'material injury' might be construed to mean that antidumping duties are to be applied only if the offending imports have a substantial, important, or possibly a serious effect on the economic status of the domestic industry involved.

"It is concluded that the particular facts of particular
cases will justify in some instances a determination of injury
where that injury is anything more than insignificant or
insubstantial, and that in other instances the determination
will require considerably more injury than that. To go to
either of these extremes in defining the degree of injury
required would be to take a rigid position on the side of
the protectionists or the free traders which is not, it is
believed, justified, either by the legislative history or by
conditions as they exist today."

The Congress was then asked not to amend the injury language of the
Act, and it did not. Respondent argues that it is therefore "a fair
inference that the Congress accepted the Treasury construction of the
word 'injury.' I disagree. Congress cannot be expected to refute
every erroneous statutory interpretation suggested to it on pain of
having the erroneous interpretation adopted if it does not legislate.
This is especially true where, as here, the intent of Congress on this
matter had already been made very clear.

It is clear that Congress has not ratified by implication the flexible, ambiguous meaning of "injured" suggested by the 1957 Treasury statement, and urged by respondent here. On the contrary, Congress appears to have resisted substantial administrative pressure over a period of years to engraft the flexible injury concept onto the statute. Under the circumstances any attempt on our part to impose on the Act an interpretation which requires anything more than de minimis injury is

clearly unwarranted.

1

It is thus clear that in this case injury within the meaning of the statute has occurred as a result of the LTFV imports from Czechoslovakia, Romania, East Germany, and the U.S.S.R.

Counsel for the U.S.S.R. exporter argues, however, that the effect of the LTFV sales from each country should be considered separately. Presumably, under this theory if the unfairly priced imports from each country did not by themselves cause injury to a domestic industry, dumping duties should not be applied despite the fact that the combined effect of the unfairly priced imports clearly do cause injury. It is sufficient to note with respect to this contention that the statute was written to protect domestic industries against an unfair trade practice which Congress feared might injure them. An industry can be injured as much by a few LTFV imports from each of many countries as it can be by many unfair imports from each of a few. The question in each case, therefore, is whether a domestic industry is being or is likely to be injured by LTFV sales. If so, such sales from all sources must cease, if they are contributing to the injury.

I am satisfied that the domestic cold pig iron industry is being injured by LTFV sales, and that the unfairly priced imports from all four countries are contributing to the injury.

Statement of Reasons for Negative Findings

of Injury by Chairman Metzger

In my opinion, the evidence before the Commission in these four investigations requires a negative injury determination in each case. 1/ Whether the imports of pig iron at less than fair value (LTFV) from East Germany, Czechoslovakia, Romania, and the U.S.S.R. are considered separately or collectively, 2/ and whatever the scope of the domestic industry, the evidence demonstrates that "an industry" is not being and is not likely to be injured "by reason of" the LTFV imports within the meaning of the Antidumping Act, 1921.

1 Like the Titanium Sponge From the U.S.S.R. case (TC Publication 255, July 1968, Inv. No. AA1921-51), these investigations raise no issues concerning the consistency of any of the provisions of the Antidumping Act, 1921, with the International Antidumping Code, which has been in effect as to the United States since July 1, 1968. The U.S.S.R., East Germany, and Romania not being parties to the Code, the United States is under no obligation to them thereunder. Although Czechoslovakia is a Contracting Party to the General Agreement on Tariffs and Trade (GATT) and a signatory of the Code, the United States is under no obligation to it thereunder because the United States secured a waiver from the GATT Contracting Parties in 1951, authorizing it to suspend all its GATT obligations to Czechoslovakia, and it so exercised this authority. This suspension, complete in scope and indefinite in duration, applies to the Code as well, it being an agreement "on implementation of Article VI of the General Agreement on Tariffs and Trade".

This statement is based upon the application of the Antidumping Act, 1921, to the facts of the cases, and would be the same were the Code nonexistent.

2/ Neither the statute, nor any court, nor the Commission has furnished a clear or general answer to the question whether LTFV imports from different countries, entering in the same period of time, must be cumulated or treated separately for the purpose of determining whether injury to an industry in the United States is "by reason of" such imports. Circumstances can be envisioned where on the one hand it would be appropriate to cumulate, and on the other hand, where it would be appropriate to treat separately, such imports. Since it makes no difference one way or the other in these cases, it is unnecessary to consider the question further.

The LTFV imports of pig iron began in 1964, reached a peak of 349,000 long tons in 1966, and ceased after receipt of 44,000 tons in the first quarter of 1967 (table 6 attached hereto). Throughout the period in which. they were entered, the LTFV imports amounted to 548,000 tons, U.S. production of pig iron has exceeded 75 million tons annually in recent years, reaching a high of 81.5 million tons in 1966 (table 1).

If the domestic industry under examination is considered to be coextensive with the production of all pig iron, including "captive" production, there is no claim and no evidence of injury or likelihood of injury to such industry. There has been a marked increase in the U.S. output of pig iron during the past decade, the production having risen each year since 1958, except in 1961 and 1967. The moderate decline in 1967 took place after the LTFV imports had ceased and was not related to such imports; the upward trend in production was resumed in January-June 1968.

With this rise in the total production of pig iron, there has been a decline in the relative importance of "merchant" pig iron, i.e., "non-captive" pig iron--that produced for sale to others. The domestic producers base their claim of injury primarily on the decline in sales of merchant cold pig iron that has occurred since 1965 (table 3) and the alleged price depressing effects of the LTFV imports in connection with such sales. However, were the domestic industry to be defined in the narrowest sense--the production of merchant cold pig iron for sale--the evidence before the Commission with respect to employment, prices, and profits of the producers of merchant pig iron (all of which are of course among the factors to be

taken into account in determining whether material injury has occurred or is threatened) does not support a finding of injury or likelihood thereof within the meaning of the Antidumping Act. 3/ Rather, it demonstrates that

3/ The Antidumping Act, 1921, was designed to prevent the destruction of competition and the establishment of monopoly through price-cutting methods in international trade. Its injury provision originated in the Senate, and its sponsors made clear that the injury at which it was aimed was material or substantial--not trifling--injury. Senator McCumber of North Dakota (in charge of the bill) stated:

....it is so worded that there is no danger (of its applica-
tion) unless it is sought by a foreign competitor to sell
goods for less than cost or less than they can be sold for
consumption in the home country for the purpose of destroying
an industry in this country and, when the industry is destroy-
ed, of then raising the price to an excessive amount; and that
is all the old antidumping law was. (Congressional Record,
1921, p. 1021.)

As stated by Senator Watson of Indiana:

The basis of the pending antidumping provision is that the
Secretary of the Treasury must find that the dumping, whatever
the article may be or in whatever quantities it may come, is
not necessarily for the purpose of destroying an American
industry, but that it may destroy an American industry or is
likely to destroy it or to prevent the establishment of an
American industry. (Idem. p. 1101.)

The injury provision has been so applied since that time by the Treasury Department until 1954 and since then by the Commission. As the Commission stated unanimously in Titanium Dioxide from France (TC Publication 109, Sept. 24, 1963):

Prior to October 1, 1954, the Treasury Department was responsible for determining not only whether sales below fair value were being made but also whether such sales were causing or were likely to cause injury to an industry in the United States. On that date, Congress transferred the injury-determination function from the Treasury Department to the Tariff Commission. In the congressional hearings that took place before the transfer was made, representatives of Treasury reported that the term "injury," as employed in the act, had been interpreted to mean "material injury;" and the Tariff Commission indicated that it would continue to follow that