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sion granted under the agreement for the purpose of aiding an infant industry, if (a) a majority of the other countries party to the agreement consent and (b) if the other countries party to the agreement whose trade would be substantially affected also consent. This article is appropriate for inclusion in a trade agreement, just as the so-called escape clause in article XVIII, is appropriate.

Article XVIII.-Emergency action on imports of particular products: This article would permit a country party to the agreement to withdraw a concession granted under the agreement if necessary to prevent serious injury to domestic producers. If the other countries party to the agreement disagree with this action they could then suspend the concessions that they had granted in exchange for the concession withdrawn by the first country. If the privileges of the article are abused-for example: if concessions are withdrawn to set up a new industry or to promote the expansion of an industry and not to protect domestic producers against harm-then the other parties may suspend concessions over and above those which might be equivalent to the concessions withdrawn by the first country.

Provisions similar to those in article XVIII, including necessarily the right of counterwithdrawal of concessions, have been included in United States trade agreements in the past. Under Executive Order No. 9832 inclusion in future trade agreements entered into by the United States, of such provisions permitting the withdrawal of concessions is made mandatory.

Article XIX.-Consultation, nullification, or impairment: This article provides for consultation among the countries party to the agreement on matters affecting its operation. It also covers the eventuality that some situation may arise, or that some party to the agreement may violate the agreement, directly or indirectly, which would have the effect of nullifying or impairing the agreement. In serious cases of this kind the other parties could agree that they, or any of them, would be free to suspend the concessions they have made under the agreement. Any party affected by such suspension could then withdraw from the agreement on short notice-60 days.

Provisions similar to those in article XIX, including the right of withdrawal of concessions, have been included in United States trade agreements in the past.

Article XX.-General exceptions: This article excepts from the agreement such measures as sanitary regulations, traffic in arms, certain security matters, and the like. These exceptions are based on those usually included in United States trade agreements in the past.

Article XXI.—Territorial application, frontier traffic, customs unions: This article makes the agreement applicable to the customs territories of the parties and provides for exceptions (largely from the nondiscrimination provisions) for advantages granted to facilitate frontier traffic between adjacent countries or to give effect to a customs union. Similar provisions have been included in United

States trade agreements in the past.

Article XXII.-Interim Trade Committee: The purpose of this article is to provide a way in which the parties to the agreement can meet and discuss its operation. Certain of the provisions of the agreement-notably those designed to safeguard the exception for balance-of-payments restrictions against abusemake it desirable for all parties to meet and determine how the provisions are to apply in a particular case. The "Interim Trade Committee" is simply a formal way of describing the parties to the agreement when they meet together. The committee would not be an "organization" in the usual sense of that term. It would have no elaborate functions, staff, or general international responsibilities. Conceivably the same results could be obtained by eliminating article XXII in its present form and simply providing that representatives of the contracting parties shall meet from time to time or when necessary to determine the application of the agreement in particular cases. The description of the contracting parties as a "committee" is merely a matter of convenience.

Article XXIII.—Amendment and termination: Some provision for amendment of the agreement is necessary and appropriate, particularly in view of the fact that several of the provisions of the agreement are also proposed for inclusion in the charter for an International Trade Organization on which action is to be taken at a later date. The Department of State believes that the provisions of article XXIII of the New York draft are not entirely satisfactory and will probably wish to suggest a new formulation.

Article XXIV.-Interpretation and settlement of disputes: This article provides for the interpretation and settlement of disputes by consultation among the contracting parties (i. e. the committee). It has been the practice in United States trade agreements in the past to settle disputes and questions of interpretation my consultation between the parties.

Article XXV.-Entry into force and withdrawal: This article provides for the entry into force of the agreement and for withdrawal by any party. The provision permitting withdrawal at the end of 3 years upon 6 months' notice conforms to the requirements of the Trade Agreements Act. Similar provisions have been included in United States trade agreements in the past.

Article XXVI.-Adherence: This article provides a means whereby nonsignatory countries may become a party to the agreement on terms to be agreed with the contracting parties (i. e. the committee). It has not been found necessary to include provisions of this kind in past United States trade agreements because their character did not offer a basis for adherence by others.

Article XXVII.—In this article the signatory governments, pending acceptatice in accordance with their constitutional procedures of the draft Charter for the International Trade Organization (which they will have recommended to the World Trade Conference), subscribe to the principles and provisions of the draft Charter, but only insofar as it is within their authority to do so. This article is interpreted as in no way committing the United States to take any action inconsistent with existing legislation including the Trade Agreements Act.

NOTE. Certain of the provisions described above would, in their present form, appear to be inconsistent with existing laws of the United States. For example, the Act of June 5, 1940 (title 7, section 516, U. S. C.) prohibits the export of tobacco seed (except under license for experimental purposes). This restriction on exports of tobacco seed is in conflict with the general ban against prohibitions or restrictions on imports and exports contained in paragraph 1 of article IX of the New York draft and there apparently is no exception elsewhere in the draft agreement which would permit its continuation. Another example of this character relates to coconut oil. Under section 2470 of the Internal Revenue Code, coconut oil which is produced from copra which is the product of any United States possession or of the Philippine Islands is subject to a processing tax of 3¢ per pound, whereas such oil produced from copra which is the product of any other foreign country is subject to an additional tax of 2 per pound (i. e. a total of 5¢ per pound). This discriminatory tax is in conflict with that part of article I of the New York Draft Agreement which provides for mostfavored-nation treatment with respect to internal taxes and possibly also with the provisions of article II for national treatment with respect to internal taxes. APRIL 8, 1947.

Another inconsistency with existing law may arise in the case of paragraph 5 of article V of the New York Draft Agreement. Genarally speaking, the provisions of article V, relating to antidumping and countervailing duties, follow closely the existing law and practice in the United States. However, paragraph 5 of this article provides that noncountervailing duty may be imposed unless the effect of the subsidization of the foreign product is "such as materially to injure or threaten to injure an established domestic industry." Although under ou Antidumping Act a finding of injury to a domestic industry must be made before dumping duties may be assessed, section 303 of the Tariff Act of 1930, governing the levying of countervailing duties, contains no such limitation, but requires the assessment of a countervailing duty upon a finding that a subsidy has in fact been paid by a foreign country on an imported dutiable product.

The export of tin-plate scrap is prohibited (except under license issued by the President) by the Act of February 15, 1936. Under paragraph 2 (b) of article IX of the New York Draft Agreement, this export restriction could be continued for the duration of the shortage of tin in this country. If the restriction were continued at the end of the shortage, it is believed that this would be contrary to the provisions of the draft agreement.

There may be other conflicts or possible inconsistencies between the provisions of the agreement as it is presently drafted and existing laws of the United States. Among the procedures which might be followed to resolve these inconsistencies would be the modification of the text to eliminate the particular language which is inconsistent with our legislation, or the insertion by the United States of an express exception or reservation relative to the particular items involved. Whatever method of dealing with these matters may be used, there is no intention of obligating the United States beyond the power of the Executive authority.

EXHIBIT XXI

DRAFT OF GENERAL AGREEMENT ON TARIFFS AND TRADE

The governments of Australia, Belgium, Brazil, Canada, Chile, China, Cuba, Czechoslovakia, France, India, Lebanon, Luxembourg, Netherlands, New Zealand, Norway, Union of South Africa, Union of Soviet Socialist Republics, United Kingdom and United States1

Having been appointed by the Economic and Social Council of the United Nations to constitute a Preparatory Committee to make preparations for an International Conference on Trade and Employment;

Having, in fulfilment of this function, prepared and recommended to the said Conference the draft Charter for an International Trade Organization of the . United Nations (hereinafter referred to as the Charter) the text of which is set forth in the Report of the Preparatory Committee of the Economic and Social Council

Desiring to further the attainment of the objectives of the said Conference by making effective among themselves such provisions of the above-mentioned draft Charter as are applicable at this stage and thus taking such action prior to the Conference as will constitute concrete achievement capable of generalization to all countries on equitable terms.

Hereby agree as follows:

ARTICLE I

(cf. Article 14 of the Charter)

General most-favoured-nation treatment

1. With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation or exportation, and with respect to all matters provided for in Article II, and advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for the territory of any other country, shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties respectively.

2.2...

ARTICLE II

(cf. Article 15 of the Charter)

National treatment on internal taxation and regulation

1. The contracting parties agree that neither internal taxes nor other internal charges nor internal laws, regulations or requirements should be used to afford protection directly or indirectly for any national product.

2. The products of the territory of any contracting party imported into the territory of any other contracting party shall be exempt from internal taxes and other internal charges of any kind higher than those imposed, directly or indirectly, on like products of national origin.

3. The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect to all laws, regulations or requirements affecting their internal sale, offering for sale, transportation, distribution or use of any kind whatsoever. The provisions of

1 If, as expected, Syria also participates in the negotiations, it would also be a party to the Agreement.

2 This paragraph, relating to exceptions for preferences of certain categories remaining after negotiations, would be agreed upon after the negotiations at the Second Session have been completed. Meanwhile, the provisions of paragraph 2 of Article 14 and Article 24 of the draft Charter would apply.

this paragraph shall be understood to preclude the application of internal requirements restricting the amount or proportion of an imported product permitted to be mixed, processed or used Provided that any such requirement in force on the day of signature of this Agreement may, subject to the provisions of Article VIII, be continued until the expiration of one year from the day on which this Agree ment enters into force. This period may be extended in respect of any product if the Committee provided for in Article XXII, (hereinafter referred to as the Committee) concurs that the requirement concerned is less restrictive of international trade than other measures permissible under this Agreement.

4. The provisions of paragraphs 1 and 3 of this Article shall not be construed to prevent the application, consistency with the provisions of Article VIII, of internal laws, regulations or requirements other than taxes relating to the distribution or exhibition of cinematograph films.

5. The provisions of this Article shall not apply to the procurement by governmental agencies of supplies for governmental use and not for resale [nor for use in the production of goods for sale].

ARTICLE III

(cf. Article I of the Charter)

Freedom of transit

1. Goods (including baggage) and also vessels and other means of transport shall be deemed to be in transit across the territory of a contracting party when the passage across such territory, with or without trans-shipment, warehousing, breaking bulk, or change in the mode of transport, is only a portion of a complete journey, beginning and terminating beyond the frontier of the contracting party across whose territory the traffic passes. Traffic of this nature is termed in this Article "traffic in transit." The provisions of this Article shall not apply to the operation of aircraft in transit.

2. There shall be freedom of transit through the territories of the contracting parties via the routes most convenient for international transit for traffic in transit to or from the territories of other contracting parties. No distinction shall be made which is based on the nationality of persons, the flag or vessels, the place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods or vessels or other means of transport.

3. Any contracting party may require that traffic in transit through its territory be entered at the proper customhouse, but, except in cases of failure to comply with applicable customs laws and regulations, such traffic coming from or going to the territories of other contracting parties shall not be subject to any unneces sary delays or restrictions and shall be exempt from customs duties and from all transit duties or other charges imposed in respect of transit, except charges for transportation or those commensurate with administrative expenses entailed by transit or with the cost of services rendered.

4. All charges and regulations imposed by contracting parties on traffic in transit to or from the territories of other contracting parties shall be reasonable, having regard to the conditions of the traffic.

5. With respect to all charges, rules and formalities in connection with transit, each contracting party shall accord to traffic in transit to or from the territory of any other contracting party treatment no less favourable than the treatment accorded to traffic in transit to or from any third country.

6. Each contracting party shall accord to products which have been in transit through the territory of any other contracting party treatment no less favourable than that which would have been accorded to such products had they been transported from their place of origin to their destination without going through such territory. Any contracting party shall, however, be free to maintain its requirements of consignment (expedition direct) existing on the day of signature of this Agreement in respect of any goods in regard to which such direct ⚫onsignment is a requisite condition of eligibility for entry of the goods at preferential rates of duty, or has relation to the contracting party's prescribed method of valuation for duty purposes.

ARTICLE IV

(cf. Article 17 of the Charter)

Anti-dumping and countervailing duties

1. No anti-dumping duty or charge shall be imposed on any product of the territory of any contracting party imported into the territory of any other contracting party in excess of an amount equal to the margin of dumping under which such product is being imported. For the purposes of this Article, the margin of dumping shall be understood to mean the amount by which the price of the product exported from one country to another is less than (a) the comparable price charged for the like product to buyers in the domestic market of the exporting country, or, in the absence of such domestic price, either (b) the highest comparable price at which the like product is sold for export to any third country in the ordinary course of commerce, or (c) the cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit; with due allowance in each case for differences in conditions and terms of sale, for difference in taxation, and for other differences affecting price comparability.

2. No countervailing duty shall be imposed on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the production or export of such product in the country of origin or exportation. The term "countervailing duty" shall be understood to mean an additional duty imposed for the purpose of offsetting any bounty or subsidy bestowed, directly or indirectly, upon the manufacture, production or exportation of any merchandise.

3. No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to anti-dumping or countervailing duty by reason of the exemption of such product from duties or taxes imposed in the country of origin or exportation upon the like product. when consumed domestically, or by reason of the refund of such duties or taxes. 4. No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization.

5. No contracting party shall impose any anti-dumping or countervailing duty or charge on the importation of any product of the territories of other contracting parties unless it determines that the effect of the dumping or subsidization, as the case may be, is such as materially to injure or threaten to injure an established domestic industry, or is such as to prevent the establishment of a domestic industry.

6. Nothing in this Article shall preclude parties to a regulatory commodity agreement conforming to the principles of Chapter VII of the Charter from incorporating in such agreement provisions prohibiting, as between themselves, the use of anti-dumping duties in cases in which dumping, within the meaning of paragraph 1 of this Article, may be permitted under the terms of such an agreement.

ARTICLE V

(cf. Article 18 of the Charter)

Tariff valuation

The contracting parties recognize the validity of the general principles of tariff valuation set forth in the following sub-paragraphs, and they undertake to give effect to such principles, in respect of all products subject to duties, charges or restrictions based upon or regulated in any manner by value, at the earliest practicable date. Moreover, they undertake upon a request by another contracting party, to review the operation of any of their laws or regulations relating to value for duty purposes in the light of these principles. The Committee is authorized to request from contracting parties reports on steps taken by them in pursuance of the provisions of this paragraph.

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