REPORT OF THE U.S. TARIFF COMMISSION TO THE SENATE FINANCE COMMITTEE S. Con. Res. 38 of the 90th Congress states that it is the sense of Congress that (1) the provisions of the International Antidumping Code, signed at Geneva on June 30, 1967, are inconsistent with, and in conflict with, the provisions of the Antidumping Act, 1921; (2) the President should submit the International Antidumping Code to the Senate for its advice and consent in accordance with article II, section 2, of the Constitution of the United States; and (3) the provisions of the International Antidumping Code should become effective in the United States only at the time specified in legislation enacted by the Congress to implement the provisions of the Code. 1/ Vice Chairman Sutton and Commissioners Culliton and Clubb comprise the majority. Additional comments by Commissioner Clubb are set forth beginning on page 34. The Separate Views of Chairman Metzger and Commissioner Thunberg appear following page 48. (1) The International Antidumping, Code, which was negotiated within the framework of the General Agreement on Tariffs and Trade (GATT), bas as its objective the establishment of basic principles with respect, Lo antidumping measures that shall be observed by all contracting parties signatory to the Code and requires such parties to change their laws, regulations and practices when necessary to conform to these principles. Dumping, which is a particular unfair trade practice also known as price discrimination, is condemned in the United States, both in interstate and international trade. The Antidumping Act, 1921, as ammended, is only one of several acts of the United States Congress which deal with price discrimination in international trade. 2/ The report discusses the present United States laws relating to price discrimination, the international obligations of the United States under the General Agreement on Tariffs and Trade (GATT) relating to antidumping measures, a comparison of the Code with the relevant United Hereinafter referred to as the Code. 2 In considering this report, note should be made of the fact that the Code has had to be examined in its bare form. There are neither published official contemporaneous reports of the negotiators nor authoritative interpretations of the GATT contracting parties concerning the Code which would serve as aids in its interpretation. In contrast, the U.S. acts have been examined in light of their legislative history and judicial precedent. Moreover, the Code is expressed in part in terminology which does not appear to have special meaning in the field of unfair trade practices whereas the key words and terms used in U.S. statutes are words of art having definite meanings derived from legislative history and judicial precedent. States laws, and implementation of the Code by the United Atakon. U.S. Laws on Price Discrimination Price discrimination in its various forms in international trade would appear to be subject to one or more of the provisions of at least six Federal statutes. Resumes of the statutes are set forth below. The Antidumping Act, 1921, is set forth first because it is the one most often invoked in connection with alleged dumping of imported articles and its provisions were apparently the only ones considered by the U.S. negotiators in relation to the Code. The remaining statutes are mentioned in the chronological order of their enactment in order that the reader may better sense the development of statutory controls on unfair methods of competition. Antidumping Act, 1921, as amended Special dumping duties are to be assessed under the Antidumping Act, 1921, as amended, when "a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value" and "an industry in the United States Hereafter referred to as "LTFV" sales. is being or is likely to be injured, or is prevented from being established, by reason of the importation of such merchandise into the United States". Procedurely, the Act provides that the Secretary of the Treasury shall determine whether the first quoted condition exists. If the Secretary makes an affirmative determination, he informs the Tariff Commission which then acquires jurisdiction to determine whether one or more of the second quoted conditions exist. The Act directs the Commission to make its investigation and determination within the three-month period starting on the date of receipt of advice of the Secretary's determination. Affirmative determinations by both agencies, taken together, constitute a "finding" of dumping within the meaning of the Act (section 201(a)). The special dumping duty to be assessed is an amount equal to the difference between the purchase price and the foreign market value (or their approximate equivalents in some cases). The basic concept of what constitutes injurious dumping under the Act has not changed since its enactment in 1921. Until 1954 the Secretary of the Treasury was responsible for administering the entire Act. However, in that year the responsibility for determining whether an industry was being injured, or likely to be injured, or prevented from being established, was transferred to the Tariff Commission. Moreover, the retroactive assessment of special duties was limited to entries, or withdrawals from warehouse, for consumption |