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Trade Compliance Flash: U.S. Trade Agencies Request Comments from U.S. Companies on Harm Resulting from Trade and Investment Agreements

International Alert

Earlier this year, the Trump administration ordered the Department of Commerce (DOC) and the U.S. Trade Representative (USTR) to conduct a performance review of every trade and investment agreement entered into by the United States to determine the extent to which they enhance U.S. economic growth, contribute favorably to the balance of trade, and strengthen the American manufacturing base. Executive Order 13796 requires DOC and USTR to submit performance reviews to the president by October 26, 2017. To that end, DOC and USTR issued a Federal Register Notice on June 29 seeking written comments from U.S. companies relating to the following assessments:

  1. The performance of individual free trade agreements (FTAs) and bilateral investment treaties (BITs) to which the United States is a party. Currently, the United States is a party to 14 FTAs and 40 BITs. 
  2. The performance of the World Trade Organization (WTO) agreements regarding U.S. trade relations with those trading partners with which the United States does not have an FTA, but has significant trade deficits in goods. The trading partners subject to these performance reviews are: China, the European Union, India, Indonesia, Japan, Malaysia, Switzerland, Taiwan, Thailand, and Vietnam.
  3. The performance of U.S. trade preference programs. This category includes the Generalized System of Preferences (GSP) and the African Growth and Opportunity Act (AGOA). 

The Federal Register Notice invites comments addressing any specific harm resulting from trade violations or unfair treatment by trade and investment partners affecting U.S. workers, U.S. holders of intellectual property rights, and the rate of innovation in the United States. Other potential topics are whether the predicted outcomes of the trade and investment agreements have materialized (e.g., the reduction of trade barriers, the creation of new jobs, expanded market access, and increased U.S. exports) and the extent to which such agreements have protected the rights of U.S. investors abroad. Written comments are due to USTR on or before July 31, 2017.  

This comment period is designed to provide a platform for companies to voice concerns about U.S. trade and investment agreements. The administration is encouraging companies that face burdensome customs regulations or delays, infringements of intellectual property rights, unwarranted sanitary and phytosanitary measures and technical barriers to trade, restrictions on cross-border data flows, barriers to investment, or other harms to share their first-hand experiences. The comment period is also an opportunity for those who see such agreements as beneficial to provide input that can help temper and shape the Trump administration's approach to trade policy. Companies and organizations are actively participating in the larger discussion regarding trade and investment agreements, as shown by the more than 1,400 public submissions received in response to the USTR's request for comments regarding the renegotiation of the North American Free Trade Agreement (NAFTA).

If your company is interested in submitting comments or for more information on how the examination of such agreements and trading relationships may impact your business, please contact:

Richard A. Mojica,, 202-626-1571

Patrick M. Stewart*

P. Welles Orr**

*Former Miller & Chevalier attorney
**Former Miller & Chevalier advisor

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

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