Copyright 2011, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on International Trade & Investment–China Focus, February 2011
The People's Republic of China (PRC) typically has been a target of Canadian manufacturers who complain that Chinese exporters are selling "dumped" or "subsidized" goods into Canada, thereby causing "material injury" to Canada's domestic industries. There was a marked decline in the number of new complaints against Chinese exporters in 2010. However, there were several re-investigations and reviews of existing findings. This article discusses the proceedings involving Chinese exports which were initiated, reviewed or concluded in Canada over the course of 2010. Chinese exporters may want to remain mindful of the duties that have been imposed on certain exports from the PRC because these additional duties can significantly add to the costs of doing business in Canada.
DUMPING AND SUBSIDY FINDINGS IN 2010
One new dumping and subsidy inquiry involving goods exported from the PRC was concluded by the Canadian International Trade Tribunal (the CITT) in 2010: Oil Country Tubular Goods (Inquiry No. NQ-2009-004).
The goods at issue in Oil Country Tubular Goods are comprised of drill pipe, casing and tubing employed in oil and gas extraction. The Canada Border Services Agency (the CBSA) found that the Chinese exporters were dumping the goods at a weighted average margin of 137.6% of the export price. The goods were also found to be subsidized by the PRC at a weighted average of 25.7% of the export price. In its analysis of "like goods", the CITT found that coupling stock (a seamless thick-walled tube used in the manufacture of coupling blanks) was a separate class of goods from the other goods at issue because the physical and market characteristics of coupling stock differ from those of casing and tubing. This distinction proved to be important as the CITT ultimately found that there was no "domestic industry" for coupling stock. Therefore, the dumping and subsidizing of imports of coupling stock from the PRC had not caused injury to the Canadian industry, nor was it threatening to cause injury. The CITT then examined casing and tubing. The CITT concluded that, notwithstanding the accumulated losses suffered by the domestic industry that were attributable to non-dumping factors, the dumping and subsidizing of the subject casing and tubing had caused material injury. On this basis, antidumping and countervailing duties were imposed on imports of casing and tubing from the PRC, although pup joints were excluded.
DUMPING AND SUBSIDY INVESTIGATIONS INITIATED IN 2010
One new complaint against Chinese exporters was filed in 2010: Steel Grating. This case is currently in process.
On September 20, 2010, the CITT received notice that the CBSA had initiated an investigation into a complaint respecting the alleged injurious dumping and subsidizing of steel grating originating in or exported from the PRC. On November 19, 2010, the CITT determined that the evidence in the case disclosed a reasonable indication that the alleged dumping and subsidizing had injured the domestic industry. Subsequently, on December 20, 2010, the CBSA reached a preliminary determination that dumping and subsidizing of the relevant steel plate had occurred. Two exporters from the PRC responded to the CBSA's request for information (RFI) and received provisional normal values. For all other exporters, the estimated margin of dumping was calculated at 91% and the estimated amount of subsidy was calculated at 129% (both values expressed as a percentage of export price). The CBSA imposed provisional duties of 220%, to be payable on subject goods released from customs on or after December 20, 2010. As a result of the preliminary determination, the CBSA has continued its investigation and will reach a final decision by March 21, 2011. Concurrently, the CITT has initiated a final injury inquiry, which is slated to be completed on April 19, 2011. Antidumping duties will be imposed only if the CITT finds that dumped or subsidized products are injuring or threatening to injure the Canadian producers.
RE-INVESTIGATIONS OF EXISTING FINDINGS
As a general rule, every 12 to 18 months after the imposition of antidumping or countervailing duties, the CBSA conducts re-investigations into existing findings. The re-investigations represent an opportunity for exporters to provide updated information about the variables that affect the normal values of their dumped products. In 2010, seven re-investigations involving Chinese-origin goods were initiated and eight (including some initiated in 2009) were concluded.
In the re-investigation into Waterproof Footwear and Bottoms of Rubber and Plastic, completed on February 23, 2010, six exporters responded to the CBSA's RFI and received normal values. For all other exporters, normal values were determined in accordance with a ministerial specification, which was calculated by advancing the export price of the goods by 49%.
In the re-investigation into Certain Steel Fasteners, completed on March 24, 2010, two exporters from the PRC responded to the CBSA's RFI and were permitted to request interim normal values. For all other exporters, the rate is 170%.
In the Copper Pipe Fittings re-investigation, completed on April 1, 2010, specific normal values were determined for one exporter from the PRC. For all other exporters, the rate is 242%.
The re-investigation into Bicycles concluded on July 7, 2010. In the re-investigation, 26 exporters from the PRC responded to the CBSA's RFI and were permitted to request interim normal values. For all other exporters, the rate is 64%.
The re-investigation into Certain Steel Plate, including certain hot-rolled carbon steel plate and high-strength low-alloy plate originating in or exported from the PRC, concluded on July 16, 2010. Normal values were calculated by advancing the export price by 80.2% for subject goods originating in or exported from the PRC.
In the Certain Carbon Steel Pipe Fittings re-investigation, concluded on September 10, 2010, the CBSA did not receive any additional information from exporters and therefore the dumping duties applied to subject imports are 153% for carbon steel pipe nipples and 117% for carbon steel adaptor fittings.
The re-investigation into Certain Flat Hot-Rolled Carbon and Alloy Steel Sheet and Strip concluded on November 16, 2010. The reinvestigation involved a number of countries, including the PRC. Normal values were determined by advancing the export price by 77%.
In the Certain Thermoelectric Coolers and Warmers reinvestigation, concluded on November 25, 2010, specific normal values and subsidy amounts were determined for one exporter from the PRC. For all other exporters, the rate is 37% for dumping duties and a subsidy amount equal to 53.27 Chinese Renminbi per kilogram.
Three additional re-investigations involving the PRC were initiated late in 2010 and have not yet been concluded:
- Certain Carbon Steel Welding Pipe (initiated on October 8, 2010);
- Certain Mattress Innerspring Units (initiated on November 29, 2010); and
- Certain Copper Pipe Fittings (initiated on December 6, 2010).
REVIEWS PRIOR TO EXPIRATION OF FIVE-YEAR DUTY TERMS
An expiry review may be initiated by the CITT, where warranted, near the end of a five-year term during which antidumping and/or countervailing duties have been imposed on certain goods imported or exported into Canada.
In 2010, one expiry review was completed concerning goods from the PRC: Certain Carbon Stainless Steel Fasteners (Expiry Review No. RR-2009-001). The subject goods are carbon steel screws used in a wide variety of economic sectors, excluding those specifically designed for application in the automotive or aerospace industry. On January 6, 2010, the CITT concluded that it is likely that the resumed dumping or continued dumping and subsidizing of the subject carbon steel screws will cause material injury to the domestic industry and continued its finding with respect to the subject carbon steel screws, subject to the some exclusions granted.
One additional re-investigation involving the PRC was initiated on December 1, 2010, in respect of Flat Hot- Rolled Carbon and Alloy Steel Sheet and Strip (RR-2010- 001) and has not yet been concluded.
EXPIRIES IN 2010
In one instance in 2010, an existing finding involving products from China was nearing expiry and the CITT decided that a formal expiry review should not be initiated. As a result, the finding expired at the conclusion of its five-year term.
The expiry concerned Waterproof Footwear and Bottoms (Notice of Expiry No. LE-2009-004). The finding was made originally by the CITT on December 8, 2000 (Inquiry No. NQ-2000-004) and continued without amendment on December 7, 2005 (Expiry Review No. RR-2004-008). Therefore, the finding had been in place for almost 10 years by the time the CITT's Notice of Expiry was issued on February 2, 2010. In the Notice, the CITT sought submissions from persons or governments requesting or opposing the initiation of an expiry review, but received none. As a result, the CITT decided that no expiry review would be initiated. The finding expired on December 6, 2010. With the expiry of this finding, for the first time in more than 20 years, there are no antidumping or countervailing duties imposed on any footwear imported into Canada from the PRC.
In one instance in 2010, the CITT considered a request for an interim review of an existing finding.
The CITT may conduct an interim review of a finding or order and such interim review may concern the whole finding or order, or any aspect of it. The onus is on the requester to establish that an interim review is warranted. In the interim review of Certain Fasteners, the CITT addressed a request by a domestic producer of fasteners that the CITT amend the wording of the additional exclusions for drywall screws provided for in Expiry Review No. RR-2009-001 to refer to sharppointed and self-drilling drywall screws with "bugle" and "pan" heads only. This request would ultimately result in the revoking of the exclusions granted in the expiry order for certain types of drywall screws, including those with "flat", "truss", "flat truss", "pancake" and "wafer" heads. The CITT refused the request on the basis that, if it were granted, it would expand the scope of the goods currently covered by the expiry order. In its decision, the CITT noted that it has previously found that it does not have the jurisdiction to consider goods that have been previously excluded as the subject of a related review. This was in connection with Certain Fasteners, and the CITT's Order and reasons were issued on March 1, 2010.
While our review of the antidumping and countervailing actions involving products from the PRC in 2010 indicates there has been a marked decline in the number of new complaints, in our view, this should not be taken to mean that the PRC is no longer a target of Canadian manufacturers. The global economic recession likely has been a factor. However, the PRC continues to have an enormous capacity to supply world markets and therefore will very likely remain the primary target of Canadian manufacturers who allege dumping/ subsidization and resulting material injury to domestic production of like goods in Canada.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.