Unfair Foreign Competition Act of 1999 - Amends the Clayton Act to revise provisions regarding the import or sale of articles from foreign countries at less than market value or wholesale price to prohibit a person from importing into, or selling within, the United States an article from a foreign country if: (1) the article is imported or sold within the United States at a U.S. price that is less (removes substantially requirement) than the foreign market value or constructed value of such article; and (2) the importation or sale causes or threatens to cause (no intent requirement) material injury to industry (including labor), or prevents, in whole or in part, the modernization of any U.S. industry. Sets forth similar provisions with respect to the importation or sale in the United States of subsidized articles from a foreign country.
Authorizes a person whose business or property is injured by reason of the importation or sale of an article in violation of this Act to bring a civil action in the U.S. District Court for the District of Columbia or in the Court of International Trade against any person who: (1) manufactures or exports the article; or (2) imports such article into the United States if such person is related to the manufacturer or exporter of the article. Requires the court, upon an affirmative determination with respect to the civil action, to issue a certain order and direct the Customs Service to assess an antidumping duty on the article, and require the deposit of estimated antidumping duties pending liquidation of entries of the article. Sets forth a four-year statute of limitation within which an action must be filed.
Amends Federal law to authorize an interested party whose business or property is injured by fraud, gross negligence, or negligence with respect to the importation of foreign merchandise to bring a civil action in the U.S. District Court for the District of Columbia or in the Court of International Trade, without respect to the amount in controversy. Grants an interested party equitable and injunctive relief, plus court costs and attorney's fees upon proof that such party's business or property has been injured by such fraud or negligence.
Amends the Tariff Act of 1930 to direct duties assessed pursuant to a countervailing duty order, an antidumping duty order, or a finding under the Antidumping Act of 1921 to be distributed (continued dumping and subsidy offset) annually to workers for damages sustained for loss of wages resulting from the lost of jobs, and to the affected domestic producers for qualifying expenditures. Directs the Commissioner of the Customs Service to prescribe procedures for the distribution of the continued dumping or subsidies offset.
Directs the International Trade Commission (ITC) to forward to the Commissioner with respect to an antidumping or countervailing duty order or finding a list of petitioners and persons with respect to each order and finding (including a list of persons that indicate support of the petition by affected workers for worker trade adjustment assistance). Directs the Commissioner to distribute on a pro rata basis 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.
Establishes in the Treasury a special account consisting of funds from assessed antidumping duty and countervailing duty orders and findings.
[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>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S2221-2224)
Read twice and referred to the Committee on Finance.
Committee on Finance. Hearings held. Hearings printed: S.Hrg. 106-187.
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