experts. [14 F.R. 7289, Dec. 6, 1949, as amended at 16 F.R. 10625, Oct. 18, 1951]

Part 208-Investigations of Dumping Injury to Domestic Industry: $208.1 [page 582] Applicability of rules regarding investigations under section 201 (a) of the Antidumping Act, 1921, as amended.

The rules under this part are specifically applicable to investigations for the purposes of section 201 (a) of the Antidumping Act, 1921, as amended, and apply in addition to the pertinent rules of general application set forth in Part 201 of this chapter.

The plaintiffs contend that the majority of the Commission acted upon an erroneous theory of law and in clear violation of statutory power to "lay and collect duties" delegated to it by Congress under Article 1, Section 8, of the Constitution; that the only question is whether the finding of "injury" by the majority was an exercise of duly conferred authority, or was ultra vires and, therefore, null and void, because based upon an incorrect interpretation of law; that the Commission exceeded its statutory authority by predicating its finding of "injury" almost entirely upon importations of cement from countries other than Portugal (brief, page 2). Plaintiffs' proposed finding of fact No. 6 (brief, page 20) states that "The sole question herein is the validity of the investigation and determination of the Tariff Commission." Plaintiffs' counsel stated at R. 2, 3:

** we are not claiming any other or different foreign market value[s] or purchase price[s] than as found by the Appraiser. Our contention is, rather, that the investigation conducted by the Tariff Commission was illegal, since importations from other countries than Portgual were considered in the Commission's report.

Accordingly, the values found by the appraisers under the tariff act and the values and prices reported under the Antidumping Act are conceded correct as to the amounts thereof.

The defendant contends that the Tariff Commission and the Assistant Secretary of the Treasury acted within the authority delegated by the Congress in finding that an industry in the United States was being injured by the sale of portland gray cement imported from Portugal (brief, page 15, "PROPOSED CONCLUSIONS OF LAW" number 2).

The only evidence in this case is plaintiffs' collective exhibit 1 which consists of a record certified by Donn N. Bent, Secretary of the United States Tariff Commission, dated April 20, 1966. It is "the complete official record in the investigation which the Tariff Commission conducted under section 201 (a) of the Antidumping Act of 1921, as amended, on PORTLAND CEMENT FROM PORTUGAL No. AA1921-22." That official record contains many items including a letter dated July 17, 1961, from the Assistant Secretary of the Treasury to the

Commission; notices of the Commission of the investigation issued July 24, 1961, and of the hearing issued August 1, 1961; tentative calendar for the hearing; transcript of the oral record made at the hearing held September 14, 1961, before the Commission, as well as other documents including a statement submitted on behalf of the City Lumber Co. and another on behalf of the Portuguese exporter of the involved cement; a brief submitted for Port Everglades Steel Corp. by its counsel; a brief submitted for 12 representative domestic cement producers by their counsel; brief of Foreston Coal Co., Inc., of Massachusetts, submitted by its counsel; and a "Determination of Injury" issued by the Commission, dated October 20, 1961, which is "TC Publication 37" of three Commissioners and the "Views of Commissioners Talbot and Overton." As deemed necessary herein, such of the foregoing items will be referred to infra.

Gleaned from this evidence is the fact that the Treasury letter to the Commission of July 17, 1961, was received on July 20, 1961, which advised under section 201 (a) (19 U.S.C. § 160 (a)) of the ADA, as amended, "that portland gray cement from Portugal is being, or is likely to be sold in the United States at less than fair value as that term is used in the Antidumping Act."

On July 24, 1961, the Commission issued a "Notice of Investigation" (26 F.R. 6792) which notice states that it received advice from the Treasury Department that "PORTLAND GRAY CEMENT from PORTUGAL is being, or is likely to be, sold in the United States at less than fair value," to "determine whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the importation of such merchandise into the United States." Interested parties were requested to submit written statements of pertinent information to the Commission.

On August 1, 1961, the Commission issued a "Notice of Hearing" (26 F.R. 7026) scheduled for September 14, 1961, wherein interested persons were requested to appear and be heard. A hearing was held before the Commission on the latter date at which time the oral testimony was adduced of representatives of 12 domestic producers of cement; Portuguese Cement Mills, New York, N.Y.; City Lumber Co.; Port Everglades Steel Corp.; and Foreston Coal Company of Massachusetts. This latter firm is not a party in the instant case but its treasurer testified herein that his firm imported cement from Portugal in two shipments which either arrived or were shipped therefrom in May 1960 and the beginning of August 1960 (Tr. 97). This is close to the periods of exportation in the cases at bar and is prior to the hearing before the Commission on September 14, 1961. Those two shipments were received at Fall River, Mass., from which port he sold (Tr. 99,

100). The certified transcript of the record made before the Commission contains 182 pages. In addition to the oral testimony, statements and briefs on behalf of interested parties as noted, supra, and other documents were received in evidence by the Commission.

On October 20, 1961, the Commission issued its "Determination of Injury," TC Publication 37, AA1921-22 on "PORTLAND CEMENT FROM PORTUGAL," referred to supra. This document asserts that, in arriving at a determination, due consideration was given by the Commission to all written submissions from interested parties; all testimony adduced at the hearing and all factual information obtained by the Commission's staff; that on the basis of the investigation the Commission (majority of three Commissioners) has determined (Commissioners Talbot and Overton dissenting), "that an industry in the United States is being injured by reason of the importation of portland gray cement from Portugal at less than fair value within the meaning of the Antidumping Act, 1921, as amended." On October 31, 1961, pursuant to section 201 (a) (c) of the ADA, the Assistant Secretary of the Treasury made public the finding of dumping of portland gray cement imported from Portugal (26 F.R. 10476).

Thereafter, on February 16, 1962, the appraiser at Bridgeport, Conn., made his returns of values and prices, and on February 13, 1962; the appraiser at Philadelphia, Pa., did likewise (see appraiser's returns on the "Summary of Examination and Appraisement" forms in the cases at bar).

The "Majority Statement of Reasons" states that in this investigation the Commission is confronted with one of a series of investigations respecting imports of such cement under similar circumstances from a succession of foreign supplying countries; that three United States importers are currently involved. One handled transactions in 1958 for an importer of cement from Sweden that had been sold at less than fair value by Swedish exporters, which resulted in a determination of injury as "substantial quantities of such cement have been sold and continue to be sold in the 'competitive market area' at prices which forced the domestic producers to lower their prices of like domestic cement below those that prevailed prior to the sales of Swedish cement at less than fair value." (Note said determination of injury is dated April 4, 1961 [AA1921-16] and was published in 26 F.R. 3427. It is reproduced as appendix A, part of the defendant's brief.) The competitive market consisted of Rhode Island, eastern Massachusetts, and eastern Connecticut. The imports of Portuguese cement involved in the case at bar are entering at Bridgeport, Conn., Fall River, Mass., and Trenton, N.J., and are sold in limited geographical areas that are supplied with domestic cement by plants adjacent to the same areas. (See page 5 of TC Publication 37.)

The majority statement also states that all three United States importers of Portuguese cement currently involved were responsible in 1959 for entries of portland cement from Belgium that had also been sold in the United States at less than fair value; that one of them sold such cement under circumstances that caused the Commission to make a determination of injury (dated June 2, 1961, AA1921-19, published in 26 F.R. 6511 and reproduced as appendix B, part of defendant's brief) as the industry concerned is adjacent to the same area where imports were entered at the ports of Port Everglades, West Palm Beach, Fort Pierce, Port Canaveral, and Jacksonville, Fla. The industry there concerned "has lost a substantial volume of sales of such cement in such areas, which loss is directly attributable to the price of the imported cement made possible by reason of its sale at less than fair value by the exporters." (See page 2 of TC Publication 37.) The majority statement, page 3, states

Spokesmen for the importers contended that although the imported cement from Portugal was sold at prices below fair value such sales had had no depressive impact on the prices then prevailing in the respective domestic marketing areas and therefore had occasioned no injury to domestic producers. Sellers of Portuguese cement, it was argued, merely "met" the prices already prevailing in the respective areas; they said, "There is no evidence in this case (unlike the Swedish case) that Portuguese cement was specifically responsible for any price break." This reasoning appears to us to be more ingenious than tenable. To embrace this conclusion, one must overlook the fact that the prices thus "met" in the region affected had already been depressed by earlier imports of dumped merchandise from countries other than Portugal. One must also disregard the hammering effect, and threat of additional sales thereafter below fair value of imports from new sources of supply-including those from Portugal-brought into play after avenues of dumping already utilized had been closed by enforcement of the antidumping statute. Depressed prices kept depressed by recourse to new forms of the old depressant constitutes, for the domestic producers, merely a prolongation of the very injury from which it was hoped they had already gained relief.

At page 4, the majority statement states—

*** We must conclude, therefore, that with the purpose of dumping already having been accomplished in the U.S. market, the resultant depressed prices leave little consolation to the domestic industry forced to meet such prices and thereby compelled to suffer continued injury if it wishes to compete. A denouement of such character was never the purpose of the Antidumping Act, and such procedure meets neither the letter nor the spirit of the act.

At pages 5 and 6, the majority statement states

Portland cement is a standardized or fungible product the sale of which in a given market is generally contingent upon its cost not being

higher than the cost of like competitive cement. It is a heavy, lowvalued product which, by reason of transportation costs, can be sold economically only to users located within a relatively short distance from the cement plants (or port of entry for imported cement). The imports of Portuguese portland cement which are injuring the domestic industry concerned are entering at Bridgeport, Conn., Fall River, Mass., and Trenton, N.J., and are being sold in limited geographical areas that are supplied with domestic portland cement by plants adjacent to the same areas. These areas are referred to herein as the "competitive market areas." The domestic portland cement plants that have supplied such cement in these areas and have in recent years sold substantial quantities of such cement there are considered to constitute "an industry" for the purposes of the Antidumping Act.

An examination of the voluminous record discloses substantial evidence in support of the facts set forth in the majority statement as noted in the foregoing quoted portions thereof.

The views of the minority assert that no industry in the United States is being or is likely to be injured by reason of the importation of portland gray cement from Portugal sold for export to the United States at less than fair value; that whether injury or likelihood thereof to a domestic industry exists from the importation of Portuguese cement "involves evaluation of facts obtained in the investigation relating to imports of such cement from this source only and their economic impact upon a domestic industry"; that there is no likelihood of injury by future importations of portland gray cement from Portugal as "the Commission has received assurances from the foreign producer involved, as well as from the importers concerned, that further [future] shipments of this product from Portugal to the United States would be made, if at all, only if they met the 'fair value' criteria of the Treasury Department." (TC Publication 37, pages 6 to 8.)

These views of the minority seem to hinge upon whether the imports of cement from Portugal alone, create an injury (present tense) in themselves. This overlooks the fact that cement imported from Sweden (where imports of cement were made in almost the identical competing home market as the current Portuguese imports) and from Belgium, as referred to, supra, had caused injury to domestic producers in their respective importing areas because such foreign sales were being made at less than fair value. It also overlooks the important fact that Portuguese cement is sold at prices which "met" the aforesaid less than fair value prices that caused injury because domestic producers were obliged to reduce their former prices to meet such imported prices. Where two things are equal to a third, then the two things are equal to each other. This is axiomatic. Thus, the less than fair value prices of cement from Sweden, Belgium, and Portugal ac