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 Com-
mittee on Ways and Means, and in addition to the Committee on the Ju-
diciary, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the jurisdic-
tion 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 sub-
sidized merchandise.
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 ‘‘Unfair Foreign Com-
petition Act of 1999’’.
SEC. 2. PRIVATE ACTIONS FOR RELIEF FROM UNFAIR FOR-
EIGN 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 CON-
STRUCTED 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 es-
tablishment or modernization of any industry in
the United States.
‘‘(b) CIVIL ACTION.—An interested party whose busi-
ness 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 ar-
ticle; or
‘‘(2) imports the article into the United States
if the person is related to the manufacturer or ex-
porter of the article.
‘‘(c) RELIEF.—Upon an affirmative determination by
the United States District Court or the Court of Inter-
national 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—
‘‘(1) direct the Customs Service to assess an
antidumping duty on the article covered by the de-
termination in accordance with section 736(a) of the
Tariff Act of 1930 (19 U.S.C. 1673e); and
‘‘(2) require the deposit of estimated anti-
dumping duties pending liquidation of entries of the
article at the same time as estimated normal cus-
toms duties on that article are deposited.
‘‘(d) STANDARD OF PROOF.—
‘‘(1) PREPONDERANCE
OF
EVIDENCE.—The
standard of proof in an action brought under sub-
section (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 ad-
verse to the defendant that are made by the ad-
ministering 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 manufac-
turer of the article is located,
the burden of proof in an action brought under sub-
section (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
‘‘(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, affida-
vits, 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 ARTI-
CLES.
‘‘(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 cor-
poration, association, or other organization orga-
nized in the foreign country, is providing (directly or
indirectly) a subsidy with respect to the manufac-
ture, 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 es-
tablishment or modernization of any industry in
the United States.
‘‘(b) CIVIL ACTION.—An interested party whose busi-
ness 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 ar-
ticle; or
‘‘(2) imports the article into the United States
if the person is related to the manufacturer, pro-
ducer, or exporter of the article.
‘‘(c) RELIEF.—Upon an affirmative determination by
the United States District Court or the Court of Inter-
national 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—
‘‘(1) direct the Customs Service to assess a
countervailing duty on the article covered by the de-
termination in accordance with section 706(a) of the
Tariff Act of 1930 (19 U.S.C. 1671e); and
‘‘(2) require the deposit of estimated counter-
vailing duties pending liquidation of entries of the
article at the same time as estimated normal cus-
toms 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 ad-
verse to the defendant that are made by the ad-
ministering 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 manu-
facturer of the article is located,
the burden of proof in an action brought under sub-
section (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 en-
forced in any judicial district of the United States.
‘‘(2) SERVICE ON DISTRICT DIRECTOR OF CUS-
TOMS 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 administra-
tive 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 de-
cree 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 para-
graph (2), the confidential or privileged status ac-
corded by law to any documents, evidence, com-
ments, or information shall be maintained in any ac-
tion 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;