The [USTR FOIA Appeals] Committee undertook a comprehensive review of the circumstance of the creation of the document at issue and the conditions under which it was sent to USTR, including through statements provided by members of USTR's Office and Congressional Affairs and Office of Intellectual Property and Innovation. The Committee concludes that Congress intended to retain control over this document and that it is not an agency record subject to FOIA.

Congress may not feel compelled to take into account the requirements of an agreement that it had no formal role in approving. On the other hand, it may well be that Members of Congress might be reluctant to consider legislative approaches that would alter federal law in a manner that might make the United States in default of its ACTA obligations. The seriousness of such a concern may turn on the extent to which the United States may be held accountable for ignoring its ACTA obligations, or how successful the United States is in convincing other ACTA Parties of its compliance with the ACTA commitments even with such legislation.

Another initial provision in the draft tax declares: "This Agreement shall be without prejudice to provisions governing the availability, acquisition, scope, and maintenance of intellectual property rights contained in a Party's law." Note that this language refers to intellectual property rights (as opposed to remedies for violation of those rights). Thus, this provision allows a Party to have domestic laws that contain exceptions, limitations, and conditions concerning the "availability, acquisition, scope, and maintenance" of IPR. It does not, however, appear to apply to a Party's domestic laws that provide exceptions to the remedies that are available to intellectual property holders that seek to enforce their IPR. Yet it may be difficult in certain circumstances to draw a distinction between a Party's domestic laws that establish rights and those that provide remedies for violation of those rights; if the domestic law clearly concerns the latter, then this provision does not appear to be relevant. For example, a law that specifies that "injunctive relief is not available..." for certain acts of infringement, appears more clearly to be a limitation on available remedies. However, a law that specifies that "it is not an act of infringement to" perform a specific action could be considered a limitation on remedies, or it could also be regarded as an exception, limitation, or condition regarding the availability and scope of IPR.