After the Canadian International Trade Tribunal (CITT) issues a final anti-dumping order, it will be in place for 5 years or even longer. The longest anti-dumping order against whole potatoes from the United States has been in place for over 30 years. We often get asked whether there is any mechanism in Canadian law to end collection of anti-dumping duties against specific goods. While there are few options available in Canadian law, one option that has been used successfully where the Canadian domestic industry does not manufacture the good is an interim review.
Canada’s Current Anti-dumping Orders (as at July 31, 2016)
Currently, Canada imposes anti-dumping duties against aluminum extrusions (China), carbon and alloy steel line pipe (China), carbon steel large line pipe (China, Japan), carbon steel plate (Brazil, Bulgaria, Czech Republic, China, Denmark, Indonesia, Italy, Japan, Korea, Romania, Ukraine), carbon steel welded pipe (China, Chinese Taipei, the Republic of India, the Sultanate of Oman, the Republic of Korea, Thailand and the United Arab Emirates), concrete reinforcing bar (China, Korea, Turkey), copper pipe fittings (China, Korea, USA), copper tube (Brazil, China, Greece, Korea and Mexico), carbon steel screws (China, Taiwan), greenhouse bell peppers (Netherlands), hollow structural sections (Korea, Turkey), flat, hot-rolled carbon steel sheet and strip (Brazil, China, India, Taiwan, Ukraine), liquid dielectic transformers (Korea), oil country tubular goods (China, India, Indonesia, Korea, Philippines, Taiwan, Thailand, Turkey, Ukraine, Vietnam), Photovoltaic modules and laminates (China), piling pipe (China), pup joints (China), refined sugar (Denmark, Germany, Netherlands, UK, USA), seamless casing (China), silicon metal (China), stainless steel sinks (China), steel grating (China), thermoelectric containers (China), unitized wall modules (China), and whole potatoes (USA).
Our guess is that there are opportunities out there for importers to request interim reviews of many of the current CITT Orders. For example, if the domestic producers do not manufacture certain types of carbon steel screws, it may be possible to obtain a product exclusion by taking advantage of the interim procedures.
What is an Interim Review?
An interim review is a proceeding before the CITT – see the CITT Guidelines on Interim Reviews. Interim reviews are most commonly requested by importers (sometimes by exporters), sometimes by domestic producers and rarely by end users. Under section 76.01 of the Special Import Measures Act, the CITT has the statutory authority to conduct an interim review a finding of injury, threat of injury or retardation, or an order continuing such a finding pursuant to an expiry review, in whole or in part, at any time between the making of the finding or order and the 5 year expiry review date. At the conclusion of an interim review, the CITT may continue the finding or order, or rescind it or any aspect of it (including making an additional product exclusion).
There are three phases to the CITT’s interim review process. First, the requester must file a properly documented request for an interim review. Pursuant to Rule 70 of the Canadian International Trade Tribunal Rules (a regulation), a request for an interim review shall be filed with the Registrar of the CITT and shall set out the following information:
(a) the name, address for service, telephone number and fax number, if any, of the person making the request and of their counsel, if any;
(b) the nature of their interest in the order or finding;
(c) the grounds on which the person believes initiation of the review is warranted and a statement of the facts on which the grounds are based; and
(d) the nature of the order or finding that the person believes the Tribunal should make under subsection 76.01(5) or 76.02(4) of the Special Import Measures Act on completion of the review.
The Tribunal may correspond with the requester until the appropriate and necessary information has been filed.
The next step in the process is that the CITT will ask interested parties (usually the parties who participated in the latest inquiry or expiry review) whether an interim review is warranted. Parties are given the opportunity to make submissions to the CITT. The requester is given the opportunity to reply to any submissions that are filed.
If the CITT decides that an interim review is warranted, an interim review is commenced. The Tribunal will establish the process on whether an anti-dumping order should be rescinded in whole or in part. Usually, parties are given the opportunity to make submissions. The Tribunal may proceed by way of a paper process or may hold a hearing.
In the past, the CITT has granted product exclusions pursuant to the interim review process. Looking back over the last 20 years, it has happened on a number of occasions and 2002-2004 was a peak period:
- Hot-Rolled Carbon Steel Sheet and Strip – RD-2002-003
- Stainless Steel Round Bar – RD-2002-004
- Refrigerators, Dishwashers and Dryers – RD-2002-005
- Hot-Rolled Carbon Steel Plate – RD-2002-006
- Hot-Rolled Carbon Steel Plate – RD-2002-007
- Hot-Rolled Carbon Steel Plate – RD-2002-008
- Stainless Steel Round Bar – RD-2003-001
- Stainless Steel Round Bar – RD-2004-001
- Hot-Rolled Carbon Steel Plate – RD-2004-002
- Stainless Steel Round Bar – RD-2004-003
- Stainless Steel Round Bar – RD-2004-004
- Stainless Steel Round Bar – RD-2004-005
- Stainless Steel Round Bar – RD-2004-006
- Stainless Steel Round Bar – RD-2004-007
- Fasteners – RD-2006-005
- Waterproof Footwear and Bottoms – RD-2009-003
All these cases had one thing in common, the requester could show that the domestic producer(s) no longer manufactured the goods subject to the interim review request. In many of these cases, the domestic industry admitted that they no longer manufactured the good and even consented to the request. In other cases, where the domestic industry could show they continued to manufacture the goods at issue, the interim review request was denied often at the commencement phase).
If an importer wishes the CITT to conduct an interim review, they should seek the requested goods from the domestic producers and obtain rejections (that is, evidence that the domestic industry cannot or will not produce the goods in question). The CITT wants the requester to have such evidence from most, if not all, of the domestic producers. During the commencement phase, the CITT will be contacting the known domestic producers – so, it is best to ask before the CITT does.
The CITT will be more willing to conduct an interim review and allow a product exclusion if the requester has done sufficient homework.