SUBCHAPTER III—APPLICATION OF USMCA TO SECTORS AND SERVICES

Part A—Relief From Injury Caused by Import Competition

Editorial Notes

Codification

Pub. L. 116–113, title V, §502(a), (d), Jan. 29, 2020, 134 Stat. 70, struck out "[reserved]" at end of part heading and reenacted part heading without change.

§4551. USMCA article impact in import relief cases under Trade Act of 1974

(a) In general

If, in any investigation initiated under chapter 1 of title II of the Trade Act of 1974 [19 U.S.C. 2251 et seq.], the International Trade Commission makes an affirmative determination (or a determination which the President may treat as an affirmative determination under such chapter by reason of section 1330(d) of this title), the International Trade Commission shall also find (and report to the President at the time such injury determination is submitted to the President) whether—

(1) imports of the article from a USMCA country, considered individually, account for a substantial share of total imports; and

(2) imports of the article from a USMCA country, considered individually or, in exceptional circumstances, imports from USMCA countries considered collectively, contribute importantly to the serious injury, or threat thereof, caused by imports.

(b) Factors

(1) Substantial import share

In determining whether imports from a USMCA country, considered individually, account for a substantial share of total imports, such imports normally shall not be considered to account for a substantial share of total imports if that country is not among the top 5 suppliers of the article subject to the investigation, measured in terms of import share during the most recent 3-year period.

(2) Application of "contribute importantly" standard

In determining whether imports from a USMCA country or countries contribute importantly to the serious injury, or threat thereof, the International Trade Commission shall consider such factors as the change in the import share of the USMCA country or countries, and the level and change in the level of imports of such country or countries. In applying the preceding sentence, imports from a USMCA country or countries normally shall not be considered to contribute importantly to serious injury, or the threat thereof, if the growth rate of imports from such country or countries during the period in which an injurious increase in imports occurred is appreciably lower than the growth rate of total imports from all sources over the same period.

(c) "Contribute importantly" defined

For purposes of this section and section 4552(a) of this title, the term "contribute importantly" refers to an important cause, but not necessarily the most important cause.

(Pub. L. 116–113, title III, §301, formerly Pub. L. 103–182, title III, §311, Dec. 8, 1993, 107 Stat. 2106; renumbered §301 of Pub. L. 116–113 and amended Pub. L. 116–113, title V, §502(b), Jan. 29, 2020, 134 Stat. 70.)

Editorial Notes

References in Text

The Trade Act of 1974, referred to in subsec. (a), is Pub. L. 93–618, Jan. 3, 1975, 88 Stat. 1978. Chapter 1 of title II of the Act is classified generally to part 1 (§2251 et seq.) of subchapter II of chapter 12 of this title. For complete classification of this Act to the Code, see section 2101 of this title and Tables.

Codification

Section was formerly classified to section 3371 of this title prior to renumbering by Pub. L. 116–113.

Amendments

2020—Pub. L. 116–113, §502(b)(4)(A), (C), substituted "USMCA" for "NAFTA" in section catchline and wherever appearing in text.

Subsec. (c). Pub. L. 116–113, §502(b)(4)(B), substituted "section 4552(a) of this title" for "section 3372(a) of this title".

Statutory Notes and Related Subsidiaries

Effective Date of 2020 Amendment

Pub. L. 116–113, title V, §502(e), Jan. 29, 2020, 134 Stat. 70, provided that:

"(1) In general.—Each transfer, redesignation, and amendment made by this section [transferring sections 3371 and 3372 of this title, respectively, to and amending this section and section 4552 of this title] shall—

"(A) take effect on the date on which the USMCA enters into force [July 1, 2020]; and

"(B) apply with respect to an investigation under chapter 1 of title II of the Trade Act of 1974 (19 U.S.C. 2251 et seq.) initiated on or after that date.

"(2) Transition from nafta.—In the case of an investigation under chapter 1 of title II of the Trade Act of 1974 initiated before the date on which the USMCA enters into force—

"(A) the transfers, redesignations, and amendments made by this section shall not apply with respect to the investigation; and

"(B) sections 311 and 312 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3371 and 3372), as in effect on the day before that date, shall continue to apply on and after that date with respect to the investigation."

[For definition of "USMCA" as used in section 502(e) of Pub. L. 116–113, set out above, see section 4502 of this title.]

§4552. Presidential action regarding USMCA imports

(a) In general

In determining whether to take action under chapter 1 of title II of the Trade Act of 1974 [19 U.S.C. 2251 et seq.] with respect to imports from a USMCA country, the President shall determine whether—

(1) imports from such country, considered individually, account for a substantial share of total imports; or

(2) imports from a USMCA country, considered individually, or in exceptional circumstances imports from USMCA countries considered collectively, contribute importantly to the serious injury, or threat thereof, found by the International Trade Commission.

(b) Exclusion of USMCA imports

In determining the nature and extent of action to be taken under chapter 1 of title II of the Trade Act of 1974 [19 U.S.C. 2251 et seq.], the President shall exclude from such action imports from a USMCA country if the President makes a negative determination under subsection (a)(1) or (2) with respect to imports from such country.

(c) Action after exclusion of USMCA country imports

(1) In general

If the President, under subsection (b), excludes imports from a USMCA country or countries from action under chapter 1 of title II of the Trade Act of 1974 [19 U.S.C. 2251 et seq.] but thereafter determines that a surge in imports from that country or countries is undermining the effectiveness of the action—

(A) the President may take appropriate action under such chapter 1 to include those imports in the action; and

(B) any entity that is representative of an industry for which such action is being taken may request the International Trade Commission to conduct an investigation of the surge in such imports.

(2) Investigation

Upon receiving a request under paragraph (1)(B), the International Trade Commission shall conduct an investigation to determine whether a surge in such imports undermines the effectiveness of the action. The International Trade Commission shall submit the findings of its investigation to the President no later than 30 days after the request is received by the International Trade Commission.

(3) "Surge" defined

For purposes of this subsection, the term "surge" means a significant increase in imports over the trend for a recent representative base period.

(d) Condition applicable to quantitative restrictions

Any action taken under this section proclaiming a quantitative restriction shall permit the importation of a quantity or value of the article which is not less than the quantity or value of such article imported into the United States during the most recent period that is representative of imports of such article, with allowance for reasonable growth.

(Pub. L. 116–113, title III, §302, formerly Pub. L. 103–182, title III, §312, Dec. 8, 1993, 107 Stat. 2107; renumbered §302 of Pub. L. 116–113 and amended Pub. L. 116–113, title V, §502(c), Jan. 29, 2020, 134 Stat. 70.)

Editorial Notes

References in Text

The Trade Act of 1974, referred to in subsecs. (a) to (c), is Pub. L. 93–618, Jan. 3, 1975, 88 Stat. 1978. Chapter 1 of title II of the Act is classified generally to part 1 (§2251 et seq.) of subchapter II of chapter 12 of this title. For complete classification of this Act to the Code, see section 2101 of this title and Tables.

Codification

Section was formerly classified to section 3372 of this title prior to renumbering by Pub. L. 116–113.

Amendments

2020—Pub. L. 116–113, §502(c)(4), substituted "USMCA" for "NAFTA" in section catchline, subsec. (b) and (c) headings, and wherever appearing in text.

Statutory Notes and Related Subsidiaries

Effective Date of 2020 Amendment

Transfer to and amendment of this section by Pub. L. 116–113 effective on the date on which the USMCA enters into force (July 1, 2020) and applicable with respect to an investigation under chapter 1 of title II of the Trade Act of 1974 (19 U.S.C. 2251 et seq.) initiated on or after that date, see section 502(e) of Pub. L. 116–113, set out as a note under section 4551 of this title.

Part B—Temporary Entry of Business Persons

Editorial Notes

Codification

Pub. L. 116–113, title V, §503(a), (e), Jan. 29, 2020, 134 Stat. 71, 72, struck out "[reserved]" at end of part heading and reenacted part heading without change.

§4561. Temporary entry

Upon a basis of reciprocity secured by the USMCA, an alien who is a citizen of Canada or Mexico, and the spouse and children of any such alien if accompanying or following to join such alien, may, if otherwise eligible for a visa and if otherwise admissible into the United States under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), be considered to be classifiable as a nonimmigrant under section 101(a)(15)(E) of such Act (8 U.S.C. 1101(a)(15)(E)) if entering solely for a purpose specified in Section B of Annex 16–A of the USMCA, but only if any such purpose shall have been specified in such Annex on the date of entry into force of the USMCA. For purposes of this section, the term "citizen of Mexico" means "citizen" as defined in article 16.1 of the USMCA.

(Pub. L. 116–113, title III, §311, formerly Pub. L. 103–182, title III, §341(a), Dec. 8, 1993, 107 Stat. 2116; renumbered §311 of Pub. L. 116–113 and amended Pub. L. 116–113, title V, §503(b), Jan. 29, 2020, 134 Stat. 71.)

Editorial Notes

References in Text

The Immigration and Nationality Act, referred to in text, is act June 27, 1952, ch. 477, 66 Stat. 163, which is classified principally to chapter 12 (§1101 et seq.) of Title 8, Aliens and Nationality. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of Title 8 and Tables.

Codification

Section was formerly classified to section 3401 of this title and section 1184 of Title 8, Aliens and Nationality, prior to renumbering by Pub. L. 116–113.

Amendments

2020—Pub. L. 116–113, §503(b)(4)(C)–(E), substituted "the USMCA" for "the Agreement" wherever appearing, "Annex 16–A" for "Annex 1603", and "article 16.1" for "Annex 1608".

Pub. L. 116–113, §503(b)(4)(A), (B), in original Act, struck out subsec. (a) designation and heading "Nonimmigrant Traders and Investors.—" before "Upon a basis" and struck out subsecs. (b) and (c), which had amended section 1184 of Title 8, Aliens and Nationality, resulting in no change to the text of this section.

Statutory Notes and Related Subsidiaries

Effective Date of 2020 Amendment

Amendment by Pub. L. 116–113 effective on the date the USMCA enters into force (July 1, 2020) and applicable to visas issued on or after that date, see section 503(f) of Pub. L. 116–113, set out as a note under section 1184 of Title 8, Aliens and Nationality.

Effective Date

Pub. L. 103–182, title III, §342, Dec. 8, 1993, 107 Stat. 2118, which provided that the provisions of subtitle D (§§341, 342) of title III of Pub. L. 103–182 (enacting this section and amending section 1184 of Title 8, Aliens and Nationality) took effect on the date the North American Free Trade Agreement entered into force with respect to the United States (Jan. 1, 1994), was repealed by Pub. L. 116–113, title VI, §601, Jan. 29, 2020, 134 Stat. 78, effective on the date the USMCA entered into force (July 1, 2020).

Part C—United States-Mexico Cross-Border Long-Haul Trucking Services

§4571. Definitions

In this part:

(1) Border commercial zone

The term "border commercial zone" means—

(A) the area of United States territory of the municipalities along the United States-Mexico international border and the commercial zones of such municipalities as described in subpart B of part 372 of title 49, Code of Federal Regulations; and

(B) any additional border crossing and associated commercial zones listed in the Federal Motor Carrier Safety Administration OP–2 application instructions or successor documents.

(2) Cargo originating in Mexico

The term "cargo originating in Mexico" means any cargo that enters the United States by commercial motor vehicle from Mexico, including cargo that may have originated in a country other than Mexico.

(3) Change in circumstances

The term "change in circumstance" may include a substantial increase in services supplied by the grantee of a grant of authority.

(4) Commercial motor vehicle

The term "commercial motor vehicle" means a commercial motor vehicle, as such term is defined in paragraph (1) of section 31132 of title 49, that meets the requirements of subparagraph (A) of such paragraph.

(5) Cross-border long-haul trucking services

The term "cross-border long-haul trucking services" means—

(A) the transportation by commercial motor vehicle of cargo originating in Mexico to a point in the United States outside of a border commercial zone; or

(B) the transportation by commercial motor vehicle of cargo originating in the United States from a point in the United States outside of a border commercial zone to a point in a border commercial zone or a point in Mexico.

(6) Driver

The term "driver" means a person that drives a commercial motor vehicle in cross-border long-haul trucking services.

(7) Grant of authority

The term "grant of authority" means registration granted pursuant to section 13902 of title 49, or a successor provision, to persons of Mexico to conduct cross-border long-haul trucking services in the United States.

(8) Interested party

The term "interested party" means—

(A) persons of the United States engaged in the provision of cross-border long-haul trucking services;

(B) a trade or business association, a majority of whose members are part of the relevant United States long-haul trucking services industry;

(C) a certified or recognized union, or representative group of suppliers, operators, or drivers who are part of the United States long-haul trucking services industry;

(D) the Government of Mexico; or

(E) persons of Mexico.

(9) Material harm

The term "material harm" means a significant loss in the share of the United States market or relevant sub-market for cross-border long-haul trucking services held by persons of the United States.

(10) Operator or supplier

The term "operator" or "supplier" means an entity that has been granted registration under section 13902 of title 49 to provide cross-border long-haul trucking services.

(11) Persons of Mexico

The term "persons of Mexico" includes—

(A) entities domiciled in Mexico organized, or otherwise constituted under Mexican law, including subsidiaries of United States companies domiciled in Mexico, or entities owned or controlled by a Mexican national, which conduct cross-border long-haul trucking services, or employ drivers who are non-United States nationals; and

(B) drivers who are Mexican nationals.

(12) Persons of the United States

The term "persons of the United States" includes entities domiciled in the United States, organized or otherwise constituted under United States law, and not owned or controlled by persons of Mexico, which provide cross-border long-haul trucking services and long-haul commercial motor vehicle drivers who are United States nationals.

(13) Threat of material harm

The term "threat of material harm" means material harm that is likely to occur.

(14) United States long-haul trucking services industry

The term "United States long-haul trucking services industry" means—

(A) United States suppliers, operators, or drivers as a whole providing cross-border long-haul trucking services; or

(B) United States suppliers, operators, or drivers providing cross-border long-haul trucking services in a specific sub-market of the whole United States market.

(Pub. L. 116–113, title III, §321, Jan. 29, 2020, 134 Stat. 54.)

Editorial Notes

References in Text

This part, referred to in text, was in the original "this subtitle", meaning subtitle C (§§321–327) of title III of Pub. L. 116–113, Jan. 29, 2020, 134 Stat. 54, which is classified principally to this subchapter. For complete classification of subtitle C to the Code, see Tables.

§4572. Investigations and determinations by Commission

(a) Investigation

Upon the filing of a petition by an interested party described in subparagraph (A), (B), or (C) of section 4571(8) of this title which is representative of a United States long-haul trucking services industry, or at the request of the President or the Trade Representative, or upon the resolution of the Committee on Ways and Means of the House of Representatives or the Committee on Finance of the Senate, the International Trade Commission (in this part referred to as the "Commission") shall promptly initiate an investigation to determine—

(1) whether a request by a person of Mexico to receive a grant of authority that is pending as of the date of the filing of the petition threatens to cause material harm to a United States long-haul trucking services industry;

(2) whether a person of Mexico who has received a grant of authority on or after the date of entry into force of the USMCA and retains such grant of authority is causing or threatens to cause material harm to a United States long-haul trucking services industry; or

(3) whether, with respect to a person of Mexico who has received a grant of authority before the date of entry into force of the USMCA and retains such grant of authority, there has been a change in circumstances such that such person of Mexico is causing or threatens to cause material harm to a United States long-haul trucking services industry.

(b) Transmission of petition, request, or resolution

The Commission shall transmit a copy of any petition, request, or resolution filed under subsection (a) to the Trade Representative and the Secretary of Transportation.

(c) Publication and hearings

The Commission shall—

(1) promptly publish notice of the commencement of any investigation under subsection (a) in the Federal Register; and

(2) within a reasonable time period thereafter, hold public hearings at which the Commission shall afford interested parties an opportunity to be present, to present evidence, to respond to presentations of other parties, and otherwise to be heard.

(d) Factors applied in making determinations

In making a determination under subsection (a) of whether a request by a person of Mexico to receive a grant of authority, or a person of Mexico who has received a grant of authority and retains such grant of authority, as the case may be, threatens to cause material harm to a United States long-haul trucking services industry, the Commission shall—

(1) consider, among other things, and as relevant—

(A) the volume and tonnage of merchandise transported; and

(B) the employment, wages, hours of service, and working conditions; and

(2) with respect to a change in circumstances described in subsection (a)(3), take into account those operations by persons of Mexico under grants of authority in effect as of the date of entry into force of the USMCA are not causing material harm.

(e) Assistance to Commission

(1) In general

At the request of the Commission, the Secretary of Homeland Security shall consult with the Commission and shall collect and maintain such additional data and other information on commercial motor vehicles entering or exiting the United States at a port of entry or exit at the United States border with Mexico as the Commission may request for the purpose of conducting investigations under subsection (a) and shall make such information available to the Commission in a timely manner.

(2) Requests for information

(A) In general

At the request of the Commission, the Secretary of Homeland Security, the Secretary of Transportation, the Secretary of Commerce, the Secretary of Labor, and the head of any other Federal agency shall make available to the Commission any information in their possession, including proprietary information, as the Commission may require in order to assist the Commission in making determinations under subsection (a).

(B) Confidential business information

The Commission shall treat any proprietary information obtained under subparagraph (A) as confidential business information in accordance with regulations adopted by the Commission to carry out this part.

(f) Limited disclosure of confidential business information under protective order

The Commission shall promulgate regulations to provide access to confidential business information under protective order to authorized representatives of interested parties who are parties to an investigation under subsection (a).

(g) Deadline for determination

(1) In general

Not later than 120 days after the date on which an investigation is initiated under subsection (a) with respect to a petition, request, or resolution, the Commission shall make a determination with respect to the petition, request, or resolution.

(2) Exception

If, before the 100th day after an investigation is initiated under subsection (a), the Commission determines that the investigation is extraordinarily complicated, the Commission shall make its determination with respect to the investigation not later than 150 days after the date referred to in paragraph (1).

(h) Applicable provisions

For purposes of this part, the provisions of paragraphs (1), (2), and (3) of section 1330(d) of this title shall be applied with respect to determinations and findings made under this section as if such determinations and findings were made under section 2252 of this title.

(Pub. L. 116–113, title III, §322, Jan. 29, 2020, 134 Stat. 55.)

Editorial Notes

References in Text

This part, referred to in subsecs. (a), (e)(2)(B), and (h), was in the original "this subtitle", meaning subtitle C (§§321–327) of title III of Pub. L. 116–113, Jan. 29, 2020, 134 Stat. 54, which is classified principally to this subchapter. For complete classification of subtitle C to the Code, see Tables.

§4573. Commission recommendations and report

(a) In general

If the Commission makes an affirmative determination under section 4572 of this title, the Commission shall recommend the action that is necessary to address the material harm or threat of material harm found.

(b) Limitation

Only those members of the Commission who agreed to the affirmative determination under section 4572 of this title are eligible to vote on the recommendation required to be made under subsection (a).

(c) Report

Not later than the date that is 60 days after the date on which the determination is made under section 4572 of this title, the Commission shall submit to the President a report that includes—

(1) the determination and an explanation of the basis for the determination;

(2) if the determination is affirmative, recommendations for action and an explanation of the basis for the recommendation; and

(3) any dissenting or separate views by members of the Commission regarding the determination.

(d) Public notice

Upon submitting a report to the President under subsection (c), the Commission shall—

(1) promptly make public the report (with the exception of information which the Commission determines to be confidential business information); and

(2) publish a summary of the report in the Federal Register.

(Pub. L. 116–113, title III, §323, Jan. 29, 2020, 134 Stat. 57.)

§4574. Action by President with respect to affirmative determination

(a) In general

Not later than the date that is 30 days after the date on which the President receives a report of the Commission in which the Commission's determination under section 4572 of this title is affirmative or which contains a determination that the President may treat as affirmative in accordance with section 1330(d)(1) of this title—

(1) the President shall, subject to subsection (b), issue an order to the Secretary of Transportation specifying the relief to be provided, consistent with subsection (c), and directing the relief to be carried out; and

(2) the Secretary of Transportation shall carry out such relief.

(b) Exception

The President is not required to provide relief under this section if the President determines that provision of such relief—

(1) is not in the national economic interest of the United States; or

(2) would cause serious harm to the national security of the United States.

(c) Nature of relief

(1) In general

The relief the President is authorized to provide under this subsection is as follows:

(A)(i) With respect to a determination relating to an investigation under section 4572(a)(1) of this title, the denial or imposition of limitations on a request for a new grant of authority by the persons of Mexico that are the subject of the investigation.

(ii) With respect to a determination relating to an investigation under section 4572(a)(1) of this title, the revocation of, or restrictions on, grants of authority issued to the persons of Mexico that are the subject of the investigation since the date of the petition, request, or resolution.

(B) With respect to a determination relating to an investigation under section 4572(a)(2) or (3) of this title, the revocation or imposition of limitations on an existing grant of authority by the persons of Mexico that are the subject of the investigation.

(C) With respect to a determination relating to an investigation under section 4572(a)(1), (2), or (3) of this title, a cap on the number of grants of authority issued to persons of Mexico annually.

(2) Deadline for relief

Not later than 15 days after the date on which the President determines the relief to be provided under this subsection, the President shall direct the Secretary of Transportation to carry out the relief.

(d) Period of relief

(1) In general

Subject to paragraph (2), any relief that the President provides under this section may not be in effect for more than 2 years.

(2) Extension

(A) In general

Subject to subparagraph (C), the President, after receiving a determination from the Commission under subparagraph (B) that is affirmative, or which contains a determination that the President may treat as affirmative in accordance with section 1330(d)(1) of this title, may extend the effective period of relief provided under this section by up to an additional 4 years, if the President determines that the provision of the relief continues to be necessary to remedy or prevent material harm.

(B) Action by Commission

(i) Investigation

Upon request of the President, or upon the filing by an interested party described in subparagraph (A), (B), or (C) of section 4571(8) of this title which is representative of a United States long-haul trucking services industry that is filed with the Commission not earlier than the date that is 270 days, and not later than the date that is 240 days, before the date on which any action taken under this section is to terminate, the Commission shall conduct an investigation to determine whether action under this section continues to be necessary to remedy or prevent material harm.

(ii) Notice and hearing

The Commission shall—

(I) publish notice of the commencement of an investigation under clause (i) in the Federal Register; and

(II) within a reasonable time thereafter, hold a public hearing at which the Commission shall afford interested parties an opportunity to be present, to present evidence, and to respond to the presentations of other parties and consumers, and otherwise be heard.

(iii) Report

Not later than the date that is 60 days before relief provided under subsection (a) is to terminate, or such other date as determined by the President, the Commission shall submit to the President a report on its investigation and determination under this subparagraph.

(C) Period of relief

Any relief provided under this section, including any extension thereof, may not, in the aggregate, be in effect for more than 6 years.

(D) Limitation

(i) In general

Except as provided in clause (ii), the Commission may not conduct an investigation under subparagraph (B)(i) if—

(I) the subject matter of the investigation is the same as the subject matter of a previous investigation conducted under subparagraph (B)(i); and

(II) less than 1 year has elapsed since the Commission made its report to the President of the results of such previous investigation.

(ii) Exception

Clause (i) shall not apply with respect to an investigation if the Commission determines good cause exists to conduct the investigation.

(e) Regulations

The Commission and the Secretary of Transportation are authorized to promulgate such rules and regulations as may be necessary to carry out this part.

(Pub. L. 116–113, title III, §324, Jan. 29, 2020, 134 Stat. 58.)

Editorial Notes

References in Text

This part, referred to in subsec. (e), was in the original "this subtitle", meaning subtitle C (§§321–327) of title III of Pub. L. 116–113, Jan. 29, 2020, 134 Stat. 54, which is classified principally to this subchapter. For complete classification of subtitle C to the Code, see Tables.

Executive Documents

Delegation of Functions

Proc. No. 10053, par. (13), June 29, 2020, 85 F.R. 39826, authorized the United States Trade Representative, after consultation with the Secretary of Transportation, to exercise the authority of the President under this section.