THE U.S. SPECIAL 301 PROCESS By Warner Rose, staff writer “Special 301” is the part of U.S. trade law that requires the U.S. Trade Representative (USTR) to identify countries that deny adequate protection for intellectual property rights (IPR) or that deny fair and equitable market access for U.S. persons who rely on IPR.     Under Special 301, countries that have the most egregious acts, policies, or practices, or whose acts, policies, or practices have the greatest adverse impact (actual or potential) on relevant U.S. products and are not engaged in good faith negotiations to address these problems, must be identified as “priority foreign countries.” If so identified, the country could face bilateral U.S. trade sanctions if changes are not made that address U.S. concerns.     USTR must decide which countries to identify each year in a Special 301 review that is issued within 30 days after the release of the United States' annual National Trade Estimate Report, generally done around March 31. If a trading partner is identified as a priority foreign country, USTR must decide within the following 30 days whether to initiate an investigation of those acts, policies, and practices that were the basis for the identification.     Within six months of the date that the investigation is initiated, USTR must determine — after investigation and consultations — if the circumstances that prompted the original action still exist. If the determination is affirmative, USTR must decide what action, if any, to take. The actions can include bilateral trade sanctions under Section 301 of the Trade Act of 1974.     The deadline for making this determination can be extended to nine months from the date of initiation if USTR decides that complex or complicated issues are involved or if substantial progress is being made.      The USTR has created a "Priority Watch List" and "Watch List" under Special 301 provisions. Placement of a trading partner on the Priority Watch List or Watch List indiciates that particular problems exist in that country with respect to IPR protection or enforcement or market access for persons relying on intellectual property. Countries placed on the Priority Watch List are the focus of increased bilateral attention concerning the problem areas.     Out-of-cycle reviews can be, and often are, conducted at any time during the year. These reviews are the same as the regular annual review: priority foreign countries are identified, and other countries can be added or removed from the watch lists.     The U.S. government is also making increased use of the World Trade Organization (WTO) dispute settlement system for IPR disputes with countries that are WTO members. Back to top