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WT/DS162/R/Add.1 Page 43


The United States further recalls that Representative Kitchin's bill was reported favourably to the whole House by the House Committee on Ways and Means.  The Committee's report affirmed that the bill applied the same unfair competition law to the foreign import trader as to the domestic trader.  The report stated that the bill "place[s] […] persons, partnerships, corporations, and associations in foreign countries, whose goods are sold in this country […] in the same position as our manufacturers with reference to unfair competition."143


The United States notes that, during debate on H.R.16763, numerous Republican congressmen criticized the approach taken by the antidumping provision, insisting that entire industries needed protection and that higher tariffs were the only adequate method of protecting American industry from the expected postwar competition.144  Thus, the critics of the legislation recognized that it was not directed at protecting particular US industries, as tariffs and duties would be, but rather at unfair competition.  Indeed, one Republican Congressman suggested that his colleagues should rewrite the provision "as a protective measure", incorporating a provision debated (but not enacted) in a previous Congress that assessed duties for dumping.145  As previously stated, the provision that became 15 U.S.C. § 72, a Democratic initiative, was intended to protect competition.146


The United States argues that Japan's description of events in 19191921 is correct insofar as it shows that the Tariff Commission found that the 1916 Act had no protectionist effects and that the 1921 Antidumping Act was very much "unlike" the 1916 Act.  Japan, however, also quotes a 1919 floor statement from Representative Kitchin, as proof that he believed the Act was an "antidumping proposition".  The quote is, however, three years after the fact, and taken out of context.  Other remarks by Representative Kitchen in the same floor debate show that he believed that the 1916 Act only dealt with anticompetitive conduct.147  For example, he stated that:

"We tried to guard against unfair competition by the foreigner by the passage of the Act of 1916.  We are willing to have foreign goods coming over here in competition

143 H.R. Rep. 922, 64th Cong., 1st Sess. 910 (1916).

144 The United States refers to, e.g., 53 Cong. Rec. 10,531 (1916) (Rep. Longworth) (arguing, according to the United States, that provision should be coupled with a protective tariff);  ibid., p. 10,587 (Rep. Green) (arguing, according to the United States, that higher tariffs were needed); ibid., p. 10,607 (Rep. Meeker)  (arguing, according to the United States, the same); ibid., p. 10,619 (Rep. Switzer) (arguing, according to the United States, that the provision should be supplemented by higher tariffs); ibid., pp. 13,07980 (Sen. Penrose)  (arguing, according to the United States, that the provision is makeshift and that a protective tariff is needed); ibid., p. 13,490 (Sen. Colt) (arguing, according to the United States, that only duties can safeguard American industries; provision is "manifestly inadequate").

145 The United States refers to ibid., p. 10,761 (Rep. Fess).  The United States notes that, in the previous Congress, antidumping legislation based on a Canadian statute, which presaged modern antidumping laws by providing for an administrative process, with duties assessed without inquiry into the importer's intent, had been considered and rejected.  The United States refers to Zenith III, Op. Cit., p. 1217; 53 Cong. Rec. 10,619 (1916) (Rep. Switzer); ibid., p. 13,077 (Sen. Penrose); ibid., p. 13,080 (text of Canadian statute).  The United States contends, therefore, that the Congress was aware of the possibility of such an approach, and chose instead to enact Section 72 which requires anticompetitive intent, and provides for judicial, not administrative, remedies.

146 The United States concedes that it is also true that some congressmen characterised the provision as "protectionist" or a "sop" to the protectionist Republicans, which was intended to get them to vote for the unpalatable revenue provisions of the bill.  The United States refers to, e.g., 53 Cong. Rec. 10,588, pp. 10,59495, 10,619, 10,747, 10,74950, 10,761 (1916).  However, in the view of the United States, these comments do not outweigh the characterisation of the bill by the Administration that proposed it, by its sponsor, and by the House Report, as a bill intended only to prevent unfair competition.  The United States refers to Zenith III, Op. Cit., p. 1223, where the court collects cases concerning greater weight to be given reports of Congressional committees and statements of the bill's sponsor.

147 The United States refers to 59 Cong. Rec., p. 346 (not p. 351).

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