ALUMINUM EXTRUSIONS
Expiry Review No. RR-2013-003

Order issued
Monday, March 17, 2014

Reasons issued
Friday, March 28, 2014

TABLE OF CONTENTS

• ORDER
• APPENDIX
• STATEMENT OF REASONS
  • INTRODUCTION
  • PRODUCT
    • Product Definition
    • Product Information
  • LEGAL FRAMEWORK
  • PRELIMINARY MATTERS
    • Definition of the Subject Goods
    • Validity of the CBSA’s Determination and Whether There is Evidence of Dumping
  • LIKE GOODS AND CLASSES OF GOODS
  • DOMESTIC INDUSTRY
  • CROSS-CUMULATION
  • LIKELIHOOD OF INJURY ANALYSIS
    • Changes in Market Conditions
    • Likely Volumes of Dumped and Subsidized Goods
    • Likely Prices of Dumped and Subsidized Goods and the Effect on Prices of Like Goods
    • Likely Performance of the Domestic Industry and Likely Impact of the Dumped and Subsidized Goods on the Domestic Industry
    • Factors Other Than the Dumping or Subsidizing
  • EXCLUSIONS
    • General Principles Concerning Product Exclusion Requests
    • Analysis of Specific Product Exclusion Requests
  • CONCLUSION

IN THE MATTER OF an expiry review, pursuant to subsection 76.03(3) of the Special Import Measures Act, of the findings made by the Canadian International Trade Tribunal on March 17, 2009, in Inquiry No. NQ-2008-003, as amended by its determination made on February 10, 2011, in Inquiry No. NQ-2008-003R, concerning:

THE DUMPING AND SUBSIDIZING OF ALUMINUM EXTRUSIONS ORIGINATING IN OR EXPORTED FROM
THE PEOPLE’S REPUBLIC OF CHINA

ORDER

The Canadian International Trade Tribunal, pursuant to subsection 76.03(3) of the Special Import Measures Act, has conducted an expiry review of its findings made on March 17, 2009, in Inquiry No. NQ-2008-003, as amended by its determination made on February 10, 2011, in Inquiry No. NQ-2008-003R, concerning the dumping and subsidizing of aluminum extrusions produced via an extrusion process of alloys having metallic elements falling within the alloy designations published by The Aluminum Association commencing with 1, 2, 3, 5, 6 or 7 (or proprietary or other certifying body equivalents), with the finish being as extruded (mill), mechanical, anodized or painted or otherwise coated, whether or not worked, having a wall thickness greater than 0.5 mm, with a maximum weight per metre of 22 kg and a profile or cross-section which fits within a circle having a diameter of 254 mm, excluding the products described in the attached appendix, originating in or exported from the People’s Republic of China.

Pursuant to paragraph 76.03(12)(b) of the Special Import Measures Act, the Canadian International Trade Tribunal hereby continues its findings in respect of the aforementioned goods.

Serge Fréchette
Serge Fréchette
Presiding Member

Stephen A. Leach
Stephen A. Leach
Member

Daniel Petit
Daniel Petit
Member

Dominique Laporte
Dominique Laporte
Secretary

The statement of reasons will be issued within 15 days.

APPENDIX

PRODUCTS EXCLUDED FROM THE FINDINGS IN INQUIRY NO. NQ-2008-003

• Aluminum extrusions produced from either a 6063 or a 6005 alloy type with a T6 temper designation, in various lengths, with a powder coat finish on both the interior and the exterior surfaces of the extrusion, which finish is certified to meet the American Architectural Manufacturers Association AAMA 2603 standard, “Voluntary Specification, Performance Requirements and Test Procedures for Pigmented Organic Coatings on Aluminum Extrusions and Panels”, for use in exterior railing systems.
• Aluminum extrusions produced from a 6063 alloy type with a T5 temper designation, having a length of 3.66 m, with a powder coat finish, which finish is certified to meet the American Architectural Manufacturers Association AAMA 2603 standard, “Voluntary Specification, Performance Requirements and Test Procedures for Pigmented Organic Coatings on Aluminum Extrusions and Panels”, for use as head rails and bottom rails in fabric window shades and blinds where the fabric has a cross-sectional honeycomb or “cellular” construction.
• Aluminum extrusions produced from a 6063 alloy type with a T5 temper designation and forming part of the Vario System™ 20, 30, 40, 45 and 60 series line of profiles, or equivalent, having a length of either 4.5 or 5.8 m and a straightness tolerance of +/-1.5 mm or less per 6.0 m of length, for use in those parts of mechanical systems and automated machinery, such as gantry systems and conveyors, where precise linear movement is required.
• Aluminum extrusions produced from either a 6063 or a 6463 alloy type, having a length of 3 m, with a hand-applied gold and silver leaf finish, for use as picture frame mouldings.
• Aluminum extrusions produced from a 6063 alloy type with either a T5 or a T6 temper designation, having a length of between 20 and 33 ft. (between 6.10 and 10.06 m), with a powder coat finish, which finish is certified to meet the American Architectural Manufacturers Association AAMA 2603 standard (“Voluntary Specification, Performance Requirements and Test Procedures for Pigmented Organic Coatings on Aluminum Extrusions and Panels”), for use in window frames.
• Heat sinks imported under tariff item No. 8473.30.90 and weighing 700 g or less.

ADDITIONAL PRODUCTS EXCLUDED FROM THE FINDINGS IN INQUIRY NO. NQ-2008-003 FOLLOWING THE DETERMINATION IN INQUIRY NO. NQ-2008-003R

• Aluminum extrusions produced by China Square Industrial Ltd. from either a 6063 or a 6463 alloy type with a T5 temper designation, with a profile or cross-section which fits within a circle having a diameter of 100 mm, for use by MAAX Bath Inc. in the assembly of its shower enclosures, specifically identified in the following table:

Place of Hearing: Ottawa, Ontario
Dates of Hearing: January 20 to 23, 2014

Tribunal Members: Serge Fréchette, Presiding Member
Stephen A. Leach, Member
Daniel Petit, Member

Research Directors: Mark Howell
Matthew Sreter

Research Manager: Shiu-Yeu Li

Senior Research Officers: Rebecca Campbell
Josée St-Amand

Research Officers: Julie Charlebois
Noha Zabib

Research Assistants: Megha Bhardwaj
Chelsea Lappin
Matthew Stancek
Trung Vimar

Counsel for the Tribunal: Georges Bujold
Alexandra Pietrzak
Catalin Tripon (student-at-law)

Manager, Registrar Programs and Services: Sarah MacMillan

Senior Registrar Officer: Lindsay Vincelli

Acting Senior Registrar Officer: Haley Raynor

PARTICIPANTS:

WITNESSES:

Mark Doig
Director, Strategy
Sapa Canada Inc.

John Albanese
General Manager
Extrudex Aluminum

Tyler Menary
Sales Manager
Can Art Aluminum Extrusion Inc.

Lothar Stiem
Controller
Can Art Aluminum Extrusion Inc.

Mike Buffa
Group Controller
Extrudex Aluminum

Mike Kilby
President
Dajcor Aluminum Ltd.

Bill de Koning
General Manager
Apex Aluminum Extrusions Ltd.

Rafi Veettil
Controller
Dajcor Aluminum Ltd.

Bob Peacock
President
Almag Aluminum Inc.

Martin Gingras
General Manager
Metra Aluminum Inc.

Mike Flynn
President
Apel Extrusions Limited

B. David Hudson
President & CEO
Spectra Aluminum Products Ltd./Spectra Anodizing Inc.

Robert Jong
VP Finance, IT & Human Resources
Spectra Aluminum Products Ltd./Spectra Anodizing Inc.

Audrey Fu
Accountant
Almag Aluminum Inc.

Jocelyn Roux
Controller
Metra Aluminum Inc.

Michael Panno
President
1168919 Ontario Limited o/a SDM Sales

David J. Halcrow
Vice-President, Purchasing
Russel Metals

Jacques Houde
President
Pixus Technologies Inc.

Jules F. Wilkins
President
Pacific Shower Doors

Please address all communications to:

The Secretary
Canadian International Trade Tribunal
15th Floor
333 Laurier Avenue West
Ottawa, Ontario  K1A 0G7

Telephone: 613-993-3595
Fax: 613-990-2439
E-mail: secretary@citt-tcce.gc.ca

STATEMENT OF REASONS

INTRODUCTION

1. This is an expiry review, pursuant to subsection 76.03(3) of the Special Import Measures Act^[1] of the findings made by the Canadian International Trade Tribunal (the Tribunal) on March 17, 2009, in Inquiry No. NQ-2008-003, as amended by its determination made on February 10, 2011, in Inquiry No. NQ-2008-003R, concerning the dumping and subsidizing of aluminum extrusions produced via an extrusion process of alloys having metallic elements falling within the alloy designations published by The Aluminum Association commencing with 1, 2, 3, 5, 6, or 7 (or propriety or other certifying body equivalents), with the finish being as extruded (mill), mechanical, anodized or painted or otherwise coated, whether or not worked, having a wall thickness greater than 0.5 mm, with a maximum weight per metre of 22 kg and a profile or cross-section which fits within a circle having a diameter of 254 mm, excluding the products described in the attached appendix, originating in or exported from the People’s Republic of China (China) (the subject goods). The findings are scheduled to expire on March 16, 2014.
2. The Tribunal initiated this expiry review on June 5, 2013.^[2] It notified the Canada Border Services Agency (CBSA) and sent letters to known domestic producers, importers, foreign producers and exporters requesting that they complete expiry review questionnaires.
3. On June 6, 2013, the CBSA initiated its investigation to determine whether the expiry of the Tribunal’s findings was likely to result in the continuation or resumption of dumping or subsidizing.
4. On October 3, 2013, the CBSA determined, pursuant to paragraph 76.03(7)(a) of SIMA, that the expiry of the findings was likely to result in a continuation or resumption of the dumping and subsidizing of the subject goods.
5. Following the CBSA’s determination, on October 4, 2013, the Tribunal commenced its part of the expiry review to determine, pursuant to subsection 76.03(10) of SIMA, whether the expiry of the findings was likely to result in injury or retardation. As part of these proceedings, the Tribunal contacted domestic producers, importers, foreign producers and exporters that had replied to the expiry review questionnaires to request that they provide updated information. The Tribunal also requested responses to the expiry review questionnaire from domestic producers that had not provided a response to the CBSA. In addition, the Tribunal sent a Short-form Importers’ Questionnaire to 71 importers that had either not completed the original Expiry Review Questionnaire – Importer or not been requested to complete a questionnaire at the commencement of this expiry review.
6. The Tribunal’s period of review (POR) is from January 1, 2010, to September 30, 2013.
7. The Tribunal held a hearing with public and in camera testimony in Ottawa, Ontario, from January 20 to 23, 2014.
8. Almag Aluminum Inc. (Almag), APEL Extrusions Limited (APEL), Apex Aluminum Extrusions (Apex), Can Art Aluminum Extrusion Inc. (Can Art), Dajcor Aluminum (Dajcor), Extrudex Aluminum (Extrudex), Metra Aluminum Inc. (Metra), Sapa Canada Inc. (Sapa) and Spectra Aluminum Products Ltd. (Spectra) collectively filed written submissions, provided evidence and made arguments in support of the continuation of the findings. They were represented by counsel and presented witnesses at the hearing.
9. Mr. David J. Halcrow, of Russel Metals (Russel), appeared as a Tribunal witness during the hearing.
10. Requests for product exclusions were filed by 1168919 Ontario Limited o/a SDM Sales (SDM), Electrolux Canada Corp. (Electrolux), Fortune Canada Enterprises Ltd. (Fortune), Foshan W&M Sanitary Ware Co., Ltd. (Foshan), Pacific Shower Doors (PSD), Pixus Technologies Inc. (Pixus), and Silfab Ontario Inc. (Silfab). In its request for product exclusion, PSD also made arguments opposing the continuation of the Tribunal’s findings. Representatives of SDM, Electrolux, PSD and Pixus all appeared and made representations at the hearing. With the exception of Electrolux, the parties that filed requests for product exclusions that were present at the hearing also provided viva voce evidence in support of their requests at the hearing.
11. The record of these proceedings consists of all relevant documents filed or accepted for filing by the Tribunal, including the following: the CBSA’s protected expiry review report, public statement of reasons, index of background information and related documents; written Tribunal communications; the Tribunal’s notice of expiry review; the protected and public replies to the expiry review questionnaires; the public and protected staff reports prepared for this expiry review and revisions thereto; witness statements and other exhibits; and the exhibit list and Tribunal’s findings, statement of reasons and public and protected staff reports prepared for Inquiry No. NQ-2008-003 and revisions thereto. Public exhibits were made available to interested parties, while protected exhibits were provided only to counsel who had filed a declaration and undertaking with the Tribunal in respect of the protection of confidential information.

PRODUCT

Product Definition

12. The goods that are subject to this expiry review are defined as aluminum extrusions produced via an extrusion process of alloys having metallic elements falling within the alloy designations published by The Aluminum Association commencing with 1, 2, 3, 5, 6, or 7 (or propriety or other certifying body equivalents), with the finish being as extruded (mill), mechanical, anodized or painted or otherwise coated, whether or not worked, having a wall thickness greater than 0.5 mm, with a maximum weight per metre of 22 kg and a profile or cross-section which fits within a circle having a diameter of 254 mm, excluding the products described in the attached appendix, originating in or exported from China.

Product Information^[3]

13. Aluminum extrusions are widely used in numerous market sectors. The main end-use sectors for aluminum extrusions are building and construction, transportation and engineered products. Uses for aluminum extrusions in the building and construction industry cover a wide range of products, including windows, doors, railings, bridges, light poles, high-rise curtain walls, framing members and other various structures. Uses for aluminum extrusions in the transportation industry include parts for automobiles, buses, trucks, trailers, rail cars, mass transit vehicles, recreational vehicles, aircraft and aerospace. Aluminum extrusions are also used in many consumer and commercial products, including air conditioners, appliances, furniture, lighting, sports equipment, electrical power units, heat sinks, machinery and equipment, food displays, refrigeration, medical equipment and laboratory equipment.
14. All aluminum extrusions are produced as either hollow or solid profiles. Hollow profile extrusions generally cost more to produce and obtain higher prices than solid profile extrusions. Extrusions are often produced in standard shapes such as bars, rods, pipes and tubes, angles, channels and tees but they are also produced in customized shapes.
15. In addition to “as extruded” or mill finish, extrusions can be finished mechanically by polishing, buffing or tumbling. Extrusions can have anodized finishes applied by means of an electro-chemical process that forms a durable, porous oxide film on the surface of the aluminum. Also, they can be finished with liquid or powder paint coatings utilizing an electrostatic application process.
16. Working or fabricating extrusions includes any operation performed other than mechanical, anodized, painted or other finishing, prior to utilization of the extrusion in a finished product. These operations can include precision cutting, machining, punching and drilling.
17. While details may vary from producer to producer, the process by which extrusions are produced is essentially the same for all. The intended end use of the final product in which the aluminum extrusion will be applied determines the specifications for the extrusion. Machinability, finish and environment of end-use application of the final product determine the alloy to be extruded. The end-use application of the profile also determines its design and that of the die that shapes it.
18. The extrusion process is described in detail in the Tribunal’s statement of reasons in Inquiry No. NQ-2008-003.^[4] Both standard-shaped and custom-shaped aluminum extrusions are manufactured using the same equipment and according to a similar process. Generally, in the case of custom shapes, the customer will provide the chosen manufacturer with the specific design and specific desired characteristics. This often entails the use of custom-made dies, whereas standard shapes are made from generally available standard dies.^[5] There is no evidence that this process has changed in material respects since the issuance of the Tribunal’s findings. There is however evidence that certain domestic producers made investments to improve their capability to further work, fabricate or finish aluminum extrusion products during the POR.^[6]

LEGAL FRAMEWORK

19. The Tribunal is required, pursuant to subsection 76.03(10) of SIMA, to determine whether the expiry of the findings in respect of the subject goods is likely to result in injury or retardation to the domestic industry.^[7]
20. The Tribunal is also required, pursuant to subsection 76.03(12) of SIMA, to make an order either rescinding the findings in Inquiry No. NQ-2008-003, as amended in Inquiry No. NQ-2008-003R, if it determines that the expiry of the findings is unlikely to result in injury, or continuing the findings, with or without amendment, if it determines that the expiry of the findings is likely to result in injury.
21. As indicated by the Tribunal in Thermoelectric Containers,^[8] the analytical context pursuant to which an expiry review must be adjudged often includes the assessment of retrospective evidence supportive of prospective conclusions. In essence, positive evidence in the context of an expiry review can include evidence based on past facts that tend to support forward-looking conclusions. The requirement in an expiry review is that the Tribunal draw logical conclusions from the relevant information before it, and that information will often appropriately include the performance of the domestic and foreign industries during the POR, when anti-dumping and countervailing duties were in place.
22. The Tribunal also notes that only PSD provided submissions in opposition to a continuation of the findings. However, other than suggesting in its submissions at the hearing that the subject goods do not pose a great threat to the domestic producers given (1) their recent investments in their production facilities, (2) the restructuration that has taken place in the domestic industry, and (3) the fact that the domestic producers are able to compete with low-cost producers from other countries,^[9] PSD did not squarely address the issue of whether the expiry of the findings in respect of the subject goods is likely to result in injury to the domestic industry and the factors that are relevant to this determination.^[10]
23. Given the limited submissions on these issues from PSD and the fact that no other party provided submissions or made arguments in opposition to a continuation of the Tribunal’s findings, the Tribunal was particularly vigilant in its assessment of the information contained on the record to ensure that its determinations were based on positive, accurate evidence and involved an objective examination of all the factors that are relevant to the likelihood of injury determination. This approach is consistent with the Tribunal’s past practice in such cases.^[11]
24. Before proceeding with its analysis of the likelihood of injury, the Tribunal must first address, as preliminary matters, certain arguments made by PSD. The Tribunal must also determine (1) what domestically produced goods are “like goods” in relation to the subject goods, (2) what constitutes the “domestic industry” for the purposes of its analysis, and (3) whether the analysis must be done separately for the dumping and subsidizing of the subject goods (i.e. whether it will cross-cumulate the effect of the dumping and subsidizing).

PRELIMINARY MATTERS

25. PSD made arguments challenging the adequacy of the definition of the subject goods provided by the CBSA and the validity of the CBSA’s determination that the expiry of the findings was likely to result in a continuation or resumption of the dumping and subsidizing of the subject goods. PSD also submitted that imposing duties on the subject goods that it seeks to import would be inconsistent with SIMA since, in its view, there is no domestically produced alternative and no evidence demonstrating that any specific subject goods were actually dumped.

Definition of the Subject Goods

26. PSD submitted that SIMA does not allow for a wide-ranging product definition such as the one at issue in this case. According to PSD, the definition of the subject goods must relate to or describe specific products.
27. The Tribunal agrees that the definition of the subject goods is very broad and potentially covers a wide variety of products. Indeed, the subject goods were defined by the CBSA according to a particular production process. More specifically, the subject goods were described as having been produced via an extrusion process. As suggested by the abundance of appeals pursuant to subsection 61(1) of SIMA brought before the Tribunal since the findings, this product definition has presented considerable difficulties in its interpretation and application. In particular, determining whether imported goods are of the same description as the subject goods can be a difficult task since, by definition, a production process does not refer to the physical characteristics or attributes of specific goods.
28. However, the Tribunal can do little about this state of affairs. As a matter of law, it cannot modify the CBSA’s definition of the subject goods in an expiry review pursuant to subsection 76.03(3) of SIMA. The Tribunal can only interpret the wording of the CBSA’s definition of the subject goods in order to determine the scope of its inquiry or review, that is, to decide which domestically produced goods are the like goods for the purposes of its injury or likelihood of injury analysis. In doing so, the Tribunal cannot adopt an interpretation that results in a redefinition of the subject goods.^[12] Thus, the Tribunal does not have the jurisdiction to amend, revise or narrow the scope of the definition of the subject goods in this expiry review.
29. Similarly, the Tribunal does not have the authority in an expiry review to determine what goods will ultimately be subject to anti-dumping or countervailing duties in the event of an order continuing its injury findings. In accordance with the statutory scheme, this is the CBSA’s role on the basis of all the relevant facts at the time of importation. The CBSA’s determination at that time could later be subject to an administrative review, an objection, a re-determination and, subsequently, an appeal before the Tribunal.^[13]
30. In Inquiry No. NQ-2008-003, the Tribunal interpreted the definition of the subject goods as including aluminum extrusion products that have been further processed, but only to a certain extent. The Tribunal found that the wording of the definition and the contextual guidance provided by the additional product information provided by the CBSA made it clear that aluminum extrusion products that have been anodized, painted or otherwise coated, and worked (e.g. precision cut, machined, punched and drilled) are included in the scope of the subject goods and, therefore, of the like goods.^[14] The Federal Court of Appeal found that the Tribunal did not improperly determine the scope of the subject goods in its original inquiry in this matter.^[15]
31. Therefore, it is on the basis of that same interpretation that the Tribunal will conduct this expiry review.

Validity of the CBSA’s Determination and Whether There is Evidence of Dumping

32. PSD submitted that the Tribunal should not accept the CBSA’s determination that the expiry of the findings was likely to result in a continuation or resumption of the dumping and subsidizing of the subject goods as incontrovertible. It also suggested that the Tribunal cannot make a finding of likely injury due to the resumed dumping and subsidizing unless it first makes a finding that dumping or subsidizing actually exists. In that connection, PSD submitted that, unless and until the domestic producers bring before the Tribunal an example of a specific product that is being dumped or subsidized and is causing injury, the Tribunal must find that neither dumping nor injury has been proven by the domestic producers and that, as such, all anti-dumping duties must no longer be imposed.
33. Contrary to PSD’s arguments, the Tribunal does not have jurisdiction in an expiry review to question the validity of the CBSA’s determination on the likelihood of resumed dumping and subsidizing. This is a matter that is within the CBSA’s exclusive jurisdiction under SIMA, and the Tribunal must accept the CBSA’s determination that such likelihood exists. If it disagreed with this determination, PSD’s recourse was the filing of an application for judicial review of the CBSA’s determination before the Federal Court of Appeal. As previously noted, the Tribunal’s mandate is limited to the determination of the issue of whether the expiry of its findings is likely to result in injury to the domestic industry. The Tribunal has no authority to investigate as to whether the subject goods are actually dumped or subsidized in these proceedings.
34. Therefore, whether there is evidence before the Tribunal of any specific product being dumped is legally irrelevant in this expiry review. Moreover, contrary to PSD’s submissions, under SIMA, there is no legal burden on the domestic producers to prove their position.^[16] No party has the onus to prove that injury would resume or continue should the findings expire. The Tribunal will make its determination on this issue on the basis of all information before it, including that which it seeks and gathers on its own. In other words, the Tribunal must conduct its own inquiry and reach a conclusion on the basis of its assessment of the totality of the evidence before it.

LIKE GOODS AND CLASSES OF GOODS

35. In order for the Tribunal to determine whether the resumed or continued dumping and subsidizing of the subject goods are likely to cause material injury to the domestic producers of like goods, it must determine which domestically produced goods, if any, constitute like goods in relation to the subject goods. The Tribunal must also assess whether there is, within the subject goods and the like goods, more than one class of goods.^[17]
36. Subsection 2(1) of SIMA defines “like goods” in relation to any other goods as follows: “. . . (a) goods that are identical in all respects to the other goods, or (b) in the absence of any [such] goods, . . . goods the uses and other characteristics of which closely resemble those of the other goods”.
37. In deciding the issue of like goods when goods are not identical in all respects to the other goods, the Tribunal typically considers a number of factors, including the physical characteristics of the goods (such as composition and appearance) and their market characteristics (such as substitutability, pricing, distribution channels, end uses and whether the goods fulfill the same customer needs).^[18]
38. In Inquiry No. NQ-2008-003, the Tribunal found that the aluminum extrusions produced in Canada closely resemble the subject goods in terms of physical and market characteristics, are manufactured by methods that also apply to the subject goods, have similar end uses and fulfill the same or similar customer needs. The Tribunal further found that aluminum extrusions produced by the domestic producers generally compete with the subject goods in the Canadian market. On that basis, the Tribunal concluded that domestically produced aluminum extrusions were like goods in relation to the subject goods of the same description.^[19]
39. In the course of this expiry review, no evidence was submitted that would warrant a departure from this conclusion. Accordingly, the Tribunal is satisfied that the aluminum extrusions produced in Canada, which include aluminum extrusion products that have been further processed to an extent, are like goods in relation to the subject goods.
40. Concerning the issue of like goods, the Tribunal notes that PSD submitted that SIMA requires the domestic producers to prove that there exists a domestically produced good that an importer, acting reasonably, would be indifferent to receiving (ignoring any price issues). According to PSD, duties under SIMA can only be imposed and collected on imported goods for which there is such a domestically produced alternative or equivalent.
41. This is legally incorrect. SIMA does not mandate the Tribunal to examine whether there exists a domestically produced good that each importer would be indifferent to receiving. This would effectively limit the definition of like goods to goods that are identical to the subject goods. As previously noted, domestically produced goods are like goods, even if they are not identical in all material respects to the subject goods, to the extent that they have sufficiently similar physical and market characteristics. Moreover, each importer’s preference is not a determinative factor in this analysis.
42. In this review, after having reviewed the evidence on all relevant factors, the Tribunal is satisfied that, while they are not identical to each product covered by the definition of the subject goods, the aluminum extrusions produced in Canada fulfill substantially the same customer needs and compete with the subject goods in the Canadian market. In particular, regarding the end use or application of the aluminum extrusions that PSD seeks to import from China, the Tribunal heard evidence that the domestic producers currently produce high-end aluminum extrusions for use as shower door parts or enclosures that appear similar to the subject goods that PSD requires.^[20] Given this evidence, the Tribunal is unable to conclude that there are no domestically produced aluminum extrusions that closely resemble or that are “like” the goods that PSD requires.
43. With regard to classes of goods, the Tribunal concluded in Inquiry No. NQ-2008-003 that there were important differences between standard-shaped (comprised of bars and rods, pipes and tubes, angles, channels, tees and beams) and custom-shaped (comprised of all other shapes) aluminum extrusions in terms of physical characteristics, customer needs and market characteristics, including substitutability, pricing, distribution channels and end uses. Accordingly, the Tribunal found that standard-shaped and custom-shaped aluminum extrusions constituted two separate classes of goods.
44. During the present expiry review, several witnesses for the domestic industry indicated that, as a matter of business operations, both standard-shaped and custom-shaped aluminum extrusions were treated as a single product.^[21] However, the Tribunal did not receive any written submissions or arguments challenging its previous determination regarding classes of goods. Moreover, when determining the issue of classes of goods, the Tribunal typically considers the same factors as those indicated above (e.g. physical and market characteristics, customer needs, etc.) and examines whether goods allegedly included in separate classes of goods constitute “like goods” in relation to each other.^[22] The business approach of the companies producing the goods or the manner in which they classify or treat goods for business operation purposes is not a determinative factor in this analysis.
45. In addition, in his testimony before the Tribunal, Mr. Halcrow confirmed that there were significant differences in price, end uses, distribution channels and customer needs between standard-shaped and custom-shaped aluminum extrusions.^[23] Given these disparities, the Tribunal sees no need to depart from its original finding that standard-shaped and custom-shaped aluminum extrusions constitute two classes of goods. Consequently, the Tribunal will conduct a separate likelihood of injury analysis for (1) aluminum extrusion products produced in standard shapes and (2) aluminum extrusion products produced in custom shapes.
46. It warrants emphasizing the legal significance of this conclusion. It means that all custom-shaped aluminum extrusion products designed and manufactured for numerous specific end uses (e.g. aluminum extrusions for use in electronic products, kitchen appliances, window coverings, shower enclosures, etc.) are regarded as comprising a single class of goods. In other words, all these products, although they come in a wide variety of shapes, are considered “like goods” in relation to each other and are deemed to compete with each other in the marketplace. As the Tribunal stated in Inquiry No. NQ-2008-003, it would be impractical and unreasonable to require that it define as many separate classes of goods as there are specific end uses for aluminum extrusions and conduct multiple injury analyses on that basis. Therefore, the Tribunal rejected claims that aluminum extrusion products designed and manufactured for specific end uses (e.g. aluminum extrusions for use in electronic products, kitchen appliances, shower enclosures, etc.) are all distinct from each other (i.e. are not like goods) and should each constitute a separate class of goods for the purpose of the Tribunal’s injury analysis.
47. This conclusion entails that, in the Tribunal’s likelihood of injury analysis, the relevant question is whether the likely resumed dumping and subsidizing of the subject custom-shaped aluminum extrusions, irrespective of their specific end uses, are likely to result in injury to the domestic industry producing “like” custom-shaped aluminum extrusions, even if the domestically produced custom-shaped aluminum extrusions may have end uses that are different from those of the subject custom-shaped aluminum extrusions.
48. Thus, contrary to PSD’s submissions, given the Tribunal’s conclusion that there are only two classes of goods in this expiry review, the domestic producers do not have to establish that they produce an equivalent product or an alternative for each specific custom-shaped aluminum extrusion that is covered by the definition of the subject goods in order to benefit from the protection afforded by SIMA. What matters is that there is clear evidence that there is domestic production of “like” custom-shaped aluminum extrusions, a class that has been broadly defined as including all shapes that are not standard shapes. In any event, the Tribunal notes that PSD has not argued that aluminum extrusion products designed and manufactured for the specific end use that it requires (e.g. aluminum extrusions for use in shower door enclosures) are distinct from other custom-shaped aluminum extrusion products such that they should constitute a separate class of goods for the purpose of the Tribunal’s likelihood of injury analysis.
49. The Tribunal further notes that, once it is established that there are domestically produced goods that are “like” the subject goods in both classes of goods, as is the case in this expiry review, anti-dumping duties will, in principle, be applicable to all goods that fall within the ambit of the definition of the subject goods, should the Tribunal determine that the expiry of its findings in respect of the subject goods is likely to result in injury to the domestic industry producing the like goods in both classes. The only exception to this principle is if the Tribunal decides to grant product exclusions for specific subject goods, if it is persuaded that the importation of such products will not cause injury to the domestic industry.
50. Accordingly, the Tribunal finds that domestically produced aluminum extrusions are like goods in relation to the subject goods, defined in the same manner, and that there remain two classes of goods, namely, standard-shaped and custom-shaped aluminum extrusions.

DOMESTIC INDUSTRY

51. The domestic industry is defined in subsection 2(1) of SIMA as the “. . . domestic producers as a whole of the like goods or those domestic producers whose collective production of the like goods constitutes a major proportion of the total domestic production of the like goods . . . .”
52. The Tribunal must therefore determine whether there is a likelihood of injury to the domestic producers as a whole or to those domestic producers whose production represents a major proportion of the total production of like goods.
53. The evidence indicates that there are 12 known Canadian producers of aluminum extrusion products. These are Almag, APEL, Apex, Can Art, Dajcor, Extrudex, Kawneer Company (Kawneer), Kromet International (Kromet), Metra, Sapa, Signature Aluminum (Signature) and Spectra.^[24] Within this group, 3 producers manufacture only custom-shaped aluminum extrusions, namely, APEL, Kromet and Metra. The 9 remaining producers manufacture aluminum extrusions in both standard shapes and custom shapes.^[25] Accordingly, the domestic industry for custom-shaped aluminum extrusions is composed of the 12 above-noted producers.
54. With respect to standard-shaped aluminum extrusions, the following nine producers constitute the domestic industry: Almag, Apex, Can Art, Dajcor, Extrudex, Kawneer, Sapa, Signature and Spectra. Together, these producers account for all the known domestic production of like goods in both classes.^[26]
55. The evidence also indicates that the domestic producers participating in this expiry review account for a major proportion of the total production of like goods in both classes. Indeed, the combined production of Almag, APEL, Apex, Can Art, Dajcor, Extrudex, Metra, Sapa and Spectra (excluding that of the non-participating domestic producers, namely, Kawneer, Kromet and Signature) represents more than 50 percent of the total production of like goods in both classes.^[27]

CROSS-CUMULATION

56. The Tribunal must also determine whether it will make an assessment of the cumulative effect of the dumping and subsidizing of the subject goods. In Inquiry No. NQ-2007-001,^[28] the Tribunal stated that it would not differentiate any effect resulting from the dumping of goods from any effect resulting from the subsidizing of the same goods for the purposes of its analysis, as it continued to hold the view that it was not possible to isolate the effects caused by the dumping of goods from those caused by the subsidizing of the same goods because they are so closely intertwined that it was impossible to unravel them so as to allocate specific or discrete portions to the dumping and subsidizing.^[29]
57. The Tribunal was presented with no evidence or argument that warrants departing from this approach. Accordingly, the Tribunal continues to be of the view that it is appropriate to assess the cumulative effect of the dumping and subsidizing of the subject goods for the purposes of its likelihood of injury analysis.

LIKELIHOOD OF INJURY ANALYSIS

58. In making its assessment of likelihood of injury, the Tribunal has consistently taken the view that the focus should be on circumstances that can reasonably be expected to exist in the near to medium term, which is generally considered to be 18 to 24 months from the expiry of a finding or an order.^[30] The Tribunal heard no argument that it should consider a different time period in this expiry review.
59. Subsection 37.2(2) of the Special Import Measures Regulations lists the factors that the Tribunal may consider in assessing the likelihood of injury. The factors that the Tribunal considers relevant in this expiry review are discussed in detail below.

Changes in Market Conditions

60. In order to assess the likely volumes and prices of the subject goods and their impact on the domestic industry if the findings are rescinded, the Tribunal will first consider changes in international and domestic market conditions.^[31] For the most part, the Tribunal will consider the changes in market conditions in common for the two classes of goods. Where appropriate, however, the Tribunal will make relevant distinctions between the two classes.

International Market Conditions

61. The financial crisis that began in 2008 resulted in global economic decline. Since that time, the global economy has been gradually recovering. However, during the POR, the economic growth experienced in many developed and developing countries noticeably slowed between 2011 and 2012.^[32]
62. Forecasts indicate that the global economy will continue to recover in 2014 and 2015, with growth rates of 3.0 and 3.3 percent respectively.^[33] However, there is no evidence on the record indicating that there will be a significant increase in the global demand for aluminum extrusions in the near to medium term. Accordingly, there is no basis upon which the Tribunal could conclude that the international market conditions for aluminum extrusions are likely to substantially improve in the next 18 to 24 months.
63. Due to overcapacity for extrusions in the European market and the struggling European economy, many European extruders have gone bankrupt. According to Metal Bulletin Research, the European market is becoming increasingly competitive due in part to these closures, as well as to the consolidation of extruders.^[34]
64. The Chinese economy posted an average growth rate of 9.4 percent from 2000 to 2009.^[35] During the POR, growth rates declined from 10.4 percent in 2010 to 7.8 percent in 2012.^[36] Forecasts on the record indicate that the Chinese economy will either continue to slow or remain flat from 2013 to 2015.^[37]
65. There is limited information on the record concerning the state of the market for aluminum extrusions in China. However, in the context of slower economic growth, it is reasonable to assume that the overall demand for aluminum extrusions in the Chinese market will either remain stable or decrease in the next 18 to 24 months. There is also evidence from a large Chinese aluminum extrusion manufacturer indicating that there are more than 600 Chinese firms involved in the production of aluminum products for construction use. According to this evidence, this has resulted in fierce competition which has adversely affected these producers’ profit margins.^[38]
66. Compounding this situation, it is also reported that China has massive overcapacity in aluminum production (including products other than aluminum extrusions).^[39] Given the forecasted flat or slowing demand for aluminum products in the Chinese domestic market and the continuing expansion of production capacity, the Tribunal finds that, in the next 18 to 24 months, Chinese manufacturers and exporters will likely seek to export a large and increasing share of their aluminum extrusion production. Finally, the Tribunal notes that, during the POR, both the United States and Australia imposed anti-dumping and countervailing duties on aluminum extrusions imported from China.^[40] As a consequence, Chinese manufacturers and exporters will likely not be able to export their excess production of aluminum extrusions to Australia or the United States and will likely be required to seek other markets, Canada being one such market.

Domestic Market Conditions

67. The Canadian economy has closely followed world economic trends showing a gradual recovery from the 2008 global financial crisis with a noticeable decrease in economic growth during the POR from 3.2 percent in 2010 to 1.8 percent in 2012.^[41] However, during this period, the domestic extrusion market achieved some measure of stability, which, according to testimony, is reflected in a slight improvement in gross margins realized by domestic producers of both classes of goods.^[42] Moving forward, economic growth is expected to improve slightly in both 2013 and 2014.^[43]
68. New entrants into the domestic extrusion industry are also a reflection of stability in the Canadian market. In this regard, a new producer, Apex, established a production facility in 2010, and two firms, Dajcor and Sapa, acquired the assets of former domestic producers.^[44] Both Dajcor and Sapa stated that the Tribunal findings allowed them to improve their operations and make significant investments to upgrade the manufacturing assets that they acquired.^[45] There is also speculation that a new production facility may open in Quebec.^[46]

–        Custom Shapes

69. Sales of domestically produced custom-shaped aluminum extrusions decreased from the period of inquiry (POI) in Inquiry No. NQ-2008-003 to the POR, but grew modestly during the POR. From 2010 to 2012, sales from domestic production increased by 2 percent, but there was an overall decrease of 17 percent from 2007 to 2012. Similarly, the total apparent market, in terms of sales volume, for custom-shaped aluminum extrusions decreased by 6 percent from 2007 to 2012. Between 2007 and 2012, the domestic producers lost approximately 9 percentage points of market share, while other non-subject countries, predominantly the United States, gained market share.^[47]
70. Despite the decline in the total apparent market for custom shapes, in terms of sales volume, between 2007 and 2012, the evidence indicates that, between 2010 and 2012, it increased by 22 percent.^[48]
71. Custom-shaped aluminum extrusions from China maintained a share of this market ranging from 4 to 6 percent during the POR and, despite the application of anti-dumping and countervailing duties, accounted for over 15 percent of total imports of custom shapes throughout the POR.^[49]
72. The evidence also indicates that, in terms of volume and market share, imports of custom shapes from non-subject countries increased steadily during the POR.^[50] In this regard, witnesses for the domestic industry testified that, in specific documented cases, imports from countries other than the United States and China have typically been at prices between 15 and 20 percent lower than the price of the like goods.^[51] The domestic industry is therefore facing increased competition from sources other than China and the United States in the market for custom shapes.
73. There is also evidence that the contraction in the market for custom-shaped aluminum extrusions since 2007 may be attributable to the importation of dumped and subsidized unitized wall modules from China into Canada during this period. Unitized wall modules are non-subject downstream products that incorporate custom-shaped aluminum extrusions as an input.
74. A witness for the domestic industry testified that a significant portion of the decline in the domestic producers’ market share for custom-shaped aluminum extrusions was a direct result of dumped and subsidized unitized wall modules imported from China. According to this testimony, the loss of large construction projects by domestic manufacturers of unitized wall modules during the POR led to a reduced demand for domestically produced custom-shaped aluminum extrusions.^[52]
75. On November 12, 2013, in Inquiry No. NQ-2013-002,^[53] the Tribunal found that the dumping and subsidizing of unitized wall modules from China threatened to cause injury to domestic producers of unitized wall modules. Therefore, anti-dumping and countervailing duties now apply on imports of unitized wall modules from China.
76. According to the above-noted testimony, this recent finding is likely to have a positive impact on the domestic industry producing custom-shaped aluminum extrusions by increasing the demand for domestically produced unitized wall modules and, by doing so, increasing the demand for domestically produced custom-shaped aluminum extrusions used by domestic manufacturers of unitized wall modules.
77. Testimony by domestic industry witnesses suggested that, given the expected weakening of the Canadian dollar in the near future,^[54] domestic manufacturers of unitized wall modules will no longer be able to use the strong Canadian dollar to secure more favourable aluminum extrusion pricing from U.S. suppliers, which will also benefit domestic producers of custom-shaped aluminum extrusions.
78. Despite such testimony, domestic producers submitted that the overall market for standard-shaped and custom-shaped aluminum extrusions is going to be “flat to down” in the next couple of years. Domestic industry witnesses testified that the market for standard shapes reached its peak during the POR and, like the market for custom shapes, will now flatten or go down.^[55] This testimony was corroborated by the Tribunal’s witness who indicated that he does not expect much growth in the domestic market, unless the value of the Canadian dollar relative to the U.S. dollar decreases to $0.85.^[56]

–        Standard Shapes

79. Evidence indicates significant growth in the market for standard shapes since the issuance of the findings. Indeed, from 2007 to 2012, the apparent market grew by approximately 150 percent in terms of volume. The apparent market also expanded rapidly in the last three years, increasing by 64 percent between 2010 and 2012.^[57]
80. Significant growth in the market for standard shapes is reflected in an absolute increase in sales from domestic production compared to the POI in Inquiry No. NQ-2008-003.^[58] From 2010 to 2012, sales from domestic production increased by 13 percent.^[59]
81. Despite this increase in sales of like goods, the domestic producers’ market share declined throughout the POR, before slightly increasing in the first three quarters of 2013. Irrespective of this recent small increase, the domestic industry’s share of the market for standard shapes remains much lower than it was during the POI in Inquiry No. NQ-2008-003, declining from 34 percent in 2007 to 16 percent in 2012.^[60]
82. According to witness testimony and documentary evidence on the record, from 2007 to 2012, the domestic industry failed to capture a share of a significantly growing market for standard shapes and lost this opportunity to goods from non-subject countries, predominantly the United States.^[61]
83. On the basis of the above-noted evidence, coupled with evidence that imports of standard-shaped aluminum extrusions from China were negligible during the POR,^[62] the Tribunal concludes that imports from non-subject countries, predominantly the United States, replaced the market share held by standard shapes from China.
84. Domestic industry witnesses testified about the effect of the prevailing exchange rate between the Canadian dollar and the U.S. dollar on the flow of trade in aluminum extrusions between Canada and the United States. Typically, when the value of the Canadian dollar appreciates against the value of the U.S. dollar, as it did during the POR, imports from the United States are less expensive and more attractive for Canadian purchasers.^[63]
85. Now that the Canadian dollar is losing value against the U.S. dollar, and is projected to continue doing so, domestic industry witnesses testified that imports from the United States are becoming less attractive to Canadian purchasers.^[64] This testimony was corroborated by the Tribunal’s witness. He testified that the weakening of the Canadian dollar will provide the domestic industry with an opportunity to make additional sales.^[65] On the basis of this evidence, exchange rate fluctuations had a significant impact on the increased volume of standard shapes imported from the United States during the POR.

Likely Volumes of Dumped and Subsidized Goods

86. Paragraph 37.2(2)(a) of the Regulations directs the Tribunal to consider the likely volume of the dumped or subsidized goods if the findings are allowed to expire, and, in particular, whether there is likely to be a significant increase in the volume of imports of the dumped or subsidized goods, either in absolute terms or relative to the production or consumption of like goods.
87. The Tribunal’s assessment of the likely volumes of dumped and subsidized imports encompasses the likely performance of the foreign industry, the potential for foreign producers to produce goods in facilities that are currently used to produce other goods, evidence of the imposition of anti-dumping and/or countervailing duties in other jurisdictions, and whether measures adopted by other jurisdictions are likely to cause a diversion of the subject goods to Canada.^[66]
88. The domestic producers submitted that significant volumes of the subject goods in both classes of goods will enter the domestic market if the findings are allowed to expire. In their view, the best predicator for future volumes of imports from China is the unprecedented amount of anti-dumping duties collected while the findings have been in effect, indicating that significant imports of the subject goods continued during the POR. The domestic producers argued that this demonstrates not only the continued interest of Chinese exporters and manufacturers in the Canadian market but also an ingrained behaviour of exporting dumped and subsidized goods. The domestic producers argued that, if the imposition of duties has simply slowed the volume of imports of the subject goods, it follows logically that allowing the findings to expire will immediately have the effect of increasing the volume of imports of the subject goods.
89. The domestic producers also filed evidence indicating that the market for aluminum extrusions is slowing down in China and that, while Chinese producers already have substantial production overcapacity, they are currently adding or planning to add additional capacity. According to the domestic producers, this continuing expansion of production capacity in the face of slowing demand in the Chinese market has intensified the need of Chinese producers to export extrusions in both classes of goods to lucrative markets like Canada.^[67]
90. The Tribunal will first address the likely performance of the Chinese industry, in light of the reported slowdown in the growth of the Chinese economy, and the Chinese industry’s production capacity and capacity utilization for the subject goods. The Tribunal will then consider whether it is likely that there will be a significant increase in the volume of the subject custom-shaped aluminum extrusions and of the subject standard-shaped aluminum extrusions exported to Canada if the findings are rescinded.
91. Each of the witnesses for the domestic industry noted the reported slowdown of the Chinese economy and stated that there is massive and underutilized aluminum extrusion production capacity in China. According to their evidence, this situation has created a production imperative with a propensity to export for Chinese manufacturers.^[68]
92. This is consistent with other evidence on the record. For example, the Tribunal’s witness stated that the production capacity in China “. . . dwarfs any capacity that we have in Canada.”^[69] The reported production capacity for aluminum extrusions held by the 50 largest producers in China in 2012 was approximately 21 times larger than the size of the entire Canadian market for both classes of goods for that year.^[70] It is also reported that these large producers plan to add capacity for 2014 and 2015, despite the fact that they are currently far from operating at full capacity.^[71]
93. Other evidence on the record indicates that a lot of the Chinese aluminum extrusion production capacity is concentrated among other small- and medium-sized producers. The capacity utilization rate for these smaller producers was reported to be at 60 percent in March 2013.^[72] The information on the record also indicates that Chinese production of aluminum extrusions increased at a faster rate than global demand throughout the POR.^[73] It is reasonable to assume that this trend will continue in the near future. On the basis of this evidence, the Tribunal finds that there is significant production overcapacity in China and that the total production of aluminum extrusions in China is likely to increase in the next 18 to 24 months.
94. There is no evidence on the record that increased production of aluminum extrusions in China will be consumed by its domestic market. To the contrary, the evidence on the record indicates slowing economic growth in China, which will likely result in lower domestic demand for aluminum extrusions. Indeed, it is reported that the ratio of Chinese production of aluminum extrusions to its domestic consumption has been declining since 2009.^[74]
95. The Tribunal finds that Chinese production of aluminum extrusions has consistently been increasing even as its economy slows. Since there is no evidence indicating that the domestic consumption of aluminum extrusions will grow sufficiently to absorb this increased production, the Tribunal further finds that this situation is likely to result in the need for Chinese producers to export higher volumes of the subject goods in both classes of goods.
96. The Tribunal will now assess the likely import volumes of the subject goods and consider whether there would be a significant increase in the volume of the subject goods exported to Canada if the findings are allowed to expire.

Custom Shapes

97. The evidence on the record supports the domestic producers’ submission that imports of the subject custom shapes continued at a significant level during the POR. The volume of imports of custom shapes from China increased in absolute terms during the POR. Relative to the production and consumption of like goods, there was also an increase in the volume of imports of the subject custom shapes between 2010 and 2012.^[75]
98. Further, the evidence on the high amount of anti-dumping and countervailing duties collected by the CBSA on aluminum extrusions since 2010 supports the view that the subject custom-shaped aluminum extrusions maintained a strong presence in the Canadian market during the POR. The enforcement data indicate that over $41 million of duties have been collected since 2010.^[76] This demonstrates that Chinese manufacturers and exporters have a continuing interest in selling custom shapes in Canada. Accordingly, despite the application of anti-dumping and countervailing duties, Canada remained an attractive market for Chinese manufacturers and exporters.
99. This evidence also indicates that Chinese manufacturers and exporters have maintained contacts with Canadian importers and purchasers. In fact, the Tribunal’s witness stated that certain Canadian distributors have people on the ground in China and are likely to increase their volume of imports very quickly should the findings be rescinded.^[77] This suggests that, in the absence of the findings, an increased volume of the subject custom shapes would most likely immediately be exported to Canada.
100. There is also evidence of the imposition of anti-dumping or countervailing duties in respect of aluminum extrusions from China, including custom shapes, by the relevant authorities in the United States and Australia. Therefore, exports of Chinese aluminum extrusions to those markets will be limited in the near to medium term. The evidence also indicates that measures taken in other jurisdictions, especially in the United States, are likely to cause a diversion of the subject goods to Canada. In this regard, the Tribunal’s witness stated that, if the findings are rescinded, those Chinese exporters that can no longer sell in the U.S. market will target the Canadian market and try to sell their products through every distributor in Canada in order to remain in the North American supply chain.^[78] Other witnesses made similar statements about the diversion of aluminum extrusions to the adjacent Canadian market while the measures are in place in the United States.^[79]
101. Therefore, the Tribunal agrees with the domestic producers that it is reasonable to expect that volumes of the subject custom-shaped aluminum extrusions will increase and that Chinese exports will quickly regain substantial market share if the findings are rescinded. The Tribunal notes that, in 2007, before the findings were made, the subject custom-shaped aluminum extrusions held 12 percent of Canadian market share.^[80]
102. In summary, having considered the large scale of the Chinese aluminum extrusion industry, the moderating growth rate of the Chinese economy, the export orientation of Chinese producers, their ongoing interest in the Canadian market and the effect of measures in place in other jurisdictions, the Tribunal concludes that there will be a significant increase in the volume of the subject custom-shaped aluminum extrusions in the Canadian market in the near to medium term, if the findings are rescinded.
103. Accordingly, the Tribunal finds that there is likely to be a significant increase in the volume of imports of the subject custom shapes, both in absolute and relative terms, if the current findings are rescinded.

Standard Shapes

104. Unlike the situation for custom-shaped aluminum extrusions, imports and sales of the subject standard-shaped aluminum extrusions were minimal during the POR. The volume of imports of the subject standard shapes declined and represented at most 1 percent of all imports. However, in 2007, before the findings were made, the subject standard-shaped aluminum extrusions held 22 percent of the Canadian market.^[81] This suggests that these subject goods are not competitive in the Canadian market when anti-dumping and countervailing duties are applied. This does not however indicate that Canada is no longer an attractive export market for Chinese manufacturers and exporters.
105. Indeed, if the findings are rescinded, the evidence indicates that the volume of imports of the subject standard shapes is also likely to be significant. In this regard, the previously noted evidence concerning the projected increase in the volume of the subject custom shapes provided by the witnesses applies equally to the subject standard shapes. The same conclusion can be reached concerning the potential diversion of aluminum extrusions to the Canadian market as a result of anti-dumping or countervailing measures taken in other jurisdictions, especially the United States.
106. Similarly, given that custom shapes and standard shapes are manufactured using the same equipment, the existing relationships between Chinese manufacturers and Canadian distributors and the existence of well-established distribution networks used by Chinese exporters in the Canadian market for the sale of custom shapes would facilitate the speedy return of the subject standard shapes to the Canadian market.
107. The Tribunal further notes that it has already found that imports of standard shapes from the United States, which increased significantly during the POR due to the strong Canadian dollar, are likely to decrease in the next 18 to 24 months, given the projected weakening of the Canadian dollar. Witnesses have alluded to a 50 percent decline.^[82] The Tribunal finds that this will create a huge market opportunity for Chinese manufacturers and exporters of standard shapes if the findings are rescinded. In this context, it is likely that the market share of the subject standard-shaped aluminum extrusions would return to its pre-findings levels. Witnesses for the domestic producers gave undisputed evidence to that effect.^[83]
108. On balance, the long-standing relationships between Canadian purchasers and distributors and Chinese producers, the producers’ and exporters’ interest in maintaining and strengthening access to the Canadian market, coupled with China’s massive production capacity and slowing economy, make it reasonable to conclude that, if the findings are rescinded, there is likely to be a significant increase in the volume of imports of the subject standard-shaped aluminum extrusions into Canada, both in absolute and relative terms.

Likely Prices of Dumped and Subsidized Goods and the Effect on Prices of Like Goods

109. In assessing the impact that the likely post-rescission prices of the subject goods would have on the prices of like goods, the Tribunal examined whether the subject goods are likely to significantly undercut, depress or suppress the prices of the like goods.^[84]
110. The domestic producers submitted that, while the findings have been in place, imports from countries such as India, Malaysia, the Republic of Korea (Korea), Indonesia, Thailand and Vietnam have gained market share due to their low prices. It was submitted that these imports have an impact on the prices in both classes of goods in the Canadian market and that domestic producers are often required to discount pricing to several customers in response to a single import offering.
111. The domestic producers argued that, if the findings are rescinded, the subject goods will be priced below imports from the above-noted non-subject countries, as Chinese exporters would attempt to recover market share lost while the findings were in place. They further argued that this would exacerbate their losses already experienced as a result of competition from non-subject countries. The Tribunal notes that the domestic producers’ submissions on the likely prices of the subject goods and their adverse effects on the prices of the like goods are the same for both classes of goods.
112. Before addressing the domestic producers’ claims and assessing the impact that the likely post-rescission prices of the subject goods would have on the prices of like goods, the Tribunal must determine the proper price comparison between imported aluminum extrusions and the extrusions produced by the domestic industry in light of the evidence before it in this expiry review. In this regard, the Tribunal heard testimony that the most appropriate price comparison between imports and domestically produced goods is the selling prices of domestically produced goods and the import values of imported aluminum extrusions, including the subject goods. The Tribunal heard that, when importers resell their imports to other distributors or end users, the selling value contains an additional markup, therefore inflating it above the price of the domestically produced goods.^[85]
113. The evidence also indicates that many of the larger importers that completed a Tribunal expiry review questionnaire are the same purchasers to whom the domestic industry sells its aluminum extrusions.^[86] In these instances, the domestic producer loses the sale when the importer decides to purchase imported goods. Therefore, it is the comparison between the importers’ purchase price and the domestic producer’s selling price that is most indicative of price competition in the Canadian market. As such, the Tribunal compared the net delivered purchase value of imports ($/kg) to the net delivered selling value of domestically produced goods ($/kg) for the purposes of examining trends in pricing over the POR and assessing the likely price effects of the subject goods in both classes of goods.

Price Undercutting

114. The domestic producers submitted that, if the findings are rescinded, the subject goods will re-enter the Canadian market at a price designed to undercut imports from the lowest-price sources. The domestic producers predicted a landed import value of the subject goods of $3.63/kg using Statistics Canada import data.^[87] This price is based on the value for duty for imports from India, Malaysia, Korea, Indonesia, Thailand and Vietnam that are classified in heading No. 76.04 of the schedule to the Customs Tariff,^[88] with certain adjustments made to account for goods outside the size range of the product definition and the addition of $0.40/kg for transportation to Canada.^[89] The Tribunal will assess if this theory is supported by the evidence in its analysis.
115. The Tribunal notes that the above-described likely price of $3.63/kg for the subject goods predicted by the domestic producers is an average price for both standard-shaped and custom-shaped aluminum extrusions. As custom-shaped aluminum extrusions are generally higher-priced than standard-shaped aluminum extrusions,^[90] it is reasonable to expect that, if the domestic producers’ theory is supported by the evidence, the likely price of the subject standard shapes in the absence of anti-dumping and countervailing duties will likely be lower than $3.63/kg.

–        Custom Shapes

116. Looking specifically at custom-shaped aluminum extrusions, with the findings in place, the net delivered purchase value^[91] of the subject goods exceeded the net delivered selling value of the domestically produced goods in each period of the POR, except for the period of January to September 2013.^[92]
117. In contrast, the net delivered purchase value of imports of custom shapes from the United States undercut the net delivered selling value of the like goods by 10 to 14 percent. The net delivered purchase value of imports of custom shapes from other non-subject countries also undercut the net delivered selling value of the like goods by approximately 4 to 17 percent.^[93]
118. In this respect, the Tribunal notes that responses to the expiry review questionnaires indicate that, during the POR, there were imports of custom-shaped aluminium extrusions from certain countries identified by the domestic producers as low-priced sources that were delivered to Canada for less than $3.63/kg.^[94] While the Tribunal is unable to forecast a specific price for the subject goods, including custom shapes, arriving in the Canadian market if the findings are rescinded, there is no evidence on the record to dispute the domestic producers’ theory that the subject custom shapes will have to be priced at a level below that of other offshore sources in order to recapture market share in Canada.
119. Recognizing that the market share held by non-subject custom shapes increased during the POR,^[95] the Tribunal finds it reasonable to expect that the prices of the subject custom-shaped goods would have to undercut the prices of non-subject custom-shaped goods in order to recapture market share lost while the findings were in place. In other words, after having reviewed the evidence on the record, the Tribunal finds that it is likely that the subject custom-shaped aluminum extrusions will be the low price leaders in the Canadian market if the findings are rescinded.^[96]
120. Furthermore, the evidence shows that, during the POI in Inquiry No. NQ-2008-003, the net delivered purchase value of the subject custom-shaped aluminium extrusions was approximately 15 to 31 percent lower than the net delivered selling value of the domestically produced goods.^[97] On the basis of the evidence before it, the Tribunal finds it reasonable to expect that price undercutting of this magnitude will recur if the findings are rescinded. Therefore, the Tribunal concludes that, if the findings are rescinded, it is likely that prices of the subject custom-shaped aluminum extrusions will significantly undercut those of the like goods in the domestic market.

–        Standard Shapes

121. As with custom shapes, the net delivered purchase value of the subject standard-shaped goods exceeded the net delivered selling value of the like goods in all periods of the POR, except for January to September 2013.^[98]
122. The net delivered purchase value of imports of standard shapes from the United States also exceeded, or was no more than $0.05 less than, the net delivered selling value of domestically produced standard-shaped goods. For imports of standard-shaped goods from other non-subject countries, the weighted average net delivered purchase value was 12 to 15 percent lower than the net delivered selling value of domestically produced standard-shaped goods in each period of the POR, except for January to September 2013, where it was 2 percent below the net delivered selling value of the like goods.^[99]
123. During the POR, the net delivered import value of standard-shaped goods from non-subject countries other than the United States was between $3.18/kg and $3.77/kg.—already below the $3.63/kg unit value forecast by the domestic producers—in all but the most recent period of the POR. Prior to the findings being in place, the net delivered import value of the subject standard-shaped aluminum extrusions undercut the net delivered selling value of the like goods by 13 to 30 percent.^[100]
124. While the Tribunal cannot predict a specific likely unit value of the subject standard-shaped aluminum extrusions absent its findings, it finds it reasonable to accept, on the basis of its review of the evidence on the record, that, if the findings are rescinded, the subject standard-shaped aluminum extrusions will undercut the current lowest prices in the market in order to recapture market share lost while the findings were in place.
125. The Tribunal’s conclusion on the likely prices of standard-shaped aluminum extrusions echoes its conclusion on the likely prices of custom-shaped aluminum extrusions. Simply put, there is insufficient evidence on the record to convince the Tribunal that the rationale underpinning its conclusion of the likely price undercutting of the subject custom-shaped aluminum extrusions should not apply to the subject standard-shaped aluminum extrusions. Therefore, the Tribunal concludes that, if the findings are rescinded, the prices of the subject standard shapes will compete with the lowest-priced non-subject goods in the market and significantly undercut the prices of the domestically produced standard shapes.

Price Depression and Price Suppression

126. The Tribunal is of the view that the likely undercutting of the price of the like goods by the subject goods in both classes is likely to cause the price of the like goods in both classes to erode in response to increased competition in the Canadian market from dumped and subsidized imports. The Tribunal finds that this will result in price depression for the domestic industry.
127. The Tribunal heard testimony that purchasers of aluminum extrusions are price sensitive and that there is transparency of pricing in the market.^[101] Witnesses at the hearing also testified that, in addition to competition with other low-priced sources, competition among Chinese producers would also lead to lower prices in the Canadian market and depress the prices of the domestic producers.^[102]
128. Domestic industry witnesses testified that, if the prices of the subject goods were below the cost of production for like goods, the domestic producers would either lose those sales or reduce their prices to win them and experience deteriorating financial results.^[103] Additionally, while the evidence contained in the staff reports indicates that the prices of like goods followed the cost of goods sold by domestic producers during the POR,^[104] witnesses for the domestic producers testified that, during this period, certain domestic producers were unable to increase or had difficulty increasing prices to the levels necessary to cover operating cost increases.^[105]
129. The domestic producers argued that, if the findings were rescinded, the prices of like goods in both classes of goods would decline by approximately 10 percent. In assessing the domestic industry’s claims of likely price erosion, the Tribunal used the most recent London Metals Exchange and Midwest Premium pricing information on the record and added to it a weighted average conversion cost calculated using the conversion rates submitted by the domestic producers during the hearing and each producer’s share of domestic sales in full year 2012.^[106] This resulted in an average selling price of $4.63/kg based on the most up-to-date information on the record.^[107]
130. While the Tribunal’s constructed unit value of $4.63/kg for the like goods is similar to the selling prices of domestically produced custom shapes during the POR, it exceeds that of domestically produced standard-shaped aluminum extrusions during the POR. In the Tribunal’s view, this is likely due to the fact that standard-shaped aluminum extrusions are lower-priced than custom-shaped aluminum extrusions and, therefore, priced below the average of both standard shapes and custom shapes, which, for the like goods, is over 80 percent weighted towards the price of custom shapes.^[108]

–        Custom Shapes

131. As previously noted, the domestic producers projected that, if the findings were rescinded, the subject goods would re-enter the Canadian market at a landed import value of $3.63/kg, a projection that is supported by the evidence.^[109] When compared with the Tribunal’s constructed unit value of the like goods, the subject goods would undercut the price of the like goods by 21 percent. This degree of undercutting appears to be reasonable in light of the previously mentioned undercutting that occurred during the POI in Inquiry No. NQ-2008-003.
132. Moreover, given the testimony received by the Tribunal indicating that domestic custom-shaped aluminum extrusions can demand up to a 10 percent premium over offshore goods,^[110] a 10 percent decline in prices would seem reasonable. This degree of price erosion would result in a selling price of $4.17/kg. In such a scenario, the projected price of $3.63/kg for the subject goods would undercut the price of like goods by 13 percent, allowing for the approximate 10 percent price premium for the like goods over the subject goods. As such, the Tribunal considers the domestic producers’ estimate of a 10 percent price erosion to be reasonable. The Tribunal, therefore, finds that, if the findings are rescinded, the domestic producers will be forced to lower their prices to compete with the subject custom-shaped aluminum extrusions and maintain their market share, which would lead to an overall decline in prices in the domestic market. Even if the domestic producers are able to maintain a certain margin over imported goods, the Tribunal considers that this margin would be eroded as domestic producers compete with the subject custom-shaped goods.
133. In the face of increased price competition from the subject custom-shaped aluminum extrusions, the Tribunal further finds that it is likely that the domestic producers will have difficulty to pass on any increase in material or conversion costs for the domestically produced custom-shaped aluminum extrusions in the next 18 to 24 months. The suppressing effect of the subject custom shapes would manifest itself in the form of lost sales and deteriorating financial results, as it is likely that domestic producers will forgo sales that cannot cover material costs.
134. The Tribunal concludes that, if the findings are rescinded, it is likely that the subject custom-shaped goods will undercut the prices of the like goods, resulting in significant price depression and price suppression.

–        Standard Shapes

135. The Tribunal finds that the increased volume of dumped and subsidized standard-shaped goods that will enter the Canadian market at prices that undercut the current selling prices of domestically produced standard-shaped goods, and the current lowest prices in the market, is likely to depress the prices of domestically produced standard-shaped goods and cause prices to erode, as Chinese exporters seek to gain market share with dumped and subsidized goods.
136. While, as previously noted, the Tribunal’s constructed unit value of $4.63/kg for like goods exceeds the selling price of domestically produced standard-shaped aluminum extrusions during the POR, the Tribunal still considers the domestic producers’ claim of 10 percent price erosion to be reasonable. In particular, the Tribunal expects that the subject standard-shaped goods will undercut domestically produced standard-shaped goods to the same extent that the subject custom-shaped goods will undercut their domestic counterpart. That stated, the Tribunal heard testimony that, in some cases, the accepted premium for domestically produced standard-shaped aluminum extrusions might be less than the 10 percent previously noted above.^[111] In light of this testimony, the Tribunal considers that price competition for standard-shaped aluminum extrusions will be just as rigorous as that for custom-shaped aluminum extrusions, if not more. Thus, the Tribunal finds that, if the findings are rescinded, the domestic producers will experience price depression on standard-shaped aluminum extrusions, as Chinese exporters compete with the current lowest prices in the market to regain market share lost when the findings were in place.
137. As with custom-shaped aluminum extrusions, selling prices closely followed the domestic producers’ cost of goods sold over the POR,^[112] and the Tribunal considers that domestic producers will have difficulty increasing prices to pass on any increase in material or conversion costs for standard-shaped aluminum extrusions when faced with competition from the subject goods that undercut the price of the like goods. Likewise, the suppressing effect of the subject goods would manifest itself in the form of lost sales and deteriorating financial results, as it is likely that domestic producers will forgo sales that cannot cover material costs.
138. In summary, the Tribunal finds that, if the findings are rescinded, it is likely that the price of the subject standard-shaped goods will undercut prices of the like goods, resulting in significant price depression and price suppression.

Likely Performance of the Domestic Industry and Likely Impact of the Dumped and Subsidized Goods on the Domestic Industry

139. The Tribunal will next turn to an assessment of the likely impact of the above volumes and prices on the domestic industry if the findings are rescinded, taking into consideration the likely performance of the domestic industry.^[113]
140. The domestic producers submitted that, if the findings were rescinded, the resumed dumping and subsidizing of the subject goods would have an immediate and substantial negative impact on prices, revenues, gross margins, profits, investments, sales, market share and employment.
141. In particular, the domestic industry noted several investments made by domestic producers over the POR and submitted that the resumption of the dumping and subsidizing of the subject goods would inhibit their ability to earn a reasonable return on those investments. It was further submitted that, if the findings were rescinded, the domestic industry would become unprofitable in 2014 and 2015.

Custom Shapes

142. In assessing the likely impact of the subject custom shapes if the findings are rescinded, the Tribunal began by examining the recent performance of the domestic industry.
143. Overall, the performance of the domestic industry was stable during the POR; production and sales of the like goods increased, but market share did not, and the growth in the market was captured by imports from the United States and other non-subject countries.^[114]
144. Over the same period, the domestic industry’s capacity utilization was stable and employment levels increased.^[115]
145. An examination of the domestic industry’s consolidated financial results shows that, between 2010 and 2012, gross margin decreased by approximately 3 percent and net income declined by approximately 4 percent. Between January and September 2012 and January and September 2013, gross margin was steady, while net income declined by 9 percent.^[116]
146. Looking forward, the evidence indicates that the overall Canadian economy is forecast to grow by 2.4 percent in 2014, which is a slight improvement over the forecast growth of 1.5 percent for 2013.^[117] The Tribunal heard that the domestic market for aluminum extrusions will experience flat growth in 2014 and a decline in 2015.^[118]
147. The Tribunal also heard testimony that the flow of trade is impacted by currency exchange rate.^[119] During the POR, the Canadian dollar gained in value compared to the U.S. dollar and, as a result, imports from the United States became relatively less expensive and captured market share.^[120] The evidence indicates that this situation is likely to change in the next 18 to 24 months, as the value of the Canadian dollar has started to depreciate vis-à-vis the U.S. dollar, and that this trend is expected to continue in the near to medium term.^[121] The Tribunal finds it likely that, if the Canadian dollar depreciates relative to the U.S. dollar, there will likely be an opportunity for the domestic industry to increase sales in the Canadian market. The Tribunal finds, however, that this opportunity will likely be diminished by the return of the subject custom-shaped aluminum extrusions in large volumes and at low prices, if the findings are rescinded.
148. While a Canadian dollar depreciating against the U.S. dollar could lead to increased opportunities for domestic producers to export aluminum extrusions to the United States, the Tribunal finds it likely that such opportunities will be constrained by U.S. producers’ renewed focus on their domestic market due to the findings on Chinese aluminum extrusions in the United States and the prevailing Canadian dollar and U.S. dollar exchange rate.
149. Domestic producers provided uncontroverted evidence of reduced sales revenues and profits or of lost sales, if the findings expire, and of market prices for aluminum extrusions that are significantly depressed. Certain producers estimated the injury in the form of reduced sales revenues and profits if the market prices are depressed by 10 percent.^[122]
150. On the basis of the evidence on the record, corroborated by witness testimony, the Tribunal finds that the scenarios presented by the domestic producers are credible and reasonable and substantiate their claim that the expiry of the findings will result in material injury to the domestic industry.
151. The Tribunal examined the financial results of the domestic industry over the POR and considered the impact of a 10 percent decline in net sales revenue, while maintaining the assumption that the decline in price would keep sales volumes stable.^[123] It is the Tribunal’s finding that a 10 percent decline in prices and net sales revenue will have a significant negative impact on the financial results of the domestic industry, thereby causing material injury.
152. Similarly, and consistent with evidence that the volume of the subject custom shapes would not remain stable, but would increase, the Tribunal finds that, if the findings are rescinded, it is likely that the domestic producers will lose production volume, sales and market share.
153. In summary, the Tribunal finds that, if the findings are rescinded, the domestic industry will almost certainly suffer from significant and serious material injury caused by the subject goods. The subject custom shapes will significantly undercut the price of the like goods, causing price depression and suppression. This, in turn, will have a material adverse impact on the domestic industry’s sales volume and market share, and result in a decline in net sales revenue and gross margins. These negative impacts will carry over into reduced return on investment, production and employment levels.

Standard Shapes

154. During a period of significant growth in the domestic market for standard shapes, the domestic industry’s performance improved during the POR with both production and sales of the like goods increasing, with the exception of a decline in production in interim 2013. That stated, the domestic industry producing standard shapes failed to capture much of the growth in the apparent market and lost this opportunity to gain market share, as evidenced by the increase in the market share held by imports from non-subject countries, predominantly imports from the United States.^[124]
155. Over the POR, the domestic industry’s capacity utilization was stable and employment levels increased.^[125]
156. The domestic industry’s consolidated gross margin was stable between 2010 and 2012 and declined by 3 percent from January to September 2013, compared to the same period of 2012. Net income increased by 11 percent between 2010 and 2012 and declined by 13 percent from January to September 2013, compared to the same period of 2012.^[126]
157. Documentary evidence on the record indicates that the overall Canadian economy is expected to grow by 2.4 percent in 2014, which is a slight improvement over the forecast growth of 1.5 percent for 2013.^[127] Witnesses testified that the significant growth in the market for standard shapes experienced during the POR was largely due to the building construction market and that such a level of growth was not expected to continue.^[128]
158. Testimony also indicated that the slowdown in demand for standard-shaped aluminum extrusions had already begun and was noticeable in the data contained in the staff report, as the total apparent market decreased by 9 percent in interim 2013 compared to interim 2012.^[129]
159. Witnesses for the domestic industry indicated that the domestic market for aluminum extrusions would experience flat growth in 2014 and a decline in 2015.^[130] This forecast was largely supported by testimony from the Tribunal’s witness who indicated that growth was largely dependent on regional markets and downstream end use and would not be consistent across all aspects of the economy.^[131]
160. Witness testimony about custom-shaped aluminum extrusions indicated that the flow of trade for standard-shaped aluminum extrusions is impacted by currency exchange rate.^[132] As the Canadian dollar remained strong relative to the U.S. dollar during the POR, imports from the United States became relatively less expensive and captured market share.^[133] Due to the flat growth anticipated in the domestic market for aluminum extrusions and the depreciation of the Canadian dollar, the Tribunal already found, in its analysis of the likely impact of the subject goods on the domestic industry producing custom shapes, that there could be an opportunity for the domestic industry to increase sales in the Canadian market, which would be diminished, if not eliminated, by the return of dumped and subsidized goods in large volumes and at low prices in the Canadian market. These findings apply equally to the domestic industry producing standard-shaped aluminum extrusions. Lastly, the Tribunal finds that increased export opportunities of standard shapes to the United States are similarly likely to be offset by U.S. producers’ focus on supplying the U.S. market with domestically produced goods after the imposition of its own anti-dumping and countervailing duties on Chinese aluminum extrusions.
161. Domestic producers provided uncontroverted evidence of reduced sales revenues and profits or of lost sales, if the findings expire, and of market prices for aluminum extrusions that are depressed by 10 percent.^[134] By and large, this evidence applies equally to the likely adverse impact of the subject standard shapes on the domestic industry.
162. On the basis of the evidence on the record, corroborated by witness testimony, the Tribunal finds that the scenarios presented by the domestic producers are credible and reasonable and also substantiate their claim that the expiry of the findings will result in material injury to the domestic industry producing standard shapes.
163. The Tribunal examined the financial results of the domestic industry over the POR and considered the impact of a 10 percent decline in net sales revenue, while maintaining the assumption that the decline in price would keep sales volumes stable.^[135] It is the Tribunal’s finding that a 10 percent decline in prices and net sales revenue will have a significant negative impact on the financial results of the domestic industry, thereby causing material injury.
164. Similarly, and consistent with evidence that the volume of the subject standard shapes would not remain stable, but would increase, the Tribunal finds that, if the findings are rescinded, the domestic producers will lose sales and market share. Further, if growth in the domestic market does not continue as it did over the POR (and, in fact, it already started to decline in 2013 as noted above), domestic production could also decline, as the subject standard shapes are likely to increase their market share.
165. In summary, the Tribunal finds that, if the findings are rescinded, the domestic industry will almost certainly suffer from significant and serious material injury caused by the subject goods. The subject standard shapes will significantly undercut the price of the like goods, causing price depression and suppression. This, in turn, will have a material adverse impact on the domestic industry’s sales volume and market share, and result in a decline in net sales revenue and gross margins. These negative impacts will carry over into reduced return on investment, production and employment levels.

Factors Other Than the Dumping or Subsidizing

166. Pursuant to paragraph 37.2(2)(k) of the Regulations, the Tribunal may consider any other factors that are relevant in the circumstances. While the parties did not identify any such factors, the Tribunal considered whether there were certain factors unrelated to dumping or subsidizing that could adversely affect the domestic industry.
167. Noting that the domestic producers’ submissions and evidence suggest that imports from certain countries other than China, collectively referred to as the “Present Low-priced Countries”, negatively affected the domestic industry during the POR, the Tribunal examined whether imports from these sources have any bearing on the injury attributable to the likely volumes and prices of the subject goods in both classes of goods that are expected to enter the Canadian market if the findings are rescinded. In this regard, while the market share held by imports from non-subject countries increased during the POR, the Tribunal finds that this trend is unlikely to continue if the findings are rescinded. In that event, the Tribunal has already found that the subject goods would enter the Canadian market in large volumes at prices that are likely to be below the prices of aluminum extrusions from the “Present Low-priced Countries”. Consequently, the Tribunal finds that the market share held by imports from these countries is likely to decrease in the next 18 to 24 months if the findings are rescinded.
168. On balance, while the Tribunal recognizes that the domestic industry may have experienced, and may continue to experience in the near to medium term, competition and potential injury as a result of low-priced imports from non-subject countries, it does not consider that such potential injury eliminates the injury attributable to the likely volume and prices of the subject goods that will enter the Canadian market if the findings are rescinded.
169. Throughout the hearing, the Tribunal also received considerable evidence regarding the presence of imports from the United States in the domestic market and the impact of those imports on the domestic industry. In particular, certain domestic producers shifted some capacity from Canada to the United States by closing Canadian facilities in favour of U.S.-based operations or by acquiring U.S. facilities in which they produced aluminum extrusions for export to Canada.^[136] These strategic investments in the United States likely account for at least some of the increasing market share of the domestic market that was captured by imports from the United States over the POR.^[137] According to the evidence, the share held by the domestic producers’ imports from the United States in relation to total imports from the United States during the POR was however negligible.^[138] This supports a conclusion that the domestic producers did not inflict injury on themselves by importing aluminum extrusions produced in the United States instead of supplying the Canadian market with domestically produced aluminum extrusions.
170. While the domestic producers acknowledged that, due to the relative high value of the Canadian dollar, imports from the United States were very competitive on the Canadian market throughout most of the POR, especially imports of standard shapes from the United States, witnesses for the domestic producers indicated that the tide is turning.^[139] Specifically, recent fluctuations in the Canadian dollar and U.S. dollar exchange rate have the Canadian dollar weakening, which, in turn, makes imports from the United States less attractive to Canadian purchasers.^[140] Several witnesses testified that, with the exchange rate becoming more favourable to the Canadian industry, domestic producers anticipate that imports from the United States will decrease in the near term.^[141] A witness alluded to a 50 percent decline.^[142] This evidence is corroborated by the slight increase in market share of domestically produced standard shapes in 2013.^[143]
171. Moreover, with the anti-dumping and countervailing measures against aluminum extrusions imported from China taken by the United States, the domestic industry argued that there are likely to be less imports from China entering the U.S. market and, therefore, more internal demand for U.S.-produced extrusions. That, in turn, is likely to mean that a greater degree of U.S. producers’ capacity will be directed to fulfilling demand within the U.S domestic market.^[144]
172. Notwithstanding the foregoing, on the basis of witness testimony, the Tribunal finds that imports from the United States, including those produced in facilities with related Canadian production operations, are in competition with the like goods.^[145] In particular, witnesses for the domestic industry testified that, over the course of the POR, these imports from the United States were usually priced lower than the like goods.^[146] In addition, witnesses for the domestic industry testified that aluminum extrusions produced in the United States frequently have cost advantages over the domestically produced goods.^[147]
173. While a change in the Canadian dollar and U.S. dollar exchange rate may enable domestic producers to compete with imports from the United States and regain some of the market share captured by those imports over the course of the POR, the Tribunal finds that displacement of domestic production in favour of U.S. production will likely adversely affect the domestic industry producing standard shapes and the domestic industry producing customs shapes.
174. In this expiry review, however, the Tribunal finds that any displacement of domestic production in favour of U.S. production in the next 18 to 24 months does not negate its conclusion that the domestic industry will likely suffer material injury caused by the subject goods if the findings are allowed to expire.
175. Consequently, the Tribunal finds that the likely material injury attributable to the subject goods in both classes of goods that would enter the Canadian market if the findings are allowed to expire is not negated by potential injury resulting from factors unrelated to dumping or subsidizing.
176. In conclusion, if the findings are allowed to expire, the likely impact of the subject goods on the domestic industry of domestically produced custom shapes and on the domestic industry of domestically produced standard shapes will be material and immediate. The Tribunal has no doubt that the impact of the increased volume of the subject goods, at prices that will likely undercut, depress and suppress those of the like goods, will result in a decline in the domestic industry’s sales, apparent market share, production, gross margin and profits.

EXCLUSIONS

177. The Tribunal received requests from seven parties, namely, Electrolux, Fortune, Foshan, PSD, Pixus, SDM and Silfab, for the exclusion of products from an order continuing the existing findings. These requests covered over 40 products. It is necessary to address all of them, given the Tribunal’s conclusion that the subject goods in both classes of goods are likely to cause injury to the domestic industry, should the findings be allowed to expire.
178. In most cases, the Tribunal does not devote time during a hearing to address requests for product exclusions, but instead relies upon a “paper process” to address them. This process allows the Tribunal to determine if exclusion requests are filed, the number of requests and whether the domestic industry consents or opposes them. Consistent with usual procedural practices, parties seeking product exclusions submit the initial requests along with their documentary evidence, receive the responses from the domestic industry and its documentary evidence, and then submit replies to those responses. As such, the “paper process” is the means through which the Tribunal typically gathers documentary evidence and submissions from parties and is intended to allow the Tribunal to proceed with the disposition of requests for product exclusions by way of written submissions.
179. In the present case, the Tribunal informed all parties that had participated in the product exclusion “paper process” that, in addition, hearing time would be devoted to the issue of product exclusions and that parties should be prepared to address this issue through witness testimony, cross-examination of witnesses and argument. The primary reasons for this decision were the number of exclusion requests and the complex questions raised by the documentary evidence filed in support of them.
180. The Tribunal’s expectation was that, in addition to the documentary evidence filed as part of the “paper process”, parties would call witnesses to corroborate such evidence, who would then be subject to cross-examination and questions from the Tribunal. However, what occurred during the hearing did not meet this expectation. In stating this, the Tribunal is mindful that each party likely had a strategy and tactics designed to benefit them. However, as an unintended consequence, most of the evidence related to product exclusions presented during the hearing was of limited assistance to the Tribunal.
181. In particular, examination-in-chief of the domestic industry’s witnesses addressing their documentary evidence in respect of exclusion requests would have been helpful. Equally helpful would have been cross-examination of the domestic industry’s witnesses that fully addressed the substance of their evidence in respect of exclusion requests and any questions relating to credibility, so that they had an opportunity to reply.
182. In other words, a more fulsome examination and cross-examination of the witnesses who were present would have been beneficial to address the reliability of the documentary evidence filed and the credibility of testimony in support of such evidence.
183. It would also have been of help to the Tribunal if witnesses from all the parties requesting exclusions had been made available to provide any missing information or to clarify evidence in support of their requests. This would have also provided the domestic industry with a better opportunity to test evidence filed in support of exclusion requests.
184. Despite the failure of parties to take advantage of the Tribunal giving them an opportunity beyond the usual “paper process”, the Tribunal reviewed each request and reached its product exclusion decisions after a careful assessment of the evidence on the record.
185. Before addressing the individual requests for product exclusions, the Tribunal will outline certain general principles upon which it relied when determining whether or not to grant product exclusions in the context of the current expiry review.

General Principles Concerning Product Exclusion Requests

186. While SIMA does not expressly authorize the Tribunal to grant exclusions from the scope of an order or finding, it has been recognized by the Federal Court and Binational Panels that this authority is implicit.^[148] In the context of an expiry review, the rationale is that, despite the general conclusion that all goods covered by a finding or an order are likely to cause injury to the domestic industry, there may be case-specific evidence that imports of particular products captured by the definition of the goods are not likely to cause injury. Thus, the purpose of exclusions to an order continuing a previous order or finding is to confine the assessment of anti-dumping and countervailing duties to those goods that are likely to cause or to threaten to cause material injury to the domestic industry.
187. As the Tribunal has repeatedly stated, including in Inquiry No. NQ-2008-003, exclusions are an extraordinary remedy that may be granted only when the Tribunal is of the view that such exclusions will not cause injury to the domestic industry. In the context of an expiry review, applying this principle entails determining whether imports of the specific goods for which exclusions are requested are not likely to cause injury to the domestic industry, despite the general conclusion that, should the order or finding under review expire, the continued or resumed dumping and subsidizing of all goods covered by the order or finding are likely to result in injury to the domestic industry.
188. As noted in Expiry Review No. RR-2009-001,^[149] factors such as whether the domestic industry produces the products for which exclusions are requested, whether it produces substitutable or competing products, whether it is an “active supplier” of the products and whether it has the capability of producing the products may be considered in determining whether a product exclusion is likely to cause injury to the domestic industry. Consistent with its usual practice, the Tribunal examined the evidence relating to these factors in order to dispose of the requests for product exclusions that it received in this expiry review.
189. While the weight to be given to each factor will vary on a case-by-case basis depending on the relevant facts, in Inquiry No. NQ-2008-003 and in subsequent interim reviews of the findings in this expiry review, the Tribunal stated that the primary consideration in determining whether the granting of product exclusions will cause injury to the domestic industry producing aluminum extrusions was whether the domestic industry had the capability of producing products which are identical to or substitutable for the products for which exclusions were requested.^[150]
190. In Inquiry No. NQ-2008-003, the Tribunal indicated that this factor should be the primary consideration, especially in the case of custom-shaped aluminum extrusions, for the following reasons:

341. . . . This is especially true in the case of custom-shaped aluminum extrusions where it is usually the customers or purchasers that provide a given manufacturer with the design and specific desired characteristics of the extrusions. Thus, these custom shapes are not “off-the-shelf products” and often require the use of custom-made dies. In this context, the Tribunal believes that it would be unreasonable to require domestic producers to have produced all shapes for which exclusions are requested. To do so would effectively limit the protection afforded to the domestic industry to those goods which it has already produced. In addition, such an approach would ignore the commercial reality of the market for aluminum extrusions and the fact that domestic producers have the capability of producing a large number of goods, as the dies and other tooling required to produce such goods are either in their possession or readily available in the marketplace with limited investments of capital.

191. As discussed in detail below, two requesters, Electrolux and PSD, submitted that it is not appropriate in an expiry review to determine whether the granting of the requested product exclusions is likely to cause injury to the domestic industry by considering whether the domestic industry has the mere capability to produce those products. The Tribunal will thus have to determine if, like in prior proceedings, this factor should remain the primary consideration of its analysis in the context of this expiry review.
192. In the past, the Tribunal has also stated that the onus is upon the requester to demonstrate that imports of the specific goods for which the exclusion is requested are not likely to cause injury to the domestic industry.^[151] The Tribunal wishes to clarify that this statement means that there is an evidentiary burden on the requester to file evidence in support of its request. The Tribunal will generally reject product exclusion requests where there is a lack of documentary evidence in support of the requesters’ claims. Indeed, a failure to provide sufficient information prevents the parties opposing the request from adequately responding and leaves the Tribunal in a position where it lacks evidence to find that imports of particular products for which exclusions are requested are not likely to cause injury to the domestic industry.
193. In this respect, it bears repeating that exclusions are only granted in exceptional circumstances.^[152] Once the Tribunal finds that the subject goods, as a whole, are likely to cause material injury to the domestic industry, cogent case-specific evidence concerning the likely non-injurious effect of imports of particular products covered by the definition of the subject goods is therefore required for the Tribunal to grant product exclusions.
194. However, there is also an evidentiary burden on the domestic producers to file evidence in order to rebut the evidence filed by the requester. A failure to do so could result in the requested exclusions being granted. In any case, much like its conclusion on the issue of whether the expiry of the findings in respect of the subject goods considered as a whole is likely to result in injury to the domestic industry, the Tribunal’s decision on exclusion requests must be based on positive evidence, irrespective of the party that filed it.
195. Therefore, each party ought to put forward its best evidence either in support of or against the granting of exclusions, so that the Tribunal can have all the evidence necessary to reach an informed decision on the issue of whether the importation of particular products covered by the definition of the subject goods for which exclusions are requested is likely to cause injury to the domestic industry. In other words, the evidentiary burden is shared by all parties and, ultimately, the Tribunal must determine whether it will exercise its discretion to grant product exclusions on the basis of its assessment of the totality of the evidence on the record.
196. The Tribunal further notes that certain requesters questioned whether the products for which they requested exclusions were covered by the definition of the subject goods. However, as previously noted, the Tribunal does not have the authority in an expiry review to determine which goods will ultimately be subject to anti-dumping or countervailing duties in the event of an order continuing its injury findings. This is an issue to be determined by the CBSA at the time of importation. In any event, the Tribunal finds that there is insufficient information on the record to determine if all the products for which exclusions were requested are actually covered by the definition of the subject goods. For this reason, the Tribunal decided that it would be prudent to consider and dispose of all the requests that were filed on the assumption that all the products for which exclusions were requested are covered by the definition of the subject goods, even if the status (or subjectivity) of some of these products is unclear or has yet to be determined.

Analysis of Specific Product Exclusion Requests

197. The Tribunal will now address the product exclusion requests pertaining to the subject goods that it received from each of the seven parties indicated above, starting with the requests of the parties that made oral arguments at the hearing, namely, Electrolux and PSD.

Electrolux

198. Electrolux filed three requests for product exclusions for certain custom-shaped aluminum extrusions. The first request pertains to certain protector and ventilation tubes that are specifically designed and produced for installation in gas or electrical cooking appliances capable of withstanding temperatures of 900° Fahrenheit (482° Celsius). The second request pertains to certain handles that are specially designed and produced for installation in gas or electrical cooking appliances. The third request pertains to assembled handles, consisting of the aluminum extrusions subject to the second request filed by Electrolux, together with other non-aluminum pieces that have been welded, glued or screwed together to form a finished handle for use in the manufacture of gas or electric cooking appliances. These products can also be used as warranty or service replacement parts in gas or electric cooking appliances manufactured by Electrolux.
199. Electrolux filed its requests on the assumption, but not the certainty, that the above-noted products were within the scope of the definition of the subject goods. It noted that it only recently became aware of the possibility that these products may be subject to the findings. In this regard, on August 28, 2013, Electrolux filed a request with the CBSA for guidance on whether the products for which exclusions are requested are subject to the Tribunal’s findings.
200. Assuming that they are covered by the definition of the subject goods, Electrolux submitted, as a basis for its requests, that excluding these products from the scope of the findings is not likely to cause injury to the domestic industry considering that:

·         the domestic producers conceded that they are not currently producing identical or substitutable products, but merely asserted that they were capable of doing so;

·         the domestic producers’ capability to supply the products for which exclusions are requested should not be the principal factor upon which to determine whether exclusions should be granted in this case. In support of this argument, Electrolux relied on the Tribunal’s decision in Fasteners, in which the Tribunal stated that a domestic industry’s capability to produce products which are identical to or substitutable for the products for which exclusions are requested is much less relevant in the context of an expiry review, as such a review takes place after anti-dumping and/or countervailing measures have been in place for almost five years, during which time it must be presumed that the domestic industry was not prevented from producing a product because of injury due to dumping and/or subsidizing.^[153] According to Electrolux, the Tribunal should therefore give more weight to other factors in this expiry review, such as whether the domestic industry is an “active supplier” of the products and whether it “normally produces” the products;

·         the domestic producers are clearly not active suppliers of these products, nor do they normally produce them, because they have not served the kitchen appliance market or produced identical or substitutable goods since the findings have been in force. In support of this argument, Electrolux filed excerpts of the Web sites of the domestic producers, none of which listing the kitchen appliance industry as a market segment that they service;

• in any event, the evidence filed by the domestic industry does not demonstrate that it has the capability of producing identical or substitutable products. In this regard, Electrolux submitted that the domestic industry provided invoices and drawings for products that are not substitutable for the products that it requires, that are made of different finishes or that are wholly dissimilar to the products that it requires. Electrolux also argued that the domestic industry’s evidence fails to address all the processing and finishing requirements of the products for which it seeks exclusions.

201. Electrolux further submitted that this case is extraordinary because the definition of the subject goods does not describe a specific end product, but the process by which the subject goods are made. According to Electrolux, this broad product definition makes it virtually impossible for importers to determine if the products that they import are covered by the definition of the subject goods, which explains why over $40 million dollars in anti-dumping or countervailing duties have been paid since the issuance of the findings. Electrolux maintains that importers did not pay these duties by choice, but by accident since they had no idea that they were importing the subject goods until the CBSA imposed retroactive assessments. Given this unusual situation, Electrolux submitted that the Tribunal should apply a more flexible approach to the question of exclusions in this expiry review in order to ensure that the purpose of SIMA is achieved, that is, to prevent injury to the domestic production of like goods and avoid the imposition of duties on goods sold in market segments that the domestic industry has never served or to purchasers for whom it has never produced.
202. Finally, Electrolux requested that, if the Tribunal grants its requests, the order should be made on a retroactive basis to the date of the CBSA’s preliminary determination of dumping and subsidizing because, inter alia, there is no evidence that the importation of the goods for which it is seeking exclusions has caused injury to the domestic industry in the exceptional circumstances of this case.
203. The domestic producers submitted that Electrolux has confirmed that it has not approached any domestic extruder to even assess its capability to supply the products for which exclusions are requested and that it is therefore not surprising that no domestic producer is currently supplying identical goods. They further submitted that Almag is capable of producing goods that are identical to the products described in Electrolux’s first request and that Almag and Metra are capable of producing goods that are identical to the products described in Electrolux’s second and third requests. In this regard, it argued that Almag’s and Metra’s capabilities regarding thin-walled extrusions and advanced fabrication are on record with the Tribunal. The domestic producers submitted that, since they are capable of supplying Electrolux, granting the requested product exclusions would cause injury to the domestic industry.
204. The Tribunal will first address the argument that the domestic producers’ capability of producing identical or substitutable products should not be the primary consideration in determining whether the granting of the product exclusions requested by Electrolux will cause injury to the domestic industry in the context of this expiry review. While the Tribunal agrees that the capability of producing the products for which exclusions are requested is not the only factor that the Tribunal may consider in deciding whether product exclusions should be granted, it is not convinced that its reasoning in Fasteners, an expiry review in which this factor was determined to be less relevant, is applicable in the present expiry review.
205. Indeed, the facts in this expiry review are distinguishable from those in Fasteners. In that case, the Tribunal granted an exclusion for drywall screws because the domestic industry, despite having the capability to do so, had failed to actually produce those screws during the previous five years.^[154] However, drywall screws are essentially an “off-the-shelf product”, whereas custom-shaped aluminum extrusions are not “off-the-shelf products” and are therefore generally only produced when ordered by a purchaser. The Tribunal emphasized this important distinction between the circumstances surrounding the production of the like goods in Fasteners and the production of the like goods by the domestic producers of aluminum extrusions in Aluminum Extrusions Interim Review.^[155]
206. The Tribunal continues to hold the view that, for this reason, its reasoning in Fasteners should not apply in the context of the production of custom-shaped aluminum extrusions and that the domestic industry’s capability to produce products which are identical to or substitutable for the products for which exclusions are requested remains a very relevant factor in the context of this expiry review.
207. In this respect, the Tribunal notes that Electrolux did not file evidence or call a witness at the hearing to challenge the facts underlying the conclusion reached by the Tribunal in both Inquiry No. NQ-2008-003 and Aluminum Extrusions Interim Review that requiring domestic producers to have produced all shapes for which exclusions are requested would be unreasonable, as it would limit the protection afforded to the domestic industry to those custom shapes which it has already produced and that such an approach would ignore the commercial reality of the market for aluminum extrusions, particularly the fact that domestic producers have the capability of producing a large number of goods with their existing equipment or with limited investments of capital.
208. Thus, there is insufficient evidence on the record of this expiry review to persuade the Tribunal to depart from its conclusion in both Inquiry No. NQ-2008-003 and Aluminum Extrusions Interim Review that, in the context of the aluminum extrusion industry, a key consideration in determining whether the granting of the product exclusions will cause injury to the domestic industry is whether the domestic industry has the capability to produce those products.
209. The Tribunal agrees with Electrolux that this case is exceptional, in that the definition of the subject goods refers to a production process and that this causes a unique challenge, particularly as it concerns the Tribunal’s consideration of exclusion requests. However, it is not convinced that this means that the Tribunal should apply a more flexible approach to this issue in this expiry review or that the domestic industry’s capability of producing identical or substitutable products is a factor that should be given less weight in view of the definition of the subject goods. To the contrary, the Tribunal finds that the emphasis in the product definition on a production process provides further support for its conclusion that this factor is of primary importance in this expiry review.
210. Moreover, the Tribunal is convinced that, in order to prevent the likely injury to the domestic production of like goods, particularly the production of custom-shaped aluminum extrusions, it must ensure that the assessment of anti-dumping and countervailing duties is not confined to only those subject goods for which the domestic industry already produces identical or substitutable goods.
211. Clearly, a definition that is linked directly to a production process covers a broad range of products that can result from that production process. As previously noted, the domestic industry has the capability of producing a large number of custom-shaped aluminum extrusion products if it invests to acquire the required custom-made dies or is provided with them. In this context, it would not be reasonable to expect the domestic producers to have produced or to have been active suppliers of all possible custom shapes in the last five years in order to be protected from the dumping and subsidizing that is likely to result from the expiry of the findings. This would effectively require them to have supplied the totality of the market’s needs, something that is not contemplated by SIMA.
212. Such a conclusion would also be inconsistent with the Tribunal’s determination that there are only two classes of goods in this expiry review, standard shapes and custom shapes. As previously noted, as all custom-shaped aluminum extrusions irrespective of their specific end uses are regarded as included in the same class of goods, the domestic producers do not have to establish that they produce an equivalent product or an alternative for each specific custom-shaped aluminum extrusion that is covered by the definition of the subject goods in order to benefit from the protection afforded by SIMA. This determination entails that the resumed dumping and subsidizing of all the subject custom-shaped aluminum extrusions, including, as the case may be, the products for which Electrolux has requested exclusions, are likely to result in injury to the domestic industry producing “like” custom-shaped aluminum extrusions, even if the subject and domestically produced custom-shaped aluminum extrusions are sold in different market segments.
213. In the circumstances of a case involving subject goods that are defined by the way in which they are produced and two broadly defined classes of goods such as the current expiry review, it follows that it is reasonable to conclude that injury is likely to be caused by the importation of the products for which exclusions are requested to the extent that the domestic industry is capable of producing such products. In the Tribunal’s opinion, this approach ensures that the domestic industry is afforded with nothing more than the requisite protection against the injury that is likely to result from the continued or resumed dumping and subsidizing of the subject custom-shaped aluminum extrusions, including those for which exclusions were requested.
214. While Electrolux made submissions to that effect, the Tribunal finds, on balance, that it has not been established that this approach will allow the imposition of duties on goods sold in market segments that the domestic industry has never served or provide a monopolistic protection for a production process in every possible market segment. For the Tribunal to reach that conclusion, cogent evidence that the domestic industry has decided not to produce and sell products in certain market segments or does not intend to do so would have been required. Given the domestic producers’ reply to Electrolux’s requests for product exclusion, this is not the case for the kitchen appliance industry or market segment.
215. With respect to Electrolux’s argument that the domestic industry has not served the kitchen appliance market or produced identical or substitutable goods since the findings have been in force, the Tribunal notes that there is some evidence that Kromet, a domestic producer that did not participate in this expiry review, extrudes custom shapes primarily for the appliance industry.^[156] However, this evidence is not sufficient for the Tribunal to conclude that the domestic industry produces goods that are substitutable for or that compete with the goods for which Electrolux is seeking exclusions and to deny the requests on that basis.
216. Therefore, the Tribunal will determine whether the granting of the product exclusions requested by Electrolux is likely to cause injury to the domestic industry by considering whether the domestic industry has the capability to produce those products. Should it find that the domestic industry is unable to meet Electrolux’s specific requirements, then the requested product exclusions will be granted. In this regard, Electrolux submitted that the capability of the domestic industry to produce identical or substitutable goods has not been established.
217. Electrolux made this claim, but admitted to not having contacted the domestic producers in order to inquire as to their production capabilities. This does not meet the Tribunal’s expectations. As was stated in Inquiry No. NQ-2008-003, a requester that indicated that the domestic industry did not produce the goods for which exclusions were requested was expected to provide documentary evidence that domestic producers had been contacted and that they had indicated that they could not produce the goods in question or did not intend to produce them.^[157] In this case, Electrolux failed to do so; therefore, it cannot be concluded that the domestic producers indicated that they were not capable of producing the products in question or did not intend to produce them. This strongly militates against granting the exclusions requested.
218. There is also no evidence that there was any discussion between Electrolux and the domestic producers about the availability of domestic supply. In considering requests for product exclusions, the Tribunal expects that a willing purchaser and a willing supplier would communicate openly about the various aspects of production and the terms and conditions of eventual transactions. No such evidence has been provided to the Tribunal. Indeed, the only evidence in support of Electrolux’s claim concerning the incapability of domestic industry to produce the goods in question was its cross-examination of domestic industry witnesses, during which it attempted to discredit the domestic producers’ evidence.
219. However, the Tribunal is not persuaded by Electrolux’s attempt during argument to dispute the credibility or probative value of the domestic producers’ evidence. On balance, it is convinced that the evidence demonstrates that the domestic producers are capable of producing goods that are identical to or substitutable for the products for which Electrolux is seeking exclusions.
220. The requests provide a description of the goods for which exclusions are requested and are accompanied by relevant technical drawings. In response, two domestic producers provided various invoices and diagrams describing products that they have manufactured and sold. These domestic producers, Almag and Metra, also offered witnesses for cross-examination on every aspect of their responses. Electrolux cross-examined those witnesses in public and in camera. During cross-examination, the witnesses stated that they had carefully examined the requests for exclusion and had submitted in response the best documents that they could provide to indicate that they had the capability to produce the products in question.^[158]
221. These documents consist of invoices and diagrams for various tubes, rails or beams that were produced by either Almag or Metra.^[159] The Tribunal recognizes that these documents are not evidence specific to the kind of products for which Electrolux is seeking exclusions; however, they do indicate that Almag and Metra have the ability to produce goods that are quite similar in shape. There is even one document that refers to a domestically produced aluminum extrusion that was ultimately for use in the production of a handle in the kitchen appliance market segment.^[160] This indicates that, contrary to what was argued by Electrolux, certain domestic producers are not operating in a “separate universe” from that of Electrolux. This also indicates that these producers are in the business of producing aluminum extrusions that have characteristics similar to those identified in Electrolux’s product exclusion requests.
222. Considering the shape of the extrusions for which the exclusions are sought, the documentary evidence filed by the domestic industry provides ample evidence that the extrusion processes operated by the respondents are capable of producing similar if not identical shapes. The only missing elements would be the actual dies that are specific to the shapes in question. While Electrolux made submissions to the contrary, there is no positive evidence on the record that contradicts this fact.
223. In terms of finishes and fabrication, there is no evidence on the record to establish that the domestic producers do not have, in theory, the capability to provide, in house or in association with other service suppliers, all the finishing and fabrication services that would be required by Electrolux. The information contained in the staff report demonstrates the both Almag and Metra have significant capabilities concerning the finishing and further fabrication of aluminum extrusion products.^[161]
224. The evidence given by the domestic producers also demonstrates that they have the capability to further work aluminum extrusions and assemble other pieces and components to aluminum extrusion products.^[162]
225. It also warrants emphasizing that there is ample undisputed testimony that was given by the witnesses for Almag and Metra and that supports their position in terms of their respective capability to produce goods identical to or substitutable for those for which Electrolux is seeking product exclusions. In fact, the witnesses stated that Almag was capable of producing all three products for which exclusions are requested and that Metra was capable of producing the products, or similar goods, that are the object of Electrolux’s second and third requests.^[163] The Tribunal has no reason to question the credibility of the witnesses in this respect.
226. In view of the foregoing, on balance, the Tribunal is convinced that the evidence demonstrates that the domestic producers have the capability to produce goods that are identical to or substitutable for the products for which Electrolux requested exclusions. Therefore, the importation of those specific products, assuming that they are covered by the definition of the subject goods, is likely to cause injury to the domestic industry.
227. Accordingly, the Tribunal denies the requests for product exclusions filed by Electrolux. Given this decision, it is not necessary to address Electrolux’s request for an order excluding products or amending the findings on a retroactive basis.

PSD

228. PSD requested exclusions for all anodized aluminum extrusions used to produce tub and shower enclosures that are proprietary to PSD. Its requests cover aluminum extrusions produced by Left Right Aluminum, a Chinese manufacturer, from 6463 alloy type with a T5 temper designation, with a profile or cross-section which fits within a circle having a diameter of 100 mm, for use by PSD in the assembly of its shower enclosures. PSD also claimed that the Tribunal should grant exclusions for all aluminum extrusions used to produce tub and shower enclosures since there is no domestic producer that has full and current capacity to serve the shower door market.
229. PSD submitted that SIMA should be interpreted to mean that, for duties to apply, a domestic producer must be ready, willing and able “in a full and present sense” to produce and sell a product that an importer, acting reasonably, would be indifferent to receiving. According to PSD, since no domestic producer is ready, willing or able to produce PSD’s proprietary extruded aluminum shower door parts, it submitted that there is no basis under SIMA for subjecting the products for which it requested exclusions to anti-dumping and countervailing duties.
230. PSD further submitted that it unsuccessfully attempted on several occasions to purchase the products that it requires from a domestic source and that, in response, none of the domestic producers indicated that it produced or was able to produce the aluminum extrusions that are either identical to or substitutable for the products for which it requested exclusions. It noted that no domestic producer even responded to its last attempt to purchase from a domestic source, which included an offer to provide full specifications on every product and samples of the finishes that it requires, to visit the domestic producers’ facilities and to allow the domestic producers to visit the facility of its current supplier in China. PSD submitted that this clearly establishes that no domestic producer is willing to produce and sell the products that it requires and that, therefore, granting the exclusions would not cause injury to the domestic industry.
231. PSD also claimed that the domestic producers that replied to its request for product exclusions misrepresented their capability to produce identical or substitutable goods since all shower doors produced in Canada are proprietary to their manufacturers and there are no substitutes for proprietary products. PSD argued that for injury to be caused to the domestic industry by the imports of the products for which it requested exclusions, the domestic producers must currently be in a position to produce those goods or their substitutes, which is not the case of the domestic extruders. In this regard, it submitted that the domestic producers clearly do not have the machinery, dies and tooling required to produce them at this point in time. Finally, PSD requested that the Tribunal grant exclusions on the relevant products on a retroactive basis.
232. Two domestic producers, Dajcor and Spectra, replied to PSD’s request and indicated that they are producing and selling products that are substitutable for the products for which exclusions were requested. In this regard, Dajcor provided confidential invoices of what it claims to constitute sales of aluminum extrusions to manufacturers of shower doors. Spectra also indicated that it previously provided a quotation to PSD, which indicates that it is capable of producing extrusions that meet PSD’s requirements.^[164] They argued that PSD has not established that the products in question cannot be produced by the domestic industry and has therefore not rebutted the presumption that, as they are covered by the definition of the subject goods, the importation of those products is likely to cause injury to the domestic industry.
233. The domestic producers further submitted that PSD’s request is unsubstantiated by precise information, drawings or specifications. In their view, as there was no attempt to identify the distinct characteristics or attributes that could make the products for which PSD requested exclusions distinguishable from other aluminum extrusions available in the market, granting this request would be inappropriate and contrary to Tribunal’s precedents.
234. While the parties’ submissions and evidence focussed on the issue of whether the domestic producers are capable of producing goods that meet PSD’s requirements, the Tribunal finds that the first question that must be answered in order to dispose of PSD’s request is whether the domestic industry produces substitutable or competing products. The Tribunal’s practice has been to refuse to exclude from the scope of its findings or orders goods that are substitutable for or that compete with goods that the domestic industry produces.^[165] In such circumstances, the Tribunal has consistently held that imports of goods for which exclusions are requested are likely to cause injury to the domestic production of like goods.
235. If the fact that a domestic industry does not or cannot produce products identical to those products for which exclusions are requested were to lead automatically to exclusions from a likelihood of injury determination, the exclusions would, in the Tribunal’s view, undermine the purpose of SIMA and the protection associated with it in cases where the domestic industry produces substitutable or competing products (i.e. like goods) that are likely being injured by dumped or subsidized goods that are the object of the proposed exclusion.
236. Accordingly, a key question that must be answered by the Tribunal in deciding whether to grant product exclusions is whether the domestic industry manufactures substitutable products that, while they may not have all the attributes of the products for which exclusions are requested, still compete with those products, have the same end use and fulfil most of the same general customer needs. If these conditions are met, the Tribunal should deny requests for product exclusions, as granting them is likely to cause injury to the domestic industry. In other words, an important intent of the statute is to protect the domestic production of like goods, a concept which, as previously noted, is broader than the notion of identical products.
237. On balance, the Tribunal is persuaded by the evidence before it that the domestic industry produces goods that are in competition with, if not substitutable for, the products for which PSD requested exclusions. Indeed, both Dajcor and Spectra made statements that they produced substitutable products for use in shower enclosures, and Dajcor filed numerous confidential invoices and diagrams as evidence of such production.^[166] This is cogent evidence that the domestic industry services the market for shower enclosures.
238. Moreover, at the hearing, witnesses for both Dajcor and Spectra unequivocally stated that they currently produce high-end aluminum extrusions for use as shower door parts or enclosures.^[167] It was also suggested that Dajcor could be producing goods that are very similar or perhaps identical to those for which PSD requested exclusions.^[168] The Tribunal has no reason to question the credibility of the witnesses in this respect.
239. According to the domestic producers’ evidence, the market for shower enclosures is considered an important market serviced by Dajcor and Spectra, and the extrusions that they produced for this market segment are further worked, anodized, mechanically or chemically polished, sealed and dyed different colours. On the basis of this evidence, the Tribunal finds that the domestic industry is an active supplier of products that compete with, and appear to be very similar to or substitutable for, the products for which PSD requested exclusions.
240. The Tribunal also finds that the documentary evidence filed by PSD and the evidence given by its witness at the hearing are not sufficient to establish that the products for which it is seeking exclusions are so specialized or serve such a distinct market that they would not compete with the similar products offered by the domestic producers. In this regard, the Tribunal agrees with the domestic producers that PSD did not identify distinct characteristics or attributes that make the products for which it is seeking exclusions distinguishable from the goods produced by the domestic industry. There is also little, if any, evidence to that effect. For example, there is insufficient evidence to convince the Tribunal that, by virtue of their price, quality or other physical or market characteristics, the products for which exclusions are requested are so unique that they would not compete with the similar domestically produced goods in the marketplace. It must therefore be concluded that imports of the dumped and subsidized aluminum extrusions for which PSD requested exclusions will likely cause injury to the domestic industry if the findings expire.^[169]
241. For these reasons, the Tribunal concludes that imports of the products for which PSD requested exclusions will likely cause injury to the domestic industry. Given that the evidence does not substantiate PSD’s claim that the domestic industry does not produce substitutable or competing goods, the Tribunal denies PSD’s request for exclusion.
242. In view of this conclusion, in order to dispose of this request, it is not necessary for the Tribunal to opine on the issue of whether the domestic industry has the capability to produce goods identical to those for which PSD requested exclusions and to further address PSD’s submission that the appropriate legal test should be whether a domestic producer is ready, willing and able “in a full and present sense” to produce and sell a product that an importer, acting reasonably, would be indifferent to receiving. It is also not necessary to address PSD’s request for an order excluding products or amending the findings on a retroactive basis.

SDM

243. In support of its request for a product exclusion for the aluminum components of door framing member kits consisting of aluminum extrusions and steel parts, SDM submitted that the aluminum components included in the kits are not produced by the domestic industry. In addition, SDM contended that the components of the kits, while they are not imported together or in the same box, must be manufactured together by the same manufacturer to ensure a proper fit. SDM acknowledged that the other components of the kits, such as stiles, rails and tracks, are steel products and are not covered by the definition of the subject goods.
244. Furthermore, SDM stated that the kits must be manufactured by a single producer, so that there is a consistent finish and precise fit. SDM argued that, as none of the domestic producers are capable of producing the full range of aluminum and steel components required for the kits, SDM’s needs are better served by a fully integrated aluminum and steel manufacturer. Finally, while the domestic industry could produce an all-aluminum kit, SDM stated that such a kit would be too expensive to be practicable.
245. Both Dajcor and Spectra responded to SDM’s request and indicated that they currently produce goods which are substitutable for the aluminum components contained in the kits. In support of this position, Spectra filed invoices and diagrams of allegedly substitutable products that it previously produced and sold to another Canadian company. Similarly, Dajcor filed quotations and diagrams that it had provided to SDM, as evidence of its ability to produce the kits.
246. The basis for this request is that the domestic producers are not capable of producing all goods, subject and non-subject, required by SDM. In this regard, the Tribunal has previously found that the domestic industry’s capability to produce goods which are not covered by the findings is of no relevance to the consideration of whether or not to grant a product exclusion.^[170]
247. The question becomes whether the request should be granted on other grounds. Having considered the evidence, the Tribunal accepts that the domestic industry does not currently produce the product for which SDM has submitted an exclusion request.^[171] The main issue, therefore, is whether or not the domestic industry produces products which are substitutable for, or compete with, the aluminum components contained in the kits. On this ground, the Tribunal notes that both Dajcor and Spectra have indicated that they do produce substitutable products and have the capability to produce identical products.^[172] SDM did not dispute this claim,^[173] but rather stated that its needs are better served by a fully integrated aluminum and steel manufacturer.^[174]
248. While the Tribunal accepts that this may be SDM’s preference, SDM did not present any cogent evidence that its product must be produced by a fully integrated producer. Nor did SDM submit determinative evidence to suggest that its current Chinese supplier is a fully integrated producer and extruder.^[175]
249. As a result, the Tribunal finds that SDM has not established that it requires a fully integrated producer to manufacture the aluminum components and that Dajcor and Spectra produce substitutable products and have demonstrated that they are capable of producing identical products. SDM’s request for a product exclusion is therefore denied.

Fortune

250. Fortune’s four exclusion requests are with respect to aluminum balusters and aluminum lock bars for use in railing systems. Fortune submitted that the products are all precision-cut and powder-coated and must be sourced from the free market. Fortune did not contact members of the domestic industry either to attempt to purchase the products or to determine whether or not they produce such products. Fortune did not make submissions or provide any evidence to demonstrate that the granting of the exclusions requested would not cause injury to the domestic industry.
251. For their part, Apel, Apex and Can Art all provided submissions opposing Fortune’s requests. The domestic producers indicated that they produced identical goods to the products contained in Fortune’s first and third requests for product exclusions and that the second request was simply for a fabricated version of the product in the first request. With respect to the fourth exclusion request, the domestic industry contended that it was capable of extruding the product and fabricating (bending, drilling, countersinking, powder-coating, etc.) the extrusion to the specifications provided by Fortune.
252. On the basis of the evidence before it, the Tribunal is satisfied that the domestic industry either produces products which are identical to those for which Fortune requested product exclusions or already performs all the fabricating procedures necessary to meet the product specifications set out by Fortune. In this respect, the Tribunal refers to the drawings and invoices submitted by Apel, Apex and Can Art which demonstrate that they produce the products in Fortune’s first, second and third exclusion requests, as well as drawings and invoices establishing that they currently perform all the fabricating procedures necessary to produce the product in Fortune’s fourth exclusion request.^[176] Since Fortune did not reply or file evidence to rebut the domestic producers’ claims, there is no information on the record to dispute their assertion that granting the requested exclusions is likely to cause injury to the domestic industry.
253. Fortune’s requests for product exclusions are therefore denied.

Foshan

254. Foshan filed a product exclusion request for shower enclosure parts. However, Foshan did not provide any justification for the exclusion request, nor did it address the issue of whether the granting of the exclusion would cause injury to the domestic injury. Furthermore, Foshan gave no indication that its products have distinct characteristics or attributes that distinguish them from other aluminum extrusions produced in Canada and available on the marketplace. Foshan did not attempt to contact any domestic producers to determine whether they currently produce, or are able to produce, the products for which it is requesting exclusions.
255. By contrast, both Dajcor and Spectra indicated that they produce products that are substitutable for the products contained in Foshan’s product exclusion request and submitted quotations, invoices and diagrams as evidence.^[177] This was confirmed in the course of the hearing when witnesses for both Dajcor and Spectra stated that they actively produce products for the shower door market in Canada.^[178]
256. On the basis of the foregoing, the Tribunal is not persuaded that there is a valid basis for granting Foshan’s request. Specifically, Foshan has not established that the granting of its exclusion request would not cause injury to the domestic industry, and the evidence indicates that the domestic industry at the very least produces competing, if not substitutable, products. Thus, Foshan’s exclusion request is denied.

Pixus

257. Pixus submitted 30 product exclusion requests for flanges, trim sections, rails, divider kits, supports, front panels, side panels and mounting kits, all for use in the Rittal Vario electronic enclosure system. Pixus argued that the products are trademarked and that, as the domestic producers are not privy to this trademark, they cannot produce those products. Pixus also maintained that its requirements for the products could be as few as a single piece and questioned whether the domestic industry would be willing to supply such limited quantities of the requested products.
258. Finally, Pixus argued that “like” products cannot be substitutable, as the products in its exclusion requests are part of an integrated mechanical eco-system, which does not allow for the integration of “like” products.
259. Both Dajcor and Almag responded to Pixus’ request by stating that they produce substitutable goods and are capable of producing identical goods. In support of this position, both supplied invoices and diagrams for relevant products which, they contended, were identical or substitutable, and which were manufactured and sold by them.^[179]
260. The Tribunal has stated in previous cases that the fact that a product is patented, or otherwise protected by intellectual property rights, does not mean that the Tribunal will automatically grant an exclusion. In fact, even though a patented product may have certain features or physical attributes that make it distinct under patent law, or other forms of intellectual property protection, a domestically manufactured product may have the same end uses, fulfill most of the same customer needs and compete in the marketplace with the patented product.^[180]
261. Thus, the fact that requests for product exclusions involve products for which some form of intellectual property right or protection is claimed is not, in and of itself, a sufficient basis to grant an exclusion. The issue is whether there exists a domestically produced product that competes with the product for which an exclusion is requested.
262. In its submissions, Pixus noted that the capability of the domestic industry to produce some or all of the products is not the issue. In fact, Pixus acknowledged that, on two occasions, in order to meet high volume demands, Almag was provided the manufacturing data to produce some of the products.^[181] This suggests that the domestic industry has in fact already produced some of the products contained in the exclusion requests. Since Pixus has admitted that the domestic industry has produced such products, the Tribunal need not engage in an analysis of whether the domestic industry is capable of producing the products.
263. Pixus also maintained that its requirements for the products could be as few as a single piece. Therefore, Pixus contended that, even with the proprietary data, it is uncertain whether the domestic industry is willing to supply such limited quantities of the requested products.
264. In Interim Review No. RD-2011-005,^[182] the Tribunal stated that, since the domestic extruders are able to meet high volume requirements, it is difficult to foresee why they would not have the ability to meet a lower volume requirement. The Tribunal concluded that a low anticipated volume of imports does not, in and of itself, provide a sufficient basis upon which to grant product exclusions, as there is no guarantee that the volume will actually remain low. Moreover, in the original findings, the Tribunal stated that some domestic producers may have minimum order requirements and found that such conditions are not unusual and, taken alone, do not constitute a sufficient basis to grant an exclusion.^[183]
265. Given not only that the proprietary nature of the products and the potential low-volume requirements of Pixus are insufficient grounds to grant a product exclusion but also that the domestic industry has already produced certain products contained in Pixus’ exclusion requests, and considering the lack of evidence indicating that imports of the products would not cause injury to the domestic industry, the Tribunal denies Pixus’ requests for product exclusions.

Silfab

266. In support of its product exclusion request for components of photovoltaic solar modules, Silfab asserted that the components are proprietary or trademarked. Furthermore, while Silfab acknowledged that domestic producers were able to manufacture the components, it argued that their price for doing so was “exorbitant” and would put Silfab at a “disadvantage”.^[184]
267. The domestic producers conceded that they do not currently produce products which are identical in all respects to the components for which Silfab has requested an exclusion. However, both Dajcor and Spectra argued that they do produce and sell products that are substitutable for the components. Dajcor and Spectra both filed invoices and diagrams in support of this contention.^[185] In addition, evidence before the Tribunal indicates that the domestic industry has supplied aluminum extrusions to multiple solar frame producers.^[186]
268. As a preliminary matter, the Tribunal notes that Silfab did not produce evidence in support of its claim that its products are proprietary or trademarked. Nevertheless, this is not a determinative factor, as it has already been explained that intellectual property protections are not a sufficient ground on which to base an exclusion request.^[187]
269. Similarly, Silfab’s argument that it should be granted an exclusion request, as the domestic industry’s prices are too high, is not a valid basis upon which to grant product exclusions. Indeed, the purpose of anti-dumping and countervailing duties is to ensure that domestically produced goods can compete with unfairly priced dumped and subsidized imports. Granting exclusions on the basis that an importer requires access to unfairly priced goods would appear to defeat that purpose. For this reason, the Tribunal does not consider requests made on the sole basis of higher selling prices of the domestic producers and the resulting negative effects for a requester to be valid.
270. In any event, the evidence before the Tribunal indicates that the domestic industry already produces the components, or products which are substitutable for the components, for which the exclusion is requested. Accordingly, Silfab’s request for a product exclusion is denied.

CONCLUSION

271. In conclusion, on the basis of its review of the evidence on the record and taking into account the arguments put forth by the domestic industry, the Tribunal finds that to allow the expiry of the current findings will likely result in a significant increase in imports of the subject goods in both classes of goods at prices that could be expected to significantly undercut, depress and suppress those of the like goods, thereby causing material injury to the domestic industry.
272. On the basis of the foregoing analysis, and pursuant to paragraph 76.03(12)(b) of SIMA, the Tribunal hereby continues its findings in respect of the subject goods.