Requires the United States Trade Representative (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.
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 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5622 Introduced in House (IH)]
107th CONGRESS
2d Session
H. R. 5622
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
October 10, 2002
Mr. Levin (for himself, Mr. Houghton, Mr. Pomeroy, 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 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 2002''.
SEC. 2. 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) 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 the growing number of joint
public-private market access barriers, including nontransparent
forms of regulation, which impose a substantial burden on
United States and world commerce.
(6) 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.
(7)(A) The limitations of the investigative abilities of
the United States Trade Representative were highlighted in the
investigation conducted under section 301 of the Trade Act of
1974 of the wheat trade practices of the Canadian Wheat Board.
(B) In the case referred to in subparagraph (A), the Trade
Representative concluded that not only did Canada grant the
Canadian Wheat Board (CWB) ``special monopoly rights and
privileges which disadvantage United States wheat farmers'',
but the CWB also ``refused to provide USTR certain necessary
information'' for the section 301 investigation.
TITLE I--FOREIGN PRIVATE AND PUBLIC-PRIVATE MARKET ACCESS BARRIERS
SEC. 101. 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. 102. 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. 103. TRANSITION RULE; OUTSTANDING DETERMINATIONS BY TRADE
REPRESENTATIVE.
(a) Treatment of Preexisting 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. 104. 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 II--ADVERSE INFERENCES BY TRADE REPRESENTATIVE
SEC. 201. 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
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.
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