result of discriminations practiced by any country against the United States, the products of that industry are, moreover, liable to be subjected to additional import duties.

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"Foreign country" is defined to mean: Any empire, country, dominion, colony, or protectorate, or any subdivision . . . thereof . . within which separate tariff rates or separate regulations of commerce are enforced."

Even the most careful reading of Section 317, followed by a brief summarizing statement of its essential provisions, is not likely to make evident the full purport of its meaning. A survey that shall refer to related legislation, as well as to many facts of the existing commercial world, immediately appears to be an indispensable supplement to textual study. Questions in regard to the methods to be used in administering the section, to the definitions to be placed on expressions like "the public interest ", "discrimination" and "in fact", when used in its text, and to the relation between Section 317 and other portions of the Act of which it is a part, are among those that come forward promptly, each seeking an answer. The following paragraphs represent an effort to discover the correct explanations.

2. THE AGENCY OF ADMINISTRATION

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Turning back to the text of Section 317, it is noted that by subdivision (g) the duty is placed upon the United States Tariff Commission "to ascertain and at all times to be informed whether any of the discriminations against the commerce of the United States" referred to in the section, practiced by any country". In case discriminatory acts are disclosed it is the duty of the Commission "to bring the matter to the attention of the President, together with recommendations."

The Revenue Act of 1916, under which the Tariff Commission was created, provides

That the commission shall have power to investigate the tariff relations between the United States and foreign countries, commercial treaties, preferential provisions, economic alliances, the effect of export bounties and preferential transportation rates, the volume of importations compared with domestic production and consumption, and conditions, causes, and effects relating to competition of foreign industries with those of the United States, including dumping and cost of production.1

In response to this enumeration of investigatory functions the Tariff Commission had, prior to the passage of the Tariff Act of 1922, collected a large quantity of data upon the subject of discriminatory customs practices, much of which material it had published in voluminous handbooks for the use of Congress and the public. Since the Act became effective these investigations have been continued and directed to the specific problem of Section 317. A questionnaire was prepared and sent to more than a thousand American business men engaged in the export trade, the text of which was, in part, as follows:

have you reason to believe that any foreign country discriminates in any way, directly or indirectly, against American products in such a manner as to place your export trade in these products at a disadvantage in competition with similar or competing articles from other foreign countries? Describe fully the discrimination of which you complain.

Describe fully the effects of the discrimination. Does it exclude your American products, or only restrict their sales in the foreign market? In either case to what extent might you reasonably expect to extend your sales of the articles in question in that particular market if the discrimination were removed? State the facts showing the reasonableness of your estimate, basing it, if possible, on sales of your articles under

1An Act to increase revenue, and for other purposes, approved Sept. 8, 1916, sec. 704. The laws relating to the Commission were published by it in a separate pamphlet in 1922.

similar conditions in countries where there are no such discriminations against them.

State any other facts which in your opinion should be considered by the Commission as affecting equal treatment of American trade in foreign countries.

1

Information of a similar character has also been collected through agents in every country in the world and indicates, as might have been expected, a prevailing equality of treatment; but it also contains evidence of numerous unequal impositions upon the commerce of the United States. These inequalities result not only from highly-developed national and imperial policies, but from a variety of incidental or even accidental practices. They are in some cases overt, in others more or less concealed by the letter or language of statutes and administrative decrees. Upon the Tariff Commission devolved the task of digesting available data upon the subject and of making appropriate recommendations to the President. During 1923 the Commission submitted reports covering discriminations in France, Finland and certain other countries.2

By Section 318 of the Tariff Act of 1922 the powers and functions of the Tariff Commission are enlarged with a view to the administration of the provisions of the act which set forth the Flexible Tariff Policy, of which policy Section 317, although distinct in itself, is a component part; no specific mention is made, however, of the finding of discriminations against American commerce. On October 7, 1922, the President signed the following Executive Order:

It is ordered, that all requests, applications, or petitions for action or relief under the provisions of Sections 315, 316, and 317 of Title III of the Tariff Act approved September 21,

'This information is available in the Foreign Tariff Files of the Department of Commerce.

'The Journal of Commerce (New York), Oct. 11, 1923.

1922, shall be filed with or referred to the United States Tariff Commission for consideration and for such investigation as shall be in accordance with law and the public interest, under rules and regulations to be prescribed by such Commission.1

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3. WHAT IS A DISCRIMINATION "?

In a carefully prepared address upon the administrative features of the pending tariff bill, Senator Smoot explained at length the proposed Flexible Tariff Policy, reaching the conclusion that "the elastic tariff provisions provided effective protection against discriminations for American overseas commerce.” 2

The Tariff Commission, in formulating its policy and making its recommendations under Section 317, may be presumed to have laid down full and clear definitions of the expressions, contained in the law, which limit the application of the authorized defensive duties. Perhaps the most important problem arising in this connection, and certainly the immediately obvious one, is concerned with the meaning of the phrases" unreasonable charge, exaction, regulation, or limitation which is not equally enforced upon the like articles of every foreign country" and "discriminates in fact against the commerce of the United States . . . in such manner as to place the commerce of the United States at a disadvantage compared with the commerce of any foreign country." In other words, the definition of "discrimination", within the meaning of Section 317, is an essential question-and one not without difficulties. Experience has shown that an extensive margin exists between practices that are clearly consistent with strict equality of treatment and practices that are clearly discriminatory.

'Executive Order (No. 3746) as officially published. In regard to the rules of procedure issued by the Tariff Commission, see infra, subdivision 10, following (b).

'Congressional Record, vol. 62, pt. vi, 67th Congress, 2d Session, p. 5879, April 24, 1922.

In the statement made by the House Managers to accompany the report of the Conference Committee on the tariff bills of the House and the Senate, occurs the following:

The Senate amendment inserts a new section giving the President discretionary powers to impose additional duties or prohibition upon imports from any country discriminating against the overseas commerce of the United States.

This section follows the precedent established by a maximum and minimum provision of the Payne-Aldrich Act, which had for its purpose the obtaining of equality of treatment for American overseas commerce. The Senate amendment, however, is more flexible than the provision of the Payne-Aldrich Act and is designed to reach every form of discrimination, direct or indirect, whereby American commerce is placed at a disadvantage as compared with the commerce of any foreign country.1

Attention is called particularly to the statement that the language employed "is designed to reach every form of discrimination, direct or indirect." It was evidently expected that a very broad and inclusive definition of "discrimination" would be used by the administrative officers of the Government in interpreting and enforcing the law.

This impression is confirmed by an examination of the text of the Act. In subdivision (a) the additional duties are made applicable when another country imposes any unreasonable charge on a product of this country which is not equally enforced upon the like articles of every foreign country; and also when another country discriminates in fact against the commerce of the United States.

Such language seems to indicate that legalistic distinctions of all kinds are to be ignored and that the defensive

'Italics not in original. Congressional Record, vol. 62, pt. xii, p. 12490, 67th Congress, 2d Session. The use of the word "overseas" is evidently accidental as the section applies to all commerce with other countries.