[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 332 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 332

  To amend the Unfair Competition Act and Clayton Act to provide for 
   private enforcement of the Unfair Competition Act in the event of 
unfair foreign competition, and to amend title 28, United States Code, 
  to provide for private enforcement of the customs fraud provisions.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             February 4 (legislative day, January 5), 1993

  Mr. Specter introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To amend the Unfair Competition Act and Clayton Act to provide for 
   private enforcement of the Unfair Competition Act in the event of 
unfair foreign competition, and to amend title 28, United States Code, 
  to provide for private enforcement of the customs fraud provisions.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. PRIVATE ACTIONS FOR RELIEF FROM UNFAIR FOREIGN COMPETITION.

    (a) Clayton Act.--Section 1(a) of the Clayton Act (15 U.S.C. 12) is 
amended by inserting ``section 801 of the Act of September 8, 1916, 
entitled `An Act to raise revenue, and for other purposes' (39 Stat. 
798; 15 U.S.C. 72);'' after ``nineteen hundred and thirteen;''.
    (b) Action for Dumping Violations.--Section 801 of the Act of 
September 8, 1916 (39 Stat. 798; 15 U.S.C. 72) is amended to read as 
follows:
    ``Sec. 801. (a) Prohibition.--No person shall import or sell within 
the United States an article manufactured or produced in a foreign 
country if--
            ``(1) the article is imported or sold within the United 
        States at a United States price that is less than the foreign 
        market value or constructed value of the article; and
            ``(2) the importation or sale--
                    ``(A) causes or threatens material injury to 
                industry or labor in the United States; or
                    ``(B) prevents, in whole or in part, the 
                establishment or modernization of any industry in the 
                United States.
    ``(b) Civil Action.--An interested party whose business or property 
is injured by reason of an importation or sale in violation of this 
section may bring a civil action in the United States District Court 
for the District of Columbia or in the Court of International Trade 
against--
            ``(1) a manufacturer or exporter of the article; or
            ``(2) an importer of the article into the United States 
        that is related to the manufacturer or exporter of the article.
    ``(c) Relief.--In an action brought under subsection (b), upon a 
finding of liability on the part of the defendant, the plaintiff 
shall--
            ``(1)(A) be granted such equitable relief as may be 
        appropriate, which may include an injunction against further 
        importation into, or sale or distribution within, the United 
        States by the defendant of the article in question; or
            ``(B) if injunctive relief cannot be timely provided or is 
        otherwise inadequate, recover damages for the injuries 
        sustained; and
            ``(2) recover the costs of the action, including reasonable 
        attorney's fees.
    ``(d) Standard of Proof.--(1) The standard of proof in an action 
brought under subsection (b) is a preponderance of the evidence.
    ``(2) Upon--
            ``(A) a prima facie showing of the elements set forth in 
        subsection (a); or
            ``(B) affirmative final determinations adverse to the 
        defendant that are made by the administering authority and the 
        United States International Trade Commission under section 735 
        of the Tariff Act of 1930 (19 U.S.C. 1673d) relating to imports 
        of the article in question for the country in which the 
        manufacturer of the article is located,
the burden of proof in an action brought under subsection (b) shall be 
upon the defendant.
    ``(e) Other Parties.--(1) Whenever, in an action brought under 
subsection (b), it appears to the court that justice requires that 
other parties be brought before the court, the court may cause them to 
be summoned, without regard to where they reside, and the subpoenas to 
that end may be served and enforced in any judicial district of the 
United States.
    ``(2) A foreign manufacturer, producer, or exporter which sells 
products, or for which products are sold by another party in the United 
States, shall be treated as having appointed the District Director of 
the United States Customs Service of the Department of the Treasury for 
the port through which the product is commonly imported as the true and 
lawful agent of the manufacturer, producer, or exporter, upon whom may 
be served all lawful process in any action brought under subsection (b) 
against the manufacturer, producer, or exporter.
    ``(f) Limitation.--(1) An action under subsection (b) shall be 
commenced not later than 4 years after the date on which the cause of 
action accrued.
    ``(2) The running of the 4-year period provided in paragraph (1) 
shall be suspended while there is pending an administrative proceeding 
under subtitle B of title VII of the Tariff Act of 1930 (19 U.S.C. 1673 
et seq.) relating to the product that is the subject of the action or 
an appeal of a final determination in such a proceeding, and for 1 year 
thereafter.
    ``(g) Noncompliance With Court Order.--If a defendant in an action 
brought under subsection (b) fails to comply with any discovery order 
or other order or decree of the court, the court may--
            ``(1) enjoin the further importation into, or the sale or 
        distribution within, the United States by the defendant of 
        articles that are the same as, or similar to, the articles that 
        are alleged in the action to have been sold or imported under 
        the conditions described in subsection (a) until such time as 
        the defendant complies with the order or decree; or
            ``(2) take any other action authorized by law or by the 
        Federal Rules of Civil Procedure, including entering judgment 
        for the plaintiff.
    ``(h) Confidentiality and Privileged Status.--(1) Except as 
provided in paragraph (2), the confidential or privileged status 
accorded by law to any documents, evidence, comments, or information 
shall be preserved in any action brought under subsection (b).
    ``(2) In an action brought under subsection (b) the court may--
            ``(A) examine, in camera, any confidential or privileged 
        material;
            ``(B) accept depositions, documents, affidavits, or other 
        evidence under seal; and
            ``(C) disclose such material under such terms and 
        conditions as the court may order.
    ``(i) Expedition of Action.--An action brought under subsection (b) 
shall be advanced on the docket and expedited in every way possible.
    ``(j) Definitions.--For purposes of this section, the terms `United 
States price', `foreign market value', `constructed value', `subsidy', 
and `material injury', have the respective meanings given those terms 
under title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq.).
    ``(k) Subsidy.--If--
            ``(1) a subsidy is provided to the manufacturer, producer, 
        or exporter of an article; and
            ``(2) the subsidy is not included in the foreign market 
        value or constructed value of the article (but for this 
        paragraph),
the foreign market value of the article or the constructed value of the 
article shall be increased by the amount of the subsidy.
    ``(l) Intervention by the United States.--The court shall permit 
the United States to intervene in any action brought under subsection 
(b) as a matter of right. The United States shall have all the rights 
of a party to such action.
    ``(m) Nullification of Order.--An order by a court under this 
section is subject to nullification by the President under authority of 
section 203 of the International Emergency Economic Powers Act (50 
U.S.C. 1702).''.
    (c) Action for Subsidies Violations.--Title VIII of the Act of 
September 8, 1916 (39 Stat. 798; 15 U.S.C. 71 et seq.) is amended by 
adding at the end the following new section:
    ``Sec. 807. (a) Prohibition.--No person shall import or sell within 
the United States an article manufactured or produced in a foreign 
country if--
            ``(1) the foreign country, any person who is a citizen or 
        national of the foreign country, or a corporation, association, 
        or other organization organized in the foreign country, is 
        providing (directly or indirectly), a subsidy with respect to 
        the manufacture, production, or exportation of the article; and
            ``(2) the importation or sale--
                    ``(A) causes or threatens material injury to 
                industry or labor in the United States; or
                    ``(B) prevents, in whole or in part, the 
                establishment or modernization of any industry in the 
                United States.
    ``(b) Civil Action.--An interested party whose business or property 
is injured by reason of an importation or sale in violation of this 
section may bring a civil action in the United States District Court 
for the District of Columbia or in the Court of International Trade 
against--
            ``(1) a manufacturer or exporter of the article; or
            ``(2) an importer of the article into the United States 
        that is related to the manufacturer or exporter of the article.
    ``(c) Relief.--In an action brought under subsection (b), upon a 
finding of liability on the part of the defendant, the plaintiff 
shall--
            ``(1)(A) be granted such equitable relief as may be 
        appropriate, which may include an injunction against further 
        importation into, or sale or distribution within, the United 
        States by the defendant of the article in question; or
            ``(B) if injunctive relief cannot be timely provided or is 
        otherwise inadequate, recover damages for the injuries 
        sustained; and
            ``(C) recover the costs of the action, including reasonable 
        attorney's fees.
    ``(d) Standard of Proof.--(1) The standard of proof in an action 
filed under subsection (b) is a preponderance of the evidence.
    ``(2) Upon--
            ``(A) a prima facie showing of the elements set forth in 
        subsection (a); or
            ``(B) affirmative final determinations adverse to the 
        defendant that are made by the administering authority and the 
        United States International Trade Commission under section 705 
        of the Tariff Act of 1930 (19 U.S.C. 1671d) relating to imports 
        of the article in question for the country in which the 
        manufacturer of the article is located,
        the burden of proof in an action brought under subsection (b) 
        shall be upon the defendant.
    ``(e) Other Parties.--(1) Whenever, in an action brought under 
subsection (b), it appears to the court that justice requires that 
other parties be brought before the court, the court may cause them to 
be summoned, without regard to where they reside, and the subpoenas to 
that end may be served and enforced in any judicial district of the 
United States.
    ``(2) A foreign manufacturer, producer, or exporter which sells 
products, or for which products are sold by another party in the United 
States, shall be treated as having appointed the District Director of 
the United States Customs Service of the Department of the Treasury for 
the port through which the product is commonly imported as the true and 
lawful agent of the manufacturer, producer, or exporter, upon whom may 
be served all lawful process in any action brought under subsection (b) 
against the manufacturer, producer, or exporter.
    ``(f) Limitation.--(1) An action under subsection (b) shall be 
commenced not later than 4 years after the date on which the cause of 
action accrued.
    ``(2) The running of the 4-year period provided in paragraph (1) 
shall be suspended while there is pending an administrative proceeding 
under subtitle A of title VII of the Tariff Act of 1930 (19 U.S.C. 1671 
et seq.) relating to the product that is the subject of the action or 
an appeal of a final determination in such a proceeding, and for 1 year 
thereafter.
    ``(g) Noncompliance With Court Order.--If a defendant in an action 
brought under subsection (b) fails to comply with any discovery order 
or other order or decree of the court, the court may--
            ``(1) enjoin the further importation into, or the sale or 
        distribution within, the United States by the defendant of 
        articles that are the same as, or similar to, the articles that 
        are alleged in the action to have been sold or imported under 
        the conditions described in subsection (a) until such time as 
        the defendant complies with the order or decree; or
            ``(2) take any other action authorized by law or by the 
        Federal Rules of Civil Procedure, including entering judgment 
        for the plaintiff.
    ``(h) Confidentiality and Privileged Status.--(1) Except as 
provided in paragraph (2), the confidential or privileged status 
accorded by law to any documents, evidence, comments, or information 
shall be preserved in any action brought under subsection (b).
    ``(2) In an action brought under subsection (b) the court may--
            ``(A) examine, in camera, any confidential or privileged 
        material;
            ``(B) accept depositions, documents, affidavits, or other 
        evidence under seal; and
            ``(C) disclose such material under such terms and 
        conditions as the court may order.
    ``(i) Expedition of Action.--An action brought under subsection (b) 
shall be advanced on the docket and expedited in every way possible.
    ``(j) Definitions.--For purposes of this section, the terms 
`subsidy' and `material injury' have the respective meanings given 
those terms under title VII of the Tariff Act of 1930 (19 U.S.C. 1671 
et seq.).
    ``(k) Intervention by the United States.--The court shall permit 
the United States to intervene in any action brought under subsection 
(b) as a matter of right. The United States shall have all the rights 
of a party to such action.
    ``(l) Nullification of Order.--An order by a court under this 
section is subject to nullification by the President under authority of 
section 203 of the International Emergency Economic Powers Act (50 
U.S.C. 1702).''.
    (d) Action for Customs Fraud.--
            (1) Amendment of title 28, united states code.--Chapter 95 
        of title 28, United States Code, is amended by adding at the 
        end the following new section:
``Sec. 1586. Private enforcement action for customs fraud
    ``(a) Civil Action.--An interested party whose business or property 
is injured by a fraudulent, grossly negligent, or negligent violation 
of section 592(a) of the Tariff Act of 1930 (19 U.S.C. 1592(a)) may 
bring a civil action in the United States District Court for the 
District of Columbia or in the Court of International Trade without 
respect to the amount in controversy.
    ``(b) Relief.--Upon proof by an interested party that the business 
or property of such interested party has been injured by a fraudulent, 
grossly negligent, or negligent violation of section 592(a) of the 
Tariff Act of 1930, the interested party shall--
            ``(1)(A) be granted such equitable relief as may be 
        appropriate, which may include an injunction against further 
        importation into the United States of the merchandise in 
        question; or
            ``(B) if injunctive relief cannot be timely provided or is 
        otherwise inadequate, recover damages for the injuries 
        sustained; and
            ``(2) recover the costs of suit, including reasonable 
        attorney's fees.
    ``(c) Definitions.--For purposes of this section:
            ``(1) The term `interested party' means--
                    ``(A) a manufacturer, producer, or wholesaler in 
                the United States of like or competing merchandise; or
                    ``(B) a trade or business association a majority of 
                whose members manufacture, produce, or wholesale like 
                merchandise or competing merchandise in the United 
                States.
            ``(2) The term `like merchandise' means merchandise that is 
        like, or in the absence of like, most similar in 
        characteristics and uses with, merchandise being imported into 
        the United States in violation of section 502(a) of the Tariff 
        Act of 1930 (19 U.S.C. 1592(a)).
            ``(3) The term `competing merchandise' means merchandise 
        that competes with or is a substitute for merchandise being 
        imported into the United States in violation of section 592(a) 
        of the Tariff Act of 1930 (19 U.S.C. 1592(a)).
    ``(d) Intervention by the United States.--The court shall permit 
the United States to intervene in an action brought under this section, 
as a matter of right. The United States shall have all the rights of a 
party.
    ``(e) Nullification of Order.--An order by a court under this 
section is subject to nullification by the President under authority of 
section 203 of the International Emergency Economic Powers Act (50 
U.S.C. 1702).''.
            (2) Technical amendment.--The chapter analysis for chapter 
        95 of title 28, United States Code, is amended by adding at the 
        end the following new item:

``1586. Private enforcement action for customs fraud.''.

SEC. 2. ACCORDANCE WITH GATT.

    It is the sense of the Congress that this Act is consistent with, 
and in accord with, the General Agreement on Tariffs and Trade (GATT).

                                 <all>