Cumulation of Import Statistics in Injury Investigations before the International Trade Commission

Just as a person who is mugged in a dark alley doesn't know which assailant struck which blow, an ailing domestic producer may not know which country's imports have caused it injury. So reasoned the Tariff Commission, predecessor to the International Trade Commission, in deciding to cumulate the import statistics of different countries when determining injury to a domestic industry in a 1970 antidumping determination. That administrative practice of cumulating import statistics when dealing with multiple-source competition, and possible multiple source injury, to domestic industries, was later codified in the Trade and Tariff Act of 1984. When the Commission cumulates, it combines statistics from all relevant import sources and assesses their combined impact upon the domestic industry. When foreign competition is considered en masse, its impact appears more significant, thereby increasing the likelihood of an affirmative injury determination. This article reviews Commission cumulation practice before and after the 1984 Act. Issues with the statutory language, especially the criterion that the various imports be "subject to investigation," are analyzed. The propriety of using a de minimis analysis is also examined from a number of perspectives. The article concludes with proposals of appropriate conditions for the Commission to cumulate import statistics