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no longer below fair value or he has promised to cease exporting to the United States. This practice generally permits dumping for periods of several years with impunity.

It is our view that the practice of forgiving dumping frustrates the intended operation of the Act. The Act contemplates that where LTFV sales and injury therefrom exist a formal dumping finding should be issued and dumping duties assessed.

Revocations of dumping findings

Section 53.41 of the proposed regulations and section 14.12 of the current regulations provide that Treasury will modify or revoke a dumping finding whenever it believes the criteria for such finding are no longer met with respect to some or all the merchandise covered by the finding (Section 53.41). The Antidumping Act is silent as to whether dumping findings may be modified or revoked: the Code requires their modification or revocation when the continuation of a finding is no longer warranted.

Inasmuch as the issuance of a dumping finding is dependent upon substantive determinations of both the Treasury and the Tariff Commission, it would appear, in principle, that a modification or revocation thereof should also necessarily involve the coordinated action of both agencies.

SEPARATE VIEWS OF CHAIRMAN METZGER AND COMMISSIONER THUNBERG

The Tariff Commission has been requested by Chairman Mills of the House Ways and Means Committee to comment upon a letter to him from Congressman Buchanan, concerning the effects of proposed changes in Treasury Department regulations "pertaining to anti-dumping as they relate to the role of the Tariff Commission in conducting injury investigations."

The only changes in the proposed Treasury regulations which could relate to the role of the Commission in conducting injury investigations are those which provide for 1) the filing with the Treasury Department of information concerning injury, and 2) the revocation of a determination of sales at less than fair value. Neither appears to require any change in the existing procedures or practices of the Commission in the performance of its statutory function of determining whether injury to an industry has occurred or is likely by reason of imports which the Treasury Department determines have been sold at less than fair value. 1. The Proposed Treasury Regulations of October 26, 1967, require that "information indicating that an industry of the United States is being injured, or is likely to be injured, or prevented from being established”, be furnished to the extent feasible (Sec. 53.27). It is our understanding that the Treasury Department would require that this evidence be furnished, and would examine it, not with a view to determining whether there has in fact been injury (a question which under statute is within the province of the Commission), but with the purpose of assuring itself that initiation of the investigation would not be futile, in the sense that it would be a waste of taxpayers' money for the Government to initiate a full anti-dumping investigation in the absence of any indication that it would possibly result in an assessment of anti-dumping duties.

If the Act is administered in this manner, as it is our understanding that the Treasury Department intends that it shall be, it is our view that the Commission's statutory function of determining the question of injury within three months of a determination by the Secretary of the Treasury that there have been sales of less than fair value, can continue to be performed by it as in the past.

2. The proposed Treasury Regulations contain a provision (Sec. 53.39) concerning revocation by the Treasury Department of a prior determination of sales at less than fair value, which would result in the discontinuance of a Commission injury investigation which had been begun but not completed at the time of the Treasury Department notice of revocation. Past practice of the Commission in these circumstances has been consistent with such a discontinuance, since the Tariff Commission cannot initiate an injury investigation until notified of a determination of sales at less than fair value by the Treasury Department and since continuation of the injury investigation after revocation of the Treasury determination would serve no useful purpose and would waste taxpayers' money. Other aspects of the Proposed Regulations do not relate to the Commission's functions under the Anti-Dumping Act, nor has Chairman Mills sought the Commission's views on them. This is entirely understandable. Since they involve the administration of provisions of the Act which have never been the responsibility of the Tariff Commission, the Commission possesses no special competence

in respect of interpreting those provisions or regulations or practices implementing them. We think it would be as inappropriate for us to make judgments in these areas as it would were we to do so in respect of the Treasury Department's administration of any other laws for which it is responsible.

Hon. WILBUR D. MILLS,

THE SECRETARY OF THE TREASURY,
Washington, D.C., March 27, 1968.

Chairman, Committee on Ways and Means,
House of Representatives,
Washington, D.C.

DEAR MR. CHAIRMAN: This is in reply to your letter of February 16, 1968, enclosing a copy of a letter dated February 13, 1968, from Congressman John H. Buchanan, Jr., concerning the proposed changes in the Customs' Antidumping Regulations. In a letter to me, also dated February 13, 1968, Congressman Buchanan raised the same points. I trust, therefore, that our reply to him, a copy of which is attached, will suffice to answer the question he raised in his letter to you. Please advise us if there are any further questions concerning the proposed changes or the administration of the Antidumping Act, 1921, as amended (19 U.S.C. 160 et seq.).

Sincerely yours,

HENRY M. FOWLER.

Hon. JOHN H. BUCHANAN, Jr.,
House of Representatives,
Washington, D.C.

THE GENERAL COUNSEL OF THE TREASURY,
Washington, D.C., March 27, 1968.

DEAR MR. BUCHANAN: Thank you for your letter of February 13, 1968, concerning the proposed changes in the Customs Regulations as they relate to the administration of the Antidumping Act, 1921, as amended (19 U.S.C. 160 et seq.). The Bureau of Customs has received many comments from interested parties in response to the proposals published in the Federal Register on October 28, 1967, and is currently in the process of analyzing them. When this analysis is completed we shall be able to arrive at a decision as to the final form which the amended regulations will take.

In answer to the specific problems which you discussed in your letter, I would like to make the following comments. The Treasury Department does not intend to make it more difficult for complainants to initiate antidumping investigations. It is appropriate, however, for the Treasury to require the complainant to submit such information concerning injury as is available to him to insure that the fair value investigation will not be a futile exercise, as it would be if the complainant had no case for injury to present to the Tariff Commission. In this regard, it is of interest to note that the current regulations on this subject require that such information regarding the total value and volume of domestic production of the merchandise in question as is reasonably available be submitted with the initial complaint.

Under the proposed Customs Regulations, the Treasury would continue to accept information bearing on fair value even after the case had been referred to the Tariff's Commission for an injury investigation. This determination of sales at less than fair value, however, will be final in every sense. This review of the data which led the Treasury to conclude that sales at less than fair value were taking place will reduce the possibility that a finding of dumping will be issued on the basis of data subsequently proved incomplete or erroneous. It should be pointed out that while no formal procedures for revoking a final determination of sales at less than fair value is present in the regulations currently in force, in at least one instance the Treasury did revoke its determination subsequent to referral of the case to the Tariff Commission.

Finally, the Department does not intend to weaken its administration of the Antidumping Act. The proposed changes are procedural in nature and should have the effect of speeding up the processing of these cases. This is a goal which we believe is in the best interests of all concerned. Thank you for your interest in the matter.

Sincerely yours,

FRED B. SMITH,
General Counsel.

OFFICE OF THE SPECIAL REPRESENTATIVE FOR TRADE NEGOTIATIONS,
EXECUTIVE OFFICE OF THE PRESIDENT,
Washington, February 21, 1968.

Hon. WILBUR D. MILLS,

Chairman, Committee on Ways and Means,
House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: Thank you for your letter of February 13, 1968, in which you enclose a letter from Congressman Buchanan questioning the consistency of two aspects of the Treasury Department's proposed dumping regulations with the Antidumping Act, 1921.

As you know, these proposed regulations are designed to implement the Antidumping Code which the United States and other countries signed as part of the Kennedy Round on June 30, 1967. Congressman Buchanan is therefore questioning the consistency of the Code with the Act. In this regard, I am enclosing a statement issued by this Office last year which attempts to answer on pages 7-9 the very same questions then raised by Senator Hartke.

With respect to your own request of August 24, 1967, as my staff then explained to Mr. Lamar, we were fully prepared to make such an analysis but it would take some time. In particular, we had in mind the fact that the new dumping regulations of the Treasury Department would have a considerable bearing upon the relationship in practice between the Code and the Act. For this reason, we wanted our analysis to take these regulations into account in the form that they would take effect on July 1, 1968.

We are now in a position to do so, and I am reasonably confident that our analysis will be available by early April.

Sincerely yours,

WILLIAM M. ROTH,
Special Representative.
FEBRUARY 16, 1968.

Hon. WILLIAM M. ROTH,

Special Representative for Trade Negotiations,

Executive Office of the President,

Washington, D.C.

MY DEAR MR. AMBASSADOR: For your information, I am enclosing a letter I received from The Honorable John H. Buchanan, Jr., concerning the implications of recently proposed Treasury regulations on antidumping for the authority of the U.S. Tariff Commission to conduct injury investigations in antidumping

cases.

You may recall I wrote you on August 24, 1967, requesting certain information on essential factors of law and administrative regulation involved in the implementation of the Antidumping Code. According to our records, no response has been made.

I have requested that the Secretary of the Treasury and the Chairman of the U.S. Tariff Commission comment on Representative Buchanan's letter. However, it would still be most helpful to have your response to our earlier request for information on the proposed implementation of the Antidumping Code. Therefore, I renew my request for the information detailed in my letter of August 24, 1967.

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DEAR MR. CHAIRMAN: It is my understanding that the Treasury Department has published in the Federal Register proposed changes in regulations pertaining to anti-dumping which will have the effect of amending the Anti-Dumping Law as enacted by the Congress without such amendment being subject to Congres

The proposed changes would appear to extend the Treasury Department into the area of injury to industry resulting from anti-dumping in which jurisdiction was previously vested in the Federal Tariff Commission, and of giving the Treasury Department the authority to refer an anti-dumping case to the Tariff Commission, and then continue consideration of the case and, if desired, rescind its previous decision while the Tariff Commission is in the process of investigation in its area of jurisdiction in the same case.

While the effect on our domestic industries, which are threatened by the rising tide of low cost imports, of these changes is serious, the action of the Treasury Department in apparently seeking to use regulatory authority for the purpose of amending law is a matter which I am sure is of grave concern to the Congress. Your review and consideration of this action by the Treasury Department will be sincerely appreciated.

With all best wishes,

Sincerely,

JOHN H. BUCHANAN, Jr.,

Member of Congress.

APPENDIXES

APPENDIX A

Page

Antidumping Act, 1921, as amended..

New dumping regulations of Treasury Department-

1

13

Present dumping regulations of Treasury Department_

27

Dumping regulations of Tariff Commission__.

37

International Antidumping Code_

39

Article VI (relating to dumping) of General Agreement on Tariffs and
Trade

51

Executive branch analysis of International Antidumping Code in relation to Antidumping Act, 1921

55

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