[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.''.
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