Title 15—Commerce and Foreign Trade--Volume 1
PART 2006—PROCEDURES FOR FILING PETITIONS FOR ACTION UNDER SECTION 301 OF THE TRADE ACT OF 1974, AS AMENDED
§ 2006.0   Submission of petitions requesting action under section 301.
(a) Section 301 of the Trade Act of 1974, as amended (the “Trade Act”) requires the United States Trade Representative, subject to the specific direction, if any, of the President regarding such action, to take appropriate and feasible action in response to a foreign government's violation of a trade agreement, or any other international agreement the breach of which burdens or restricts United States commerce; and authorizes the Trade Representative, subject to the specific direction of the President, if any, to take action to obtain the elimination of acts, policies, and practices of foreign countries that are unjustifiable, unreasonable, or discriminatory and burden or restrict United States commerce. Section 302 of the Trade Act provides for petitions to be filed with the Trade Representative requesting that action be taken under section 301. Petitions filed under section 302 will be treated as specified in these regulations.
(b) Petitions may be submitted by an interested person. An interested person is deemed to be any party who has a significant interest affected by the act, policy, or practice complained of, for example: A producer, a commercial importer, or an exporter of an affected product or service; a United States person seeking to invest directly abroad, with implications for trade in goods or services; a person who relies on protection of intellectual property rights; a trade association, a certified union or recognized union or group of workers which is representative of an industry engaged in the manufacture, production or wholesale distribution in the United States of a product or service so affected; or any other private party representing a significant economic interest affected directly by the act, policy or practice complained of in the petition.
(c) The petitioner shall submit 20 copies of the petition in English, clearly typed, photocopied, or printed to: Chairman, Section 301 Committee, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20506.
To ensure proper docketing, petitions may be filed only during the following hours on days when the Federal Government is open for business: between 9 a.m. and 12 noon and 1 p.m. to 5 p.m.
(d) Recorded information on section 302 petitions and investigations may be obtained by calling (202) 395-3871.
§ 2006.1   Information to be included in petition.
(a) General information. Petitions submitted pursuant to section 302 of the Trade Act shall clearly state on the first page that the petition requests that action be taken under section 301 of the Trade Act and shall contain allegations and information reasonably available to petitioner in support of the request, in the form specified below. Petitioners for whom such information is difficult or impossible to obtain shall provide as much information as possible, and assistance in filing their petition may be obtained through the Chairman of the Section 301 Committee. All petitions shall:
(1) Identify the petitioner and the person, firm or association, if any, which petitioner represents and describe briefly the economic interest of the petitioner which is directly affected by the failure of a foreign government or instrumentality to grant rights of the United States under a trade agreement, or which is otherwise directly affected economically by an act, policy, or practice which is actionable under section 301.
(2) Describe the rights of the United States being violated or denied under the trade agreement which petitioner seeks to enforce or the other act, policy or practice which is the subject of the petition, and provide a reference to the particular part of section 301 related to the assertion in the petition.
(3) Include, wherever possible, copies of laws or regulations which are the subject of the petition. If this is not possible, the laws and regulations shall be identified with the greatest possible particularity, such as by citation.
(4) Identify the foreign country or instrumentality with whom the United States has an agreement under which petitioner is asserting rights claimed to be denied or whose acts, policies or practices are the subject of the petition.
(5) Identify the product, service, intellectual property right, or foreign direct investment matter for which the rights of the United States under the agreement claimed to be violated or denied are sought, or which is subject to the act, policy or practice of the foreign government or instrumentality named in paragraph (a)(4) of this section.
(6) Demonstrate that rights of the United States under a trade agreement are not being provided; or show the manner in which the act, policy or practice violates or is inconsistent with the provisions of a trade agreement or otherwise denies benefits accruing to the United States under a trade agreement, or is unjustifiable, unreasonable, or discriminatory and burdens or restricts United States commerce.
(7) Provide information concerning
(i) The degree to which U.S. commerce is burdened or restricted by the denial of rights under a trade agreement or by any other act, policy, or practice which is actionable under section 301,
(ii) The volume of trade in the goods or services involved, and
(iii) A description of the methodology used to calculate the burden or restriction on U.S. commerce.
(8) State whether petitioner has filed or is filing for other forms of relief under the Trade Act or any other provision of law. If the foreign government practice at issue is the subject of investigation under any other provision of law, the USTR may determine not to initiate an investigation; or if the same matter is subsequently subject to investigation under some other provision of law, USTR may terminate the section 302 investigation.
(b) Additional specific information —(1) Subsidies. If the petition includes an assertion that subsidy payments are having an adverse effect upon products or services of the United States in United States' markets or in other foreign markets, it shall include an analysis supporting any claim that the subsidy complained of is inconsistent with any trade agreement and describe the manner in which it burdens or restricts United States commerce.
(2) Certain unreasonable practices. If the petition asserts that an unreasonable practice defined in section 301(d) (3) denies fair and equitable opportunities for the establishment of an enterprise, or denies adequate and effective protection of intellectual property rights, or denies fair and equitable market opportunities, and burdens or restricts U.S. commerce, the petition should include, to the extent possible, identification of reciprocal opportunities in the United States that may exist for foreign nationals and firms; and
(i) If the petition asserts that fair and equitable opportunities for the establishment of an enterprise in a foreign country are denied, the petition shall
(A) Describe in detail the nature of any foreign direct investment proposed by the United States person, including estimates of trade in goods and services that could reasonably be expected to result from that investment,
(B) Indicate the manner in which the foreign government is denying the United States person a fair and equitable opportunity for the establishment of an enterprise,
(C) State whether action by the foreign government is in violation of or inconsistent with the international legal rights of the United States, citing the relevant provisions of any international agreements to which the United States and the foreign government are party, and
(D) To the extent possible, provide copies of all relevant foreign government statutes, regulations, directives, public policy statements and correspondence with the United States person with respect to the proposed investment.
(ii) If the petition asserts that fair and equitable provision of adequate and effective protection of intellectual property rights in a foreign country is denied, the petition shall
(A) Identify the intellectual property right for which protection has been sought,
(B) Indicate how persons who are not citizens or nationals of such foreign country are denied the opportunity to secure, exercise, and enforce rights relating to patents, process patents, registered trademarks, copyrights, or mask works, and
(C) Provide information on the relevant laws of the foreign country and an analysis of how the foreign country's law or policies conform to provisions of international law or international agreements to which both the United States and the foreign country are parties;
(iii) If the petition asserts that fair and equitable market opportunities are denied through the toleration by a foreign government of systematic private anticompetitive activities, the petition shall specifically
(A) Identify the private firms in the foreign country whose systematic anticompetitive activities have the effect of restricting access of United States goods to purchasing by those firms, inconsistent with commercial considerations,
(B) Describe in detail the private activities in question,
(C) State whether evidence of such activities has been provided (by petitioner or others) to the appropriate foreign government authorities, and describe the evidence indicating that the foreign government is aware of and supports, encourages, or tolerates such activities,
(D) Describe the duration and pervasiveness of such activities,
(E) Indicate whether such activities are inconsistent with the laws of the foreign country involved, making specific reference to any laws in question, and
(F) Indicate whether the foreign government's enforcement of (or failure to enforce) its relevant laws with respect to the private activities at issue is inconsistent with its enforcement practices in other situations;
(iv) If the petition asserts that an act, policy or practice, or combination thereof constitutes export targeting, the petition shall
(A) Identify the specific enterprise, industry, or group thereof which has been assisted in becoming more competitive in the export of the affected product or products,
(B) Describe the elements of the foreign government's plan or scheme consisting of coordinated actions to assist that enterprise, industry, or group, and
(C) Provide information on how and to what degree exports of the affected products by that enterprise, industry, or group have become more competitive as a result of the foreign government's plan or scheme; and
(v) If the petition asserts that an act, policy or practice, or combination thereof constitutes a persistent pattern of conduct that denies workers the right of association or the right to organize and bargain collectively, or permits forced or compulsory labor, or fails to provide a minimum age for employment of children or standards for minimum wages, hours, and occupational safety and health of workers, the petition shall
(A) Describe the rights or standards denied and provide information on the laws, policies and practices of the foreign country involved, if any, that relate to such rights or standards, and
(B) Indicate, to the extent such information is available to petitioner, whether the foreign country has taken, or is taking, actions that demonstrate a significant and tangible overall advancement in providing these rights or standards.
§ 2006.2   Adequacy of the petition.
If the petition filed pursuant to section 302 does not conform substantially to the requirements of §§ 2006.0 and 2006.1, the Chairman of the Section 301 Committee may decline to docket the petition as filed and, if requested by petitioner, return it to petitioner with guidance on making the petition conform to the requirements, or may nevertheless determine that there is sufficient information on which to proceed to a determination whether to initiate an investigation.
§ 2006.3   Determinations regarding petitions.
Within 45 days after the day on which the petition is received, the Trade Representative shall determine, after receiving the advice of the Section 301 Committee, whether to initiate an investigation.
(a) If the Trade Representative determines not to initiate an investigation, the Section 301 Chairman shall notify the petitioner of the reasons and shall publish notice of the negative determination and a summary of the reasons therefor in the Federal Register.
(b) If the Trade Representative determines to initiate an investigation regarding the petition, the Section 301 Chairman shall publish a summary of the petition in the Federal Register, and provide an opportunity for the presentation of views concerning the issues, including a public hearing if requested. A hearing may be requested by the petitioner or any interested person, including but not limited to a domestic firm or worker, a representative of consumer interests, a United States product exporter, or any industrial user of any goods or services that may be affected by actions taken under section 301 with respect to the act, policy or practice that is the subject of the petition.
§ 2006.4   Requests for information made to Foreign Governments or Instrumentalities.
If the U.S. Trade Representative receives a petition alleging violations of any international agreement, he will notify the foreign government or instrumentality of the allegations and may request information, in English, necessary to a determination under section 304(a)(1)(A) of the Trade Act. The Trade Representative may proceed on the basis of best information available if, within a reasonable time, no information is received in response to the request.
§ 2006.5   Consultations with the Foreign Government.
(a) If the Trade Representative determines to initiate an investigation on the basis of a petition he shall, on behalf of the United States, request consultations with the foreign country concerned regarding the issues involved in such an investigation. In preparing United States presentations for consultations and dispute settlement proceedings, the Trade Representative shall seek information and advice from the petitioner and any appropriate private sector representatives, including committees established pursuant to section 135 of the Trade Act.
(b) To ensure an adequate basis for consultation, the Trade Representative may, after consulting with the petitioner, delay requests for consultations for up to 90 days in order to verify or improve the petition. If consultations are delayed, the time limits referred to in § 2006.12 below shall be extended for the period of such delay.
§ 2006.6   Formal dispute settlement.
If the issues in a petition are covered by a trade agreement between the United States and the foreign government involved and a mutually acceptable resolution cannot be reached within the consultation period provided for in the agreement, or by 150 days after consultations begin, whichever is earlier, the Trade Representative shall institute the formal dispute settlement proceedings, if any, provided for in the trade agreement.
§ 2006.7   Public hearings.
(a) A public hearing for the purpose of receiving views on the issues raised in a petition shall be held by the Section 301 Committee:
(1) Within 30 days after the date that an investigation is initiated under section 302(a)(2) if a hearing is requested in the petition (or later, if agreed to by the petitioner); or
(2) Within a reasonable period if, after the investigation is initiated, a timely request is made by the petitioner, or any other interested person as defined in § 2006.3(b).
(b) Prior to making a recommendation on what action, if any, should be taken in response to issues raised in the petition, the Section 301 Committee shall hold a public hearing upon the written request of any interested person. An interested person should submit an application to the Section 301 Chairman stating briefly the interest of the person requesting the hearing, the firm, person, or association he represents, and the position to be taken. A hearing so requested shall be held:
(1) Prior to determining what action should be taken under section 301, and after at least 30 days' notice; or
(2) Within 30 days after the determination of action is made, if the Trade Representative determines that expeditious action is required.
(c) After receipt of a request for a public hearing under sections 302(a)(4)(B) or 304(b)(1)(A) of the Trade Act, the Chairman of the Section 301 Committee will notify the applicant whether the request meets the requirements of this part, and if not, the reasons therefor. If the applicant has met the requirements of this part, he will receive at least 30 days' notice of the time and place of the hearing.
(d) Notice of public hearings to be held under sections 302(a)(4)(B) and 304(b)(1)(A) shall be published in the Federal Register by the Chairman of the Section 301 Committee.
§ 2006.8   Submission of written briefs.
(a) In order to participate in the presentation of views either at a public hearing or otherwise, an interested person must submit a written brief before the close of the period of submission announced in the public notice. The brief may be, but need not be, supplemented by the presentation of oral testimony in any public hearing scheduled in accordance with § 2006.7.
(b) The brief shall state clearly the position taken and shall describe with particularity the supporting rationale. It shall be submitted in 20 copies, which must be legibly typed, printed, or duplicated.
(c) In order to assure each interested person an opportunity to contest the information provided by other parties, the Section 301 Committee will entertain rebuttal briefs filed by any interested person within a time limit specified in the public notice. Rebuttal briefs should be strictly limited to demonstrating errors of fact or analysis not pointed out in the briefs or hearing and should be as concise as possible.
§ 2006.9   Presentation of oral testimony at public hearings.
(a) A request by an interested person to present oral testimony at a public hearing shall be submitted in writing before the close of the period of submission announced in the public notice and shall state briefly the interest of the applicant. Such request will be granted if a brief has been submitted in accordance with § 2006.8.
(b) After consideration of a request to present oral testimony at a public hearing, the Chairman of the Section 301 Committee will notify the applicant whether the request conforms to the requirements of § 2006.8(a) and, if it does not, will give the reasons. If the applicant has submitted a conforming request he shall be notified of the time and place for the hearing and for his oral testimony.
§ 2006.10   Waiver of requirements.
To the extent consistent with the requirements of the Trade Act, the requirements of §§ 2006.0 through 2006.3 and 2006.8 may be waived by the Trade Representative or the Chairman of the Section 301 Committee upon a showing of good cause and for reasons of equity and the public interest.
§ 2006.11   Consultations before making determinations.
Prior to making a determination on what action, if any, should be taken in regard to issues raised in the petition, the Trade Representative shall obtain advice from any appropriate private sector advisory representatives, including committees established pursuant to section 135 of the Trade Act, unless expeditious action is required, in which case he shall seek such advice after making the determination. The Trade Representative may also request the views of the International Trade Commission regarding the probable economic impact of the proposed action.
§ 2006.12   Determinations; time limits.
On the basis of the petition, investigation and consultations, and after receiving the advice of the Section 301 Committee, the Trade Representative shall determine whether U.S. rights under any trade agreement are being denied, or whether any other act, policy, or practice actionable under section 301 exists and, if so, what action (if any) should be taken under section 301. These determinations shall be made:
(a) In the case of an investigation involving a trade agreement (other than the agreement on subsidies and countervailing measures described in section 2(c)(5) of the Trade Agreements Act of 1979), within 30 days after the dispute settlement procedure concludes, or 18 months after the initiation of the investigation, whichever is earlier.
(b) In all other cases, within 12 months after initiating an investigation.
§ 2006.13   Information open to public inspection.
(a) With the exception of information subject to § 2006.15, an interested person may, upon advance request, inspect at a public reading room in the Office of the United States Trade Representative:
(1) Any written petition, brief, or similar submission of information (other than that to which confidentiality applies) made in the course of a section 302 proceeding;
(2) Any stenographic record of a public hearing held pursuant to section 302 or 304.
(b) In addition, upon written request submitted in accordance with section 308 of the Trade Act, any person may obtain from the Section 301 Chairman the following, to the extent that such information is available to the Office of the U.S. Trade Representative or other Federal agencies:
(1) Information on the nature and extent of a specific trade policy or practice of a foreign government or instrumentality with respect to particular goods, services, investment, or intellectual property rights;
(2) Information on United States rights under any trade agreement and the remedies which may be available under that agreement and under the laws of the United States; and
(3) Information on past and present domestic and international proceedings or actions with respect to the policy or practice concerned.
(c) An appropriate fee will be charged for duplication of documents requested under § 2006.13.
§ 2006.14   Information not available.
If the Office of the U.S. Trade Representative does not have, and cannot obtain from other Federal agencies, information requested in writing by any person, the Section 301 Chairman shall, within 30 days after the receipt of the request:
(a) Request the information from the foreign government involved; or
(b) Decline to request the information and inform the person in writing of the reasons for the refusal.
§ 2006.15   Information exempt from public inspection.
(a) The Chairman of the Section 301 Committee shall exempt from public inspection business information submitted in confidence if he determines that such information involves trade secrets or commercial and financial information the disclosure of which is not authorized by the person furnishing such information nor required by law.
(b) An interested person requesting that the Chairman exempt from public inspection confidential business information submitted in writing must certify in writing that such information is business confidential, the disclosure of such information would endanger trade secrets or profitability, and such information is not generally available. The information submitted must be clearly marked “BUSINESS CONFIDENTIAL” in a contrasting color ink at the top of each page on each copy, and shall be accompanied by a nonconfidential summary of the confidential information.
(c) The Section 301 Chairman may use such information, or make such information available (in his own discretion) to any employee of the Federal Government for use in any investigation under section 302, or make such information available to any other person in a form which cannot be associated with, or otherwise identify, the person providing the information.
(d) The Section 301 Chairman may deny a request that he exempt from public inspection any particular business information if he determines that such information is not entitled to exemption under law. In the event of a denial, the interested person submitting the particular business information will be notified of the reasons for the denial and will be permitted to withdraw the submission.