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OTTAWA, December 12, 2001
Concerning a determination pursuant to subsection 76.03(7) of the Special Import Measures Act regarding
POLYISO INSULATION BOARD ORIGINATING IN OR EXPORTED FROM THE UNITED STATES OF AMERICA
On November 27, 2001, pursuant to subsection 76.03(7) of the Special Import Measures Act, the Commissioner of Customs and Revenue determined that the expiry of the finding of the Canadian International Trade Tribunal made on April 11, 1997, in Inquiry No. NQ-96-003, respecting faced rigid cellular polyurethane-modified polyisocyanurate thermal insulation board originating in or exported from the United States of America, is unlikely to result in the continuation or resumption of dumping of the goods.
This Statement of Reasons is also available in French.
Cet énoncé des motifs est également disponible en français.
TABLE OF CONTENTS
On July 30, 2001, the Canadian International Trade Tribunal (Tribunal), pursuant to subsection 76.03(3) of the Special Import Measures Act (SIMA), initiated an expiry review of its finding of April 11, 1997, in Inquiry No. NQ-96-003, respecting faced rigid cellular polyurethane-modified polyisocyanurate thermal insulation board ("polyiso insulation board") originating in or exported from the United States of America. The purpose of an expiry review is to determine whether a Tribunal finding is to be continued or rescinded.
Consequently, the Commissioner of Customs and Revenue (Commissioner) commenced an investigation on July 31, 2001, to determine whether the expiry of the above finding is likely to result in the continuation or resumption of dumping. On the basis of the information made available during the course of this investigation, the Commissioner determined on November 27, 2001, that the expiry of the finding is unlikely to result in the continuation or resumption of dumping of polyiso insulation board into Canada.
As a result, the Tribunal shall issue an Order to rescind the finding pursuant to subsection 76.03(3) of SIMA. The scheduled expiry date of the finding is April 10, 2002.
The subject goods are defined as:
faced rigid cellular polyurethane-modified polyisocyanurate thermal insulation board, excluding:
originating in or exported from the United States of America.
This product, referred to as "polyiso insulation board" or simply "polyiso," is a thermo-set, rigid, foam insulation used in both new and retrofit wall and roofing applications. It is the primary insulation product used in North America for commercial roof and wall construction due to a resistance to high temperatures and a corresponding low combustibility. Generally, polyiso insulation board has the same physical properties whether it is used for roofing or for walls, differences relating primarily to thickness, type of facers (facing material bonded to both sides of the foam core) and board dimensions.
Attachment 2 contains additional product information as well as a description of the production process.
The subject goods are normally imported into Canada under the following Harmonized System classification numbers:
The dumping investigation on polyiso insulation board was initiated on September 13, 1996, as a result of a complaint filed by the single major Canadian producer at the time, Exeltherm Inc. of Cornwall, Ontario. The investigation resulted in preliminary and final determinations of dumping, as well as a Tribunal injury finding on April 11, 1997.
Importations of subject goods have since been monitored for anti-dumping duty assessment. To update the values used for assessment purposes, two normal value and export price reviews have been conducted since the Tribunal's finding, one in 1997, and the other in early 2000.
On June 8, 2001, the Tribunal issued a notice of the impending expiry of the finding, and invited opinions from persons or governments requesting or opposing the initiation of an expiry review. On the basis of the representations received, the Tribunal concluded that a review of the finding was warranted. The Tribunal therefore gave notice on July 30, 2001, of the initiation of an expiry review respecting polyiso insulation board. The Canada Customs and Revenue Agency (CCRA) initiated its expiry review investigation the following day.
Since the finding there has been considerable consolidation among the major players in the polyiso industry in North America.
Exeltherm was the single largest Canadian producer of the subject goods at the time of the finding. Three other producers shared a smaller portion of the Canadian production: ISOX Maritime Limited of Cocagne, New Brunswick (ISOX); Polytherm of Saint-Côme, Beauce, Québec; and Enerlab of Boucherville, Québec.
In 1998, Exeltherm was acquired by Johns Manville International, Inc. (JM International), one of the major exporters/producers of subject goods from the United States, and became Johns Manville, Canada, Inc. (JM Canada), a wholly-owned subsidiary. Of the three smaller Canadian producers, only ISOX is still producing subject goods in Canada.
In 1999, Atlas Roofing Corporation (Atlas), another major producer of subject goods in the United States, opened a polyiso plant in Toronto, Ontario. In 2000, IKO Industries Ltd. (IKO), a Canadian company, also opened a polyiso plant in Toronto, Ontario.
United States companies producing polyiso at the time of the finding included: Celotex Corporation (Celotex), Apache Products Company (owned by Celotex), NRG Barriers Inc., Firestone Building Products, Atlas Roofing Corporation, Homasote Co. and R-Max, Inc.
In August 1997, Johns Manville International purchased NRG Barriers, Inc. Then, in 1999, it also purchased the production facilities of Apache Products Company from Celotex. And finally, Celotex sold its polyiso operations to The Dow Chemical Company (Dow) in August 2001.
Atlas Roofing Corporation, Firestone Building Products, and R-Max, Inc. continue to produce and sell polyiso as before. Meanwhile, a new manufacturer named Hunter Panel built two plants in the United States subsequent to the injury finding. The CCRA has no current information regarding Homasote Co.
Approximately 120 parties (Canadian producers, U.S. producers, U.S. traders, importers) were provided with the Tribunal's Notice of Expiry Review along with a questionnaire sent on behalf of the Commissioner. Parties were also invited to submit case arguments as to whether dumping is likely or unlikely to resume, as well as provide reply submissions in response to the case arguments. The names and addresses of the 10 parties who responded are listed in Attachment 3.
As stated previously, there are now three major producers of polyiso insulation board in Canada. Of these, only JM Canada of Cornwall, Ontario has participated in the review. JM Canada responded to the Commissioner's questionnaire, submitted case arguments to support its position that resumed dumping is likely should the finding be rescinded, and replied to the case arguments alleging otherwise.
ISOX, a very small producer located in Cocagne, New Brunswick, did not submit a complete response to the Commissioner's questionnaire, but did express concern about a potential drop in price levels should the finding be rescinded.
On the other hand, another large producer, IKO, indicated that it has no interest in the expiry review. Atlas, the third major polyiso producer in Canada, provided no response at all. This is despite the fact that prior to initiating the expiry review, the Tribunal informed all Canadian polyiso producers that the finding would be allowed to expire if no submissions or representations were received.
Of the six polyiso producers in the United States, three participated in the expiry review. The Dow Chemical Company (Dow) and Firestone Building Products (Firestone) responded to the Commissioner's questionnaire, submitted case arguments to support their position that resumed dumping is not likely if the finding is rescinded, and replied to JM Canada's case arguments which alleged the opposite. Johns Manville International (JM International) provided a response to the Commissioner's questionnaire, but did not supply case arguments or a reply submission.
Responses to the Commissioner's questionnaire were also received from one U.S. trader and four Canadian importers.
In making his determination, the Commissioner may consider any factor identified in paragraphs (a) to (i) of subsection 37.2(1) of the Special Import Measures Regulations as well as any other factors that are relevant in the circumstances. An analysis of the pertinent factors considered in this review is described below.
One of the factors listed in the Regulations, which the Commissioner may consider when making his determination, is whether there has been dumping of subject goods while the finding has been in effect.
A review of the import data provided through the CCRA's enforcement system indicates that subject goods continued to be imported at commercially significant volumes subsequent to the finding, although it appears that most of the Ontario market is now being supplied by Canadian production. Other regions are still being served by imports, as they are insulated from competition from the Ontario producers due to high transportation costs.
As to the amount of anti-dumping duty collected in respect of these subject imports, information retrieved from CCRA's enforcement systems has revealed the following:
|YEAR*||VALUE FOR DUTY
(As a % of VFD)
2001 (1ST HALF)
* Excluding importations into British Columbia.
The above table shows that during the period of review, the U.S. exporters essentially complied with the finding and sold subject goods to Canada at prices at or above the normal values. Although some anti-dumping duties were collected, the overall amounts were marginal, accounting in each instance for less than 1% of the total value of imports. In addition, this dumping was likely attributable to invoicing errors or the absence of specific normal values for either a product or an exporter.
When all factors are considered, it can be concluded that there has been virtually no dumping of polyiso insulation board since the date of the finding.
As noted previously, JM Canada has argued that resumed dumping is likely if the current finding is allowed to expire. A major basis for JM Canada's position rests on its assertions that excess production capacity exists in the United States and that this problem will be exacerbated in the future due to a downturn in the economy. Since the Canadian market is small relative to the U.S. market and Canada is the only viable export market for polyiso, JM Canada believes that the excess production capacity will likely lead to dumping on the part of the U.S. exporters.
JM Canada presents its arguments regarding plant capacity stating that capacity utilization is properly rated on the basis of three shifts per day. It has calculated U.S. capacity utilization levels in the range of 62% and estimates that there is enough excess capacity in the United States to swamp the Canadian market if it is not protected by a dumping finding.
Firestone, however, claims that operating a polyiso plant on 3 shifts a day would rapidly exhaust the available storage and cause production to stop until storage space became available. For these reasons, Firestone argues, the industry practice is to operate on one shift per day, except during peak season when a second shift is added. This position is supported by Dow, which contends that the economics of the polyiso industry are based on plants being built close to the market and expected to be operating efficiently and profitably on one shift per day.
The CCRA acknowledges that polyiso production plants have the capability of operating on a three shift cycle, but has found no evidence indicating that any of them ever do so. Instead, the evidence shows that the polyiso industry in both Canada and the United States has responded to increased demand by adding new plants rather than operating on the maximum production (three-shift) basis.
It is also true that due to the relatively high shipping costs of polyiso, producers appear to serve markets that are as close as possible to their plants. In the original finding the Tribunal commented about the high cost of freight and noted that the primary economic shipping ring for both Canadian and U.S. manufacturers is about 600 to 700 miles from the plant.
Accordingly, for purposes of this review the CCRA has determined that a realistic, perhaps even conservative, plant capacity rating would be based on a 2 shift cycle, 6 days a week for 50 weeks, allowing 2 weeks for plant maintenance. On this basis and using publicly available production figures from the Polyisocyanurate Insulation Manufacturers Association (PIMA) , the CCRA has calculated a capacity utilization rate of well over 80 % in the United States. This high level of plant utilization does not support the position that excess capacity exists in the industry.
The CCRA is also not convinced that there will necessarily be a downturn in the U.S. demand for polyiso product that would exacerbate the problem of overcapacity. In its press release dated March 1, 2000, PIMA published results showing that in 1999 polyiso board feet produced rose by 6.6%. Since that time no additional production numbers have been released from PIMA for production in 2000 or 2001. However, other information from PIMA has noted that the market for polyiso continues to grow. In addition, the National Roofing Contractors Association, one of the American construction industry's oldest trade associations and the voice of professional roofing contractors worldwide, has ranked polyiso insulation as its "#1" insulation of choice. Another indicator of the growth in demand for polyiso is the increase in the annual value of non?residential building construction permits in the United States. The U.S. Census Bureau has reported that the value of the permits increased by 8.4% from 1999 to 2000.
Even if one were to take the pessimistic view that the market for polyiso will experience a downturn, it does not follow that dumping must of necessity resume. The CCRA makes note of the expiry review respecting gypsum wallboard (RR-97-004 dated January 19, 1998), where the Tribunal determined under similar circumstances that the resumption of dumping was not likely. In that case, the Tribunal commented that for a product such as gypsum wallboard, which is dependent on business cycles and the economic climate in general, it is a normal occurrence to have periods when sales decline and capacity utilization correspondingly drops. It does not in and of itself lead to dumping.
A similar conclusion can be drawn in the case of polyiso insulation board, which is also a construction product dependent on business cycles and the economic climate. Periods of lower capacity utilization would be a normal expectation in this industry and would not necessarily lead to renewed dumping.
In the gypsum wallboard decision, the Tribunal went on to state that the impact of capacity utilization could be lessened due to the consolidated structure of the gypsum wallboard industry. As noted previously, there has also been a consolidation of the polyiso industry since the finding in 1997, and it would be reasonable to expect that the U.S. polyiso manufacturers have an improved capability, relative to 1997, to curtail production in times of a downturn rather than lower prices.
In making his determination respecting the likelihood of renewed dumping, the Commissioner may consider "the potential for the foreign producers to produce the goods in facilities that are currently used to produce other goods."
In this respect, all manufacturers agree that facilities for polyiso production are dedicated solely to such use, and that machinery and equipment for producing other goods cannot be used in the production of polyiso insulation board. As a result, any discussion respecting the current and future capacity for producing polyiso insulation board involves examination of facilities that are currently used for production of polyiso insulation board and no other purposes.
Producers' inventory levels in the country of export are often examined as an indicator of a potential propensity to dump. Information received from the three participating U.S. exporters indicates no clear pattern that the U.S. exporters may have increased their levels of inventories or maintained unusually high levels of inventories.
There would appear to be no reason for U.S. exporters to resort to dumping the subject goods into Canada on the basis of their inventory levels.
Confidential price information submitted by the participating parties appears to indicate that prices are currently higher in the United States than in Canada (especially southern Ontario).
JM Canada states that increased plant capacity in Canada has had a negative impact on pricing and claims that U.S. exporters will need to resort to dumping in order to compete in Canada if the finding is rescinded. JM Canada further maintains that this situation is inevitable given the commodity nature of the product and corresponding high degree of price sensitivity, together with the likely interest of U.S. exporters to recapture lost market share in Canada.
The CCRA agrees that price differentials constitute a meaningful basis for evaluating the likelihood of future dumping. However, the CCRA also notes that market dynamics have evolved over the last few years and price levels are not as crucial now as they were at the time of the original finding. Available information indicates that polyiso products are currently often sold as part of an insulation system (e.g. roofing system) instead of being marketed as a single product, where price would play a more significant role.
As well, it is uncertain whether competitive prices in Canada necessarily indicate a likelihood of renewed dumping. It could be argued conversely that the variance between U.S. and Canadian prices could reduce the incentive for the U.S. producers to sell to Canada. Another factor of particular importance, and one expanded upon further in this report, is that two of the U.S. exporters have Canadian production facilities and would therefore be unlikely to undercut their own subsidiaries. In addition, changes and trends in the Canadian market may mean that factors other than price could influence buyers' decisions in the future.
In conclusion, the CCRA acknowledges that the apparent difference between prices in Canada and the United States signifies that U.S. producers would likely need to dump if they wished to increase sales and market share in Canada from their current levels. However, the CCRA also believes that many other factors would impact on the decision making process of the U.S. exporters before they would make a business decision to embark on this route.
Dow's case arguments are based to a significant degree on assertions that the circumstances in the 1994 to 1996 period that led to the finding were unique and no longer exist. Dow believes that the dumping investigation and finding came about because Exeltherm, the single large producer of subject goods in Canada at the time and a company which had been in business for only two years, had certain expectations of market share gain which the U.S. producers refused to concede.
Dow maintains that the current situation is significantly different, in that both the U.S. and Canadian producers are larger and financially stable. Counsel for Dow adds that there is not one significant Canadian producer operating today, but rather three large producers who have had the benefit of the most robust market conditions in recent Canadian history.
With respect to the strength of the market, the CCRA notes that Statistics Canada reported in November 2000, that the non-residential building sector hit its best monthly performance in 11 years and that the value of new projects surged in all three areas, industrial, commercial and institutional. Since that peak there has been a slowdown in the building sector in Canada related to the technology sector slowdown. However, The Globe and Mail reported in an article entitled, Building sector seen poised for slowdown, dated August 16, 2001, that there is some indication that new construction is slowing but that falling interest rates should cushion the slowdown in the building sector.
It is evident that there has been explosive growth in the Canadian economy since the Tribunal's finding in April 1997. The CCRA believes that although this level of growth cannot continue at such a pace, there is no evidence that the building sector will collapse, and it appears that the impact of lower interest rates should assist in cushioning any slowdown.
The CCRA also agrees with the assertion that the Canadian industry is now larger and more stable than at the time of the finding. Whereas protection against dumped imports was originally intended for the single large independent Canadian producer, Canadian production now consists of three main producers, JM Canada, Atlas and IKO. JM Canada is related to the largest U.S. producer, and Atlas is related to the third largest U.S. producer.
As mentioned previously, JM Canada is the sole Canadian producer that provided the requested information on Canadian sales. Since no information was received from the other two major Canadian producers, Atlas, which opened a plant in Toronto in 1999, and IKO, which opened a plant in Toronto in 2000, it is difficult to assess the overall market and sales trends in Canada. However, based on the large investments necessary to build two new plants, it is evident that both Atlas and IKO believe there is a growing market for polyiso in Ontario and that they can make a profit in this market. It should be added that these new Canadian plants, which comprise the majority of Canadian production, possess a considerable freight advantage over their U.S. counterparts in the substantial southern Ontario market.
Another change concerns the ownership of Canadian production. U.S. companies that were historical exporters of subject goods to Canada now own two of the three major Canadian producers. The CCRA believes it unlikely that these U.S. producers would have incentive to increase shipments to Canada by dumping at the expense of their own plants, and in so doing reducing the sales of subsidiaries into which they have invested substantial amounts of money and resources.
In summary, the CCRA is of the opinion that the market conditions, especially the market players, have changed significantly since the finding.
Polyiso insulation board imported into the province of British Columbia is excluded from the Tribunal's finding. Evidence presented at the time of the finding showed that very few sales of domestic product occurred in British Columbia since transportation costs from Ontario were very high relative to the value of the goods shipped. The market in B.C. was and continues to be served by plants in the western United States.
JM Canada submits in its case brief that JM International is being forced to sell into the B.C. market at dumped prices (prices below the normal values that were determined by the CCRA during its latest review) in order to compete against other U.S. producers. This is despite the fact that JM International should have a price advantage since its plant is located nearer the market. JM Canada argues that if the finding is allowed to expire, it can reasonably be expected that exports to the rest of the Canadian market will be sold at dumped prices as well.
Firestone has replied to JM Canada's assertions by claiming that it is in fact JM International that is likely setting the market price rather than "meeting" it. Counsel for Firestone further states that his client and the other U.S. exporters have very few sales in B.C. This suggests that U.S. polyiso producers are interested in profitable sales rather than increased market share at any cost.
The CCRA conducted an analysis of import trends in British Columbia and the rest of Canada in order to obtain information that would either refute or corroborate the allegations of each party. Most relevant details in this matter cannot be released, as this would constitute a breach of confidentiality. However, the CCRA wishes to re-iterate that subject goods continue to be imported at undumped prices and at commercially significant volumes outside of British Columbia .
The SIM Regulations list several other factors that the Commissioner may consider when making his determination regarding the likelihood of resumed dumping. Firestone and Dow have added mention of these factors to support their contention that dumping was unlikely to resume if the finding were rescinded.
It is noted that neither Canada nor other countries have imposed anti-dumping, countervailing or other measures on similar goods while the finding on polyiso insulation board has been in effect. Similarly, no measures have been taken by other countries that could cause a diversion of dumped goods into Canada.
In rendering his decision, the Commissioner took into account that there has been virtually no dumping of subject goods since the finding. In addition, the Commissioner considered the present and likely future activity of U.S. producers in terms of production, capacity utilization, prices, sales volumes, market share, exports and profits, as well as the changes in market conditions since the finding.
The data revealed that prices for polyiso insulation board appeared to be higher in the United States than in Canada, signifying that the U.S. producers would in all likelihood need to dump if they wished to increase sales and market share in Canada from their current levels.
However, most indicators have pointed to a continued healthy market for polyiso insulation board in both Canada and the United States, which would discourage U.S. producers from dumping. As well, it is the opinion of the Commissioner that dumping into Canada will likely not resume even in the event of a downturn in the market and ensuing production overcapacity. The Commissioner finds it improbable that the U.S. producers would seek to address the potential adverse effects of excess capacity by reducing prices in a market where they are already depressed, and where the local Canadian manufacturers (two of whom are related to the U.S. producers) generally have newer, more efficient and more strategically located plants. As a result, the Commissioner has concluded that the U.S. exporters are unlikely to dump polysio insulation board into Canada.
On the basis of the information made available during the course of the review, the Commissioner has determined that the expiry of the Tribunal finding concerning polyiso insulation board originating in or exported from the United States of America is unlikely to result in the continuation or resumption of dumping of this product.
The Tribunal shall issue an Order to rescind the finding pursuant to subsection 76.03(3) of SIMA. The scheduled expiry date of the finding is April 10, 2002.
Until that time, the CCRA will continue to levy anti-dumping duties on importations of the subject goods that are imported into Canada at dumped prices.
Assistant Commissioner Customs Branch
For further information, please contact Mr. Richard Pragnell as follows:
Canada Customs and Revenue Agency
Anti-dumping and Countervailing Directorate
100 Metcalfe Street, 11th Floor
The subject goods are defined as: "faced rigid cellular polyurethane-modified polyisocyanurate thermal insulation board originating in or exported from the United States of America." Polyisocyanurate is from the polyurethane "chemical family." Therefore, for purposes of this definition, the term polyisocyanurate encompasses the term polyurethane.
In the trade, commercial polyiso insulation board used in wall applications is referred to as "wall insulation," while residential polyiso insulation board used in wall applications is referred to as "sheathing." Since the disappearance of phenolic insulation board from the Canadian market, polyiso insulation board is the only thermo-set insulation used in Canada.
Polyiso roof insulation board is generally offered in sizes of 3 ft. x 4 ft., 4 ft. x 4 ft. and 4 ft. x 8 ft. and can be produced in thicknesses ranging from 1 to 4 in. Custom sizes and thicknesses are also available. This board is used mainly in the commercial construction sector. It is also available as tapered board, which is used in pre-engineered sloped insulated roofing systems to provide positive drainage.
Polyiso wall insulation board is generally offered in 4 ft. x 8 ft. and 4 ft. x 9 ft. sizes and can be produced in thicknesses ranging from 0.5 to 4.0 in. As with roof insulation board, custom sizes and thicknesses are also available. This board is generally used for construction applications in both residential and non-residential wall systems.
The main ingredients in polyiso insulation board are aromatic polyester polyol, isocyanurate and a blowing agent. The isocyanurate product arrives in liquid form and is transferred to a holding tank where it is recirculated through a heat exchanger before being transferred to a processing tank. A second tank contains the polyol, a blowing agent and a blend of catalysts. These chemicals are mixed and heated to ensure a correct blend and temperature and then transferred to a secondary processing tank.
The chemical mixtures of the two tanks are then pumped under pressure to a mixing unit. In mixing the contents of the two tanks under pressure, polymerization starts, and the heat generated by the reaction boils the foaming agent. The mixture is laid between two facers which are being continuously fed through a moving laminator. Once laid, the mixture expands, filling the space between the two facers and, in solidifying, bonds to the facers. Various facers may be used, providing different specifications and allowing for different construction applications.
Upon exiting the laminator, the polyiso insulation board is trimmed to the correct width and cut to the required length. The product is then packaged and placed in the warehouse for a period of two to four days for curing before shipment.
Mr. Geoffrey C. Kubrick,
Flavell Kubrick LLP
280 Slater Street, Suite 1700
Johns Manville Canada Inc.
3330 Marleau Street
ISOX Maritime Limited
P.O. Box 3120
Cocagne, New Brunswick
Mr. Geoffrey C. Kubrick,
Flavell Kubrick LLP
280 Slater Street, Suite 1700
Johns Manville International Inc.
717 17 th Street
Mr. Gregory O. Somers, Mr. Paul D. Conlin
Osler, Hoskin & Harcourt LLP
50 O'Connor, Suite 1500
Firestone Building Products
525 Congressional Boulevard
Mr. Riyaz Dattu, Mr. Orlando E. Silva
Mc Carthy Tétrault LLP
Toronto Dominion Bank Tower
The Dow Chemical Company
2030 Dow Center
Construction Materials International Inc.
4320 West Kennedy Blvd.
Arrow Construction Products Ltd.
P.O. Box 760
Fredericton, New Brunswick
Cameron Ashley Building Products
Suite 100, 3380 Airway Drive
Tremco Canada Division of RPM Canada
220 Wicksteed Avenue
Wallace Construction Specialties Ltd.
1940 Ontario Avenue