|
|
This document was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. Legislative summaries are not government documents. They have no official legal status and do not constitute legal advice or opinion. Please note, the Legislative Summary describes the bill as of the date shown at the beginning of the document. For the latest published version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.
|
|
LS-315E
BILL C-35: AN ACT TO AMEND THE
SPECIAL IMPORT
MEASURES ACT AND THE CANADIAN INTERNATIONAL
TRADE TRIBUNAL ACT
Prepared by:
Daniel Dupras
Law and Government Division
15 April 1998
LEGISLATIVE HISTORY OF BILL C-35
HOUSE OF COMMONS |
SENATE |
Bill Stage |
Date |
Bill Stage |
Date |
First Reading: |
19 March 1998 |
First Reading: |
7 December 1998 |
Second Reading: |
25 September 1998 |
Second Reading: |
17 February 1999 |
Committee Report: |
4 November 1998 |
Committee Report: |
24 March 1999 |
Report Stage: |
1 December 1998 |
Report Stage: |
|
Third Reading: |
7 December 1998 |
Third Reading: |
25 March 1999 |
Royal Assent: 25 March 1999
Statutes of Canada 1999, c.12
N.B. Any substantive changes in this Legislative Summary which have
been made since the preceding issue are indicated in bold print.
|
|
|
|
TABLE OF CONTENTS
BACKGROUND
DESCRIPTION AND
ANALYSIS
Recommendation 1
Recommendation 2
Recommendation 3
Recommendation 4
Recommendation 5
Recommendation 6
Recommendation 7
Recommendation 8
Recommendation 9
Recommendation 10
Recommendation 11
Recommendation 12
Recommendation 13
Recommendation 14
Recommendation 15
Recommendation 16
TECHNICAL AMENDMENTS
AND CORRECTIONS
TRANSITIONAL
PROVISIONS
COMING INTO FORCE
COMMENTARY
APPENDIX: TABLE OF
CONCORDANCE
BILL C-35: AN ACT TO AMEND THE SPECIAL IMPORT MEASURES ACT
AND THE CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT
BACKGROUND
Major changes have taken place in international trade since the Special
Import Measures Act (SIMA) was passed in 1984. Canada has successively signed the
Canada-U.S. Free Trade Agreement (FTA), the North American Free Trade Agreement (NAFTA)
and the Agreements resulting from the Multilateral Trade Negotiations of the Uruguay Round
(WTO Agreements), which instituted the World Trade Organization (WTO).
NAFTA, which contains virtually all of the provisions of the FTA,
addresses at length restrictive trade practices, anti-dumping measures and anti-subsidy
measures.(1) In each instance, the
Parliament of Canada has passed statutory amendments to the Special Import Measures Act
to comply with its new international obligations.(2)
The provisions in the OMC Agreements respecting restrictive trade practices (dumping and
subsidies) required Parliament to make new amendments to SIMA, mainly in respect of the
definition of a subsidy, the determination of injury and the method for establishing
dumping margins.(3)
As of 1996, the Special Import Measures Act had not been
reviewed since 1984 to determine whether it still met the expectations of the Canadian
business community or whether it was consistent with the international trade environment.
At the request of the Minister of Finance, two sub-committees (hereinafter called
"the Sub-Committees") of the House of Commons began a joint study of SIMA in
September 1996 and tabled a report in December of that year.(4)
While the Sub-Committees concluded that the Special Import Measures
Act responded adequately to the Canadian business communitys expectations, they
nevertheless suggested a few improvements. On the whole, the government received the
Sub-Committees recommendations favourably and agreed that it would be appropriate to
implement virtually all of them.(5) To
this end, it tabled Bill C-35 in the House of Commons on 19 March 1998.
DESCRIPTION AND
ANALYSIS
By the governments own admission, the purpose of Bill C-35 is to
implement the Sub-Committees recommendations.(6)
To determine the extent to which these recommendations would in fact be implemented by the
bill, this description and analysis section will directly relate its provisions to the
recommendations. For each recommendation, there will first be an explanation of the
recommendation itself and the governments response; second, the provisions of
Bill C-35 that would implement the recommendation will be discussed. Bill C-35
also contains provisions for purely technical corrections to the two statutes it would
amend; these provisions are merely listed.
As the bill is fairly complex, a table is attached showing the
concordance between the clauses of the bill, the relevant sections of SIMA and the Canadian
International Trade Tribunal Act (CITTA) and the title in the legislative summary
under which the question is considered.
Recommendation 1
The Sub-Committees recommend that
the SIMA legislation and process be continued, subject to the modifications addressed in
this report. |
SIMA is the main statutory instrument respecting the
mechanism and measures available to the Canadian business community for coping with unfair
trade practices from outside Canada. The Minister of Finance is responsible for developing
policy and implementing the resulting legislation. Revenue Canada and the Canadian
International Trade Tribunal (CITT) share responsibility for administering the system
created under SIMA.
SIMA essentially provides for the procedure for assessing anti-dumping
and countervailing duties on imports that constitute dumping or that are subsidized and
are thus harmful to Canadian industry. When a complaint is filed, Revenue Canada
determines whether the complaint is properly documented and, if that is the case,
initiates an investigation. To do this, the department must have sufficient evidence to
establish that there has been dumping or subsidizing that has caused injury or threatened
to do so. If these elements are present, Revenue Canada makes a preliminary determination
of dumping or subsidizing and fixes provisional duties to protect the domestic industry
from the alleged injury pending the outcome of the investigation. In this preliminary
determination, Revenue Canada also rules on whether there has been injury to the Canadian
industry.
Once the preliminary determination is made, foreign exporters or
governments may make undertakings to eliminate the dumping or subsidization and thus the
injury to the domestic industry. If Revenue Canada accepts these undertakings, the case is
usually suspended and no duties are assessed. If there are no undertakings, Revenue Canada
continues its inquiry in order to reach a final determination as to whether there has been
dumping or subsidizing; if its decision is affirmative, the Department states the margin
of dumping or the amount of the subsidy. Revenue Canadas role is completed after an
affirmative determination or after a determination that there has been no dumping or
subsidization.
The CITT, which is an independent quasi-judicial body, is responsible
for rendering a definitive decision as to the existence of injury to the national
industry. If it concludes that such injury has occurred, anti-dumping or countervailing
duties are usually assessed on all goods imported after the date of Revenue Canadas
preliminary determination. If the CITT finds that the import caused no injury but
threatened to do so, anti-dumping or countervailing duties are usually assessed as of the
date of the determination. Anti-dumping or countervailing duty orders expire after five
years, unless the CITT concludes pursuant to a new review that the dumping or subsidizing
may have continued or resumed.
In their report, the Sub-Committees concluded that SIMA was responding
well to the needs of the Canadian business community and that it should be maintained,
subject to the few amendments they recommended. They further stated that these
recommendations should not be perceived as objections to SIMA, but rather as suggestions
for altering the balance between the various players and for improving the
legislations overall efficiency. In its response to the Sub-Committees
recommendations, the government stated that it supported this recommendation. As this
recommendation requires no amendment to SIMA, the bill contains no provisions relating to
it.
Recommendation 2
The Sub-Committees recommend that
Revenue Canada take concrete measures to ensure fair and equal access to the SIMA process
by small and medium-sized Canadian producers. |
The SIMA procedure usually begins when a Canadian
producer files a complaint with Revenue Canada. The complainant must submit documents
relevant to its complaint. In the following stages, producers may be asked to participate
increasingly in the process; however, not all producers have the financial and other means
to do so.
The Sub-Committees therefore recommended "that Revenue Canada take
concrete measures to ensure fair and equal access to the SIMA process by small and
medium-sized Canadian producers." In its reply to their recommendations, the
government stated that it supported this recommendation and added that Revenue Canada was
studying its practices and exploring options to further access to SIMA.
As this recommendation may be implemented through improvements to
administrative practices, none of the provisions of the bill specifically relate to it.
Recommendation 3
The Sub-Committees recommend that
the CITT be given the responsibility for making the preliminary determination of injury. |
As stated above, complaints are filed with Revenue
Canada, which must decide whether the complaint is properly documented and whether dumping
or subsidizing has occurred and, if so, make a preliminary determination of injury.
However, as stated above, the final determination of injury is made by the CITT. This
procedure therefore requires the parties to present their arguments concerning injury
first to Revenue Canada and then to the CITT. To avoid this duplication, the
Sub-Committees recommended that the CITT be the only body to rule as to injury and that it
hear the parties starting at the first stage, the preliminary determination of injury.
In its reply, the government acknowledged the CITTs authority to
assess injury and agreed it would be preferable to transfer responsibility to it for
ruling as to injury at the preliminary determination stage. Revenue Canada would remain
the authority responsible for accepting complaints and deciding to initiate an
investigation. Once Revenue Canada had ruled in favour of doing so, the complaint would
immediately be put before the CITT, which would be responsible for making a preliminary
determination of injury.
This recommendation would be implemented under Bill C-35 as
follows:
- Clause 21 would amend the head preceding section 38 of SIMA to read
"Preliminary Determination of Injury or of Dumping or Subsidizing" and would add
a new section 37.1. This new section would give the CITT responsibility for making
the preliminary determination of injury. This determination would have to be made not
later than the sixtieth day following the initiation of the investigation (under
section 31 of the SIMA), provided the investigation was not terminated by the Deputy
Minister. This determination would be based on the fact that the evidence disclosed a
reasonable indication that the dumping or subsidizing had caused injury or retardation or
was threatening to cause injury. Furthermore, under the new section 37.1(2) of SIMA,
the CITT would give notice of its preliminary determination to the Deputy Minister, the
exporter, the importer, the government of the country of export, the complainant, if any,
and any persons prescribed by regulation, and would publish such notice in the Canada
Gazette.
- Clause 22(1) would amend the portion of section 38(1) of SIMA before
paragraph (a) to remove the Deputy Ministers responsibility for making a
preliminary determination of injury. The new subsection 38(1) would also state that
(subject to section 39) the Deputy Minister would have to make the preliminary
determination of dumping or subsidizing after the sixtieth day, but not later than the
ninetieth day after the initiation of the investigation.
- Clause 23 would amend the portion of section 39(1) of SIMA before
paragraph (a) to delete the reference made to section 40, which would be
repealed by clause 24 of the bill. Section 39 of SIMA provides for the
possibility of extending the time period under section 38(1) to 135 days.
- Clause 17 would replace sections 34 and 35 of SIMA. The new sections 34
and 35 would be worded to reflect the transfer to the CITT of responsibility for making a
preliminary determination of injury. The new paragraph 34(1)(a) of SIMA would
state to whom the notice of investigation would be sent (to the Secretary, the exporter,
the importer, the government of the country of export, the complainant, if any, and any
other prescribed persons). The notice would also be published in the Canada Gazette.
New section 34(1)(b) would provide for the Deputy Minister to provide the CITT
with the information and material required under the Tribunals rules.(7) The new section 34(2) would provide that,
after receipt of the notice, the CITT would make a preliminary inquiry to determine
whether the evidence disclosed a reasonable indication that the dumping or subsidizing of
the goods had caused injury or retardation or was threatening to cause injury. The new
section 35 would provide for the investigation to be terminated 1) if the Deputy
Minister observed that a) there was insufficient evidence of dumping or subsidizing,
b) the margin of dumping or the amount of subsidy was insignificant or c) the
volume of dumped or subsidized goods was negligible or 2) if the CITT concluded that
there was no injury or retardation or threat of injury.
- Clause 18(1) would amend section 35.1(1) of SIMA. This section provides that
the Deputy Ministers investigation, which concerns goods from Chile, is terminated
if the Governor in Council reaches a settlement to remove those goods from the application
of SIMA. The amendment would add that CITTs investigation would also be terminated
in that instance.
- Clause 18(2) would amend the portion of section 35.1(2) of SIMA before
paragraph (a) to add the CITT to this subsection. As a result, the Deputy
Minister or the Tribunal would be required to send notice of the termination of the
investigation to the persons mentioned therein and to publish the notice in the Canada
Gazette.
- Clause 19 would repeal section 36 of SIMA, which refers to a referral back to
the CITT during the Deputy Ministers preliminary investigation. Since the CITT would
henceforth be responsible for making a preliminary determination of injury, such a case
would no longer arise. The proposed repeal of section 36 is therefore entirely
appropriate.
- Clause 20 would amend the passage of section 37 of SIMA preceding
paragraph (a), which currently refers to references under sections 34 and
35. As these sections would be amended by the bill, these references would no longer be
necessary.
Recommendation 4
The Sub-Committees recommend that
SIMA should be amended to provide counsel increased access to confidential information in
anti-dumping/countervailing duty investigations conducted by Revenue Canada. |
The documentation submitted when a complaint is filed
with Revenue Canada and the documentation subsequently submitted by the other parties
always contains confidential information. Under current practice, the CITT gives the
counsel of the various parties access to confidential information in the Tribunals
records, whereas Revenue Canada does not give them access to any confidential information
it gathers except where non-confidential summaries do not convey a reasonable
understanding of the substance. The Sub-Committees recommended that Revenue Canada grant
counsel increased access to confidential information that it has collected. Every
amendment to SIMA in this area should be accompanied by penalties for unauthorized release
of confidential information by counsel.
In its reply, the government supported this recommendation, which would
be implemented under Bill C-35 as follows:
- Clause 44 would amend section 84(2) and (3) of SIMA and would add
section 84(3.1). Section 84(1) of SIMA provides that an employee of the federal
Public Service may not disclose confidential information which he or she obtains while so
employed unless authorized to do so under a provision of SIMA; such disclosure may not be
made except in accordance with the prescribed conditions. The new section 84(2)(a)
would provide that the summary of information or statement referred to in
section 85(1)(b) or section 79(2) would not be subject to the same
reservation. The new section 84(2)(b) would enable the Deputy Minister to
disclose information for the purposes of proceedings before a panel or the Appellate Body
established under the WTO Understanding on Rules and Procedures Governing the Settlement
of Disputes. The new section 84(3) would prescribe the conditions under which
confidential information could be disclosed to the counsel of a party. The new
section 84(3.1) would provide that the Deputy Minister need not disclose information
if satisfied that the disclosure might result in material harm to the business or affairs
of the person who had designated the information as confidential under section 85(1)(a).
- Clause 45 would add section 88.1 to SIMA, to make it possible to protect
confidential information gathered by the CITT during proceedings before it where such
information would be disclosed to an employee of the federal Public Service under
section 76.03(6)(b).
- Clause 50 would add section 96.4 to SIMA. This new section would create the
offences and penalties for violations of the provisions of SIMA concerning confidential
information. Under the new section 96.4(1) every person would commit an offence who
used information disclosed to him or her by the Deputy Minister under section 84(3)
for any purpose other than the purpose for which the information had been so disclosed.
Under the new section 96.4(2), every person who committed such an offence would be
guilty of (a) an indictable offence and liable to a fine of not more than $1,000,000
or (b) an offence punishable on summary conviction and liable to a fine of not more
than $100,000. The new section 96.4(3) would provide that no proceedings for an
offence under this section could be instituted without the written consent of the Attorney
General of Canada.
- Clause 60 would amend section 49 of CITTA. This section currently prohibits
any member or person from "disclosing" any information or material given or
elicited in the course of certain proceedings. The amendment would also add two new cases
as provided for by section 37(a) and section 76.03(9) of SIMA
(information disclosed to the CITT by the Deputy Minister).
Recommendation 5
The Sub-Committees recommend that
appropriate changes be made to Canadian trade legislation to permit access by experts to
confidential information in SIMA proceedings before the CITT. |
This recommendation is closely related to the previous
recommendation. Under section 45 of CITTA, the CITT may not authorize the disclosure
of confidential information except to counsel. To act in a case, an expert must therefore
be designated as counsel. This formality has prevented experts from testifying in certain
cases because the common law usually prohibits a person acting as counsel in a case from
testifying in the same case.
In its reply, the government supported this recommendation and stated
that it would be possible to amend CITTA to grant the CITT the discretionary power to
authorize the disclosure of confidential information to recognized experts retained by
counsel for a party.
This recommendation would be implemented under Bill C-35 as
follows:
- Clause 59(1) would amend section 45(3) of CITTA and add section 45(3.1)
and (3.2). The amendments would enable an expert who was acting under the direction of
counsel for one of the parties to gain access, on the conditions stated therein, to
confidential information gathered during the proceedings before the CITT. The new
section 45(3.1) would enable an expert retained by the CITT to gain access, on the
conditions set out therein, to that same confidential information. The new
section 45(3.2) would provide that it would be understood that the disclosure of the
information contemplated in section 45(3) and (3.1) to persons referred to in
section 45(5) [persons who may be recognized as experts] and employed by a federal
institution that was a party to the proceedings would be understood not to constitute
disclosure to a party to the proceedings or to the procedure under section 45(3) or
(3.1).
- Clause 59(2) would amend section 45 of CITTA and add section 45(5) to
(9). The new section 45(5) would provide that, in section 45(3) and (3.1),
"expert" would include any of the following persons whom the Tribunal recognized
as an expert: (a) persons whose duties involve the carrying out of the Competition
Act and who are referred to in section 25 of that Act, other than persons
authorized by the Governor in Council to exercise the powers and perform the duties of the
Director of Investigation and Research, (b) in respect of the determination of
damages and costs in procurement review proceedings, persons employed in the government
institution involved in the procurement under review and (c) any prescribed person.
The new section 45(6) would define the offences under section 45(3) and (3.1).
The new section 45(7) would establish the penalties for those offences (a fine of not
more than $1,000,000 for an indictable offence and a fine of not more than $100,000 for an
offence punishable on summary conviction). The new section 45(8) would provide that
no proceedings for such an offence could be instituted without the consent in writing of
the Attorney General of Canada. The new section 45(9) would provide that the CITT
could bar any counsel or expert who committed an offence under section 45(6) from any
further appearance before it for the period that the Tribunal considered appropriate.
Recommendation 6
The Sub-Committees recommend the
inclusion in the SIMA Regulations the fact of dumping in third-country markets as evidence
of threat of future injury. |
Although the CITT is already permitted to consider any
other relevant factor in the case, which may include any observation of dumping in a third
country, the Sub-Committees thought it would be preferable to state this factor
specifically to ensure that it would be considered.
In its reply, the government said that it supported this
recommendation. As this recommendation should be implemented through amendments to the
regulations adopted under SIMA or CITTA, the bill contains no provisions concerning it.
Recommendation 7
The Sub-Committees recommend that
Revenue Canada make allowance in regulations to accommodate representations from
interested parties when undertakings are being considered. |
In the course of its investigation, Revenue Canada may
negotiate undertakings with the exporter to Canada of goods that are being dumped or with
the foreign government subsidizing goods imported to Canada. The negotiation of such
undertakings is not governed by any particular provision of SIMA. The parties involved in
the investigation may not intervene in the negotiation of such undertakings. To enable
these parties to protect their interests more effectively, the Sub-Committees recommended
that Revenue Canada make allowance in regulations to accommodate representations from
interested parties when undertakings are being considered.
In its reply, the government said it supported this recommendation
subject to the preservation of existing statutory/regulatory time constraints for the
acceptance of undertakings. In fact, the participation of the interested parties in the
negotiation should not prevent the undertakings from being made within the prescribed time
period.
This recommendation would be implemented under Bill C-35 as
follows:
- Clause 29 would add section 49(5) to SIMA. This new subsection would state
that, in considering whether to accept an undertaking, the Deputy Minister would have to
consider any representations received from the importer, exporter, government of the
country of export or any other interested person.
Recommendation 8
The Sub-Committees recommend that
section 53(2) of SIMA be amended to allow the Deputy Minister of National Revenue to
review and terminate undertakings before five years. |
Under section 53 of SIMA, Revenue Canada is
required to review the undertaking before the expiration of the five-year period. If, as a
result of the review, Revenue Canada decides there is no justification for continuance of
the undertaking, the Department may not terminate it because it is not authorized to do so
under any statutory provision. The purpose of this recommendation is to correct this
shortcoming.
In its reply, the government said that it supported this
recommendation, which would be implemented under Bill C-35 as follows:
- Clause 32(2) would amend section 53(2) to state that an undertaking would be
terminated immediately after the Deputy Minister decided not to renew it. The present
wording of this subsection does not enable the Deputy Minister to terminate the
undertaking before the end of the five-year period.
- Clause 30 would add section 51.1 to SIMA. This new section would state the
terms and conditions in accordance with which the Deputy Minister could suspend the
investigation to accept an undertaking. Acceptance of such an undertaking could not
(a) (if the undertaking was given by an exporter) increase the price at which the
exporter sold goods to importers in Canada by more than the estimated margin of dumping of
the goods or the estimated amount of subsidy on the goods, or (b) (if the undertaking
was given by the government of a country) increase the price at which the goods, when
exported to Canada from that country, were sold to importers in Canada by more than the
estimated amount of subsidy on the goods.
- Clause 2(2) would amend section 3(2) of SIMA. Where, for one of the reasons
enumerated in section 52(1) of SIMA, the Deputy Minister terminates an undertaking,
the goods become subject to duty. The amendment would clarify the date from which such
duty would take effect. If the Deputy Minister terminated the undertaking on the ground
that it was not being or had not been honoured, the goods would be subject to duty
retroactively, but not beyond 90 days from the date of the violation. If the Deputy
Minister terminated the undertaking on the ground that new information had come to light
or that circumstances had changed, the goods would become subject to duty as of the date
of the notice of termination of the undertaking.
- Clause 31(2) would repeal section 52(1.1)(a)iii) of SIMA, which
provides that the Deputy Minister shall terminate an undertaking if he or she observes in
the course of an investigation that the actual or potential volume of dumped or subsidized
goods is negligible.
Recommendation 9
The Sub-Committees recommend that
SIMA be amended to make cumulation mandatory in the CITT's procedures for determining
injury. |
Where a single good is imported from more than one
country, there may be cases where each importation from one particular country does not
cause appreciable injury, but the cumulation of importations from all the countries of
origin does so. The CITT is not currently required to assess the cumulative harmful
effects of goods from more than one country. The Sub-Committees recommendation would
make such assessment mandatory.
In its reply, the government stated that it supported this
recommendation, which would be implemented under Bill C-35 as follows:
- Clause 26(1) would amend the portion of section 42(3) of SIMA before
paragraph (a). The CITT currently has the option of assessing the cumulative
effect of dumping or subsidizing; under the amendment, it would be required to do so.
Furthermore, the amendment would clarify the burden of proof before the CITT. To make a
determination, the CITT would have to be satisfied that it could do so.
- Clause 26(2) would amend the French version of section 42(3)(b) of SIMA
to add a clarification on the origin of goods. The current wording is "en provenance
dun de ces pays" or "en provenance dun autre de ces pays." This
wording would become "en provenance dun ou de plusieurs de ces pays" or
"en provenance dun ou de plusieurs autres de ces pays."
- Clause 26(4) would add a new section 42(6) to SIMA to provide that, for the
purposes of section 42, the volume of dumped or subsidized goods from a country would
be deemed to include the volume of goods of the country that were of the same description
and were the subject of a sale for export to Canada.
Recommendation 10
The Sub-Committees recommend no
change from the prospective method of duty assessment. |
This recommendation involved no amendment to SIMA or
CITTA. It is mentioned here to make sure that all the Sub-Committees recommendations
are included.
Recommendation 11
The Sub-Committees recommend that
the Minister of Finance reform SIMA provisions for the conduct of interim and expiry
reviews in light of the comments made above, and in this context, to bifurcate the
administrative responsibilities for the conduct of such reviews. |
As stated above, a CITT order is valid for a period of
five years, unless a new review of the case takes place before the order expires and
it is established that the order must be upheld. The new order will be valid for a further
period of five years and will be subject to the same rules. The review may be
conducted in two separate cases. The first, the interim review, may be conducted any time
during the five-year period and is based on circumstantial changes that may have an effect
on the order. The second, the expiry review, is normally conducted upon request, just
prior to the five-year expiry date. However, SIMA does not explicitly distinguish between
interim and expiry reviews. Bill C-35 would make amendments to SIMA and CITTA to
clarify the situation.
As explained above, Revenue Canada rules as to whether there has been
dumping or subsidizing, whereas the CITT makes a determination of injury. In addition, the
preliminary determination of injury currently made by Revenue Canada would, under
Bill C-35, henceforth be made by the Tribunal. Each body would thus have complete
responsibility for decisions in its exclusive field of jurisdiction: dumping or
subsidizing for Revenue Canada and injury for the CITT. At the review stage, however, the
CITT is currently responsible for determining all aspects of the case: both the existence
of dumping or subsidizing, and injury. The Sub-Committees recommended that the review of
orders be conducted on the basis of the existing division of responsibility between
Revenue Canada and the CITT in the earlier stages. Thus, at the review stage, Revenue
Canada would determine whether there had been dumping or subsidizing, whereas the CITT
would rule as to damage. The system would thus become completely "bifurcated" in
that, at all stages of the cases, Revenue would be exclusively responsible for determining
whether there had been dumping or subsidizing, whereas the CITT would rule as to injury or
risk of injury.
Furthermore, neither SIMA nor CITTA nor the rules and regulations
adopted under those statutes make sufficiently express provision for the grounds for
review or the criteria whereby the CITT may extend or terminate an order upon review.
Lastly, no provision of SIMA authorizes the CITT to issue a retroactive
order where it terminates an anti-dumping or countervailing duty order. If the termination
is justified on the ground that there is no longer any domestic production of the good
subject to the initial decision, the collection of anti-dumping duties will continue until
the rescinding order is issued. The CITT may not make the recission retroactive to the
date on which the injury or risk of injury ceased.
In its reply, the government stated that it supported all the issues
raised by this recommendation, which would be implemented under Bill C-35 as follows:
- Clause 36 would replace section 76 of SIMA and the preceding head.
Section 76(1) of SIMA would become the new section 76 and would be preceded by
the following two heads: "Review of Orders and Findings" and "Judicial
Review." Section 76(1) currently provides for the possible cases of CITT orders
or findings by the Federal Court of Appeal. Clause 36 of the bill would also add new
sections 76.01 (interim review of orders by Tribunal), 76.02 (review of orders by
Tribunal on referral back and re-hearing), 76.03 (order or finding deemed to be rescinded)
and 76.04, which would introduce provisions concerning the review of CITT orders or
findings.
- The new section 76.01(1) would provide that at any time after the making of an
order of finding described in any of sections 3 to 6, the Tribunal could, on its own
initiative or at the request of the Minister of Finance, the Deputy Minister,(8) or any other person(9) or of any government,(10) conduct an interim review of the order or
finding.
- The new section 76.01(2) would provide that, in conducting an interim review, the
Tribunal could re-hear any matter before deciding it. This provision could have the effect
of not limiting the aspects of the case that might be subject to review.
- The new section 76.01(3) would provide that the CITT should not conduct an interim
review unless the person or government requesting it to do so convinced it that such
review was warranted. It can be inferred that the CITT would proceed to a review
automatically when asked to do so by the Minister of Finance or the Deputy Minister. The
definition of government (section 2(1) of SIMA) states that government, in relation
to any country other than Canada, means the government of that country and includes the
political subdivisions of that country (in particular provinces, states and
municipalities), the persons, agencies or institutions acting for, on behalf of, or under
the authority of that country and associations of sovereign states of which that country
is a member.
- The new section 76.01(4) of SIMA would provide that, if the Tribunal decided not to
conduct a review, it would make an order to that effect and give reasons for it. The
Secretary would forward a copy of the order to the requesting person or government and
cause notice of the order to be published in the Canada Gazette.
- The new section 76.01(5) would provide that, on completion of an interim review,
the Tribunal would make an order rescinding the order or finding or continuing it with or
without amendment and give reasons for doing so.
- The new section 76.01(6) would provide that, after the review was completed, the
Secretary would, without delay, have to forward a copy of the order to the Deputy Minister
and any other persons and governments specified by the rules of the CITT, followed by, not
later than 15 days after the date of the order, a copy of the reasons for it. The
Secretary would also cause notice of the order to be published in the Canada Gazette.
- The new section 76.01(7) would provide that an order made on the completion of an
interim review (other than an order rescinding an order or finding) would expire
five years after the day on which the order or finding that was the subject of the
interim review was made, unless that order or finding was the subject of an expiry review
under the new section 76.03(3). If an expiry review was initiated, the order or
finding would then expire on the date on which the CITT made an order under the new
section 76.03(12).(11)
- The new section 76.02 would reproduce, with a few amendments, section 76 (2.1)
to (4.3) of SIMA, which concern the review of orders or findings by the CITT on referral
back to the Federal Court or a panel under NAFTA or FTA.
- The new section 76.03 (1) of SIMA would state that, if the Tribunal had not
initiated an expiry review (under the new section 76.03(3)), the order or finding
would be deemed to have been rescinded as of the expiry of the five years following the
date of the order of finding (if there was no order continuing the order or finding under
the new section 76.03 (12)(b)) or the date of the last order, depending
on the case. The new section would be an amended version of the existing
section 76(5) of SIMA.
- The new section 76.03(2) would state that if an order or finding was deemed
rescinded under section 76.03(1), the Secretary would, not later than 10 months
before the expiry date of the order or finding under that subsection, have to cause
publication in the Canada Gazette of a notice of inquiry setting out the
information specified in the rules of the CITT.
- The new section 76.03(3) would state that the CITT could initiate an expiry review
of an order of finding described in any of sections 3 to 6 of SIMA on its own
initiative or at the request of the Minister of Finance, the Deputy Minister or any other
person or any government, if the request was made within the periods specified in the
notice of expiry.
- The new section 76.03(4) would state that the CITT could not initiate an expiry
review at the request of any person or government unless the person or government
satisfied the Tribunal that a review was warranted.
- The new section 76.03(5) would state that, if it decided not to initiate an expiry
review, the CITT would have to make an order to that effect and give reasons for doing so,
and the Secretary would have to forward a copy of the order and reasons to the requesting
person or government and cause notice of the order to be published in the Canada
Gazette.
- The new section 76.03(6) would state that, if the CITT decided to initiate an
expiry review, the Secretary would without delay have to (a) cause notice of the
Tribunals decision to be given to the Deputy Minister and all other persons and
governments specified in the rules of the CITT, (b) provide the Deputy Minister with
a copy of the administrative record on which it based its decision to initiate a review
and (c) cause to be published in the Canada Gazette a notice of the initiation
of the review, including the information set out in the rules of the CITT.
- The new section 76.03(7) would state that, if the CITT decided to initiate an
expiry review, the Deputy Minister would (a) within 120 days after receiving
notice under the new section 76.03(6)(a)(?),
determine whether the expiry of the order or finding in respect of goods of a country or
countries was likely to result in the continuation or resumption of dumping or
subsidizing of the goods and (b) provide the Secretary with notice of the
determination without delay after making it.
- The new section 76.03(8) would state that, where the Deputy Minister determined
that the expiry of the order or finding in respect of any goods was unlikely to result in
a continuation or resumption of dumping and subsidizing, the CITT would not take those
goods into account in assessing the cumulative effect of dumping or subsidizing under the
new section 76.03(11). This provision is closely related to the new
section 76.03(11), described under Recommendation 12 (cumulation).
- The new section 76.03(9) would state that, if the Deputy Minister determined that
the expiry of the order or finding was likely to result in a continuation or resumption,
he or she would without delay provide the CITT with any information and material required
under the Tribunals rules.
- The new section 76.03(10) would state that, if the Deputy Minister made a
determination described in the new section 76.03(9), the CITT would have to determine
whether the expiry of the order or finding in respect of the goods referred to in that
subsection was likely to result in injury or retardation.
- The new section 76.03(12) would require the CITT to make an order
(a) rescinding the order or finding in respect of goods referred to in the new
section 76.03(8) or in respect of which it had determined that its expiry would not
be likely to result in injury or retardation, or (b) continue the order or finding,
with or without amendment, in respect of goods where it had determined that its expiry
would be likely to result in injury or retardation.
- The new section 76.04(1) would state that, if a review under the new
sections 76.01, 76.02 or 76.03 involved goods of more than one NAFTA country, or of
one or more NAFTA countries and goods of one or more other countries, the CITT would make
a separate order or finding under that section with respect to the goods of each NAFTA
country.
- The new section 76.04(2) would state that the operation of the new
section 76.04(3) would be suspended while the new section 76.04(1) was in force.
As is currently the case, this provision would have the effect of suspending the
application of certain SIMA provisions related to the FTA as long as NAFTA was in force.
- The new section 76.04(3) would provide that, if a review under sections 76.01,
76.02 or 76.03 involved goods of the United States as well as goods of other countries and
the CITT made another order or finding under any one of those sections, the Tribunal would
have to make a separate order or finding under that section with respect to the goods of
the United States.
- Clause 31(3) of the bill would amend section 52(1.1)(c) of SIMA to
provide that the Deputy Minister would have to terminate the undertaking if an order of
the CITT that was referred back rescinded a previous order or finding.
- Clause 31(4) would replace section 52(1.2) of SIMA to add the necessary
references to the determinations made upon referral back under sections 76.01(5) or
76.02(4), section 76.03(12)(a) or sections 76.04(1) or 76.1(2).
- Clause 32(1) would amend the portion of section 53(1) of SIMA before
paragraph (a) to add the necessary references to the determinations made upon
review under sections 76.01(5) or 76.02(4), section 76.03(12)(a) or
sections 76.04(1) or 76.1(2).
- Clause 37(1) would amend section 76.1(1)(a) of SIMA. Section 76.1
of SIMA concerns the implementation of a recommendation or ruling by the OMC Dispute
Settlement Body. Where the Minister of Finance considers it necessary for the
implementation of such a recommendation or ruling, he or she may request that the Deputy
Minister review any decision made under SIMA. The amendment would add to this provision a
reference to a re-determination made under SIMA so that determinations made pursuant to a
review would be included.
- Clause 37(2) would amend section 76.1(2)(a) to (c) of SIMA to
add a reference to the re-determination made under SIMA in order to include determinations
made pursuant to a review.
- Clause 37(3) would amend the English version of section 76.1(3) and (4) to
add, as previously done, references to the re-determination. Amendments to the French
version would not be necessary because the wording of that version is different.
- Clause 37(4) would add a new paragraph (d) to section 76.1(5) of
SIMA to reflect amendments previously made to section 59 of SIMA.
- Clause 1(1) would amend the definition of "order or finding" of
section 2(1) of SIMA to include the orders or findings under the new
sections 76.01, 76.02, 76.03 and 76.04.
- Clause 3(1) would amend the portion of section 8(1.1) of SIMA before
paragraph (a). This provides that the importer of goods that are of the same
description as any goods to which a determination applies is obliged to pay provisional
duty or to post security. The purpose of the amendment is to reflect changes in the
numbering of the clauses concerning referral back.
- Clause 4 would amend section 9.4(1) of SIMA to reflect changes in the
numbering of the sections respecting referral back (section 76.01(5) and
section 76.03(12)(a)).
- Clause 28 would amend section 47(1) of SIMA to replace the reference to
section 76(2.1) and (2.2) with a reference to section 76.02(1) or (3).
- Clause 38(2) would add a new section 77.01(1)(f.1) to SIMA and would
amend paragraphs (g) to (i) of the definition of "definitive
decision" in that section to reflect the amendment made elsewhere to
section 59(1.1) (re-determination by Deputy Minister) and the new numbering of the
sections respecting re-determination.
- Clause 40(2) would add a new section 77.1(1)(f.1) to SIMA to modify
paragraphs (g) to (i) of the definition of "definitive
decision" in that section. These paragraphs would be amended to reflect the amendment
made elsewhere to section 59(1.1) (re-determination by the Deputy Minister) and the
new numbering of the articles respecting re-determination.
- Clause 47 would amend section 96.1(1)(d) to (f) of SIMA and
would add new paragraphs (c.1) and (d.1). Paragraph (c.1)
would permit the review under section 96.1 of the order or finding rendered by the
CITT under section 43(1). The amendments to the other paragraphs would be necessary
to reflect the new numbering of the sections respecting re-determination.
Recommendation 12
The Sub-Committees recommend that
section 76 of SIMA be amended to require the CITT to assess the cumulative injurious
effects of dumping/ subsidizing in conducting interim and expiry reviews. |
This recommendation is closely related to
recommendation 9, but applies to the interim and expiry review stage.
In its reply, the government stated that it supported this
recommendation, which would be implemented under Bill C-35 as follows:
- The new section 76.03(11), to be added to SIMA by clause 36, would state that, for
the purpose of subsection (10), the CITT would have to make an assessment of the
cumulative effect of the dumping or subsidizing of goods that were imported into Canada
from one than one country and to which the determination of the Deputy Minister described
in subsection (9) applied. The CITT would proceed with this assessment only if it
were satisfied that an assessment would be appropriate, taking into account the conditions
of competition between such goods from any of those countries and (a) goods that were
imported into Canada from any other of those countries and to which the order or finding
applied, or (b) like goods of domestic producers.
Recommendation 13
The Sub-Committees recommend that a
non-exclusive list of factors be included in section 45 of SIMA that would guide the
CITT respecting whether and how to conduct a public interest inquiry. |
When it makes an order, the CITT may make the finding
that the imposition of anti-dumping or countervailing duties or the full amount of those
duties on the goods in question would or could be contrary to the public interest. In such
a case, it does not have the statutory authority to eliminate or reduce those duties;
however, it may make a report on the subject to the Minister of Finance, who may then make
an order to eliminate or reduce the duties.
This public interest provision has been used on only very rare
occasions. The public interest is not defined and no criteria for the provisions
application are given. The Sub-Committees recommended that a non-exhaustive list of
factors be added to SIMA.
In its reply, the government stated that it supported this
recommendation. As the recommendation should be implemented through amendments to the
CITTs rules or to regulations passed under SIMA or CITTA, the bill contains no
clauses respecting it.
Recommendation 14
The Sub-Committees recommend that
the CITT's decision, that an anti-dumping or countervailing duty might not be in the
public interest, should be a formal decision reviewable by a Federal Court. The level of
any duty reduction should continue as at present in section 45 of SIMA to be subject
to a report to the Minister of Finance. |
Before a public interest order is made, the CITTs
investigation must go through two stages. The first enables it to determine whether a
public interest investigation should be conducted; if that is the case, the CITT gives
every interested person who requests it the opportunity to submit observations on the
report it must make to the Minister. The second stage corresponds to the outcome of the
investigation.
The Sub-Committees recommended that the finding that an anti-dumping or
countervailing duty might not be in the public interest should be a formal decision
reviewable by a Federal Court. In its reply, the government said that it is not in support
of this part of the recommendation on the ground that, by becoming final, that decision
could also be subject to review by a binational panel under Chapter 19 of NAFTA. This
would depart from a fundamental objective of SIMA, which is that, where injury has been
caused to a domestic industry, duties equivalent to the margins of dumping or the amounts
of the subsidies will be assessed. The government also felt that the Governor in Council
should retain responsibility for ruling where the public interest is at stake.
The government stated, however, that it supported the second part of
the recommendation, which concerns the continuance of the obligation to report to the
Minister of Finance.
This second part of the recommendation would be implemented under
Bill C-35 as follows:
- Clause 27 would replace section 45 of SIMA with a new section. The new
section 45(1) would state that, if, as a result of an injury referred to in
section 42 arising out of the dumping or subsidizing of any goods, the CITT made an
order or finding described in any of sections 3 to 6 with respect to those goods, the
Tribunal should initiate a public interest inquiry on its own initiative or on the request
of an interested person that is made within the prescribed period and in the prescribed
manner. To do so, however, the Tribunal would have to consider that there were reasonable
grounds to believe that the imposition of an anti-dumping or countervailing duty on the
goods (or of full amount of duty provided for by any of those sections) would not or might
not be in the public interest. Contrary to the current case, the public interest inquiry
could be requested by any interested person in accordance with the terms and conditions
set out in the regulations. The new provision would amend requirements concerning the
evidence necessary to initiate the inquiry. Section 45(1) of SIMA currently provides
that the CITT makes a ruling on the public interest inquiry if it is of the opinion
that the imposition of duty on the goods would not or might not be in the public interest.
The new section 45(1) would state that on initiation of a public interest inquiry the
CITT would rule on whether there were reasonable grounds to consider that the
imposition of duty on the goods would not or might not be in the public interest.
- The new section 45(2) would require the Secretary to publish in the Canada
Gazette notice of a decision to initiate a public interest inquiry.
- The new section 45(3) would require the CITT to take into account in its inquiry
any factors, including prescribed factors, that it considered relevant.
- The new section 45(4) would state that, if, as a result of an inquiry, the CITT was
of the opinion that the imposition in respect of the goods of an anti-dumping or
countervailing duty, or the imposition of such a duty in the full amount provided for by
any of sections 3 to 6, would not or might not be in the public interest, it should
without delay (a) report this to the Minister of Finance together with a statement of
the facts and reasons for the opinion and (b) cause notice of the report to be
published in the Canada Gazette. This new section 45(4) would reproduce part
of the current section 45(1) of SIMA.
- The new section 45(5) would state that, if the CITT believed that the imposition of
an anti-dumping or countervailing duty in the full amount would not or might not be in the
public interest, it would have to specify in the report referred to in
paragraph 45(4)(a), either (a) a level of reduction in the anti-dumping
or countervailing duty provided for in any of sections 3 to 6, or (b) a price or
prices that would be adequate to eliminate injury, retardation or the threat of injury to
the domestic industry.
- Under the new section 45(6), if a person interested in a public interest inquiry
requested (within the prescribed period and in the prescribed manner) an opportunity to
make representations to the Tribunal on whether it should make a report under
section 45(4)(a) with respect to any goods that were the subject of the
inquiry. the Tribunal would have to allow that person to make such representations orally
or in writing, or both, as the Tribunal directed.
Recommendation 15
The Sub-Committees recommend that
the lesser duty concept as provided in Article 9.1 of the WTO Anti-Dumping Agreement
be incorporated in section 45 of SIMA provisions for public interest. |
When it makes an affirmative order, the CITT is required
to assess anti-dumping duties equal to the margin of dumping or countervailing duties
equal to the amount of the subsidy. In certain cases, these duties are greater than the
amounts needed to eliminate the injury (or the threat of injury) to the domestic industry;
however, the CITT is not at present authorized under any statutory provision to assess
lower duties. The Sub-Committees recommended that SIMA be amended to make it possible for
it to do so.
In its reply, the government stated that it supported this
recommendation, which would be implemented under Bill C-35 as follows:
- The new section 45(5), described under the previous recommendation, would enable
the CITT to indicate in its report under section 45 an amount adequate to eliminate
injury, retardation or the threat of injury to the domestic industry. This amount could
clearly be less than the amount of the duties currently required.
Recommendation 16
The Sub-Committees recommend that
the Minister of Finance consider amending SIMA to allow for the temporary exemption of
goods from anti-dumping/countervailing duty orders under conditions of domestic short
supply. |
A good that is subject to anti-dumping or countervailing
duties may be in short supply in Canada during a specific period. The Sub-Committees
recommended that, in such cases, such goods could be temporarily exempted from duties in
order to satisfy demand in the industry.
In its reply, the government said that it agreed to consider this issue
as recommended. The government also noted that certain provisions of SIMA could be used to
provide relief on a case-by-case basis in domestic short supply situations. The bill
contains no specific provisions on this recommendation.
TECHNICAL AMENDMENTS
AND CORRECTIONS
As noted above, in addition to making amendments to SIMA and CITTA in
response to the Sub-Committees recommendations, Bill C-35 would also make the
following technical amendments and corrections to both statutes.
- Clause 1(2) would amend the French version of the definition of "domestic
industry" in section 2(1) of SIMA. Currently, under the last part of this
definition, a domestic producer that is related to an exporter or importer of dumped or
subsidized goods, or is an importer of such goods, is excluded from this definition. The
amendment would give to the organization ruling on dumping, subsidizing or injury the
power to exclude this domestic producer from the definition. This section of the
definition would then read as follows: "Peut toutefois en être exclu le producteur
national qui est lié à un exportateur ou à un importateur de marchandises
sous-évaluées ou subventionnées, ou qui est lui-même un importateur de telles
marchandises."
- Clause 1(3) would amend subparagraph (b)(i) of the definition of
"properly documented" in section 2(1) of SIMA to replace the word
"prove" with the word "support." The subparagraph would then read as
follows: "the information that is available to the complainant to support the facts
referred to in subparagraph (a)(ii)." This would reduce the burden of
proof necessary to establish that the complaint was properly documented.
- Clause 1(4) would amend paragraph (b) of the definition of
"subsidized good" in section 2(1) of SIMA to replace the term "at a
loss" with the expression "for less than market value."
- Clause 1(5) would amend the French version of paragraph (a) of the
definition of "subvention" in subsection 2(1) of SIMA. An essentially
technical amendment would replace the phrase "les contributions financières du
gouvernement dun pays autre que le Canada" with the expression "toute
contribution financière du gouvernement dun pays étranger faite." A second
amendment would add two new exclusions to the definition: the amount of the duties or
domestic tax assessed by the government of the country of origin or export (a) on
energy, fuel, oil and catalysts used or consumed in the production of exported goods and
that have been exempted or have been or will be received by means of remission, refund or
drawback and (b) goods incorporated into exported goods and that have been exempted
or have been or will be relieved by means of remission, refund or drawback.
- Clause 1(6) would amend section 2(1) of SIMA to add that the definition of
"country," "unless the context requires otherwise, includes (a) an
external or dependent territory of a country and any other territory prescribed by
regulation made by the Governor in Council, and (b) except for the purposes of
proceedings respecting the dumping of goods, a customs union."
- Clause 2(1) would amend the portion of section 3(1) of SIMA before
paragraph (a). This provision enumerates certain conditions for the assessment
of anti-dumping or countervailing duties. The amendment would add a new condition, that
the dumping or subsidizing "would have caused injury or retardation except for the
fact that provisional duty was applied in respect of the goods."
- Clause 3(2) would add a new section 8(1.2) to SIMA. The existing
section 8(1.1) provides for cases of new determinations by the CITT following a
referral back by a panel constituted under NAFTA or FTA. However, no mention is made of
any referral back from the Federal Court of Appeal. The new section 8(1.2) would
provide for this case.
- Clause 3(3) of the bill would amend the portion of section 8(2) of SIMA before
paragraph (a) to add a reference to the new section 8(1.2).
- Clause 3(4) would amend the portion of section 8(6) of SIMA before
paragraph (a) to state that the preliminary determination referred to would be
the preliminary determination made under section 38(1).
- Clause 5 would amend section 12(2) of SIMA, which currently provides that the Minister
shall return the duties if he or she is satisfied than an amount has been paid that
was not properly payable because of a clerical or arithmetical error. As a result of the
modification, the Deputy Minister would return the duties in such circumstances.
- Clause 6(1) would amend section 13.2(1) of SIMA, which currently provides that
an exporter to Canada of any goods to which an order or finding referred to in
section 3 applies may request that the Deputy Minister review the normal value,
export price or amount of subsidy in relation to those goods. The amendment would also
confer this right on the producer of such goods and clarify the conditions in which that
right might be exercised.
- Clause 6(2) would amend section 13.2(5) of SIMA to replace the reference to
section 56(1) with a reference to section 57(b) and would also amend the
wording of that subsection.
- Clause 7 would amend section 20 of SIMA, which would become section 20(1)
and would be followed by a new section 20(2). Section 20 concerns the normal
value of goods in the case of an export monopoly. Failing sufficient information to
determine the value, the Deputy Minister may use the price of similar goods sold in a
foreign country that he or she designates. The new section 20(2) would state two
cases in which the Deputy Minister could not designate a country.
- Clause 8(1) would amend the portion of section 21(1) of SIMA before
paragraph (a) to change the reference to certain provisions of
section 20. The change would be made necessary by the amendment proposed to this
clause.
- Clause 8(2) would add a new section 21(1.1) to SIMA. This new paragraph would
provide that the unit price arrived at under section 21(1) would be adjusted in the
prescribed manner and circumstances to reflect the differences in terms and conditions of
sale, taxation and other matters that related to price comparability between the goods
sold to the importer in Canada and like goods sold.
- Clause 9 would amend section 26(a) of SIMA to correct the reference to
section 25(b)(ii), which is currently incorrect, to read section 25(1)(b)(ii).
- Clause 10 would add section 27(1.1) to SIMA. Section 27(1) provides for a
calculation used to establish the export price in certain cases. The new
section 27(1.1) would prescribe that the unit price arrived at under
section 27(1) would be adjusted in a prescribed manner and circumstances.
- Clause 11 would amend section 30(2)(b) of SIMA to add a reference to
section 29.
- Clause 12 would amend section 30.1 of SIMA to replace the word
"from" with "of." The phrase that currently reads "goods from a
particular country" would thus read "goods of a particular country."
- Clause 13 would amend the English version of sections 30.2(1) and (2) of SIMA
and word them differently without changing their meaning.
- Clause 14 would amend section 30.3(1) of SIMA to replace the word
"from" with the word "of." The parts of this section that currently
read "goods from each of the countries" would thus read "goods of each of
the countries."
- Clause 15(1) would amend section 31(2) and (3) of SIMA. Section 31
concerns certain cases in which investigations would be initiated by Revenue Canada.
Section 31(2) is currently divided into two paragraphs, 31(2)(a) and (b).
The new paragraph (a) would repeat the provision that no investigation could
be initiated unless the complaint was supported by domestic producers whose production
represented more than 50% of the total production of like goods by domestic producers who
expressed either support for or opposition to the complaint. The new paragraph (b)
would reproduce the provision that no investigation could be initiated unless the
complaint was supported by domestic producers whose production represented 25% or more of
the total production of like goods by the domestic industry. The new section 31(2.1)
would prescribe that, for the purpose of paragraph 31(2)(a), if a domestic
producer was an importer of, or was related to an exporter or importer of, allegedly
dumped or subsidized goods, "domestic producers" could be interpreted as meaning
the rest of those domestic producers. The new section 31(3) would provide that, in
section 31(2)(b), domestic industry would mean, subject to
section 2(1.1), the domestic producers as a whole of the like goods except where a
domestic producer was related to an exporter or importer of allegedly dumped or subsidized
goods or was an importer of "such goods."
- Clause 15(2) would amend the portion of section 31(4) of SIMA before
paragraph (a) to add a reference to section 31(2.1) to reflect the
amendment made to the previous subsection.
- Clause 16 would amend section 32(3) of SIMA to replace the reference to
section 26(5) of CITTA with a reference to section 26(4) of that same Act.
- Clause 22(2) would amend the English version of section 38(1)(c) of
SIMA to replace to personal pronouns "he" and "him" with "the
Deputy Minister" and to replace "paragraph" with "subparagraph."
- Clause 25(1) would amend the portion of section 41(1) of SIMA before
paragraph (a). Section 41 states that the Deputy Minister may make a
final determination of dumping or subsidizing within 90 days after making a
preliminary determination. The amendment would delete the term "imported" in the
phrase "in respect of goods imported from a country or countries" and would thus
read "in relation to the goods of that country or countries." A good may be a
good of a country without being imported from that country; e.g., a Chinese trinket may
have been imported from the United States. This amendment could clarify the country of
origin of goods.
- Clause 25(2) would amend the portion of section 41(1)(a) of SIMA before
section 41(1)(a)(iii). This amendment would repeal section 41(1)(a)(ii.1),
which states that, in making the determination, the Deputy Minister shall consider whether
either the actual or potential volume of dumped or subsidized goods is not negligible. If
the volume is negligible, the Deputy Minister will not make a determination of dumping or
subsidizing. Under the amendment, even a negligible volume of goods might give rise to a
final determination of dumping or subsidizing.
- Clause 25(3) would amend section 41(2) of SIMA to provide, first, that the
French term "subvention" would mean "subvention à lexportation"(12) and, second, that the term
"General Agreement on Tariffs and Trade" would mean "the General Agreement
on Tariffs and Trade, 1994." In an additional amendment to the English version, the
personal pronoun "he" would be replaced by "the Deputy Minister."
- Clause 26(3) would add a new section 42(4.1) to SIMA, which would provide that
if the CITT determined that the volume of dumped or subsidized goods from a country was
negligible, it would have to terminate its inquiry in respect of those goods.
- Clause 31(1) would amend section 52(1)(b) and (c) of SIMA to add
the phrase "is satisfied that," which already appears in section 52(1)(a).
- Clause 33 would amend the portion of section 57 of SIMA before
paragraph (a) to clarify, in certain cases, the period during which the
designated officer could re-determine the determination. Where goods are imported after
the order date or the findings of the CITT or an order assessing duties, a designated
officer may make a determination as to (a) whether the goods are goods of the same
description as goods to which the order or finding or order of the Governor in Council
applies, (b) the normal value of such goods and (c) the export price of such
goods. Section 57 provides that the officer could re-determine such a determination
in certain cases. The amendment would limit the period during which an officer might make
a re-determination where there was an expedited review under section 13.2.
- Clause 34(1) would amend the portion of section 59(1) of SIMA before
paragraph (a). Section 59 of SIMA provides that the Deputy Minister may
re-determine certain determinations or re-determinations by a designated officer. The
amendment would enable the Deputy Minister to re-determine his or her determinations or
re-determinations of those by designated officers.
- Clause 34(2) would amend section 59(1)(c) of SIMA to add a case of
re-determination by the Deputy Minister (section 28 of SIMA ¾
Where Exporter Provides Benefit on Resale in Canada).
- Clause 34(3) would add a new section 59(1.1) to SIMA, which would set the
deadline by which the Deputy Minister could re-determine any determination following a
review. In the case of an appeal to the CITT under section 61, the Deputy Minister
could proceed with a re-determination prior to the date of the appeal hearing. Where like
goods were being imported, the Deputy Minister could proceed prior to the date of their
importation, provided that such a re-determination would not be incompatible with a
decision by the CITT, the Federal Court of Appeal or the Supreme Court of Canada.
- Clause 34(4) would amend the English version of section 59(2) of SIMA to state
that the Deputy Minister might re-determine his or her own re-determination under
section 59.
- Clause 34(5) would amend the French version of section 59(3.1) of SIMA to make
a correction and to replace "du" with "dun."
- Clause 34(6) would amend the French version of section 59(4) of SIMA to make a
correction and to replace "du" with "dun."
- Clause 35 would amend section 61(2) of SIMA, the second part of which
provides that any person who enters an appearance not later than the day of the hearing
may be heard by the CITT. The amendment would require such persons to enter an appearance at
least seven days before the date of the hearing to be heard by the CITT.
- Clause 38(1) would amend the French version of the definition of
"ministre" in section 77.01(1) of SIMA to read "le ministre du
Commerce international" instead of "le ministre du Commerce
extérieur."
- Clause 39 would amend section 77.012(1) of SIMA to provide for the deadlines
for the exercise of remedies set out under this provision.
- Clause 40(1) would amend the French version of the definition of
"ministre" in section 77.1(1) of SIMA to read "le ministre du Commerce
international" instead of "le ministre du Commerce extérieur."
- Clause 41 would amend section 77.12(1) of SIMA to clarify the deadlines for
the exercise of remedies under this provision.
- Clause 42(1) would amend section 78(1)(a) of SIMA, under which the
Deputy Minister may request certain persons to provide evidence relevant to an
investigation or to the enforcement of SIMA. However, the Deputy Minister is not currently
able to make such a request before an investigation is initiated. The amendment would
enable the Deputy Minister to make such a request during the period between the notice
that the complaint was properly documented and the initiation of the investigation.
- Clause 42(2) would amend the portion of section 78(1) of SIMA before
paragraph (b) for the same purposes as the amendment proposed to
section 42(1).
- Clause 43 would amend section 81(1) of SIMA, under which the Deputy Minister,
in case of default of payment of duties within 30 days after a demand for payment has
been made, may, by notice in writing, require any person in Canada to whom the goods were
sold to pay the duty. The amendment would replace the term "Minister" with
"Deputy Minister."
- Clause 46 would amend section 89(1)(a) of SIMA to replace the reference
to section 56(1) with a reference to section 56.
- Clause 48 would amend the French version of section 96.21(1) of SIMA to
replace the designation "ministre du Commerce extérieur" with that of
"ministre du Commerce international."
- Clause 49 would amend the French version of section 96.3(1) of SIMA to replace
the designation "ministre du Commerce extérieur" with that of "ministre du
Commerce international."
- Clause 51(1) would amend section 97(1)(a.1) and (b) of SIMA.
Section 97 of SIMA makes provision for cases in which the Governor in Council may
make regulations on a recommendation by the Minister of Finance. The new paragraph (a.1)
would enable the Governor in Council to make regulations respecting the factors that might
be considered in determining (a) the existence of injury, retardation or threat of
injury and (b) whether the injury, retardation or threat of injury had been caused by
the dumping or subsidizing of any goods or by any other reason. The new paragraph (b)
would enable the Governor in Council to make regulations specifying the circumstances and
manner in which two or more properly documented complaints, investigations or inquiries
might be joined and carried on as one, the persons who would have to be given notice of
the joining, and how this would be done.
- Clause 51(2) would amend section 97(1)(e) of SIMA to reflect an
amendment made to section 20 and to replace the reference to section 20(c)(ii)
with a reference to section 20(1)(c)(ii).
- Clause 51(3) would amend section 97(1)(f) of SIMA to replace the
reference to section 25(c)(ii) or 25(d)(i) with a reference to
section 25(1)(c)(ii) or (d)(i).
- Clause 51(4) would amend section 97(1)(g) of SIMA to replace the
reference to section 45(2) with a reference to section 45(6).
- Clause 51(5) would amend section 97(1)(k.2) of SIMA and would add new
paragraphs (k.3) to (k.6). The new paragraph (k.2) would
enable the Governor in Council to make regulations providing for the manner of making
adjustments to export prices and normal values in situations of fluctuation or sustained
movement in the rate of exchange. The new paragraph (k.3) would enable the
Governor in Council to make regulations prescribing the period after which the Deputy
Minister could refuse to consider representations referred to in section 49(5). The
new paragraph (k.4) would enable the Governor in Council to make regulations
prescribing the factors that the Deputy Minister could consider in making a determination
under section 76.03(7)(a). The new paragraph (k.5) would enable
the Governor in Council to make regulations providing for the factors that the Tribunal
could consider in making a determination under section 76.03(10). The new
paragraph (k.6) would enable the Governor in Council to make regulations on
how principal and interest should be attributed to imported goods when part of those
amounts related to charges not directly associated with the value of the goods.
- Clause 52 would replace the terms "amount of the subsidy" with
"amount of subsidy" in the English version of section 6, section 8(6)(c)
and (d), section 42(3)(a) and section 52(1.1)(a)(ii) of
CITTA.
- Clause 53(1) would repeal the term "Chairman" from the English version of
section 2(1) of CITTA.
- Clause 53(2) would add the definition of "Chairperson" to the English
version of subsection 2(1) of CITTA and "means the Chairperson of the
Tribunal."
- Clause 54 would amend the English version of section 3(1) of CITTA to
substitute the terms "Chairperson" and "Vice-Chairpersons" for the
terms "Chairman" and "Vice-Chairmen."
- Clause 55 would amend the English version of section 8(1) of CITTA to
substitute the terms "Chairperson" and "Vice-Chairpersons" for the
terms "Chairman" and "Vice-Chairmen."
- Clause 56 would amend section 9(1) of CITTA, which concerns the possibility
that a member of the CITT who ceases to be a member for any reason other than removal may
wind up any cases for which he or she is responsible. The new provision would have the
same purpose but different wording.
- Clause 57(1) would amend section 26(5)(a) of CITTA to delete the
reference to section 36 of SIMA, which would be repealed under the bill.
- Clause 57(2) would amend section 26(5)(b)(ii) of CITTA to delete the
reference to section 36 of SIMA, which would be repealed under the bill.
- Clause 58(1) would amend section 28(2)(a) of CITTA to delete the
reference to section 36 of SIMA, which would be repealed under the bill.
- Clause 58(2) would amend section 28(2)b)(ii) of CITTA to delete the
reference to section 36 of SIMA, which would be repealed by the bill.
- Clause 61 would replace the term "Chairman" with the term
"Chairperson" in sections 7, 8(2), 9(2) and (3), 14(2), 30.11(3), 33(1) and
59(1) and (2) of CITTA.
TRANSITIONAL
PROVISIONS
Sections 62, 63 and 64 are provisions prescribing transitional
measures that would apply upon the bill's coming into force. At that time, the Deputy
Minister or the CITT would be reviewing cases; these provisions would make it possible to
determine whether the present or the amended version of the provisions of SIMA would apply
to specific cases.
COMING INTO FORCE
Clause 65 of the bill provides that the new Act or any of its
provisions, or any provision of an Act as enacted or amended by this Act, would come into
force on a day or days to be fixed by order of the Governor in Council.
COMMENTARY
Canada must provide the Canadian business community with the tools it
needs to face international competition. Dumping and subsidizing are measures that the
developed countries condemn, even though they frequently practise them. SIMA and CITTA are
necessary, even essential, instruments for coping with dumping and subsidizing. It is
important that these two statutes be constructed so as to achieve the purposes for which
they were passed. The review conducted by the Sub-Committees has made it possible to
determine the improvements needed and the passage of Bill C-35 would bring these into
force. Rapid developments in international trade, however, should force authorities to be
aware that periodic review of these two statutes will be necessary from now on.
Table of Concordance
BILL C-35 |
SIMA |
Legislative Summary |
1(1) |
2(1)
order or findings |
Recommendation 11 |
1(2) |
2(1)
domestic industry |
Technical amendments |
1(3) |
2(1)
properly documented
(b)(i) |
Technical amendments |
1(4) |
2(1)
subsidized goods
(b) |
Technical amendments |
1(5) |
2(1)
subsidy
(a) |
Technical amendments |
1(6) |
2(1)
country |
Technical amendments |
2(1) |
3(1) |
Technical amendments |
2(2) |
3(2) |
Recommendation 8 |
3(1) |
8(1.1) |
Recommendation 11 |
3(2) |
8(1.2) |
Technical amendments |
3(3) |
8(2) |
Technical amendments |
3(4) |
8(6) |
Technical amendments |
4 |
9.4(1) |
Recommendation 11 |
5 |
12(2) |
Technical amendments |
6(1) |
13.2(1) |
Technical amendments |
6(2) |
13.2(5) |
Technical amendments |
7 |
20(2) |
Technical amendments |
8(1) |
21(1) |
Technical amendments |
8(2) |
21(1.1) |
Technical amendments |
9 |
26(a) |
Technical amendments |
10 |
27(1.1) |
Technical amendments |
11 |
30(2)(b) |
Technical amendments |
12 |
30.1 |
Technical amendments |
13 |
30.2(1) and (2) |
Technical amendments |
14 |
30.3(1) |
Technical amendments |
15(1) |
31(2), (2.1) and (3) |
Technical amendments |
15(2) |
31(4) |
Technical amendments |
16 |
32(3) |
Technical amendments |
17 |
34 and 35 |
Recommendation 3 |
18(1) |
35.1(1) |
Recommendation 3 |
18(2) |
35.1(2) |
Recommendation 3 |
19 |
36 |
Recommendation 3 |
20 |
37 |
Recommendation 3 |
21 |
37.1 |
Recommendation 3 |
22(1) |
38(1) |
Recommendation 3 |
22(2) |
38(1)(c) |
Technical amendments |
23 |
39(1) |
Recommendation 3 |
24 |
40 |
Recommendation 3 |
25(1) |
41(1) |
Technical amendments |
25(2) |
41(1)(a) |
Technical amendments |
25(3) |
41(2) |
Technical amendments |
26(1) |
42(3) |
Recommendation 9 |
26(2) |
42(3)(b) |
Recommendation 9 |
26(3) |
42(4.1) |
Technical amendments |
26(4) |
42(6) |
Recommendation 9 |
27 |
45 |
Recommendation 14 |
28 |
47(1) |
Recommendation 11 |
29 |
49(5) |
Recommendation 7 |
30 |
51.1 |
Recommendation 8 |
31(1) |
52(1)(b) and (c) |
Technical amendments |
31(2) |
52(1.1)(a)(iii) |
Recommendation 8 |
31(3) |
52(1.1)(c) |
Recommendation 11 |
31(4) |
52(1.2) |
Recommendation 11 |
32(1) |
53(1) |
Recommendation 11 |
32(2) |
53(2) |
Recommendation 8 |
33 |
57 |
Technical amendments |
34(1) |
59(1) |
Technical amendments |
34(2) |
59(1)(c) |
Technical amendments |
34(3) |
59(1.1) |
Technical amendments |
34(4) |
59(2) |
Technical amendments |
34(5) |
59(3.1) |
Technical amendments |
34(6) |
59(4) |
Technical amendments |
35 |
61(2) |
Technical amendments |
36 |
76, 76.01, 76.02, 76.03 and
76.04 |
Recommendation 11 |
|
76.03(11) |
Recommendation 12 |
37(1) |
76.1(1)(a) |
Recommendation 11 |
37(2) |
76.1(2)(a) to (c) |
Recommendation 11 |
37(3) |
76.1(3) and (4) |
Recommendation 11 |
37(4) |
76.1(5)(d) |
Recommendation 11 |
38(1) |
77.01(1)
"ministre" |
Technical amendments |
38(2) |
77.01(1)
definitive decision
(f.1) to (i) |
Recommendation 11 |
39 |
77.012(1) |
Technical amendments |
40(1) |
77.1(1)
"ministre" |
Technical amendments |
40(2) |
77.1(1)
definitive decision
(f.1) to (i) |
Recommendation 11 |
41 |
77.12(1) |
Technical amendments |
42(1) |
78(1)(a) |
Technical amendments |
42(2) |
78(1) in fine |
Technical amendments |
43 |
81(1) |
Technical amendments |
44 |
84(2), (3) and (3.1) |
Recommendation 4 |
45 |
88.1 |
Recommendation 4 |
46 |
89(1)(a) |
Technical amendments |
47 |
96.1(1)(c.1) to (f) |
Recommendation 11 |
48 |
96.21(1) |
Technical amendments |
49 |
96.3(1) |
Technical amendments |
50 |
96.4 |
Recommendation 4 |
51(1) |
97(1)(a.1) and (b) |
Technical amendments |
51(2) |
97(1)(e) |
Technical amendments |
51(3) |
97(1)(f) |
Technical amendments |
51(4) |
97(1)(g) |
Technical amendments |
51(5) |
97(1)(k.2) to (k.6) |
Technical amendments |
52 |
Amount of the subsidy /
Amount of a subsidy
6
8(6)(c) and (d)
42(3)(a)
52(1.1)(a)(ii) |
Technical amendments |
BILL C-35 |
CITTA |
Legislative Summary |
53(1) |
2(1)
Chairman |
Technical amendments |
53(2) |
2(1)
Chairperson |
Technical amendments |
54 |
3(1) |
Technical amendments |
55 |
8(1) |
Technical amendments |
56 |
9(1) |
Technical amendments |
57(1) |
26(5)(a) |
Technical amendments |
57(2) |
26(5)(b)(ii) |
Technical amendments |
58(1) |
28(2)(a) |
Technical amendments |
58(2) |
28(2)(b)(ii) |
Technical amendments |
59(1) |
45(3) to (3.2) |
Recommendation 5 |
59(2) |
45(5) to (9) |
Recommendation 5 |
60 |
49 |
Recommendation 4 |
61 |
Chairman /
Chairperson
7
8(2)
9(2) and (3)
14(2)
30.11(3)
33(1)
59(1) and (2) |
Technical amendments |
62 to 64 |
|
Transitional provisions |
65 |
|
Coming into force |
(1) See Chapter 19,
NAFTA.
(2) See
the Canada-United States Free Trade Agreement Implementation Act (S.C. 1988,
c. 65) and the North American Free Trade Agreement Implementation Act (S.C.
1993, c. 44).
(3) See the World
Trade Organization Agreement Implementation Act (S.C. 1994, c. 47).
(4) The Sub-Committee on
the Review of the Special Import Measures Act of the Standing Committee on Finance
and the Sub-Committee on Trade Disputes of the Standing Committee on Foreign Affairs and
International Trade, Report on the Special Import Measures Act, House of Commons,
Ottawa, December 1996.
(5) Department of Finance
Canada, Government Response to the Report on the Special Import Measures Act by the
Sub-Committee on the Review of the Special Import Measures Act of the Standing Committee
on Finance and the Sub-Committee on Trade Disputes of the Standing Committee on Foreign
Affairs and International Trade, Ottawa, 18 April 1997.
(6) Department of Finance
Canada, Legislation Tabled to Improve Canada's Anti-Dumping and Countervailing Duty Law,
Press Release 98-032, Ottawa, 19 March 1998.
(7) After passage of the
bill, the CITTs rules would have to be amended to reflect the Tribunals new
responsibilities respecting the preliminary determination of injury.
(8) The term is defined
in section 2(1) of SIMA as follows: "the Deputy Minister of National
Revenue."
(9) The term is defined
in section 2(1) of SIMA as follows: "includes a partnership and an
association."
(10) The term is
defined in section 2(1) of SIMA as follows:
"in relation to any country other than Canada, means
the government of that country and includes
(a) any provincial, state, municipal or other local or
regional government in that country,
(b) any person, agency or institution acting
for, on behalf of, or under the authority of, or under the authority of any law passed by,
the government of that country or that provincial, state, municipal or other local or
regional government, and
(c) any association of sovereign states of which that country is a member.
(11)
Subsections 76.03(3) and (12) are analyzed below.
(12) The English
version already contains this clarification. |
|
|