Invocation of United States import relief laws as an antitrust violation

• Published date: 01 June 1986
• Author: Terry Calvani,Randolph W. Tritell
• Date: 01 June 1986
• DOI: 10.1177/0003603X8603100213
• Subject Matter: Article

The Antitrust Bulletin/Summer 1986

Invocation

of

United States import

relief laws as an antitrust violation

BY TERRY

CALVANI*

and RANDOLPH

W.

TRITELL**

527

•

This article will pose and then attempt to answer two questions:

First, can the invocation of United States import relief laws'

constitute an antitrust violation? Second, if so, under what

circumstances?

Commissioner, Federal Trade Commission .

•• Attorney advisor to Commissioner Calvani, Federal Trade Com-

mission.

AUTHORS' NOTE: The views expressed in this article are those

of

the

authors and do not necessarily represent those

of

the Federal

Trade

Commission.

1The import relief laws provide a mechanism for parties who

believe they are being injured as a result of unfair foreign competition

to obtain remedies in the form of tariffs, quotes, or trade adjustment

assistance. A party seeking relief commences an action before the

United States International Trade Commission (ITC) and the Depart-

ment of Commerce pursuant to the Trade Agreements Act of 1979. 19

U.S.C. §

1673

(1982). Title I of the Trade Agreements Act of 1979,

which implements the Tokyo Round agreements on dumping, directs

that an antidumping duty be imposed if it is determined that foreign

merchandise is being sold in the United States at "less than fair value"

and if, as a result of those sales,

aU

.S. industry is "materially injured"

©1986 by Matthew Bender &

Co.,

Inc.. and reprinted with permission from Antitrust and TradePolicy in the United

States and the European Community.

528 The antitrust bulletin

These questions are not new. Douglas Rosenthal, then Chief

of

the Foreign Commerce Section

of

the Department

of

Justice

Antitrust Division, posed them in 1979/ and others have done

or threatened with material injury.

"Fair

value" is defined as the price

the foreign producer charges in its domestic market. The duty is to

equal the amount by which this foreign market value exceeds the U.S.

price. The prerequisite material injury is

"harm

which is not inconse-

quential, immaterial, or unimportant." The complaint is filed simulta-

neously with the

lTC,

which makes the injury determination, and with

the "administering authority," currently the Secretary

of

Commerce,

who makes the "less than fair value" determination. Unlike under the

1916 Act, no showing of predatory intent is required; even a small

import penetration may suffice. See Pads for Woodwind Instrument

Keys from Italy, 49 Fed. Reg. 37137 (Sept. 21, 1984) (Commerce Dept.

imposed antidumping duty of

1.16070).

The countervailing duty law, 19

U.S.c.

§

1671

(1982), operates in a

similar fashion. Petitioner files simultaneously with

both

the ITC

and

the Department

of

Commerce (the "administering authority"). Com-

merce must determine whether a foreign government is providing,

directly or indirectly, a subsidy with respect to the manufacture, produc-

tion, or export

of

a class or kind

of

merchandise imported into the

United States. The ITC determines whether a U.S. industry is injured or

threatened with material injury, or whether the establishment of a U.S.

industry is materially retarded by imports

of

that merchandise. A

countervailing duty equal to the amount

of

the net subsidy is imposed

on the merchandise.

Other import relief laws include the Trade Agreements Act of 1979,

19 U.S.C. §2411 (1982); the "escape clause," §201 of the Trade Act

of

1974,

Rl.,

93-618; the "market disruption" law, §406 of the Trade Act

of

1974; and the statute forbidding

"unfair

trade practices" in import-

ing, 19 U.S.C. §1337.

Of course, aparty may also invoke the federal antitrust laws in

appropriate cases.

For

example, one might assert that foreign competi-

tors have conspired to maintain artificially high prices in some market in

order to fix artificially low prices in the U.S. See, e.g., In re Japanese

Electronic Products, 723 F.2d 238 (3d Cir. 1983), cert. granted, 105 S.

Ct. 1863 (1985). One might also invoke sec. 2 of the Sherman Act, 15

U

.S.c.

§2 (1982), alleging that a foreign competitor is attempting to

monopolize by engaging in predatory pricing. See, e.g., In re Japanese

Electronic Products. See also the Wilson Tariff Act, 15

U.S.c.

§8

(1982).

2Remarks

of

Douglas E. Rosenthal, Practicing Law Institute,

Washington, D.C. (Nov. 9, 1979).