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SIMA Expedited Review: Hollow Structural Sections

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On January 22, 2024, the Canada Border Services Agency (“CBSA”) issued a notice of conclusion of expedited review in respect of certain hollow structural sections (“HSS”) exported to Canada by Histeel Co. Ltd. (“Histeel”) from South Korea.

What is an Expedited Review?

Under subsection 13.2(1) of the Special Import Measures Act (“SIMA”), an exporter or producer may request the CBSA conduct an expedited review where:

a. the exporter or producer is not associated with any exporter in the same country as the goods that are subject to the order or finding and who had been given notice in a prior investigation; and

b. has not been given notice of an investigation in respect of the goods or was requested to provide information to the CBSA in relation to those goods or goods of the same description. 

Practically speaking, an expedited review allows an exporter or producer who “missed out on” a prior investigation a way to obtain normal values without waiting for a subsequent investigation. 

On an expedited reviews the CBSA review the normal value (i.e. the equivalent price at which the subject good is sold in the exporter’s domestic market), export price, and the amount of subsidy on an exporter’s goods that have been sold in Canada and are part of the CBSA’s enforcement of the CITT’s finding of injuries in respect of dumping or subsidy of certain goods.

While an expedited review is ongoing importers continue to pay anti-dumping duties based on the ministerial specification (or post security in respect of same).

Background

The CITT issued a Finding on December 23, 2003 – renewed subsequently on December 22, 2008, December 20, 2013, and October 16, 2019 –  that the dumping of certain HSS from South Korea and Türkiye had caused injury to the Canadian industry, resulting in the imposition of anti-dumping and countervailing duties (subject to certain specified exclusions and inclusions).  

Expedited Review Request & CBSA Decision

The expedited review was initiated on July 26, 2023, with Histeel making the standard submissions regarding the determination of normal values based on its profit margin for like goods in South Korea. 

Histeel had also requested CBSA determine a company-specific margin of dumping – presumably so that margin could be applied to future product which would not yet have CBSA normal values.  However, the CBSA noted they cannot determine company-specific margin of dumping during an expedited review – the legislation requires they determine normal values and export prices only.

Histeel received normal values for its existing products – either pursuant to section 15 of SIMA where there were sufficient domestic sales of like goods, or pursuant to subsection 19(b) of SIMA where there were not.  However, any new products will still be subject to the significantly higher Ministerial prescription (which is essentially the highest margin of dumping the CBSA identified during the investigation).

Takeaways

While an expedited review offers a chance for someone with no notice of the prior investigation to get normal values, it does not completely level the playing field with those parties who participated in the prior investigation. 

Accordingly, companies should monitor both their industry and CBSA announcements for potentially relevant investigations.

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