19 U.S.C. § 2411 — Actions by United States Trade Representative
submitted 47 years ago by Pub. L. 93-618 to r/title-19-CUSTOMS-DUTIES · 2,399 words · no verdicts yet
This section directs or permits the United States Trade Representative to respond when foreign countries deny United States trade rights or burden United States commerce. It authorizes trade restrictions, service restrictions, agreements, and compensatory benefits, and defines key terms and exceptions.
(a) Mandatory action. (1) If, under section 2414(a)(1), the Trade Representative decides that (A) United States rights under a trade agreement are being denied, or (B) a foreign country’s act, policy, or practice violates or conflicts with a trade agreement, denies its benefits to the United States, or is unjustifiable and burdens or restricts United States commerce, the Trade Representative must take action authorized by subsection (c), subject to any specific Presidential direction. The Trade Representative must also take other appropriate and feasible action within the President’s power that the President directs, to enforce the rights or eliminate the act, policy, or practice. The action may concern goods, services, or another relevant area of relations with the foreign country.
(2) The Trade Representative need not act if (A) the Dispute Settlement Body, as defined in section 3531(5), adopted a report, or a ruling in another trade agreement’s formal dispute process finds that (i) United States rights are not being denied, or (ii) the act, policy, or practice is not a violation of or inconsistent with United States rights, or does not deny, nullify, or impair United States benefits under a trade agreement; or (B) the Trade Representative finds that (i) the country is taking satisfactory measures to grant the rights; (ii) it agreed to eliminate or phase out the act, policy, or practice, or agreed to an imminent solution to the burden or restriction that satisfies the Trade Representative; (iii) it cannot achieve the results in clause (i) or (ii), as appropriate, but agrees to satisfactory compensatory trade benefits; (iv) in an extraordinary case, the action would harm the United States economy substantially more than its benefits, considering the effect of no action on confidence in this subchapter; or (v) the action would seriously harm United States national security.
(3) Action to eliminate an act, policy, or practice must be designed to affect the foreign country’s goods or services in an amount equal in value to the burden or restriction it imposes on United States commerce.
(b) Discretionary action. If, under section 2414(a)(1), the Trade Representative decides that (1) a foreign country’s act, policy, or practice is unreasonable or discriminatory and burdens or restricts United States commerce, and (2) United States action is appropriate, the Trade Representative must take appropriate and feasible action authorized by subsection (c), subject to any specific Presidential direction, and any other appropriate and feasible action within the President’s power that the President directs, to eliminate the act, policy, or practice. The action may concern goods, services, or another relevant area of relations.
(c) Scope of authority. (1) To carry out subsection (a) or (b), or section 2416(c), the Trade Representative may: (A) suspend, withdraw, or prevent application of trade-agreement concession benefits in carrying out an agreement with the foreign country; (B) impose duties or other import limits on its goods and, despite other law, fees or limits on its services, for the time the Trade Representative considers appropriate; (C) when the act, policy, or practice also makes goods ineligible for duty*-free treatment under sections 2462(b) and (c), 2702(b) and (c), or 3202(c) and (d), withdraw, limit, or suspend that treatment despite subsection (a)(3); or (D) make binding agreements requiring the country to (i) eliminate or phase out the act, policy, or practice, (ii) eliminate its burden or restriction on United States commerce, or (iii) provide compensatory trade benefits satisfactory to the Trade Representative and meeting paragraph (4).
(2)(A) In addition to paragraph (1), and despite other laws governing a service-sector access authorization, the Trade Representative may restrict its terms and conditions as appropriate or deny issuance. (B) This may concern only authorizations granted, or applications pending, on or after the date a petition is filed under section 2412(a), or the Trade Representative decides under section 2412(b) to begin an investigation. (C) Before imposing fees or other service restrictions, the Trade Representative must, as appropriate, consult the head of any Federal or State agency regulating the services.
(3) The authorized actions may target goods or an economic sector on a nondiscriminatory basis or only against the foreign country, and may target goods or a sector whether or not they were involved in the act, policy, or practice.
(4) A compensatory-benefits agreement must benefit the economic sector containing the domestic industry that would benefit from eliminating the act, policy, or practice, or the most closely related sector, unless (A) that is not feasible or (B) benefits to another sector would be more satisfactory.
(5) If the action uses import restrictions, the Trade Representative must prefer duties over other restrictions and, if another restriction is used, consider replacing it gradually with an equivalent duty. (6) Action concerning export targeting must, as far as possible, reflect the full benefit the beneficiary receives from export targeting during the action’s effective period.
(d) Definitions and special rules. For this subchapter: (1) “Commerce” includes services, including information transfers, connected with international trade whether or not tied to particular goods, and foreign direct investment by United States persons that affects trade in goods or services. This section does not otherwise define “commerce.” (2) A foreign country’s act, policy, or practice that burdens or restricts United States commerce may include the country’s direct or indirect subsidies for building vessels used to transport goods commercially by water between foreign countries and the United States.
(3)(A) An act, policy, or practice is “unreasonable” if it is otherwise unfair and inequitable, even though it need not violate or conflict with United States international legal rights. (B) Unreasonable acts include, among other things, acts or combinations that: (i) deny fair and equal opportunities for establishment of an enterprise; adequate and effective intellectual-property protection even if the country complies with the specified TRIPS obligations in section 3511(d)(15); nondiscriminatory market access for United States persons relying on intellectual-property protection; or market opportunities, including when a government tolerates systematic anticompetitive activity that restricts United States goods or services from entering a foreign market contrary to commercial considerations; (ii) are export targeting; (iii) show a continuing pattern that denies workers association rights, denies organizing and collective-bargaining rights, permits forced or compulsory labor, lacks a minimum child-employment age, or lacks minimum-wage, work-hour, or worker-safety and health standards; or (iv) show a continuing pattern in which the foreign government fails effectively to enforce commitments under agreements with the United States, including commitments involving goods, services, agriculture, foreign investment, intellectual property, digital trade and cross-border data flows, regulatory practices, state-owned or state-controlled enterprises, localization barriers, labor, the environment, anticorruption, trade remedies, textiles, and commercial partnerships.
(C)(i) The acts in (B)(iii) are not unreasonable if the Trade Representative decides that (I) the country has taken or is taking actions showing significant, tangible overall progress throughout the country, including a designated zone, in providing those rights and standards, or (II) the acts are consistent with the country’s economic development. (ii) The Trade Representative must publish that decision and its factual basis in the Federal Register. (D) Appropriate consideration must be given to reciprocal opportunities in the United States for foreign nationals and firms. (E) “Export targeting” means a government plan or scheme made up of coordinated actions, separately or jointly, given to a particular enterprise, industry, or group to help it become more competitive in exporting a class or kind of merchandise. (F)(i) For (B)(i)(II), adequate and effective intellectual-property protection includes legal means for noncitizens and nonnationals to secure, exercise, and enforce rights and receive commercial benefits concerning patents, trademarks, copyrights and related rights, mask works, trade secrets, and plant breeders’ rights. (ii) For (B)(i)(IV), denying fair and equal nondiscriminatory market access includes restrictions tied to using, exploiting, or enjoying commercial benefits from intellectual-property rights in protected works or fixations, or products containing them.
(4)(A) An act, policy, or practice is “unjustifiable” if it violates or conflicts with the international legal rights of the United States. (B) This includes acts that deny national or most-favored-nation treatment, the right to establish, or intellectual-property protection. (5) “Discriminatory” acts include, when appropriate, denying national or most-favored-nation treatment to United States goods, services, or investment. (6) “Service sector access authorization” means a license, permit, order, or other authorization issued under Federal law that lets a foreign service supplier enter the United States market in the relevant service sector. (7) “Foreign country” includes a foreign instrumentality. A possession or territory administered separately for customs is treated as a separate foreign country. (8) “Trade Representative” means the United States Trade Representative. (9) For only sections 2412(a)(4)(B), 2414(b)(1)(A), 2416(c)(2), and 2417(a)(2), “interested persons” includes, among others, domestic firms and workers, consumer-interest representatives, United States product exporters, and industrial users of goods or services that may be affected by action under subsection (a) or (b).
If the United States Trade Representative determines under section 2414(a)(1) of this title that—
the rights of the United States under any trade agreement are being denied; or
an act, policy, or practice of a foreign country—
violates, or is inconsistent with, the provisions of, or otherwise denies benefits to the United States under, any trade agreement, or
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.
The Trade Representative is not required to take action under paragraph (1) in any case in which—
the Dispute Settlement Body (as defined in section 3531(5) of this title) has adopted a report, or a ruling issued under the formal dispute settlement proceeding provided under any other trade agreement finds, that—
the rights of the United States under a trade agreement are not being denied, or
the act, policy, or practice—
is not a violation of, or inconsistent with, the rights of the United States, or
does not deny, nullify, or impair benefits to the United States under any trade agreement; or
the Trade Representative finds that—
the foreign country is taking satisfactory measures to grant the rights of the United States under a trade agreement,
the foreign country has—
agreed to eliminate or phase out the act, policy, or practice, or
agreed to an imminent solution to the burden or restriction on United States commerce that is satisfactory to the Trade Representative,
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,
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
the taking of action under this subsection would cause serious harm to the national security of the United States.
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.
If the Trade Representative determines under section 2414(a)(1) of this title that—
an act, policy, or practice of a foreign country is unreasonable or discriminatory and burdens or restricts United States commerce, and
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.
For purposes of carrying out the provisions of subsection (a) or (b) or section 2416(c) of this title, the Trade Representative is authorized to—
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;
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;
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 section 2462 of this title, subsections (b) and (c) of section 2702 of this title, or subsections (c) and (d) of section 3202 of this title, withdraw, limit, or suspend such treatment under such provisions, notwithstanding the provisions of subsection (a)(3) of this section; or
enter into binding agreements with such foreign country that commit such foreign country to—
eliminate, or phase out, the act, policy, or practice that is the subject of the action to be taken under subsection (a) or (b),
eliminate any burden or restriction on United States commerce resulting from such act, policy, or practice, or
provide the United States with compensatory trade benefits that—
are satisfactory to the Trade Representative, and
meet the requirements of paragraph (4).
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)—
restrict, in the manner and to the extent the Trade Representative determines appropriate, the terms and conditions of any such authorization, or
deny the issuance of any such authorization.
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—
a petition is filed under section 2412(a) of this title, or
a determination to initiate an investigation is made by the Trade Representative under section 2412(b) of this title.
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.
The actions the Trade Representative is authorized to take under subsection (a) or (b) may be taken against any goods or economic sector—
on a nondiscriminatory basis or solely against the foreign country described in such subsection, and
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.
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—
the provision of such trade benefits is not feasible, or
trade benefits that benefit any other economic sector would be more satisfactory than such trade benefits.
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—
give preference to the imposition of duties over the imposition of other import restrictions, and
if an import restriction other than a duty is imposed, consider substituting, on an incremental basis, an equivalent duty for such other import restriction*.
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.
For purposes of this subchapter—
The term “commerce” includes, but is not limited to—
services (including transfers of information) associated with international trade, whether or not such services are related to specific goods, and
foreign direct investment by United States persons with implications for trade in goods or services.
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.
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.
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—
denies fair and equitable—
opportunities for the establishment of an enterprise,
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 section 3511(d)(15) of this title,
nondiscriminatory market access opportunities for United States persons that rely upon intellectual property protection, or
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,
constitutes export targeting,
constitutes a persistent pattern of conduct that—
denies workers the right of association,
denies workers the right to organize and bargain collectively,
permits any form of forced or compulsory labor,
fails to provide a minimum age for the employment of children, or
fails to provide standards for minimum wages, hours of work, and occupational safety and health of workers, or
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.
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—
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
such acts, policies, and practices are not inconsistent with the level of economic development of the foreign country.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The term “Trade Representative” means the United States Trade Representative.
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).
Source credit: (Pub. L. 93–618, title III, § 301, as added Pub. L. 96–39, title IX, § 901, July 26, 1979, 93 Stat. 295; amended Pub. L. 98–573, title III, § 304(a)–(c), (f), Oct. 30, 1984, 98 Stat. 3002, 3005; Pub. L. 100–418, title I, § 1301(a), Aug. 23, 1988, 102 Stat. 1164; Pub. L. 103–465, title III, § 314(a)–(c), title VI, § 621(a)(9), Dec. 8, 1994, 108 Stat. 4939, 4940, 4993; Pub. L. 104–295, § 20(c)(4), Oct. 11, 1996, 110 Stat. 3528; Pub. L. 114–125, title VI, §§ 602(b)(1), 607, Feb. 24, 2016, 130 Stat. 184, 189.)
- 1979Enacted · Pub. L. 93-618 · 93 Stat. 295
- 1984Amended · Pub. L. 98-573 · 98 Stat. 3002, 3005
- 1988Amended · Pub. L. 100-418 · 102 Stat. 1164
- 1994Amended · Pub. L. 103-465 · 108 Stat. 4939, 4940, 4993
- 1996Amended · Pub. L. 104-295 · 110 Stat. 3528
- 2016Amended · Pub. L. 114-125 · 130 Stat. 184, 189
A history note hasn’t been published yet. The record shows enactment by Pub. L. 93-618 on 1979-07-26.
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