The Canada Border Services Agency (CBSA) is now applying the changes to the Special Import Measures Act (SIMA) that implement the findings of the WTO panel in Canada – Welded Pipe (DS482). That panel faulted Canada for, among other things, not immediately terminating anti-dumping investigations against individual exporters found in the final determination to have a de minimis margin of dumping (i.e., less than 2 percent of the export price). Canada had previously based the de minimis threshold on the country-wide average margin of dumping. This prevented individual exporters from being excluded from investigations, even if their individual margin of dumping was de minimis, if the average margin of dumping for all exporters from the same country was above de minimis. Consequently, such exporters were subject to the arduous duty administration, re-investigations and reviews that were ongoing during the life of the duties.
Bill C-44, which was assented to on 22 June 2017, amended the SIMA. One of the amendments requires the President of the CBSA to terminate an investigation against an individual exporter if the final determination of the margin of dumping or amount of subsidy for that exporter is “insignificant”, defined as less than 2% and 1% of export price, respectively. Although not specifically ruled on by the WTO panel, the inclusion of the de minimis threshold for subsidization is a logical extension of the panel’s finding.
On 29 September 2017, the CBSA issued the results of its review of the final determination in Certain Carbon Steel Welded Pipe, the investigation that was the subject of the WTO ruling. In that review, the CSBA terminated the investigation against two steel companies found to have insignificant margins of dumping in the original final determination, although the anti-dumping duties remained in place against other exporters from Chinese Taipei.
On 3 October 2017, the CBSA terminated the investigation in Certain Silicon Metal against individual exporters from Brazil, Norway and Thailand because their margins of dumping were insignificant or zero.
The possibility of having an investigation terminated and having the burdens associated with the duties removed is a huge incentive for exporters to fully participate in Canadian anti-dumping and countervailing duty investigations.
Tereposky & DeRose regularly provides advice on Canadian anti-dumping and countervailing duty matters. Should you have any questions regarding this matter or anti-dumping and countervailing issues more generally, please contact us.