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.
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 section 2241(b) of this title;
(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.
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).
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.
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.
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.
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.
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.
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.
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 section 2412(b)(1) of this title with respect to such acts, policies, or practices;
(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.
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.
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.
In this section:
The term "WTO" means the World Trade Organization.
The term "WTO Agreement" has the meaning given that term in section 3501(9) of this title.
The term "WTO Agreements" means the WTO Agreement and agreements annexed to that Agreement.
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2016-
1994-
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") (19 U.S.C. 2171, 2411–2420), and section 301 of title 3, United States Code, and to ensure that the trade policies of the United States advance, to the greatest extent possible, the export of the products and services of the United States and that trade policy resources are used efficiently, it is hereby ordered as follows:
(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, 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 41 U.S.C. 8301 et seq.], sections 141 and 301–310 of the Trade Act of 1974, as amended (the Act) (19 U.S.C. 2171, 2411–2420), title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511–2518), and section 301 of title 3, United States Code, and to ensure that the trade policies of the United States advance, to the greatest extent possible, the export of the products and services of the United States and that trade policy resources are used efficiently, it is hereby ordered as follows:
(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.
(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), Chapter 10 of the North American Free Trade Agreement (NAFTA), or other agreements relating to government procurement (procurement agreements) to which that country and the United States are parties; or
(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, chapter 1, of the Act [19 U.S.C. 2411 et seq.],
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 (19 U.S.C. 2414(a)(3)). The time limits in subsection 304(a)(3)(B) of the Act (19 U.S.C. 2414(a)(3)(B)) shall apply if the Trade Representative determines that:
(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.
William J. Clinton.