I
106TH CONGRESS
1ST SESSION
H. R. 3393
To amend the Trade Act of 1974 to provide for identification of, and actions
relating to, foreign countries that maintain sanitary or phytosanitary
measures that deny fair and equitable market access to United States
food, beverage, or other plant or animal products, 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
NOVEMBER 16, 1999
Mr. LEVIN (for himself, Mr. HOUGHTON, 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 con-
cerned
A BILL
To amend the Trade Act of 1974 to provide for identification
of, and actions relating to, foreign countries that main-
tain sanitary or phytosanitary measures that deny fair
and equitable market access to United States food, bev-
erage, or other plant or animal products, 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 1999’’.
TITLE 
I—SANITARY 
AND
PHYTOSANITARY 
MEASURES
THAT DENY MARKET ACCESS
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Special 301 for Sani-
tary and Phytosanitary Measures Act’’.
SEC. 102. IDENTIFICATION OF COUNTRIES THAT MAINTAIN
SANITARY OR PHYTOSANITARY MEASURES
THAT CREATE UNFAIR BARRIERS TO TRADE.
(a) IDENTIFICATION REQUIRED.—
(1) IN GENERAL.—Chapter 8 of title I of the
Trade Act of 1974 is amended by adding at the end
the following:
‘‘SEC. 183. IDENTIFICATION OF COUNTRIES THAT MAIN-
TAIN SANITARY OR PHYTOSANITARY MEAS-
URES THAT CREATE UNFAIR BARRIERS TO
TRADE.
‘‘(a) IN GENERAL.—Not later than the date that is
30 days after the date on which the annual report is re-
quired to be submitted to Congressional committees under
section 181(b), the United States Trade Representative
(hereafter in this section referred to as the ‘Trade Rep-
resentative’) shall identify—
‘‘(1) those foreign countries that maintain sani-
tary or phytosanitary measures that deny fair and
equitable market access to United States food, bev-
erage, or other plant or animal products; and
‘‘(2) those foreign countries identified under
paragraph (1) that are determined by the Trade
Representative to be priority foreign countries.
‘‘(b) SPECIAL RULES FOR IDENTIFICATIONS.—
‘‘(1) CRITERIA.—In identifying priority foreign
countries under subsection (a)(2), the Trade Rep-
resentative 
shall 
identify 
only 
those 
foreign
countries—
‘‘(A) that have the most onerous or egre-
gious acts, policies, or practices that deny fair
and equitable market access to United States
food, beverage, or other animal or plant prod-
ucts,
‘‘(B) whose acts, policies, or practices de-
scribed in subparagraph (A) have the greatest
adverse impact (actual or potential) on the rel-
evant United States products, and
Trade Representative and such information as
may be submitted to the Trade Representative
by interested persons, including information
contained in reports submitted under section
181(b) and petitions submitted under section
302.
‘‘(3) FACTUAL
BASIS
REQUIREMENT.—The
Trade Representative may identify a foreign country
under subsection (a)(1) only if the Trade Represent-
ative finds that there is a factual basis for the denial
of fair and equitable market access as a result of the
violation of international law or agreement, or the
existence of barriers, referred to in subsection (d).
‘‘(4) CONSIDERATION
OF
HISTORICAL
FAC-
TORS.—In identifying foreign countries under para-
graphs (1) and (2) of subsection (a), the Trade Rep-
resentative shall take into account—
‘‘(A) 
the 
history 
of 
sanitary 
and
phytosanitary measures of the foreign country,
including any previous identification under sub-
section (a)(2), and
‘‘(B) the history of efforts of the United
States, and the response of the foreign country,
to remove sanitary or phytosanitary measures
that deny fair and equitable market access to
United States food, beverage, or other plant or
animal products.
‘‘(c) REVOCATIONS AND ADDITIONAL IDENTIFICA-
TIONS.—
‘‘(1) AUTHORITY TO ACT AT ANY TIME.—If in-
formation available to the Trade Representative indi-
cates that such action is appropriate, the Trade
Representative may at any time—
‘‘(A) revoke the identification of any for-
eign country as a priority foreign country under
this section; or
‘‘(B) identify any foreign country as a pri-
ority foreign country under this section.
‘‘(2) REVOCATION REPORTS.—The Trade Rep-
resentative shall include in the semiannual report
submitted to the Congress under section 309(3) a
detailed explanation of the reasons for the revocation
under paragraph (1) of the identification of any for-
eign country as a priority foreign country under this
section.
‘‘(d) DEFINITIONS.—In this section:
‘‘(1) AGREEMENT
ON
THE
APPLICATION
OF
SANITARY
AND
PHYTOSANITARY
MEASURES.—The
term ‘Agreement on the Application of Sanitary and
Phytosanitary Measures’ means the agreement de-
scribed in section 101(d)(3) of the Uruguay Round
Agreements Act (19 U.S.C. 3511(d)(3))
‘‘(2) SANITARY
OR
PHYTOSANITARY
MEAS-
URES.—(A) The term ‘sanitary or phytosanitary
measures’ means any measure applied—
‘‘(i) to protect animal or plant life or
health within the foreign country from risks
arising from the entry, establishment, or spread
of pests, diseases, disease-carrying organisms,
or disease-causing organisms;
‘‘(ii) to protect human or animal life or
health within the foreign country from risks
from additives, contaminants, toxins, or disease-
causing organisms in foods, beverages, or
feedstuffs;
‘‘(iii) to protect human life or health with-
in the foreign country from risks arising from
diseases carried by animals, plants or products
thereof, or from entry, establishment or spread
of pests; or
‘‘(iv) to prevent or limit other damage
within the foreign country from the entry, es-
tablishment, or spread of pests.
‘‘(B) The term ‘sanitary or phytosanitary meas-
ures’ includes all relevant laws, decrees, regulations,
requirements, policies, procedures, and practices,
including—
‘‘(i) end product criteria;
‘‘(ii) processes and production methods;
‘‘(iii) testing, inspection, certification and
approval procedures;
‘‘(iv) quarantine treatments, including rel-
evant requirements associated with the trans-
port of animals or plants, or with the materials
necessary for their survival during transport;
‘‘(v) provisions on relevant statistical meth-
ods, sampling procedures and methods of risk
assessment; and
‘‘(vi) packaging and labeling requirements
directly related to food safety.
‘‘(C) For purposes of this section, a foreign
country denies fair and equitable market access if
the 
foreign 
country 
maintains 
sanitary 
or
phytosanitary measures through the use of laws,
procedures, practices, or regulations that—
‘‘(i) violate provisions of international law
or international agreements to which both the
United States and the foreign country are par-
ties; or
‘‘(ii) constitute discriminatory nontariff
trade barriers.
‘‘(D) For purposes of subparagraph (C)(ii),
sanitary or phytosanitary measures or acts, policies,
or practices considered to be discriminatory non-
tariff trade barriers include (but are not limited
to)—
‘‘(i) measures that—
‘‘(I) are maintained without sufficient
scientific justification;
‘‘(II) unjustifiably discriminate or
have the effect of discriminating between
imported and domestically produced prod-
ucts, or products imported from different
countries;
‘‘(III) are more restrictive than nec-
essary to achieve the desired level of pro-
tection;
‘‘(IV) are nontransparent, for exam-
ple, the measures are not published or are
not promulgated in accordance with either
the Agreement on the Application of Sani-
tary and Phytosanitary Measures or the
relevant administrative laws and proce-
dures of the foreign country; and
‘‘(V) are onerous measures relating to
control, inspection, and approval of prod-
ucts that unjustifiably discriminate or have
the effect of unjustifiably discriminating
against United States food, beverage, or
other plant or animal products; and
‘‘(ii) the refusal by a foreign country to ac-
cept United States sanitary or phytosanitary
measures as equivalent in the case of a foreign
country with respect to which the relevant
United States officials have objectively dem-
onstrated to the foreign country that the meas-
ures achieve the foreign country’s appropriate
level of sanitary or phytosanitary protection.
‘‘(E) A foreign country may be determined to
deny fair and equitable market access to United
States food, beverage, or other plant or animal prod-
ucts notwithstanding the fact that the foreign coun-
try may be in compliance with the specific obliga-
tions of the Agreement on the Application of Sani-
tary and Phytosanitary Measures.
‘‘(e) PUBLICATION.—The Trade Representative shall
publish in the Federal Register a list of foreign countries
identified under subsection (a) and shall make such revi-
sions to the list as may be required by reason of the action
under subsection (c).
‘‘(f) ANNUAL REPORT.—The Trade Representative
shall, not later than the date by which countries are identi-
fied under subsection (a), transmit to the Committee on
Ways and Means of the House of Representatives and the
Committee on Finance of the Senate, a report on the ac-
tions taken under this section during the 12 months pre-
ceding such report, and the reasons for such actions, in-
cluding a description of progress made toward ensuring
that sanitary or phytosanitary measures do not deny fair
and equitable market access for United States food, bev-
erage, or other plant or animal products.’’.
(2) CLERICAL AMENDMENT.—The table of con-
tents for the Trade Act of 1974 is amended by in-
serting after the item relating to section 182 the fol-
lowing:
‘‘Sec. 183. Identification of countries that maintain sanitary or phytosanitary
measures that create unfair barriers to trade.’’.
(b) ACTIONS
BY UNITED STATES TRADE REP-
RESENTATIVE.—Section 301(d)(3)(B) of the Trade Act of
1974 (19 U.S.C. 2411(d)(3)(B)) is amended—
(1) in clause (ii), by striking ‘‘or’’ at the end;
(2) in clause (iii), by striking the period at the
end and inserting ‘‘or’’; and
(3) by adding at the end the following:
‘‘(iv) are sanitary or phytosanitary meas-
ures that deny fair and equitable market access
to United States food, beverage, or other plant
or animal products.’’.
(c) INITIATION OF INVESTIGATIONS.—
(1) IN GENERAL.—Subparagraph (A) of section
302(b)(2) of the Trade Act of 1974 (19 U.S.C.
2412(b)(2)) is amended by inserting ‘‘or 183(a)(2)’’
after ‘‘section 182(a)(2)’’ in the matter preceding
clause (i).
(2) CONFORMING AMENDMENT.—Subparagraph
(D) of section 302(b)(2) of such Act is amended by
inserting ‘‘concerning intellectual property rights
that is’’ after ‘‘any investigation’’.
SEC. 103. DESIGNATION OF BENEFICIARY DEVELOPING
COUNTRIES UNDER GENERALIZED SYSTEM
OF PREFERENCES.
Section 502(c) of the Trade Act of 1974 (19 U.S.C.
2462(c)) is amended—
(1) in paragraph (6), by striking ‘‘and’’ at the
end;
(2) in paragraph (7), by striking the period and
inserting ‘‘; and’’; and
(3) by adding at the end the following:
‘‘(8) the extent to which such country has en-
sured that all sanitary and phytosanitary measures
(as defined in section 183(d)(2)) in force are based
on a scientific justification.’’.
TITLE 
II—FOREIGN 
PRIVATE
AND PUBLIC-PRIVATE MAR-
KET ACCESS BARRIERS
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Market Access and
Structural Reform Act of 1999’’.
SEC. 202. 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) Particularly in light of the financial crises
gripping a number of developing, newly-industri-
alized, and transitional economy countries, it is es-
sential that Europe and Japan begin sharing more
equitably with the United States the burden of ac-
cepting manufactured imports from the crisis-af-
fected countries.
(6) 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 joint public-private market access bar-
riers, including non-transparent forms of regulation,
which impose a substantial burden on United States
and world commerce.
(7) 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.
SEC. 203. AMENDMENTS TO SECTION 301(d) OF THE TRADE
ACT OF 1974.
(a) UNJUSTIFIABLE ACTS, POLICIES, AND PRAC-
TICES.—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 unjustifi-
able 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 gov-
ernment 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 foreign market or
diverting foreign goods or services toward the
United States market.’’.
(b) UNREASONABLE ACTS, POLICIES, AND PRAC-
TICES.—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 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. 204. 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. 205. TRANSITION RULE; OUTSTANDING DETERMINA-
TIONS BY TRADE REPRESENTATIVE.
(a) OUTSTANDING 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 Rep-
resentative 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. 206. 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