I 
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 informa-
tion 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 com-
mittee 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 Representa-
tives 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 mar-
kets. 
(2) Resolution of these financial crises, which 
tend to arise in relatively closed markets, depends on 
structural reform. 
(3) Restrictive foreign government polices, pri-
vate restraints, and collaborative public-private bar-
riers perpetuate an unacceptably large United States 
trade deficit which is now once again growing sharp-
ly. 
(4) More broadly, import barriers in major for-
eign markets injure United States industries by re-
stricting 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-pri-
vate market access barriers, including nontrans-
parent forms of regulation, which impose a substan-
tial burden on United States and world commerce. 
(6) Partially as a result of changes effected by 
the agreements adopted by the World Trade Organi-
zation, 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 abili-
ties of the United States Trade Representative were 
highlighted in the investigation conducted under sec-
tion 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 investiga-
tion.
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 re-
stricting, on a basis that is inconsistent 
with commercial considerations, access of 
United States goods or services to a for-
eign market or diverting foreign goods or 
services toward the United States mar-
ket.’’. 
SEC. 102. AMENDMENTS TO SECTION 304 OF THE TRADE 
ACT OF 1974. 
(a) DETERMINATION REGARDING PRIVATE ANTI-
COMPETITIVE CONDUCT.—Section 304(a)(1) of the Trade 
Act of 1974 (19 U.S.C. 2414(a)(1)) is amended by strik-
ing subparagraph (B) and inserting the following: 
‘‘(B) if the determination made under sub-
paragraph (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) in-
volves anticompetitive conduct engaged in 
by any natural or corporate person or per-
sons.’’. 
(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 sub-
section (b) the following: 
‘‘(c) REFERRAL TO ATTORNEY GENERAL.—If the de-
termination under subsection (a)(1)(B)(ii) is affirmative, 
the Trade Representative shall refer the matter to the At-
torney 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 DETERMINA-
TIONS BY TRADE REPRESENTATIVE. 
(a) TREATMENT
OF
PREEXISTING
DETERMINA-
TIONS.—The United States Trade Representative shall 
have the authority to determine, with respect to any af-
firmative 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 bur-
den 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 no-
tice announcing the Trade Representative’s intent to 
review a prior determination on the Trade Rep-
resentative’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 identi-
fies acts, policies, or practices that are still in 
existence and that involve anticompetitive con-
duct engaged in by any natural or corporate
person or persons, refer the matter to the At-
torney 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 in-
serting 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 investiga-
tion into whether the matter involves a violation of this 
Act. 
‘‘(b) ACTION FOLLOWING INVESTIGATION.—
‘‘(1) DETERMINATION
BY
ATTORNEY
GEN-
ERAL.—At the conclusion of the investigation re-
quired 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 in-
vestigation that require additional time, the Attorney 
General shall publish in the Federal Register notice 
of such determination and shall make the determina-
tion 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 re-
ferred by the Trade Representative to the Attorney 
General. 
‘‘(3) ACTION
IF
DETERMINATION
AFFIRMA-
TIVE.—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 be-
lieved 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 vio-
lated 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 vio-
lated 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 provi-
sions of this Act; 
‘‘(iii) it is impossible to obtain per-
sonal jurisdiction over such person or per-
sons consistent with the requirement of
due process under the United States Con-
stitution; 
‘‘(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 per-
sons involved in or affected by the 
conduct; 
‘‘(III) the presence or absence of 
a purpose to affect United States con-
sumers, markets, or exporters; 
‘‘(IV) the relative significance 
and foreseeability of the effects of the 
conduct on the United States as com-
pared 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 eco-
nomic policies;
‘‘(VII) the extent to which the 
enforcement 
activities 
of 
another 
country with respect to the same per-
sons, including remedies resulting 
from those activities, may be affected; 
and 
‘‘(VIII) the effectiveness of en-
forcement 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 nega-
tive, the Attorney General shall submit a report to 
the Committees on Ways and Means and on the Ju-
diciary 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 fol-
lowing: 
‘‘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 infor-
mation, 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 reason-
able basis for the inference. Such adverse inference may 
include reliance on information from other United States 
Government agencies and departments, and from inter-
ested persons.
‘‘(b) 
DETERMINATIONS
UNDER
SECTION 
304(a)(1)(B)(ii).—In making a determination under sec-
tion 304(a)(1)(B)(ii), if the Trade Representative deter-
mines 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 infer-
ence that is adverse to the interests of the foreign person, 
if there is a reasonable basis for the inference. Such ad-
verse inference may include reliance on information from 
other United States Government agencies and depart-
ments, and from interested persons.’’. 
(b) CONFORMING AMENDMENT.—The table of con-
tents 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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