[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 528 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                 S. 528

To provide for a private right of action in the case of injury from the 
       importation of certain dumped and subsidized merchandise.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 3, 1999

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

_______________________________________________________________________

                                 A BILL


 
To provide for a private right of action in the case of injury from the 
       importation of certain dumped and subsidized merchandise.

    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 ``Unfair Foreign Competition Act of 
1999''.

SEC. 2. 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. IMPORTATION OR SALE OF ARTICLES AT LESS THAN FOREIGN MARKET 
              VALUE OR CONSTRUCTED VALUE.

    ``(a) Prohibition.--No person shall import into, 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 to cause 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 of an article 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 any person who--
            ``(1) manufactures, produces, or exports the article; or
            ``(2) imports the article into the United States if the 
        person is related to the manufacturer or exporter of the 
        article.
    ``(c) Relief.--
            ``(1) In general.--Upon an affirmative determination by the 
        United States District Court or the Court of International 
        Trade in an action brought under subsection (b), the court 
        shall issue an order that includes a description of the subject 
        article in such detail as the court deems necessary and shall--
                    ``(A) direct the Customs Service to assess an 
                antidumping duty on the article covered by the 
                determination in accordance with section 736(a) of the 
                Tariff Act of 1930 (19 U.S.C. 1673e); and
                    ``(B) require the deposit of estimated antidumping 
                duties pending liquidation of entries of the article at 
                the same time as estimated normal customs duties on 
                that article are deposited.
    ``(d) Standard of Proof.--
            ``(1) Preponderance of evidence.--The standard of proof in 
        an action brought under subsection (b) is a preponderance of 
        the evidence.
            ``(2) Shift of burden of proof.--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) In general.--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) Service on district director of customs service.--A 
        foreign manufacturer, producer, or exporter that sells 
        articles, or for whom articles are sold by another party in the 
        United States, shall be treated as having appointed the 
        District Director of the United States Customs Service for the 
        port through which the article that is the subject of the 
        action is commonly imported as the true and lawful agent of the 
        manufacturer, producer, or exporter, and all lawful process may 
        be served on the District Director in any action brought under 
        subsection (b) against the manufacturer, producer, or exporter.
    ``(f) Limitation.--
            ``(1) Statute of limitation.--An action under subsection 
        (b) shall be commenced not later than 4 years after the date on 
        which the cause of action accrues.
            ``(2) Suspension.--The 4-year period provided for in 
        paragraph (1) shall be suspended--
                    ``(A) 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 
                article that is the subject of the action or an appeal 
                of a final determination in such a proceeding; and
                    ``(B) 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) In general.--Except as provided in paragraph (2), the 
        confidential or privileged status accorded by law to any 
        documents, evidence, comments, or information shall be 
        maintained in any action brought under subsection (b).
            ``(2) Exception.--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.--In this section, the terms `United States 
price', `foreign market value', `constructed value', `subsidy', 
`interested party', and `material injury', have the 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 may be set aside by the President pursuant to 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 U.S.C. 798; 15 U.S.C. 71 et seq.) is amended by 
adding at the end the following new section:

``SEC. 807. IMPORTATION OR SALE OF SUBSIDIZED ARTICLES.

    ``(a) Prohibition.--No person shall import into, 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 to cause 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 the importation or sale of an article 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 any person who--
            ``(1) manufactures, produces, or exports the article; or
            ``(2) imports the article into the United States if the 
        person is related to the manufacturer, producer, or exporter of 
        the article.
    ``(c) Relief.--
            ``(1) In general.--Upon an affirmative determination by the 
        United States District Court or the Court of International 
        Trade in an action brought under subsection (b), the court 
        shall issue an order that includes a description of the subject 
        article in such detail as the court deems necessary and shall--
                    ``(A) direct the Customs Service to assess a 
                countervailing duty on the article covered by the 
                determination in accordance with section 706(a) of the 
                Tariff Act of 1930 (19 U.S.C. 1671e); and
                    ``(B) require the deposit of estimated 
                countervailing duties pending liquidation of entries of 
                the article at the same time as estimated normal 
                customs duties on that article are deposited.
    ``(d) Standard of Proof.--
            ``(1) Preponderance of evidence.--The standard of proof in 
        an action filed under subsection (b) is a preponderance of the 
        evidence.
            ``(2) Shift of burden of proof.--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 from 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) In general.--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) Service on district director of customs service.--A 
        foreign manufacturer, producer, or exporter that sells 
        articles, or for which articles are sold by another party in 
        the United States, shall be treated as having appointed the 
        District Director of the United States Customs Service for the 
        port through which the article that is the subject of the 
        action is commonly imported as the true and lawful agent of the 
        manufacturer, producer, or exporter, and all lawful process may 
        be served on the District Director in any action brought under 
        subsection (b) against the manufacturer, producer, or exporter.
    ``(f) Limitation.--
            ``(1) Statute of limitations.--An action under subsection 
        (b) shall be commenced not later than 4 years after the date on 
        which the cause of action accrues.
            ``(2) Suspension.--The 4-year period provided for in 
        paragraph (1) shall be suspended--
                    ``(A) 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 
                article that is the subject of the action or an appeal 
                of a final determination in such a proceeding; and
                    ``(B) 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) In general.--Except as provided in paragraph (2), the 
        confidential or privileged status accorded by law to any 
        documents, evidence, comments, or information shall be 
        maintained in any action brought under subsection (b).
            ``(2) Exception.--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.--In this section, the terms `subsidy', `material 
injury', and `interested party' have the 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 may be set aside by the President pursuant to 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) Interested party.--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) Like merchandise.--The term `like merchandise' means 
        merchandise that is like, or in the absence of like, most 
        similar in characteristics and users with, 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)).
            ``(3) Competing merchandise.--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 may be set aside by the President pursuant to 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. 3. AMENDMENTS TO THE TARIFF ACT OF 1930.

    (a) In General.--Title VII of the Tariff Act of 1930 (19 U.S.C. 
1671 et seq.) is amended by inserting after section 753 the following 
new section:

``SEC. 754. CONTINUED DUMPING AND SUBSIDY OFFSET.

    ``(a) In General.--Duties assessed pursuant to a countervailing 
duty order, an antidumping duty order, or a finding under the 
Antidumping Act of 1921 shall be distributed on an annual basis under 
this section to workers for damages sustained for loss of wages 
resulting from the loss of jobs, and to the affected domestic producers 
for qualifying expenditures. Such distribution shall be known as the 
`continued dumping and subsidy offset'.
    ``(b) Definitions.--As used in this section:
            ``(1) Affected domestic producer.--The term `affected 
        domestic producer' means any manufacturer, producer, farmer, 
        rancher, or worker representative (including associations of 
        such persons) that--
                    ``(A) was a petitioner or interested party in 
                support of the petition with respect to which an 
                antidumping duty order, a finding under the Antidumping 
                Act of 1921, or a countervailing duty order has been 
                entered, and
                    ``(B) remains in operation.
         Companies, businesses, or persons that have ceased the 
        production of the product covered by the order or finding or 
        who have been acquired by a company or business that is related 
        to a company that opposed the investigation shall not be an 
        affected domestic producer.
            ``(2) Commissioner.--The term `Commissioner' means the 
        Commissioner of Customs.
            ``(3) Commission.--The term `Commission' means the United 
        States International Trade Commission.
            ``(4) Qualifying expenditure.--The term `qualifying 
        expenditure' means an expenditure incurred after the issuance 
        of the antidumping duty finding or order or countervailing duty 
        order in any of the following categories:
                    ``(A) Plant.
                    ``(B) Equipment.
                    ``(C) Research and development.
                    ``(D) Personnel training.
                    ``(E) Acquisition of technology.
                    ``(F) Health care benefits to employees paid for by 
                the employer.
                    ``(G) Pension benefits to employees paid for by the 
                employer.
                    ``(H) Environmental equipment, training, or 
                technology.
                    ``(I) Acquisition of raw materials and other 
                inputs.
                    ``(J) Borrowed working capital or other funds 
                needed to maintain production.
            ``(5) Related to.--A company, business, or person shall be 
        considered to be `related to' another company, business, or 
        person if--
                    ``(A) the company, business, or person directly or 
                indirectly controls or is controlled by the other 
                company, business, or person,
                    ``(B) a third party directly or indirectly controls 
                both companies, businesses, or persons,
                    ``(C) both companies, businesses, or persons 
                directly or indirectly control a third party and there 
                is reason to believe that the relationship causes the 
                first company, business, or persons to act differently 
                than a nonrelated party.
        For purposes of this paragraph, a party shall be considered to 
        directly or indirectly control another party if the party is 
        legally or operationally in a position to exercise restraint or 
        direction over the other party.
            ``(6) Workers.--The term `workers' refers to persons who 
        sustained damages for loss of wages resulting from loss of 
        jobs. The Secretary of Labor shall determine eligibility for 
        purposes of this section.
    ``(c) Distribution Procedures.--The Commissioner in consultation 
with the Secretary of Labor shall prescribe procedures for distribution 
of the continued dumping or subsidies offset required by this section. 
Such distribution shall be made not later than 60 days after the first 
day of a fiscal year from duties assessed during the preceding fiscal 
year.
    ``(d) Parties Eligible for Distribution of Antidumping and 
Countervailing Duties Assessed.--
            ``(1) List of workers and affected domestic producers.--The 
        Commission shall forward to the Commissioner within 60 days 
        after the effective date of this section in the case of orders 
        or findings in effect on such effective date, or in any other 
        case, within 60 days after the date an antidumping or 
        countervailing duty order or finding is issued, a list of 
        petitioners and persons with respect to each order and finding 
        and a list of persons that indicate support of the petition by 
        letter or through questionnaire response. In those cases in 
        which a determination of injury was not required or the 
        Commission's records do not permit an identification of those 
        in support of a petition, the Commission shall consult with the 
        administering authority to determine the identity of the 
        petitioner and those domestic parties who have entered 
        appearances during administrative reviews conducted by the 
        administering authority under section 751.
            ``(2) Publication of list; certification.--The Commissioner 
        shall publish in the Federal Register at least 30 days before 
        the distribution of a continued dumping and subsidy offset, a 
        notice of intention to distribute the offset and the list of 
        workers and affected domestic producers potentially eligible 
        for the distribution based on the list obtained from the 
        Commission under paragraph (1). The Commissioner shall request 
        a certification from each potentially eligible affected 
        domestic producer--
                    ``(A) that the producer desires to receive a 
                distribution;
                    ``(B) that the producer is eligible to receive the 
                distribution as an affected domestic producer; and
                    ``(C) the qualifying expenditures incurred by the 
                producer since the issuance of the order or finding for 
                which distribution under this section has not 
                previously been made.
            ``(3) Distribution of funds.--The Commissioner in 
        consultation with the Secretary of Labor shall distribute all 
        funds (including all interest earned on the funds) from 
        assessed duties received in the preceding fiscal year to 
        workers and to the affected domestic producers based on the 
        certifications described in paragraph (2). The distributions 
        shall be made on a pro rata basis based on new and remaining 
qualifying expenditures.
    ``(e) Special Accounts.--
            ``(1) Establishments.--Within 14 days after the effective 
        date of this section, with respect to antidumping duty orders 
        and findings and countervailing duty orders in effect on the 
        effective date of this section, and within 14 days after the 
        date an antidumping duty order or finding or countervailing 
        duty order issued after the effective date takes effect, the 
        Commissioner shall establish in the Treasury of the United 
        States a special account with respect to each such order or 
        finding.
            ``(2) Deposits into accounts.--The Commissioner shall 
        deposit into the special accounts, all antidumping or 
        countervailing duties (including interest earned on such 
        duties) that are assessed after the effective date of this 
        section under the antidumping order or finding or the 
        countervailing duty order with respect to which the account was 
        established.
            ``(3) Time and manner of distributions.--Consistent with 
        the requirements of subsections (c) and (d), the Commissioner 
        shall by regulation prescribe the time and manner in which 
        distribution of the funds in a special account shall made.
            ``(4) Termination.--A special account shall terminate 
        after--
                    ``(A) the order or finding with respect to which 
                the account was established has terminated;
                    ``(B) all entries relating to the order or finding 
                are liquidated and duties assessed collected;
                    ``(C) the Commissioner has provided notice and a 
                final opportunity to obtain distribution pursuant to 
                subsection (c); and
                    ``(D) 90 days has elapsed from the date of the 
                notice described in subparagraph (C).
        Amounts not claimed within 90 days of the date of the notice 
        described in subparagraph (C), shall be deposited into the 
        general fund of the Treasury.''.
    (b) Conforming Amendment.--The table of contents for title VII of 
the Tariff Act of 1930 is amended by inserting the following new item 
after the item relating to section 753:

``Sec. 754. Continued dumping and subsidy offset.''.
    (c) Effective Date.--The amendments made by this section shall 
apply with respect to all antidumping and countervailing duty 
assessments made on or after 
October 1, 1996.
                                 <all>