19 U.S.C. § 2414 — Determinations by Trade Representative

Page 665 TITLE 19—CUSTOMS DUTIES § 2414 of Pub. L. 106–113, set out as a note under section 1 of Title 35, Patents. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–418 applicable to petitions filed, and investigations initiated, under this section on or after Aug. 23, 1988, and petitions filed, and investiga- tions initiated, before Aug. 23, 1988, if by such date no decision had been made under section 2414 of this title regarding the petition or investigation, see section 1301(c) of Pub. L. 100–418, set out as a note under section 2411 of this title. § 2413. Consultation upon initiation of investiga- tion (a) In general (1) On the date on which an investigation is initiated under section 2412 of this title, the Trade Representative, on behalf of the United States, shall request consultations with the for- eign country concerned regarding the issues in- volved in such investigation. (2) If the investigation initiated under section 2412 of this title involves a trade agreement and a mutually acceptable resolution is not reached before the earlier of— (A) the close of the consultation period, if any, specified in the trade agreement, or (B) the 150th day after the day on which con- sultation was commenced, the Trade Representative shall promptly request proceedings on the matter under the formal dis- pute settlement procedures provided under such agreement. (3) The Trade Representative shall seek infor- mation and advice from the petitioner (if any) and the appropriate committees established pur- suant to section 2155 of this title in preparing United States presentations for consultations and dispute settlement proceedings. (b) Delay of request for consultations (1) Notwithstanding the provisions of sub- section (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 pur- pose of verifying or improving the petition to ensure an adequate basis for consultation, and (B) if such consultations are delayed by rea- son of subparagraph (A), each time limitation under section 2414 of this title shall be ex- tended for the period of such delay. (2) The Trade Representative shall— (A) publish notice of any delay under para- graph (1) in the Federal Register, and (B) report to Congress on the reasons for such delay in the report required under section 2419(a)(3) of this title. (Pub. L. 93–618, title III, § 303, as added Pub. L. 96–39, title IX, § 901, July 26, 1979, 93 Stat. 297; amended Pub. L. 98–573, title III, §§ 304(d)(2)(B), (e), 306(c)(2)(C)(ii), Oct. 30, 1984, 98 Stat. 3004, 3005, 3012; Pub. L. 100–418, title I, § 1301(a), Aug. 23, 1988, 102 Stat. 1170.) Editorial Notes AMENDMENTS 1988—Pub. L. 100–418 amended section generally, re- vising and restating substantially similar provisions. 1984—Subsec. (a). Pub. L. 98–573, §§ 304(d)(2)(B), (e)(1), 306(c)(2)(C)(ii), designated existing provisions as subsec. (a), struck out ‘‘with respect to a petition’’ after ‘‘sec- tion 2412(b) of this title’’, inserted ‘‘or the determina- tion of the Trade Representative under section 2412(c)(1) of this title’’ after ‘‘in the petition’’, and ‘‘(if any)’’ after ‘‘petitioner’’, and struck out ‘‘private sec- tor’’ after ‘‘appropriate’’. Subsec. (b). Pub. L. 98–573, § 304(e)(2), added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–418 applicable to petitions filed, and investigations initiated, under section 2412 of this title on or after Aug. 23, 1988, and petitions filed, and investigations initiated, before Aug. 23, 1988, if by such date no decision had been made under section 2414 of this title regarding the petition or investigation, see section 1301(c) of Pub. L. 100–418, set out as a note under section 2411 of this title. § 2414. Determinations by Trade Representative (a) In general (1) On the basis of the investigation initiated under section 2412 of this title and the consulta- tions (and the proceedings, if applicable) under section 2413 of this title, the Trade Representa- tive shall— (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 section 2411 of this title exists, and (B) if the determination made under sub- paragraph (A) is affirmative, determine what action, if any, the Trade Representative should take under subsection (a) or (b) of sec- tion 2411 of this title. (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 section 2412(b)(2)(A) of this title involving rights under the Agree- ment on Trade-Related Aspects of Intellectual Property Rights (referred to in section 3511(d)(15) of this title) or the GATT 1994 (as defined in section 3501(1)(B) of this title) relat- ing to products subject to intellectual prop- erty protection, the earlier of— (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 subpara- graph (A) or paragraph (3), the date that is 12 months after the date on which the investiga- tion is initiated. (3)(A) If an investigation is initiated under this subchapter by reason of section 2412(b)(2) of this title and— (i) the Trade Representative considers that rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights or the Page 666 TITLE 19—CUSTOMS DUTIES § 2414 GATT 1994 relating to products subject to in- tellectual property protection are involved, the Trade Representative shall make the de- termination 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 con- sider that a trade agreement, including the Agreement on Trade-Related Aspects of Intel- lectual Property Rights, is involved or does not make a determination described in sub- paragraph (B) with respect to such investiga- tion, 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 section 2412(b)(2) of this title (other than an investigation involving a trade agree- ment) that— (i) complex or complicated issues are in- volved in the investigation that require addi- tional time, (ii) the foreign country involved in the in- vestigation is making substantial progress in drafting or implementing legislative or admin- istrative measures that will provide adequate and effective protection of intellectual prop- erty rights, or (iii) such foreign country is undertaking en- forcement 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 inves- tigation by no later than the date that is 9 months after the date on which such investiga- tion is initiated. (4) In any case in which a dispute is not re- solved before the close of the minimum dispute settlement period provided for in a trade agree- ment, the Trade Representative, within 15 days after the close of such dispute settlement pe- riod, shall submit a report to Congress setting forth the reasons why the dispute was not re- solved within the minimum dispute settlement period, the status of the case at the close of the period, and the prospects for resolution. For pur- poses 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 settle- ment procedures are carried out within the time limitations specified in the agreement, but com- puted without regard to any extension author- ized under the agreement at any stage. (b) Consultation before determinations (1) Before making the determinations required under subsection (a)(1), the Trade Representa- tive, unless expeditious action is required— (A) shall provide an opportunity (after giv- ing not less than 30 days notice thereof) for the presentation of views by interested per- sons, including a public hearing if requested by any interested person, (B) shall obtain advice from the appropriate committees established pursuant to section 2155 of this title, and (C) may request the views of the United States International Trade Commission re- garding 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 com- ply with the requirements of subparagraphs (A) and (B) of paragraph (1) because expeditious ac- tion is required, the Trade Representative shall, after making the determinations under sub- section (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. (Pub. L. 93–618, title III, § 304, as added Pub. L. 96–39, title IX, § 901, July 26, 1979, 93 Stat. 297; amended Pub. L. 98–573, title III, §§ 304(d)(2)(C), 306(c)(2)(C)(ii), Oct. 30, 1984, 98 Stat. 3005, 3012; Pub. L. 100–418, title I, § 1301(a), Aug. 23, 1988, 102 Stat. 1170; Pub. L. 103–465, title III, § 314(d), Dec. 8, 1994, 108 Stat. 4940; Pub. L. 104–295, § 20(c)(6), Oct. 11, 1996, 110 Stat. 3528; Pub. L. 108–429, title II, § 2201(a), (b), Dec. 3, 2004, 118 Stat. 2598, 2599.) Editorial Notes AMENDMENTS 2004—Subsec. (a)(2)(A). Pub. L. 108–429, § 2201(a), in in- troductory provisions, inserted ‘‘except an investiga- tion initiated pursuant to section 2412(b)(2)(A) of this title involving rights under the Agreement on Trade- Related Aspects of Intellectual Property Rights (re- ferred to in section 3511(d)(15) of this title) or the GATT 1994 (as defined in section 3501(1)(B) of this title) relat- ing to products subject to intellectual property protec- tion,’’ after ‘‘agreement,’’. Subsec. (a)(3)(A). Pub. L. 108–429, § 2201(b), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: ‘‘If an investigation is initiated under this subchapter by reason of section 2412(b)(2) of this title and the Trade Representative does not consider that a trade agreement, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (referred to in section 3511(d)(15) of this title), is in- volved or does not make a determination described in subparagraph (B) with respect to such investigation, the Trade Representative shall make the determina- tions required under paragraph (1) with respect to such investigation by no later than the date that is 6 months after the date on which such investigation is initi- ated.’’ 1996—Subsec. (a)(3)(A). Pub. L. 104–295 inserted ‘‘Rights’’ after ‘‘Intellectual Property’’. 1994—Subsec. (a)(2)(A). Pub. L. 103–465, § 314(d)(1), struck out ‘‘(other than the agreement on subsidies and countervailing measures described in section 2503(c)(5) of this title)’’ after ‘‘trade agreement’’. Subsec. (a)(3)(A). Pub. L. 103–465, § 314(d)(2)(A), in- serted ‘‘does not consider that a trade agreement, in- cluding the Agreement on Trade-Related Aspects of In- tellectual Property (referred to in section 3511(d)(15) of this title), is involved or’’ after ‘‘Trade Representative’’ the first place appearing. Subsec. (a)(3)(B). Pub. L. 103–465, § 314(d)(2)(B), in in- troductory provisions, substituted ‘‘an investigation initiated by reason of section 2412(b)(2) of this title (other than an investigation involving a trade agree- ment)’’ for ‘‘any investigation initiated by reason of section 2412(b)(2) of this title’’. Page 667 TITLE 19—CUSTOMS DUTIES § 2415 Subsec. (a)(4). Pub. L. 103–465, § 314(d)(3), struck out ‘‘(other than the agreement on subsidies and counter- vailing measures described in section 2503(c)(5) of this title)’’ after ‘‘in a trade agreement’’. 1988—Pub. L. 100–418 amended section generally, sub- stituting provisions relating to determinations by Trade Representative for provisions relating to rec- ommendations by Trade Representative. 1984—Subsec. (a)(1). Pub. L. 98–573, § 304(d)(2)(C), sub- stituted ‘‘matters under investigation’’ for ‘‘issues raised in the petition’’ in first sentence. Subsec. (b)(2). Pub. L. 98–573, § 306(c)(2)(C)(ii), struck out ‘‘private sector’’ after ‘‘appropriate’’. Statutory Notes and Related Subsidiaries 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(a) of Pub. L. 103–465, set out as an Effective Date note under section 3581 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–418 applicable to petitions filed, and investigations initiated, under section 2412 of this title on or after Aug. 23, 1988, and petitions filed, and investigations initiated, before Aug. 23, 1988, if by such date no decision had been made under this section regarding the petition or investigation, see section 1301(c) of Pub. L. 100–418, set out as a note under section 2411 of this title. § 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 ac- tion the Trade Representative determines under section 2414(a)(1)(B) of this title to take under section 2411 of this title, subject to the specific direction, if any, of the President regarding any such action, by no later than the date that is 30 days after the date on which such determination is made. (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 section 2411 of this title— (i) if— (I) in the case of an investigation initiated under section 2412(a) of this title, the peti- tioner requests a delay, or (II) in the case of an investigation initi- ated under section 2412(b)(1) of this title or to which section 2414(a)(3)(B) of this title ap- plies, a delay is requested by a majority of the representatives of the domestic industry that would benefit from the action, or (ii) if the Trade Representative determines that substantial progress is being made, or that a delay is necessary or desirable, to ob- tain United States rights or a satisfactory so- lution 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 section 2411 of this title with respect to any investigation to which section 2414(a)(3)(A)(ii) of this title ap- plies. (C) The Trade Representative may not delay under subparagraph (A) the implementation of any action that is to be taken under section 2411 of this title with respect to any investigation to which section 2414(a)(3)(B) of this title applies by more than 90 days. (b) Alternative actions in certain cases of export targeting (1) If the Trade Representative makes an af- firmative determination under section 2414(a)(1)(A) of this title involving export tar- geting by a foreign country and determines to take no action under section 2411 of this title with respect to such affirmation determination, the Trade Representative— (A) shall establish an advisory panel to rec- ommend measures which will promote the competitiveness of the domestic industry af- fected 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 Presi- dent, may take any administrative actions au- thorized under any other provision of law, and, if necessary, propose legislation to implement any other actions, that would restore or im- prove the international competitiveness of the domestic industry affected by the export tar- geting, 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), sub- mit a report to the Congress on the adminis- trative actions taken, and legislative pro- posals made, under subparagraph (B) with re- spect to the domestic industry affected by the export targeting. (2)(A) The advisory panels established under paragraph (1)(A) shall consist of individuals ap- pointed by the Trade Representative who— (i) earn their livelihood in the private sector of the economy, including individuals who rep- resent management and labor in the domestic industry affected by the export targeting that is the subject of the affirmative determination made under section 2414(a)(1)(A) of this title, and (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 es- tablished 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 section 2414(a)(1)(A) of this title. (Pub. L. 93–618, title III, § 305, as added Pub. L. 96–39, title IX, § 901, July 26, 1979, 93 Stat. 299; amended Pub. L. 98–573, title III, § 304(g), Oct. 30, 1984, 98 Stat. 3006; Pub. L. 100–418, title I, § 1301(a), Aug. 23, 1988, 102 Stat. 1172; Pub. L. 108–429, title II, § 2201(c), Dec. 3, 2004, 118 Stat. 2599.) Editorial Notes AMENDMENTS 2004—Subsec. (a)(2)(B). Pub. L. 108–429 substituted ‘‘section 2414(a)(3)(A)(ii)’’ for ‘‘section 2414(a)(3)(A)’’.