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Canada-United States-Mexico Agreement (CUSMA) – Annex I – Schedule of the United States

1. Description provides a general, nonbinding description of the measure for which the entry is made.

2. In accordance with Articles 14.12 (Non-Conforming Measures) and 15.7 (Non-Conforming Measures), the articles of this Agreement specified in the Obligations Concerned element of an entry do not apply to the non-conforming aspects of the law, regulation, or other measure identified in the Measures element of that entry.

ANNEX I

SCHEDULE OF THE UNITED STATES

Sector:

Atomic Energy

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 14.4)

Level of Government:

Central

Measures:

Atomic Energy Act of 1954, 42 U.S.C. §§ 2011 et seq.

Description:

Investment

A license issued by the United States Nuclear Regulatory Commission is required for any person in the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, use, import, or export any nuclear “utilization or production facilities” for commercial or industrial purposes. Such a license may not be issued to any entity known or believed to be owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government (42 U.S.C. § 2133(d)). A license issued by the United States Nuclear Regulatory Commission is also required for nuclear “utilization and production facilities”, for use in medical therapy, or for research and development activities. The issuance of such a license to any entity known or believed to be owned, controlled, or dominated by an alien, a foreign corporation, or a foreign government is also prohibited (42 U.S.C. § 2134(d)).

Sector:

Business Services

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 15.3)
Local Presence (Article 15.6)

Level of Government:

Central

Measures:

Export Trading Company Act of 1982, 15 U.S.C. §§ 4011-4021
Export Trade Certificates of Review, 15 C.F.R. Part 325

Description:

Cross-Border Trade in Services

Title III of the Export Trading Company Act of 1982 authorizes the Secretary of Commerce to issue “certificates of review” with respect to export conduct. The Act provides for the issuance of a certificate of review where the Secretary determines, and the Attorney General concurs, that the export conduct specified in an application will not have the anticompetitive effects proscribed by the Act. A certificate of review limits the liability under federal and state antitrust laws in engaging in the export conduct certified.

Only a “person” as defined by the Act can apply for a certificate of review. “Person” means “an individual who is a resident of the United States; a partnership that is created under and exists pursuant to the laws of any State or of the United States; a State or local government entity; a corporation, whether organized as a profit or nonprofit corporation, that is created under and exists pursuant to the laws of any State or of the United States; or any association or combination, by contract or other arrangement, between such persons”.

A foreign national or enterprise may receive the protection provided by a certificate of review by becoming a “member” of a qualified applicant. The regulations define “member” to mean “an entity (U.S. or foreign) that is seeking protection under the certificate with the applicant. A member may be a partner in a partnership or a joint venture; a shareholder of a corporation; or a participant in an association, cooperative, or other form of profit or nonprofit organization or relationship, by contract or other arrangement”.

Sector:

Business Services

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 15.3)
Local Presence (Article 15.6)

Level of Government:

Central

Measures:

Export Administration Act of 1979, as amended, 50 U.S.C. App. §§ 2401-2420
International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706
Export Administration Regulations, 15 C.F.R. Parts 730-774
Export Control Reform Act of 2018, Pub. L. 115-232, Title 17, subtitle B, 132 Stat. 2208 (2018)

Description:

Cross-Border Trade in Services

Certain exports and re-exports of commodities, software, and technology subject to the Export Administration Regulations require a license from the Bureau of Industry and Security, U.S. Department of Commerce (BIS). Certain activities of U.S. persons, wherever located, also require a license from BIS. An application for a license must be made by a person in the United States.

In addition, release of controlled technology to a foreign national in the United States is deemed to be an export to the home country of the foreign national and requires the same written authorization from BIS as an export from the territory of the United States.

Sector:

Mining

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 14.4)
Most-Favored-Nation Treatment (Article 14.5)

Level of Government:

Central

Measures:

Mineral Lands Leasing Act of 1920, 30 U.S.C. Chapter 3A
10 U.S.C. § 7435

Description:

Investment

Under the Mineral Lands Leasing Act of 1920, aliens and foreign corporations may not acquire rights-of-way for oil or gas pipelines, or pipelines carrying products refined from oil and gas, across on-shore federal lands or acquire leases or interests in certain minerals on on-shore federal lands, such as coal or oil. Non-U.S. citizens may own a 100 percent interest in a domestic corporation that acquires a right-of-way for oil or gas pipelines across on-shore federal lands, or that acquires a lease to develop mineral resources on on-shore federal lands, unless the foreign investor’s home country denies similar or like privileges for the mineral or access in question to U.S. citizens or corporations, as compared with the privileges it accords to its own citizens or corporations or to the citizens or corporations of other countries (30 U.S.C. §§ 181, 185(a)).

Nationalization is not considered to be denial of similar or like privileges.

Foreign citizens, or corporations controlled by them, are restricted from obtaining access to federal leases on Naval Petroleum Reserves if the laws, customs, or regulations of their country deny the privilege of leasing public lands to citizens or corporations of the United States (10 U.S.C. § 7435).

Sector:

All Sectors

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 14.4)
Most-Favored-Nation Treatment (Article 14.5)

Level of Government:

Central

Measures:

22 U.S.C. §§ 2194 and 2198(c)

Description:

Investment

Overseas Private Investment Corporation (OPIC) programs are not available to non-U.S. citizens as individuals. The availability of these programs to foreign enterprises and foreign owned or controlled domestic enterprises depends upon the extent of U.S. ownership or other U.S. participation, as well as the form of business organization.

OPIC insurance and loan guaranties are available only to eligible investors, which are: (i) United States citizens; (ii) corporations, partnerships, or other associations, including non-profit associations, created under the laws of the United States, any state or territory thereof, or the District of Columbia, and substantially beneficially owned by United States citizens; and (iii) foreign partnerships or associations 100 percent owned, or foreign corporations at least 95 percent owned, by one or more such United States citizens, corporations, partnerships, or associations.

OPIC may issue insurance to investors not otherwise eligible in connection with arrangements with foreign governments (including agencies, instrumentalities, or political subdivisions thereof) or with multilateral organizations and institutions, such as the Multilateral Investment Guarantee Agency, for sharing liabilities assumed under such investment insurance, except that the maximum share of liabilities so assumed may not exceed the proportionate participation by eligible investors in the project.

Sector:

Air Transportation

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 14.4)
Most-Favored-Nation Treatment (Article 14.5)
Senior Management and Boards of Directors (Article 14.11)

Level of Government:

Central

Measures:

49 U.S.C. Subtitle VII, Aviation Programs
14 C.F.R. Part 297 (foreign freight forwarders); 14 C.F.R. Part 380, Subpart E (registration of foreign (passenger) charter operators)

Description:

Investment

Only air carriers that are “citizens of the United States” may operate aircraft in domestic air service (cabotage) and may provide international scheduled and non-scheduled air service as U.S. air carriers.

U.S. citizens also have blanket authority to engage in indirect air transportation activities (air freight forwarding and passenger charter activities other than as actual operators of the aircraft). In order to conduct such activities, non-U.S. citizens must obtain authority from the Department of Transportation. Applications for such authority may be rejected for reasons relating to the failure of effective reciprocity, or if the Department of Transportation finds that it is in the public interest to do so.

Under 49 U.S.C. § 40102(a)(15), a citizen of the United States means an individual who is a U.S. citizen; a partnership in which each member is a U.S. citizen; or a U.S. corporation of which the president and at least two-thirds of the board of directors and other managing officers are U.S. citizens, which is under the actual control of U.S. citizens, and in which at least seventy-five percent of the voting interest in the corporation is owned or controlled by U.S. citizens.

Sector:

Air Transportation

Sub-Sector:

 

Obligations Concerned:

National Treatment (Articles 14.4 and 15.3)
Most-Favored-Nation Treatment (Articles 14.5 and 15.4)
Senior Management and Boards of Directors (Article 14.11)

Level of Government:

Central

Measures:

49 U.S.C., Subtitle VII, Aviation Programs
49 U.S.C. § 41703
14 C.F.R. Part 375

Description:

Investment

“Foreign civil aircraft” require authority from the Department of Transportation to conduct specialty air services in the territory of the United States. In determining whether to grant a particular application, the Department will consider, among other factors, the extent to which the country of the applicant’s nationality accords U.S. civil aircraft operators effective reciprocity. “Foreign civil aircraft” are aircraft of foreign registry or aircraft of U.S. registry that are owned, controlled, or operated by persons who are not citizens or permanent residents of the United States (14 C.F.R. § 375.1). Under 49 U.S.C. § 40102(a)(15), a citizen of the United States means an individual who is a U.S. citizen; a partnership in which each member is a U.S. citizen; or a U.S. corporation of which the president and at least two-thirds of the board of directors and other managing officers are U.S. citizens, which is under the actual control of U.S. citizens, and in which at least seventy-five percent of the voting interest in the corporation is owned or controlled by U.S. citizens.

Cross-Border Trade in Services

Authorization from the Department of Transportation is required for the supply of specialty air services in the territory of the United States. A person of a Party will be able to obtain such an authorization if the Party provides effective reciprocity by virtue of this Agreement.

Sector:

Land Transportation

Sub-Sector:

Obligations Concerned:

National Treatment (Articles 14.4 and 15.3)
Most-Favored-Nation Treatment (Article 14.5 and 15.4)
Local Presence (Article 15.6)

Level of Government:

Central

Measures:

49 U.S.C. § 13902(c)
49 U.S.C. § 13102
49 U.S.C. § 13501
49 C.F.R. Subtitle B, Chapter III
Sec. 350, P.L. 107-87, as amended
Sec. 6901, P.L. 110-28, as amended

Description:

Investment

Grants of authority for the provision of truck services by persons of Mexico between points in the United States for the transportation of goods other than international cargo are subject to reciprocity.

Investment and Cross-Border Trade in Services

Only persons of the United States, using U.S.-registered and either U.S.-built or duty-paid trucks or buses, may provide truck or bus services between points in the territory of the United States.

Operating authority from the Department of Transportation is required to provide cross-border bus or truck services in the territory of the United States. For greater certainty, the United States may maintain the regulatory requirements in 49 C.F.R. Subtitle B, Chapter III, or similar successor regulatory requirements.

Sector:

Transportation Services - Customs Brokers

Sub-Sector:

 

Obligations Concerned:

National Treatment (Articles 14.4 and 15.3)
Local Presence (Article 15.6)

Level of Government:

Central

Measures:

19 U.S.C. § 1641(b)

Description:

Investment and Cross-Border Trade in Services

A customs broker’s license is required to conduct customs business on behalf of another person. An individual may obtain such a license only if that individual is a U.S. citizen. A corporation, association, or partnership may receive a customs broker’s license only if it is established under the laws of any state and at least one officer of the corporation or association, or one member of the partnership, holds a valid customs broker’s license.

Sector:

All Sectors

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 14.4)
Most-Favored-Nation Treatment (Article 14.5)

Level of Government:

Central

Measures:

Securities Act of 1933, 15 U.S.C. §§ 77c(b), 77f, 77g, 77h, 77j, and 77s(a)
17 C.F.R. §§ 230.251 and 230.405
Securities Exchange Act of 1934, 15 U.S.C. §§ 78l, 78m, 78o(d), and 78w(a)
17 C.F.R. § 240.12b-2

Description:

Investment

Foreign firms, except for certain Canadian issuers, may not use the small business registration forms under the Securities Act of 1933 to register public offerings of securities or the small business registration forms under the Securities Exchange Act of 1934 to register a class of securities or file annual reports.

Sector:

Communications – Radiocommunications*

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 14.4)

Level of Government:

Central

Measures:

47 U.S.C. § 310 (a)-(b)
Foreign Participation Order 12 FCC Rcd 23891, paras. 97-118 (1997)

Description:

Investment

The United States restricts ownership of radio licenses in accordance with the above statutory and regulatory provisions, which provide that, inter alia:

• (a) no station license may be granted to or held by a foreign government or representative thereof;
• (b) no broadcast or common carrier or aeronautical en route or aeronautical fixed station license may be granted to or held by:
  • (i) an alien or its representative;
  • (ii) a corporation organized under the laws of a foreign government; or
  • (iii) a corporation of which more than one fifth of the capital stock is owned of record or voted by an alien or its representative, a foreign government or its representative, or a corporation organized under the laws of a foreign country; and
• (c) absent a specific finding that that the public interest would be served by permitting foreign ownership of a broadcast license, no broadcast station license shall be granted to any corporation directly or indirectly controlled by another corporation of which more than one fourth of the capital stock is owned of record or voted by an alien or its representative, a foreign government or its representative, or a corporation organized under the laws of a foreign country.

*Radiocommunications consist of all communications by radio, including broadcasting.

Sector:

Professional Services - Patent Attorneys, Patent Agents, and Other Practice before the Patent and Trademark Office

Sub-Sector:

 

Obligations Concerned:

National Treatment (Article 15.3)
Most-Favored-Nation Treatment (Article 15.4)
Local Presence (Article 15.6)

Level of Government:

Central

Measures:

35 U.S.C. Chapter 3 (practice before the U.S. Patent and Trademark Office) 37 C.F.R. Part 11 (representation of others before the U.S. Patent and Trademark Office)

Description:

Cross-Border Trade in Services

As a condition to be registered to practice for others before the U.S. Patent and Trademark Office (USPTO):

• (a) a patent attorney must be a U.S. citizen or an alien lawfully residing in the United States (37 C.F.R. § 11.6(a));
• (b) a patent agent must be a U.S. citizen, an alien lawfully residing in the United States, or a non-resident who is registered to practice in a country that permits patent agents registered to practice before the USPTO to practice in that country; the latter is permitted to practice for the limited purpose of presenting and prosecuting patent applications of applicants located in the country in which he or she resides (37 C.F.R. §11.6(c)); and
• (c) a practitioner in trademark and non-patent cases must be an attorney licensed in the United States, a “grandfathered” agent, an attorney licensed to practice in a country that accords equivalent treatment to attorneys licensed in the United States, or an agent registered to practice in such a country; the latter two are permitted to practice for the limited purpose of representing parties located in the country in which he or she resides (37 C.F.R. § 11.14(a)-(c)).

Sector:

All Sectors

Sub-Sector:

 

Obligations Concerned:

National Treatment (Articles 14.4 and 15.3)
Most-Favored-Nation Treatment (Articles 14.5 and 15.4)
Performance Requirements (Article 14.10)
Senior Management and Boards of Directors (Article 14.11)
Local Presence (Article 15.6)

Level of Government:

Regional

Measures:

All existing non-conforming measures of all states of the United States, the District of Columbia, and Puerto Rico

Description:

Investment and Cross-Border Trade in Services