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

Within 75 days of making the preliminary determination, the ITA makes a final determination of whether the subject merchandise is being sold at less than fair value.11 If this finding is affirmative, the ITC makes its final determination regarding material injury either within 120 days of the ITA's preliminary determination or within 45 days of the ITA's final determination.12 If the final determination is affirmative, the ITA establishes a rate for each individual exporter as well as an "all-others" rate and orders CBP to continue suspension of liquidation and collection of a cash deposit or bond at the final rate.13 This rate and procedure may be reviewed each year upon request by individual exporters, but it generally will not change significantly until it reaches its fifth year sunset provision.

V. PROTECTION FOR INADVERTENTLY AFFECTED EXPORTERS

The NSR is a remedy that many exporters take advantage of in order to receive expedited processing of their request for relief from duties and a bonding privilege. It is intended to promote economic development and fair trade by permitting certain companies, upon meeting specific guidelines, to avoid antidumping duties charged on like products from their country of export. The WTO allows any exporter of a particular commodity from a country in which that commodity is subject to an antidumping duty at its intended destination market and that did not export any of that commodity during the dumping investigation period of review to request an exemption from the order and to seek duty-free entry of their merchandise. The exemption is to protect first-time exporters, small businesses, and other companies that were unintentionally swallowed up in the grand scope of the antidumping order and that are being penalized for a trade violation they did not necessarily commit. With this exemption, the WTO is able to facilitate equal trade by substantially increasing the export costs for violators of dumping rules while maintaining reduced rates or duty-free entry of goods for non-violators. All parties seemingly get what they deserve.

VI. MAINTAINING ACCESS TO THE U.S. MARKET

In order to protect the growth of small business or to relieve newcomers to an industry that did not engage in dumping during the investigation by Commerce, the NSR provides an expedited review process to establish an individual duty rate (usually 0% for legitimate new shippers) and to permit importation into the United States without a cash deposit. The company need not be a "new" shipper per se, but must not have exported during the Period of Review (POR) of the applicable antidumping investigation.

This POR is the period in which Commerce attempts to identify shipments of the goods under investigation from the target country. During the investigation, all merchandise within the scope of the investigation is suspended from liquidation, meaning that CBP will not send final bills to importers until otherwise instructed by Commerce. Once its thorough research is complete, if the final results of its investigation are affirmative for dumping, a rate is established at which all exporters of the subject merchandise from the subject country must pay in cash upon importation to the United States. Commerce publishes the rate in the Federal Register and instructs CBP to liquidate all suspended shipments at the newly established rate.14 All further imports of subject merchandise are subject to a cash deposit at the newly established rate.