I

106TH CONGRESS

1ST SESSION H. R. 1201

To provide for a private right of action in the case of injury from the

importation of certain dumped and subsidized merchandise.

IN THE HOUSE OF REPRESENTATIVES

MARCH 18, 1999

Mr. REGULA 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 provide for a private right of action in the case of

injury from the importation of certain dumped and subsidized merchandise.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Unfair Foreign Com5 petition Act of 1999’’.
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1 SEC. 2. PRIVATE ACTIONS FOR RELIEF FROM UNFAIR FOR2 EIGN COMPETITION.

3 (a) CLAYTON ACT.—Section 1(a) of the Clayton Act

4 (15 U.S.C. 12) is amended by inserting ‘‘section 801 of

5 the Act of September 8, 1916, entitled ‘An Act to raise

6 revenue, and for other purposes’ (39 Stat. 798; 15 U.S.C.

7 72);’’ after ‘‘nineteen hundred and thirteen;’’.

8 (b) ACTION FOR DUMPING VIOLATIONS.—Section

9 801 of the Act of September 8, 1916 (39 Stat. 798; 15

10 U.S.C. 72) is amended to read as follows:

11 ‘‘SEC. 801. IMPORTATION OR SALE OF ARTICLES AT LESS

12 THAN FOREIGN MARKET VALUE OR CON13 STRUCTED VALUE.

14 ‘‘(a) PROHIBITION.—No person shall import into, or

15 sell within, the United States an article manufactured or

16 produced in a foreign country if—

17 ‘‘(1) the article is imported or sold within the

18 United States at a United States price that is less

19 than the foreign market value or constructed value

20 of the article; and

21 ‘‘(2) the importation or sale—

22 ‘‘(A) causes or threatens to cause material

23 injury to industry or labor in the United States;

24 or
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1 ‘‘(B) prevents, in whole or in part, the es2 tablishment or modernization of any industry in

3 the United States.

4 ‘‘(b) CIVIL ACTION.—An interested party whose busi5 ness or property is injured by reason of an importation

6 or sale of an article in violation of this section may bring

7 a civil action in the United States District Court for the

8 District of Columbia or in the Court of International

9 Trade against any person who—

10 ‘‘(1) manufactures, produces, or exports the ar11 ticle; or

12 ‘‘(2) imports the article into the United States

13 if the person is related to the manufacturer or ex14 porter of the article.

15 ‘‘(c) RELIEF.—Upon an affirmative determination by

16 the United States District Court or the Court of Inter17 national Trade in an action brought under subsection (b),

18 the court shall issue an order that includes a description

19 of the subject article in such detail as the court deems

20 necessary and shall—

21 ‘‘(1) direct the Customs Service to assess an

22 antidumping duty on the article covered by the de23 termination in accordance with section 736(a) of the

24 Tariff Act of 1930 (19 U.S.C. 1673e); and
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1 ‘‘(2) require the deposit of estimated anti2 dumping duties pending liquidation of entries of the

3 article at the same time as estimated normal cus4 toms duties on that article are deposited.

5 ‘‘(d) STANDARD OF PROOF.—

6 ‘‘(1) PREPONDERANCE OF EVIDENCE.—The

7 standard of proof in an action brought under sub8 section (b) is a preponderance of the evidence.

9 ‘‘(2) SHIFT OF BURDEN OF PROOF.—Upon—

10 ‘‘(A) a prima facie showing of the elements

11 set forth in subsection (a), or

12 ‘‘(B) affirmative final determinations ad13 verse to the defendant that are made by the ad14 ministering authority and the United States

15 International Trade Commission under section

16 735 of the Tariff Act of 1930 (19 U.S.C.

17 1673d) relating to imports of the article in

18 question for the country in which the manufac19 turer of the article is located,

20 the burden of proof in an action brought under sub21 section (b) shall be upon the defendant.

22 ‘‘(e) OTHER PARTIES.—

23 ‘‘(1) IN GENERAL.—Whenever, in an action

24 brought under subsection (b), it appears to the court

25 that justice requires that other parties be brought
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1 before the court, the court may cause them to be

2 summoned, without regard to where they reside, and

3 the subpoenas to that end may be served and en4 forced in any judicial district of the United States.

5 ‘‘(2) SERVICE ON DISTRICT DIRECTOR OF CUS6 TOMS SERVICE.—A foreign manufacturer, producer,

7 or exporter that sells articles, or for whom articles

8 are sold by another party in the United States, shall

9 be treated as having appointed the District Director

10 of the United States Customs Service for the port

11 through which the article that is the subject of the

12 action is commonly imported as the true and lawful

13 agent of the manufacturer, producer, or exporter,

14 and all lawful process may be served on the District

15 Director in any action brought under subsection (b)

16 against the manufacturer, producer, or exporter.

17 ‘‘(f) LIMITATION.—

18 ‘‘(1) STATUTE OF LIMITATION.—An action

19 under subsection (b) shall be commenced not later

20 than 4 years after the date on which the cause of

21 action accrues.

22 ‘‘(2) SUSPENSION.—The 4-year period provided

23 for in paragraph (1) shall be suspended—

24 ‘‘(A) while there is pending an administra25 tive proceeding under subtitle B of title VII of
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1 the Tariff Act of 1930 (19 U.S.C. 1673 et seq.)

2 relating to the article that is the subject of the

3 action or an appeal of a final determination in

4 such a proceeding; and

5 ‘‘(B) for 1 year thereafter.

6 ‘‘(g) NONCOMPLIANCE WITH COURT ORDER.—If a

7 defendant in an action brought under subsection (b) fails

8 to comply with any discovery order or other order or de9 cree of the court, the court may—

10 ‘‘(1) enjoin the further importation into, or the

11 sale or distribution within, the United States by the

12 defendant of articles that are the same as, or similar

13 to, the articles that are alleged in the action to have

14 been sold or imported under the conditions described

15 in subsection (a) until such time as the defendant

16 complies with the order or decree; or

17 ‘‘(2) take any other action authorized by law or

18 by the Federal Rules of Civil Procedure, including

19 entering judgment for the plaintiff.

20 ‘‘(h) CONFIDENTIALITY AND PRIVILEGED STATUS.—

21 ‘‘(1) IN GENERAL.—Except as provided in para22 graph (2), the confidential or privileged status ac23 corded by law to any documents, evidence, com24 ments, or information shall be maintained in any ac25 tion brought under subsection (b).
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1 ‘‘(2) EXCEPTION.—In an action brought under

2 subsection (b) the court may—

3 ‘‘(A) examine, in camera, any confidential

4 or privileged material;

5 ‘‘(B) accept depositions, documents, affida6 vits, or other evidence under seal; and

7 ‘‘(C) disclose such material under such

8 terms and conditions as the court may order.

9 ‘‘(i) EXPEDITION OF ACTION.—An action brought

10 under subsection (b) shall be advanced on the docket and

11 expedited in every way possible.

12 ‘‘(j) DEFINITIONS.—In this section, the terms

13 ‘United States price’, ‘foreign market value’, ‘constructed

14 value’, ‘subsidy’, ‘interested party’, and ‘material injury’,

15 have the meanings given those terms under title VII of

16 the Tariff Act of 1930 (19 U.S.C. 1671 et seq.).

17 ‘‘(k) INTERVENTION BY THE UNITED STATES.—The

18 court shall permit the United States to intervene in any

19 action brought under subsection (b) as a matter of right.

20 The United States shall have all the rights of a party to

21 such action.

22 ‘‘(l) NULLIFICATION OF ORDER.—An order by a

23 court under this section may be set aside by the President

24 pursuant to section 203 of the International Emergency

25 Economic Powers Act (50 U.S.C. 1702).’’.
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1 (c) ACTION FOR SUBSIDIES VIOLATIONS.—Title VIII

2 of the Act of September 8, 1916 (39 U.S.C. 798; 15

3 U.S.C. 71 et seq.) is amended by adding at the end the

4 following new section:

5 ‘‘SEC. 807. IMPORTATION OR SALE OF SUBSIDIZED ARTI6 CLES.

7 ‘‘(a) PROHIBITION.—No person shall import into, or

8 sell within, the United States an article manufactured or

9 produced in a foreign country if—

10 ‘‘(1) the foreign country, any person who is a

11 citizen or national of the foreign country, or a cor12 poration, association, or other organization orga13 nized in the foreign country, is providing (directly or

14 indirectly) a subsidy with respect to the manufac15 ture, production, or exportation of the article; and

16 ‘‘(2) the importation or sale—

17 ‘‘(A) causes or threatens to cause material

18 injury to industry or labor in the United States;

19 or

20 ‘‘(B) prevents, in whole or in part, the es21 tablishment or modernization of any industry in

22 the United States.

23 ‘‘(b) CIVIL ACTION.—An interested party whose busi24 ness or property is injured by reason of the importation

25 or sale of an article in violation of this section may bring
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1 a civil action in the United States District Court for the

2 District of Columbia or in the Court of International

3 Trade against any person who—

4 ‘‘(1) manufactures, produces, or exports the ar5 ticle; or

6 ‘‘(2) imports the article into the United States

7 if the person is related to the manufacturer, pro8 ducer, or exporter of the article.

9 ‘‘(c) RELIEF.—Upon an affirmative determination by

10 the United States District Court or the Court of Inter11 national Trade in an action brought under subsection (b),

12 the court shall issue an order that includes a description

13 of the subject article in such detail as the court deems

14 necessary and shall—

15 ‘‘(1) direct the Customs Service to assess a

16 countervailing duty on the article covered by the de17 termination in accordance with section 706(a) of the

18 Tariff Act of 1930 (19 U.S.C. 1671e); and

19 ‘‘(2) require the deposit of estimated counter20 vailing duties pending liquidation of entries of the

21 article at the same time as estimated normal cus22 toms duties on that article are deposited.

23 ‘‘(d) STANDARD OF PROOF.—
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1 ‘‘(1) PREPONDERANCE OF EVIDENCE.—The

2 standard of proof in an action filed under subsection

3 (b) is a preponderance of the evidence.

4 ‘‘(2) SHIFT OF BURDEN OF PROOF.—Upon—

5 ‘‘(A) a prima facie showing of the elements

6 set forth in subsection (a), or

7 ‘‘(B) affirmative final determinations ad8 verse to the defendant that are made by the ad9 ministering authority and the United States

10 International Trade Commission under section

11 705 of the Tariff Act of 1930 (19 U.S.C.

12 1671d) relating to imports of the article in

13 question from the country in which the manu14 facturer of the article is located,

15 the burden of proof in an action brought under sub16 section (b) shall be upon the defendant.

17 ‘‘(e) OTHER PARTIES.—

18 ‘‘(1) IN GENERAL.—Whenever, in an action

19 brought under subsection (b), it appears to the court

20 that justice requires that other parties be brought

21 before the court, the court may cause them to be

22 summoned, without regard to where they reside, and

23 the subpoenas to that end may be served and en24 forced in any judicial district of the United States.
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1 ‘‘(2) SERVICE ON DISTRICT DIRECTOR OF CUS2 TOMS SERVICE.—A foreign manufacturer, producer,

3 or exporter that sells articles, or for which articles

4 are sold by another party in the United States, shall

5 be treated as having appointed the District Director

6 of the United States Customs Service for the port

7 through which the article that is the subject of the

8 action is commonly imported as the true and lawful

9 agent of the manufacturer, producer, or exporter,

10 and all lawful process may be served on the District

11 Director in any action brought under subsection (b)

12 against the manufacturer, producer, or exporter.

13 ‘‘(f) LIMITATION.—

14 ‘‘(1) STATUTE OF LIMITATIONS.—An action

15 under subsection (b) shall be commenced not later

16 than 4 years after the date on which the cause of

17 action accrues.

18 ‘‘(2) SUSPENSION.—The 4-year period provided

19 for in paragraph (1) shall be suspended—

20 ‘‘(A) while there is pending an administra21 tive proceeding under subtitle A of title VII of

22 the Tariff Act of 1930 (19 U.S.C. 1671 et seq.)

23 relating to the article that is the subject of the

24 action or an appeal of a final determination in

25 such a proceeding; and
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1 ‘‘(B) for 1 year thereafter.

2 ‘‘(g) NONCOMPLIANCE WITH COURT ORDER.—If a

3 defendant in an action brought under subsection (b) fails

4 to comply with any discovery order or other order or de5 cree of the court, the court may—

6 ‘‘(1) enjoin the further importation into, or the

7 sale or distribution within, the United States by the

8 defendant of articles that are the same as, or similar

9 to, the articles that are alleged in the action to have

10 been sold or imported under the conditions described

11 in subsection (a) until such time as the defendant

12 complies with the order or decree; or

13 ‘‘(2) take any other action authorized by law or

14 by the Federal Rules of Civil Procedure, including

15 entering judgment for the plaintiff.

16 ‘‘(h) CONFIDENTIALITY AND PRIVILEGED STATUS.—

17 ‘‘(1) IN GENERAL.—Except as provided in para18 graph (2), the confidential or privileged status ac19 corded by law to any documents, evidence, com20 ments, or information shall be maintained in any ac21 tion brought under subsection (b).

22 ‘‘(2) EXCEPTION.—In an action brought under

23 subsection (b) the court may—

24 ‘‘(A) examine, in camera, any confidential

25 or privileged material;
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1 ‘‘(B) accept depositions, documents, affida2 vits, or other evidence under seal; and

3 ‘‘(C) disclose such material under such

4 terms and conditions as the court may order.

5 ‘‘(i) EXPEDITION OF ACTION.—An action brought

6 under subsection (b) shall be advanced on the docket and

7 expedited in every way possible.

8 ‘‘(j) DEFINITIONS.—In this section, the terms ‘sub9 sidy’, ‘material injury’, and ‘interested party’ have the

10 meanings given those terms under title VII of the Tariff

11 Act of 1930 (19 U.S.C. 1671 et seq.).

12 ‘‘(k) INTERVENTION BY THE UNITED STATES.—The

13 court shall permit the United States to intervene in any

14 action brought under subsection (b) as a matter of right.

15 The United States shall have all the rights of a party to

16 such action.

17 ‘‘(l) NULLIFICATION OF ORDER.—An order by a

18 court under this section may be set aside by the President

19 pursuant to section 203 of the International Emergency

20 Economic Powers Act (50 U.S.C. 1702).’’.

21 SEC. 3. AMENDMENTS TO THE TARIFF ACT OF 1930.

22 (a) IN GENERAL.—Title VII of the Tariff Act of

23 1930 (19 U.S.C. 1671 et seq.) is amended by inserting

24 after section 753 following new section:
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1 ‘‘SEC. 754. CONTINUED DUMPING AND SUBSIDY OFFSET.

2 ‘‘(a) IN GENERAL.—Duties assessed pursuant to a

3 countervailing duty order, an antidumping duty order, or

4 a finding under the Antidumping Act of 1921 shall be dis5 tributed on an annual basis under this section to the af6 fected domestic producers for qualifying expenditures and

7 to adversely affected employees for assistance. Such dis8 tribution shall be known as the ‘continued dumping and

9 subsidy offset’.

10 ‘‘(b) DEFINITIONS.—In this section:

11 ‘‘(1) AFFECTED DOMESTIC PRODUCER.—The

12 term ‘affected domestic producer’ means any manu13 facturer, producer, farmer, rancher, or worker rep14 resentative (including associations of such persons)

15 that—

16 ‘‘(A) was a petitioner or interested party in

17 support of the petition with respect to which an

18 antidumping duty order, a finding under the

19 Antidumping Act of 1921, or a countervailing

20 duty order has been entered, and

21 ‘‘(B) remains in operation.

22 Companies, businesses, or persons that have ceased

23 the production of the product covered by the order

24 or finding or who have been acquired by a company

25 or business that is related to a company that op-
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1 posed the investigation shall not be an affected do2 mestic producer.

3 ‘‘(2) ASSISTANCE.—The term ‘assistance’

4 means allowances, training, and employment services

5 similar to those provided under subchapter D of

6 chapter 2 of title II of the Trade Act of 1974, as

7 in effect on January 1, 1999 (19 U.S.C. 2331 et

8 seq.).

9 ‘‘(3) COMMISSIONER.—The term ‘Commis10 sioner’ means the Commissioner of Customs.

11 ‘‘(4) COMMISSION.—The term ‘Commission’

12 means the United States International Trade Com13 mission.

14 ‘‘(5) QUALIFYING EXPENDITURE.—The term

15 ‘qualifying expenditure’ means an expenditure in16 curred after the issuance of the antidumping duty

17 finding or order or countervailing duty order in any

18 of the following categories:

19 ‘‘(A) Plant.

20 ‘‘(B) Equipment.

21 ‘‘(C) Research and development.

22 ‘‘(D) Personnel training.

23 ‘‘(E) Acquisition of technology.

24 ‘‘(F) Health care benefits to employees

25 paid for by the employer.
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1 ‘‘(G) Pension benefits to employees paid

2 for by the employer.

3 ‘‘(H) Environmental equipment, training,

4 or technology.

5 ‘‘(I) Acquisition of raw materials and other

6 inputs.

7 ‘‘(J) Borrowed working capital or other

8 funds needed to maintain production.

9 ‘‘(6) RELATED TO.—A company, business, or

10 person shall be considered to be ‘related to’ another

11 company, business, or person if—

12 ‘‘(A) the company, business, or person di13 rectly or indirectly controls or is controlled by

14 the other company, business, or person,

15 ‘‘(B) a third party directly or indirectly

16 controls both companies, businesses, or persons,

17 ‘‘(C) both companies, businesses, or per18 sons directly or indirectly control a third party

19 and there is reason to believe that the relation20 ship causes the first company, business, or per21 sons to act differently than a nonrelated party.

22 For purposes of this paragraph, a party shall be

23 considered to directly or indirectly control another

24 party if the party is legally or operationally in a po-
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1 sition to exercise restraint or direction over the other

2 party.

3 ‘‘(7) ADVERSELY AFFECTED EMPLOYEE.—The

4 term ‘adversely affected employee’ means an em5 ployee of an affected domestic producer that has be6 come totally or partially separated because—

7 ‘‘(A) the sales or production, or both, of

8 the domestic producer have decreased abso9 lutely; and

10 ‘‘(B) imports of articles directly competi11 tive with articles produced by the domestic pro12 ducer have increased or are the subject of an

13 antidumping duty order, a finding under the

14 Antidumping Act of 1921, or a countervailing

15 duty order described in paragraph (1)(A).

16 The Secretary of Labor shall determine if an em17 ployee is eligible for assistance under this section.

18 ‘‘(c) DISTRIBUTION PROCEDURES.—The Commis19 sioner, in consultation with the Secretary of Labor, shall

20 prescribe procedures for distribution of the continued

21 dumping or subsidies offset required by this section. Such

22 distribution shall be made not later than 60 days after

23 the first day of a fiscal year from duties assessed during

24 the preceding fiscal year.
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1 ‘‘(d) PARTIES ELIGIBLE FOR DISTRIBUTION OF

2 ANTIDUMPING AND COUNTERVAILING DUTIES AS3 SESSED.—

4 ‘‘(1) LIST OF AFFECTED DOMESTIC PRO5 DUCERS.—The Commission shall forward to the

6 Commissioner within 60 days after the effective date

7 of this section in the case of orders or findings in

8 effect on such effective date, or in any other case,

9 within 60 days after the date an antidumping or

10 countervailing duty order or finding is issued, a list

11 of petitioners and persons with respect to each order

12 and finding and a list of persons that indicate sup13 port of the petition by letter or through question14 naire response. In those cases in which a determina15 tion of injury was not required or the Commission’s

16 records do not permit an identification of those in

17 support of a petition, the Commission shall consult

18 with the administering authority to determine the

19 identity of the petitioner and those domestic parties

20 who have entered appearances during administrative

21 reviews conducted by the administering authority

22 under section 751.

23 ‘‘(2) PUBLICATION OF LIST.—The Commis24 sioner shall publish in the Federal Register at least

25 30 days before the distribution of a continued dump-
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1 ing and subsidy offset, a notice of intention to dis2 tribute the offset and the list of affected domestic

3 producers and adversely affected employees poten4 tially eligible for the distribution based on the list

5 obtained from the Commission under paragraph (1).

6 ‘‘(3) CERTIFICATION.—

7 ‘‘(A) DOMESTIC PRODUCER.—The Com8 missioner shall request a certification from each

9 potentially eligible affected domestic producer—

10 ‘‘(i) that the producer desires to re11 ceive a distribution;

12 ‘‘(ii) that the producer is eligible to

13 receive the distribution as an affected do14 mestic producer; and

15 ‘‘(iii) the qualifying expenditures in16 curred by the producer since the issuance

17 of the order or finding for which distribu18 tion under this section has not previously

19 been made.

20 ‘‘(B) ADVERSELY AFFECTED EMPLOYEE.—

21 The Commissioner shall request a certification

22 from each group of potentially eligible adversely

23 affected employees—

24 ‘‘(i) that the employees are employed

25 by a domestic producer; and
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1 ‘‘(ii) that the conditions described in

2 subsection (b)(7) exist.

3 ‘‘(4) DISTRIBUTION OF FUNDS.—The Commis4 sioner, in consultation with the Secretary of Labor,

5 shall distribute all funds (including all interest

6 earned on the funds) from assessed duties received

7 in the preceding fiscal year to affected domestic pro8 ducers and adversely affected employees based on

9 the certifications described in paragraph (3). The

10 distributions shall be made on a pro rata basis based

11 on new and remaining qualifying expenditures and

12 assistance needs.

13 ‘‘(e) SPECIAL ACCOUNTS.—

14 ‘‘(1) ESTABLISHMENTS.—Within 14 days after

15 the effective date of this section, with respect to

16 antidumping duty orders and findings and counter17 vailing duty orders in effect on the effective date of

18 this section, and within 14 days after the date an

19 antidumping duty order or finding or countervailing

20 duty order issued after the effective date takes ef21 fect, the Commissioner shall establish in the Treas22 ury of the United States a special account with re23 spect to each such order or finding.

24 ‘‘(2) DEPOSITS INTO ACCOUNTS.—The Commis25 sioner shall deposit into the special accounts, all
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1 antidumping or countervailing duties (including in2 terest earned on such duties) that are assessed after

3 the effective date of this section under the anti4 dumping order or finding or the countervailing duty

5 order with respect to which the account was estab6 lished.

7 ‘‘(3) TIME AND MANNER OF DISTRIBUTIONS.—

8 Consistent with the requirements of subsections (c)

9 and (d), the Commissioner shall by regulation pre10 scribe the time and manner in which distribution of

11 the funds in a special account shall made.

12 ‘‘(4) TERMINATION.—A special account shall

13 terminate after—

14 ‘‘(a) the order or finding with respect to

15 which the account was established has termi16 nated;

17 ‘‘(B) all entries relating to the order or

18 finding are liquidated and duties assessed col19 lected;

20 ‘‘(C) the Commissioner has provided notice

21 and a final opportunity to obtain distribution

22 pursuant to subsection (c); and

23 ‘‘(D) 90 days has elapsed from the date of

24 the notice described in subparagraph (C).
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1 Amounts not claimed within 90 days of the date of

2 the notice described in subparagraph (C), shall be

3 deposited into the general fund of the Treasury.’’.

4 (b) CONFORMING AMENDMENT.—The table of con5 tents for title VII of the Tariff Act of 1930 is amended

6 by inserting the following new item after the item relating

7 to section 753:

‘‘Sec. 754. Continued dumping and subsidy offset.’’.

8 (c) EFFECTIVE DATE.—The amendments made by

9 this section shall apply with respect to all antidumping

10 and countervailing duty assessments made on or after Oc11 tober 1, 1996.

Æ