after public hearings are usually held to give opportunity to all interested parties to submit facts and points of view. In other

words, effective simultaneity in any real sense is not procedurally feasible or logical.

Article 5(c) of the Code provides that a dumping complaint must be rejected if there is not sufficient evidence of injury to proceed with the case. Inasmuch as the Act vests sole authority in the Com

mission to make injury determinations, and as such authority does not become viable until the Commission has received an official determination of LTFV sales by the Secretary of the Treasury, it does not seem that either the Treasury or the Commission has authority to review complaints to determine whether sufficient evidence of injury has been submitted therewith for purposes of rejecting the complaint.

Under most of the statutes, including the Antidumping Act, dealing with unfair methods of competition, the responsibility for initiating an investigation is placed upon the administering agency. The Code, on the other hand, seems to be designed to discourage the initiation

of investigations by an agency and would supplant the statutory pro

Article 6 of the Code deals with the rights of interested parties

to be heard and to be informed to the extent reasonably practicable

of all facts considered in a dumping case.

Article 7 Forgiveness of Dumping

Article 7 of the Code permits a country to close a case without assessing a special dumping duty in those cases where the exporter agrees to cease exporting to the investigating country or agrees to stop exporting at LTFV. This provision is in harmony with a recently established practice of the U.S. Treasury Department under the Act. The Department, when it finds sales at LTFV, publishes a "tentative" determination of sales at LTFV. If the exporter promises to raise his prices to fair value or to cease exports to the United States, the Department makes a final determination of no sales at LTFV and, therefore, does not refer the matter to the Commission to determine the effect of such imports on domestic industries. It is estimated that under such a practice the average exporter can sell his goods at 1/ LTFV in the United States for approximately two years with impunity

insofar as the effectiveness of the Act is concerned. Thus, sporadic dumping would not appear to be effectively stopped under this practice. The latter part of Article 7 provides that an exporter of goods sold at LTFV is entitled to have a formal determination made as to whether his goods are causing injury in the importing country without having to revise his prices or to cease exporting such goods. This is harmonious with the Act. Not all "LTFV" prices are literally unfair within the domestic unfair trade law concepts and the Commission has applied this philosophy to the Act.

1 Sales at less than fair value are usually not satisfactorily proven to the point of a "tentative" determination until after imports have entered the United States for a period of about two years.

None of the unfair trade statutes cited in this report specifically provide a mechanism for a violator of the statute concerned to avoid the remedial or penal actions directed to be taken thereunder by his agreement to conform to the law after he is caught. The Code

in this respect does not appear to conform with any of the statutes. Article 8 Dumping Duties

Article 8 of the Code deals with the imposition of a special dumping duty. Paragraph (a) of the Article provides that the assessment of such a duty is not mandatory but permissive. It requires that such duties not be assessed in excess of the actual margin of difference and expresses a desire that the amount be less than the margin if such lesser duty would be adequate to remove injury. Under the Act, assessment of a duty equivalent to the margin is mandatory.

Paragraph (e) of article 8 of the Code provides that if a regional industry is involved, dumping duties shall be assessed only on imports going into the regional area. Moreover, even these duties shall not be assessed if the exporter gives assurance that he will "cease dumping in the area concerned". Under these provisions of the Code it would seem that the exporter for some years may elude special dumping

duties by jumping from one market area to another when the duties become imminent in the one area. These provisions of the Code appear to be in conflict with the Act. In addition, a question arises as to whether section 8(1) of Article I of the Constitution, which requires a uniform levy of duties, would permit the assessment of dumping duties on this basis. (See Ellis K. Orlowitz Company v. United States, 50 C.C.P.A. 36 (C.A.D. 816).)

Since the Code would only permit the assessment of special dumping duties as a deterrent to price discriminations in international trade, the question arises as to whether other remedies and penalties provided for in the unfair trade statutes of the United States must be changed if there is to be a conformity with the Code.

Article 9 of the Code provides in effect that a finding of

dumping shall be terminated when it ceases to serve its intended purpose. The Act contains no special provision for the termination of a finding thereunder. There are cases in which meritorious reasons exist for revoking dumping findings. The Secretary of the Treasury has promulgated a regulation (19 CFR 14.12) establishing a procedure under which a dumping finding will be modified or revoked if a change in circumstances or practice has obtained for a substantial period of time, or other reasons obtain which establish that the basis for the dumping finding no longer exists with respect to all or a part of the merchandise covered thereby.

The imposition of penal sanctions and the awarding of treble damages under the other unfair trade laws are one-time remedies not

comparable to dumping duties. The matter of revocation does not

arise (except for mistakes). The remedies are, however, always available against every single infraction should such a practice be resumed.

Articles once refused entry under section 337 of the Tariff Act of 1930 continue to be so excluded until the President finds

"that the conditions which led to such refusal of entry no longer exist."

Article 10 Interim Safeguards (provisional measures)
Against Suspected Dumping

Article 10 of the Code prohibits imposing any interim safeguards which would offset suspected dumping margins until the contracting country has made a preliminary decision that there are sales at LTFV and it has in hand adequate evidence of injury. Thereafter, interim safeguards may only be imposed with respect to prospective entries of dumped goods.

The Act requires no evidence of injury before imposing interim safeguards. It provides that when the Secretary of the Treasury "has reason to believe or suspect", from the invoice or other papers or from information presented to him or to any person to whom authority under that Act has been delegated, that there are sales at LTFV, he "shall authorize * * * the withholding of appraisement reports as to such merchandise entered, or withdrawn from warehouse, for consumption, not more than 120 days before the question of dumping has been raised."

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