The mix of these materials used by the four firms which received a large portion of the unfairly priced imports varied as follows: It therefore seems clear that the unfairly priced imports displaced domestic pig iron as well as scrap and other imports in the case of these users, and there is reason to believe that this is true of other users as well. Moreover, the price depressing effects noted by Vice Chairman Sutton are indicative of a more general disruptive effect. But it The importer of Czechoslovakian, East German, and Romanian pig iron concedes that under tests adopted in the recent Cast Iron Soil Pipe and Titanium Sponge cases, injury must be found here. strongly argues that the injury standard adopted in those cases was wrong, because the Commission there held that the "injury" requirement of the Antidumping Act of 1921 is satisfied by a showing of anything more than a trivial or inconsequential effect on a domestic industry. Respondent contends that the Act requires a greater degree of injury; that while the Act says "injured", it has always been interpreted to mean "materially injured", and that the term "materially injured" may mean a very small effect or very large effect depending on the case; that Congress has approved this interpretation; and that "it was left to this Commission to work out, on a case-by-case basis, in factual terms, situations which would be considered to constitute material injury or the threat thereof, avoiding either extreme construction." If respondent's view of the Act were to prevail, the Commission would be free to require a small injury in one case and a large injury in the next. I cannot agree. No criteria has been suggested for use in determining when the Commission should require a greater or lesser showing of injury, and respondent suggests none here. Under this interpretation. a case which failed one day might, for no apparent reason, succeed the next. The Act does not give the Commission such a free hand. Commission shall determine "The 19 U.S.C. 160(a) (1965). ... The Act employs the bare term "injured", but here, as elsewhere, the law will not deal with trifles, and, accordingly, it was sometimes said that material (as opposed to immaterial) injury was required. Of course, "immaterial injury" is, in a sense, a contradiction in terms because if the effect is immaterial, it does not amount to "injury" under the Act. 1/ But this small semantic difficulty could be tolerated as long as it did not affect the substance of the Act. 1 Cf. Whitaker Cable Corporation v. F.T.C., 239 F.2d 253, 256 (7th Cir., 1956), where the Seventh Circuit applied the same reasoning to the Robinson-Patman Act: "We do not mean to suggest that the Act may be violated a In 1951 the Administration requested Congress to amend the Act to make it read "materially injured", rather than just "injured", and at this point the Ways and Means Committee detected what it thought was more than a semantic problem with the term. Although the amendment was presented as merely declarative of the de minimis rule, 2/ i.e., the law will not deal with trifles, the Committee refused to 2 During Ways and Means Committee hearings on this proposal, the following exchange took place between a Committee member and a representative of the Treasury Department: "Mr. REED. . By section 2 of this bill there is inserted in this language the word 'materially' before the word 'injured. ". . . Would not this change, to all intents and purposes, nullify the Antidumping Act? * "Mr. NICHOLS. Mr. Chairman, as I understand Mr. Reed's question, he asks whether this bill would detract from the provisions of the antidumping law, which requires the Secretary to take.action in the event that injury to an American industry is threatened. "The answer to that is that the bill would require him to take action in such a case, just as the present law does. There is no change effected in that respect. "Mr. REED. What about the word 'materially' there? That is not in the Dumping Act. "Mr. NICHOLS. If a material injury were threatened, he would take action, just as he would now. The only change in this language is to make it clear that he is not called on to take action in a case of an insubstantial injury or a de minimis injury. "Mr. REED. Then it does change the dumping law. "Mr. NICHOLS. We have never understood that the law required us to take action in the case of an insubstantial injury, and we have never done so. tory of the existing law." Ways and Means, 82nd Cong., This is, in practical effect, declaraHearings on H.R. 1535 before Comm. on 1st Sess. 53 (1951). recommend it because "The Committee decided not to include this change in the Certainly it cannot be said that Congress had at that point approved the flexible standard urged by respondent. In 1954 the Act was amended to transfer the injury determination function to the Commission, and in the hearings which preceded that amendment, the Commission's General Counsel appeared and stated that the Commission would interpret "injured" to mean "materially injured" unless Congress instructed otherwise. 3/ Here, again, however, the 3 The Ways and Means Committee discussion on this subject with the Commission's General Counsel was as follows: "Mr. Kaplowitz. . It is our understanding that the Treasury in administering the dumping statute has interpreted the word 'injury' as meaning material injury. If the Congress desires that this term be given any different interpretation, it should clearly express its intent. * "Mr. Byrnes. Another question. Going into this dumping provision, in your statement here you suggest that the Treasury interprets the word 'injury' to mean material injury. You raise some question as to whether Congress should not take some action to tell whoever is administering this whether they mean injury or material injury. it? "What does the law say? The law says 'injury', doesn't "Mr. Kaplowitz. Yes, sir, the law says 'injury.' (Continued on next page.) term "materially injured" was presented as merely an expression of the de minimis rule. In 1957 a representative of the Treasury Department finally brought out the flexible, sliding scale interpretation of "materially injured" which Congress feared would be adopted when it refused to write "materially" into the Act, and which respondent urges here. In this connection the Treasury representative said, 4/ "The Treasury has in the past suggested the definition 3 Continued: "Mr. Byrnes. That is the way the law will read after this bill is passed, is it not? It will still be just 'injury?' "Mr. Kaplowitz. Yes, sir, if it is not amended. "Mr. Byrnes. Why would the Tariff Commission be wedded to any prior interpretation of 'injury' that had been given in the past by the Treasury Department? "Mr. Kaplowitz. I believe the answer to that is that in using such a term as 'injury', it would be assumed, I think normally, that Congress did not intend insignificant injury or very minor injury. Of course, it all depends on how you interpret the word 'material. Hearings on H.R. 9476, Ways and Means Committee, 83rd Cong., 2d Sess. 35-37 (1954). 4/ Hearings before the Committee on Ways and Means on Amendments to the Antidumping Act of 1921, as amended, 85th Cong., 1st Sess. 17-18 (July 1957). |