| | Maui Pineapple Company, Ltd.
Kahului, Hawaii 96733
February 2, 2007
Committee on Ways and Means
The United States House of Representatives
1102 Longworth H.O.B.
Washington, D.C. 20515
Dear
Sir/Madam:
On behalf of Maui Pineapple Company,
Ltd., we hereby respond to the January 31, 2007 Advisory from the Committee on
Ways and Means soliciting comments, by February 7, 2007, on the Commerce
Department’s proposed modification to its calculation of weighted-average
dumping margins in antidumping investigations. Congress should vigorously
oppose the Commerce Department’s decision to end its long-standing practice of
“zeroing,” which will eviscerate the principal tool available to U.S. manufacturers and producers to combat unfair trade practices.
The Commerce Department, on December
27, 2006, notified Congress that it would implement the World Trade
Organization’s Appellate Body ruling banning Commerce’s practice of “zeroing.”
The Commerce Department stated that it would, effective February 22, 2007,
begin to offset positive dumping margins (sales that were not dumped) against
sales with negative dumping margins (sales that were dumped), when calculating
the weighted-average dumping margin in antidumping investigations. In other
words, Commerce will no longer set positive dumping margins to “zero” when
calculating overall margins of dumping. The effect of this change to U.S. law will be to reduce generally and/or eliminate margins of dumping in investigations,
and to mask or eliminate dumped sales by foreign exporters.
Congress must oppose the Commerce’s
Department’s inappropriate concession on this issue. First, Congress has given
the Administration explicit instructions in the context of the Doha Round of trade
negotiations to defend the practice of zeroing; those negotiations are ongoing.
Second, Congress, not Commerce, is the proper body for making laws. For many
years, the Commerce Department argued before the Courts that it was statutorily
required to zero in investigations. While the Courts have stated that
Commerce has some discretion in this matter, Commerce changed its view only
when it became apparent that the WTO intended to ban improperly the practice of
zeroing. The Department should not alter course because of an adverse WTO
ruling that fails to address significant evidentiary findings by the lower panel,
relies on novel findings by reference to evidence not before the Appellate Body,
and that exceeds the Appellate Body’s authority.
Additionally, in May 9, 2006 comments
filed at the WTO, the Administration noted “disturbing” aspects of the WTO ruling,
including that (1) it would be “extraordinary” for Members to have negotiated
specific language in the Antidumping Agreement now rendered superfluous by the Appellate
Body ruling; (2) the Appellate Body’s finding that dumping should be measured
for “the product as a whole” reverses 47 years of WTO jurisprudence finding
that dumping should be measured “in respect of each single importation of the
product;” and (3) that the ruling banning the practice of zeroing was never
agreed to by Member States in the Uruguay Round or previous trade agreement
negotiations.
Congress is empowered to make U.S. laws, not the WTO. Commerce’s reversal of its long-standing practice of zeroing is
tantamount to yielding that authority to others. As such, Congress should require
the Commerce Department to continue its zeroing practice when calculating
antidumping duty margins in investigations.
Sincerely,
Brian C. Nishida
President & CEO
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