Once appraisement reports are ordered withheld, such merchandise is not released from customs custody except under bond with surety

guaranteeing the payment of dumping duties should there be an affirmative finding of dumping.

Inasmuch as the Act vests with the Tariff Commission sole authority to make determinations of injury and as this authority does not include the making of tentative or interim determinations of injury, the conditions of the Code with respect to provisional or interim measures could not be fulfilled under the Act until a finding of dumping had been made. Thus, it would appear that the fulfillment of the conditions for provisional measures under the Code would preclude the taking of any provisional or interim measures by the United States

under the Act.

If the Act were to be amended to authorize preliminary determinations of injury, there would be a further problem of complying with paragraph (d) of Article 10 of the Code which states that no interim safeguard may be imposed "for a period longer than three months or, on decision of the authorities concerned upon request by the exporter and the importer, six months." Under the Act, the Secretary of the Treasury is to impose safeguards at the moment he "has reason to believe or suspect" sales at LTFV. Thereafter, such imports are re

leased only under bond guaranteeing the payment of all duties lawfully due on the goods. With respect to pending cases, the average

period of withholding appraisement is approximately one year. This

average, which is not unusual, indicates that U.S. customs officers are not able to complete their pricing investigations under the Act in time to comply with the three- or six-month limitation under the Code on interim safeguards.

Article 11 of the Code specifies the conditions under which dumping duties may be assessed retroactively. Considered alone, it would seem to authorize the retroactivity specified under the Act. However, as indicated below, retroactivity is dependent in large measure upon the extent to which interim safeguards are authorized.

The authority to assess dumping duties on a retroactive basis under the Act has been the subject of much criticism by some of our principal trading partners, most notably by the United Kingdom which provided the major impetus for the negotiation of the Code. As a matter of practice, retroactive assessments of dumping duties are rarely made in the United States under the existing Act. It is the practice of the Treasury Department not to authorize the withholding of appraisement of entries until that Department has made a tentative determination that there are sales at LTFV. This determination is usually made from one to two years after the receipt of a complaint. During the course of Treasury's investigation, customs officers habitually make prompt appraisements of virtually all entries of the suspect goods so that few, if any, entries of such imports are affected by a dumping finding except those made after the date of the withholding order.

Article 12 of the Code permits countries at their discretion to afford protection against third country dumping (e.g., if one country sells its product at LTFV in the United States and causes injury to the industry of a third country which exports the like product to the United States, the Code would approve the assessment of a dumping duty by the United States on the dumped goods). The Antidumping Act does not authorize the assessment of dumping duties in such cases.

Implementation of Code by the United States

As previously stated, article 14 of the Agreement containing the

"Each party to this Agreement shall take all
necessary steps, of a general or particular
character, to insure, not later than the date
of entry into force of the Agreement (July 1,
1968] for it, the conformity of its laws,

regulations and administrative procedures with
the provisions of the Anti-Dumping Code."

Thus, insofar as the Agreement is concerned, the question raised for the United States is what, if any, steps must be taken with respect to its laws, regulations, and administrative procedures if they are to conform with the provisions of the Code.

It is well settled that the Constitution does not vest in

the President plenary power to alter domestic law. The Code, no matter what are the obligations undertaken by the United States thereunder

internationally, cannot, standing alone without legislative implementa

tion, alter the provisions of the Antidumping Act or of other United States statutes. As matters presently stand, we believe that the jurisdiction and authority of the Commission to act with respect to the dumping of imported articles is derived wholly from the Antidumping Act, and 19 U.S.C. 1337.

This, of course, is not to say that the provisions of the Code may not prompt useful reconsideration of the procedures promulgated under existing law to conform them with the Code to the extent necessary, but domestic statutory law is the sole authority for making changes in such procedures and any changes made therein must be wholly compatible with the substantive and procedural provisions enacted in such law.

1/

The Commission does not contemplate making any changes in its Rules of Practice and Procedure, but it is noted that the Treasury Department does contemplate changes in its Customs Regulations by reason of the prospective effectiveness of the Code. On October 28, 1967, the Treasury Department issued notice of its proposed amendments of the Customs Regulations relating to procedures under the Antidumping Act (32 F.R. 14955).

Parts 203 and 208 of the Commission's Rules relate specifically to investigations under sections 1337 and 160 (et seq.) of title 19 of the United States Code.

ADDITIONAL COMMENTS OF COMMISSIONER CLUBB

In my judgment a basic question raised by S. Con. Res. 38

is what effect the Tariff Commission must give to the International

Antidumping Code (hereinafter the "Code"),

1/

assuming that it goes into effect internationally as scheduled on July 1, 1968, without the benefit of implementing legislation in the United States. The minority state that in such circumstances the Commission will be

1 The Code is an executive agreement interpreting Article VI of GATT. Article VI, which relates to antidumping and countervailing duties has been in force since 1947, but signatory countries are only required to abide by it to the extent that it is not inconsistent with then existing legislation. The Code sets out more detailed rules regarding when antidumping measures are permitted. In addition, it requires that existing legislation be brought into conformity with it. In this connection, the preamble to the Code

states,

"1* * *

Desiring to interpret the provisions of Article VI
of the General Agreement and to elaborate rules for
their application in order to provide greater uniform-
ity and certainty in their implementation;"

41. The imposition of an anti-dumping duty is a measure, to be taken only under the circumstances provided for in Article VI of the General Agreement.

In the Final Provisions of the Code each signatory country agrees to

"take all necessary steps

to ensure, not later than the date of the entry into force of the agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of the Anti-Dumping Code." Code, Article 14.