PROMOTING INTERNATIONAL BUSINESS DEVELOPMENT WHILE PROTECTING DOMESTIC MARKETS: AN ANALYSIS OF THE NEW SHIPPER REVIEW POLICY OF THE UNITED STATES

Georgetown Journal of International Law, Winter 2005 by Fandl, Kevin J

These certifications need not contain extensive evidence in order to satisfy the requirements for the initiation of an NSR and can easily be fabricated. The typical review prior to the initiation of an NSR takes only about 30 days.52 After the point of initiation, the bonding privilege begins. In many other countries, the documentation required is very extensive and would be difficult for a fraudulent exporter to supply.

If Commerce were to amend the regulations to specify the additional supporting evidence required prior to the initiation of an NSR and include some additional time to provide serious consideration of the validity of that evidence, it is quite likely that the loophole for fraudulent exporters will close substantially, if not completely. A representative from the European Union discussing the European Union's new exporter process specified that: "There is not much possibility for fraud [in the European Union]. If the information provided by the applicant turns out to be false, no review is initiated."53

Solutions involving additional restrictions or the revocation of the new shipper regulations in order to protect domestic industry should be dismissed as trade-inhibitive protectionist measures. Instead, Commerce must adopt revised regulations that continue to encourage the use of the NSR by legitimate exporters that should not have been shut out of the U.S. market by the broad dumping order, while discouraging abuse of this policy by illegitimate companies. Fostering trade growth and business development, especially in developing countries, will have a long-term positive effect on both the U.S. and global economies. Simple revisions of the new shipper regulations will foster the achievement of this goal.

X. CONCLUSION

Fair and equitable trade is the goal of the rules set forth in the GATT and the WTO. The starting point for all discussions should be whether fair market access is being provided to member States. If it is, a member State may avail itself of the protective mechanisms within the WTO to ensure that its own markets are not injured as a result of unfair export practices by other member States.

The new shipper policies discussed in this Article exist to protect companies that are swept under broad antidumping orders. Remedying the loophole in this policy should not act as a solution to the detrimental effects of dumping and of antidumping orders generally. Antidumping duties give breathing room to domestic firms that would otherwise be stunted or injured by intentionally damaging exports by another member State. But to remedy the trade imbalance, we must ask why this imbalance exists. Are exporters, especially those from China, being given equal and fair access to U.S. markets? Are frivolous investigations being initiated by U.S. firms to reap payments under the Byrd Amendment or to stifle global competition? Is China adhering to its commitments to fair trade under the WTO Agreement?

Unfair trade hurts all parties involved and only results in profits on a temporary basis. Market imbalance caused by dumping from one or more firms affects the ability of other firms to enter the market, which reduces competition and may raise overall prices. When dumping exists, consumers may experience a temporary reduction in prices of the dumped goods they unwittingly buy; however, without equal access for domestic and foreign competitors to the U.S. market, lack of competition will drive prices even higher.