1/ [Footnote omitted.]

1/ Commissioners Thunberg and Newsom dissent.

1/ The Antidumping Act reads in pertinent part as follows:

Whenever the Secretary of die Treasury . . . determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value, he shall so advise the United States Tariff Commission, and the said Commission shall determine within three months thereafter whether an industry in the United States is being or is likely to be injured ... by reason of the importation of such merchandise into the United States.... 19 U.S.C. § 160(a) (1964).

2/ Letter from Assistant Secretary of the Treasury Rossides dated August 20, 1969, which states in part that,

In accordance with section 201(a) of the Antidumping Act, 1921, as amended, you are hereby advised that potassium chloride, otherwise known as muriate of potash, from Canada, France, and West Germany is being, and is likely to be, sold at less than fair value within the meaning of the Antidumping Act, 1921, as amended.

3/ The Antidumping Act provides that if both LTFV sales and injury are found then a special dumping duty shall be collected equal to the difference between the foreign market value and the importer’s purchase price. 19 U.S.C. § 160(a) and 101(a) (1964).

4/ In 1911, the U. S. Congress appropriated funds for Government agencies to search for domestic sources of potash. Public No. 478 of the 61st Cong., Act of Mar. 4, 1911, Ch. 238, 36 Stat. 1256. During the period from 1926 through 1931, oilwell drilling in Carlsbad, N. M., disclosed the existence of bedded salt deposits and resulted in potash exploration by private interests.

In the United States, the greater part of the known domestic reserves is on public lands held under lease from the Federal Government. To prevent over-development of the potash industry in this country, after three companies had become established, the Government in 1936 suspended action on applications for potash prospecting permits and leases on Government lands, except in “particularly meritorious cases.” U. S. Department of the Interior, Departmental Order 914, Apr. 5, 1935. The issuance of prospecting permits was resumed in 1943; 8 Fed. Reg. 8556-57 (1943); U. S. Department of the Interior, Departmental Order 1829, June 9, 1943, and exploration was resumed by many companies on the public domain.

5/ All tonnages are expressed in terms of K₂O equivalent.

6/ [Footnotes omitted.]

7/ [Footnotes omitted.]

8/ Cast Iron Soil Pipe from Poland, U.S.T.C. Inv. No. AA1921-50 (1967); Titanium Sponge from the U.S.S.R., U.S.T.C. Inv. No. AA1921-5I (1968); and Pig Iron from East Germany, Czechoslovakia, Romania, and the U.S.S,R., U.S.T.C. Inv. Nos. AA1921-52, 53, 54, and 55 (1968).

9/ [Footnote omitted.]

10/ Dow Chemical Co., Duval Corp. (a subsidiary of Pennzoil United, Inc.), International Minerals and Chemical Corp., Kaiser Chemical Co., Kerr-McGee Corp., National Potash Co. (wholly owned subsidiary of Freeport Sulphur Co.), Potash Company of America (a division of Ideal Basic Industries, Inc.), Southwest Potash Corp. (wholly owned subsidiary of American Metal Climax, Inc.), Texas Gulf Sulphur Co., and U. S. Potash and Chemical Co. (a wholly owned subsidiary of Continental American Royalty Co.).

11/ A logistic exchange of “swap” occurs when a seller makes a sale to a customer and arranges to have a competing supplier make the delivery, promising to return the favor at a future date. Such arrangements are usually made because the seller is out of the grade of potassium chloride his customer requires, or because other supplier’s plant is closer to the customer. Such “swaps” have been growing in importance and now account for up to 20% of the shipments of some companies.

When a “lender” in Canada makes a shipment to a customer of a domestic company (the “borrower”) in the United States, the importation has, in effect, been made for the account of the domestic company. It is argued that the domestic producer (the “borrower”), at least, cannot claim injury from these imports.

12/ Brief of International Minerals & Chemical Corp. (IMC), pg. 49-50.

13/ One respondent implies that a “clean hands” type rule should be invoked to prevent a party from complaining of self-inflicted injury. Another asserts that imports generated by the domestic industry can be likened to contributory negligence which, it is argued, should bar relief under the Antidumping Act.

14/ In an earlier case it was stated that the “industry” included “all economic interests in the United States which might be destroyed by unabated dumping of the product involved.” Titanium Sponge from the U.S.S.R., U. S. T. C. Inv. No. AA1921-51, at 16 (1968) (concurring statement).

15/ That the interests of the workers were to be protected under the Anti-dumping Act is made clear by the House Ways and Means Committee Report on the 1921 Act which states that the proposed act “protects our industries and labor against a now common species of commercial warfare of dumping good on our markets at less than cost or home value.” H. R. Rep. No. 1, 67th Cong., 1st Sess. 23 (1921). (Emphasis added.)

Workers are also treated as part of the U.S. industry to be protected under more recent foreign trade legislation. Section 301(a)(1) of the Trade Expansion Act of 1962 permits a “certified or recognized union, or other representative of an industry” to file an escape clause petition. Further, if injury to the “industry” is established the President may grant adjustment assistance to the workers involved. 19 U.S.C. §§ 1901(a) and 1902(a)(3) (1964).

This suggests that at least in this type of foreign trade legislation Congress intended that the interests of workers as well as owners were to be comprehended within the term “industry.”

16/ In that case it was stated

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. Pig Iron from East Germany, Czechoslovakia, Romania, and the U.S.S.R., U. S. T. C, Inv. No. AA1921-52, 53, 54, and 55 at 24 (September 11968) (concurring statement).

17/ IMC Brief, pg. 54.

1/ Such unstable market conditions make the margin of error, which always exists to some degree in the determination of fair value, larger than usual; given a small margin of dumping, the larger the margin of error implicit (or explicit) in the fair value computation, the greater must the volume of dumped imports be, other things being equal, to support an injury finding.