (ii) making significant progress in bilat- eral or multilateral negotiations, to provide adequate and effective protection of intellectual property rights. (2) In identifying priority foreign countries under subsection (a)(2), the Trade Representa- tive shall— (A) consult with the Register of Copyrights, the Under Secretary of Commerce for Intellec- tual Property and Director of the United States Patent and Trademark Office, other ap- propriate officers of the Federal Government, and (B) take into account information from such sources as may be available to the Trade Rep- resentative and such information as may be submitted to the Trade Representative by in- terested persons, including information con- tained in reports submitted under section 2241(b) of this title and petitions submitted under section 2412 of this title. (3) The Trade Representative may identify a foreign country under subsection (a)(1)(B) only if the Trade Representative finds that there is a factual basis for the denial of fair and equitable market access as a result of the violation of international law or agreement, or the existence of barriers, referred to in subsection (d)(3). (4) In identifying foreign countries under para- graphs (1) and (2) of subsection (a), the Trade Representative shall take into account— (A) the history of intellectual property laws and practices of the foreign country, including any previous identification under subsection (a)(2), and (B) the history of efforts of the United States, and the response of the foreign coun- try, to achieve adequate and effective protec- tion and enforcement of intellectual property rights. (c) Revocations and additional identifications (1) The Trade Representative may at any time— (A) revoke the identification of any foreign country as a priority foreign country under this section, or (B) identify any foreign country as a priority foreign country under this section, if information available to the Trade Represent- ative indicates that such action is appropriate. Page 557 TITLE 19—CUSTOMS DUTIES § 2242 (2) The Trade Representative shall include in the semiannual report submitted to the Con- gress under section 2419(3) of this title a detailed explanation of the reasons for the revocation under paragraph (1) of the identification of any foreign country as a priority foreign country under this section. (d) Definitions For purposes of this section— (1) The term ‘‘persons that rely upon intel- lectual property protection’’ means persons involved in— (A) the creation, production or licensing of works of authorship (within the meaning of sections 102 and 103 of title 17) that are copy- righted, or (B) the manufacture of products that are patented or for which there are process pat- ents. (2) A foreign country denies adequate and ef- fective protection of intellectual property rights if the foreign country denies adequate and effective means under the laws of the for- eign country for persons who are not citizens or nationals of such foreign country to secure, exercise, and enforce rights relating to pat- ents, process patents, registered trademarks, copyrights, trade secrets, and mask works. (3) A foreign country denies fair and equi- table market access if the foreign country ef- fectively denies access to a market for a prod- uct protected by a copyright or related right, patent, trademark, mask work, trade secret, or plant breeder’s right, through the use of laws, procedures, practices, or regulations which— (A) violate provisions of international law or international agreements to which both the United States and the foreign country are parties, or (B) constitute discriminatory nontariff trade barriers. (4) A foreign country may be determined to deny adequate and effective protection of in- tellectual 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 Intel- lectual Property Rights referred to in section 3511(d)(15) of this title. (e) Publication The Trade Representative shall publish in the Federal Register a list of foreign countries iden- tified under subsection (a) and shall make such revisions to the list as may be required by rea- son of action under subsection (c). (f) Special rule for actions affecting United States cultural industries (1) In general By no later than the date that is 30 days after the date on which the annual report is submitted to Congressional committees under section 2241(b) of this title, the Trade Rep- resentative shall identify any act, policy, or practice of Canada which— (A) affects cultural industries, (B) is adopted or expanded after December 17, 1992, and (C) is actionable under article 32.6 of the USMCA (as defined in section 4502 of this title). (2) Special rules for identifications For purposes of section 2412(b)(2)(A) of this title, an act, policy, or practice identified under this subsection shall be treated as an act, policy, or practice that is the basis for identification of a country under subsection (a)(2), unless the United States has already taken action pursuant to article 32.6 of the USMCA in response to such act, policy, or practice. In deciding whether to identify an act, policy, or practice under paragraph (1), the Trade Representative shall— (A) consult with and take into account the views of representatives of the relevant do- mestic industries, appropriate committees established pursuant to section 2155 of this title, and appropriate officers of the Federal Government, and (B) take into account the information from such sources as may be available to the Trade Representative and such information as may be submitted to the Trade Represent- ative by interested persons, including infor- mation contained in reports submitted under section 2241(b) of this title. (3) Cultural industries For purposes of this subsection, the term ‘‘cultural industries’’ means persons engaged in any of the following activities: (A) The publication, distribution, or sale of books, magazines, periodicals, or news- papers in print or machine readable form but not including the sole activity of printing or typesetting any of the foregoing. (B) The production, distribution, sale, or exhibition of film or video recordings. (C) The production, distribution, sale, or exhibition of audio or video music record- ings. (D) The publication, distribution, or sale of music in print or machine readable form. (E) Radio communications in which the transmissions are intended for direct recep- tion by the general public, and all radio, tel- evision, and cable broadcasting under- takings and all satellite programming and broadcast network services. (g) Special rules for foreign countries on the pri- ority watch list (1) Action plans (A) In general Not later than 90 days after the date on which the Trade Representative submits the National Trade Estimate under section 2241(b) of this title, the Trade Representa- tive shall develop an action plan described in subparagraph (C) with respect to each for- eign country described in subparagraph (B). (B) Foreign country described The Trade Representative shall develop an action plan under subparagraph (A) with re- spect to each foreign country that— (i) the Trade Representative has identi- fied for placement on the priority watch list; and Page 558 TITLE 19—CUSTOMS DUTIES § 2242 (ii) has remained on such list for at least one year. (C) Action plan described An action plan developed under subpara- graph (A) shall contain the benchmarks de- scribed in subparagraph (D) and be designed to assist the foreign country— (i) to achieve— (I) adequate and effective protection of intellectual property rights; and (II) fair and equitable market access for United States persons that rely upon intellectual property protection; or (ii) to make significant progress toward achieving the goals described in clause (i). (D) Benchmarks described The benchmarks contained in an action plan developed pursuant to subparagraph (A) are such legislative, institutional, enforce- ment, or other actions as the Trade Rep- resentative determines to be necessary for the foreign country to achieve the goals de- scribed in clause (i) or (ii) of subparagraph (C). (2) Failure to meet action plan benchmarks If, as of one year after the date on which an action plan is developed under paragraph (1)(A), the President, in consultation with the Trade Representative, determines that the for- eign country to which the action plan applies has not substantially complied with the benchmarks described in paragraph (1)(D), the President may take appropriate action with respect to the foreign country. (3) Priority watch list defined In this subsection, the term ‘‘priority watch list’’ means the priority watch list established by the Trade Representative pursuant to sub- section (a). (h) Annual report Not later than 30 days after the date on which the Trade Representative submits the National Trade Estimate under section 2241(b) of this title, the Trade Representative shall submit to the Committee on Ways and Means of the House of Representatives and the Committee on Fi- nance of the Senate a report on actions taken under this section during the 12 months pre- ceding such report, and the reasons for such ac- tions, including— (1) a list of any foreign countries identified under subsection (a); (2) a description of progress made in achiev- ing improved intellectual property protection and market access for persons relying on in- tellectual property rights; and (3) a description of the action plans devel- oped under subsection (g) and any actions taken by foreign countries under such plans. (Pub. L. 93–618, title I, § 182, as added Pub. L. 100–418, title I, § 1303(b), Aug. 23, 1988, 102 Stat. 1179; amended Pub. L. 103–182, title V, § 513, Dec. 8, 1993, 107 Stat. 2156; Pub. L. 103–465, title III, § 313, Dec. 8, 1994, 108 Stat. 4938; Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(b)(8)], Nov. 29, 1999, 113 Stat. 1536, 1501A–584; Pub. L. 114–125, title VI, § 610(a), (b)(1), Feb. 24, 2016, 130 Stat. 191; Pub. L. 116–113, title V, § 506(a), Jan. 29, 2020, 134 Stat. 78.) Editorial Notes AMENDMENTS 2020—Subsec. (f)(1)(C). Pub. L. 116–113, § 506(a)(1), sub- stituted ‘‘article 32.6 of the USMCA (as defined in sec- tion 4502 of this title)’’ for ‘‘article 2106 of the North American Free Trade Agreement’’. Subsec. (f)(2). Pub. L. 116–113, § 506(a)(2), substituted ‘‘article 32.6 of the USMCA’’ for ‘‘article 2106 of the North American Free Trade Agreement’’ in introduc- tory provisions. 2016—Subsec. (d)(2). Pub. L. 114–125, § 610(a), inserted ‘‘, trade secrets,’’ after ‘‘copyrights’’. Subsecs. (g), (h). Pub. L. 114–125, § 610(b)(1), added sub- secs. (g) and (h) and struck out former subsec. (g). Prior to amendment, text of subsec. (g) read as follows: ‘‘The Trade Representative shall, by not later than the date by which countries are identified under subsection (a), transmit to the Committee on Ways and Means of the House of Representatives and the Committee on Fi- nance of the Senate, a report on actions taken under this section during the 12 months preceding such re- port, and the reasons for such actions, including a de- scription of progress made in achieving improved intel- lectual property protection and market access for per- sons relying on intellectual property rights.’’ 1999—Subsec. (b)(2)(A). Pub. L. 106–113 substituted ‘‘Under Secretary of Commerce for Intellectual Prop- erty and Director of the United States Patent and Trademark Office’’ for ‘‘Commissioner of Patents and Trademarks’’. 1994—Subsec. (b)(4). Pub. L. 103–465, § 313(1), added par. (4). Subsec. (d)(3). Pub. L. 103–465, § 313(2)(A), amended in- troductory provisions generally. Prior to amendment, introductory provisions read as follows: ‘‘A foreign country denies fair and equitable market access if the foreign country effectively denies access to a market for a product protected by a copyright, patent, or proc- ess patent through the use of laws, procedures, prac- tices, or regulations which—’’. Subsec. (d)(4). Pub. L. 103–465, § 313(2)(B), added par. (4). Subsec. (g). Pub. L. 103–465, § 313(3), added subsec. (g). 1993—Subsec. (f). Pub. L. 103–182 added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Pub. L. 116–113, title V, § 506(b), Jan. 29, 2020, 134 Stat. 78, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall take effect on the date on which the USMCA enters into force [July 1, 2020].’’ [For definition of ‘‘USMCA’’ as used in section 506(b) of Pub. L. 116–113, set out above, see section 4502 of this title.] EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, § 4731] of Pub. L. 106–113, set out as a note under section 1 of Title 35, Patents. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective on the date on which the WTO Agreement enters into force with re- spect to the United States (Jan. 1, 1995), see section 316 of Pub. L. 103–465, set out as an Effective Date note under section 3581 of this title. EFFECTIVE DATE OF 1993 AMENDMENT Amendment by Pub. L. 103–182 effective on the date the North American Free Trade Agreement enters into force with respect to the United States [Jan. 1, 1994], see section 516(a) of Pub. L. 103–182, formerly set out as Page 559 TITLE 19—CUSTOMS DUTIES § 2251 an Effective Date note under former section 3461 of this title. CONSTRUCTION OF 2016 AMENDMENT Pub. L. 114–125, title VI, § 610(b)(3), Feb. 24, 2016, 130 Stat. 192, provided that: ‘‘Nothing in this subsection [amending this section and enacting provisions set out as a note below] or the amendment made by this sub- section shall be construed as limiting the authority of the President or the United States Trade Representa- tive to develop action plans other than action plans de- scribed in section 182(g) of the Trade Act of 1974 [19 U.S.C. 2242(g)], as amended by paragraph (1), or to take any action otherwise authorized by law in response to the failure of a foreign country to provide adequate and effective protection and enforcement of intellectual property rights.’’ USE OF TRADE ENFORCEMENT TRUST FUNDS TO FACILI- TATE COMPLIANCE WITH INTELLECTUAL PROPERTY PROTECTION BENCHMARKS BY DEVELOPING COUNTRIES Pub. L. 114–125, title VI, § 610(b)(2), Feb. 24, 2016, 130 Stat. 192, provided that: ‘‘(A) IN GENERAL.—Amounts from the Trade Enforce- ment Trust Fund established under section 611 [19 U.S.C. 4405] may be expended by the United States Trade Representative, only as provided by appropria- tions Acts, to provide assistance to any developing country to which an action plan applies under section 182(g) of the Trade Act of 1974 [19 U.S.C. 2242(g)], as amended by paragraph (1), to facilitate the efforts of the developing country to comply with the benchmarks contained in the action plan. Such assistance may in- clude capacity building, activities designed to increase awareness of intellectual property rights, and training for officials responsible for enforcing intellectual prop- erty rights in the developing country. ‘‘(B) DEVELOPING COUNTRY DEFINED.—In this para- graph, the term ‘developing country’ means a country classified by the World Bank as having a low-income or lower-middle-income economy.’’ PROCUREMENT FROM COUNTRIES THAT DENY ADEQUATE AND EFFECTIVE PROTECTION OF INTELLECTUAL PROP- ERTY RIGHTS Pub. L. 101–189, div. A, title VIII, § 852, Nov. 29, 1989, 103 Stat. 1517, as amended by Pub. L. 101–510, div. A, title XIII, § 1302(a), Nov. 5, 1990, 104 Stat. 1668, provided that it is the sense of Congress that it be a very impor- tant consideration in procurement of property, serv- ices, or technology by the Department of Defense whether such procurement is from any person of any country which has been identified by the United States Trade Representative as denying adequate and effective protection of intellectual property rights or fair and equitable market access to United States persons that rely upon intellectual property protection. IDENTIFICATION OF COUNTRIES THAT DENY ADEQUATE AND EFFECTIVE PROTECTION OF INTELLECTUAL PROP- ERTY RIGHTS Pub. L. 100–418, title I, § 1303(a), Aug. 23, 1988, 102 Stat. 1179, provided that: ‘‘(1) The Congress finds that— ‘‘(A) international protection of intellectual prop- erty rights is vital to the international competitive- ness of United States persons that rely on protection of intellectual property rights; and ‘‘(B) the absence of adequate and effective protec- tion of United States intellectual property rights, and the denial of fair and equitable market access, seriously impede the ability of the United States per- sons that rely on protection of intellectual property rights to export and operate overseas, thereby harm- ing the economic interests of the United States. ‘‘(2) The purpose of this section [enacting this section and this note] is to provide for the development of an overall strategy to ensure adequate and effective pro- tection of intellectual property rights and fair and eq- uitable market access for United States persons that rely on protection of intellectual property rights.’’ SUBCHAPTER II—RELIEF FROM INJURY CAUSED BY IMPORT COMPETITION PART 1—POSITIVE ADJUSTMENT BY INDUSTRIES INJURED BY IMPORTS § 2251. Action to facilitate positive adjustment to import competition (a) Presidential action If the United States International Trade Com- mission (hereinafter referred to in this part as the ‘‘Commission’’) determines under section 2252(b) of this title that an article is being im- ported into the United States in such increased quantities as to be a substantial cause of serious injury, or the threat thereof, to the domestic in- dustry producing an article like or directly com- petitive with the imported article, the Presi- dent, in accordance with this part, shall take all appropriate and feasible action within his power which the President determines will facilitate efforts by the domestic industry to make a posi- tive adjustment to import competition and pro- vide greater economic and social benefits than costs. (b) Positive adjustment to import competition (1) For purposes of this part, a positive adjust- ment to import competition occurs when— (A) the domestic industry— (i) is able to compete successfully with im- ports after actions taken under section 2254 of this title terminate, or (ii) the domestic industry experiences an orderly transfer of resources to other pro- ductive pursuits; and (B) dislocated workers in the industry expe- rience an orderly transition to productive pur- suits. (2) The domestic industry may be considered to have made a positive adjustment to import competition even though the industry is not of the same size and composition as the industry at the time the investigation was initiated under section 2252(b) of this title. (Pub. L. 93–618, title II, § 201, Jan. 3, 1975, 88 Stat. 2011; Pub. L. 96–39, title I, § 106(b)(3), July 26, 1979, 93 Stat. 193; Pub. L. 98–573, title II, § 249, Oct. 30, 1984, 98 Stat. 2998; Pub. L. 100–418, title I, § 1401(a), Aug. 23, 1988, 102 Stat. 1225.) Editorial Notes AMENDMENTS 1988—Pub. L. 100–418, in amending section generally, substituted provisions relating to action to facilitate positive adjustment to import competition for provi- sions relating to investigation by International Trade Commission. See section 2252 of this title. 1984—Subsec. (b)(2)(B). Pub. L. 98–573, § 249(1)(A), sub- stituted ‘‘inventory (whether maintained by domestic producers, importers, wholesalers, or retailers), and’’ for ‘‘inventory, and’’. Subsec. (b)(2)(D). Pub. L. 98–573, § 249(1)(B)–(D), added subpar. (D). Subsec. (b)(7). Pub. L. 98–573, § 249(2), added par. (7). 1979—Subsec. (b)(6). Pub. L. 96–39 substituted ‘‘sub- titles A and B of title VII or section 337 of the Tariff Act of 1930’’ for ‘‘the Antidumping Act, 1921, section 303 or 337 of the Tariff Act of 1930’’.