CITT Canadian International Trade Tribunal : COPPER PIPE FITTINGS

IN THE MATTER OF a preliminary injury inquiry, pursuant to subsection 34(2) of the Special Import Measures Act, respecting:

The Canadian International Trade Tribunal, pursuant to the provisions of subsection 34(2) of the Special Import Measures Act, has conducted a preliminary injury inquiry into whether the evidence discloses a reasonable indication that the alleged injurious dumping and subsidizing of pressure pipe fittings and drainage, waste and vent pipe fittings, made of cast copper alloy, wrought (or 'wrot') copper alloy or wrought copper for use in heating, plumbing, air conditioning and refrigeration applications, originating in or exported from the Socialist Republic of Vietnam, restricted to the products enumerated in the attached Appendix 1 (the subject goods), have caused injury or retardation or are threatening to cause injury to the domestic industry.

This preliminary injury inquiry follows the notification, on October 27, 2017, that the President of the Canada Border Services Agency had initiated investigations into the alleged injurious dumping and subsidizing of the above-mentioned goods.

Pursuant to subsection 37.1(1) of the Special Import Measures Act, the Canadian International Trade Tribunal hereby determines that there is evidence that discloses a reasonable indication that the dumping and subsidizing of the above-mentioned goods have caused or are threatening to cause injury to the domestic industry.

The statement of reasons will be issued within 15 days.

Tribunal Panel: Serge Fréchette, Presiding Member
Daniel Petit, Member
Rose Ritcey, Member

Support Staff: Laura Little, Counsel
Mark Howell, Lead Analyst
Andrew Wigmore, Analyst

The Registrar
Secretariat to the Canadian International Trade Tribunal
333 Laurier Avenue West
15th Floor
Ottawa, Ontario K1A 0G7

The following information is to be taken into consideration in identifying copper pipe fittings (subject goods) being investigated by the Canada Border Services Agency (CBSA):

^[1]. R.S.C., 1985, c. S-15 [SIMA]

^[2]. Exhibit PI-2017-003-05, Vol. 1B at 218.

^[3]. Ibid. at 226, 230.

^[4]. Ibid. at 222, 235.

^[5]. In Copper Pipe Fittings (28 November 2016), RR-2015-003 (CITT) [Copper Pipe Fittings (RR-2015-003)], the Tribunal continued, with amendment to exclude certain products, its orders in Expiry Review No. RR-2011-001, which continued, without amendment, its findings in Inquiry No. NQ-2006-002 concerning the dumping of copper pipe fittings originating in or exported from China, the United States and Korea, and the subsidizing of such goods originating in or exported from China.

^[6]. Copper Pipe Fittings (RR-2015-003) at paras. 65-66.

^[7]. For injury inquiries under section 42 of SIMA that involve a single subject country, the Tribunal's practice is to make a cumulative assessment of the injurious effects of goods that are both dumped and subsidized (cross‑cumulation). The Tribunal therefore considers that it would be inconsistent not to cross-cumulate the subject goods in a preliminary injury inquiry and has consequently assessed the cumulative effects of the dumping and subsidizing of the subject goods on the domestic industry.

^[8]. Grain Corn (10 October 2000), PI-2000-001 (CITT) at 7.

^[9]. Ronald A. Chisholm Ltd. v. Deputy M.N.R.C.E. (1986), 11 CER 309 (FCTD).

^[10]. Gypsum Board (5 August 2016), PI-2016-001 (CITT) [Gypsum Board] at para 16; Concrete Reinforcing Bar (12 August 2014), PI-2014-001 (CITT) [Rebar] at para. 15; Silicon Metal (21 June 2013), PI-2013-001 (CITT) at para. 16; Unitized Wall Modules (3 May 2013), PI-2012-006 (CITT) [Unitized Wall Modules] at para. 24; Liquid Dielectric Transformers (22 June 2012), PI-2012-001 (CITT) at para. 86.

^[11]. Rebar at paras. 18-19.

^[12]. Article 5 of the World Trade Organization (WTO) Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 [the Anti-dumping Agreement] and Article 11 of the WTO Agreement on Subsidies and Countervailing Measures [the SCM Agreement] require an investigating authority to examine the accuracy and adequacy of the evidence provided in a dumping and subsidizing complaint to determine whether there is sufficient evidence to justify the initiation of an investigation, and to reject a complaint or to terminate an investigation as soon as an investigating authority is satisfied that there is not sufficient evidence of dumping and subsidizing or injury. Article 5 of the Anti-dumping Agreement and Article 11 of the SCM Agreement also specify that simple assertions that are not substantiated with relevant evidence cannot be considered sufficient to meet the requirements of the articles.

^[13]. S.O.R./84-927 [Regulations].

^[14]. In its consideration of whether there is a reasonable indication that the dumping and subsidizing of the subject goods are threatening to cause injury, the Tribunal is guided by subsection 37.1(2) of the Regulations, which prescribes factors to be taken into account for the purposes of its threat of injury analysis.

^[15]. Copper Pipe Fittings (RR-2015-003) at paras. 29-30; Copper Pipe Fittings (6 March 2007), NQ-2006-002 (CITT) at paras. 52-59.

^[16]. Exhibit PI-2017-003-05, Vol. 1B at 217.

^[17]. SIMA, s. 2(1), s.v. 'domestic industry'.

^[18]. TRAV further submitted that Cello has not met the standing requirements under Article 11.4 of the WTO SCM Agreement to bring the present complaint. As the CBSA, and not the Tribunal, has the statutory authority to determine if the relevant standing requirements under subsection 31(2) of SIMA have been met, this is not an issue for the Tribunal to address. The Tribunal notes that the CBSA has stated that '[s]ince the complainant is the only known producer of certain [copper pipe fittings] in Canada, the CBSA is satisfied that the standing requirements pursuant to subsection 31(2) of SIMA have been met.' Exhibit PI-2017-003-05, Vol. 1B at 221.

^[19]. Photovoltaic Modules and Laminates (3 July 2016), NQ-2014-003 (CITT) at paras. 56, 59.

^[20]. The Tribunal typically does not exclude producers from the domestic industry where doing so would negate that industry's existence. Indeed, in a previous injury inquiry concerning copper pipe fittings, the Tribunal decided not to exclude Cello from the domestic industry on the basis of its imports of subject goods since to do so would, in effect, deny that there was a domestic industry: Copper Pipe Fittings (18 October 1993), NQ-93-001 (CITT) at 14-15. See also Certain Fasteners (7 January 2005), NQ-2004-005 (CITT) at para. 83; Chain Saws (3 July 1987), CIT-2-87; Bottoming Materials (27 October 1982), ADT-7-82.

^[21]. Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 16, 33.

^[22]. Ibid. at 33.

^[23]. Exhibit PI-2017-003-05, Vol. 1B at 231.

^[24]. Exhibit PI-2017-003-03.02 (protected), Vol. 2B at 15.

^[25]. Exhibit PI-2017-003-07.01 (protected), Vol. 4 at 3. The discrepancies among the data sources may reflect the difficulties in ascertaining the volume of imports of the subject goods given that they are classified under at least seven Harmonized System (HS) codes that cover a wide range of non-subject goods. The Tribunal will be in a better position to assess import volumes in the context of a final injury inquiry through its own collection of data on subject goods imported into Canada during the period of inquiry.

^[26]. Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 33; Exhibit PI-2017-003-03.02 (protected), Vol. 2B at 11, 15.

^[27]. For the 2016 and 2017 interim periods, Cello used a six-month period (January to June) whereas the CBSA used an eight-month period (January to August).

^[28]. Exhibit PI-2017-003-05, Vol. 1B at 222.

^[29]. Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 34.

^[30]. Exhibit PI-2017-003-02.01, Vol. 1 at 39.

^[31]. Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 18, 34, 39.

^[32]. Ibid. at 34.

^[33]. Exhibit PI-2017-003-02.01, Vol. 1 at 39.

^[34]. Exhibit PI-2017-003-03.01 (protected), Vol. 2A at 4.

^[35]. Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 18, 34, 39.

^[36]. Gypsum Board at para. 44; Copper Rod (30 October 2006), PI-2006-002 (CITT) at paras. 40, 43; Galvanized Steel Wire at para. 75; Circular Copper Tube (22 July 2013), PI-2014-002 (CITT) at para. 82; Polyethylene Terephthalate Resin (17 October 2017), PI-2017-002 (CITT) at para. 41.

^[37]. Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 37, 40.

^[38]. Ibid. at 38.

^[39]. Exhibit PI-2017-003-02.01, Vol. 1 at 42.

^[40]. Exhibit PI-2017-003-05 (protected), Vol. 1B at 222; Exhibit PI-2017-003-03.02 (protected), Vol. 2B at 65.

^[41]. Exhibit PI-2017-003-03.01 (protected), Vol. 2A at 4.

^[42]. Exhibit PI-2017-003-03.02 (protected), Vol. 2B at 16.

^[43]. Exhibit PI-2017-003-05, Vol. 1B at 222.

^[44]. Exhibit PI-2017-003-02.01, Vol. 1 at 44; Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 40.

^[45]. Exhibit PI-2017-003-02.01, Vol. 1 at 43; Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 39.

^[46]. Exhibit PI-2017-003-02.01, Vol. 1 at 43; Exhibit PI-2017-003-03.01 (protected), Vol. 2 at 39.

^[47]. Exhibit PI-2017-003-02.01, Vol. 1 at 44-45.