Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canadian Importers Should Consider Bringing an Interim Review of AD/CVD Orders if Change in Circumstances in Domestic Industry

On January 25, 2011, the Canadian International Trade Tribunal (CITT) notified parties involved in the Certain Fasteners expiry review in 2009/2010 that National Nail Corporation had filed a properly documented request for an interim review. The case number will be (if initiated) RD-2010-001 - which means that this was the only request for an interim review in 2010. Interested parties were given until February 7, 2011 to file representations concerning the request for an interim review. National Nail will have until February 18, 2011 to file comments in response to any representations received. Based on these filings, the CITT may decide to initiate an interim review.

Pursuant to section 76.01 of the Special Import Measures Act (Canada), the CITT may, at any time after making an order or finding, conduct an interim review of the order or finding or any aspect of the order or finding (that includes exclusions). The person or government requesting the interim review must satisfy the CITT that the review is warranted.

In determining whether an interim review is warranted, the CITT’s practice is to take into consideration the factors listed in rule 72 of the Canadian International Trade Tribunal Rules, as well as any other relevant circumstances. Rule 72 provides as follows:

In order to decide whether an interim review under section 76.01 of the Special Import Measures Act is warranted, the Tribunal may request the parties to provide information concerning

    (a) whether changed circumstances or new facts have arisen since the making of the order or finding;

    (b) facts that were not put in evidence in the original proceedings and that were not discoverable by the exercise of reasonable diligence; and

    (c) any other matter that is relevant to the review.

Similarly, the Tribunal’s Guideline on Interim Reviews indicates the following:

An interim review may be warranted where there is a reasonable indication that sufficient new facts have arisen or that there has been a sufficient change in the circumstances that led to the order or finding. . . . An interim review may also be warranted where there are sufficient facts that, although in existence, were not put into evidence during the previous review or inquiry and were not discoverable by the exercise of reasonable diligence at that time.

This interim review mechanism may not be used as often as it should be. Maybe that is because the CITT's batting average is heavily weighted against the requesters. That being acknowledged, it may be the right time to look at the opportunities for importers. There are opportunities for importers to obtain exclusions for goods that should not have been caught in the original net. There may be opportunities for importers to revisit issues, such as whether a category of imported goods are truly 'like goods" to the Subject Goods that are manufactured by the original complainants. If the domestic manufacturers have closed their doors in 2009/2010, then the continuation of the order may not be in the best interested of Canadian consumers.

Some of the existing orders that may be ripe for interim review requests are:

  • Aluminum extrusions (NQ-2008-003)
  • Thermoelectric coolers & warmers (NQ-2008-002)
  • Carbon steel fasteners (NQ-2004-005)
  • Copper pipe fittings (NQ-2006-002)
  • Carbon steel pipe nipples and adapter fittings (NQ-2002-004)
  • Structural tubing (NQ-2003-001)
  • Certain waterproof footwear.

The question for importers is whether they can justify the request based on the CITT's test. Before they ask that question, they should ask whether they have an opportunity to take advantage of a market opportunity that will not cause injury to the domestic industry - that is really what this interim review mechanism is all about. The CITT has a mechanism to readjust the balance between Canadian importers and Canadian domestic producers. Should they use it in the circumstances?

For more information about the interim review process, please contact Cyndee Todgham Cherniak at 416-307-4168.

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