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An Act to amend the
Special Import Measures Act and the Canadian International Trade
Tribunal Act
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Her Majesty, by and with
the advice and consent of the Senate and House of Commons of
Canada, enacts as follows:
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R.S., c. S-15; R.S., c. 23
(1st Supp.), c. 1 (2nd Supp.), c. 41 (3rd Supp.), c. 47 (4th
Supp.); 1988, c. 65; 1990, c. 8; 1993, c. 44; 1994, cc. 13, 47;
1997, c. 14 |
SPECIAL IMPORT MEASURES
ACT |
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1994, c. 47, s. 144(2)
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1. (1) The definition
"order or finding'' in subsection 2(1) of the Special Import
Measures Act is replaced by the following:
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"order or finding''
« ordonnance ou conclusions » |
"order or finding'', in
relation to the Tribunal, |
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(a) means an order
or finding made by the Tribunal under section 43 or 44 that has
not been rescinded under any of sections 76.01 to 76.1 and
subsection 91(3) but, if the order or finding has been amended one
or more times under any of sections 76.01 to 76.1, as last so
amended, and
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(b) includes, for
the purposes of sections 3 to 6 and 76 to 76.1, an order or
finding made by the Tribunal under subsection 91(3) that has not
been rescinded under any of sections 76.01 to 76.1 but, if the
order or finding has been amended one or more times under any of
sections 76.01 to 76.1, as last so amended; |
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1994, c. 47, s. 144(3)
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(2) The definition "branche
de production nationale'' in subsection 2(1) of the French version
of the Act is replaced by the following:
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« branche de production
nationale »
"domestic industry''
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« branche de production
nationale » Sauf pour l'application de l'article 31 et sous
réserve du paragraphe (1.1), l'ensemble des producteurs nationaux
de marchandises similaires ou les producteurs nationaux dont la
production totale de marchandises similaires constitue une
proportion majeure de la production collective nationale des
marchandises similaires. 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.
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1994, c. 47, s. 144(2)
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(3) Subparagraph (b)(i)
of the definition "properly documented'' in subsection 2(1) of the
Act is replaced by the following:
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(i) the information that
is available to the complainant to support the facts referred to
in subparagraph (a)(ii), |
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(4) Paragraph (b)
of the definition "subsidized goods'' in subsection 2(1) of the
Act is replaced by the following:
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(b)
goods that are disposed of by the government of a country other
than Canada for less than fair market value, |
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1994, c. 47, s. 144(2)
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(5) Paragraph (a)
of the definition "subsidy'' in subsection 2(1) of the Act is
replaced by the following:
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(a) a financial
contribution by a government of a country other than Canada in any
of the circumstances outlined in subsection (1.6) that confers a
benefit to persons engaged in the production, manufacture, growth,
processing, purchase, distribution, transportation, sale, export
or import of goods, but does not include the amount of any duty or
internal tax imposed by the government of the country of origin or
country of export on
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(i) goods that, because of
their exportation from the country of export or country of origin,
have been exempted or have been or will be relieved by means of
remission, refund or drawback,
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(ii) energy, fuel, oil and
catalysts that are used or consumed in the production of exported
goods and that have been exempted or have been or will be relieved
by means of remission, refund or drawback, or
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(iii) goods incorporated
into exported goods and that have been exempted or have been or
will be relieved by means of remission, refund or drawback, or |
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(6) Subsection 2(1) of the
Act is amended by adding the following in alphabetical order:
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"country''
« pays » |
"country'', unless the
context requires otherwise, includes |
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(a) an external or
dependent territory of a country and any other territory
prescribed by regulation made by the Governor in Council, and
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(b) except for the
purposes of proceedings respecting the dumping of goods, a customs
union; |
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1994, c. 47, s. 145(1)
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2. (1) The portion of
subsection 3(1) of the Act before paragraph (a) is replaced
by the following:
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Anti-dumping and
countervailing
duty |
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 or retardation, is
threatening to cause injury or would have caused injury or
retardation except for the fact that provisional duty was applied
in respect of the goods, a duty as follows: |
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1994, c. 47, s. 145(2)
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(2) Subsection 3(2) of the
Act is replaced by the following:
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Duty where undertaking
violated
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(2) If the Tribunal has
made an order or finding referred to in subsection (1) in respect
of goods that are subject to an undertaking referred to in section
7.1 and the undertaking is subsequently terminated under paragraph
52(1)(d), there shall be levied, collected and paid a duty
as provided under paragraphs (1)(a) and (b) on all
of those goods that were
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(a) if paragraph
52(1)(a) applies, released on or after the later of
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(i) the day on which the
undertaking was violated, and
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(ii) the ninetieth day
before the day on which notice of termination was given under
paragraph 52(1)(e); and
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(b) if paragraph
52(1)(b) or (c) applies, released on or after the
day on which notice of termination was given under paragraph
52(1)(e). |
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1993, c. 44, s. 202
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3. (1) The portion of
subsection 8(1.1) of the Act before paragraph (a) is
replaced by the following:
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Duty imposed on referral
back |
(1.1) If an order or
finding of the Tribunal under subsection 43(1), 76.02(4)
respecting a review under subsection 76.02(1), or 91(3), other
than an order or finding described in any of sections 3 to 6, is
referred back to the Tribunal under subsection 77.015(3) or (4) or
77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the
importer of dumped or subsidized goods that are of the same
description as any goods to which the order or finding applies and
that are released during the period beginning on the day on which
the preliminary determination is made under subsection 38(1) and
ending on the day on which the Tribunal makes an order or finding,
on the referral back, with respect to goods of that description,
shall, on demand of the Deputy Minister for payment of provisional
duty on the imported goods, at the option of the importer,
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(2) Section 8 of the Act
is amended by adding the following after subsection (1.1):
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Imposition of provisional
duties
on referral back from
Federal Court of Appeal |
(1.2) If an order or
finding of the Tribunal under subsection 43(1), 76.02(4)
respecting a review under subsection 76.02(1), or 91(3), other
than an order or finding described in any of sections 3 to 6, is
referred back to the Tribunal by the Federal Court of Appeal, the
importer of dumped or subsidized goods that are of the same
description as any goods to which the order or finding applies and
that are released during the period beginning on the day on which
the preliminary determination under subsection 38(1) is made and
ending on the day on which the Tribunal makes an order or finding,
on the referral back, with respect to goods of that description,
shall, on demand of the Deputy Minister for payment of provisional
duty on the imported goods, at the option of the importer,
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(a) pay or cause to
be paid on the imported goods provisional duty in an amount not
greater than the estimated margin of dumping of, or the estimated
amount of subsidy on, the imported goods; or
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(b) post or cause
to be posted security in the prescribed form and in an amount or
to a value not greater than the estimated margin of dumping of, or
the estimated amount of subsidy on, the imported goods. |
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1988, c. 65, s. 26(2)
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(3) The portion of
subsection 8(2) of the Act before paragraph (a) is replaced
by the following:
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Return of provisional duty
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(2) Any provisional duty
paid or security posted under subsection (1), (1.1) or (1.2) by or
on behalf of an importer in respect of the importation of dumped
or subsidized goods of any description shall |
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1994, c. 47, s. 149(4)
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(4) The portion of
subsection 8(6) of the Act before paragraph (a) is replaced
by the following:
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Resumption of collection
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(6) If the Deputy Minister
terminates an undertaking under subsection 51(1) or 52(1) with
respect to dumped or subsidized goods, the collection of
provisional duties on those goods is resumed and the importer of
dumped or subsidized goods that are of the same description as any
goods to which the preliminary determination under subsection
38(1) applied and that are released during the period beginning on
the day on which the undertaking was terminated and ending on the
earlier of |
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1993, c. 44, s. 206
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4. Subsection 9.4(1) of
the Act is replaced by the following:
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Duty reimposed on referral
back |
9.4
(1) If an order of the Tribunal under subsection 76.01(5) or
paragraph 76.03(12)(a) rescinding an order or finding
described in any of sections 3 to 6 is referred back to the
Tribunal under subsection 77.015(3) or (4) or 77.019(5), or under
subsection 77.15(3) or (4) or 77.19(4), the importer of dumped or
subsidized goods that are of the same description as any goods to
which the rescinded order or finding applied and that are released
on or after the day on which the order of the panel referring the
rescinding order or finding back is made, shall pay or cause to be
paid duty on the imported goods as if the rescinded order or
finding had not been rescinded.
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5. Subsection 12(2) of the
Act is replaced by the following:
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Return of duty
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(2) If the Deputy Minister
is satisfied that, because of a clerical or arithmetical error, an
amount has been paid as duty in respect of goods that was not
properly payable, the Deputy Minister shall return that amount to
the importer or owner of the goods by or on whose behalf it was
paid. |
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1994, c. 47, s. 151
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6. (1) Subsection 13.2(1)
of the Act is replaced by the following:
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Request for review
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13.2
(1) An exporter to Canada or producer 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 if the exporter or
producer
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(a) establishes
that they are not associated with any exporter who is in the same
country as the goods that are subject to the order or finding and
who had been given notice under subparagraph 34(1)(a)(i);
and
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(b) has not
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(i) been given notice
under subparagraph 34(1)(a)(i), paragraph 38(3)(a)
or subsection 41(3) in respect of the goods, or
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(ii) been requested to
provide information in relation to those goods or in relation to
any goods that are of the same description as those goods for the
purposes of this Act. |
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1994, c. 47, s. 151
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(2) Subsection 13.2(5) of
the Act is replaced by the following:
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Confirmation, etc., deemed
to be a re-
determination |
(5) A confirmation or
amendment of a normal value, export price or amount of subsidy
under subsection (3) is, for the purposes of paragraph 57(b),
deemed to be a re-determination of a normal value, export price or
amount of subsidy, as the case may be, by a designated officer
referred to in that paragraph. |
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7. Section 20 of the Act
is renumbered as subsection 20(1) and is amended by adding the
following:
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Limitation
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(2) The Deputy Minister
may not designate a country under paragraph (1)(d) if
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(a) the like goods
of that country are also the subject of investigation under this
Act, unless the Deputy Minister is of the opinion that those goods
are not dumped goods; or
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(b) in the opinion
of the Deputy Minister, the price of the like goods imported into
Canada has been significantly influenced by a country described in
paragraphs (1)(a) and (b).
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8. (1) The portion of
subsection 21(1) of the Act before paragraph (a) is
replaced by the following:
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Credit sales o f like
goods |
21.
(1) Where any sale of like goods referred to in section 17,
paragraph 19(a), subparagraph 20(1)(c)(i) or
paragraph 20(1)(d) was made on credit terms other than cash
discounts, the price for which the like goods were sold is deemed,
for the purpose of that provision, to be an amount equal to the
quotient obtained when
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(2) Section 21 of the Act
is amended by adding the following after subsection (1):
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Adjustment of unit price
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(1.1) The unit price
arrived at under subsection (1) shall be adjusted in the
prescribed manner and circumstances to reflect the differences in
terms and conditions of sale, taxation and other matters that
relate to price comparability between the goods sold to the
importer in Canada and the like goods sold. |
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9. Paragraph 26(a)
of the Act is replaced by the following:
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(a) the indemnity,
payment or reimbursement is deemed not to be a compensatory
arrangement referred to in subparagraph 25(1)(b)(ii); and |
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10. Section 27 of the Act
is amended by adding the following after subsection (1):
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Adjustment of unit price
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(1.1) The unit price
arrived at under subsection (1) shall be adjusted in the
prescribed manner and circumstances. |
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11. Paragraph 30(2)(b)
of the Act is replaced by the following:
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(b) would, but for
this section, have a normal value as computed under sections 15 to
23 or section 29 that is less than the normal value would be if
the country of export were the country of origin, |
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1994, c. 47, s. 159
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12. Section 30.1 of the
Act is replaced by the following:
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Determination of margin of
dumping in respect of a country |
30.1
For the purposes of subparagraphs 35(1)(a)(ii), 38(1)(a)(i)
and 41(1)(a)(ii) and paragraphs 41.1(1)(a) and (2)(a),
the margin of dumping in relation to goods of a particular country
is the weighted average of the margins of dumping determined in
accordance with section 30.2. |
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1994, c. 47, s. 159
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13. Subsections 30.2(1)
and (2) of the English version of the Act are replaced by the
following:
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Margin of dumping re
goods of an exporter |
30.2
(1) Subject to subsection (2), the margin of dumping in relation
to any goods of a particular exporter is zero or the amount
determined by subtracting the weighted average export price of the
goods from the weighted average normal value of the goods,
whichever is greater.
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If variation in price
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(2) The Deputy Minister
may determine the margin of dumping in relation to any goods of a
particular exporter to be the weighted average of the margins of
dumping in relation to the goods of that exporter that are sold in
any individual sales of goods of that exporter that the Deputy
Minister considers relevant if, in the opinion of the Deputy
Minister, there are significant variations in the prices of goods
of that exporter among purchasers, regions in Canada or time
periods. |
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1994, c. 47, s. 159
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14. Subsection 30.3(1) of
the Act is replaced by the following:
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Margin of dumping based on
sample |
30.3
(1) The Deputy Minister may, if the Deputy Minister is of the
opinion that it would be impracticable to determine a margin of
dumping in relation to all goods under consideration because of
the number of exporters, producers or importers, the variety or
volume of goods or any other reason, determine margins of dumping
in relation to
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(a) the largest
percentage of goods of each of the countries whose goods are under
consideration that, in the opinion of the Deputy Minister, can
reasonably be investigated; or
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(b) samples of the
goods of each of the countries whose goods are under consideration
that, in the opinion of the Deputy Minister based on the
information available at the time of selection, are statistically
valid. |
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1994, c. 47, s. 160
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15. (1) Subsections 31(2)
and (3) of the Act are replaced by the following:
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Standing
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(2) No investigation may
be initiated under subsection (1) as a result of a complaint
unless
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(a) the complaint
is supported by domestic producers whose production represents
more than fifty per cent of the total production of like goods by
those domestic producers who express either support for or
opposition to the complaint; and
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(b) the production
of the domestic producers who support the complaint represents
twenty-five per cent or more of the total production of like goods
by the domestic industry.
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Meaning of "domestic
producers'' |
(2.1) For the purpose of
paragraph (2)(a), if a domestic producer is an importer of,
or is related to an exporter or importer of, allegedly dumped or
subsidized goods, "domestic producers'' may, subject to subsection
2(1.1), be interpreted as meaning the rest of those domestic
producers.
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Meaning of "domestic
industry''
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(3) In paragraph (2)(b),
domestic industry means, subject to subsection 2(1.1), the
domestic producers as a whole of the like goods except that, if a
domestic producer is related to an exporter or importer of
allegedly dumped or subsidized goods, or is an importer of such
goods, "domestic industry'' may be interpreted as meaning the rest
of those domestic producers. |
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1994, c. 47, s. 160
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(2) The portion of
subsection 31(4) of the Act before paragraph (a) is
replaced by the following:
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Producers related
to exporters or importers
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(4) For the purposes of
subsections (2.1) and (3), a domestic producer is related to an
exporter or importer if |
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R.S., c. 47 (4th Supp.),
s. 52 (Sch., item 10(3))
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16. Subsection 32(3) of
the Act is replaced by the following:
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Deemed complaint
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(3) If a written complaint
filed with the Tribunal under subsection 23(1) of the Canadian
International Trade Tribunal Act is referred to the Deputy
Minister under subsection 26(4) or 28(1) of that Act, the Deputy
Minister is deemed to have received a written complaint described
in subsection (1). |
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1994, c. 47, ss. 164, 165
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17. Sections 34 and 35 of
the Act are replaced by the following:
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Notice of investigation
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34.
(1) If the Deputy Minister causes an investigation to be initiated
respecting the dumping or subsidizing of goods, the Deputy
Minister shall
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(a) in the case of
an investigation initiated under any provision of this Act other
than section 7, cause notice of the investigation
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(i) to be given to the
Secretary, the exporter, the importer, the government of the
country of export, the complainant, if any, and any other
prescribed persons, and
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(ii) to be published in
the Canada Gazette; and
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(b) without delay
provide the Tribunal with the information and material with
respect to the matter that is required under the Tribunal's rules.
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Tribunal to make
preliminary
inquiry
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(2) The Tribunal shall,
without delay after receipt by the Secretary under subparagraph
(1)(a)(i) of a notice of an initiation of an investigation,
make a preliminary inquiry (which need not include an oral
hearing) into whether the evidence discloses a reasonable
indication that the dumping or subsidizing of the goods has caused
injury or retardation or is threatening to cause injury.
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Termination of
investigation or inquiry |
35.
(1) The Deputy Minister shall act under subsection (2) and the
Tribunal shall act under subsection (3) if, at any time before the
Deputy Minister makes a preliminary determination under subsection
38(1) in respect of goods of a country or countries,
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(a) the Deputy
Minister is satisfied in respect of some or all of those goods
that
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(i) there is insufficient
evidence of dumping or subsidizing to justify proceeding with the
investigation,
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(ii) the margin of dumping
of, or the amount of subsidy on, the goods of that country or of
any of those countries is insignificant, or
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(iii) the actual and
potential volume of dumped or subsidized goods is negligible; or
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(b) the Tribunal
comes to the conclusion in respect of some or all of those goods
that the evidence does not disclose a reasonable indication that
the dumping or subsidizing of the goods has caused injury or
retardation or is threatening to cause injury.
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Duty of Deputy Minister
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(2) The Deputy Minister
shall |
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(a) cause the
investigation to be terminated with respect to the goods in
respect of which the Deputy Minister is so satisfied or the
Tribunal has come to that conclusion; and
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(b) cause notice of
the termination to be
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(i) given to the
Secretary, the exporter, the importer, the government of the
country of export, the complainant, if any, and any prescribed
persons, and
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(ii) published in the
Canada Gazette.
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Duty of Tribunal
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(3) The Tribunal shall
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(a) cause the
preliminary inquiry to be terminated with respect to the goods in
respect of which the Deputy Minister is so satisfied or the
Tribunal has come to that conclusion; and
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(b) cause notice of
the termination to be
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(i) given to the Deputy
Minister, the exporter, the importer, the government of the
country of export, the complainant, if any, and any prescribed
persons, and
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(ii) published in the
Canada Gazette. |
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1997, c. 14, s. 90
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18. (1) Subsection 35.1(1)
of the Act is amended by striking out the word "and'' at the end
of paragraph (a) and by replacing paragraph (b) with
the following:
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(b) the Tribunal
shall cause any preliminary inquiry initiated under subsection
34(2) to be terminated to the extent that it relates to the
dumping of those goods; and
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(c) all related
proceedings are terminated to the extent that they relate to the
dumping of those goods. |
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1997, c. 14, s. 90
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(2) The portion of
subsection 35.1(2) of the Act before paragraph (a) is
replaced by the following:
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Notice of termination
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(2) The Deputy Minister or
the Tribunal, as the case may be, shall cause notice of the
termination |
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1994, c. 47, s. 165
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19. Section 36 of the Act
is repealed.
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20. The portion of section
37 of the Act before paragraph (a) is replaced by the
following:
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Tribunal to give advice
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37.
If a reference is made to the Tribunal under section 33 on any
question in relation to any matter before the Deputy Minister,
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21. The heading before
section 38 of the Act is replaced by the following:
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Preliminary Determination
of Injury or of Dumping or Subsidizing |
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Preliminary determination
of injury |
37.1
(1) On or before the sixtieth day after the initiation of an
investigation under section 31, the Tribunal shall make, with
respect to the goods in respect of which the investigation has not
been terminated under section 35, a preliminary determination that
there is evidence that discloses a reasonable indication that the
dumping or subsidizing has caused injury or retardation or is
threatening to cause injury.
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Notification
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(2) The Tribunal shall
cause notice of the preliminary determination to be
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(a) given to the
Deputy Minister, the exporter, the importer, the government of the
country of export, the complainant, if any, and any prescribed
persons; and
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(b) published in
the Canada Gazette. |
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1994, c. 47, s. 166(1)
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22. (1) The portion of
subsection 38(1) of the Act before paragraph (a) is
replaced by the following:
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Preliminary determination
of dumping or subsidizing |
38.
(1) Subject to section 39, after the sixtieth and on or before the
ninetieth day after the initiation of an investigation under
section 31, the Deputy Minister shall make a preliminary
determination of dumping or subsidizing with respect to the goods
in respect of which the investigation has not been terminated
under section 35 after estimating and specifying, in relation to
each exporter of goods in respect of which the investigation is
made, as follows: |
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(2) Paragraph 38(1)(c)
of the English version of the Act is replaced by the following:
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(c) in the case of
dumped or subsidized goods, specifying the name of the person the
Deputy Minister believes, on the information available to the
Deputy Minister at the time the Deputy Minister makes the estimate
referred to in subparagraph (a)(i) or (b)(i), as the
case may be, is the importer in Canada of the goods. |
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1994, c. 47, para. 186(a)
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23. The portion of
subsection 39(1) of the Act before paragraph (a) is
replaced by the following:
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Time extended
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39.
(1) If, in any investigation respecting the dumping or subsidizing
of goods, the Deputy Minister, before the expiration of the ninety
days referred to in subsection 38(1), causes written notice to be
given to the persons and the government referred to in paragraph
34(1)(a) that by reason of |
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24. Section 40 of the Act
is repealed.
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1994, c. 47, s. 167(1)
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25. (1) The portion of
subsection 41(1) of the Act before paragraph (a) is
replaced by the following:
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Final determination or
termination |
41.
(1) Within ninety days after making a preliminary determination
under subsection 38(1) in respect of goods of a country or
countries, the Deputy Minister shall |
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1994, c. 47, s. 167(1)
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(2) The portion of
paragraph 41(1)(a) of the Act before subparagaph (iii) is
replaced by the following:
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|
|
(a) if, on the
available evidence, the Deputy Minister is satisfied, in relation
to the goods of that country or countries in respect of which the
investigation is made, that
|
|
|
(i) the goods have been
dumped or subsidized, and
|
|
|
(ii) the margin of dumping
of, or the amount of subsidy on, the goods of that country or of
any of those countries is not insignificant, |
|
|
make a final determination
of dumping or subsidizing with respect to the goods after
specifying, in relation to each exporter of goods of that country
or countries in respect of which the investigation is made as
follows: |
|
|
(3) Subsection 41(2) of
the Act is replaced by the following:
|
|
Exception
|
(2) The Deputy Minister
shall not specify anything under clause (1)(a)(iv)(C) if
the Deputy Minister is of the opinion that, having regard to the
country that is providing the export subsidy, the nature of the
goods and the circumstances under which the export subsidy is
provided, provision of the export subsidy in relation to those
goods is not inconsistent with that country's obligations under
the international agreement known as the General Agreement on
Tariffs and Trade, 1994. |
|
1994, c. 47, s. 169
|
26. (1) The portion of
subsection 42(3) of the Act before paragraph (a) is
replaced by the following:
|
|
Assessment of cumulative
effect |
(3) In making or resuming
its inquiry under subsection (1), the Tribunal shall make an
assessment of the cumulative effect of the dumping or subsidizing
of goods to which the preliminary determination applies that are
imported into Canada from more than one country if the Tribunal is
satisfied that |
|
1994, c. 47, s. 169
|
(2) Paragraph 42(3)(b)
of the French version of the Act is replaced by the following:
|
|
|
b)
l'évaluation des effets cumulatifs est indiquée compte tenu des
conditions de concurrence entre les marchandises, visées par la
décision provisoire, importées au Canada en provenance d'un ou de
plusieurs de ces pays et :
|
|
|
(i) soit les marchandises,
visées par la décision provisoire, importées au Canada en
provenance d'un ou de plusieurs autres de ces pays,
|
|
|
(ii) soit les marchandises
similaires des producteurs nationaux. |
|
|
(3) Section 42 of the Act
is amended by adding the following after subsection (4):
|
|
Termination of inquiry if
volume is negligible |
(4.1) If the Tribunal
determines that the volume of dumped or subsidized goods from a
country is negligible, the Tribunal shall terminate its inquiry in
respect of those goods. |
|
|
(4) Section 42 of the Act
is amended by adding the following after subsection (5):
|
|
Volume of
dumped or subsidized goods
|
(6) For the purposes of
this section, the volume of dumped or subsidized goods from a
country is deemed to include the volume of goods of the country
that are of the same description and are the subject of a sale for
export to Canada. |
|
|
27. Section 45 of the Act
is replaced by the following:
|
|
Initiation of
inquiry if
imposition of duty not in
public
interest
|
45.
(1) If, as a result of an inquiry referred to in section 42
arising out of the dumping or subsidizing of any goods, the
Tribunal makes an order or finding described in any of sections 3
to 6 with respect to those goods, the Tribunal shall, on its own
initiative or on the request of an interested person that is made
within the prescribed period and in the prescribed manner,
initiate a public interest inquiry if the Tribunal is of the
opinion that there are reasonable grounds to consider that the
imposition of an anti-dumping or countervailing duty, or the
imposition of such a duty in the full amount provided for by any
of those sections, in respect of the goods would not or might not
be in the public interest.
|
|
Publication of
notice
|
(2) The Secretary shall
publish in the Canada Gazette notice of a decision to
initiate a public interest inquiry.
|
|
Consideration of
prescribed factors |
(3) In a public interest
inquiry, the Tribunal shall take into account any factors,
including prescribed factors, that it considers relevant.
|
|
Report |
(4) If, as a result of a
public interest inquiry, the Tribunal is of the opinion that the
imposition 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, in respect of the goods would not or might not
be in the public interest, the Tribunal shall without delay
|
|
|
(a) report to the
Minister of Finance that it is of that opinion and provide that
Minister with a statement of the facts and reasons that caused it
to be of that opinion; and
|
|
|
(b) cause notice of
the report to be published in the Canada Gazette.
|
|
Details in report
|
(5) If the Tribunal is of
the opinion that the imposition of an anti-dumping or
countervailing duty in the full amount would not or might not be
in the public interest, the Tribunal shall, in the report referred
to in paragraph (4)(a), specify 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 are adequate to eliminate injury, retardation or the
threat of injury to the domestic industry.
|
|
Persons interested may
make representations |
(6) If a person interested
in a public interest inquiry makes a request to the Tribunal
within the prescribed period and in the prescribed manner for an
opportunity to make representations to the Tribunal on the
question whether the Tribunal should make a report under paragraph
(4)(a) with respect to any goods in respect of which the
inquiry is being made, the Tribunal shall give that person an
opportunity to make representations to the Tribunal on that
question orally or in writing, or both, as the Tribunal directs in
the case of that inquiry. |
|
1993, c. 44, s. 210; 1997,
c. 14, s. 91 |
28. Subsection 47(1) of
the Act is replaced by the following:
|
|
Termination of proceedings
|
47.
(1) An order or finding made by the Tribunal with respect to any
dumped or subsidized goods, other than an order or finding
described in any of sections 3 to 6, terminates all proceedings
under this Act respecting the dumping or subsidizing of the goods,
other than proceedings under Part I.1 or II or subsection 76.02(1)
or (3). |
|
|
29. Section 49 of the Act
is amended by adding the following after subsection (4):
|
|
Consideration of
representations |
(5) In considering whether
to accept an undertaking, the Deputy Minister shall consider any
representations received from the importer, exporter, government
of the country of export or any other interested person.
|
|
|
30. The Act is amended by
adding the following after section 51:
|
|
Acceptance of further
undertakings
|
51.1
If an investigation has been suspended under subparagraph 50(a)(iii),
the Deputy Minister may accept an undertaking in respect of dumped
or subsidized goods from an exporter or government that had not
previously offered an undertaking in respect of the goods that was
accepted by the Deputy Minister under subsection 49(1) if the
Deputy Minister is of the opinion that observance of the
undertaking will not cause
|
|
|
(a) if the
undertaking is given by an exporter, the price at which the goods
are sold to importers in Canada by the exporter to increase 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 is given by the government of a country, the price at
which the goods, when exported to Canada from that country, will
be sold to importers in Canada to increase by more than the
estimated amount of subsidy on the goods. |
|
1994, c. 47, s. 174
|
31. (1) Paragraphs 52(1)(b)
and (c) of the Act are replaced by the following:
|
|
|
(b) is satisfied
that the undertaking or undertakings would not have been accepted
if the information available at that time had been available when
the undertaking was accepted, or
|
|
|
(c) is satisfied
that the undertaking or undertakings would not have been accepted
if the circumstances prevailing at that time had prevailed when
the undertaking was accepted, |
|
1994, c. 47, s. 174
|
(2) Paragraph 52(1.1)(a)
of the Act is amended by adding the word "or'' at the end of
subparagraph (i), by striking out the word "or'' at the end of
subparagraph (ii) and by repealing subparagraph (iii).
|
|
1994, c. 47, s. 174
|
(3) Paragraph 52(1.1)(c)
of the Act is replaced by the following:
|
|
|
(c) the Tribunal
has, under paragraph 76.01(5)(a), subsection 76.02(4),
paragraph 76.03(12)(a) or subsection 76.04(1) or 76.1(2),
rescinded an order or finding with respect to the goods or the
order or finding has been deemed to be rescinded under subsection
76.03(1), |
|
1994, c. 47, s. 174
|
(4) Subsection 52(1.2) of
the Act is replaced by the following:
|
|
Termination if conditions
no longer exist |
(1.2) Unless the Tribunal
has made an order or finding under subsection 43(1) that the
dumping or subsidizing of the goods to which the preliminary
determination applies has caused injury or retardation or is
threatening to cause injury, and that order or finding has not
been rescinded under paragraph 76.01(5)(a), subsection
76.02(4), paragraph 76.03(12)(a) or subsection 76.04(1) or
76.1(2) or has not been deemed to be rescinded under subsection
76.03(1), the Deputy Minister shall terminate the undertaking or
undertakings if, at any time after accepting the undertaking or
undertakings, the Deputy Minister is satisfied that,
notwithstanding the termination of the undertaking or
undertakings, the condition in paragraph 49(1)(a) or (b),
as the case may be, would no longer exist.
|
|
1994, c. 47, s. 175
|
32. (1) The portion of
subsection 53(1) of the Act before paragraph (a) is
replaced by the following:
|
|
Review and
renewal of undertaking by
Deputy Minister
|
53.
(1) Unless the Tribunal has made an order or finding under
subsection 43(1) that the dumping or subsidizing of the goods to
which the preliminary determination applies has caused injury or
retardation or is threatening to cause injury and that order or
finding has not been rescinded under paragraph 76.01(5)(a),
subsection 76.02(4), paragraph 76.03(12)(a) or subsection
76.04(1) or 76.1(2) or has not been deemed to be rescinded under
subsection 76.03(1), the Deputy Minister shall review the
undertaking before the expiry of five years after the date on
which it was accepted and before the expiry of each subsequent
period, if any, for which it is renewed under this section and if,
on the review, the Deputy Minister is satisfied
|
|
|
(2) Subsection 53(2) of
the Act is replaced by the following:
|
|
Expiry of undertaking
|
(2) An undertaking expires
immediately after the Deputy Minister decides under subsection (1)
not to renew it. |
|
R.S., c. 1 (2nd Supp.), s.
204; 1993, c. 44, s. 213 |
33. Section 57 of the Act
is replaced by the following:
|
|
Review by designated
officer |
57.
Unless the Deputy Minister has previously re-determined under
section 59 a determination referred to in subsection 56(1) or (2)
or the determination was made in respect of goods released after
the initiation of an expedited review under subsection 13.2(3) and
before a decision was issued under that subsection, a designated
officer may re-determine the determination
|
|
|
(a) in accordance
with a request made under subsection 56(1.01) or (1.1); or
|
|
|
(b) if the
designated officer deems it advisable, within two years after the
determination. |
|
1993, c. 44, s. 215(1)
|
34. (1) The portion of
subsection 59(1) of the Act before paragraph (a) is
replaced by the following:
|
|
Permissive re-
determination |
59.
(1) Subject to subsection (3), the Deputy Minister may
re-determine any determination or re-determination referred to in
section 55, 56 or 57 or made under this section in respect of any
imported goods |
|
|
(2) Paragraph 59(1)(c)
of the Act is replaced by the following:
|
|
|
(c) at any time, if
subsection 2(6) or section 26 or 28 applies or at any time becomes
applicable in respect of the goods; |
|
|
(3) Section 59 of the Act
is amended by adding the following after subsection (1):
|
|
Re-determination
of re-determination
|
(1.1) The Deputy Minister
may re-determine any re-determination
|
|
|
(a) at any time
after a re-determination was made under any of paragraphs (1)(a)
to (c) and (e) but before an appeal under section 61
is heard, on the recommendation of the Attorney General of Canada,
if the re-determination would reduce duties payable on the goods;
and
|
|
|
(b) at any time if
the re-determination would be consistent with a decision of the
Tribunal, the Federal Court of Appeal or the Supreme Court of
Canada, or with a re-determination under paragraph (a),
made in respect of other like goods of the same importer or owner
imported on or before the date of importation of the goods in
respect of which the re-determination is being made. |
|
1993, c. 44, s. 215(2)
|
(4) Subsection 59(2) of
the English version of the Act is replaced by the following:
|
|
Permissive re-
determination |
(2) The Deputy Minister
may re-determine any determination or re-determination referred to
in section 55, 56 or 57 or made under this section in respect of
any imported goods at any time for the purpose of giving effect to
a decision of a panel under Part I.1 or II with respect to the
goods. |
|
1993, c. 44, s. 215(2)
|
(5) Subsection 59(3.1) of
the French version of the Act is replaced by the following:
|
|
Avis de la nouvelle décision
|
(3.1) Le sous-ministre fait
donner, par courrier recommandé, avis de la décision issue d'un
réexamen à l'importateur et, dans le cas de marchandises d'un pays
ALÉNA, au gouvernement du pays ALÉNA en question et à toute autre
personne désignée par règlement, ainsi qu'au secrétaire canadien
lorsque la nouvelle décision donne effet à celle rendue par un
groupe spécial sous le régime de la partie I.1.
|
|
1988, c. 65,
s. 40(3)
|
(6) Subsection 59(4) of
the French version of the Act is replaced by the following:
|
|
Avis de la nouvelle décision
|
(4) Le sous-ministre fait
donner, par courrier recommandé, avis de la décision issue d'un
réexamen à l'importateur et, dans le cas de marchandises des États-Unis,
au gouvernement des États-Unis et à toute autre personne désignée
par règlement, ainsi qu'au secrétaire canadien lorsque la nouvelle
décision donne effet à celle rendue par un groupe spécial sous le
régime de la partie II.
|
|
R.S., c. 47 (4th Supp.),
s. 52 (Sch., item 10(6)) |
35. Subsection 61(2) of
the Act is replaced by the following:
|
|
Publication of
notice of appeal
|
(2) Notice of the hearing
of an appeal under subsection (1) must be published in the
Canada Gazette at least twenty-one days before the day of the
hearing, and any person who enters an appearance with the
Secretary at least seven days before the day of the hearing may be
heard on the appeal. |
|
R.S., c. 47 (4th Supp.),
s. 52 (Sch., item10(9)); 1988,
c. 65, s. 41(2); 1993, c.
44, s. 217 |
36. Section 76 of the Act
and the heading before it are replaced by the following:
|
|
|
Review of Orders and
Findings |
|
|
Judicial Review
|
|
Application for judicial
review |
76.
Subject to subsection 61(3) and Part I.1 or II, an application for
judicial review of an order or finding of the Tribunal under this
Act may be made to the Federal Court of Appeal on any of the
grounds set out in subsection 18.1(4) of the Federal Court Act.
|
|
|
Review of Orders and
Findings by Tribunal
|
|
Interim review of orders
by Tribunal |
76.01
(1) At any time after the making of an order or finding described
in any of sections 3 to 6, the Tribunal may, on its own initiative
or at the request of the Minister of Finance, the Deputy Minister
or any other person or of any government, conduct an interim
review of
|
|
|
(a) the order or
finding; or
|
|
|
(b) any aspect of
the order or finding.
|
|
Tribunal may re-hear any
matter |
(2) In conducting an
interim review, the Tribunal may re-hear any matter before
deciding it.
|
|
Limitation
|
(3) The Tribunal shall not
conduct an interim review at the request of any person or
government unless the person or government satisfies the Tribunal
that the review is warranted.
|
|
Order if interim review
not
initiated
|
(4) If the Tribunal
decides not to conduct an interim review at the request of a
person or government, the Tribunal shall make an order to that
effect and give reasons for it, and the Secretary shall forward a
copy of the order and the reasons to that person or government and
cause notice of the order to be published in the Canada Gazette.
|
|
Orders on completion of
interim review |
(5) The Tribunal, on
completion of an interim review |
|
|
(a) under paragraph
(1)(a), shall make an order rescinding the order or finding
or continuing it with or without amendment, as the circumstances
require, and shall give reasons for making the order; and
|
|
|
(b) under paragraph
(1)(b), shall make any order in respect of the order or
finding as the circumstances require, and shall give reasons for
making the order.
|
|
Completion of review
|
(6) On completion of an
interim review, the Secretary shall |
|
|
(a) forward to the
Deputy Minister and any other persons and governments that are
specified by the rules of the Tribunal,
|
|
|
(i) without delay after
the review is completed, a copy of the order, and
|
|
|
(ii) not later than
fifteen days after the date of the order, a copy of the reasons
for the order; and
|
|
|
(b) cause notice of
the order to be published in the Canada Gazette.
|
|
Expiry of order
|
(7) An order made on the
completion of an interim review, other than an order rescinding an
order or finding, expires
|
|
|
(a) if an expiry
review is not initiated under subsection 76.03(3), five years
after the day on which the order or finding that was the subject
of the interim review was made; and
|
|
|
(b) if an expiry
review is initiated under subsection 76.03(3), the day on which
the Tribunal makes an order under subsection 76.03(12).
|
|
|
Review on Referral Back
|
|
Review of orders
by Tribunal on referral
back and
re-hearing
|
76.02
(1) If the Tribunal receives notice of action taken under
paragraph 41.1(1)(a) or (2)(a) in respect of goods
to which an order or finding of the Tribunal, other than an order
or finding described in any of sections 3 to 6, applies, the
Tribunal may, on its own initiative or at the request of the
Minister of Finance, the Deputy Minister or any other person or of
any government, review the order or finding and, in conducting the
review, may re-hear any matter before deciding it.
|
|
Limitation
|
(2) The Tribunal shall not
conduct a review at the request of any person or government unless
the person or government satisfies the Tribunal that a review is
warranted.
|
|
Review of orders
by Tribunal on referral
back and
re-hearing
|
(3) If an order or finding
of the Tribunal is referred back to the Tribunal under subsection
77.015(3) or (4), 77.019(5), 77.15(3) or (4) or 77.19(4), the
Tribunal shall review the order or finding and, in conducting the
review, may re-hear any matter before deciding it.
|
|
Completion of review
|
(4) On completion of a
review, the Tribunal shall confirm the order or finding or rescind
it and make any other order or finding with respect to the goods
to which the order or finding under review applies as the nature
of the matter may require, shall give reasons for the decision
and, if it makes another order or finding, shall declare to what
goods, including, if applicable, from what supplier and from what
country of export, the order or finding applies.
|
|
Notice |
(5) On completion of a
review, the Secretary shall
|
|
|
(a) forward to the
Deputy Minister and the other persons and governments that are
specified by the rules of the Tribunal and, in the case of a
review under subsection (3), the Canadian Secretary,
|
|
|
(i) without delay after
the review is completed, a copy of the order or finding made under
subsection (4), and
|
|
|
(ii) not later than
fifteen days after the completion of the review, a copy of the
reasons for the decision; and
|
|
|
(b) cause notice of
the order or finding to be published in the Canada Gazette.
|
|
|
Expiry Review
|
|
Order or finding deemed to
be rescinded |
76.03
(1) If the Tribunal has not initiated an expiry review under
subsection (3) with respect to an order or finding described in
any of sections 3 to 6 before the expiry of five years after
whichever of the following days is applicable, the order or
finding is deemed to have been rescinded as of the expiry of the
five years:
|
|
|
(a) if no order
continuing the order or finding has been made under paragraph
(12)(b), the day on which the order or finding was made;
and
|
|
|
(b) if one or more
orders continuing the order or finding have been made under
paragraph (12)(b ), the day on which the last order was
made.
|
|
Publication of
notice
|
(2) If an order or finding
is to be deemed rescinded under subsection (1), the Secretary
shall, not later than ten months before the expiry date of the
order or finding under that subsection, cause to be published in
the Canada Gazette a notice of expiry setting out the
information specified in the rules of the Tribunal.
|
|
Review of orders
by Tribunal
|
(3) The Tribunal may
initiate an expiry review of an order or finding described in any
of sections 3 to 6
|
|
|
(a) on its own
initiative; or
|
|
|
(b) at the request
of the Minister of Finance, the Deputy Minister or any other
person or of any government, if the request is made within the
period specified in the notice of expiry.
|
|
Limitation
|
(4) The Tribunal shall not
initiate an expiry review at the request of any person or
government unless the person or government satisfies the Tribunal
that a review is warranted.
|
|
Order of refusal
|
(5) If the Tribunal
decides not to initiate an expiry review at the request of a
person or government, the Tribunal shall make an order to that
effect and give reasons for it, and the Secretary shall forward a
copy of the order and the reasons to that person or government and
cause notice of the order to be published in the Canada Gazette.
|
|
Notice |
(6) If the Tribunal
decides to initiate an expiry review, the Secretary shall without
delay
|
|
|
(a) cause notice of
the Tribunal's decision to be given to
|
|
|
(i) the Deputy Minister,
and
|
|
|
(ii) all other persons and
governments specified in the rules of the Tribunal;
|
|
|
(b) provide the
Deputy Minister with a copy of the administrative record on which
it based its decision to initiate a review under subsection (3);
and
|
|
|
(c) cause to be
published in the Canada Gazette notice of initiation of the
review that includes the information set out in the rules of the
Tribunal.
|
|
If review initiated
|
(7) If the Tribunal
decides to initiate an expiry review, the Deputy Minister shall
|
|
|
(a) within one
hundred and twenty days after receiving notice under subparagraph
(6)(a)(i), determine whether the expiry of the order or
finding in respect of goods of a country or countries is 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.
|
|
Consequences of Deputy
Minister's determination |
(8) If the Deputy Minister
determines that the expiry of the order or finding in respect of
any goods is unlikely to result in a continuation or resumption of
dumping or subsidizing, the Tribunal shall not take those goods
into account in assessing the cumulative effect of dumping or
subsidizing under subsection (11).
|
|
Consequences of Deputy
Minister's determination |
(9) If the Deputy Minister
determines that the expiry of the order or finding in respect of
any goods is likely to result in a continuation or resumption of
dumping or subsidizing, the Deputy Minister shall without delay
provide the Tribunal with any information and material with
respect to the matter that is required under the rules of the
Tribunal.
|
|
Tribunal's determination
|
(10) If the Deputy Minister makes
a determination described in subsection (9), the Tribunal shall
determine whether the expiry of the order or finding in respect of
the goods referred to in that subsection is likely to result in
injury or retardation.
|
|
Assessment of cumulative effect
|
(11) For the purpose of
subsection (10), the Tribunal shall make an assessment of the
cumulative effect of the dumping or subsidizing of goods to which
the determination of the Deputy Minister described in subsection
(9) applies that are imported into Canada from more than one
country if the Tribunal is satisfied that an assessment of the
cumulative effect would be appropriate taking into account the
conditions of competition between goods to which the order or
finding applies that are imported into Canada from any of those
countries and
|
|
|
(a)
goods to which the order or finding applies that are imported into
Canada
from any other of those countries; or
|
|
|
(b) like goods of domestic
producers.
|
|
Order of Tribunal
|
(12) The Tribunal shall make an
order
|
|
|
(a) rescinding the order
or finding in respect of goods
|
|
|
(i) referred to in subsection
(8), or
|
|
|
(ii) in respect of which it
determines that the expiry of the order or finding is unlikely to
result in injury or retardation; or
|
|
|
(b) continuing the order
or finding, with or without amendment, in respect of goods which
it determines that the expiry of the order or finding is likely to
result in injury or retardation.
|
|
Separate order or finding
|
76.04
(1) If a review under section 76.01, 76.02 or 76.03 involves goods
of more than one NAFTA country, or of one or more NAFTA countries
and goods of one or more other countries, and the Tribunal makes
another order or finding under any of those sections, the Tribunal
shall make a separate order or finding under that section with
respect to the goods of each NAFTA country.
|
|
Suspension of subsection (3)
|
(2) The operation of subsection
(3) is suspended during the period in which subsection (1) is in
force.
|
|
Separate order or finding
|
(3) If a review under section
76.01, 76.02 or 76.03 involves goods of the United States as well
as goods of other countries and the Tribunal makes another order
or finding under any of those sections, the Tribunal shall make a
separate order or finding under that section with respect to the
goods of the United States. |
|
1994, c. 47, s. 179
|
37. (1)
Paragraph 76.1(1)(a) of the Act is replaced by the
following:
|
|
|
(a) the Deputy Minister
review any decision, determination or re-determination or any
portion of a decision, determination or re-determination made
under this Act; or |
|
1994, c. 47, s. 179
|
(2)
Paragraphs 76.1(2)(a) to (c) of the Act are replaced
by the following:
|
|
|
(a) continue the decision,
determination, re-determination, order or finding without
amendment;
|
|
|
(b) continue the decision,
determination, re-determination, order or finding with any
amendments that the Deputy Minister or the Tribunal, as the case
may be, considers necessary; or
|
|
|
(c) rescind the decision,
determination, re-determination, order or finding and make any
other decision, determination, re-determination, order or finding
that the Deputy Minister or the Tribunal, as the case may be,
considers necessary. |
|
1994, c. 47, s. 179
|
(3)
Subsections 76.1(3) and (4) of the English version of the Act are
replaced by the following:
|
|
Reasons |
(3) If a decision, determination,
re-determination, order or finding is continued under paragraph
(2)(a) or (b) or made under paragraph (2)(c
), the Deputy Minister or the Tribunal, as the case may be, shall
give reasons for doing so and shall set out to what goods,
including, if practicable, the name of the supplier and the
country of export, the decision, determination, re-determination,
order or finding applies.
|
|
Notification of Minister of Finance
|
(4) The Deputy Minister or the
Tribunal, as the case may be, shall notify the Minister of Finance
of any decision, determination, re-determination, order or finding
continued under paragraph (2)(a) or (b) or made
under paragraph (2)(c). |
|
1994, c. 47, s. 179
|
(4)
Subsection 76.1(5) of the Act is replaced by the following:
|
|
Deeming |
(5) Any decision, determination
or re-determination continued by the Deputy Minister under
paragraph (2)(b) or made by the Deputy Minister under
paragraph (2)(c) is deemed to have been made under
|
|
|
(a) paragraph 41(1)(a),
if the decision or determination was continued or made as a result
of a review under this section of a final determination of the
Deputy Minister under that paragraph;
|
|
|
(b) paragraph 41(1)(b),
if the decision or determination was continued or made as a result
of a review under this section of a decision of the Deputy
Minister under that paragraph to cause an investigation to be
terminated;
|
|
|
(c) subsection 53(1), if
the decision or determination was continued or made as a result of
a review under this section of a decision of the Deputy Minister
under that subsection to renew or not to renew an undertaking; or
|
|
|
(d) subsection 59(1),
(1.1) or (2), if the re-determination was continued or made as a
result of a review under this section of a re-determination by the
Deputy Minister under either of those subsections. |
|
1993, c. 44, s. 218
|
38. (1) The
definition "ministre'' in subsection 77.01(1) of the French
version of the Act is replaced by the following:
|
|
« ministre »
"Minister'' |
« ministre » Le ministre du
Commerce international. |
|
1993, c. 44, s. 218
|
(2) The
definition "definitive decision'' in subsection 77.01(1) of the
Act is amended by replacing paragraphs (g ) to (i)
with the following and by adding the word "or'' at the end of
paragraph (i.1):
|
|
|
(f.1) a re-determination
of the Deputy Minister under subsection 59(1.1),
|
|
|
(g) an order of the
Tribunal under subsection 76.01(4) or 76.03(5),
|
|
|
(h) an order of the
Tribunal under subsection 76.01(5) or 76.03(12),
|
|
|
(i) an order or finding of
the Tribunal under subsection 76.02(4) respecting a review under
subsection 76.02(1), |
|
1993, c. 44, s. 218
|
39.
Subsection 77.012(1) of the Act is replaced by the following:
|
|
Applications and appeals
|
77.012
(1) No person or government may apply under the Federal Court
Act or section 96.1 of this Act or appeal under section 61 of
this Act in respect of a definitive decision
|
|
|
(a) before the expiry of
the period of thirty days after
|
|
|
(i) the day on which the
definitive decision is published in the Canada Gazette, or
|
|
|
(ii) in the case of a
re-determination of the Deputy Minister under subsection 59(1),
(1.1) or (3), the day on which notice of the re-determination is
received by the government of a NAFTA country; and
|
|
|
(b) unless the person or
government has, within twenty days after the day on which that
period commences, given notice of the intention to make such an
application or appeal in writing to the Canadian Secretary and the
appropriate NAFTA country Secretary and in the prescribed manner
to any other person who, but for this section, would be entitled
to so apply or appeal. |
|
1988, c. 65, s. 42
|
40. (1) The
definition "ministre'' in subsection 77.1(1) of the French version
of the Act is replaced by the following:
|
|
« ministre »
"Minister'' |
« ministre » Le ministre du
Commerce international. |
|
1988, c. 65, s. 42
|
(2) The
definition "definitive decision'' in subsection 77.1(1) of the Act
is amended by replacing paragraphs ( g) to (i) with
the following and by adding the word "or'' at the end of paragraph
(i.1):
|
|
|
(f.1) a re-determination
of the Deputy Minister under subsection 59(1.1),
|
|
|
(g) an order of the
Tribunal under subsection 76.01(4) or 76.03(5),
|
|
|
(h) an order of the
Tribunal under subsection 76.01(5) or 76.03(12),
|
|
|
(i) an order or finding of
the Tribunal under subsection 76.02(4) respecting a review under
subsection 76.02(1), |
|
1988, c. 65, s. 42
|
41.
Subsection 77.12(1) of the Act is replaced by the following:
|
|
Applications and appeals
|
77.12
(1) No person or government may apply under section 18 or 28 of
the Federal Court Act or section 96.1 of this Act or
appeal under section 61 of this Act in respect of a definitive
decision
|
|
|
(a) before the expiry of
the period of thirty days after
|
|
|
(i) the day on which the
definitive decision is published in the Canada Gazette, or
|
|
|
(ii) in the case of a
re-determination of the Deputy Minister under subsection 59(1),
(1.1) or (3), the day on which notice of the re-determination is
received by the United States; and
|
|
|
(b) unless the person or
government has, within twenty days after the day on which that
period commences, given notice of the intention to make such an
application or appeal in writing to the Canadian Secretary and the
American Secretary and in the prescribed manner to any other
person who, but for this section, would be entitled to so apply or
appeal. |
|
|
42. (1)
Paragraph 78(1)(a) of the Act is replaced by the following:
|
|
|
(a) in any proceeding
undertaken by the Deputy Minister after notice has been given that
the complaint is properly documented but before the initiation of
an investigation or in any investigation under this Act respecting
the dumping or subsidizing of goods, or |
|
|
(2) The
portion of subsection 78(1) of the Act after paragraph (b)
is replaced by the following:
|
|
|
the Deputy Minister believes on
reasonable grounds that any person in Canada is able to provide
evidence relevant to any proceedings undertaken by the Deputy
Minister before the initiation of an investigation, to the
investigation or to the making, for the purpose of facilitating
the administration or enforcement of this Act, of an estimate of
the duty that will or may be payable on the goods when imported
into Canada, the Deputy Minister may, by notice in writing,
require the person to provide the Deputy Minister, under oath or
otherwise, with the evidence referred to in the notice.
|
|
|
43.
Subsection 81(1) of the Act is replaced by the following:
|
|
Recovery of duties from person
other than importer |
81.
(1) Notwithstanding anything in this Act, if any duty payable
under this Act in respect of goods has not been paid within thirty
days after a demand for payment of the duty has been made under
this Act, the Deputy Minister may, by notice in writing, require
any person in Canada to whom the goods are sold to pay a sum in
respect of the duty not exceeding the amount of the duty payable
in respect of the goods sold to that person, which sum is, after
the notice has been given, a debt due and payable to Her Majesty
by that person and may be recovered at any time by action in any
court of competent jurisdiction, together with costs of the
action. |
|
|
44.
Subsections 84(2) and (3) of the Act are replaced by the
following:
|
|
Disclosure |
(2) Subsection (1) does not apply
in respect of
|
|
|
(a) any summary of
information or statement referred to in paragraph 85(1)(b)
or any summary referred to in subsection 79(2); or
|
|
|
(b) the disclosure by the
Deputy Minister of information for the purposes of proceedings
before a panel or the Appellate Body established under the
Understanding on Rules and Procedures Governing the Settlement of
Disputes set out in Annex 2 to the WTO Agreement.
|
|
Disclosure to counsel
|
(3) Notwithstanding subsection
(1), information to which that subsection applies that has been
provided to the Deputy Minister in any proceedings under this Act
shall, on written request and on payment of the prescribed fee, be
disclosed by the Deputy Minister, in the manner and at the time
specified by the Deputy Minister, to counsel for any party to
those proceedings or to other proceedings under this Act arising
out of those proceedings for use, notwithstanding any other Act or
law, by that counsel only in those proceedings, subject to any
conditions that the Deputy Minister considers reasonably necessary
or desirable to ensure that the information will not, without the
written consent of the person who submitted it to the Deputy
Minister, be disclosed to any person by counsel in any manner that
is calculated or likely to make it available to
|
|
|
(a) any party to the
proceedings or other proceedings, including a party who is
represented by that counsel; or
|
|
|
(b) any business
competitor or rival of any person to whose business or affairs the
information relates.
|
|
Limitation |
(3.1) The Deputy Minister may not
disclose information under subsection (3) if the Deputy Minister
is satisfied that the disclosure might result in material harm to
the business or affairs of the person who designated the
information as confidential under paragraph 85(1)(a).
|
|
|
45. The Act
is amended by adding the following after section 88:
|
|
Prohibition on disclosure of
information |
88.1
If the Tribunal indicates to the Deputy Minister in writing that
subsection 46(1) of the Canadian International Trade Tribunal
Act applies to information provided to the Deputy Minister
under paragraph 76.03(6)(b), no person employed in the
public service of Canada who comes into possession of that
information while they are so employed shall, either before or
after they cease to be so employed, knowingly disclose it, or
knowingly allow it to be disclosed, to any other person in any
manner that is calculated or likely to make it available for the
use of any business competitor or rival of any person to whose
business or affairs the information relates.
|
|
|
46.
Paragraph 89(1)(a) of the Act is replaced by the following:
|
|
|
(a) a determination has
been made under section 55 or 56 with respect to the goods; and |
|
1988, c. 65, s. 44
|
47.
Paragraphs 96.1(1)(d) to (f) of the Act are replaced
by the following:
|
|
|
(c.1) an order or finding
of the Tribunal under subsection 43(1);
|
|
|
(d) an order of the
Tribunal under subsection 76.01(4) or 76.03(5);
|
|
|
(d.1) a determination of
the Deputy Minister under paragraph 76.03(7)(a);
|
|
|
(e) an order or finding of
the Tribunal under subsection 76.02(4) respecting a review under
subsection 76.02(1);
|
|
|
(f) an order of the
Tribunal under subsection 76.01(5) or 76.03(12); or |
|
1993, c. 44, s. 222
|
48.
Subsection 96.21(1) of the French version of the Act is replaced
by the following:
|
|
Demande de révision |
96.21
(1) Le ministre du Commerce international peut demander, en
conformité avec la législation d'un pays ALÉNA sur la mise en
œuvre de l'Accord de libre-échange nord-américain, la révision
d'une décision finale par un groupe spécial formé en application
de cette législation. |
|
1988, c. 65, s. 44
|
49.
Subsection 96.3(1) of the French version of the Act is replaced by
the following:
|
|
Demande de révision |
96.3
(1) Le ministre du Commerce international peut demander, en
conformité avec la législation américaine de mise en œuvre de
l'Accord de libre-échange, la révision d'une décision finale par
un groupe formé en application de cette législation.
|
|
|
50. The Act
is amended by adding the following after section 96.3:
|
|
|
Offences
|
|
Offence |
96.4
(1) Every person commits an offence who
|
|
|
(a) uses information
disclosed to the person by the Deputy Minister under subsection
84(3) for any purpose other than the purpose for which the
information was disclosed under that subsection; or
|
|
|
(b) contravenes a
condition imposed by the Deputy Minister under subsection 84(3).
|
|
Punishment |
(2) Every person who commits an
offence under subsection (1) is 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.
|
|
Consent |
(3) No proceedings for an offence
under this section shall be instituted without the consent in
writing of the Attorney General of Canada. |
|
1994, c. 47, s. 184(1)
|
51. (1)
Paragraphs 97(1)(a.1) and (b) of the Act are
replaced by the following:
|
|
|
(a.1) respecting the
factors that may be considered in determining
|
|
|
(i) the existence of injury,
retardation or threat of injury, and
|
|
|
(ii) whether the injury,
retardation or threat of injury has been caused by the dumping or
subsidizing of any goods or by any other reason;
|
|
|
(b) specifying the
circumstances and manner in which two or more properly documented
complaints, investigations or inquiries may be joined and carried
on as one and the persons to whom and the manner in which notice
of the joining shall be given; |
|
1994, c. 47, s. 184(3)
|
(2)
Paragraph 97(1)(e) of the Act is replaced by the following:
|
|
|
(e) defining the
expressions "cost of production'', "a reasonable amount for
administrative, selling and all other costs'' and "a reasonable
amount for profits'' for the purpose of paragraph 19(b) or
subparagraph 20(1)(c)(ii); |
|
|
(3)
Paragraph 97(1)(f) of the Act is replaced by the following:
|
|
|
(f) defining the
expression "an amount for profit'' for the purpose of subparagraph
25(1)(c)(ii) or (d)(i); |
|
|
(4)
Paragraph 97(1)(g) of the Act is replaced by the following:
|
|
|
(g) defining the
expression "person interested'' for the purpose of subsection
45(6) or section 89 or 95; |
|
1994, c. 47, s. 184(5)
|
(5)
Paragraph 97(1)(k.2) of the Act is replaced by the
following:
|
|
|
(k.2) 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;
|
|
|
(k.3) prescribing the
period after which the Deputy Minister may refuse to consider
representations referred to in subsection 49(5);
|
|
|
(k.4) prescribing the
factors that the Deputy Minister may consider in making a
determination under paragraph 76.03(7)(a);
|
|
|
(k.5) prescribing the
factors that the Tribunal may consider in making a determination
under subsection 76.03(10);
|
|
|
(k.6) providing for the
manner of attributing principal and interest to imported goods
when those amounts include a portion related to charges not
directly associated with the value of the goods; and |
|
Replacement of "amount of the
subsidy'' with "amount of subsidy''
|
52. The
English version of the Act is amended by replacing the expression
"amount of the subsidy'' with the expression "amount of subsidy''
in the following provisions:
|
|
|
(a) section 6; |
|
|
(b) paragraphs 8(6)(c)
and (d); |
|
|
(c) paragraph 42(3)(a);
and |
|
|
(d) subparagraph 52(1.1)(a)(ii).
|
|
R.S., c. 47 (4th Supp.);
1988, c. 65; 1993, c. 44; 1994, cc. 13, 47; 1996, c. 33; 1997, c.
14 |
canadian
international trade tribunal act |
|
|
53. (1) The
definition "Chairman'' in subsection 2(1) of the English version
of the Canadian International Trade Tribunal Act is
repealed.
|
|
|
(2)
Subsection 2(1) of the English version of the Act is amended by
adding the following in alphabetical order:
|
|
"Chairperson'' Version
anglaise seulement |
"Chairperson'' means the
Chairperson of the Tribunal; |
|
|
54.
Subsection 3(1) of the English version of the Act is replaced by
the following:
|
|
Tribunal established
|
3.
(1) There is hereby established a tribunal, to be known as the
Canadian International Trade Tribunal, consisting, subject to
subsection (2), of a Chairperson, two Vice-Chairpersons and not
more than six other permanent members to be appointed by the
Governor in Council. |
|
|
55.
Subsection 8(1) of the English version of the Act is replaced by
the following:
|
|
Absence, etc., of Chairperson
|
8.
(1) In the event of the absence or incapacity of the Chairperson
or if the office of Chairperson is vacant, the Tribunal may
authorize one of the Vice-Chairpersons to act as Chairperson for
the time being, and a Vice-Chairperson so authorized has and may
exercise and perform all the powers, duties and functions of the
Chairperson. |
|
|
56.
Subsection 9(1) of the Act is replaced by the following:
|
|
Acting after termination of
appointment |
9.
(1) Subject to subsection (2), a person who has ceased to be a
member, for any reason other than removal, may, with the
authorization of the Chairperson, perform and complete any duties
or responsibilities that the person would otherwise have had if
the person had not ceased to be a member and that are in
connection with any matter in which that person became engaged
while holding office as a member, and a person so authorized is,
for that purpose, deemed to be a member of the Tribunal.
|
|
|
57. (1)
Paragraph 26(5)(a) of the Act is replaced by the following:
|
|
|
(a) the Deputy Minister
does not initiate an investigation under that Act respecting the
dumping or subsidizing of the goods that are the subject of the
complaint or initiates such an investigation but terminates the
investigation under section 35 or 41 of that Act; and |
|
|
(2)
Subparagraph 26(5)(b)(ii) of the Act is replaced by the
following:
|
|
|
(ii) in the case where the Deputy
Minister initiates such an investigation but terminates the
investigation under section 35 or 41 of that Act, within thirty
days after the date of the notice sent to the complainant under
section 35 or 41 of that Act advising the complainant of the
termination of the investigation. |
|
|
58. (1)
Paragraph 28(2)(a) of the Act is replaced by the following:
|
|
|
(a) the Deputy Minister
does not initiate an investigation under that Act respecting the
dumping or subsidizing of the goods that are the subject of the
complaint or initiates such an investigation but terminates the
investigation under section 35 or 41 of that Act; and |
|
|
(2)
Subparagraph 28(2)(b)(ii) of the Act is replaced by the
following:
|
|
|
(ii) in the case where the Deputy
Minister initiates such an investigation but terminates the
investigation under section 35 or 41 of that Act, within thirty
days after the date of the notice sent to the complainant under
section 35 or 41 of that Act advising the complainant of the
termination of the investigation. |
|
|
59. (1)
Subsection 45(3) of the Act is replaced by the following:
|
|
Disclosure to counsel and experts
|
(3) Notwithstanding subsection
(1), information to which that subsection applies that has been
provided to the Tribunal in any proceedings before the Tribunal
may be disclosed by the Tribunal to counsel for any party to those
proceedings or to other proceedings arising out of those
proceedings or to an expert, acting under the control or direction
of that counsel, for use, notwithstanding any other Act or law, by
that counsel or expert only in those proceedings, subject to any
conditions that the Tribunal considers reasonably necessary or
desirable to ensure that the information will not, without the
written consent of the person who provided the information to the
Tribunal, be disclosed by counsel or the expert to any person in
any manner that is calculated or likely to make it available to
|
|
|
(a) any party to the
proceedings or other proceedings, including a party who is
represented by that counsel or on whose behalf the expert is
acting; or
|
|
|
(b) any business
competitor or rival of any person to whose business or affairs the
information relates.
|
|
Disclosure to Tribunal's experts
|
(3.1) Notwithstanding subsection
(1), the Tribunal may disclose information to which that
subsection applies to an expert retained by the Tribunal for use,
notwithstanding any other Act or law, by the expert only in
proceedings before the Tribunal under the Special Import
Measures Act or this Act, subject to any conditions that the
Tribunal considers reasonably necessary or desirable to ensure
that the information will not, without the written consent of the
person who provided the information to the Tribunal, be disclosed
by the expert to any person in any manner that is calculated or
likely to make it available to
|
|
|
(a) any party to the
proceedings; or
|
|
|
(b) any business
competitor or rival of any person to whose business or affairs the
information relates.
|
|
Disclosure to persons described in subsection (5)
|
(3.2) For greater certainty,
disclosure of information under subsection (3) or (3.1) to a
person described in subsection (5) who is an employee of an
institution of the Government of Canada that is a party to the
proceedings or, in the case of subsection (3), other proceedings
is not disclosure to a party to those proceedings for the purposes
of subsection (3) or (3.1). |
|
|
(2) Section
45 of the Act is amended by adding the following after
subsection (4):
|
|
Persons who may be recognized as experts
|
(5) In subsections (3) and (3.1),
"expert'' includes any of the following persons whom the Tribunal
recognizes 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.
|
|
Offence |
(6) Every person commits an
offence who
|
|
|
(a) uses information
disclosed to the person by the Tribunal under subsection (3) or
(3.1) for any purpose other than the purpose for which the
information was disclosed under that subsection; or
|
|
|
(b) contravenes any
condition imposed by the Tribunal under subsection (3) or (3.1).
|
|
Punishment |
(7) Every person who commits an
offence under subsection (6) is 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.
|
|
Consent |
(8) No proceedings for an offence
under subsection (6) shall be instituted without the consent in
writing of the Attorney General of Canada.
|
|
Bar from appearing before Tribunal
|
(9) In addition to any punishment
imposed under subsection (7), counsel or an expert who commits an
offence under subsection (6) may be barred by the Tribunal from
any further appearance before it in respect of any proceedings
before the Tribunal for the period that the Tribunal considers
appropriate.
|
|
1994, c. 13, para. 7(1)(a)
|
60. Section
49 of the Act is replaced by the following:
|
|
Other information
|
49.
If
|
|
|
(a) information or
material given or elicited in the course of any proceedings before
the Tribunal is, in the opinion of the Tribunal, in its nature
confidential, or
|
|
|
(b) the Deputy Minister of
National Revenue indicates to the Tribunal in writing that
subsection 84(1) of the Special Import Measures Act applies
to information or material filed with the Secretary under
paragraph 37(a) or 38(3)(b) or subsection 76.03(9)
of that Act,
|
|
|
the information or material shall
not knowingly be disclosed by any member or person employed in the
public service of Canada who comes into possession of the
information in any manner that is calculated or likely to make it
available for the use of any business competitor or rival of any
person to whose business or affairs the information relates.
|
|
Replacement of "Chairman'' with
"Chairperson'' |
61. The
English version of the Act is amended by replacing the word
"Chairman'' with the word "Chairperson'' in the following
provisions:
|
|
|
(a) section 7; |
|
|
(b) subsection 8(2); |
|
|
(c) subsections 9(2) and
(3); |
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(d) subsection 14(2); |
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(e) subsection 30.11(3); |
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(f) subsection 33(1); and |
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(g) subsections 59(1) and
(2).
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TRANSITIONAL PROVISIONS |
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Definitions |
62. The
definitions in this section apply in this section and sections 63
and 64.
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"commencement day''
«date de référence»
|
"commencement day'' means the day on which this section comes into
force.
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"new Canadian
International
Trade Tribunal Act''
« nouvelle Loi sur le Tribunal canadien du commerce extérieur
»
|
"new
Canadian International Trade Tribunal Act'' means the
Canadian International Trade Tribunal Act as it read on the
commencement day.
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"new rules and regulations''
« nouveaux textes d'application » |
"new rules
and regulations'' means the rules and regulations made under the
new Canadian International Trade Tribunal Act and the
regulations made under the new Special Import Measures Act.
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"new Special Import
Measures Act''
« nouvelle Loi sur les mesures spéciales d'importation »
|
"new
Special Import Measures Act'' means the Special Import
Measures Act as it read on the commencement day.
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"old Canadian International Trade Tribunal Act''
« ancienne Loi sur le Tribunal
canadien
du commerce extérieur
» |
"old
Canadian International Trade Tribunal Act'' means the
Canadian International Trade Tribunal Act as it read on the
day before the commencement day.
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|
"old rules and regulations''
« anciens textes d'application » |
"old rules
and regulations'' means the rules and regulations made under the
old Canadian International Trade Tribunal Act and the
regulations made under the old Special Import Measures Act.
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"old Special Import Measures
Act''
« ancienne Loi sur les mesures spéciales d'importation »
|
"old
Special Import Measures Act'' means the Special Import
Measures Act as it read on the day before the commencement
day.
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"order or finding''
« ordonnance ou conclusions » |
"order or
finding''
|
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|
(a) in the case of an
order or finding made before the commencement day, has the same
meaning as in subsection 2(1) of the old Special Import
Measures Act; and
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(b) in the case of an
order or finding made on or after the commencement day, has the
same meaning as in subsection 2(1) of the new Special Import
Measures Act. |
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Disposition of notified complaints
|
63. (1)
Subject to this section, if, before the commencement day, notice
of a complaint respecting the dumping or subsidizing of goods that
is properly documented, within the meaning assigned to that
expression by subsection 2(1) of the old Special Import
Measures Act, has been given under paragraph 32(1)(a)
of that Act, any proceeding, process or action in respect of the
goods shall be continued and disposed of in accordance with that
Act, the old Canadian International Trade Tribunal Act and
the old rules and regulations.
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Proceedings re goods subject to
order made after commencement day
|
(2) If the
Canadian International Trade Tribunal makes an order or finding
under subsection 43(1) of the Special Import Measures Act
on or after the commencement day with respect to goods that are
the subject of a complaint referred to in subsection (1), any
subsequent proceeding, process or action in relation to any of
those goods other than the following shall be disposed of in
accordance with the new Special Import Measures Act, the
new Canadian International Trade Tribunal Act and the new
rules and regulations:
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(a) a judicial review or
dispute settlement under Part I.1 or II of the Special Import
Measures Act in relation to that order or finding and any
proceeding, process or action in relation to the judicial review
or dispute settlement;
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(b) a proceeding, process
or action in relation to any of those goods that were released
before the commencement day;
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(c) a proceeding, process
or action in relation to any of those goods that were released on
or after the commencement day but on or before the day on which
the Tribunal made the order or finding; or
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(d) a proceeding, process
or action under section 45 of the Special Import Measures Act
in relation to that order or finding. |
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Effect of order or finding
|
(3) For
greater certainty, any order or finding that was made before the
commencement day and is in effect on that day shall, for the
purposes of sections 3 to 6 of the new Special Import Measures
Act, have the same force and effect as if it were made under
that Act.
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Review in accordance with old Acts, rules and regulations
|
(4) If
notice of a review under subsection 76(2) of the old Special
Import Measures Act has been given by the Canadian
International Trade Tribunal before the commencement day, the
review shall be disposed of in accordance with that Act, the old
Canadian International Trade Tribunal Act and the old rules
and regulations.
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Review in accordance with new Acts, rules and regulations
|
(5) If
notice of an interim review under section 76.01 of the new
Special Import Measures Act, or an expiry review under section
76.03 of that Act, of an order or finding that was made before the
commencement day and is in effect on that day has been given by
the Canadian International Trade Tribunal on or after the
commencement day, the review shall be disposed of in accordance
with that Act, the new Canadian International Trade Tribunal
Act and the new rules and regulations.
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New Act does not justify review
|
(6) For the
purpose of subsection 76.01(3) of the new Special Import
Measures Act, the Canadian International Trade Tribunal may
not be satisfied that an interim review of an order or finding
that was made before the commencement day is warranted by reason
only of the coming into force of that Act, the new Canadian
International Trade Tribunal Act or the new rules and
regulations.
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Determination of normal value,
etc., when undertaking |
(7) Any
determination, on or after the commencement day, of a normal
value, export price, amount of subsidy or margin of dumping in
relation to any goods that are subject to an undertaking accepted
before the commencement day shall be made in accordance with the
new Special Import Measures Act.
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Determination of normal value,
etc. |
(8) A
normal value, export price, amount of subsidy or margin of dumping
determined in relation to goods under the old Special Import
Measures Act is, for the purposes of goods released on or
after the commencement day, other than goods to which paragraph
(2)(c) applies, deemed to have been made under the new
Special Import Measures Act.
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Re-determination of normal value,
etc.
|
(9) A
re-determination of a normal value, export price, amount of
subsidy or margin of dumping referred to in subsection (8) shall
be made in accordance with the new Special Import Measures Act.
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Application to goods from a NAFTA country
|
64. The new
Special Import Measures Act, the new Canadian
International Trade Tribunal Act and the new rules and
regulations apply to goods of a NAFTA country, within the meaning
assigned to that expression by subsection 2(1) of the Special
Import Measures Act.
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COMING INTO FORCE |
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Coming into force
|
65. This Act or any of its provisions, or any
provision of an Act as enacted or amended by this Act, comes into
force on a day or days to be fixed by order of the Governor in
Council.
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