Washington AA1921-637 WHOLE DRIED EGGS FROM HOLLAND Determination of Injury On May 1, 1970, the Tariff Commission was advised by the Assistant Secretary of the Treasury that whole dried eggs from Holland are being, and are likely to be, sold at less than fair value within the meaning of the Antidumping Act, 1921, as amended. In accordance with the requirements of section 201(a) of the Antidumping Act (19 U.S.C. 160(a)), the Tariff Commission on the same date instituted investigation No. AA1921-63 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. A public hearing was held on June 9, 1970. Notice of the investigation and hearing was published in the Federal Register of May 6, 1970 (35 F.R. 7156). In arriving at a determination in this case, the Commission gave due consideration to all written submissions from interested parties, evidence adduced at the hearing, and all factual information obtained by the Commission's staff from questionnaires, personal interviews, and other sources. On the basis of the investigation, the Commission has determined that an industry in the United States is being injured by reason of the importation of whole dried eggs from Holland sold, or likely to be sold, at less than fair value within the meaning of the Antidumping Act, 1921, as amended. 1/ Statement of Reasons for Affirmative Determination by Commissioners Clubb and Moore We find that a domestic industry is being injured and is threatened with future injury as a result of the importation of whole dried eggs from Holland at less than fair value, and accordingly, antidumping duties must be collected in the future. The reasons for this finding are set out below. In order for dumping duties to be applied, the statute requires that there must be a finding of (1) sales at less than fair value and (2) resulting injury to an industry in the United States. 2/ The Secretary of the 1/ Commissioners Clubb and Moore determined there was injury and Commissioners Sutton and Leonard determined there was no injury. Pursuant to section 201(a) of the Antidumping Act, the Commission is deemed to have made an affirmative determination when the Commissioners voting are equally divided. 2/ The Antidumping Act provides in pertinent part as follows: "Whenever the Secretary of the Treasury. . .determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States or elsewhere at less than its fair value, he shall so advise the United States Tariff Commission, and the said Commission shall determine within three months thereafter whether an industry in the United States is being or is likely to be injured. . .by reason of the importation of such merchandise Treasury has already found that whole dried eggs from Holland are being imported at less than fair value, and this finding is binding on us here. Accordingly, the only issue before us is whether the sales at less than fair value have caused injury, or are threatening injury, to an industry in the United States. In earlier cases it has been pointed out that the injury requirement was included in the Antidumping Act for administrative reasons, and that the amount of injury required to trigger the statute in any case must be viewed with that purpose in mind. 3/ Accordingly, the Commission has ruled that the injury requirement of the Antidumping Act is satisfied by a showing of anything more than a trivial or inconsequential effect on the domestic industry: Cast Iron Soil Pipe from Poland (AA1921-50, Sept. 1967); Pig Iron from East Germany, Czechoslovakia, Romania and the U.S.S.R. (AA1921-52, 53, 54 and 55, Sept. 1968). 3/ For example, in Cast Iron Soil Pipe it was observed that, In order to relieve the Customs Bureau of the necessity of examining every importation for possible violation, the injury test was included. Congress thus made clear that it did not intend that every import sold at less than fair value should be subjected to dumping duties. If a competitive article is not produced in the United States, or if the imported article competes only peripherally in the same geographic or product market, Congress has provided for the consumer to benefit from the lower prices, rather than the domestic producer from peripheral protection. But where the competition is direct, and the price is unfair, Congress has insisted that the dumping duties be imposed. Cast Iron Soil Pipe from Poland, AA 1921-50 (Sept. 1967), pp. 18-19, (concurring opinion). The question before us in this case, therefore, is whether the imports of whole dried eggs from Holland at less than fair value are having more than a trivial or inconsequential effect on a domestic industry. It appears to us that they are. Whole dried eggs are produced almost as a by-product of egg processing. When shell eggs arrive at a processing plant, other uses such as fresh shell eggs, liquid eggs, frozen eggs, dried egg albumen and yolks are filled first. Those eggs which are injured in such processing or which are left over are further processed into whole dried eggs. These whole dried eggs are used principally by bakeries in biscuits, rolls, cookies and candy and by the premix industry in cake, pie, pancake, waffle and doughnut mixes. They are also used by producers of noodles, mayonnaise and breadings such as those used for frying chickens. The United States market for whole dried eggs is supplied by twenty domestic egg processing firms and by imports. Since there are differences between the high quality domestically-produced product and the somewhat lower quality Dutch whole dried eggs, they cannot always be used for the same purpose, but are interchangeable for many uses, notably noodles, bakery products and certain mixes. They are not interchangeable for |