Foreign producers and exporters who receive a de minimis dumping margin (2% or less) in a Canadian antidumping case are now being excluded from final injury orders (that is, final orders for the imposition of antidumping duties). What this means is that any foreign producer or exporter who priced at undumped levels (above domestic selling prices and above cost of production + GSA + reasonable profit) should fully participate in the Canada Border Services Agency (“CBSA”) preliminary determination of dumping and final determination of dumping processes. Foreign producers and exporters can be rewarded for completing the CBSA’s Exporter Request for Information and answering all supplemental requests for information (and permitting an on-site verification). A 0% dumping margin and exclusion from a final order can mean continued business with Canadian importers and likely new customers in Canada. In other words, participating in a CBSA dumping investigation can open new doors for business is goods where properly priced during the period of investigation. All that is needed is hard work proving to the CBSA that the goods were priced properly and in accordance with antidumping laws.
The Canadian International Trade Tribunal (the “CITT”) recently excluded three exporters from final antidumping orders based on their receipt of de minimis dumping margins calculated by the CBSA. The exporters participated fully in the CBSA process and acheived good results. In Certain Concrete Reinforcing Bar, NQ-2016-003, the CITT made the following Finding:
“…[t]he Canadian International Trade Tribunal hereby finds, pursuant to subsection 43(1) of the Special Import Measures Act, that the dumping of the above-mentioned goods originating in or exported from the Republic of Belarus, Chinese Taipei (excluding those goods exported by Feng Hsin Steel Co., Ltd.), the Hong Kong Special Administrative Region of the People’s Republic of China, Japan, the Portuguese Republic and the Kingdom of Spain has caused injury to the domestic industry.”
In Certain Fabricated Industrial Steel Components, NQ-2016-004, the CITT made the following Finding:
“…[t]he Canadian International Trade Tribunal hereby finds, pursuant to subsection 43(1) of the Special Import Measures Act, that the dumping of the above-mentioned goods originating in or exported from the People’s Republic of China, the Republic of Korea (excluding those goods exported by Hanmaek Heavy Industries Co., Ltd.) and the Kingdom of Spain (excluding those goods exported by Cintasa, S.A.), and the subsidizing of the above-mentioned goods from the People’s Republic of China, have caused injury to the domestic industry.”
Feng Hsin Steel Co., Ltd., and Cintasa S.A. received a 0% dumping margin during the CBSA dumping investigations. In the spirit of full disclosure, we acted for Cintasa S.A.. Hanmaek Heavy Industries Co., Ltd. received a de minimis dumping margin during the CBSA dumping investigation.
In the CITT Reasons in Certain Concrete Reinforcing Bar, the Tribunal used its discretionary authority in subsection 43(1) of the Special Import Measures Act (“SIMA”) to grant the exclusion. The Tribunal stated:
“In the past, the Tribunal has refused to grant producer exclusions for non-dumping exporters solely on the basis that this would allow the exporter a “license to dump” in the future. However, the recent WTO decision in Canada-Welded Pipe concluded that, inter alia, article 5.8 of the Anti-dumping Agreement required the termination of an investigation in respect of exporters with individual de minimis margins of dumping. …
In the present case, the Tribunal’s finding that the dumping of the subject goods has caused injury to the domestic industry cannot include the subject goods exported by Feng Hsin given that it has been found to have not been dumping by the CBSA. In such circumstances, the WTO Anti-dumping Agreement requires termination in relation to Feng Hsin.
Accordingly, in these circumstances, the Tribunal finds it appropriate to exercise discretion to effectively terminate the present proceedings with respect to Feng Hsin’s goods …”
The CITT will issue Reasons in Certain Fabricated Industrial Steel Components on June 9, 2017 and it is expected that similar language will be provided in respect of the exporter exclusions granted for Cintasa S.A. and Hanmaek Heavy Industries Co. Ltd.,
It is important to note that in the 2017 Federal Budget, the Government of Canada announced changes to SIMA so that the CBSA would terminate antidumping proceedings against exporters who achieve 0% or de minimis dumping margins during the investigation. Legislative provisions have been included in Bill C-44 “An Act to implement certain provisions of the budget tabled in Parliament on March 22, 2017 and other measures” (known as “Budget Implementation Act, 2017, No. 1″). The amendments to SIMA are in sections 68 – 102 of Bill C-44. The amendments granting the President of the CBSA power to terminate a proceeding are at section 79:
- Top 10 Mistakes Made By Exporters When Completing Antidumping Requests For Information
- Top 10 Mistakes Made By Foreign Producers/Exporters When Completing CBSA Subsidy RFIs
- CBSA Has Revised The D-Memorandum on the Antidumping/Countervailing Duty Re-Determination Process
- Who is the Exporter For SIMA Purposes?