I 

108TH CONGRESS 

1ST SESSION H. R. 2737

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 

JULY 15, 2003

Mr. LEVIN 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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Trade Enhancement 

3 Act of 2003’’. 

4 SEC. 2. FINDINGS. 

5 The Congress makes the following findings: 

6 (1) Recent financial crises affecting key trading 

7 partners show that the health of the international 

8 economic system depends on open, competitive mar9 kets. 

10 (2) Resolution of these financial crises, which 

11 tend to arise in relatively closed markets, depends on 

12 structural reform. 

13 (3) Restrictive foreign government policies, pri14 vate restraints, and collaborative public-private bar15 riers perpetuate an unacceptably large United States 

16 trade deficit which is now once again growing sharp17 ly. 

18 (4) More broadly, import barriers in major for19 eign markets injure United States industries by re20 stricting United States exports, by creating profit 

21 sanctuaries which serve as platforms for injurious 

22 dumping, and by causing shipments from third 

23 countries to be diverted to the United States market. 

24 (5) The agreements adopted by the World 

25 Trade Organization do not currently provide a basis 

26 to address sophisticated methods of blocking market 
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1 access and effective competition in a foreign market, 

2 particularly the growing number of joint public-pri3 vate market access barriers, including nontrans4 parent forms of regulation, which impose a substan5 tial burden on United States and world commerce. 

6 (6) Partially as a result of changes effected by 

7 the agreements adopted by the World Trade Organi8 zation, section 301 of the Trade Act of 1974 does 

9 not currently address private and joint public-private 

10 market access barriers as effectively as it should. 

11 (7)(A) The limitations of the investigative abili12 ties of the United States Trade Representative were 

13 highlighted in the investigation conducted under sec14 tion 301 of the Trade Act of 1974 of the wheat 

15 trade practices of the Canadian Wheat Board. 

16 (B) In the case referred to in subparagraph 

17 (A), the Trade Representative concluded that not 

18 only did Canada grant the Canadian Wheat Board 

19 (CWB) ‘‘special monopoly rights and privileges 

20 which disadvantage United States wheat farmers’’, 

21 but the CWB also ‘‘refused to provide USTR certain 

22 necessary information’’ for the section 301 investiga23 tion. 
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1 TITLE I—FOREIGN PRIVATE AND 

2 PUBLIC-PRIVATE MARKET AC3 CESS BARRIERS 

4 SEC. 101. AMENDMENTS TO SECTION 301(d) OF THE TRADE 

5 ACT OF 1974. 

6 (a) UNJUSTIFIABLE ACTS, POLICIES, AND PRAC7 TICES.—Section 301(d)(4)(A) of the Trade Act of 1974 

8 (19 U.S.C. 2411(d)(4)(A)) is amended to read as follows: 

9 ‘‘(4)(A) An act, policy, or practice is unjustifi10 able if the act, policy, or practice—

11 ‘‘(i) is in violation of, or inconsistent with, 

12 the international legal rights of the United 

13 States; or 

14 ‘‘(ii) constitutes fostering by a foreign gov15 ernment of systematic anticompetitive activities 

16 by persons or among persons in one or more 

17 foreign countries that have the effect of re18 stricting, on a basis that is inconsistent with 

19 commercial considerations, access of United 

20 States goods or services to a foreign market or 

21 diverting foreign goods or services toward the 

22 United States market.’’. 

23 (b) UNREASONABLE ACTS, POLICIES, AND PRAC24 TICES.—Section 301(d)(3)(B)(i)(IV) of the Trade Act of 
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1 1974 (19 U.S.C. 2411(d)(3)(B)(i)(IV)) is amended to 

2 read as follows: 

3 ‘‘(IV) market opportunities, including 

4 the toleration by a foreign government of 

5 systematic anticompetitive activities by 

6 persons or among persons in one or more 

7 foreign countries that have the effect of re8 stricting, on a basis that is inconsistent 

9 with commercial considerations, access of 

10 United States goods or services to a for11 eign market or diverting foreign goods or 

12 services toward the United States mar13 ket.’’. 

14 SEC. 102. AMENDMENTS TO SECTION 304 OF THE TRADE 

15 ACT OF 1974. 

16 (a) DETERMINATION REGARDING PRIVATE ANTI17 COMPETITIVE CONDUCT.—Section 304(a)(1) of the Trade 

18 Act of 1974 (19 U.S.C. 2414(a)(1)) is amended by strik19 ing subparagraph (B) and inserting the following: 

20 ‘‘(B) if the determination made under sub21 paragraph (A) is affirmative—

22 ‘‘(i) determine what action, if any, the 

23 Trade Representative should take under 

24 subsection (a) or (b) of section 301; and
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1 ‘‘(ii) further determine whether there 

2 is reason to believe that the conduct of the 

3 foreign country that is the subject of the 

4 determination under subparagraph (A) in5 volves anticompetitive conduct engaged in 

6 by any natural or corporate person or per7 sons.’’. 

8 (b) REFERRAL TO ATTORNEY GENERAL.—Section 

9 304 of the Trade Act of 1974 is amended by redesignating 

10 subsection (c) as subsection (d) and inserting after sub11 section (b) the following: 

12 ‘‘(c) REFERRAL TO ATTORNEY GENERAL.—If the de13 termination under subsection (a)(1)(B)(ii) is affirmative, 

14 the Trade Representative shall refer the matter to the At15 torney General for investigation into whether the practices 

16 at issue constitute violations of the Sherman Act (15 

17 U.S.C. 1–7).’’.

18 SEC. 103. TRANSITION RULE; OUTSTANDING DETERMINA19 TIONS BY TRADE REPRESENTATIVE. 

20 (a) TREATMENT OF PREEXISTING DETERMINA21 TIONS.—The United States Trade Representative shall 

22 have the authority to determine, with respect to any af23 firmative determination made before the enactment of this 

24 Act by the Trade Representative under section 304 of the 

25 Trade Act of 1974 (19 U.S.C. 2414)—
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1 (1) whether the determination identifies a bur2 den or restriction on United States commerce that 

3 has not been eliminated; and 

4 (2) whether the determination identifies acts, 

5 policies, or practices that are still in existence and 

6 that involve anticompetitive conduct engaged in by 

7 any natural or corporate person or persons. 

8 (b) TIMING.—The Trade Representative shall make 

9 the determinations described in subsection (a) not later 

10 than 120 days after—

11 (1) a request therefor is made by the original 

12 petitioner or its legal successor-in-interest; or 

13 (2) publication in the Federal Register of a no14 tice announcing the Trade Representative’s intent to 

15 review a prior determination on the Trade Rep16 resentative’s own initiative, during which time the 

17 Trade Representative shall—

18 (A) give interested parties an opportunity 

19 to comment on all matters to be covered by the 

20 determinations; and 

21 (B) if the Trade Representative has reason 

22 to believe that the original determination identi23 fies acts, policies, or practices that are still in 

24 existence and that involve anticompetitive con25 duct engaged in by any natural or corporate 
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1 person or persons, refer the matter to the At2 torney General pursuant to section 304(c) of 

3 the Trade Act of 1974, as amended by this Act. 

4 SEC. 104. AMENDMENTS TO THE SHERMAN ACT. 

5 The Sherman Act (15 U.S.C. 1–7) is amended by in6 serting after section 7 the following: 

7 ‘‘SEC. 7A. PROCEDURES FOLLOWING REFERRAL FROM 

8 TRADE REPRESENTATIVE. 

9 ‘‘(a) INVESTIGATION BY ATTORNEY GENERAL.—

10 Upon referral of a matter from the United States Trade 

11 Representative under section 304(c) of the Trade Act of 

12 1974, the Attorney General shall commence an investiga13 tion into whether the matter involves a violation of this 

14 Act. 

15 ‘‘(b) ACTION FOLLOWING INVESTIGATION.—

16 ‘‘(1) DETERMINATION BY ATTORNEY GEN17 ERAL.—At the conclusion of the investigation re18 quired by subsection (a), the Attorney General shall 

19 determine whether there is reason to believe that a 

20 person or persons have violated or are violating any 

21 of the provisions of this Act. 

22 ‘‘(2) TIMING OF DETERMINATION.—(A) Subject 

23 to subparagraph (B), the Attorney General shall 

24 make the determination required under paragraph 

25 (1) on or before the date that is 180 days after the 
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1 date on which the matter was referred by the Trade 

2 Representative to the Attorney General. 

3 ‘‘(B) If the Attorney General determines that 

4 complex or complicated issues are involved in the in5 vestigation that require additional time, the Attorney 

6 General shall publish in the Federal Register notice 

7 of such determination and shall make the determina8 tion required under paragraph (1) with respect to 

9 such investigation by no later than the date that is 

10 270 days after the date on which the matter was re11 ferred by the Trade Representative to the Attorney 

12 General. 

13 ‘‘(3) ACTION IF DETERMINATION AFFIRMA14 TIVE.—If the determination under paragraph (1) is 

15 affirmative, the Attorney General shall—

16 ‘‘(A) commence an action in a district 

17 court of the United States seeking injunctive 

18 relief and any other relief that a court may 

19 deem just against the person or persons be20 lieved to have violated or be violating any of the 

21 provisions of this Act, by issuing a complaint 

22 and causing it to be served upon such person or 

23 persons; or 

24 ‘‘(B) submit a report to the Committees on 

25 Ways and Means and on the Judiciary of the 
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1 House of Representatives and the Committees 

2 on Finance and on the Judiciary of the Senate, 

3 setting forth reasons for declining to commence 

4 an action against the person or persons who the 

5 Attorney General has reason to believe have vio6 lated or are violating any of the provisions of 

7 this Act. Reasons for declining to commence an 

8 action may include—

9 ‘‘(i) such person or persons have 

10 ceased the conduct believed to have vio11 lated any of the provisions of this Act and 

12 have entered into an agreement with the 

13 Attorney General whereby they commit to 

14 refrain from such conduct in the future; 

15 ‘‘(ii) the foreign country or countries 

16 in which such person or persons reside 

17 have undertaken enforcement action which, 

18 in the judgment of the Attorney General, 

19 is likely to lead to cessation of the conduct 

20 believed to have violated any of the provi21 sions of this Act; 

22 ‘‘(iii) it is impossible to obtain per23 sonal jurisdiction over such person or per24 sons consistent with the requirement of
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1 due process under the United States Con2 stitution; or 

3 ‘‘(iv) in the interests of comity, such 

4 action should not be commenced, taking 

5 into account—

6 ‘‘(I) the relative significance to 

7 the alleged violation of conduct within 

8 the United States, as compared to 

9 conduct abroad; 

10 ‘‘(II) the nationality of the per11 sons involved in or affected by the 

12 conduct; 

13 ‘‘(III) the presence or absence of 

14 a purpose to affect United States con15 sumers, markets, or exporters; 

16 ‘‘(IV) the relative significance 

17 and foreseeability of the effects of the 

18 conduct on the United States as com19 pared to the effects abroad; 

20 ‘‘(V) the existence of reasonable 

21 expectations that would be furthered 

22 or defeated by the action; 

23 ‘‘(VI) the degree of conflict with 

24 foreign law or articulated foreign eco25 nomic policies; 
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1 ‘‘(VII) the extent to which the 

2 enforcement activities of another 

3 country with respect to the same per4 sons, including remedies resulting 

5 from those activities, may be affected; 

6 and 

7 ‘‘(VIII) the effectiveness of en8 forcement by foreign countries as 

9 compared to enforcement action by 

10 the United States. 

11 The Attorney General shall submit the report under 

12 subparagraph (B) referred to no later than the date 

13 that is 30 days after the date on which the Attorney 

14 General makes the determination required under 

15 paragraph (1). 

16 ‘‘(4) ACTION IF DETERMINATION NEGATIVE.—

17 If the determination under paragraph (1) is nega18 tive, the Attorney General shall submit a report to 

19 the Committees on Ways and Means and on the Ju20 diciary of the House of Representatives and the 

21 Committees on Finance and on the Judiciary of the 

22 Senate explaining why the Attorney General reached 

23 that determination. The report referred to in the 

24 preceding sentence shall be submitted no later than 

25 the date that is 30 days after the date on which the 
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1 Attorney General makes the determination required 

2 under paragraph (1).’’. 

3 TITLE II—ADVERSE INFERENCES 

4 BY TRADE REPRESENTATIVE 

5 SEC. 201. ADVERSE INFERENCE WARRANTED. 

6 (a) IN GENERAL.—Chapter 1 of title III of the Trade 

7 Act of 1974 is amended by adding at the end the fol8 lowing: 

9 ‘‘SEC. 311. ADVERSE INFERENCES. 

10 ‘‘(a) DETERMINATIONS UNDER SECTION 304.—In 

11 making a determination under section 304, if the Trade 

12 Representative determines that the foreign government 

13 has failed to cooperate by not acting to the best of its 

14 ability to—

15 ‘‘(1) comply with a reasonable request for infor16 mation, or 

17 ‘‘(2) require a party within its jurisdiction to 

18 comply with a reasonable request for information, 

19 then, in reaching the applicable determination, the Trade 

20 Representative may use an inference that is adverse to the 

21 interests of the foreign government, if there is a reason22 able basis for the inference. Such adverse inference may 

23 include reliance on information from other United States 

24 Government agencies and departments, and from inter25 ested persons. 
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1 ‘‘(b) DETERMINATIONS UNDER SECTION

2 304(a)(1)(B)(ii).—In making a determination under sec3 tion 304(a)(1)(B)(ii), if the Trade Representative deter4 mines that a foreign person has failed to cooperate by not 

5 acting to the best of its ability to comply with a reasonable 

6 request for information, then, in reaching the applicable 

7 determination, the Trade Representative may use an infer8 ence that is adverse to the interests of the foreign person, 

9 if there is a reasonable basis for the inference. Such ad10 verse inference may include reliance on information from 

11 other United States Government agencies and depart12 ments, and from interested persons.’’. 

13 (b) CONFORMING AMENDMENT.—The table of con14 tents for the Trade Act of 1974 is amended by adding 

15 after the item relating to section 310 the following new 

16 item:

‘‘Sec. 311. Adverse inferences.’’.

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