The CHAIRMAN. What you say on page 63 suggests that picture of a pure woman standing there blindfolded with a scale in her hands and on one side of the scale there is what can be said for dumping and on the other side what can be said for all other causes of injury. If the scale is heavier on this side than it is on the other, then this is the side on which justice must go. That concept would indicate that you put all the other causes on the one side and you put this cause on this side, the dumping, and if all the other causes outweigh the dumping, that you would say that is not the principal cause of the injury.

Mr. REHM. All I am saying

The CHAIRMAN. Then, you take the previous page and say no, that is not the case at all.

Mr. REHM. Mr. Chairman, if I may reply to that, we have an interpretation. We made this interpretation clear to the other countries with which we negotiated the code. I can assure you that if we were in public telling the Senate Finance Committee that we were now construing a provision of the Code in a manner at variance with the interpretation that we discussed and agreed upon in Geneva, there would be quite an outburst.

All I am saying is that this is our interpretation. I do not deny that the provision you cited could lead one to the other conclusion. All I am saying is that it is our interpretation. We stand by it and think on this basis it is consistent wtih the act.

The CHAIRMAN. Then, if I understand it, based on what you are testifying here, that this need not change a single one of these cases the Tariff Commission has decided.

Mr. REHM. Mr. Chairman, I really think we have been confusing two quite separate concepts the notion of injury on the one hand, and we discussed material injury, where I think we agree the motion of material injury is something more than de minimis, on the other hand, the notion of causality-principal cause. The notion of cause is one with which the Tariff Commissioners for the most part, over the years, have not dealt at all.

The CHAIRMAN. Now, if I understand what you are saying here, you four gentlemen are here telling me, particularly you two lawyers, that this code you are bringing here need not require the Tariff Commission to change its decision in a single one of these cases in which it has found injury.

is

Mr. REHM. That is not our position, Mr. Chairman. Our position

The CHAIRMAN. Well, now, you see, I have been listening to you for more than an hour and having listened to you, you have made the argument that the Tariff Commission is totally in error when they say you are changing the law in such a way as to require them to decide 80 percent of the cases they have been deciding in a manner different from the way they have been deciding them. You have been saying that they are only reading half of what you did and if they read the other half they will find that they could continue to decide all those cases just the way they have been deciding them. That is what it sounds like to me as a simple country lawyer, although may I say I made good grades as a law student, was associate editor of the law review and got my name on the building as a winner of competition.

But, now, you are telling me that, as I construed it and as I understood it, that these people are upset about nothing-that they could take this code language and arrive at the same conclusion that they have reached in all these cases.

no.

But when I ask you direct if they could do that, then you answer,

Mr. REHM. Well, what I meant

The CHAIRMAN. So now, you started out saying you have not changed the law and now you answer yes, you did change the law. Mr. REHM. Mr. Chairman, I think we have got to

The CHAIRMAN. If you could, that is.

Mr. REHM. (continuing). Distinguish changing the law from changing past Tariff Commission decisions. The two are very separate notions.

The CHAIRMAN. Well, are you trying to change those?

Mr. REHM. I think it is virtually impossible to give any kind of specific definitive answer. In some respects, I think the code probably does limit the discretion of the Tariff Commission in applying certain of the concepts we have been talking about. With respect to material injury, I think we can quite clearly say, as we have said before, there is no change. With respect to the notion of geographic segmentation, perhaps. All I was trying to say is that one cannot come to the clearly contrary conclusion of the majority report.

Now, with respect to causation, I think this is the area where we really cannot generalize at all because Tariff Commissioners, as I read the cases, have not attempted to spell out how much of a causal relationship is required under the act between the dumped imports and the injury. So I would have to put a big question mark under the notation of causality.

The CHAIRMAN. What are you telling me? Today we have a law, we have cases that have been processed and experience that we can look to. While industry may not be entirely satisfied with it, we do have some experience and a lawyer can read the cases and—particularly good experienced lawyers who tried those cases can predict what is likely to happen if you go before the Tariff Commission. You are shaking your head as if that is not correct.

Mr. REHM. Well, I do not believe that is correct. I think many lawyers with whom I talk in the trade and customs field would say you cannot predict. And I do not say this critically of the Tariff Commission, because I think the very nature of the cases they hear does not make predictions possible. But I dare say a number of lawyers in this city would say you cannot predict how the Tariff Commission will come out on a given antidumping case. But if I may return

The CHAIRMAN. Let me put it to you this way way. Take a lawyer who pled one of those cases before that Commission last year, where the Commission found injury and gave relief. Are you telling me that if he had the precise same case come before him again, he would not predict what that Commission would do with that same case? Mr. REHM. I am sorry. Same case?

The CHAIRMAN. Same case.

The CHAIRMAN. That is what I am talking about. Now, can you predict what will happen in the same case with your language? Mr. REHM. No. Not for sure.

The CHAIRMAN. All right. That is what I am talking about.

Mr. REHM. Fair enough. My only basic point is that while we may, I emphasize the words, "while we may" and in some respects, I think probably have changed-I will use another word, "limited" the discretion of the Tariff Commission, so that they might not arrive at the same decision they have in the past, we have not in our view changed the law The law provides the scope within which a regulatory agency can move. The Tariff Commission has certainly moved a great deal under this act. We are now in this code trying to lay down what we consider to be reasonable criteria which will admittedly limit the discretion of the Tariff Commission, just as these criteria will limit the discretion of other bodies in other countries determining the validity of dumping complaints against our exporters. That is the purpose of the code.

But again, I want to stress the difference between prior Tariff Commission decisions and the act.

The CHAIRMAN. What you are saying to me is this: Let us take the Federal Trade Commission. They decide a case. The court sustains their decision and it stands. Congress then proceeds to say, now, we are going to change that rule and we do change it. One can argue, now, we are not changing the law, all we are doing is changing the rule, but that rule has the effect of law until we change it. So in one sense you might argue that you did not change the law. All you did was change that interpretation of it or that conclusion of it.

In the other case you could argue that as a practical matter you did change the law. As far as I am concerned, when you change the results of what happened with a given set of facts, you have changed the law.

Now, I am one of those that do not like to admit that some of those Supreme Court decisions are the law, especially when I think they are wrong, but I must concede until someone changes them, they are the law. You are contending here that where you have changed what the results would be as applied to individual cases, that you have not changed the law. My reaction is-if that is how it is that you have changed the law. The reason I asked the question was that it occurred to me that you people wanted to contend that you have not changed the law.

We could settle this very easily by simply passing a resolution here and putting it on the President's desk on a bill we think he will sign. It would say the old law stands exactly the same as it is and this was intended just to codify what already was the law of the United States. But as I understand it, you would not be satisfied with that because you want to change the law if you can. Now, is that not about the size of it?

Mr. ROTH. Let me say just, Mr. Chairman, certainly the intent was not to change the law but to negotiate a code which would be entirely consistent with that law.

The CHAIRMAN. So your position, Mr. Roth, is that you think you have negotiated a code which is consistent with the law and does not

change the law that is in existence now and was in existence prior to this code?

Mr. ROTH. That is correct.

The CHAIRMAN. Senator Anderson?

Senator ANDERSON. I have to be very careful of these lawyers here. On page 3, about half way, you refer to "the Trade Information Committee held public hearings in September of 1966." Were those hearings published?

Mr. ROTH. No. Those hearings were not published. We used them as a means of gathering information from interested parties, both those who were against even the present antidumping law and those who were in favor of improvements such as the need for Canada to have in injury requirement. And all these facts went intto the formulation of our negotiating position.

Mr. Senator, I would like to say that in the early part of the Kennedy round, quite apart from dumping, when we were putting together our exceptions list—that is, items that would not be negotiated-we also extensively used public hearings which were not published. After the hearings were over, we often had confidential discussions with certain industries, and all of this, as I said, we felt it was our responsibility to take and to use in determining a negotiating position.

Senator ANDERSON. I think it would be easier if the Congress would find out what the discussion was all about.

Mr. ROTH. I would say, Mr. Senator, as I recall, that some of the groups that appeared before us did submit briefs and these, of course, would be available for you to see if you would care to do so.

Senator ANDERSON. On page 4 you say:

In short, it will not be any harder for a domestic industry in the future to obtain relief under the act than it has been up to now.

If it is true they get no help anyhow, this says they will keep right on getting no help. It could not be any worse than the present. I have appeared in the copper hearings and others, and we think the State Department is always against us. This seems to say here that if we had the same situation, we would all be against you.

Mr. ROTH. Senator, as you know, the two agencies concerned with this, the Treasury and the Tariff Commission, have made affirmative findings in a number of antidumping cases. We are saying here that the code would not make it more difficult for a domestic industry, and in a certain sense

Senator ANDERSON. You could not make it any more difficult under any circumstances, could you?

Mr. ROTH. In a certain sense, Senator, it will make it less difficult, in that it will meet one of the complaints of certain industries, namely, that the present proceedings of the Treasury and Tariff are so long that they themselves are an impediment for the domestic industry. This code will shorten the entire operation.

Mr. Marks, would you like to cover that?

Mr. MARKS. I do not think I have to add anything further. We are hopeful that this will shorten the operation as Ambassador Roth has just stated and we are certainly determined that we will do everything possible to make this so.

Senator ANDERSON. And will give some relief, perhaps?

Mr. MARKS. Yes. To the extent that the operation is more rapid, I think this in itself provides relief. Obviously, we cannot predict the outcome of any particular cases without knowing the facts.

Senator ANDERSON. I have no further questions.

The CHAIRMAN. Senator Hartke?

Senator HARTKE. Yes. Can I find out the name of the lawyer? I do not know his name.

Mr. REHM. John Rehm is my name. R-e-h-m.

Senator HARTKE. And he participated in these negotiations in-
Mr. ROTH. That is correct, Senator.

Senator HARTKE. What was his role there?

Mr. ROTH. He was one of the major negotiators and one of the major individuals in Washington responsible for putting together our negotiating position. Could I also say

Senator HARTKE. Under what authority does he act?

Mr. ROTH. He acts under my authority. My authority comes

Senator HARTKE. Was he a negotiator or was he one of your assistants? Let us get that straight.

Mr. ROTH. He was both.

Senator HARTKE. He was both?

Mr. ROTH. He was both.

Senator HARTKE. Under the law, if he is going to be a negotiator, he is required to be confirmed by the Senate. Why was he not confirmed by the Senate?

Mr. ROTH. No, sir. The only chief negotiator, which is myself-
Senator HARTKE. That is right.

Mr. ROTH. My deputy

Senator HARTKE. Right.

Mr. ROTH. Which was Ambassador Blumenthal in Geneva-
Senator HARTKE. Both of them were confirmed by the Senate.

Mr. ROTH. Both confirmed by the Senate and they both had the responsibility for the negotiations.

Senator HARTKE. Well, I thought you said he was a negotiator. I mean, he can be an assistant and adviser to you but to be a negotiator he would be required to be confirmed. I notice he said we, we, we, as though he was "we." And I was just trying to find out who "we" was.

Mr. ROTH. Let me say that, in Geneva, where we had negotiations going on concurrently with a great many countries, you had in effect a "negotiator," if you want to put quotation marks around it, for each one of the country and sector negotiations and I think he was using it in that sense.

Could I also, Senator, introduce Fred Smith?

Senator HARTKE. I know Mr. Smith. He is from the Treasury. Mr. Smith, let me return to some testimony. What is the responsibility now of the Tariff Commission under the present law?

Mr. SMITH. Well, under the act, the responsibility is divided between the Treasury and the Tariff Commission. The Treasury has the responsibility for determining whether there have been sales at less than fair value and if it so determines, the matter then goes to the Tariff Commission to determine whether there has been as a result of the dumping, material injury, threat of material injury, or prevention of the establishment of an industry. So, I would merely say that in a sense I was speaking off the cuff because I am not the principal