Jouirnl of A,1, rL rderhrrri andJ Apllpe ci -r~'rvyru% .1..kiia1 2N0f.3


in greenhouses onlk RcKpondiJntc to the peti.
tion argued that the domestic like product con-
sists of all tomatoes grow n ifr the ifreh mar-
ket, whcther grown in greenhouses or in the
field. In its evaluation of like product, the [TC
considered ph%.ii.l characteristics and uses;
i[ncrchanc'abil[lyv channels of dir-ihutirn.
common production facilities. prr.Cec,, and
employees: and price. In considering these
flctr.-r the Commissioners dei acting this case
crmin.liteid. "Except with reCard to manufac-
iuring facilities. processes, and employees,
there is iub'arii.il overlap between green
house and ieLI tomatoes w ih respect to the
like product factors" (ITC 2002. p. 91. The
ITC rccr~rdl its earlier definlnll.n of the do-
mestic like product as !.wing only greenhouse
tomatoes and r.%p.uided the scope to include
all fresh tomatoes h1hcher grown in green-
house or in fields.
 Commissioner Lynn Bragg dissented from
the miaiorily view, irt arguing that the do-
mestic like product included only greenhouse-
grown tomatoes (ITC 2011. p. l3i. Brag g.
.argLulnrrn noted that three-quarters of pLI hd.-
ers contirned that grcenhulu.et and field-groin
tomatoes are not inruerhangeable. She also
noted the dirtinct prodlucIion tmliltic'. pri'-
cesses. and employccs; unique channels of dis-
nbutlon. different characteristics and uses;
producer and consumer pcrccptions inJ~i.,itin
no inicrchangcibiliL y and premium prices for
6rcetnhoue tomatoes.
 The tilnl view by the ITC of whether or
not injury had occurred was driven by the de-
iermin.ili.n on domestic like prodnut Imports
of Caniadian greenhoule-ro.u n tomatoes rep-
resented only 4 .6 of the U.S. market for all
fresh market tomatoes in calendar year 2tiH).
whereas greenhouc-grown tomatoes friom
Canada represented 4-.7% -l' the U.S. market
for grccrih',I e gro%' n tomatoes. The mijijori
in this case ruled that the ',luiie and the in-
crase in ~uOiuine of object imports were not
significant in absolute terms or relative to total
Ireh tomato production or consumption in the
United States and, rtherclore had no si nifiiant
adverse effect on the domestic fresh tomato
industry. Commissioner Bragg's more narrow
derlrnition of the industry found the volume


and increase in volume to be .Eignicanlt caus-
inI' "'SignSfi1ant price supprcs.ion and depres-
sion in the U.S. market even as apparent U.S.
consumption of greenlhous.e tomatoes in-
%re1.te'd dr.AM.lically" (ITC 20(12. p. 38).

Making Sensi of It All?

U.S. IaniduilupinF law is intended to ensure
fair trade by offsetting market distortions
caused by foreign gtcnintemlCil or foreign
producers. Specifically, it targets price dis-
crimination and sales below cost of produc-
tion, imposing extra duties on got>l, from a
particular country or group of countries if
two i.,litiiion. are met. First, it must be dem-
onstrated that the subject merchandise is be-
ing sold in the U.S. market at LTFV. Second,
the imports in question must be i.iaing. or
ihreaecning to cause, material injury to do-
mestic producers of a like product. The laws
have been criticized because "in actual prac-
tice. the methods of determining dumping un-
der the law r;iil. repeatedly and at multiple
levels, to dlliinguish between normal com-
mercial pricing pra;lice' and ihose that reflect
Lgo -rnineil-caused market distortions"
i I.imiJse. p. 19). It might be f.t.- to criticize
the definition of dumping when considering
ag.n0uilirilr products, given the seasonal and
c-clic.jl nature of the industries. It is not in-
frLILILnti that. producers sell iheii product at
prices below the cost of produicion. but the
expectation over the product cycle is that
those losses will be offset by profits realized
at different pIIInT nf the market season or cy-
cle. VW ilhlul that expectation, no form of eco-
nomic model can j%-'ily the practice.
 A common measure of dumping used in
 agriculTural cases is the constructed value
 cost of production measure. This is used after
 the DOC in.estigdtor determine that home
 market sales over the period of investigation
 are in sufficient volume below cost l' pro-
 duction that recovery of all costs cannot be
 achieved within a reasonable time frarme It
 seems only reasonable that producers w il ra-
 iinall make prildultion decisions on the
 premise that illt will return a normal profit
 over the long run-. hatl might keep those