Frequently asked questions – Softwood lumber

The following information is provided to you for reference purposes only. We strive to provide information that is correct, to the best of our knowledge, and useful to a large number of companies. The information that we provide is general and does not take into account issues that may arise for individual companies. In the same vein, please note that this information does not constitute legal advice and should not be construed as such. Companies seeking legal advice relating to the U.S. proceedings with respect to softwood lumber, such as the administrative review processes, should retain U.S. legal counsel with expertise in U.S. trade law. Companies may also consider contacting their customs brokers regarding customs-related issues.

Current U.S. anti-dumping and countervailing duty rates

What cash deposit rates are currently in effect for Canadian softwood lumber products exported to the United States?

On November 23, 2020, the U.S. Department of Commerce issued the following anti-dumping and countervailing duty rates for companies subject to the first administrative reviews. While there are two sets of rates, one for 2017 and 2018, the cash deposit rates that will be in effect going forward will be those of 2018.

These rates came into effect for companies subject to the first administrative reviews after the U.S. Department of Commerce published the final results in the U.S. Federal Register. Final results for the anti-dumping administrative review were published on November 30, 2020, while final results for the countervailing administrative review were published on December 1, 2020.

CompanyAnti-dumping Duty Rate (2017)Countervailing Duty Rate (2017)Combined Duty Rates (2017)
Canfor Corporation1.99%2.94%4.93%
Resolute Forest Products Canada Inc.1.15%18.71%19.86%
West Fraser Mills Ltd.1.40%6.76%8.16%
J.D. Irving Ltd.1.57%
(All Others)
3.43%5.00%
All Others1.57%7.26%8.83%

 

CompanyAnti-dumping Duty Rate (2018)Countervailing Duty Rate (2018)Combined Duty Rates (2018)
Canfor Corporation1.99%2.63%4.62%
Resolute Forest Products Canada Inc.1.15%19.10%20.25%
West Fraser Mills Ltd.1.40%7.57%8.97%
J.D. Irving Ltd.1.57%
(all others)
2.66%4.23%
All Others1.57%7.42%8.99%

For companies not subject to the first administrative reviews, the “all others” rates from the original investigation continue to apply (anti-dumping duty rate of 6.04%, and countervailing duty rate of 14.19%). Specific companies subject to expedited reviews received their own separate countervailing duty rates.

Administrative reviews

What is an administrative review?

The U.S. Department of Commerce conducts an annual review of its anti-dumping duty and countervailing duty orders. This administrative review process is similar to the process used for the initial investigations, but applies only to companies that are subject to the review. A company is subject to the review if there has been a specific request for a review of that company filed with the U.S. Department of Commerce. The administrative review process will establish duty assessment rates for shipments entered during the period of review and establish the new duty deposit rates going forward until the next annual administrative review is completed.

How will the COVID-19 situation impact the administrative review processes?

Effective March 24, 2020, the U.S. Department of Commerce temporarily modified certain requirements for serving documents containing business proprietary information in the anti-dumping and countervailing cases. This temporarily allows documents containing business proprietary information to be submitted by electronic means through ACCESS, rather than the usual requirement for the physical exchange of documents. The goal is to promote public health and slow the spread of COVID-19. This temporary modification will be in place until further notice.

On April 24, 2020, the U.S. Department of Commerce announced it would uniformly toll (i.e. delay) deadlines for all anti-dumping and countervailing administrative reviews by 50 days in response to operational adjustments due to COVID-19. On July 21, 2020, Commerce announced that it would further toll deadlines for all administrative review preliminary and final determinations by 60 days. Final results for the first administrative reviews were delayed until late November 2020. In the same manner, final results for the second administrative reviews can now be expected as late as the end of November 2021. Final results for the third administrative reviews were not affected by this tolling and are expected by August 2022.

When does the United States begin the administrative review processes?

The U.S. statute provides that requests for administrative review must be filed during the anniversary month of the publication of an anti-dumping or countervailing duty order. As the anniversary month for both orders is January, this is when the administrative review process begins each year.

What are the time periods covered by the Periods of Review?

First administrative reviews: The Period of Review for the countervailing first administrative review is April 28, 2017 to December 31, 2018. The Period of Review for the anti-dumping first administrative review is June 30, 2017 to December 31, 2018.

Second administrative reviews: The Period of Review for both the countervailing and the anti-dumping second administrative reviews is January 1, 2019 to December 31, 2019.

Third administrative reviews: The Period of Review for both the countervailing and the anti-dumping third administrative reviews is January 1, 2020 to December 31, 2020.

If my company is subject to one or both of the anti-dumping and countervailing administrative reviews, what does this mean for my company?

If you are subject to one or both of the anti-dumping and countervailing administrative reviews, please review the following:

If your company currently exports in-scope products to the United States, please refer to the question below, entitled “How will my company be affected by the administrative review process?”

If your company currently only exports out-of-scope products to the United States and therefore you do not pay anti-dumping or countervailing duty cash deposits on these products, this should not change as a result of your inclusion in the administrative review process. U.S. Customs and Border Protection applies duties solely to products within the scope of the duty orders. The scope of the duty orders is not expected to change as part of the administrative review process.

If you begin shipping subject merchandise in the future, but did not export subject merchandise during the period of the initial duty investigations (calendar year 2015 for the countervailing investigation and October 2015 through September 2016 for the anti-dumping investigation), your shipments will be subject to duties upon entry into the United States and you may wish to request a new shipper review at the appropriate time (please see “New Shipper Review” section below). You should consult U.S. counsel specializing in U.S. trade law to determine if that may be appropriate for your company’s circumstances.

How will my company be affected by the administrative review process?

According to U.S. trade law, an administrative review request can be made by a number of parties: exporters and producers can request review of their own companies; importers can request review of the companies from which they purchased; and the Government of Canada can request reviews of specified exporters or producers. The petitioner may also request that the U.S. Department of Commerce conduct an administrative review of many or all exporters or producers who can be identified based on Customs data and other sources. If the petitioner makes a request, all companies named in that request would be subject to the administrative review. Separate requests are required for the anti-dumping and countervailing duty administrative reviews.

Not all companies that are subject to a review are necessarily individually examined, however. The U.S. Department of Commerce may select only a handful of respondents for individual examination. Individually examined companies (i.e. mandatory or voluntary respondents) will need to provide detailed information about their financial situation and operations during the respective anti-dumping and countervailing periods of review and will be provided with their own individual assessment and duty deposit rates at the conclusion of the administrative reviews. The remaining companies that are subject to the reviews (i.e. those not individually examined) will be given a new “all-others rate” as a result of the reviews. The remaining companies that are subject to the reviews (i.e. those not individually examined) will be given a new “all-others rate” as a result of the reviews. This new “all-others rate” will be based on a weighted average of the final rates for the individually examined respondents.

The new individual or “all-others” rates determined through the administrative reviews will establish the cash deposit rates on a going-forward basis and will establish assessment rates on past entries which occurred during the period of review. This means that if the final administrative review rates are higher than the cash deposit rates in place at the time the goods were entered, importers of record subject to the administrative reviews would be issued an invoice for the difference on shipments made during the period of review. Likewise, if the administrative review rates are lower than the cash deposit rates in place at the time the goods were entered, these importers of record would be entitled to a refund.

If no administrative review request is made for a company, the company’s shipments that were entered during the period of review will be automatically liquidated at the cash deposit rate that was in effect at the time the entry was made. While this provides certainty to a company as to the amount of duties that will ultimately be owed, it also means that the company could not benefit from any legal victory (i.e. under NAFTA Chapter 19/CUSMA Chapter 10) with respect to those entries as they would already have been disbursed to the U.S. Treasury. Furthermore, in the previous softwood lumber dispute, duties that had been liquidated were not available as part of the settlement of the 2006 Softwood Lumber Agreement.

How do administrative reviews work for resellers? Will resellers be subject to the rates attributed to their suppliers, or will they receive their own administrative review rates?

In general, resellers receive the anti-dumping or countervailing duty rates attributed to their suppliers unless resellers have been individually reviewed as mandatory respondents.

In the unlikely event that a reseller is selected as a mandatory respondent for the administrative review, this reseller will typically receive separate rates for each combination of the reseller and its suppliers.

If my company is selected as a mandatory or voluntary respondent, can my company represent itself in an administrative review? Should my company retain legal counsel?

Retaining legal counsel is not legally required. However, due to the complexities of these reviews, as well as their associated costs and risks, the Government of Canada strongly recommends that companies that are individually examined retain U.S. counsel who specialize in U.S. trade law.

How long will an administrative review take?

Generally, the deadline for the issuance of preliminary results is 245 days after the last day of the anniversary month of the duty order. However, this can be extended at the U.S. Department of Commerce’s discretion to 365 days. The deadline for the final results is generally 120 days after the preliminary results, but this deadline can be extended to 180 days. If the U.S. does not extend the time for issuing preliminary results, they may extend the time for issuing final results from 120 days to 300 days. However, with the tolling of deadlines by a total of 110 days due to COVID-19, final results for the first administrative reviews were delayed until the end of November 2020. In the same manner, final results for the second administrative reviews can now be expected as late as the end of November 2021. Final results for the third administrative reviews were not affected by the tolling and are expected by August 2022.

Does the scope of the administrative reviews include cedar shake and shingles products?

The scope of administrative reviews is the same as the scope of the duty orders determined through the initial investigations. The U.S. Department of Commerce initially determined that cedar shakes and shingles products were within the scope of the softwood lumber anti-dumping and countervailing duty orders, meaning that cedar shakes and shingles products were also included in the scope of the administrative reviews.

Following a challenge by the Shake and Shingle Alliance, in November 2019 the U.S. Department of Commerce was ordered by the U.S. Court of International Trade (CIT) to revisit its scope determination regarding cedar shakes and shingles. The U.S. Department of Commerce’s final redetermination found that the cedar shakes and shingles at issue are not covered by the scope of the anti-dumping and countervailing duty orders relating to certain softwood lumber products from Canada.

On April 20, 2020, the CIT let stand the U.S. Department of Commerce’s final redetermination that certain Canadian cedar shakes and shingles products are not within the scope of the softwood lumber anti-dumping and countervailing duty orders. On June 26, 2020, the U.S. Department of Commerce published its final redetermination in the U.S. Federal Register and issued instructions to U.S. Customs and Border Protection to cease the collection of duties and to refund previously collected duties on certain imports of Canadian cedar shakes and shingles.

On September 17, 2020, the U.S. Department of Commerce issued further instructions to U.S. Customs and Border Protection narrowing the applicability of its final redetermination on cedar shakes and shingles. The U.S. Department of Commerce clarified that its instructions to stop collection of duties and to liquidate cash deposits on Canadian exports of cedar shake and shingles applied only if the product:

  1. is exported by the Cedar Shake and Shingle Bureau or the individual members of the Shake and Shingle Alliance; and
  2. meets the following description “shakes and shingles that are rectangular products made of Western Red Cedar, Alaskan Yellow Cedar or Eastern White Cedar and are tapered lengthwise to a point with a thickness of 1/16" or less”.

On December 2, 2020, the U.S. Department of Commerce issued further revised instructions, narrowing yet again the applicability of its final redetermination on cedar shakes and shingles. These instructions indicated that its ruling that certain cedar shakes and shingles exported by the Shake and Shingle Alliance are outside the scope of the duty orders applies only to companies that were members of the Shake and Shingle Alliance on June 12, 2018 (date of the filing of Shake and Shingle Alliance’s scope ruling request).

On December 30, 2020, the Government of Canada filed a scope ruling request seeking to obtain a clear and definite outcome with respect to the treatment of cedar shake and shingle products from Canada, that applies to Canada as a whole.

On March 12, 2021, the U.S. Department of Commerce issued a scope ruling further to the Government of Canada’s request, and found that exports of certain Canadian cedar shakes and shingles, regardless of the producer or exporter, are not covered by the scope of the U.S. duty orders on softwood lumber. The description of cedar shakes and shingles found to be outside the scope of the U.S. duty orders is:

Rectangular products made of Western Red Cedar, Alaskan Yellow Cedar, or Eastern White Cedar with a nominal length ranging from 15 to 24 inches and a minimum nominal width of 3 inches, and are tapered along the length of the product, such that one end (known as the “butt end”) of the product has a thickness ranging from 5/16 to 1 inch, and the other end of the product tapers to an edge with a thickness of 1/16 inch or less.

On April 28, 2021, the U.S. Department of Commerce issued instructions to U.S. Customs and Border Protection to terminate suspension of liquidation of entries of these products and refund any cash deposits.

What is the role of the federal, provincial and territorial governments?

As part of the countervailing administrative review, the U.S. Department of Commerce will investigate provincial, territorial and federal assistance programs which U.S. industry alleges have benefited Canadian companies. For non-recurring programs, such as grants, the Government of Canada, as well as each implicated province and territory involved in the administrative review, will be required to respond to a questionnaire regarding assistance provided over a 10-year period to mandatory (or voluntary) respondents selected by the U.S. Department of Commerce. In the case of recurring programs, such as stumpage, the Canadian and provincial governments, as well as mandatory (or voluntary) respondents, will be required to provide information for the period of review.

First Administrative Reviews

What companies did the U.S. Department of Commerce select as mandatory respondents for the first administrative reviews?

For both the anti-dumping and countervailing first administrative reviews, the U.S. Department of Commerce selected Canfor, Resolute and West Fraser as mandatory respondents. For the countervailing first administrative review, the U.S. Department of Commerce also selected J.D. Irving, Ltd. as a voluntary respondent.

What is the significance of the rates the U.S. Department of Commerce calculates in the administrative reviews?

The individual rates calculated for mandatory and voluntary respondents are used to determine their individual assessment rates for the period of review and their deposit rates going forward.

As in the 2017 initial investigation, the individual rates attributed to the mandatory and voluntary respondents serve as the basis for a weighted average “all-others” rate which will be applied to all other Canadian companies subject to the first administrative reviews.

When did the U.S. Department of Commerce publish the first administrative review final results?

The U.S. Department of Commerce issued the final results in the first administrative review on November 23, 2020. However, the new duty assessment rates became official upon publication in the U.S. Federal Register. The final results for the anti-dumping first administrative review were published on November 30, 2020, and final results for the countervailing first administrative review were published on December 1, 2020.

When will companies be refunded for payment of the difference for the shipments entered during the periods of review?

When the duty assessment rates determined through the final results of an administrative review are lower than the cash deposit rates a company has paid a refund for entries made during the periods of review would generally be issued shortly after liquidation (that is, upon disbursement of these duties to the U.S. Treasury). For the first administrative review, however, since the final results were appealed and an interested party requested suspension of liquidation as part of that appeal, liquidation will likely be suspended until the end of the appeal process. Consequently, the United States would not be expected to issue any refunds until the appeal process is complete.

Will there be interest included in the potential refund that companies could receive resulting from the final rates from the first administrative reviews?

Yes. For shipments entered after the date on which the countervailing duty and anti-dumping duty orders were published (January 3, 2018), any refunds or balances due at liquidation will include interest. Over or under payments on cash deposits prior to the date on which the orders were published are not subject to interest.

The applicable interest rate is set by U.S. statute, and is derived from the U.S. federal short-term rate. Interest is calculated from the date of deposit through to the date of liquidation.

Will there be a return of the bonds related to particular entries now that the final results of the first administrative reviews have been published?

The purpose of these bonds is to secure payment of potential additional amounts due in the event that the company does not pay what it owes. Bonds relating to particular entries would not typically be cancelled until liquidation of those entries. As long as the liquidation of an entry remains suspended, U.S. Customs and Border Protection will not release the bond applicable to that entry.

There is some unpredictability in what U.S. Customs and Border Protection will require from individual companies in terms of continuous bonds. The best way for individual companies to get specific information is to contact their customs brokers.

When did the final anti-dumping and countervailing first administrative review cash deposit rates take effect?

The new anti-dumping and countervailing cash deposit rates established in the final results of the first administrative reviews took effect when the U.S. Department of Commerce published the final results in the U.S. Federal Register.

Final results for the anti-dumping administrative review were published on November 30, 2020, and the final results for the countervailing administrative review were published on December 1, 2020.

For how long will the first administrative review cash deposit rates be in effect?

For companies included in the second administrative reviews, the cash deposit rates from the final results of the first administrative reviews will be in effect for approximately one year from the date of publication in the U.S. Federal Register. The first administrative review cash deposit rates will then be superseded by the final results of the second administrative reviews, which are expected approximately one year after the final results of the first administrative reviews.

For companies included in the first administrative reviews, but not the second administrative reviews, the final rates from the first administrative reviews will continue to apply until these companies are included in a future administrative review, at which point the rates will be superseded by the results of that particular administrative review.

Will companies that are not subject to the first administrative reviews be subject to the new final rates resulting from the anti-dumping and countervailing first administrative reviews, or will they keep the old rates?

Companies not subject to the first administrative reviews will keep the duty rates determined through the original investigation.

How will the first administrative review results impact the second administrative review results?

The U.S. Department of Commerce treats each administrative review as its own proceeding. However, the U.S. Department of Commerce typically resolves issues by reaching the same conclusion in subsequent administrative reviews unless new facts or arguments are presented that justify a change in course. Thus, the first administrative review results are likely to be used as guidance for how the U.S. Department of Commerce will proceed in the second administrative reviews.

How will the first administrative review results impact the results of the expedited review?

Companies that participated in the expedited review, and did not receive a de minimis rate, received a new individual countervailing duty rate, which replaced the countervailing duty cash deposit rate they received in the original investigation. For companies participating in the countervailing first administrative review, the cash deposit rate determined in the administrative review superseded the expedited review cash deposit rate. If a company did not participate in the countervailing first administrative review, the company’s expedited review countervailing duty cash deposit rate continues to apply. That said, ongoing litigation related to the expedited review may impact how its results are implemented.

The expedited review process did not affect the anti-dumping duty cash deposit rate.

Second Administrative Reviews

What companies did the U.S. Department of Commerce select as mandatory respondents for the second administrative reviews?

In the countervailing second administrative review, the U.S. Department of Commerce selected Canfor, Resolute and West Fraser as mandatory respondents, and J.D. Irving, Ltd. as a voluntary respondent. In the anti-dumping second administrative review, only Canfor and West Fraser were selected as respondents.

Will the U.S. Department of Commerce be conducting verifications during the second administrative reviews?

The U.S. Department of Commerce has discretion as to whether it will conduct verifications in administrative reviews for selected respondents, and in the prior softwood lumber disputes, has conducted verifications in administrative reviews.

In the second administrative reviews, verifications remain a possibility at the present time.

If the U.S. Department of Commerce’s final second administrative review duty assessment rates are lower than the anti-dumping or countervailing cash deposit rates in effect at the time of entry, when would companies be refunded for payment of the difference for the shipments entered during the period of review?

If the duty assessment rates determined through the final results of the second administrative reviews are lower than the cash deposit rates a company has paid, and that company is subject to the second administrative reviews, a refund for entries made during the period of review would generally be issued shortly after liquidation (that is, upon disbursement of these duties to the U.S. Treasury). However, if the final results of the second administrative reviews are appealed, and an interested party (including the petitioner) requests suspension of liquidation as part of that appeal, liquidation will likely be suspended for the companies included in that request until the end of the appeal process. Consequently, the United States would not be expected to issue any refund until the appeal process is complete.

If the U.S. Department of Commerce’s final second administrative review duty assessment rates are higher than the anti-dumping or countervailing cash deposit rates in effect at the time of entry, when would companies be issued invoices for payment of the difference for the shipments entered during the periods of review?

If the duty assessment rates determined through the final results of the second administrative reviews are higher than the cash deposit rates a company has paid, and that company is subject to the second administrative reviews, invoices for entries made during the periods of review would generally be issued shortly after liquidation (that is, upon disbursement of these duties to the U.S. Treasury). However, if the final results of the second administrative reviews are appealed, and an interested party (including the petitioner) requests suspension of liquidation as part of this appeal, the liquidation will likely be suspended for the companies included in that request until the end of the appeal process. Consequently, the United States would not be expected to issue any invoices for further payment until the appeal process is complete.

Will companies that do not participate in the second administrative reviews be subject to the new second administrative review anti-dumping and countervailing duty rates going forward, or will they keep the old rates?

The companies that are not subject to the second administrative reviews would keep the cash deposit rates established in the original investigation going forward if they did not participate in the first administrative reviews.

If a company did participate in the first administrative reviews, they will continue to make cash deposits at the rates established in the final results of the first administrative reviews. The final results of the first administrative reviews were issued in late November 2020.

How will the liquidation of cash deposits affect my company?

On April 20, 2020, the U.S. Department of Commerce announced it would proceed with the automatic liquidation of countervailing duty cash deposits collected on certain softwood lumber products from Canada that entered the United States during the period of review, from 01/01/2019 to 12/31/2019 for companies that did not participate in the second administrative review. On May 19, 2020, Commerce issued similar instructions stating that it would proceed with the automatic liquidation of anti-dumping duty cash deposits from the same period for companies that did not participate in the second administrative review. Therefore, companies that are not participating in the anti-dumping or countervailing second administrative review will have their entries liquidated (i.e. disbursed to the U.S. Treasury), at the cash deposit rate that was in effect at the time the entry was made. This also means that these companies could not benefit from any future legal victory (e.g. under NAFTA Chapter 19/CUSMA Chapter 10) with respect to those entries as they would already have been disbursed to the U.S. Treasury.

Companies that are participating in the anti-dumping or countervailing second administrative reviews will be exempted from the automatic liquidation of cash deposits for entries during the period of review, at least until the conclusion of the second administrative reviews.

Third Administrative Reviews

When was the deadline to request to participate in the third administrative reviews? What should my company do if it missed the deadline?

The deadline for companies interested in participating in the third administrative reviews was January 31, 2021.

The U.S. Department of Commerce is the investigating authority responsible for conducting administrative reviews for the softwood lumber anti-dumping and countervailing duty orders. As such, specific procedural questions should be conveyed to the U.S. Department of Commerce directly.

What companies did the U.S. Department of Commerce select as mandatory respondents for the third administrative reviews?

In the countervailing third administrative review, the U.S. Department of Commerce selected Canfor, Resolute and West Fraser as mandatory respondents. In the anti-dumping third administrative review, only Canfor and West Fraser were selected as respondents. Voluntary respondents for both proceedings have not yet been selected

How do I request an ACCESS account?

Introduction:

  • An ACCESS account is required for Canadian companies wishing to upload any documentation regarding anti-dumping or countervailing duty proceedings by the U.S. Department of Commerce.
  • A company needs to register only once with ACCESS, even if it is interested in uploading documents in more than one proceeding. A single registration allows a company to file in multiple proceedings. The registrant should use a company e-mail address. A personal email address should be used only if there is no company email address.
  • If you are represented by U.S. counsel that has already registered with ACCESS and will be filing on your behalf, it is not necessary for you to separately register.
  • There is no monetary cost to creating an ACCESS account. Canadian companies interested in U.S. Department of Commerce proceedings should begin ACCESS account creation at least a week in advance of any document submission deadlines.
  • Disclaimer: The Government of Canada does not take any responsibility for technical or other issues that may be encountered by Canadian companies wishing to create and use an ACCESS account. If you encounter any issues during the ACCESS account creation process, please refer to the Help section on the left side of the ACCESS webpage.

Steps:

  1. Open your preferred web browser. Enter in the web address https://access.trade.gov, and go to the website.
  2. You will reach the home login page. Click on “E-filer registration” to the left. This is what you will need if you intend to file documents on ACCESS, such as a notice of no sales. Do not click on guest registration. A guest account does not allow you to upload documents related to Department of Commerce proceedings.
  3. You will come to the Terms of Use Agreement page. Read through and then click Accept. If you decline, you will be unable to create an ACCESS account.
  4. You will come to the E-Filer registration page. Please fill out all the information that is required.
    1. For country code, select Canada from the drop-down menu.
    2. For Firm/Organization name, please find your company. If it is not listed, select “other”, and then fill in the address box.
    3. For email address, please use a company e-mail address. A personal email address should be used only if there is no company email address.
    4. If you are only interested in the US-Canada softwood lumber anti-dumping duty proceedings, enter “A-122-857 Third Admin Review” in the Case No. and Segment box.
    5. If you are only interested in the US-Canada softwood lumber countervailing duty proceedings, enter “C-122-858 Third Admin Review” in the Case No. and Segment box.
    6. If you are interested in both proceedings, you only need to register once, using one or the other of the above case numbers and segment.
    7. Enter the security code as your page will indicate.
  5. Click “submit”.
  6. You will come to a page indicating that the Department of Commerce is reviewing your registration. Note that the approval process, as it indicates, can take up to 48 hours. For additional assistance, you should use the e-mail or telephone number as provided on the webpage.
  7. Afterwards, in the e-mail account you used to register for the ACCESS account, you will receive an e-mail from ACCESS indicating that they have received your registration with a summary of the information you just provided. The e-mail indicates again that approval of your ACCESS account registration can take up to 48 hours.
  8. In time, you will receive an e-mail confirmation from ACCESS indicating that your account has been approved. Follow the instructions in that e-mail to login using the credentials you provided for your account creation.
  9. You will then have access to the ACCESS system.
Can companies choose to withdraw from the administrative review process after they have made a request to participate?

Yes, subject to certain conditions. The U.S. Department of Commerce may allow the withdrawal of a company from the administrative review process, but only if all parties that requested a review for that company withdraw their request for review and if the request is submitted in a timely fashion.

If the petitioner has requested a review of a company, the petitioner would need to withdraw its request in order for the company to be able to withdraw from the administrative review process.

Normally, the withdrawal request must be submitted within 90 days of the publication of the U.S. Department of Commerce’s notice of initiation.

How do I file a Notice of No Sales?

Introduction:

  • In the notice of initiation published in the U.S. Federal Register on March 4, 2021, the U.S. Department of Commerce requests that if any company included in the notice had no exports, sales, or entries during the period of review, it must notify the U.S. Department of Commerce of this lack of sales within 30 days of publication of the notice of initiation.  Any company that files such a notice of no sales will be dropped out of the administrative review.  Normally, the only reason such a company would have been included in the notice of initiation in the first place would have been because Petitioner requested that they be subject to the review.
  • These instructions identify the specific steps to be followed for making a “notice of no sales” filing. The security classification and document type designations may need to be modified if you are filing a different document.
  • The procedures for filing a notice of no sales are very similar to the procedures for filing a request for review, discussed above.  Canadian companies wishing to file documentation must have an ACCESS e-filer account to do so. If you do not already have an ACCESS e-filer account, please refer to the above FAQs for more information.
  • If you are represented by U.S. counsel that has already registered with ACCESS as an e-filer and will be filing documentation on your behalf, it is not necessary for you to also have an e-filer account, or to file additional documents.
  • Additionally, the Government of Canada does not take any responsibility for technical or other issues that may be encountered by Canadian companies using the ACCESS system. If you encounter any issues while you are using ACCESS, please refer to the Help section on the left side of the ACCESS webpage.
  • Please note that you will have to repeat this filing process separately if you are filing for both anti-dumping and countervailing duty proceedings, but you can use the same ACCESS e-filer account to file documents in both proceedings.
  • Following digital filing on ACCESS, you are also required to serve a paper copy of the submission on all parties listed in the applicable service list via personal service or first class mail. Please refer to the FAQ below for more information on how to find the applicable service list.

Steps:

  1. Open your preferred web browser. Enter in the web address https://access.trade.gov, and go to the website.
  2. You will reach the home login page. Please enter your username and password. Click the box for “I’m not a robot” and click the box to accept the terms and conditions.
  3. Click Login.
  4. You will reach the User homepage.
  5. On the left side of the screen, click on “E-file Document.”
  6. Please enter in the required information: 

    When you are filing for the anti-dumping duty third administrative review proceedings, you will need the following details to file your request:

    Case Number: A-122-857
    Segment: select “REV-Admin Review” from the drop down menu
    Segment Begin date: 1/1/2020
    Segment End date: 12/31/2020
    Segment specific information: leave this blank
    Security classification: select “Public Document” from the drop down menu
    Document Type: select “Letter” from the drop down menu
    Filed on behalf of: Enter your company information.

    Please leave the other fields above the “Upload Files” section blank.

    When uploading your document in the “Upload Files” section, you should make clear the subject of the document in the “Title” field. For example, if filing a notice of no sales, write as a title: “Notice of no sales_(COMPANY NAME)”.

    When you are filing for the countervailing duty third administrative review proceedings, you will need the following details to file your request:

    Case Number: C-122-858
    Segment: select “REV-Admin Review” from the drop down menu
    Segment Begin date: 1/1/2020
    Segment End date: 12/31/2020
    Segment specific information: leave this blank
    Security classification: select “Public Document” from the drop down menu
    Document Type: select “Letter” from the drop down menu
    Filed on behalf of: Enter your company information.

    Please leave the other fields above the “Upload Files” section blank.

    When uploading your document in the “Upload Files” section, you should make clear the subject of the document in the “Title” field. For example, if filing a notice of no sales, write as a title: “Notice of no sales_(COMPANY NAME)”.
     
  7. To file your documentation, go to the “upload file” section at the bottom. Enter the title of your document as suggested in the Step above. Click “browse.”
  8. Search within your internal computer for the final version of your document.
  9. Once you have done so, click “submit” at the bottom.
  10. You will receive a confirmation window. Please click “OK”. As the window describes, do not click refresh or the back button after you click “OK”.
  11. You should then receive a confirmation page confirming the details of your submission. Please save and print a copy for your records.
  12. Again, if you are filing for both anti-dumping and countervailing duty proceedings, you will have to file separately for each of the proceedings. If so, please repeat the above steps for the second proceeding.
  13. Following the online filing, you must send a complete paper copy of your filing to all parties listed in the applicable service list via first-class mail or through personal service. It is advised that you send the paper copies as soon as you complete the online filing via ACCESS.
  14. You will now have completed your filing.
How do I find the Applicable Service List?
  1. Log into ACCESS
  2. Choose the search function from the list on the left hand side
  3. Enter the following fields:
    1. Case number:
      1. For the countervailing duty administrative review this is C-122-858;
      2. For the anti-dumping duty administrative review this is A-122-857
    2. Segment: REV-Admin Review (same for both the countervailing duty administrative review and the anti-dumping duty administrative review)
    3. Segment Begin Date:
      • For the countervailing duty third administrative review this is 1/1/2020;
      • For the anti-dumping duty third administrative review this is 1/1/2020
    4. Segment End Date: 12/31/2020 (same for both the countervailing duty administrative review and the anti-dumping duty third administrative review)
    5. Document Type: Public Service List (this is the applicable type for the notice of no sales filing; if filing a business proprietary submission, select APO Service List)
  4. Hit the search button and open the public service list with the most recent “Filed Date”

This document will contain the list of parties that you will need to include in your certificate of service attached to your submission.

Suspension of duty liquidation 

What is suspension of liquidation?

Countervailing and anti-dumping duty payments are typically on deposit until the final duty assessment rates for a given period of review are established retroactively by the U.S. Department of Commerce in an administrative review. When Commerce’s final results for an administrative review are issued, the duties are assessed and they are then liquidated (i.e. disbursed to U.S. Treasury). Companies receive either a refund or invoice for additional duties owed if the final duty assessment is lower or higher than the deposit rate.

However, if the final results of an administrative review are appealed, for instance through a NAFTA/CUSMA dispute settlement panel or the U.S. courts, the liquidation of duties may be suspended upon request of a party until that legal challenge is resolved.

On February 2 and 26, 2021, the U.S. Department of Commerce issued customs instructions continuing the suspension of liquidation for the first administrative reviews, pending the completion of the ongoing CUSMA binational panel reviews.

U.S. trade remedy proceedings

How do I access documents related to the softwood lumber investigations?

Information on the U.S. countervailing and anti-dumping duty investigations can be found on the U.S. International Trade Administration website.   You must first register as a Guest User before being able to access information.  Once you have signed up, you can search for documents by case number, as follows:

  • Anti-dumping duty investigation: A-122-857
  • Countervailing duty investigation: C-122-858

Information on the softwood lumber injury investigation can be found on the U.S. International Trade Commission’s website, listed under “Softwood Lumber from Canada”. In addition, registering with the U.S. International Trade Commission’s Electronic Document Information System (EDIS) will allow you to gain access to the various documents filed with them in relation to the softwood lumber injury case. Once your account is set up, a simple search for “softwood” or case number “701-TA-566” will display the public documents that have been filed in relation to the injury investigation.

What are the U.S. subsidy allegations?

The main allegation made by the U.S. industry is that provincial stumpage (i.e. the price charged to harvest timber from Crown lands) constitutes a countervailable subsidy.  The U.S. industry has also alleged that certain funding programs provide countervailable subsidies to Canadian softwood lumber producers. In the past, U.S. claims have been found to be without basis. Canada believes this to once again be the case.  During the last softwood lumber dispute, Canada successfully brought and won numerous challenges against the U.S. under the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) regarding U.S. duties on Canadian softwood lumber. Canada has again brought such cases in this dispute.

What is the U.S. trade remedies process?

The U.S. trade remedies process is the process by which U.S. companies seek protection from foreign imports that are allegedly subsidized or dumped and that are allegedly causing injury to the U.S. domestic industry.

This process is primarily administered by the U.S. Department of Commerce and U.S. International Trade Commission.  Key milestones in the process of the initial investigation include:

U.S. Industry Petition

  • The trade remedies process begins with the U.S. industry simultaneously filing petitions with the U.S. Department of Commerce and the U.S. International Trade Commission containing allegations that companies have been selling unfairly dumped and/or subsidized products into the United States in a manner that causes injury or threatens to cause injury to the U.S. industry. 

International Trade Commission - Preliminary Investigations

  • After the petition is filed, the U.S. International Trade Commission begins a preliminary investigation to determine if the U.S. industry has been injured or threatened with injury by the allegedly dumped or subsidized goods. 

Department of Commerce - Evaluation and Initiation

  • At the same time, the U.S. Department of Commerce evaluates the petition and makes a decision on whether to initiate anti-dumping and/or countervailing duty investigations. If it decides to do so, the Department of Commerce then begins the investigation(s), which includes requesting detailed information from parties under investigation and conducting on-site verifications of information submitted in the context of the investigations. 

International Trade Commission - Preliminary Determination

  • If the U.S. International Trade Commission, as a result of its investigation, makes a preliminary determination that the U.S. industry has been injured or threatened with injury, the U.S. Department of Commerce continues its investigation(s). 

Department of Commerce - Preliminary Determinations

  • Part way through its investigation(s), the U.S. Department of Commerce makes a preliminary determination regarding subsidization and/or dumping.  Should the U.S. Department of Commerce find countervailable subsidies and/or dumping, preliminary duties are placed on all goods covered by the investigation(s) entering the United States at that time. 

Department of Commerce - Final Determination

  • Following the conclusion of the U.S. Department of Commerce investigation(s), it makes a final determination of subsidization and/or dumping. 

International Trade Commission - Final Determination

  • The U.S. International Trade Commission then makes a final injury determination.  If the U.S. International Trade Commission makes an affirmative final determination of injury or threat of injury and, if the U.S. Department of Commerce finds countervailable subsidies and/or dumping in its final determination, the U.S. Department of Commerce will then impose final duties on all goods covered by the investigation(s).
Can Canada appeal an unfavourable decision?

Yes. Final determinations of subsidy, dumping and injury can be reviewed under the World Trade Organization, and through the binding binational panel review process under Chapter 19 of the North American Free Trade Agreement. Canada is currently challenging U.S. final determinations under these mechanisms.

Which companies were selected to be investigated by the U.S. Department of Commerce in the original investigation?

For both the anti-dumping and countervailing duty investigations, the U.S. Department of Commerce selected West Fraser, Tolko, Canfor and Resolute Forest Products as mandatory respondents. These companies were individually investigated and received company-specific anti-dumping and countervailing duty rates.

Because J.D. Irving chose to exercise its right to submit voluntary responses in the countervailing duty investigation, and the U.S. Department of Commerce agreed to investigate alleged subsidization with respect to the company, J.D. Irving was also individually investigated and received a company-specific countervailing duty rate.

Who is responsible for paying anti-dumping and countervailing duties imposed by the United States?

The importer of record on the shipment to the United States is responsible for paying any duties imposed by the United States. The U.S. Department of Commerce requires importers to provide cash deposits on imports of certain softwood lumber products that are equivalent to the anti-dumping and countervailing duty rates in effect at the time of entry.

In most cases, Canadian exporters of softwood lumber products are also listed as the importer of record on shipments to the United States. Consequently, these Canadian exporters are required to shoulder the cost of any U.S. duties placed on their goods. 

Do all companies have to pay anti-dumping and countervailing duties, or only those companies that were specifically investigated by the U.S?

Only softwood lumber products that fall within the scope of these investigations are subject to U.S. duties. The U.S. Department of Commerce selected four specific Canadian producers to serve as a sample for investigation purposes in both the anti-dumping and the countervailing duty cases. Each of these has received company-specific countervailing and anti-dumping duty rates. J.D. Irving was also individually investigated as a voluntary respondent in the countervailing duty investigation and therefore received a company-specific countervailing duty rate. Companies that are not directly investigated are subject to a weighted average “all-others” rate. 

Atlantic Canada

What is the status of Atlantic Canada in the investigations?

Historically, the Atlantic Provinces (i.e.: New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador) have been exempted from U.S. countervailing duty investigations because the United States agreed that their timber pricing was market-based. The Atlantic producers have in the past been subject to anti-dumping duties.  In this case, however, the U.S. Department of Commerce investigated allegations that New Brunswick stumpage constituted a countervailable subsidy.  It also imposed preliminary anti-dumping and countervailing duties on all exporters in the Atlantic provinces. Canada requested that the U.S. exclude the Atlantic provinces from the countervailing duty investigation.

On November 1, 2017, the U.S. Department of Commerce confirmed its final scope language, which applies to both the anti-dumping and countervailing duty investigations.  The final scope language specifically excludes: “softwood lumber products certified by the Atlantic Lumber Board as being first produced in the Provinces of Newfoundland and Labrador, Nova Scotia, or Prince Edward Island from logs harvested in Newfoundland and Labrador, Nova Scotia, or Prince Edward Island.” 


Therefore, as of November 8, 2017 (the date of publication of the U.S. Department of Commerce’s final determinations in the U.S. Federal Register), exports originating from these three provinces, and which have the required Atlantic Lumber Board certificate, are excluded from the final scope of the U.S. Department of Commerce’s anti-dumping and countervailing duty investigations. Softwood lumber products originating in New Brunswick were not excluded from the application of anti-dumping and countervailing duties.

The U.S. Department of Commerce has instructed U.S. Customs and Border Protection to refund any preliminary anti-dumping and countervailing duties for entries which were accompanied by the appropriate Atlantic Lumber Board certificate.   

I shipped lumber from one of the excluded provinces without an accompanying certificate from the Atlantic Lumber Board. Will I still receive a refund from the United State Customs and Border Protection for these shipments?

No. The instructions sent by the Department of Commerce to U.S. Customs and Border Protection state that to qualify for this exclusion, an importer must provide an Atlantic Lumber Board certificate with each entry certifying that the merchandise was first produced in the Provinces of Newfoundland and Labrador, Nova Scotia, or Prince Edward Island from logs harvested in Newfoundland and Labrador, Nova Scotia, or Prince Edward Island. Additionally, the Atlantic Lumber Board certificate of origin number must be identified in the Customs Entry Summary documentation for each entry. 

Scope of investigations

Are cedar shakes and shingles covered by the scope of the U.S. duty orders on certain softwood lumber products from Canada?

No. For a time, it appeared that they might be, but as described below, the issue should now be resolved.

In March 2018, U.S. Customs and Border Protection began applying softwood lumber duties to cedar shakes and shingles from Canada. This was an unprecedented decision as these products had never been captured in previous softwood lumber disputes.

The Shake and Shingle Alliance sought to overturn this decision by requesting a scope ruling from the U.S. Department of Commerce. The U.S. Department of Commerce initially determined that cedar shakes and shingles products were within the scope of the softwood lumber duty orders.

Following a challenge by the Shake and Shingle Alliance, in November 2019 the U.S. Department of Commerce was ordered by the U.S. Court of International Trade (CIT) to revisit its scope determination regarding cedar shakes and shingles. The U.S. Department of Commerce’s final redetermination found that the cedar shakes and shingles at issue are not covered by the scope of its duty orders relating to certain softwood lumber products from Canada.

On April 20, 2020, the CIT let stand the U.S. Department of Commerce’s final redetermination that certain Canadian cedar shake and shingle products are not within the scope of the U.S. softwood lumber duty orders. On June 26, 2020, the U.S. Department Commerce published its final redetermination in the U.S. Federal Register and issued instructions to U.S. Customs and Border Protection to cease the collection of duties and to refund previously collected duties on certain imports of Canadian cedar shakes and shingles.

On September 17, 2020, the U.S. Department of Commerce issued further instructions to U.S. Customs and Border Protection narrowing the applicability of its final redetermination on cedar shakes and shingles. The U.S. Department of Commerce clarified that its instructions to stop collection of duties and to liquidate cash deposits on Canadian exports of cedar shake and shingles applied only if the product:

  1. is exported by the Cedar Shake and Shingle Bureau or the individual members of the Shake and Shingle Alliance; and
  2. meets the following description “shakes and shingles that are rectangular products made of Western Red Cedar, Alaskan Yellow Cedar or Eastern White Cedar and are tapered lengthwise to a point with a thickness of 1/16" or less”.

On December 2, 2020, the U.S. Department of Commerce issued further revised instructions, narrowing yet again the applicability of its final redetermination on cedar shakes and shingles. These instructions indicated that its ruling that certain cedar shakes and shingles exported by the Shake and Shingle Alliance are outside the scope of the duty orders applies only to companies that were members of the Shake and Shingle Alliance on June 12, 2018 (date of the filing of Shake and Shingle Alliance’s scope ruling request).

On December 30, 2020, the Government of Canada filed a scope ruling request seeking to obtain a clear and definite outcome with respect to the treatment of cedar shake and shingle products from Canada, that applies to Canada as a whole.

On March 12, 2021, the U.S. Department of Commerce issued a scope ruling further to the Government of Canada’s request, and found that exports of certain Canadian cedar shakes and shingles, regardless of the producer or exporter, are not covered by the scope of the U.S. duty order on softwood lumber. This decision took effect on April 28, 2021. Any duties previously collected on these products will be refunded.

Expedited review

What is an expedited review?

An expedited review is a process by which companies can obtain a company-specific countervailing duty cash deposit rate, as opposed to the final “all-others” rate in the initial U.S. Department of Commerce investigation.

The expedited review determines whether a company received countervailable subsidies by undergoing essentially the same process as completed in the initial company-specific U.S. Department of Commerce countervailing duty investigation.

While it is possible for a company to represent itself, these cases are often very complex and familiarity with U.S. countervailing duty law and U.S. Department of Commerce procedures is important. It is the strong recommendation of the Government of Canada that companies should seek legal advice to determine if proceeding with an expedited review is in their best interests and that companies who choose to request an expedited review retain U.S. counsel, specifically, counsel that specializes in U.S. trade law.

What was the deadline to request an expedited review?

Under the current U.S. regulations, companies must submit a request to the U.S. Department of Commerce within 30 calendar days of the date of publication in the U.S. Federal Register of any final countervailing duty order.

The U.S. Department of Commerce published its countervailing duty order in the U.S. Federal Register on January 3, 2018. As a result, the deadline for companies to submit a request for an expedited review to the U.S. Department of Commerce was February 2, 2018.

Note that the U.S. International Trade Administration announced that it would extend by three days the deadline to submit a request for an expedited review to the U.S. Department of Commerce. The new deadline was Monday, February 5, 2018.

For how many companies did the United States initiate the expedited review process?

The U.S. Department of Commerce initiated expedited reviews for 33 of the 34 Canadian companies that requested such a review, and granted a withdrawal request for the 34th company. The U.S. Department of Commerce subsequently granted withdrawal requests for all 24 Canadian companies that requested it after initiation. As a result, only nine companies remain in the process.

How long does an expedited review take?

Current U.S. regulations contemplate that an expedited review will be completed either within 270 days or 450 days, depending on whether it is “extraordinarily complicated”. If the timeline is fully extended, final results could come as late as spring of 2019.

What are the possible results of an expedited review?

If a company demonstrates, and the U.S. Department of Commerce verifies, that the company received either zero or de minimis subsidies (i.e. a subsidy rate of less than 1%) attributed to sales in the 2015 calendar year, that company would be excluded from the final countervailing duty order, including future administrative reviews conducted by the U.S. Department of Commerce. In this situation, the company would no longer be subject to any countervailing duties as of the date of publication of the final results of the expedited review in the U.S. Federal Register. This company would also have any cash deposits made to that point refunded to them.

If the U.S. Department of Commerce determines that a company has received subsidies above the de minimis threshold (i.e.: a subsidy rate of 1% or higher), the U.S. Department of Commerce will determine a company-specific countervailing duty rate for that company. This company-specific rate will take effect on a going-forward basis, as of the date of publication in the U.S. Federal Register. The U.S. Department of Commerce in the past has not applied the final expedited review rates that are above de minimis retroactively. It is important to note that company-specific rates can be lower or higher than the final “all others” countervailing duty rate.

Under the Department of Commerce’s current procedures, duty deposit rates established in an investigation can be altered at the conclusion of the First Administrative Review. The First Administrative Review begins one year following the publication of the countervailing duty order and takes approximately 12 to 18 months to complete.

There are no past examples as to how the final results from an expedited review would be impacted by the final results of an Administrative Review in a company-specific countervailing duty case. It is therefore unclear whether the U.S. Department of Commerce will replace the expedited review rates with the countervailing duty rates from the first administrative review. 

The Government of Canada strongly recommends that companies participating in the expedited review seek legal advice to understand how decisions in the First Administrative Review may impact the rates set in the final results of the expedited reviews.

My company did not harvest logs directly from provincial, territorial or federal lands and did not have Crown tenure in 2006 to 2015. Will my company-specific rate therefore be zero or de minimis?

Not necessarily. If your company, including any affiliated companies, did not directly harvest logs from provincial, territorial or federal lands, this does not guarantee that the expedited review will result in your company receiving a rate of zero or de minimis.

The U.S. Department of Commerce will undertake their investigations and determine the calculations for both stumpage and “non-stumpage” programs, associated with the 2015 sales for your company, including any affiliated companies. Stumpage is only one element of this calculation.

In expedited reviews following the last softwood lumber investigation, the U.S. Department of Commerce determined that companies that did not harvest logs directly, or have Crown tenure, nevertheless received some stumpage benefits. It is not clear whether the U.S. Department of Commerce will undertake the same calculations in these expedited reviews.

What is the role of the federal, provincial and territorial governments?

The Government of Canada is responsible for advising the relevant provincial and territorial governments of any company that has applied for an expedited review, which had operations in their province or territory during calendar years 2006 to 2015 (January 1, 2006 to December 31, 2015).

The Government of Canada, as well as each province and territory in which companies undergoing an expedited review had operations during calendar years 2006 to 2015, are required to respond to a questionnaire regarding assistance provided to each of these companies, even if those companies no longer have operations in these provinces and territories.

New shipper review

My company did not ship during 2015, but is doing so now and must pay duties. Can my company receive a company-specific duty rate?
  • U.S. regulations and statute allow new shipper reviews for companies that did not export to the United States during the period that was investigated in the original investigation. For the countervailing duty investigation, this was calendar year 2015. For the anti-dumping investigation, this was October 1, 2015 through to September 30, 2016.
  • A new shipper review is essentially a mechanism for producers and exporters of softwood lumber products that fall within the scope of the U.S. investigations to obtain their own individual anti-dumping duty rate and countervailing duty rate. To request a new shipper review, the requester must have exported, or sold for export, relevant softwood lumber products to the United States.
  • Note also that, to be eligible for a new shipper review, the applicant must not be affiliated with an exporter or producer that did export relevant softwood lumber products to the United States during the periods of investigation.
  • Companies should be aware that there is no guarantee of receiving lower duty rates as a result of the new shipper review process than the “all-others” duty rates, and that companies could, in fact, receive higher rates.  New shippers will also not be excluded from the order even if they receive a zero or de minimis rate of less than 1 percent.
  • The Government of Canada strongly recommends that companies interested in requesting a new shipper review retain U.S. counsel; specifically, counsel that specializes in U.S. trade law.
When can I apply for a new shipper review?
  • An exporter or producer may request a new shipper review within one year of the date on which the relevant softwood lumber products first entered the United States, or were withdrawn from warehouse, for consumption, or, if the exporter or producer cannot establish the date of first entry, the date on which the exporter or producer first shipped merchandise for export to the United States.
How long does a new shipper review take?
  • U.S. regulations provide that the U.S. Department of Commerce will issue preliminary results of the new shipper review within 180 days after the date on which the new shipper review was initiated, and final results of the review within 90 days after the date on which the preliminary results were issued. These deadlines may be extended to 300 days and 150 days, respectively.
What are the first steps in a new shipper review?
  • If your company is a new shipper and is considering undergoing the new shipper review process, you will need to notify the Government of Canada, as well as each Province / Territory where your company had operations during calendar years 2008 to 2018. You can advise the Government of Canada of your intention to participate in this process at our dedicated softwood email address: softwood.boisdoeuvre@international.gc.ca.
  • Due to the complexities of these reviews, as well as their associated costs and risks, the Government of Canada strongly recommends that companies interested in requesting a new shipper review retain U.S. counsel; specifically, counsel that specializes in U.S. trade law.