§ 2515. — Monitoring and enforcement.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 19USC2515]
TITLE 19--CUSTOMS DUTIES
CHAPTER 13--TRADE AGREEMENTS ACT OF 1979
SUBCHAPTER I--GOVERNMENT PROCUREMENT
Sec. 2515. Monitoring and enforcement
(a) Monitoring and enforcement structure recommendations
In the preparation of the recommendations for the reorganization of
trade functions, the President shall ensure that careful consideration
is given to monitoring and enforcing the requirements of the Agreement
and this subchapter, 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 2511(b) of
this title.
(b) Rules of origin
(1) Advisory rulings and final determinations
For the purposes of this subchapter, the Secretary of the
Treasury shall provide for the prompt issuance of advisory rulings
and final determinations on whether, under section 2518(4)(B) of
this title, an article is or would be a product of a foreign country
or instrumentality designated pursuant to section 2511(b) of this
title.
(2) Penalties for fraudulent conduct
In addition to any other provisions of law which may be
applicable, section 1001 of title 18 shall apply to fraudulent
conduct with respect to the origin of products for purposes of
qualifying for a waiver under section 2511 of this title or avoiding
a prohibition under section 2512 of this title.
(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 2511(a) of
this title 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.
(Pub. L. 96-39, title III, Sec. 305, July 26, 1979, 93 Stat. 239; Pub.
L. 100-418, title VII, Sec. 7003, Aug. 23, 1988, 102 Stat. 1548; Pub. L.
103-465, title III, Secs. 341, 342(c), 343(c), Dec. 8, 1994, 108 Stat.
4951, 4953, 4955; Pub. L. 104-295, Sec. 20(c)(10), (13), Oct. 11, 1996,
110 Stat. 3528.)
Amendments
1996--Subsec. (d)(2)(B), (C). Pub. L. 104-295, Sec. 20(c)(10),
struck out ``or'' at end of subpar. (B) and substituted semicolon for
period at end of subpar. (C).
Subsec. (g)(1). Pub. L. 104-295, Sec. 20(c)(13)(A), in introductory
provisions, substituted ``of subsection (d)(2) of this section'' for
``of such subsection'' and inserted ``of subsection (d)(2) of this
section'' after ``(as the case may be)''.
Subsec. (g)(3). Pub. L. 104-295, Sec. 20(c)(13)(B), substituted
``eliminated the practices'' for ``eliminated the the practices'' and
inserted ``of subsection (d)(2) of this section'' after ``(as the case
may be)''.
1994--Subsec. (d)(1). Pub. L. 103-465, Sec. 342(c), substituted
``April 30 of each year,'' for ``April 30, 1990, and annually on April
30 thereafter,''.
Subsec. (d)(2)(D), (E). Pub. L. 103-465, Sec. 341(c)(1), added
subpars. (D) and (E) which read as follows:
``(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.''
Subsec. (d)(3)(C). Pub. L. 103-465, Sec. 341(c)(2), inserted before
period at end ``, including the failure to maintain and enforce
effective prohibitions on bribery and other corrupt practices in
connection with government procurement''.
Subsec. (f)(2). Pub. L. 103-465, Sec. 341(a)(1), substituted ``the
18 months'' for ``a year'' in introductory provisions.
Subsec. (f)(2)(B) to (D). Pub. L. 103-465, Sec. 341(a)(2)-(4),
struck out ``or'' at end of subpar. (B), redesignated subpar. (C) as
(D), and added a new subpar. (C) which read as follows: ``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''.
Subsec. (f)(3). Pub. L. 103-465, Sec. 341(b)(1), amended heading and
text of par. (3) to read as follows:
``(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 10b-1 of
title 41 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 2511(a) of this title.
``(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).''
Subsec. (f)(4). Pub. L. 103-465, Sec. 341(b)(2), substituted
``subclause (I) or (II) of paragraph (3)(B)(i)'' for ``subparagraph (A)
or (B) of paragraph (3)'' in introductory provisions.
Subsec. (g)(1). Pub. L. 103-465, Sec. 343(c)(1), in introductory
provisions, substituted ``(B), (C), (D), or (E)'' for ``(B) or (C)'' and
``the practices regarding government procurement identified under
subparagraph (B)(ii), (C)(ii), (D)(ii), or (E)(ii) (as the case may
be)'' for ``their discriminatory procurement practices''.
Subsec. (g)(3). Pub. L. 103-465, Sec. 343(c)(2), substituted ``the
practices regarding government procurement identified under subparagraph
(B)(ii), (C)(ii), (D)(ii), or (E)(ii) (as the case may be)'' for
``discrimination identified pursuant to subsection (d)(2)(B) or (C) of
this section''.
1988--Subsecs. (d) to (k). Pub. L. 100-418, Secs. 7003, 7004,
temporarily added subsecs. (d) to (k) which read as follows:
``(d) Annual Report on Foreign Discrimination.--
``(1) Annual report required.--The President shall, no later
than April 30 1990, and annually on April 30 thereafter, 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) of this section) 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; or
``(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.
``(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.
``(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 1872(a) of this title, 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) of this section, 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 subsection (d)(1) of this section in the
preceding annual report.
``(f) Procedures With Respect to Violations of Agreement.--
``(1) Initiation of dispute settlement procedures.--If, within
60 days after the annual report is submitted under subsection (d)(1)
of this section, a signatory country identified pursuant to
subsection (d)(1)(A) of this section 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 subsection (d)(1) of this section as not
in compliance in a preceding annual report.
``(2) Settlement of disputes.--If, before the end of a year
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, or
``(C) 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 failure of dispute resolution.--If the
dispute settlement procedures initiated pursuant to this subsection
with any signatory country to the Agreement are not concluded within
one year from their initiation or the country has not met the
requirements of paragraph (2)(A) or (2)(B), then--
``(A) from the end of such one year period, such signatory
country shall be considered as a signatory not in good standing
of the Agreement and the prohibition on procurement contained in
section 10b-1 of title 41 shall apply to such country; and
``(B) on the day after the end of such one year period, the
President shall revoke the waiver of discriminatory purchasing
requirements granted to that signatory country pursuant to
section 2511(a) of this title.
``(4) Withholding and modification of sanctions.--If the
President determines that imposing or continuing the sanctions
required by subparagraph (A) or (B) of paragraph (3) 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
2511(a) of this title, 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) of this section,
a country that is identified pursuant to subparagraph (B) or (C) of
such subsection has not eliminated their discriminatory procurement
practices, 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
10b-1 of title 41 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) of this section at such time
as the President determines that the country has eliminated the
discrimination identified pursuant to subsection (d)(2)(B) or (C) of
this section.
``(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 1872(a) of this title 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) of this section;
``(B) any sanction imposed under subsection (f)(3) or (g)(1)
of this section;
``(C) any withholding, modification, or restriction of any
sanction under subsection (f)(4) or (g)(2) of this section; and
``(D) the termination of any sanction under subsection
(f)(5) or (g)(3) of this section.
``(2) Publication of determinations lifting sanctions.--A notice
describing the termination of any sanction under subsection (f)(5)
or (g)(3) of this section shall include a copy of the President's
determination under such subsection.
``(k) General Report on Actions Under This Section.--
``(1) Advice to congress.--The President shall, as necessary,
advise the Congress and, by no later than April 30, 1994, submit to
the the [sic] 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.''
See Termination Date of 1988 Amendment note below.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103-465 effective on the date on which the
Agreement on Government Procurement, referred to in section 3511(d)(17)
of this title, enters into force with respect to the United States [Jan.
1, 1995], see section 344(a) of Pub. L. 103-465, set out as a note under
section 2512 of this title.
Termination Date of 1988 Amendment
Amendment by Pub. L. 100-418 to cease to be effective on Apr. 30,
1996, unless Congress, after reviewing report required by former
subsection (k) of this section, extends such date, see section 7004 of
Pub. L. 100-418, set out as an Effective and Termination Dates of 1988
Amendments note under section 10a of Title 41, Public Contracts.
Transfer of Functions
Functions of Secretary of the Treasury under subsec. (b) of this
section transferred to Secretary of Commerce, to exercise in
consultation with Secretary of the Treasury, by section 5(a)(1)(A) of
Reorg. Plan No. 3 of 1979, 44 F.R. 69274, 93 Stat. 1381, eff. Jan. 2,
1980, as provided by section 1-107(a) of Ex. Ord. No. 12188, Jan. 2,
1980, 45 F.R. 993, set out as notes under section 2171 of this title.
Pub. L. 96-609, title II, Sec. 205, Dec. 28, 1980, 94 Stat. 3562,
provided that: ``Notwithstanding subparagraph (1)(A) of subsection 5(a)
of Reorganization Plan No. 3 of 1979 (44 F.R. 69272, 93 Stat. 1381) [set
out as a note under section 2171 of this title], the Secretary of the
Treasury or his delegate shall issue such advisory rulings and make such
determinations as are authorized by subsection 305(b)(1) of the Trade
Agreements Act of 1979 (19 U.S.C. 2515(b)(1)).''
Delegation of Functions
Functions of President under subsec. (c) of this section delegated
to United States Trade Representative, see section 1-201 of Ex. Ord. No.
12260, Dec. 31, 1980, 46 F.R. 1653, set out as a note under section 2511
of this title.
Section Referred to in Other Sections
This section is referred to in title 24 section 225h; title 28
sections 1581, 2631, 2636, 2640; title 49 section 50102.
