UNITED STATES TARIFF COMMISSION I/ ~OTASSIUM CHLORIDE (MURIA TE O:f :POTASH) FROM CANADA, FRANCE, AND WEST GERMANY Determination of Injury in Investigation Nos. AA1921-58, 59, and 60 Under the Antidumping Act, 1921, As Amended TC Publication 303 Washington, D. C. November 1969 UNITED STATES TARIF;F COMMISSION Glenn W. Sutton, Chairman Peneiope H. '.J'hunberg Bruce E. Clubb Will E. Leonard, Jr. Herschel D. Newsom George M~ Moore Kenneth R. Mason, Seo'l'etafty -----------------------------~· Address all communications to · . United States Tariff Commission Washington,. D. C. 20436 ~--------------~--~--- CONTENTS Determinations of injury and likelih9od of injury------------- 1 Statement of reasons: Views of Chairman Sutton and Commissioner Leonard---------- 2 The domestic industry----------------------------------- 3 CompeUtive impact of LTFV sales on domestic industry·--- 4 Content.ionr; not relevant to determination--------------- 10 Statement of Commissioner Clubb in which Commissioner Moore concurs------------------------------ 13 The multinational corporation problem---------------- 20 Cumulative injury------------------------------------ 24 In,jury------------------'----------------------------- 26 Statement of reasons for negative determination by Commissioners Thunberg and Newsom----------------------- 29 UNITED STATF.8 TARIEF COMMISSION Washington November 21, 1969 POTASSIUM CHLORIDE FROM CANADA, FRANCE AND WEST GERMANY Detenninations of Injury and Likelihood of Injury On August 22, 1969, the Tariff Commission received advice from the Treasury Department that potassium chloride, otherwise known as muriate of potash, from Canada, France, and West Gennany is being, and is likely to be, sold in the United States at le~s than fair value within the meaning of the Anti- dumping Act, 1921, as amended. Y Accordingly, on. that same date the Commission instituted-Investigations No. AA1921-58 {with respect to imports from Canada), No. AA1921-59 {France)., and No. AA1921-60 (West Gennany) under section 201(a·) of .that Act 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. Notice of the institution of the investigations and of a joint hearing to be held in connection therewith was published in the Federal Register of June 28, 1968 (34 F.R. 13712). The hearing was held October 5-13, 1969. 1/ Treasury published a separate determination of sales at less than fair value for each country in the Federal Registers of August 23 and 26, 1969 (34 F.R. 13615, i3670). 2 In arriving at its determinations the Commission gave due consideration to all written submissions from interested parties, all testimony adduced at the hearing, and all information ob- taiµed by the Commission's staff. On the basis of the joint investigations, the Commission has determined that an industry in the United States is being injured, and is likely to be injured on a continuing basis, by reason of.the importation of potassium chloride, otherwise known as muriate of potash, from Canada, France, and West Germany, sold at less than fair value within the meaning of the Anti- dumping Act, 1921, as amended. Y STATEMENT OF REASONS Views of Chairman Sutton and Commissioner Leonard In our opinion, an industry in the United States is· being, and is likely to be, injured by reason of the importation of potassium chloride from Canada, West Germany, and France, which I is being sold at less thfn fair value (LT.FV) within the meaning of the Antidumping Act, t921, as amended. In making this det.ermination under section 20l(a) of the Antidumping Act, 1921, as amended, we have considered the injured industry" to be those facilities of domestic producers employed in the mining and refining of potassium chloride, 1/ Commissioners Thunberg and Newsom dissent. 3 and have taken into account the combined impact on such industry of LT.FV imports from all three countries collectively, rather than from each country individually. The domestic industry The term "an industry in the United States" in the Anti- dumping Act cannot, as claimed, be interpreted to mean "an industry in North America" in this or any other case. The statutory phrase contemplates protection of u.s. industries. In protecting domestic industry, the Congress was concerned not only for' the welfare of the owners of producing plants, but also for the welfare of the employees in such plants and the communities of which they are a part. These interests are inextricably tied together. A multi-national producer of a prodµct has no immunity to the operations of the Antidumping Act in connection with LTFV sales of its foreign.product in the ·United States when the interests comprising the domestic industry viewed as a whole are being or are likely to be injured. This situation is the one which prevails in the instant case. As previously indicated, we view the relevant industry to be those facilities of domestic producers employed in the.mining and refining of potassiul:n chloride. This industry embraces the total economic interests of the facilities of which it is comprised, including the workers. In our view, the Antidumping Act is designed . 4 not only to protect the owners of the U.S. industry, but also is concerned with the dereva.tive benefits that necessarily flow from the U.S. facilities to their employees and the communities in which they live. The complaint on behalf of the domestic industry, so described, has been properly made in this ca&e. A pri"vate citizen in Carls­ bad, New Mexico, made the complaint with the Treasury Department. Support for his allegations has been given by domestic producers operating solely in the United States, civic-minded U.S. citizens, and public officials where domestic plants and workers. are located. Competitive i:IyPact of LT.FV sales on domestic industry The Commis.sion has established clear Jmecedent, over the 15- year period in which it has had jurisdiction to make "injury" determinations,. that it will assess the effects of LT.FV imporths on a domestic industry by weighing the extent to which such . imports have penetrated U.S. market·s, taken away customers, and depressed market prices. Ailthough other factors may ente:r into consideration, these are the basic factors most often consid:eTeli in past cases. In the case i"nvolv.ing l1l1FV im;port:s of pig iron from East G.ermany, Czechoslovakia, Romania, and the u.s.s.R. (Investigation 5 Nos. AA1921-52, 53, 54, and 55), views were stated (on pages 4-10 of the Tariff Connnission print) as to why injurious LTFV imports from various countries must be considered collectively in weigh- ing the extent of injury caused by a class or kind of merchan- dise. Following such principle, it is appropriate to make this determination that LTFV imports from all three countries named by the Assistant Secretary of the Treasury are causing injury to a domestic industry. In addition, the Connnission has held that an affirmative determination will ensue if the degree of injury is greater than ~ minimis, that is, more than trifling injury. ·with respect to LT.FV sales from Canada, an analysis of average delivered prices of approximately 80 percent of all potassium chloride sales in the United States during the peak sales periods (February) in 1967, 1968, and 1969 shows that the importers of Canadian potassium chloride undersold the domestic producers of potassium chloride at the ratio of 9 sales to 2, or in about 82 percent of the cases. Moreover, such practices of underselling would generally not have occurred had the sales of imports been made at fair-value prices since the margin of dumping Ji at any given time generally exceeded the margin of y The term "margin of dumping" connotes the difference between the Canadian market price (f.o.b. plant) and the price for which the imported product was sold (f .o.b. plant) to an arm's length buyer, or its equivalent. 6 underselling !/ several times. Such underselling has caused a series of incremental price reductions in the U.S. market within the past 2-1/2 years. With respect to LTFV sales from West Gennany and France, the facts are somewhat more difficult to weigh because more variables are present than in the case of imports from Canada. However, analysis of data regarding the prices obtained for domestic, West Gennan, and French potassium chloride sold in recent years in the East Coast port markets which have tradition- ally been served by imports of potassium chloride from West Germany and France shows that their LT.F'V imports have been sold in most cases at prices below the price of the domestic product. This fact becomes clear a~er sales prices in these markets have been adjusted to delivered prices, '3J and after taking due account 1/ The tenn "margin of underselling11 connotes the difference between the price of Canadian potassium chloride and the price of domestic potassium chloride, delivered to the U.S. customer. g/ It has been the practice of the Commission and the customs courts to compare delivered prices of the domestic vs foreign . products in the United States in weighing the effect of LTFV.imports on domestic industries and in determining the applicability of the Antidumping Act to such imports. See Commission determination on Titanium Dioxide from France (Investigation No. AA1921-31) where the Commission weighed the qualities of the domestic and foreign products when comparing their U.S. sales prices. See also the U.S. Customs Court case which involved a·protest against the assessment of a dumping duty on certain imported Canadian flour which was sold in the United States at delivered prices generally higher than the price of domestic flour. The court stated that "Testimony was to the effect that the grade of the Canadian and American flour was practically the same." In commenting further on the situation, it said:· The sales of Canadian-made flour sold in the United States were at higher prices than the American-made flour and thereby entirely destroy the effect of the dumping order of the Secretary of the Treasury or that of the appraiser.