Sec. 305. MONITORING AND ENFORCEMENT
2,895 words·~13 min read·
/statute-compilations/comps-2961/sec-305A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
## SEC. 305 MONITORING AND ENFORCEMENT ###
(a)Monitoring and Enforcement Structure Recommendations In the preparation of the recommendations for the reorganization of trade functions, the President shall insure that careful consideration is given to monitoring and enforcing the requirements of the Agreement and this title, with particular regard to the tendering procedures required by the Agreement or otherwise agreed to by a country or instrumentality likely to be designated pursuant to section 301(b). ###
(b)Rules of Origin ####
(1)Advisory rulings and final determinations For the purposes of this title, the Secretary of the Treasury shall provide for the prompt issuance of advisory rulings and final determinations on whether, under section 308(4)(B), an article is or would be a product of a foreign country or instrumentality designated pursuant to section 301(b). ####
(2)Penalties for fraudulent conduct In addition to any other provisions of law which may be applicable, section 1001 of title 18, United States Code, shall apply to fraudulent conduct with respect to the origin of products for purposes of qualifying for a waiver under section 301 or avoiding a prohibition under section 302. ###
(c)Report to Congress on Rules of Origin ####
(1)Domestic administrative practices As soon as practicable after the close of the two-year period beginning on the date on which any waiver under section 301(a) first takes effect, the President shall prepare and transmit to Congress a report containing an evaluation of administrative practices under any provision of law which requires determinations to be made of the country of origin of goods, products, commodities, or other articles of commerce. Such evaluation shall be accompanied by the President's recommendations for legislative and executive measures required to improve and simplify and to make more uniform and consistent such practices. Such evaluation and recommendations shall take into account the special problems affecting insular possessions of the United States with respect to such practices. ####
(2)Foreign administrative practices The report required under paragraph
(1)shall contain an evaluation of the administrative practices under the laws of each major industrial country which require determinations to be made of the country of origin of goods, products, commodities, or other articles of commerce, including an assessment of such practices on the exports of the United States. ### (d)8 Annual Report on Foreign Discrimination 8Subsecs.
(d)through
(k)were added by sec. 7003 of the Omnibus Trade and Competitiveness Act of 1988 (Public Law 100–418; 102 Stat. 1548). Sec. 7004 of that Act also contained the following provision, entitled “Sunset Provisions”: ``The amendments made by this title shall cease to be effective on April 30, 1996, unless the Congress, after reviewing the report required by section 305(k) of the Trade Agreements Act of 1979, and other relevant information, extends such date. After such date, the President may modify or terminate any or all actions taken pursuant to such amendments.''. ####
(1)Annual report required The President shall, no later than April 30 of each year, submit to the appropriate committees of the House of Representatives and the Committee on Governmental Affairs of the Senate, as well as other appropriate Senate committees, a report on the extent to which foreign countries discriminate against United States products or services in making government procurements. ####
(2)Identifications required In the annual report, the President shall identify (and continue to identify subject to subsections (f)(5) and (g)(3)) any countries, other than least developed countries, that— #####
(A)are signatories to the Agreement and not in compliance with the requirements of the Agreement; #####
(B)######
(i)are signatories to the Agreement;
(ii)are in compliance with the Agreement but, in the government procurement of products or services not covered by the Agreement, maintain a significant and persistent pattern or practice of discrimination against United States products or services which results in identifiable harm to United States businesses; and
(iii)whose products or services are acquired in significant amounts by the United States Government; #####
(C)######
(i)are not signatories to the Agreement;
(ii)maintain, in government procurement, a significant and persistent pattern or practice of discrimination against United States products or services which results in identifiable harm to United States businesses; and
(iii)whose products or services are acquired in significant amounts by the United States Government; #####
(D)######
(i)are not signatories to the Agreement; ######
(ii)fail to apply transparent and competitive procedures to its government procurement equivalent to those in the Agreement; and ######
(iii)whose products or services are acquired in significant amounts by the United States Government; or #####
(E)######
(i)are not signatories to the Agreement; ######
(ii)fail to maintain and enforce effective prohibitions on bribery and other corrupt practices in connection with government procurement; and ######
(iii)whose products or services are acquired in significant amounts by the United States Government. ####
(3)Considerations in making identifications In making the identifications required by paragraph (1), the President shall— #####
(A)use the requirements of the Agreement, government procurement practices, and the effects of such practices on United States businesses as a basis for evaluating whether the procurement practices of foreign governments do not provide fair market opportunities for United States products or services; #####
(B)take into account, among other factors, whether and to what extent countries that are signatories to the Agreement, and other countries described in paragraph
(1)of this subsection— ######
(i)use sole-sourcing or otherwise noncompetitive procedures for procurements that could have been conducted using competitive procedures; ######
(ii)conduct what normally would have been one procurement as two or more procurements, to decrease the anticipated contract values below the Agreement's value threshold or to make the procurements less attractive to United States businesses; ######
(iii)announce procurement opportunities with inadequate time intervals for United States businesses to submit bids; and ######
(iv)use specifications in such a way as to limit the ability of United States suppliers to participate in procurements; and #####
(C)use any other additional criteria deemed appropriate, including the failure to maintain and enforce effective prohibitions on bribery and other corrupt practices in connection with government procurement. ####
(4)Contents of reports The reports required by this subsection shall include, with respect to each country identified under subparagraph (A), (B), or
(C)of paragraph (1), the following: #####
(A)a description of the specific nature of the discrimination, including (for signatory countries) any provision of the Agreement with which the country is not in compliance; #####
(B)an identification of the United States products or services that are affected by the noncompliance or discrimination; #####
(C)an analysis of the impact of the noncompliance or discrimination on the commerce of the United States and the ability of United States companies to compete in foreign government procurement markets; and #####
(D)a description of the status, action taken, and disposition of cases of noncompliance or discrimination identified in the preceding annual report with respect to such country. ####
(5)Information and advice from government agencies and united states businesses In developing the annual reports required by this subsection, the President shall seek information and advice from executive agencies through the interagency trade organization established under section 242(a) of the Trade Expansion Act of 1962, and from United States businesses in the United States and in countries that are signatories to the Agreement and in other foreign countries whose products or services are acquired in significant amounts by the United States Government. ####
(6)Impact of noncompliance The President shall take into account, in identifying countries in the annual report and in any action required by this section, the relative impact of any noncompliance with the Agreement or of other discrimination on United States commerce and the extent to which such noncompliance or discrimination has impeded the ability of United States suppliers to participate in procurements on terms comparable to those available to suppliers of the country in question when seeking to sell goods or services to the United States Government. ####
(7)Impact on procurement costs Such report shall also include an analysis of the impact on United States Government procurement costs that may occur as a consequence of any sanctions that may be required by subsection
(f)or
(g)of this section. ###
(e)Consultation No later than the date the annual report is submitted under subsection (d)(1), the United States Trade Representative, on behalf of the United States, shall request consultations with any countries identified in the report to obtain their compliance with the Agreement or the elimination of their discriminatory procurement practices unless the country is identified as discriminatory pursuant to section 305(d)(1) in the preceding annual report. ###
(f)Procedures With Respect to Violations of the Agreement ####
(1)Initiation of dispute settlement procedures If, within 60 days after the annual report is submitted under subsection (d)(1), a signatory country identified pursuant to subsection (d)(1)(A) has not complied with the Agreement, then the United States Trade Representative shall promptly request proceedings on the matter under the formal dispute settlement procedures provided under the Agreement unless such proceedings are already underway pursuant to the identification of the signatory country under section 305(d)(1) as not in compliance in a preceding annual report. ####
(2)Settlement of disputes If, before the end of the 18 months following the initiation of dispute settlement procedures— #####
(A)the other participant to the dispute settlement procedures has complied with the Agreement, #####
(B)the other participant to the procedures takes the action recommended as a result of the procedures to the satisfaction of the President, #####
(C)the procedures result in a determination providing a specific period of time for the other participant to bring its practices into compliance with the Agreement, or #####
(D)the procedures result in a determination requiring no action by the other participant, the President shall take no action to limit Government procurement from that participant. ####
(3)Sanctions after dispute resolution fails #####
(A)Failures resulting in sanctions If— ######
(i)within 18 months from the date dispute settlement procedures are initiated with a signatory country pursuant to this section— ######
(I)such procedures are not concluded, or ######
(II)the country has not met the requirements of subparagraph
(A)or
(B)of paragraph (2), or ######
(ii)the period of time provided for pursuant to paragraph (2)(C) has expired and procedures for suspending concessions under the Agreement have been completed, then the sanctions described in subparagraph
(B)shall be imposed. #####
(B)Sanctions ######
(i)In general If subparagraph
(A)applies to any signatory country— ######
(I)the signatory country shall be considered as a signatory not in good standing of the Agreement and the prohibition on procurement contained in section 4 of the Act of March 3, 1933 (41 U.S.C. 10b–1) shall apply to such country, and ######
(II)the President shall revoke the waiver of discriminatory purchasing requirements granted to the signatory country pursuant to section 301(a). ######
(ii)Time sanctions are imposed Any sanction— ######
(I)described in clause (i)(I) shall apply from the date that is the last day of the 18-month period described in subparagraph (A)(i) or, in the case of paragraph (2)(C), from the date procedures for suspending concessions under the Agreement have been completed, and ######
(II)described in clause (i)(II) shall apply beginning on the day after the date described in subclause (I). ####
(4)Withholding and modification of sanctions If the President determines that imposing or continuing the sanctions required by subclause
(I)or
(II)of paragraph (3)(B)(i) would harm the public interest of the United States, the President may, to the extent necessary to apply appropriate limitations that are equivalent, in their effect, to the noncompliance with the Agreement by that signatory country— #####
(A)withhold the imposition of either (but not both) of such sanctions; #####
(B)modify or restrict the application of either or both such sanctions, subject to such terms and conditions as the President considers appropriate; or #####
(C)take any combination of the actions permitted by subparagraph
(A)or
(B)of this paragraph. ####
(5)Termination of sanctions and reinstatement of waivers The President may terminate the sanctions imposed under paragraph
(3)or (4), reinstate the waiver of discriminatory purchasing requirements granted to that signatory country pursuant to section 301(a) of this Act, and remove that country from the report under subsection (d)(1) of this section at such time as the President determines that— #####
(A)the signatory country has complied with the Agreement; #####
(B)the signatory country has taken corrective action as a result of the dispute settlement procedures to the satisfaction of the President; or #####
(C)the dispute settlement procedures result in a determination requiring no action by the other signatory country. ###
(g)Procedures With Respect to Other Discrimination ####
(1)Imposition of sanctions If, within 60 days after the annual report is submitted under subsection (d)(1), a country that is identified pursuant to subparagraph (B), (C), (D), or
(E)of subsection (d)(2) has not eliminated the practices regarding government procurement identified under subparagraph (B)(ii), (C)(ii), (D)(ii), or (E)(ii) (as the case may be) of subsection (d)(2), then, on the day after the end of such 60–day period— #####
(A)the President shall identify such country as a country that maintains, in government procurement, a significant and persistent pattern or practice of discrimination against United States products or services which results in identifiable harm to United States businesses; and #####
(B)the prohibition on procurement contained in section 4 of the Act of March 3, 1933, shall apply to such country. ####
(2)Withholding and modification of sanctions If the President determines that imposing or continuing the sanction required by paragraph
(1)would harm the public interest of the United States, the President may, to the extent necessary to impose appropriate limitations that are equivalent, in their effect, to the discrimination against United States products or services in government procurement by that country, modify or restrict the application of such sanction, subject to such terms and conditions as the President considers appropriate. ####
(3)Termination of sanctions The President may terminate the sanctions imposed under paragraph
(1)or
(2)and remove a country from the report under subsection (d)(1) at such time as the President determines that the country has eliminated the practices regarding government procurement identified under subparagraph (B)(ii), (C)(ii), (D)(ii), or (E)(ii) (as the case may be) of subsection (d)(2). ###
(h)Limitations on Imposing Sanctions ####
(1)Avoiding adverse impact on competition The President shall not take any action under subsection
(f)or
(g)of this section if the President determines that such action— #####
(A)would limit the procurement or class of procurements to, or would establish a preference for, the products or services of a single manufacturer or supplier; or #####
(B)would, with respect to any procurement or class of procurements, result in an insufficient number of potential or actual bidders to assure procurement of services, articles, materials, or supplies of requisite quality at competitive prices. ####
(2)Advice from U.S. agencies and businesses The President, in taking any action under this subsection to limit government procurements from foreign countries, shall seek the advice of executive agencies through the interagency trade organization established under section 242(a) of the Trade Expansion Act of 1962 and the advice of United States businesses and other interested parties. ###
(i)Renegotiation To Secure Full and Open Competition The President shall instruct the United States Trade Representative, in conducting renegotiations of the Agreement, to seek improvements in the Agreement that will secure full and open competition consistent with the requirements imposed by the amendments made by the Competition in Contracting Act (Public Law 98–369; 98 Stat. 1175). ###
(j)Federal Register Notices of Actions ####
(1)Notices required A notice shall be published in the Federal Register on the date of any action under this section, describing— #####
(A)the results of dispute settlement proceedings under subsection (f)(2); #####
(B)any sanction imposed under subsection (f)(3) or (g)(1); #####
(C)any withholding, modification, or restriction of any sanction under subsection (f)(4) or (g)(2); and #####
(D)the termination of any sanction under subsection (f)(5) or (g)(3). ####
(2)Publication of determinations lifting sanctions A notice describing the termination of any sanction under subsection (f)(5) or (g)(3) shall include a copy of the President's determination under such subsection. ###
(k)General Report on Actions Under This Section ####
(1)Advice to the congress The President shall, as necessary, advise the Congress and, by no later than April 30, 1994, submit to the appropriate committees of the House of Representatives, and to the Committee on Governmental Affairs and other appropriate committees of the Senate, a general report on actions taken pursuant to this section. ####
(2)Contents of report The general report required by this subsection shall include an evaluation of the adequacy and effectiveness of actions taken pursuant to subsections (e), (f), and
(g)of this section as a means toward eliminating discriminatory government procurement practices against United States businesses. ####
(3)Legislative recommendations The general report may also include, if appropriate, legislative recommendations for enhancing the usefulness of this section or for other measures to be used as means for eliminating or responding to discriminatory foreign government procurement practices. **[**[19 U.S.C. 2515](/us/usc/t19/s2515)**]**
Connectionstraces to 1
Traces to 1 document
U.S. Code
5 references not yet in our index
- Pub. L. 100-418
- 102 Stat. 1548
- 41 USC 10b–1
- Pub. L. 98-369
- 98 Stat. 1175
Citation graph
cites case law
Sec. 305
MONITORING AND ENFORCEMENT
Pub. L.Pub. L. 100-418
Stat.102 Stat. 1548
Cite41 USC 10b–1
Pub. L.Pub. L. 98-369
Stat.98 Stat. 1175
Cites 6Cited by 0 across 0 sources