The Retroactive Application of the Antidumping Act of 1921
Recommended Citation
Thomas E. Johnson, The Retroactive Application of the Antidumping Act of
The R etroactive Application of the Antidumping Act of 1921
as E. Johnson 0 1
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The Retroactive Application of the
Antidumping Act of 1921
Thomas E. Johnson*
In 1921, the United States Congress enacted the Antidumping Act
which providesfor the imposition of dumping duties on imports sold to
United States merchants atprices below theirfair value. The Act permits
the assessment of dumping duties retroactivelyon merchandise importedup
to one hundredand twenty days before a complaint of dumping has been
filed with the Commissionerof Customs. Mr. Johnsonexamines the
retroactiveprovisions of the Act and its regulations,the case law surroundingthose
provisions, and the constitutionality of the provisions. Against this
background,he concludes that the retroactiveapplicationof the Act, particularly
with regardto theperiodpriorto the withholding ofappraisement,is not only
unfairto importersand inconsistent with U.S.free tradepolicy, but also in
violation of the dueprocessand equalprotectionclauses of the U.S.
Constitution.
Not until the last ten years has the Antidumping Act of 19211 been
so thoroughly studied, applied, and criticized by any legal practitioner
other than the customs specialist. Today the general corporate
practitioner has found the application of provisions in the Act to be
invaluable in accomplishing the goals of corporate clients who seek more
sophisticated means to deter foreign competition. Complaints by
American businessmen of violations under the Act tend to increase as
American productivity drops, United States sensitivity to domestic
profit margins increases, and the portion of the United States market
controlled by foreign producers grows. 2 Because the Act permits a
finding of dumping under a wide range of divergent facts and
circumstances, 3 enforcement of the Act is susceptible to political and
eco* Presently associated with Baker & McKenzie, Chicago, Illinois; member, Illinois Bar; B.S.,
Univ. of Utah; J.D., Northwestern University.
1 19 U.S.C. §§ 160-173 (1976).
2 "Customs in 1975 was investigating, administering, and monitoring approximately 75 cases.
By July of this year (1978), the case load was up to 129 cases, a 72 percent increase." United
States-Japan Trade Council, Council Report No. 44 (October 3, 1978) [hereinafter cited as
Council Report No. 44]. See also note 10 infra.
3 See, e.g., 19 C.F.R. § 153.9 (1978) which provides that "reasonable allowances will be made
Retroactive 4pplication of the Antidumping Act
1:262(1979)
nomic influences not common to other laws. The sometimes haphazard
enforcement of the Act has led U.S. trading partners to charge that the
Act constitutes a substantial non-tariff barrier to trade with the United
4
States.
The difficulties inherent in the interpretation and enforcement of
the Act have been addressed by numerous commentators.5 While some
improvements have been made, one area that remains in distress is the
retroactive application of the Act. Within our own country,
retroactivity is offensive to basic notions of fair play and due process as
guaranteed by the United States Constitution.6 Outside of the United States,
the application of the Act in a retroactive manner continually draws
criticism from the world trading community.7 As United States courts
have held on numerous occasions that dumping duties are remedial
for the differences in quantities [of sale], including such differences in individual sales, f it is
established to the satisfaction of the Secretary [of the Treasury] that the amount of any price
differential is wholly or partly due to such differences." (Emphasis added). See also 19 C.F.R. §
153.10 (1978)(discretionary allowances for credit terms, guarantees, warranties, technical
assistance, servicing, assumption by a seller of a purchaser's advertising or other selling costs, and
commissions); id § 153.11 (allowances for differences in merchandise); id§ 153.15 (allowances for
differences in level of trade); id § 153.16 (determination of fair value for sales at varying prices).
4 See, e.g., FIRST REPORT BY THE COMMITTEE ON ANTIDUMPING PRACTICES, 8th Supp.,
BISD 145, 11 19, 23 (1960); SECOND REPORT BY THE COMMITTEE ON ANTIDUMPING PRACTICES,
9th Supp. BISD 194, T 9 (1961); FOURTH REPORT BY THE COMMITTEE ON ANTIDUMPING
PRACTICES, 19th Supp. BISD 15, 11 (1972); FIFTH REPORT BY THE COMMITTEE ON ANTI (...truncated)