Annex 803.3: Administration of Emergency Action Proceedings
Institution of a Proceeding
1. An emergency action proceeding may be instituted by a petition
or complaint by entities specified in domestic law. The entity
filing the petition or complaint shall demonstrate that it is
representative of the domestic industry producing a good like
or directly competitive with the imported good.
2. A Party may institute a proceeding on its own motion or request
the competent investigating authority to conduct a proceeding.
Contents of a Petition or Complaint
3. Where the basis for an investigation is a petition or complaint
filed by an entity representative of a domestic industry, the
petitioning entity shall, in its petition or complaint, provide
the following information to the extent that such information
is publicly available from governmental or other sources, or best
estimates and the basis therefor if such information is not available:
(a) product description - the name and description of the imported
good concerned, the tariff subheading under which that good is
classified, its current tariff treatment and the name and description
of the like or directly competitive domestic good concerned;
(b) representativeness -
(i) the names and addresses of the entities filing the petition
or complaint, and the locations of the establishments in which
they produce the domestic good,
(ii) the percentage of domestic production of the like or directly
competitive good that such entities account for and the basis
for claiming that they are representative of an industry, and
(iii) the names and locations of all other domestic establishments
in which the like or directly competitive good is produced;
(c) import data - import data for each of the five most recent
full years that form the basis of the claim that the good concerned
is being imported in increased quantities, either in absolute
terms or relative to domestic production as appropriate;
(d) domestic production data - data on total domestic production
of the like or directly competitive good for each of the five
most recent full years;
(e) data showing injury - quantitative and objective data indicating
the nature and extent of injury to the concerned industry, such
as data showing changes in the level of sales, prices, production,
productivity, capacity utilization, market share, profits and
losses, and employment;
(f) cause of injury - an enumeration and description of the alleged
causes of the injury, or threat thereof, and a summary of the
basis for the assertion that increased imports, either actual
or relative to domestic production, of the imported good are causing
or threatening to cause serious injury, supported by pertinent
data; and
(g) criteria for inclusion - quantitative and objective data indicating
the share of imports accounted for by imports from the territory
of each other Party and the petitioner's views on the extent to
which such imports are contributing importantly to the serious
injury, or threat thereof, caused by imports of that good.
4. Petitions or complaints, except to the extent that they contain
confidential business information, shall promptly be made available
for public inspection on being filed.
Notice Requirement
5. On instituting an emergency action proceeding, the competent
investigating authority shall publish notice of the institution
of the proceeding in the official journal of the Party. The notice
shall identify the petitioner or other requester, the imported
good that is the subject of the proceeding and its tariff subheading,
the nature and timing of the determination to be made, the time
and place of the public hearing, dates of deadlines for filing
briefs, statements and other documents, the place at which the
petition and any other documents filed in the course of the proceeding
may be inspected, and the name, address and telephone number of
the office to be contacted for more information.
6. With respect to an emergency action proceeding instituted on
the basis of a petition or complaint filed by an entity asserting
that it is representative of the domestic industry, the competent
investigating authority shall not publish the notice required
by paragraph 5 without first assessing carefully that the petition
or complaint meets the requirements of paragraph 3, including
representativeness.
Public Hearing
7. In the course of each proceeding, the competent investigating
authority shall:
(a) hold a public hearing, after providing reasonable notice,
to allow all interested parties, and any association whose purpose
is to represent the interests of consumers in the territory of
the Party instituting the proceeding, to appear in person or by
counsel, to present evidence and to be heard on the questions
of serious injury, or threat thereof, and the appropriate remedy;
and
(b) provide an opportunity to all interested parties and any such
association appearing at the hearing to cross-question interested
parties making presentations at that hearing.
Confidential Information
8. The competent investigating authority shall adopt or maintain
procedures for the treatment of confidential information, protected
under domestic law, that is provided in the course of a proceeding,
including a requirement that interested parties and consumer associations
providing such information furnish non-confidential written summaries
thereof, or where they indicate that the information cannot be
summarized, the reasons why a summary cannot be provided.
Evidence of Injury and Causation
9. In conducting its proceeding the competent investigating authority
shall gather, to the best of its ability, all relevant information
appropriate to the determination it must make. It shall evaluate
all relevant factors of an objective and quantifiable nature having
a bearing on the situation of that industry, including the rate
and amount of the increase in imports of the good concerned, in
absolute and relative terms as appropriate, the share of the domestic
market taken by increased imports, and changes in the level of
sales, production, productivity, capacity utilization, profits
and losses, and employment. In making its determination, the competent
investigating authority may also consider other economic factors,
such as changes in prices and inventories, and the ability of
firms in the industry to generate capital.
10. The competent investigating authority shall not make an affirmative
injury determination unless its investigation demonstrates, on
the basis of objective evidence, the existence of a clear causal
link between increased imports of the good concerned and serious
injury, or threat thereof. Where factors other than increased
imports are causing injury to the domestic industry at the same
time, such injury shall not be attributed to increased imports.
Deliberation and Report
11. Except in critical circumstances and in global actions involving
perishable agricultural goods, the competent investigating authority,
before making an affirmative determination in an emergency action
proceeding, shall allow sufficient time to gather and consider
the relevant information, hold a public hearing and provide an
opportunity for all interested parties and consumer associations
to prepare and submit their views.
12. The competent investigating authority shall publish promptly
a report, including a summary thereof in the official journal
of the Party, setting out its findings and reasoned conclusions
on all pertinent issues of law and fact. The report shall describe
the imported good and its tariff item number, the standard applied
and the finding made. The statement of reasons shall set out the
basis for the determination, including a description of:
(a) the domestic industry seriously injured or threatened with
serious injury;
(b) information supporting a finding that imports are increasing,
the domestic industry is seriously injured or threatened with
serious injury, and increasing imports are causing or threatening
serious injury; and
(c) if provided for by domestic law, any finding or recommendation
regarding the appropriate remedy and the basis therefor.
13. In its report, the competent investigating authority shall
not disclose any confidential information provided pursuant to
any undertaking concerning confidential information that may have
been made in the course of the proceedings.
Annex 805: Country-Specific Definitions
For purposes of this Chapter:
competent investigating authority means:
(a) in the case of Canada, the Canadian International Trade Tribunal,
or its successor;
(b) in the case of the Mexico, the designated authority within
the Ministry of Trade and Industrial Development ("Secretaría
de Comercio y Fomento Industrial"), or its successor; and
(c) in the case of the United States, the U.S. International Trade
Commission, or its successor.
Continue on to Chapter Nine: Standards-Related Measures