19 U.S.C. § 2241 — Estimates of barriers to market access

Page 554 TITLE 19—CUSTOMS DUTIES § 2241 1 So in original. The semicolon probably should be a comma. 2 So in original. The comma probably should be a semicolon. 3 So in original. 4 So in original. Probably should be ‘‘calendar’’. preceding the beginning of each fiscal year and shall be included by him in the Budget without revision, and the Commission shall not be con- sidered to be a department or establishment for purposes of such chapter. (Pub. L. 93–618, title I, § 175(a)(1), Jan. 3, 1975, 88 Stat. 2011.) Editorial Notes CODIFICATION ‘‘Chapter 11 of title 31’’ and ‘‘such chapter’’ sub- stituted in text for ‘‘the Budget and Accounting Act, 1921 (31 U.S.C. 1 et seq.)’’ and ‘‘such Act’’, respectively, on authority of Pub. L. 97–258, § 4(b), Sept. 13, 1982, 96 Stat. 1067, the first section of which enacted Title 31, Money and Finance. PART 8—IDENTIFICATION OF MARKET BARRIERS AND CERTAIN UNFAIR TRADE ACTIONS § 2241. Estimates of barriers to market access (a) National trade estimates (1) In general For calendar year 1988, and for each suc- ceeding calendar year, the United States Trade Representative, through the inter- agency trade organization established pursu- ant to section 1872(a) of this title and with the assistance of the interagency advisory com- mittee established under section 2171(d)(2) of this title, shall— (A) identify and analyze acts, policies, or practices of each foreign country which con- stitute significant barriers to, or distortions of— (i) United States exports of goods or services (including agricultural commod- ities; and property protected by trade- marks, patents, and copyrights exported or licensed by United States persons), (ii) foreign direct investment by United States persons, especially if such invest- ment has implications for trade in goods or services; 1 and (iii) United States electronic commerce,2 (B) make an estimate of the trade-dis- torting impact on United States commerce of any act, policy, or practice identified under subparagraph (A); and (C) make an estimate, if feasible, of— (i) the value of additional goods and services of the United States, (ii) the value of additional foreign direct investment by United States persons, and (iii) the value of additional United States electronic commerce, that would have been exported to, or in- vested in or transacted with,,3 each foreign country during such calendar year if each of such acts, policies, and practices of such country did not exist. (2) Certain factors taken into account in mak- ing analysis and estimate In making any analysis or estimate under paragraph (1), the Trade Representative shall take into account— (A) the relative impact of the act, policy, or practice on United States commerce; (B) the availability of information to docu- ment prices, market shares, and other mat- ters necessary to demonstrate the effects of the act, policy, or practice; (C) the extent to which such act, policy, or practice is subject to international agree- ments to which the United States is a party; (D) any advice given through appropriate committees established pursuant to section 2155 of this title; and (E) the actual increase in— (i) the value of goods and services of the United States exported to, (ii) the value of foreign direct invest- ment made in, and (iii) the value of electronic commerce transacted with, the foreign country during the calendar year for which the estimate under paragraph (1)(C) is made. (3) Inclusion of certain discriminatory laws, policies, and practices of the Russian Fed- eration For calender 4 year 2012 and each succeeding calendar year, the Trade Representative shall include in the analyses and estimates under paragraph (1) an identification and analysis of any laws, policies, or practices of the Russian Federation that deny fair and equitable mar- ket access to United States digital trade. (4) Annual revisions and updates The Trade Representative shall annually re- vise and update the analysis and estimate under paragraph (1). (b) Reports (1) In general On or before April 30, 1989, and on or before March 31 of each succeeding calendar year, the Trade Representative shall submit a report on the analysis and estimates made under sub- section (a) for the calendar year preceding such calendar year (which shall be known as the ‘‘National Trade Estimate’’) to the Presi- dent, the Committee on Finance of the Senate, and appropriate committees of the House of Representatives. (2) Reports to include information with respect to action being taken The Trade Representative shall include in each report submitted under paragraph (1) in- formation with respect to any action taken (or the reasons for no action taken) to eliminate any act, policy, or practice identified under subsection (a), including, but not limited to— (A) any action under section 2411 of this title, (B) negotiations or consultations with for- eign governments, or (C) a section on foreign anticompetitive practices, the toleration of which by foreign governments is adversely affecting exports of United States goods or services. Page 555 TITLE 19—CUSTOMS DUTIES § 2241 5 So in original. See References in Text note below. (3) Consultation with Congress on trade policy priorities The Trade Representative shall keep the committees described in paragraph (1) cur- rently informed with respect to trade policy priorities for the purposes of expanding mar- ket opportunities. After the submission of the report required by paragraph (1), the Trade Representative shall also consult periodically with, and take into account the views of, the committees described in that paragraph re- garding means to address the foreign trade barriers identified in the report, including the possible initiation of investigations under sec- tion 2412 of this title or other trade actions. (c) Assistance of other agencies (1) Furnishing of information The head of each department or agency of the executive branch of the Government, in- cluding any independent agency, is authorized and directed to furnish to the Trade Rep- resentative or to the appropriate agency, upon request, such data, reports, and other informa- tion as is necessary for the Trade Representa- tive to carry out his functions under this sec- tion. In preparing the section of the report re- quired by subsection (b)(2)(C), the Trade Rep- resentative shall consult in particular with the Attorney General. (2) Restrictions on release or use of informa- tion Nothing in this subsection shall authorize the release of information to, or the use of in- formation by, the Trade Representative in a manner inconsistent with law or any proce- dure established pursuant thereto. (3) Personnel and services The head of any department, agency, or in- strumentality of the United States may detail such personnel and may furnish such services, with or without reimbursement, as the Trade Representative may request to assist in car- rying out his functions. (d) Electronic commerce For purposes of this section, the term ‘‘elec- tronic commerce’’ has the meaning given that term in section 1104(3) 5 of the Internet Tax Freedom Act. (Pub. L. 93–618, title I, § 181, as added Pub. L. 98–573, title III, § 303(a), Oct. 30, 1984, 98 Stat. 3001; amended Pub. L. 100–418, title I, § 1304, Aug. 23, 1988, 102 Stat. 1181; Pub. L. 103–465, title III, §§ 311(a), 312, Dec. 8, 1994, 108 Stat. 4938; Pub. L. 105–277, div. C, title XII, § 1202, Oct. 21, 1998, 112 Stat. 2681–726; Pub. L. 112–208, title II, § 203, Dec. 14, 2012, 126 Stat. 1501.) Editorial Notes REFERENCES IN TEXT Section 1104(3) of the Internet Tax Freedom Act, re- ferred to in subsec. (d), was redesignated section 1105(3) of the Act by Pub. L. 108–435, § 3(1), Dec. 3, 2004, 118 Stat. 2616, and is set out in a note under section 151 of Title 47, Telecommunications. AMENDMENTS 2012—Subsec. (a)(3), (4). Pub. L. 112–208 added par. (3) and redesignated former par. (3) as (4). 1998—Subsec. (a)(1)(A)(iii). Pub. L. 105–277, § 1202(1)(A), added cl. (iii). Subsec. (a)(1)(C). Pub. L. 105–277, § 1202(1)(B), added cl. (iii) and inserted ‘‘or transacted with,’’ after ‘‘or in- vested in’’ in concluding provisions. Subsec. (a)(2)(E)(iii). Pub. L. 105–277, § 1202(2), added cl. (iii). Subsec. (d). Pub. L. 105–277, § 1202(3), added subsec. (d). 1994—Subsec. (b)(2)(C). Pub. L. 103–465, § 311(a)(1), added subpar. (C). Subsec. (b)(3). Pub. L. 103–465, § 312, inserted at end ‘‘After the submission of the report required by para- graph (1), the Trade Representative shall also consult periodically with, and take into account the views of, the committees described in that paragraph regarding means to address the foreign trade barriers identified in the report, including the possible initiation of inves- tigations under section 2412 of this title or other trade actions.’’ Subsec. (c)(1). Pub. L. 103–465, § 311(a)(2), inserted at end ‘‘In preparing the section of the report required by subsection (b)(2)(C), the Trade Representative shall consult in particular with the Attorney General.’’ 1988—Pub. L. 100–418, § 1304(a)(10), substituted ‘‘Esti- mates of’’ for ‘‘Actions concerning’’ in section catch- line. Subsec. (a)(1). Pub. L. 100–418, § 1304(a)(1), substituted ‘‘For calendar year 1988, and for each succeeding cal- endar year,’’ for ‘‘Not later than the date on which the initial report is required under subsection (b)(1) of this section,’’. Pub. L. 100–418, § 1304(a)(9), which directed the inser- tion of ‘‘and with the assistance of the interagency ad- visory committee established under section 2171(d)(2) of this title,’’ after ‘‘section 1872(a) of this title,’’ was exe- cuted by making the insertion after ‘‘section 1872(a) of this title’’ to reflect the probable intent of Congress. Subsec. (a)(1)(A). Pub. L. 100–418, § 1304(a)(2), inserted ‘‘of each foreign country’’ after ‘‘or practices’’. Subsec. (a)(1)(C). Pub. L. 100–418, § 1304(a)(3)–(5), added subpar. (C). Subsec. (a)(2)(E). Pub. L. 100–418, § 1304(a)(6)–(8), added subpar. (E). Subsec. (b)(1). Pub. L. 100–418, § 1304(b), amended par. (1) generally. Prior to amendment, par. (1) read as fol- lows: ‘‘On or before the date which is one year after Oc- tober 30, 1984, and each year thereafter, the Trade Rep- resentative shall submit the analysis and estimate under subsection (a) of this section to the Committee on Finance of the Senate and to the Committee on Ways and Means of the House of Representatives.’’ 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 of Pub. L. 103–465, set out as an Effective Date note under section 3581 of this title. SEVERABILITY Pub. L. 105–277, div. C, title XII, § 1206, Oct. 21, 1998, 112 Stat. 2681–728, provided that: ‘‘If any provision of this title [amending this section and enacting provi- sions set out under this section], or any amendment made by this title, or the application of that provision to any person or circumstance, is held by a court of competent jurisdiction to violate any provision of the Constitution of the United States, then the other provi- sions of that title, and the application of that provision to other persons and circumstances, shall not be af- fected.’’ CONSTRUCTION OF 1998 AMENDMENTS Pub. L. 105–277, div. C, title XII, § 1204, Oct. 21, 1998, 112 Stat. 2681–728, provided that: ‘‘Nothing in this title 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.