Makes it a factor in the determination whether to designate a country as a beneficiary developing country the extent to which such country has ensured that all sanitary and phytosanitary measures in force are based on a scientific justification.
Title II: Foreign Private and Public-Private Market Access Barriers - Market Access and Structural Reform Act of 1999 - Amends the Trade Act of 1974 to make an act, policy, or practice unjustifiable if it constitutes fostering by a foreign government of systematic anticompetitive activities by persons or among persons in one or more foreign countries that have the effect of restricting, on a basis inconsistent with commercial considerations, access of U.S. goods or services to a foreign market or diverting foreign goods or services toward the U.S. market. Makes it an unreasonable act, policy, and practice for a foreign government to tolerate such systematic anticompetitive activities.
Requires the USTR, in addition to determining what action to take with respect to any act, policy, or practice found unjustifiable or unreasonable, to: (1) further determine whether there is reason to believe that the conduct of the foreign country concerned involves anticompetitive conduct engaged in by any natural or corporate person or persons; and (2) if so, refer the matter to the Attorney General for investigation into whether such conduct violates the Sherman Act.
Amends the Sherman Act to require the Attorney General to: (1) conduct such an investigation if the USTR refers such a matter; and (2) commence an action in a U.S. district court seeking injunctive and other relief if an investigation results in an affirmative determination.
Title III: Adverse Inferences by Trade Representative - Amends the Trade Act of 1974 to authorize the USTR to use, if it has a reasonable basis, an inference adverse to the interests of any foreign government which has failed to cooperate by not acting to the best of its ability to: (1) comply with a reasonable request for information; or (2) require a party within its jurisdiction to comply with a reasonable request for information.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3393 Introduced in House (IH)]
106th CONGRESS
1st Session
H. R. 3393
To amend the Trade Act of 1974 to provide for identification of, and
actions relating to, foreign countries that maintain sanitary or
phytosanitary measures that deny fair and equitable market access to
United States food, beverage, or other plant or animal products, to
amend the Trade Act of 1974 and the Sherman Act to address foreign
private and joint public-private market access barriers that harm
United States trade, and to amend the Trade Act of 1974 to address the
failure of foreign governments to cooperate in the provision of
information relating to certain investigations.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
November 16, 1999
Mr. Levin (for himself, Mr. Houghton, and Mrs. Thurman) introduced the
following bill; which was referred to the Committee on Ways and Means,
and in addition to the Committee on the Judiciary, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To amend the Trade Act of 1974 to provide for identification of, and
actions relating to, foreign countries that maintain sanitary or
phytosanitary measures that deny fair and equitable market access to
United States food, beverage, or other plant or animal products, to
amend the Trade Act of 1974 and the Sherman Act to address foreign
private and joint public-private market access barriers that harm
United States trade, and to amend the Trade Act of 1974 to address the
failure of foreign governments to cooperate in the provision of
information relating to certain investigations.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Trade Enhancement Act of 1999''.
TITLE I--SANITARY AND PHYTOSANITARY MEASURES THAT DENY MARKET ACCESS
SEC. 101. SHORT TITLE.
This title may be cited as the ``Special 301 for Sanitary and
Phytosanitary Measures Act''.
SEC. 102. IDENTIFICATION OF COUNTRIES THAT MAINTAIN SANITARY OR
PHYTOSANITARY MEASURES THAT CREATE UNFAIR BARRIERS TO
TRADE.
(a) Identification Required.--
(1) In general.--Chapter 8 of title I of the Trade Act of
1974 is amended by adding at the end the following:
``SEC. 183. IDENTIFICATION OF COUNTRIES THAT MAINTAIN SANITARY OR
PHYTOSANITARY MEASURES THAT CREATE UNFAIR BARRIERS TO
TRADE.
``(a) In General.--Not later than the date that is 30 days after
the date on which the annual report is required to be submitted to
Congressional committees under section 181(b), the United States Trade
Representative (hereafter in this section referred to as the `Trade
Representative') shall identify--
``(1) those foreign countries that maintain sanitary or
phytosanitary measures that deny fair and equitable market
access to United States food, beverage, or other plant or
animal products; and
``(2) those foreign countries identified under paragraph
(1) that are determined by the Trade Representative to be
priority foreign countries.
``(b) Special Rules for Identifications.--
``(1) Criteria.--In identifying priority foreign countries
under subsection (a)(2), the Trade Representative shall
identify only those foreign countries--
``(A) that have the most onerous or egregious acts,
policies, or practices that deny fair and equitable
market access to United States food, beverage, or other
animal or plant products,
``(B) whose acts, policies, or practices described
in subparagraph (A) have the greatest adverse impact
(actual or potential) on the relevant United States
products, and
``(C) that are not--
``(i) entering into good faith
negotiations, or
``(ii) making significant progress in
bilateral or multilateral negotiations,
to provide fair and equitable market access to United
States food, beverage, or other plant or animal
products.
``(2) Consultation and consideration requirements.--In
identifying priority foreign countries under subsection (a)(2),
the Trade Representative shall--
``(A) consult with the Secretary of Agriculture,
the Administrator of the Food and Drug Administration,
the Secretary of Commerce, and the heads of other
appropriate Federal agencies; and
``(B) take into account information from the
Committee on Sanitary and Phytosanitary Measures, the
Codex Alimentarius Commission, the International Office
of Epizootics, and the Secretariat of the International
Plant Protection Convention; and
``(C) take into account information from such other
sources as may be available to the Trade Representative
and such information as may be submitted to the Trade
Representative by interested persons, including
information contained in reports submitted under
section 181(b) and petitions submitted under section
302.
``(3) Factual basis requirement.--The Trade Representative
may identify a foreign country under subsection (a)(1) only if
the Trade Representative finds that there is a factual basis
for the denial of fair and equitable market access as a result
of the violation of international law or agreement, or the
existence of barriers, referred to in subsection (d).
``(4) Consideration of historical factors.--In identifying
foreign countries under paragraphs (1) and (2) of subsection
(a), the Trade Representative shall take into account--
``(A) the history of sanitary and phytosanitary
measures of the foreign country, including any previous
identification under subsection (a)(2), and
``(B) the history of efforts of the United States,
and the response of the foreign country, to remove
sanitary or phytosanitary measures that deny fair and
equitable market access to United States food,
beverage, or other plant or animal products.
``(c) Revocations and Additional Identifications.--
``(1) Authority to act at any time.--If information
available to the Trade Representative indicates that such
action is appropriate, the Trade Representative may at any
time--
``(A) revoke the identification of any foreign
country as a priority foreign country under this
section; or
``(B) identify any foreign country as a priority
foreign country under this section.
``(2) Revocation reports.--The Trade Representative shall
include in the semiannual report submitted to the Congress
under section 309(3) a detailed explanation of the reasons for
the revocation under paragraph (1) of the identification of any
foreign country as a priority foreign country under this
section.
``(d) Definitions.--In this section:
``(1) Agreement on the application of sanitary and
phytosanitary measures.--The term `Agreement on the Application
of Sanitary and Phytosanitary Measures' means the agreement
described in section 101(d)(3) of the Uruguay Round Agreements
Act (19 U.S.C. 3511(d)(3))
``(2) Sanitary or phytosanitary measures.--(A) The term
`sanitary or phytosanitary measures' means any measure
applied--
``(i) to protect animal or plant life or health
within the foreign country from risks arising from the
entry, establishment, or spread of pests, diseases,
disease-carrying organisms, or disease-causing
organisms;
``(ii) to protect human or animal life or health
within the foreign country from risks from additives,
contaminants, toxins, or disease-causing organisms in
foods, beverages, or feedstuffs;
``(iii) to protect human life or health within the
foreign country from risks arising from diseases
carried by animals, plants or products thereof, or from
entry, establishment or spread of pests; or
``(iv) to prevent or limit other damage within the
foreign country from the entry, establishment, or
spread of pests.
``(B) The term `sanitary or phytosanitary measures'
includes all relevant laws, decrees, regulations, requirements,
policies, procedures, and practices, including--
``(i) end product criteria;
``(ii) processes and production methods;
``(iii) testing, inspection, certification and
approval procedures;
``(iv) quarantine treatments, including relevant
requirements associated with the transport of animals
or plants, or with the materials necessary for their
survival during transport;
``(v) provisions on relevant statistical methods,
sampling procedures and methods of risk assessment; and
``(vi) packaging and labeling requirements directly
related to food safety.
``(C) For purposes of this section, a foreign country
denies fair and equitable market access if the foreign country
maintains sanitary or phytosanitary measures through the use of
laws, procedures, practices, or regulations that--
``(i) violate provisions of international law or
international agreements to which both the United
States and the foreign country are parties; or
``(ii) constitute discriminatory nontariff trade
barriers.
``(D) For purposes of subparagraph (C)(ii), sanitary or
phytosanitary measures or acts, policies, or practices
considered to be discriminatory nontariff trade barriers
include (but are not limited to)--
``(i) measures that--
``(I) are maintained without sufficient
scientific justification;
``(II) unjustifiably discriminate or have
the effect of discriminating between imported
and domestically produced products, or products
imported from different countries;
``(III) are more restrictive than necessary
to achieve the desired level of protection;
``(IV) are nontransparent, for example, the
measures are not published or are not
promulgated in accordance with either the
Agreement on the Application of Sanitary and
Phytosanitary Measures or the relevant
administrative laws and procedures of the
foreign country; and
``(V) are onerous measures relating to
control, inspection, and approval of products
that unjustifiably discriminate or have the
effect of unjustifiably discriminating against
United States food, beverage, or other plant or
animal products; and
``(ii) the refusal by a foreign country to accept
United States sanitary or phytosanitary measures as
equivalent in the case of a foreign country with
respect to which the relevant United States officials
have objectively demonstrated to the foreign country
that the measures achieve the foreign country's
appropriate level of sanitary or phytosanitary
protection.
``(E) A foreign country may be determined to deny fair and
equitable market access to United States food, beverage, or
other plant or animal products notwithstanding the fact that
the foreign country may be in compliance with the specific
obligations of the Agreement on the Application of Sanitary and
Phytosanitary Measures.
``(e) Publication.--The Trade Representative shall publish in the
Federal Register a list of foreign countries identified under
subsection (a) and shall make such revisions to the list as may be
required by reason of the action under subsection (c).
``(f) Annual Report.--The Trade Representative shall, not later
than the date by which countries are identified under subsection (a),
transmit to the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate, a report on
the actions taken under this section during the 12 months preceding
such report, and the reasons for such actions, including a description
of progress made toward ensuring that sanitary or phytosanitary
measures do not deny fair and equitable market access for United States
food, beverage, or other plant or animal products.''.
(2) Clerical amendment.--The table of contents for the
Trade Act of 1974 is amended by inserting after the item
relating to section 182 the following:
``Sec. 183. Identification of countries that maintain sanitary or
phytosanitary measures that create unfair
barriers to trade.''.
(b) Actions by United States Trade Representative.--Section
301(d)(3)(B) of the Trade Act of 1974 (19 U.S.C. 2411(d)(3)(B)) is
amended--
(1) in clause (ii), by striking ``or'' at the end;
(2) in clause (iii), by striking the period at the end and
inserting ``or''; and
(3) by adding at the end the following:
``(iv) are sanitary or phytosanitary measures that
deny fair and equitable market access to United States
food, beverage, or other plant or animal products.''.
(c) Initiation of Investigations.--
(1) In general.--Subparagraph (A) of section 302(b)(2) of
the Trade Act of 1974 (19 U.S.C. 2412(b)(2)) is amended by
inserting ``or 183(a)(2)'' after ``section 182(a)(2)'' in the
matter preceding clause (i).
(2) Conforming amendment.--Subparagraph (D) of section
302(b)(2) of such Act is amended by inserting ``concerning
intellectual property rights that is'' after ``any
investigation''.
SEC. 103. DESIGNATION OF BENEFICIARY DEVELOPING COUNTRIES UNDER
GENERALIZED SYSTEM OF PREFERENCES.
Section 502(c) of the Trade Act of 1974 (19 U.S.C. 2462(c)) is
amended--
(1) in paragraph (6), by striking ``and'' at the end;
(2) in paragraph (7), by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(8) the extent to which such country has ensured that all
sanitary and phytosanitary measures (as defined in section
183(d)(2)) in force are based on a scientific justification.''.
TITLE II--FOREIGN PRIVATE AND PUBLIC-PRIVATE MARKET ACCESS BARRIERS
SEC. 201. SHORT TITLE.
This title may be cited as the ``Market Access and Structural
Reform Act of 1999''.
SEC. 202. FINDINGS.
The Congress makes the following findings:
(1) Recent financial crises affecting key trading partners
show that the health of the international economic system
depends on open, competitive markets.
(2) Resolution of these financial crises, which tend to
arise in relatively closed markets, depends on structural
reform.
(3) Restrictive foreign government polices, private
restraints, and collaborative public-private barriers
perpetuate an unacceptably large United States trade deficit
which is now once again growing sharply.
(4) More broadly, import barriers in major foreign markets
injure United States industries by restricting United States
exports, by creating profit sanctuaries which serve as
platforms for injurious dumping, and by causing shipments from
third countries to be diverted to the United States market.
(5) Particularly in light of the financial crises gripping
a number of developing, newly-industrialized, and transitional
economy countries, it is essential that Europe and Japan begin
sharing more equitably with the United States the burden of
accepting manufactured imports from the crisis-affected
countries.
(6) The agreements adopted by the World Trade Organization
do not currently provide a basis to address sophisticated
methods of blocking market access and effective competition in
a foreign market, particularly joint public-private market
access barriers, including non-transparent forms of regulation,
which impose a substantial burden on United States and world
commerce.
(7) Partially as a result of changes effected by the
agreements adopted by the World Trade Organization, section 301
of the Trade Act of 1974 does not currently address private and
joint public-private market access barriers as effectively as
it should.
SEC. 203. AMENDMENTS TO SECTION 301(D) OF THE TRADE ACT OF 1974.
(a) Unjustifiable Acts, Policies, and Practices.--Section
301(d)(4)(A) of the Trade Act of 1974 (19 U.S.C. 2411(d)(4)(A)) is
amended to read as follows:
``(4)(A) An act, policy, or practice is unjustifiable if
the act, policy, or practice--
``(i) is in violation of, or inconsistent with, the
international legal rights of the United States; or
``(ii) constitutes fostering by a foreign
government of systematic anticompetitive activities by
persons or among persons in one or more foreign
countries that have the effect of restricting, on a
basis that is inconsistent with commercial
considerations, access of United States goods or
services to a foreign market or diverting foreign goods
or services toward the United States market.''.
(b) Unreasonable Acts, Policies, and Practices.--Section
301(d)(3)(B)(i)(IV) of the Trade Act of 1974 (19 U.S.C.
2411(d)(3)(B)(i(IV)) is amended to read as follows:
``(IV) market opportunities, including the
toleration by a foreign government of
systematic anticompetitive activities by
persons or among persons in one or more foreign
countries that have the effect of restricting,
on a basis that is inconsistent with commercial
considerations, access of United States goods
or services to a foreign market or diverting
foreign goods or services toward the United
States market.''.
SEC. 204. AMENDMENTS TO SECTION 304 OF THE TRADE ACT OF 1974.
(a) Determination Regarding Private Anticompetitive Conduct.--
Section 304(a)(1) of the Trade Act of 1974 (19 U.S.C. 2414(a)(1)) is
amended by striking subparagraph (B) and inserting the following:
``(B) if the determination made under subparagraph
(A) is affirmative--
``(i) determine what action, if any, the
Trade Representative should take under
subsection (a) or (b) of section 301; and
``(ii) further determine whether there is
reason to believe that the conduct of the
foreign country that is the subject of
the determination under subparagraph (A) involves anticompetitive
conduct engaged in by any natural or corporate person or persons.''.
(b) Referral to Attorney General.--Section 304 of the Trade Act of
1974 is amended by redesignating subsection (c) as subsection (d) and
inserting after subsection (b) the following:
``(c) Referral to Attorney General.--If the determination under
subsection (a)(1)(B)(ii) is affirmative, the Trade Representative shall
refer the matter to the Attorney General for investigation into whether
the practices at issue constitute violations of the Sherman Act (15
U.S.C. 1-7).''.
SEC. 205. TRANSITION RULE; OUTSTANDING DETERMINATIONS BY TRADE
REPRESENTATIVE.
(a) Outstanding Determinations.--The United States Trade
Representative shall have the authority to determine, with respect to
any affirmative determination made before the enactment of this Act by
the Trade Representative under section 304 of the Trade Act of 1974 (19
U.S.C. 2414)--
(1) whether the determination identifies a burden or
restriction on United States commerce that has not been
eliminated; and
(2) whether the determination identifies acts, policies, or
practices that are still in existence and that involve
anticompetitive conduct engaged in by any natural or corporate
person or persons.
(b) Timing.--The Trade Representative shall make the determinations
described in subsection (a) not later than 120 days after--
(1) a request therefor is made by the original petitioner
or its legal successor-in-interest; or
(2) publication in the Federal Register of a notice
announcing the Trade Representative's intent to review a prior
determination on the Trade Representative's own initiative,
during which time the Trade Representative shall--
(A) give interested parties an opportunity to
comment on all matters to be covered by the
determinations; and
(B) if the Trade Representative has reason to
believe that the original determination identifies
acts, policies, or practices that are still in
existence and that involve anticompetitive conduct
engaged in by any natural or corporate person or
persons, refer the matter to the Attorney General
pursuant to section 304(c) of the Trade Act of 1974, as
amended by this Act.
SEC. 206. AMENDMENTS TO THE SHERMAN ACT.
The Sherman Act (15 U.S.C. 1-7) is amended by inserting after
section 7 the following:
``SEC. 7A. PROCEDURES FOLLOWING REFERRAL FROM TRADE REPRESENTATIVE.
``(a) Investigation by Attorney General.--Upon referral of a matter
from the United States Trade Representative under section 304(c) of the
Trade Act of 1974, the Attorney General shall commence an investigation
into whether the matter involves a violation of this Act.
``(b) Action Following Investigation.--
``(1) Determination by attorney general.--At the conclusion
of the investigation required by subsection (a), the Attorney
General shall determine whether there is reason to believe that
a person or persons have violated or are violating any of the
provisions of this Act.
``(2) Timing of determination.--(A) Subject to subparagraph
(B), the Attorney General shall make the determination required
under paragraph (1) on or before the date that is 180 days
after the date on which the matter was referred by the Trade
Representative to the Attorney General.
``(B) If the Attorney General determines that complex or
complicated issues are involved in the investigation that
require additional time, the Attorney General shall publish in
the Federal Register notice of such determination and shall
make the determination required under paragraph (1) with
respect to such investigation by no later than the date that is
270 days after the date on which the matter was referred by the
Trade Representative to the Attorney General.
``(3) Action if determination affirmative.--If the
determination under paragraph (1) is affirmative, the Attorney
General shall--
``(A) commence an action in a district court of the
United States seeking injunctive relief and any other
relief that a court may deem just against the person or
persons believed to have violated or be violating any
of the provisions of this Act, by issuing a complaint
and causing it to be served upon such person or
persons; or
``(B) submit a report to the Committees on Ways and
Means and on the Judiciary of the House of
Representatives and the Committees on Finance and on
the Judiciary of the Senate, setting forth reasons for
declining to commence an action against the person or
persons who the Attorney General has reason to believe
have violated or are violating any of the provisions of this Act.
Reasons for declining to commence an action may include--
``(i) such person or persons have ceased
the conduct believed to have violated any of
the provisions of this Act and have entered
into an agreement with the Attorney General
whereby they commit to refrain from such
conduct in the future;
``(ii) the foreign country or countries in
which such person or persons reside have
undertaken enforcement action which, in the
judgment of the Attorney General, is likely to
lead to cessation of the conduct believed to
have violated any of the provisions of this
Act;
``(iii) it is impossible to obtain personal
jurisdiction over such person or persons
consistent with the requirement of due process
under the United States Constitution;
``(iv) in the interests of comity, such
action should not be commenced, taking into
account--
``(I) the relative significance to
the alleged violation of conduct within
the United States, as compared to
conduct abroad;
``(II) the nationality of the
persons involved in or affected by the
conduct;
``(III) the presence or absence of
a purpose to affect United States
consumers, markets, or exporters;
``(IV) the relative significance
and foreseeability of the effects of
the conduct on the United States as
compared to the effects abroad;
``(V) the existence of reasonable
expectations that would be furthered or
defeated by the action;
``(VI) the degree of conflict with
foreign law or articulated foreign
economic policies;
``(VII) the extent to which the
enforcement activities of another
country with respect to the same
persons, including remedies resulting
from those activities, may be affected;
and
``(VIII) the effectiveness of
enforcement by foreign countries as
compared to enforcement action by the
United States.
The Attorney General shall submit the report under subparagraph
(B) referred to no later than the date that is 30 days after
the date on which the Attorney General makes the determination
required under paragraph (1).
``(4) Action if determination negative.--If the
determination under paragraph (1) is negative, the Attorney
General shall submit a report to the Committees on Ways and
Means and on the Judiciary of the House of Representatives and
the Committees on Finance and on the Judiciary of the Senate
explaining why the Attorney General reached that determination.
The report referred to in the preceding sentence shall be
submitted no later than the date that is 30 days after the date
on which the Attorney General makes the determination required
under paragraph (1).''.
TITLE III--ADVERSE INFERENCES BY TRADE REPRESENTATIVE
SEC. 301. ADVERSE INFERENCE WARRANTED.
(a) In General.--Chapter 1 of title III of the Trade Act of 1974 is
amended by adding at the end the following:
``SEC. 311. ADVERSE INFERENCES.
``(a) Determinations Under Section 304.--In making a determination
under section 304, if the Trade Representative determines that the
foreign government has failed to cooperate by not acting to the best of
its ability to--
``(1) comply with a reasonable request for information, or
``(2) require a party within its jurisdiction to comply
with a reasonable request for information,
then, in reaching the applicable determination, the Trade
Representative may use an inference that is adverse to the interests of
the foreign government, if there is a reasonable basis for the
inference. Such adverse inference may include reliance on information
from other United States Government agencies and departments, and from
interested persons.
``(b) Determinations Under Section 304(a)(1)(B)(ii).--In making a
determination under section 304(a)(1)(B)(ii), if the Trade
Representative determines that a foreign person has failed to cooperate
by not acting to the best of its ability to comply with a reasonable
request for information, then, in reaching the applicable
determination, the Trade Representative may use an inference that is
adverse to the interests of the foreign person, if there is a
reasonable basis for the inference. Such adverse inference may include
reliance on information from other United States Government agencies
and departments, and from interested persons.''.
(b) Conforming Amendment.--The table of contents for the Trade Act
of 1974 is amended by adding after the item relating to section 310 the
following new item:
``Sec. 311. Adverse inferences.''.
<all>
Introduced in House
Introduced in House
Sponsor introductory remarks on measure. (CR E2394)
Referred to the Committee on Ways and Means, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Ways and Means, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Ways and Means, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Trade.
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