COBRA ANCHORS CO. LTD.
PRESIDENT OF THE CANADA BORDER SERVICES AGENCY
Appeal No. AP-2008-006
Decision and reasons issued
Friday, May 8, 2009
TABLE OF CONTENTS
IN THE MATTER OF an appeal heard on January 14, 2009, under
section 61 of the Special Import Measures Act, R.S.C.
1985, c. S-15;
AND IN THE MATTER OF decisions of the President of the Canada
Border Services Agency, dated April 23, 2008, with respect to
requests for re-determinations under section 59 of the
Special Import Measures Act.
COBRA ANCHORS CO. LTD.
THE PRESIDENT OF THE CANADA BORDER SERVICES
The appeal is allowed.
Pasquale Michaele Saroli
Pasquale Michaele Saroli
Place of Hearing:
Date of Hearing:
January 14, 2009
Pasquale Michaele Saroli, Presiding Member
Ellen Fry, Member
Diane Vincent, Member
Counsel for the Tribunal:
Manager, Registrar Office:
Cobra Anchors Co. Ltd.
President of the Canada Border Services Agency
Pierre L. McDuff
Cobra Anchors Co. Ltd.
Senior Program Officer
Anti-Dumping and Countervailing Program
Canada Border Services Agency
Please address all communications to:
Canadian International Trade Tribunal
Standard Life Centre
333 Laurier Avenue West
1. This is an appeal filed with the Canadian International Trade
Tribunal (the Tribunal) by Cobra Anchors Co. Ltd. (Cobra) pursuant
to section 61 of the Special Import Measures
from decisions of the President of the
Canada Border Services Agency (CBSA) dated April 23, 2008, with
respect to requests for re-determinations under section 59.
2. The issue in this appeal is whether certain goods imported
into Canada by Cobra (the goods in issue) are of the same
description as the goods subject to the Tribunal findings in
(the subject goods) made under
subsection 43(1) of SIMA, and therefore subject to the
imposition of anti-dumping duties.
3. The goods in issue are six different sealed clamshell-type
retail packages containing two zinc “shields”3
and two steel
of a length and diameter that work with the
shields. The shield, when used together with the lag bolt, is a
friction-type anchoring system designed for use in base materials,
such as concrete, brick, block and stone, that are not suitable for
directly receiving a lag bolt. Typical applications include the
support of shelving, awnings, signs and ornamental fixtures. Holes
are drilled into the base materials before the shields are fastened
in place by the corresponding lag bolts. The holding power is
derived through the creation of a frictional force between the
shields and lag bolts and the base materials.
4. The CBSA determined that the lag bolt components of the goods
in issue were of the same description as the subject goods and
that, accordingly, anti-dumping duties were payable on the lag
5. Cobra argued that, as a component of the goods in issue
(which it described as consumer-ready “anchor kits” put up in
packages for retail sale), the lag bolts were not goods of the same
description as the subject goods and, therefore, were not subject
to anti-dumping duties.
6. Subsection 61(3) of SIMA allows the Tribunal to
“. . . make such order or finding as the nature of
the matter may require and . . . declare what
duty is payable or that no duty is payable on the goods with
respect to which the appeal was taken . . . .”
In the present circumstances, the Tribunal must determine whether
the goods in issue are of the same description as the subject
7. The Tribunal’s findings in Certain Fasteners
describe the subject goods as follows:
[C]arbon steel and stainless steel fasteners, i.e. screws, nuts
and bolts of carbon steel or stainless steel that are used to
mechanically join two or more
elements . . . originating in or exported from
the People’s Republic of China . . . .
The statement of reasons indicates as follows:
A screw is a headed and externally threaded mechanical device
that possesses capabilities which permit it to be inserted into
holes in assembled parts, to be mated with a pre-formed internal
thread or to form its own thread, and to be tightened or released
by torquing its head. Screws include machine screws, wood screws,
self-drilling, self-tapping, thread forming, and sheet metal
screws. Screws may have a variety of head shapes (round, flat,
hexagonal, etc.), drives (slot, socket, square, phillips, etc.),
shank lengths and diameters. The shank may be totally or partially
8. The goods in issue, comprising six models of anchor kits,
were imported into Canada from the People’s Republic of China
(China) by Cobra, a manufacturer and distributor of anchoring
products, in four separate transactions that occurred between April
2006 and May 2007.
9. Between November 2006 and June 2007, the CBSA issued a
Detailed Adjustment Statement for each transaction, determining,
pursuant to section 57 of SIMA, that the goods imported
into Canada were subject goods.
10. On August 22, 2007, the CBSA issued an advance ruling
stating that the goods in issue were, for tariff purposes, properly
classified under tariff item No. 7907.00.90 of the schedule to the
as other articles of zinc.
11. In April and September 2007, pursuant to section 58 of
SIMA, Cobra appealed the CBSA’s decisions made under
12. On April 23, 2008, the CBSA determined, pursuant to section
59 of SIMA, that the lag bolt components of the goods in
issue were subject goods and that the lag screw shield components
13. On July 8, 2008, pursuant to section 61 of SIMA,
Cobra filed an appeal with the Tribunal from the CBSA’s decisions
with respect to the requests for re-determinations under section
14. The Tribunal held a public hearing in Ottawa, Ontario, on
January 14, 2009.
15. Cobra called one witness, Mr. Pierre L. McDuff, President,
Cobra. The CBSA called one witness, Mr. Richard Pragnell, Senior
Program Officer, Anti-Dumping and Countervailing Program, CBSA.
16. On November 17, 2008, Cobra filed the following physical
280SJ425-1/4S (242 S): 2 lag screw shields with screws, 1/4 in.,
280SJ510-5/16S (243 S): 2 lag screw shields with screws, 5/16
280SJ560-3/8S (244 S): 2 lag screw shields with screws, 3/8 in.,
280SL436-1/4L (252 S): 2 lag screw shields with screws, 1/4 in.,
280SL515-5/16L (253 S): 2 lag screw shields with screws, 5/16
280SL567-3/8L (254 S): 2 lag screw shields with screws, 3/8 in.,
17. On December 24, 2008, the CBSA filed the following physical
2 lag screws, 5/16 in. and 2 1/2 in.
15 lag screw shields, 5/16 in.
2 lag screw shields with screws
2 lag shields (red head), 5/16 in.
4 lead shields with screws (red head)
18. Section 61 of
SIMA provides as follows:
(1) Subject to section 77.012 or 77.12,
a person who deems himself aggrieved by a re-determination of the
[CBSA] made pursuant to section 59 with respect to any goods may
appeal therefrom to the Tribunal by filing a notice of appeal in
writing with the [CBSA] and the Secretary of the
Tribunal . . . .
. . .
(3) On any appeal under subsection (1), the Tribunal may
make such order or finding as the nature of the matter may require
and, without limiting the generality of the foregoing, may declare
what duty is payable or that no duty is payable on the goods with
respect to which the appeal was taken, and an order, finding or
declaration of the Tribunal is final and conclusive subject to
further appeal as provided in section 62.
61. (1) Sous réserve des articles
77.012 et 77.12, quiconque s’estime lésé par un réexamen effectué
en application de l’article 59 peut en appeler au Tribunal en
déposant, auprès du président et du secrétaire du Tribunal [...] un
(3) Le Tribunal, saisi d’un appel en vertu du paragraphe
(1), peut rendre les ordonnances ou conclusions indiquées en
l’espèce et, notamment, déclarer soit quels droits sont payables,
soit qu’aucun droit n’est payable sur les marchandises visées par
l’appel. Les ordonnances, conclusions et déclarations du Tribunal
sont définitives, sauf recours prévu à l’article 62.
19. Anti-dumping duties are payable when the goods imported into
Canada are of the same description as the goods in respect of which
the Tribunal has made an order or finding under section 43 of
SIMA. Subsection 3(1) provides as follows:
3. (1) Subject to section 7.1, there
shall be levied, collected and paid on all dumped and subsidized
goods imported into Canada in respect of which the Tribunal has
made an order or finding, before the release of the goods, that the
dumping or subsidizing of goods of the same description has caused
injury . . . a duty as follows:
(a) in the case of dumped goods, an anti-dumping
duty in an amount equal to the margin of dumping of the imported
. . .
(1) Sous réserve de l’article 7.1, les
marchandises sous-évaluées ou subventionnées importées au Canada
alors que le Tribunal a établi avant leur dédouanement, par
ordonnance ou dans ses conclusions, que le dumping ou le
subventionnement de marchandises de même description a causé un
dommage [...] sont assujetties aux droits suivants :
a) dans le cas de marchandises sous-évaluées, des
droits antidumping d’un montant égal à la marge de dumping des
Are the Goods in Issue
of the Same Description as the Subject Goods?
20. Cobra claimed that the goods in issue are anchor kits
containing a specific number of zinc shields and a matching number
of correspondingly sized
steel lag bolts. Cobra submitted that the imported goods are not
screws, nuts or bolts and that, while the anchor kits include one
or more lag bolts, they are different from their individual
components. In this regard, Cobra submitted that the Tribunal’s
findings in Certain Fasteners do not cover the goods in
issue because the imported goods are not of the same description as
the subject goods, which are carbon steel screws
originating in or exported from China and Chinese Taipei and
stainless steel screws originating in or exported from
21. Cobra submitted that the CBSA’s position to the effect that
zinc shields in the anchor kits are not subject to anti-dumping and
countervailing duties but that the lag bolt components are subject
to such duties, implies that two separate goods were imported (i.e.
non-subject zinc shields and subject lag bolts) when, in reality,
the goods in issue constitute a single product, specifically,
consumer-ready anchor kits put up in packages for retail sale,
which are not intended to be opened and disassembled prior to
22. Cobra submitted that there is no statutory authority that
allows the CBSA to disassemble an imported product for the purpose
of applying anti-dumping duties to a specific component of that
product. Cobra argued that, pursuant to section 3 of SIMA,
the CBSA is required to calculate anti-dumping duties on the basis
of the margin of dumping of the imported goods. In this regard,
Cobra asserted that it is well established in customs law that
goods are to be classified according to their nature at the time of
importation, which, according to Cobra, was not done by the CBSA in
23. Cobra argued that the factors considered by the Tribunal in
Macsteel International (Canada) Limited v. Commissioner of the
Canada Customs and Revenue Agency are absent in the present
case. In particular, the Tribunal, in that decision, determined as
. . . the goods in issue compete directly with
[one another] . . . [They] are relatively
identical and interchangeable products that can be used for the
same applications . . . [They] are sold at the
same price . . . .7
24. In particular, Cobra submitted that the goods in issue are
not relatively identical to, interchangeable with, or used for the
same applications as the subject goods. It added that lag bolts and
anchor kits are not sold at the same price and that it would not be
economical for someone wanting to purchase a lag bolt to purchase
an anchor kit.
25. The CBSA submitted that the lag bolt component, not having
been determined to be incidental to the anchor kit, falls within
the definition of subject goods. It noted that the fact that lag
bolts imported separately would have attracted anti-dumping duties
was not contested. The CBSA further noted that Cobra also imported
lag screw shields separately, which would require the consumer to
purchase the corresponding lag bolts independently. Finally, the
CBSA indicated that, in Certain Fasteners, the Tribunal
rejected an exclusion request for “pre-packaged fasteners put up
for retail sale”.
26. The Tribunal is of the view that the determination of
whether goods are goods of the same description as the goods to
which a Tribunal finding applies must be based on an examination of
the goods as a whole, in the manner in which they were presented at
the time of their importation.8
27. In determining whether imported goods are of the same
description as goods subject to a Tribunal order or finding, the
Tribunal has, in the past, considered a number of criteria, such as
physical description, end-use applications, interchangeability,
competition in the marketplace, price and marketing.9
case, considering the manner in which the goods in issue were
presented at the time of their importation, the Tribunal finds as
in terms of physical description, the goods in issue, at the
time of their importation, were pre-packaged anchoring kits
consisting of a specific number of zinc shields and a matching
number of correspondingly sized lag bolts.10
imported anchor kits are not covered by the physical description of
the subject goods in the Tribunal’s findings in Certain
the anchoring kits have specialized end-use applications in
respect of certain surfaces, such as concrete, brick, block and
stone, in respect of which a lag bolt alone would not be
functionally effective. In this regard, an examination of the goods
and related testimony indicates that it is the lag bolt and shield
together that give the anchoring system its functionality in these
specialized end-use applications, which differ significantly from
those of lag bolts alone;12
because of their different end-use applications, anchoring
systems and lag bolts are not directly interchangeable
although anchoring systems and lag bolts are displayed near
each other in stores in some instances, it is reasonable to
conclude that they do not compete with each other in the
marketplace. In this respect, Mr. McDuff testified that lag bolts
and anchoring kits are typically displayed in different sections of
Mr. Pragnell testified that the lag bolts
that he purchased were on one side of the aisle, whereas the
shields were directly behind him, on the other side of the aisle,
as were the kits, which were on the same display shelf as the
the consumer-ready anchoring kits are marketed differently
than lag bolts in terms of mode of sale and price, with the latter
typically sold in bulk at a significantly lower price.16
the price difference, Cobra and the CBSA agreed that it would not
be economically rational for someone wanting to acquire lag bolts
to acquire them through the purchase of anchoring
28. Given the above analysis, the Tribunal finds that the goods
in issue, in the manner in which they were presented at the time of
their importation, are not goods of the same description as the
Can the Goods in Issue
Be Disassembled for the Purpose of Imposing Anti-dumping
29. In arguing that the lag bolt components of the goods in
issue are goods of the same description as the subject goods, the
CBSA asserted that the imported goods in this case, anchor kits,
are in reality two goods packaged together.18
this respect, the CBSA submitted that, since the steel lag bolt
component was not incidental to the anchor kit, it was properly
taken to fall within the scope of the definition of subject
30. In the Tribunal’s view, having found that the steel lag bolt
and zinc shield are both integral to the overall ability of the
anchoring system to fulfill its functional purpose in respect of
the specialized applications for which it was specifically
designed, it follows that separating the lag bolt from the
anchoring kit and treating it as a separate good for the purpose of
applying anti-dumping duties under SIMA would deprive the
anchoring system (which requires both the lag bolt and shield) of
Accordingly, it is the Tribunal’s view
that neither the steel lag bolt nor the zinc shield can properly be
considered separately from the goods in issue, of which each forms
an integral part.
31. Pursuant to subsection 61(3) of SIMA, the appeal is
. R.S.C. 1985, c. S-15 [SIMA].
. (7 January 2005), NQ-2004-005 (CITT)
. Commonly known as “anchors”.
. Although the parties refer to “lag bolts”
interchangeably as “lag bolts” or “lag screws”, for clarity, they
are referred to as “lag bolts” in this statement of reasons.
. At para. 19. In APR Imports Ltd. v.
Deputy M.N.R.C.E. (28 February 1994), AP-93-141 (CITT) at 3,
the Tribunal stated as follows: “. . . In deciding
whether anti-dumping duties are payable, it is the description of
the goods in the Tribunal’s finding itself that is determinative.
However, the Tribunal may seek guidance in interpreting the
description of the goods in the finding by referring to the product
description in the statement of
reasons . . . .”
. S.C. 1997, c. 36.
. (16 January 2003), AP-2001-012 (CITT)
[Macsteel] at 4.
. See Deputy M.N.R.C.E. v. MacMillan
& Bloedel (Alberni) Ltd.,  S.C.R. 366. See also
Tiffany Woodworth v. President of the Canada Border Services
Agency (11 September 2007), AP-2006-035 (CITT) at para.
. See, for example, Nikka Industries
Ltd. v. Deputy M.N.R.C.E. (20 August 1991), AP-90-018 (CITT);
Macsteel; Zellers Inc. v. Deputy M.N.R. (25
January 1996), AP-94-351 (CITT).
. Tribunal Exhibit AP-2008-006-06B at 4,
. During testimony, the witness for Cobra
accepted the fact that lag bolts, on their own, are not the same
products as anchor kits, stating as follows: “you would have to
combine the lag screw with the lag shield” in order to make up the
lag screw kit. Transcript of Public Hearing, 14 January
2009, at 97-98.
. Tribunal Exhibit AP-2008-006-03A at 11;
Transcript of Public Hearing, 14 January 2009, at 43-46,
98-99. The witness for Cobra testified that lag screw shields are a
friction-type anchor designed for medium-duty use in concrete,
brick, block and stone. They are used in specific applications
where screws (or nuts and bolts) would not be able to do the job.
The interdependence between the shield and the lag bolt for the
proper functioning of the anchor system was confirmed by the
witness for the CBSA.
. Tribunal Exhibit AP-2008-006-03A at 11;
Transcript of Public Hearing, 14 January 2009, at 45-46,
. Transcript of Public Hearing,
14 January 2009, at 9.
. Ibid. at 58, 78.
. Ibid. at 29, 86; Tribunal
Exhibit AP-2008-006-15B, Tab 3.
. Ibid. at 29, 86.
. Ibid. at 46.
. By contrast, a drill bit included with
the anchoring kit could legitimately be considered a separate good,
as it would be extraneous to the “functionality” of the anchoring
system itself. By way of further example, the bag of screws or lag
bolts that came with a barbecue kit, being essential to the
assembly of the barbecue, would be “integral” to the functionality
of the unit, whereas a barbecue utensil set included with the
barbecue kit, being extraneous to the functionality of the unit
itself, would be gratuitous and, as such, would properly be
considered a separate good.