On December 15, 2020, the Office of the U.S. Trade Representative (USTR) published a request for comments and notice of public hearing regarding the 2021 Special 301 Review. The notice is available here. The Special 301 Review is conducted annually by a Subcommittee of the Trade Policy Staff Committee, which USTR chairs. The report prepared by the Subcommittee identifies countries that deny adequate and effective protection of intellectual property (IP) rights or deny fair and equitable market access to U.S. entities that rely on IP protection.
Here are some important dates:
- January 28, 2021—Deadline for submission of written comments from the public
- February 11, 2021—Deadline for submission of written comments from foreign governments
- February 22, 2021—Deadline for the Special 301 Subcommittee to pose questions on written comments
- March 5, 2021—Deadline for submission of commenters' responses to questions from the Subcommittee
- On or about April 30, 2021—USTR publishes the 2021 Special 301 Report (within 30 days of the publication of the National Trade Estimate Report)
The worst IP offenders identified in the Special 301 Report are designated as "Priority Foreign Countries," which means they are subject to certain procedures set out in the Trade Act of 1974 (19 U.S.C. §§ 2411-2415). Others with particular IP protection problems—e.g., enforcement or market access issues—may be placed on the Priority Watch List or Watch List. Those on the Priority Watch List are the focus of increased bilateral attention concerning problem areas. Those on the Watch List are monitored for IP improvement.
To aid its review, USTR requests comments that identify a country's troublesome IP-related acts, policies, or practices. Because of COVID-19, however, USTR is not planning an in-person public hearing. Rather, the Subcommittee will review written comments and may ask commenters clarifying questions. Such clarifying questions will appear on the public docket. Questions that include business confidential information (BCI) will be sent to the respective commenters by email, and the BCI will be omitted from the public docket.
Additionally, the Special 301 provisions also require that USTR identify any particular acts, policies, or practices of Canada that affect cultural industries and are actionable under Article 32.6 of the relatively new United States-Mexico-Canada Agreement (USMCA), which replaced the North American Free Trade Agreement (NAFTA). Written comments should be as detailed as possible. They are intended to be a key source of information about any such specific acts, policies, and practices that should factor in the review.
If you wish to provide USTR with written comments, we are available to assist. If you have any questions about how this might impact you, please feel free to reach out to the authors at Venable for guidance.