[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.''.
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