Decisions by the World Trade Organization (WTO) Appellate Body rejecting the longstanding U.S. practice of “zeroing,” and the Commerce Department’s resultant alteration of its practice, have raised critical questions for the United States and for domestic industries seeking relief from injurious dumping. To date, the Department’s elimination of its zeroing practice in investigations has severely undermined the ability to demonstrate dumping and has resulted in revocations of a number of orders. The article explores the changes to the U.S. zeroing and targeted dumping practices that have occurred, the decisions by the WTO Appellate Body and the courts leading to those changes, and actions that might be pursued at this point to reinvigorate the U.S. antidumping law.
The article argues that implementation of the WTO Appellate Body decisions rejecting the zeroing practice in investigations have substantially undermined the ability of the U.S. industries to obtain effective relief from injurious dumping. Further, it suggests that serious reconsideration should be given to whether the U.S. will continue to simply comply with these decisions or will accept retaliation, while attempting to renegotiate this issue. If zeroing is not used, Commerce should adopt a targeted dumping methodology that has some teeth or consider possible alternative methodologies, such as use of transaction-to-transaction comparisons. Absent such aggressive actions, the article insists, not only zeroing and targeted dumping but the dumping law itself will soon become a dead letter.