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UNOFFICIAL OFFICE CONSOLIDATION FOR OFFICE USE ONLY NOT SANCTIONED BY Anti-dumping and Countervailing Division
CHAPTER S-15 An Act respecting the imposition of anti-dumping SHORT TITLE Short title
INTERPRETATION Definitions
"amount of subsidy" "amount of subsidy", in relation to any goods, means the amount determined in accordance with Section 30.4; "arbitration body" "arbitration body" means the arbitration body referred to in Article 8.5 of the Subsidies Agreement; "Canadian Secretary" "Canadian Secretary" means
"Committee" "Committee" means the Committee on Subsidies and Countervailing Measures established by Article 24 of the Subsidies Agreement; "country of export" "country of export" means, in the case of dumped goods, the country from which the goods were shipped directly to Canada or, if the goods have not been shipped directly to Canada, the country from which the goods would be shipped directly to Canada under normal conditions of trade and, in the case of subsidized goods, the country in which the subsidy originated; "Deputy Minister" "Deputy Minister" means the Deputy Minister of National Revenue; "agent..." "designated officer" means any officer, or any officer within a class of officers, designated pursuant to Section 59 of the Customs Act; "domestic industry" "domestic industry" means, other than for the purposes of section 31 and subject to subsection (1.1), the domestic producers as a whole of the like goods or those domestic producers whose collective production of the like goods constitutes a major proportion of the total domestic production of the like goods except that, where a domestic producer is related to an exporter or importer of dumped or subsidized goods, or is an importer of such goods, "domestic industry" may be interpreted as meaning the rest of those domestic producers; "dumped" "dumped", in relation to any goods, means that the normal value of the goods exceeds the export price thereof; "duty" "duty" means any duty, including provisional duty, imposed by virtue of this Act; "enterprise" "enterprise" includes a group of enterprises, an industry and a group of industries; "export price" "export price" means export price determined in accordance with sections 24 to 30; "export subsidy" "export subsidy" means a subsidy or portion of a subsidy that is contingent, in whole or in part, on export performance; "Free Trade Agreement" "Free Trade Agreement" has the meaning assigned to the term "Agreement" by section 2 of the Canada-United States Free Trade Agreement Implementation Act; "government" "government", in relation to any country other than Canada, means the government of that country and includes
"government of a NAFTA country" "government of a NAFTA country" means such department, agency or other body of the government of a NAFTA country as is prescribed; "importer" "importer", in relation to any goods, means the person who is in reality the importer of the goods; "injury" "injury" means material injury to a domestic industry; "insignificant" "insignificant" means,
"like goods" "like goods", in relation to any other goods, means
"margin of dumping" "margin of dumping", in relation to any goods, means, subject to sections 30.1, 30.2 and 30.3, the amount by which the normal value of the goods exceeds the export price of the goods; "member" [Repealed, R.S., 1985, c. 47 (4th Supp.), s. 52] "Minister" "Minister" means the Minister of National Revenue; "NAFTA country" "NAFTA country" has the meaning assigned that expression by subsection 2 (1) of the North American Free Trade Agreement Implementation Act, but does not include Canada; "negligible" "negligible" means, in respect of the volume of dumped goods of a country,
except that
the volume of dumped goods of any of those countries is not negligible; "non-actionable subsidy" "non-actionable subsidy" means
that meets the prescribed criteria, or
"normal value" "normal value" means normal value determined in accordance with sections 15 to 23 and 29 and 30; "North American Free Trade Agreement" "North American Free Trade Agreement" has the meaning assigned to the word "Agreement" by subsection 2(1) of the North American Free Trade Agreement Implementation Act; "order or finding" "order or finding", in relation to the Tribunal,
that has not been rescinded pursuant to section 76 or 76.1 but, where the order or finding has been amended one or more times pursuant to either of those sections, as last so amended; "person" "prescribed" "prohibited subsidy" "prohibited subsidy" means a subsidy that is prohibited by virtue of being
"properly documented" "properly documented", in relation to a complaint respecting the dumping or subsidizing of goods, means that
(i) alleges that the goods have been or are being dumped or subsidized, specifies the goods and alleges that the dumping or subsidizing has caused injury or retardation or is threatening to cause injury, (ii) states in reasonable detail the facts on which the allegations referred to in subparagraph (i) are based, and (iii) makes such other representations as the complainant deems relevant to the complaint, and
"provisional duty" "provisional duty" means duty imposed under section 8; "regular member" [Repealed, R.S., 1985, c. 47 (4th Supp.), s. 52] "release" "release", in respect of goods, means to authorize the removal of the goods from a customs office, sufferance warehouse, bonded warehouse or duty free shop for use in Canada; "retardation" "retardation" means material retardation of the establishment of a domestic industry; "sale" "sale" includes leasing and renting, an agreement to sell, lease or rent and an irrevocable tender; "Secretary" "Secretary" means the Secretary of the Tribunal; "Subsidies Agreement" "Subsidies Agreement" means the Agreement on Subsidies and Countervailing Measures, being part of Annex 1A to the WTO Agreement; "subsidized goods" "subsidized goods" means
"subsidy" "subsidy" means
"Tribunal" "Tribunal" means the Canadian International Trade Tribunal established by subsection 3(1) of the Canadian International Trade Tribunal Act; "undertaking" or "undertakings" "undertaking" or "undertakings" means an undertaking or undertakings with respect to goods that are the subject of a dumping or subsidizing investigation under this Act given in writing to the Deputy Minister in any of the following circumstances:
in the manner specified in its undertaking; "United States Government" "United States Government" means such department, agency or other body of the Federal Government of the United States as is prescribed. "WTO Agreement" "WTO Agreement" has the meaning assigned to the term "Agreement" by subsection 2(1) of the World Trade Organization Agreement Implementation Act. When domestic industry based on regional markets (1.1) In exceptional circumstances, the territory of Canada may, for the production of any goods, be divided into two or more regional markets and the domestic producers of like goods in any of those markets may be considered to be a separate domestic industry where
Producers related to exporters or importers (1.2) For the purposes of the definition "domestic industry" in subsection (1), a domestic producer is related to an exporter or an importer of dumped or subsidized goods where
and there are grounds to believe that the producer behaves differently towards the exporter or importer than does a non-related producer. Where there is deemed to be control (1.3) For the purposes of subsection (1.2), a person is deemed to control another person where the first person is legally or operationally in a position to exercise restraint or direction over the other person. When domestic support measure ceases to be a non-actionable subsidy (1.4) A domestic support measure referred to in paragraph (c) of the definition "non-actionable subsidy" in subsection (1) ceases to be a non-actionable subsidy on the day on which the implementation period in respect of the Agreement on Agriculture referred to in that paragraph, as defined in Article 1 of that Agreement for the purposes of Article 13 of that Agreement, expires. Threat of injury (1.5) For the purposes of this Act, the dumping or subsidizing of goods shall not be found to be threatening to cause injury or to cause a threat of injury unless the circumstances in which the dumping or subsidizing of goods would cause injury are clearly foreseen and imminent. Financial contribution (1.6) For the purposes of paragraph (a) of the definition "subsidy" in subsection (1), there is a financial contribution by a government of a country other than Canada where
Definition of "associated persons" (2) For the purposes of this Act, the following persons are "associated persons" or persons associated with each other, namely,
Persons related to each other (3) For the purposes of subsection (2), persons are related to each other if
Persons dealing at arm's length (4) For the purposes of paragraph (2)(b), it is a question of fact whether persons not related to each other were at a particular time dealing with each other at arm's length. (5) Repealed [Bill C-57] Agreement affecting countervailing duty (6) Notwithstanding the definition "amount of subsidy", where, in relation to any subsidized goods, the manufacturer, producer, vendor or exporter thereof or the government of a country other than Canada, undertakes, directly or indirectly in any manner whatever, to indemnify, pay on behalf of or reimburse the importer or purchaser in Canada of the goods for all or any part of the countervailing duty that may be levied on the goods, the amount of subsidy on the goods is, for the purposes of this Act, the amount of subsidy determined and adjusted in such manner as is provided under that definition plus the amount of the indemnity, payment or reimbursement. Interpretation of provisions that apply to both dumped and subsidized goods (7) Where, by its terms, any provision of this Act applies to both dumped and subsidized goods, the application of the provision
Criteria and conditions for non-specificity (7.1) A subsidy is not specific where the criteria or conditions governing eligibility for, and the amount of, the subsidy are
When subsidy is specific (7.2) A subsidy is specific where it is
Determination of specificity by Deputy Minister (7.3) Notwithstanding that a subsidy is not limited in the manner referred to in paragraph (7.2)(a), the Deputy Minister may determine the subsidy to be specific having regard as to whether
Additional considerations (7.4) Where any of the factors listed in paragraphs (7.3)(a) to (d) is present, the Deputy Minister shall consider whether the presence is due to
and where the Deputy Minister is of the opinion that the presence is due to one of the reasons set out in paragraph (a) or (b), the Deputy Minister may find the subsidy not to be specific notwithstanding that, were it not for that opinion, the Deputy Minister would have found the subsidy to be specific. Law relating to the customs (8) For greater certainty, this Act shall be considered, for the purposes of the Customs Act, to be a law relating to the customs. Powers, duties and functions of Deputy Minister (9) Any power, duty or function of the Deputy Minister under this Act may be exercised or performed by any person authorized by the Deputy Minister to do so and, if so exercised or performed, shall be deemed to have been exercised or performed by the Deputy Minister.
PART I SPECIAL IMPORT MEASURES Anti-dumping and Countervailing Duty
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 or is threatening to cause injury, a duty as follows:
Duty where undertaking violated (2) Where 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 violated, there shall be levied, collected and paid on all of those goods that were released on or after the day on which the undertaking was violated, a duty as provided under paragraphs (1)(a) and (b). Other cases 4. (1) Subject to Section 7.1, there shall be levied, collected and paid a duty as set out in Subsections (3) and (4) on all dumped and subsidized goods imported into Canada
Where undertaking subsequently terminated (2) There shall be levied, collected and paid a duty as set out in Subsections (3) and (4) on all dumped and subsidized goods imported into Canada
and ending on the day on which the Tribunal makes the order or finding referred to in paragraph (b). Amount of duty (3) The duty applicable to goods under subsection (1) or (2) is:
Limitation (4) The duty referred to in Subsection (3) shall not exceed the duty, if any, paid or payable in respect of the goods under Section 8. Anti-dumping duty 5. There shall be levied, collected and paid on all dumped goods imported into Canada:
and in order to prevent the recurrence of the injury, it appears necessary to the Tribunal that duty be assessed on the imported goods, and
an anti-dumping duty in an amount equal to the margin of dumping of the imported goods. Countervailing duty 6. Where any subsidy on subsidized goods is a prohibited subsidy, there shall be levied, collected and paid on all such subsidized goods imported into Canada:
a countervailing duty in an amount equal to such of the amount of the subsidy on the imported goods as is a prohibited subsidy. Governor in Council may impose countervailing duty by order 7. (1) The Governor in council may order an investigation to determine the amount of subsidy an any subsidized goods that are the product of a country specified in the order, and where
the Governor in Council may, on the recommendation of the Minister of Finance, by order impose a countervailing duty on any subsidized goods that are the product of that country and that are of the same description as the goods in respect of which the Deputy Minister has determined the amount of subsidy and, where a countervailing duty is so imposed, there shall, subject to Subsection (2), be levied, collected and paid on all such subsidized goods imported into Canada a countervailing duty in the amount specified in the order in respect of the goods. Duty not to exceed amount of subsidy (2) Where subsidized goods on which a countervailing duty has been imposed pursuant to Subsection (1) are imported into Canada and the amount of subsidy on the imported goods is less than the amount of the duty so imposed, there shall be levied, collected and paid on the goods pursuant to this Section a countervailing duty only in the amount of subsidy on the goods. Non-application 7.1 Sections 3 and 4 do not apply in respect of goods in respect of which an undertaking has been accepted and not terminated. Provisional Duty Imposition of provisional duty 8. (1) Where the Deputy Minister makes a preliminary determination of dumping or subsidizing in an investigation under this Act and considers that the imposition of provisional duty is necessary to prevent injury, retardation or threat of injury, the importer of dumped or subsidized goods that are of the same description as any goods to which the preliminary determination applies and that are released during the period commencing on the day the preliminary determination is made and ending on the earlier of:
shall, on demand of the Deputy Minister for payment of provisional duty on the imported goods,
at the option of the importer. Idem (1.1) Where an order or finding of the Tribunal under subsection 43(1), 76(4.1) respecting a review pursuant to subsection 76(2.1), 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 commencing on the day on which the preliminary determination 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,
Return of provisional duty (2) Any provisional duty paid or security posted pursuant to Subsection (1) or (1.1) by or on behalf of an importer in respect of the importation of dumped or subsidized goods of any description shall
Interest (3) Where any provisional duty is returned to an importer pursuant to Subsection (2), the importer shall be paid interest thereon at the prescribed rate or at a rate determined in the prescribed manner in respect of each month or fraction of a month between the time the duty was paid and the time it is returned. Amounts under ten dollars (4) Where interest owing under this section is less than ten dollars, no interest shall be paid. Suspension of collection (5) Where the Deputy Minister accepts an undertaking with respect to dumped or subsidized goods, the collection of provisional duties on any dumped or subsidized goods, as the case may be, that are of the same description as any goods to which the preliminary determination applies is suspended for the period during which the undertaking is in force. Resumption of collection (6) Where the Deputy Minister terminates an undertaking pursuant to 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 applied and that are released during the period beginning on the day on which the undertaking was terminated and ending on the earlier of:
shall, on demand of the Deputy Minister for payment of provisional duty on the imported goods,
at the option of the importer. Payment of Duty During Court Proceedings Duty ceases where order or finding set aside by court 9. (1) Where proceedings are commenced by an application for judicial review under the Federal Court Act, or an application under Section 96.1 of this Act, to review and set aside an order or finding of the Tribunal pursuant to which duty is leviable, collectable and payable (in this Section referred to as "payable") under this Act on goods imported into Canada that are of the same description as any goods to which the order or finding applies, duty continues, notwithstanding any order or decision that may be made or given in the course of the proceedings, to be so payable pursuant to the order or finding on imported goods of that description during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the order or finding being set aside or being set aside in relation to particular goods, in which case:
Definition of "proceedings" (2) In Subsection (1), "proceedings", in relation to an application made to the Federal Court of Appeal, includes proceedings on any appeal from any decision of that Court on the application. Duty ceases where order or finding rescinded pursuant to review 9.01 (1) Where a review is requested under Part I.1 of an order or finding of the Tribunal pursuant to which duty is leviable, collectable and payable (in this Section referred to as "payable") under this Act on goods of a NAFTA country imported into Canada that are of the same description as any goods to which the order or finding applies, duty continues, notwithstanding any order or decision that may be made or given in the course of proceedings under that Part, to be so payable pursuant to the order or finding on imported goods of that description during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the order or finding being rescinded or being rescinded in relation to particular goods, in which case:
Suspension of S. 9.1 (2) The operation of Section 9.1 is suspended during the period in which subsection (1) is in force. Duty ceases where order or finding rescinded pursuant to review 9.1 Where a review is requested under Part II of an order or finding of the Tribunal pursuant to which duty is leviable, collectable and payable (in this Section referred to as "payable") under this Act on goods of the United States imported into Canada that are of the same description as any goods to which the order or finding applies, duty continues, notwithstanding any order or decision that may be made or given in the course of proceedings under that Part, to be so payable pursuant to the order or finding on imported goods of that description during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the order or finding being rescinded or being rescinded in relation to particular goods, in which case:
Duty ceases where final determination set aside by court 9.2 (1) Where duty is leviable, collectable and payable (in this Section referred to as "payable") under this Act pursuant to an order or finding of the Tribunal on goods imported into Canada and proceedings are commenced in the Federal court of Appeal by an application under Section 96.1 to review and set aside the final determination of the Deputy Minister under paragraph 41(1)(a) on which the order or finding is based, duty continues, notwithstanding any order or decision that may be made or given in the course of the proceedings, to be so payable pursuant to the order or finding on imported goods of the same description as those goods during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the final determination being set aside or being set aside in relation to particular goods, or the Deputy Minister recommencing the investigation and terminating it under paragraph 41(1)(b), in which case:
Definition of "proceedings" (2) In Subsection (1), "proceedings", in relation to an application made to the Federal Court of Appeal, includes proceedings on any appeal from any decision of that Court on the application. Duty ceases where investigation terminated pursuant to review 9.21 (1) Where duty is leviable, collectable and payable (in this Section referred to as "payable") under this Act pursuant to an order or finding of the Tribunal on goods of a NAFTA country imported into Canada and a review is requested under Part I.1 of the final determination of the Deputy Minister under paragraph 41(1)(a) on which the order or finding is based, duty continues, notwithstanding any order or decision that may be made or given in the course of proceedings under that Part, to be so payable pursuant to the order or finding on imported goods of the same description as those goods during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the Deputy Minister recommencing the investigation and terminating it under paragraph 41(1)(b), in which case:
Suspension of S. 9.3 (2) The operation of Section 9.3 is suspended during the period in which Subsection (1) is in force. Duty ceases where investigation terminated pursuant to review 9.3 Where duty is leviable, collectable and payable (in this Section referred to as "payable") under this Act pursuant to an order or finding of the Tribunal on goods of the United States imported into Canada and a review is requested under Part II of the final determination of the Deputy Minister under paragraph 41(1)(a) on which the order or finding is based, duty continues, notwithstanding any order or decision that may be made or given in the course of proceedings under that Part, to be so payable pursuant to the order or finding on imported goods of the same description as those goods during the course of the proceedings and after they are finally disposed of, unless the final disposition of the proceedings results in the Deputy Minister recommencing the investigation and terminating it under paragraph 41(1)(b), in which case:
Duty reimposed on referral back 9.4 (1) Where an order or finding of the Tribunal under Subsection 76(4) 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. Cessation of duty (2) Duty that is payable under Subsection (1) continues to be so payable during the course of the proceedings of the Tribunal on the referral back and thereafter, unless the order or finding of the Tribunal on the referral back is:
Where Tribunal makes new order or finding (3) Where the Tribunal rescinds a rescinding order or finding and makes a new or other order or finding as described in paragraph (2)(b), the new or other order or finding shall be deemed, for the purposes of this Act, to have been made on the day on which the order or finding so rescinded was made. General Rules Relating to Payment of Duty Where both anti-dumping duty and countervailing duty payable on goods 10. Where both an anti-dumping duty and a countervailing duty are required by this Act to be levied, collected and paid on any goods imported into Canada and all or any portion of the margin of dumping of the goods is' in the opinion of the Deputy Minister, attributable to an export subsidy in respect of which a countervailing duty is required by any of Sections 3, 4, 6 and 7 to be levied, collected and paid, the anti-dumping duty is, notwithstanding Sections 3 to 5, leviable, collectable and payable under this Act in respect of the goods only as follows:
When duty payable 11. (1) The importer in Canada of any goods imported into Canada in respect of which duty, other than provisional duty, is payable shall, on demand of the Deputy Minister and notwithstanding any security posted pursuant to paragraph 8(1)(d) or Subsection 13.2(4), pay or cause to be paid all such duties on the goods. (2) Any person who fails to pay any amount owing under Subsection (1) shall pay, in addition to the amount owing, interest at the prescribed rate or at a rate determined in the prescribed manner in respect of each month or fraction of a month commencing 30 days after the Deputy Minister makes a demand under Subsection (1) during which any amount remains outstanding, calculated on the amount outstanding. Amounts under ten dollars (3) Where interest owing under this Section is less than ten dollars, no interest shall be paid. Return of duty where order or finding set aside or rescinded 12. (1) Where, pursuant to an application for judicial review under the Federal Court Act or Section 96.1 of this Act or a review under Part I.1 or II of this Act, an order or finding described in any of Sections 3 to 6 is set aside or rescinded or is set aside or rescinded in relation to particular goods, and where all proceedings under this Act respecting the dumping or subsidizing of all or any of the goods to which the order or finding applies or all or any of those particular goods, as the case may be, are subsequently terminated as described in Section 47, any duty paid under this Act pursuant to the order or finding by or on behalf of an importer on imported goods that are of the same description as goods with respect to which such proceedings are so terminated shall be returned to the importer forthwith after the proceedings are so terminated. Return of part of duty where order or finding set aside or rescinded (1.1) Where, pursuant to an application under the Federal Court Act or Section 96.1 of this Act or a review under Part I.1 or II of this Act, an order or finding described in any of Sections 3 to 6 is set aside or rescinded or is set aside or rescinded in relation to particular goods and another such order or finding is made with respect to all or any of the goods to which the order or finding applies or all or any of those particular goods, as the case may be, any duty paid under this Act pursuant to the first_mentioned order or finding by or on behalf of an importer shall, except to the extent of any duty payable by the importer as a consequence of the other order or finding, be returned to the importer forthwith after the other order or finding is made. Return of duty (2) Where the 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 Minister shall return that amount to the importer or owner of the goods by or on whose behalf it was paid. Idem (3) Where, in relation to the importation of any goods and as a consequence of the operation of any provision of this Act, duty is paid or security posted by or on behalf of a person who, at the time the duty is paid or security posted, is considered by the Deputy Minister to be the importer in Canada of the goods and it is subsequently ruled by the Tribunal that the person was not the importer in Canada of the goods, the duty so paid or security so posted shall be returned to the person forthwith after the Tribunal's ruling is made. Where Tribunal makes new order or finding 13. Where, pursuant to Subsection 91(3), the Tribunal rescinds an order or finding with respect to goods and makes another order or finding with respect to the goods:
Interest on amount of duty returned 13.1 (1) Any person to whom any amount of duty paid is returned under Section 9.4, 12 or 13 shall be paid, in addition to the amount returned, interest thereon at the prescribed rate or at a rate determined in the prescribed manner in respect of each month or fraction of a month between the time the duty was paid and the time the amount is returned. Amounts under ten dollars (2) Where interest owing under this Section is less than ten dollars, no interest shall be paid. Expedited Review of Normal Value, Export Price or Amount of Subsidy Request for review 13.2 (1) An exporter to Canada of any goods to which an order or finding referred to in Section 3 applies may request that the Deputy Minister review the normal value, export price or amount of subsidy in relation to those goods where:
Form of request (2) A request under Subsection (1) shall be made in the prescribed manner and form and shall contain the prescribed information. Review (3) Where the Deputy Minister receives a request under Subsection (1), the Deputy Minister shall initiate a review, on an expedited basis, of the normal value, export price or amount of subsidy, as the case may be, and shall, on completion of the review, either confirm or amend the value, price or amount. Posting of security (4) An importer of goods that are of the same description as any goods to which a review under Subsection (3) applies and that are released during the period beginning on the day the review is initiated and ending on the day on which the Deputy Minister completes the review shall, on demand of the Deputy Minister for payment of duty, post, or cause to be posted, security in the prescribed manner and form and in an amount, or of a value, equal to the margin of dumping of, or amount of subsidy on, the goods. Confirmation, etc., deemed to be a determination (5) A confirmation or amendment of a normal value, export price or amount of subsidy under Subsection (3) shall, for the purposes of Subsection 56(1), be deemed to be a determination of a normal value, export price or amount of subsidy, as the case may be, by a customs officer referred to in that Subsection. Exemption from Application of Act Exemption of goods from application of Act 14. The Governor in Council may, on the recommendation of the Minister of Finance, make regulations exempting any goods or class of goods from the application of this Act.
NORMAL VALUE, EXPORT PRICE, MARGIN OF DUMPING Normal Value Determination of normal value of goods 15. Subject to Sections 19 and 20, where goods are sold to an importer in Canada, the normal value of the goods is the price of like goods when they are sold by the exporter of the first-mentioned goods:
as the Deputy Minister specifies for those goods or for goods of the class to which those goods belong, and
adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, in taxation and other differences relating to price comparability between the goods sold to the importer and the like goods sold by the exporter. Rules applied in determining normal value 16. (1) In the application of Section 15 in the case of any goods:
there was not, in the opinion of the Deputy Minister, such a number of sales of like goods made by the exporter as to permit a proper comparison with the sale of the goods to the importer in Canada, but there were sales of like goods for use in the country of export by other vendors, such one or more of any of those vendors that the Deputy Minister may specify shall be deemed to be the exporter for the purpose of determining the normal value of the goods sold to the importer in Canada;
Idem (2) In determining the normal value of any goods under Section 15, there shall not be taken into account:
Meaning of "cost" (3) For the purposes of paragraph (2)(b) , "cost" means, in relation to goods, the cost of production of the goods and the administrative, selling and all other costs with respect to the goods. Price of like goods 17. In determining the normal value of any goods under Section 15, the price of like goods when sold by the exporter to purchasers during the period referred to in paragraph 15 (d) in a sale or sales that comply with the terms and conditions referred to in Section 15 or with those terms and conditions that apply by virtue of Subsection 16(1) is, at the option of the Deputy Minister in any case or class of cases, 'except a case or class of cases to which Subsection 30.2(3) applies,
Goods deemed to be like goods 18. Where goods imported into Canada and goods sold for use in the country of export are like goods except only that the goods sold for such use have applied to them a trademark, as defined in the Trademarks Act, that is not applied to the goods imported into Canada, and goods like the goods imported are not sold for use in the country of export, the goods imported and the goods sold for such use shall be deemed to be like goods for the purposes of this section if, in the opinion of the Deputy Minister:
Where normal value cannot be determined under Section 15 19. Subject to Section 20, where the normal value of any goods cannot be determined under Section 15 by reason that there was not, in the opinion of the Deputy Minister, such a number of sales of like goods that comply with all the terms and conditions referred to in that section or that are applicable by virtue of Subsection 16(1) as to permit a proper comparison with the sale of the goods to the importer, the normal value of the goods shall be determined, at the option of the Deputy Minister in any case or class of cases, as:
Normal value where export monopoly 20. Where goods sold to an importer in Canada are shipped directly to Canada from a country where, in the opinion of the Deputy Minister:
the normal value of the goods is
(i) the price of the like goods at the time of the sale of the goods to the importer in Canada, adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, in taxation and other differences relating to price comparability between the goods sold to the importer in Canada and the like goods sold by producers in the country other than Canada designated by the Deputy Minister for use in that country, or
whichever of the price or aggregate the Deputy Minister designates for any case or class of cases; or
such price to be adjusted in the prescribed manner and circumstances to reflect the differences in terms and conditions of sale, in taxation and other differences relating to price comparability between the goods sold to the importer and the imported like sale by the importer thereof. Credit sales of like goods 21. (1) Where any sale of like goods referred to in Section 17, paragraph 19(a), subparagraph 20(c)(i) or paragraph 20(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:
is divided by
so as to arrive at a unit price for the like goods sold. Where agreement relates to several goods (2) For the purpose of paragraph (1)(a), where an agreement with respect to the sale of like goods also relates to the sale of other goods, only such portion of the present value of any payment of principal or interest, or of principal and interest, provided for by the agreement as is reasonably attributable to the like goods shall be included in determining the aggregate referred to in that paragraph. Purchasers to be regarded as one 22. For the purpose of Section 15, where two or more purchasers are persons associated with each other during the period that, by reason of the operation of paragraph 15(d), is relevant for the purpose of that Section, those purchasers shall be regarded as a single purchaser. 1984, C. 25, S. 22. Where exporter provides benefit on resale in country of export 23. Where, by reason of any provision of Sections 17, 19 or 20, the normal value of goods sold to an importer in Canada is required to be determined by reference to the price of like goods sold by the exporter of the first mentioned goods and the exporter agrees with persons who purchase the like goods from him in the country of export of the goods sold to the importer in Canada to provide, directly or indirectly, to persons who purchase the like goods in the country of export:
any benefit by way of rebate, service, other goods or otherwise, the normal value for the purposes of this Act of the goods sold to the importer in Canada is the normal value as determined pursuant to that provision minus an amount to reflect the value of the benefit to persons who purchase the like goods on resale. Costs during start-up period 23.1 Where, in calculating the normal value of any goods, the investigation period includes a start-up period of production, the cost of production of the goods and the administrative, selling and all other costs with respect to the goods for that start-up period of production shall be determined in the prescribed manner.
Export Price Determination of export price of goods 24. The export price of goods sold to an importer in Canada, notwithstanding any invoice or affidavit to the contrary, is an amount equal to the lesser of:
Special rules to determine export price 25. (1) Where, in respect of goods sold to an importer in Canada:
the export price of the goods is
(iii) the costs, charges and expenses incurred by the exporter importer or any other person in preparing the goods for shipment to Canada that are additional to those costs, charges and expenses generally incurred on sales of like goods for use in the country of export, and (iv) all other costs, charges and expenses incurred by the exporter, importer or any other person resulting from the exportation of the imported goods, or arising from their shipment, from the place described in paragraph 15(e) or the place substituted therefor by virtue of paragraph 16(1)(a),
No deduction (2) No deduction for duties imposed by virtue of this Act may be made under
where, in the opinion of the Deputy Minister, the export price determined under either of those paragraphs without making such a deduction is equal to or greater than the normal value of the goods. Export price where agreement affects anti-dumping duty 26. Where the manufacturer, producer, vendor or exporter of goods sold to an importer in Canada undertakes, directly or indirectly in any manner whatever, to indemnify, pay on behalf of or reimburse the importer or purchaser in Canada of the goods for all or any part of the anti-dumping duty that may be levied on the goods:
Credit sales of goods sold to importer in Canada 27. (1) For the purposes of Sections 24 and 25, where any sale of goods referred to in those Sections was made on credit terms other than cash discounts, the sale price for the goods is deemed to be an amount equal to the quotient obtained when:
is divided by
so as to arrive at a unit price for the goods sold. Where agreement relates to several goods (2) For the purpose of paragraph (1)(a), where an agreement with respect to the sale of goods referred to in Section 24 or 25 also relates to the sale of other goods, only such portion of the present value of any payment of principal or interest, or of principal and interest, provided for by the agreement as is reasonably attributable to the goods referred to in Section 24 or 25, as the case may be, shall be included in determining the aggregate referred to in that paragraph. Where exporter provides benefit on resale in Canada 28. For the purposes of Sections 24 and 25, where the exporter of goods sold to an importer in Canada agrees with the importer to provide, directly or indirectly, to persons who purchase the goods in Canada:
any benefit by way of rebate, service, other goods or otherwise, the export price of the goods is the export price as otherwise determined under this Act, after subtracting therefrom any amount that is required to be subtracted under Section 26, minus an amount to reflect the value of the benefit to persons who purchase the goods on resale. Normal Value and Export Price Normal value and export price where information not available 29. (1) Where, in the opinion of the Deputy Minister, sufficient information has not been furnished or is not available to enable the determination of normal value or export price as provided in Sections 15 to 28, the normal value or export price, as the case may be, shall be determined in such manner as the Minister specifies. Consignment shipments (2) Where goods are or are to be shipped to Canada on consignment and there is no known purchaser in Canada of the goods, the normal value and export price of the goods shall be determined in such manner as the Minister specifies. Normal value and export price where goods exported to Canada through another country 30. (1) Where goods are exported to Canada from one country but pass in transit through another country, the normal value and export price of the goods shall, subject to such terms and conditions as to shipment, documentation, warehousing, transshipment or the like as are prescribed, be determined as if the goods were shipped directly to Canada from the first-mentioned country. Normal value and export price where goods shipped indirectly to Canada (2) Where any goods:
the normal value and export price of the goods shall, notwithstanding any other provision of this Act, be determined as if the goods were or were to be shipped directly to Canada from the country of origin. Margin of Dumping 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 41.1(2)(a), the margin of dumping in relation to goods from a particular country is the weighted average of the margins of dumping determined in accordance with Section 30.2. Margin of dumping re goods from an exporter 30.2 (1) Subject to Subsection (2), the margin of dumping in relation to any goods from 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. Where variation in price (2) Where, in the opinion of the Deputy Minister, there are significant variations in the prices of goods from a particular exporter:
the Deputy Minister may determine the margin of dumping in relation to any goods from that exporter to be the weighted average of the margins of dumping in relation to the goods of that exporter that are sold in such individual sales of goods of that exporter as the Deputy Minister considers relevant. Price of like goods (3) Where Subsection (2) applies and any of the normal values used to determine the margins of dumping in relation to goods sold in individual sales are determined in accordance with Section 15, the price of like goods used to determine those normal values is the weighted average, determined in accordance with paragraph 17(a), of the prices at which the like goods were sold. Margin of dumping based on sample 30.3 (1) The Deputy Minister may, where 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:
Where information submitted (2) Where Subsection (1) applies, the Deputy Minister shall determine a margin of dumping in relation to any goods under consideration that were not included in the percentage or sample, as the case may be, referred to in that subsection where:
Other cases (3) Where Subsection (1) applies with respect to goods under consideration, the margin of dumping in relation to those goods that were not included in the percentage or sample and those goods for which a margin of dumping was not determined in accordance with Subsection (2) shall be determined in the prescribed manner.
Amount of Subsidy Amount of Subsidy 30.4 (1) Subject to Subsections (2) and (3), the amount of subsidy in relation to any goods shall be determined in the prescribed manner. Where no prescribed manner (2) Where no manner of determining an amount of subsidy has been prescribed or, in the opinion of the Deputy Minister, sufficient information has not been provided or is not otherwise available to enable the determination of the amount of subsidy in the prescribed manner, the amount of subsidy shall, subject to Subsection (3), be determined in such manner as the Minister may specify. Exception (3) An amount of subsidy shall not include any amount that is attributable to a non-actionable subsidy.
PROCEDURE IN DUMPING AND SUBSIDY INVESTIGATIONS Commencement of Investigation Initiation of investigation 31. (1) The Deputy Minister shall cause an investigation to be initiated respecting the dumping or subsidizing of any goods and whether there is a reasonable indication that such dumping or subsidizing has caused injury or retardation or is threatening to cause injury, forthwith on the Deputy Minister's own initiative or, subject to Subsection (2), where the Deputy Minister receives a written complaint respecting the dumping or subsidizing of the goods, within 30 days after the date on which written notice is given by or on behalf of the Deputy Minister to the complainant that the complaint is properly documented, if the Deputy Minister is of the opinion that there is evidence:
Standing (2) No investigation may be initiated under Subsection (1) as a result of a complaint unless the complaint is supported by domestic producers whose production represents more than 50 per cent of the total production of like goods by those domestic producers who express either support for or opposition to the complaint and the production of the domestic producers who support the complaint represents 25 per cent or more of the total production of like goods by the domestic industry. Meaning of "domestic industry" (3) In Subsection (2), domestic industry means, subject to Subsection 2(1.1), the domestic producers as a whole of the like goods except that, where 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. Producers related to exporters or importers (4) For the purposes of Subsection (3), a domestic producer is related to an exporter or an importer where:
and there are grounds to believe that the producer behaves differently towards the exporter or importer than does a non-related producer. Where there is deemed to be control (5) For the purposes of Subsection (4), a person is deemed to control another person where the first person is legally or operationally in a position to exercise restraint or direction over the other person. Extension of 30-day period (6) The period of 30 days referred to in Subsection (1) is extended to 45 days where, before the expiration of the 30 days, the Deputy Minister causes written notice to be given to the complainant and to the government of the country of export that the period of 30 days is insufficient to determine whether there is compliance with either or both of the conditions referred to in Subsection (2) and Subsection 31.1(1). Initiation of investigation (7) The Deputy Minister may, on receipt of a notice in writing from the Tribunal pursuant to Section 46 respecting the dumping or subsidizing of any goods, cause an investigation to be initiated respecting the dumping or subsidizing of any goods described in the notice. Initiation of investigation
No investigation where subsidy notified 31.1 (1) Subject to Subsections (2) and (3), the Deputy Minister may not initiate an investigation with respect to a subsidy that has been notified to the Committee, in accordance with Article 8.3 of the Subsidies Agreement, as being a non-actionable subsidy. Where determination that subsidy is actionable (2) Subject to Subsection (3), the Deputy Minister may initiate an investigation with respect to a subsidy referred to in Subsection (1) where there is a determination that the subsidy is not a non_actionable subsidy by:
Where redetermination that subsidy is actionable (3) The Deputy Minister may initiate an investigation with respect to a subsidy that was determined, by the Committee or an arbitration body, to be a non-actionable subsidy where the Committee or an arbitration body makes a redetermination that the subsidy is no longer a non-actionable subsidy. Notification (4) The Deputy Minister shall forthwith notify the Deputy Minister of Finance and the complainant where the Deputy Minister is of the opinion that:
Where Deputy Minister of Finance receives notification (5) The Deputy Minister of Finance shall, on receipt of notification under Subsection (4), notify the Deputy Minister of International Trade and any other person who, in the opinion of the Deputy Minister of Finance, is interested, of the matters referred to in paragraphs (4) (a) and (b) . Where Deputy Minister receives a complaint 32. (1) Where the Deputy Minister receives a written complaint respecting the dumping or subsidizing of goods, he shall, within 21 days after the receipt thereof:
Additional information and material (2) For the purposes of Subsection (1), where the Deputy Minister receives from a complainant additional written information or material in relation to a complaint referred to in that subsection with respect to which he has at any time caused the complainant to be informed pursuant to paragraph (1)(b) , the Deputy Minister shall, unless, before the receipt of the additional information or material, he has caused the complainant to be informed in writing pursuant to paragraph (1)(a) that the complaint is properly documented, be deemed to have received, on the day that he received the additional written information or material, a complaint respecting the dumping or subsidizing of goods composed of the complaint with respect to which he has caused the complainant to be so informed pursuant to paragraph (1)(b) and the additional information or material. Deemed complaint (3) Where a written complaint filed with the Tribunal pursuant to Subsection 23(1) of the Canadian International Trade Tribunal Act is referred to the Deputy Minister pursuant to Subsection 26(5) or 28(1) of that Act, the Deputy Minister shall be deemed to have received a written complaint described in Subsection (1). Where Deputy Minister decides not to initiate investigation 33. (1) Where, after receipt of a properly documented complaint respecting the dumping or subsidizing of goods, the Deputy Minister decides, with respect to some or all of the goods specified in the complaint, not to cause an investigation to be initiated, the Deputy Minister shall cause a written notice of the decision, setting out the reasons therefor, to be sent to the complainant and to the government of the country of export. Reference to Tribunal (2) Where, after receipt of a properly documented complaint respecting the dumping or subsidizing of goods, the Deputy Minister decides, with respect to some or all of the goods specified in the complaint, not to cause an investigation to be initiated by reason only that in the opinion of the Deputy Minister the evidence does not disclose a reasonable indication that the dumping or subsidizing of the goods in respect of which the Deputy Minister has so decided has caused injury or retardation or is threatening to cause injury:
refer to the Tribunal the question whether the evidence discloses a reasonable indication that the dumping or subsidizing of the goods in respect of which the Deputy Minister has so decided has caused injury or retardation or is threatening to cause injury. Notice of investigation and referral to Tribunal 34. (1) Where the Deputy Minister causes an investigation to be initiated respecting the dumping or subsidizing of goods:
Finding of Tribunal (2) Where, pursuant to a reference under paragraph (1)(b), the Tribunal advises the Deputy Minister in writing that 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, the Deputy Minister shall continue the investigation. Termination of investigation 35. (1) Where, at any time before making a preliminary determination under Subsection 38(1) in respect of goods imported from a country or countries:
the Deputy Minister shall, subject to Subsections (2) and (3),
Notice and reference to Tribunal prior to termination (2) Where, in the case of an investigation described in paragraph (1)(b) respecting the dumping or subsidizing of goods, the Deputy Minister comes to the conclusion referred to in that paragraph in respect of some or all of those goods:
Limitation on termination (3) Where notice is given pursuant to paragraph (2)(a) in an investigation, the Deputy Minister may not terminate the investigation with respect to the goods to which the notice relates by reason only that the Deputy Minister has come to the conclusion referred to in paragraph (1)(b) in respect of those goods:
Termination of investigation 36. Where a reference is made to the Tribunal pursuant to paragraph 34(1)(b) and the Tribunal advises with respect to any of the goods that are the subject of the reference that the evidence does not disclose a reasonable indication that the dumping or subsidizing of those goods has caused injury or retardation or is threatening to cause injury, the Deputy Minister shall terminate the investigation in respect of those goods forthwith after receipt of the advice and shall cause notice of the termination to be given and published as provided in paragraph 34(1)(a). Tribunal to give advice 37. Where a reference is made to the Tribunal pursuant to Section 33, 34 or 35 an any question in relation to any matter before the Deputy Minister,
Preliminary Determination Preliminary determination of dumping or subsidizing and of injury, etc. 38. (1) Subject to Sections 39 and 40, after the fifty-ninth day and on or before the ninetieth day following 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 pursuant to Section 35 or 36 and 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 after estimating and specifying, in relation to each exporter of goods in respect of which the investigation is made, as follows:
Exception (2) The Deputy Minister shall not specify or estimate anything pursuant to subparagraph (1)(b)(iii) where the Deputy Minister is of the opinion that, having regard to the country that is providing the export subsidy, the nature of the goods on which there is an export subsidy 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. Notice of preliminary determination (3) Where the Deputy Minister makes a preliminary determination under Subsection (1), the Deputy Minister shall:
Time extended 39. (1) Subject to Section 40, where, in any investigation respecting the dumping or subsidizing of goods, the Deputy Minister, before the expiration of the 90 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:
the decision referred to in paragraph (d) will not be made within those ninety days, the period of 90 days referred to in Section 38 is thereupon extended to 135 days. Notice of time extension (2) Where the Deputy Minister causes notice to be given pursuant to Subsection (1), he shall cause a notice to the same effect to be published in the Canada Gazette forthwith. Days not counted 40. Where, in any investigation respecting the dumping or subsidizing of goods, notice is given and published pursuant to paragraph 35(2)(a), there shall not be counted as one of the 90 days referred to in Section 38 or as one of the 135 days referred to in Subsection 39(1)
Final Determination Final determination or termination 41. (1) Within 90 days after making a preliminary determination under Subsection 38(1) in respect of goods imported from a country or countries, the Deputy Minister shall:
make a final determination of dumping or subsidizing with respect to the goods after specifying, in relation to each exporter of goods from that country or countries in respect of which the investigation is made as follows:
Exception (2) The Deputy Minister shall not specify anything pursuant to Clause (1)(a)(iv)(C) where he 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. Notice of final determination (3) Where the Deputy Minister makes a final determination of dumping or subsidizing in respect of goods, he shall cause notice that he has made the determination to be:
Notice of termination (4) Where the Deputy Minister causes an investigation respecting the dumping or subsidizing of any goods to be terminated pursuant to Subsection (1) in respect of those goods, he shall cause notice of the termination to be:
Action on final determination or decision referred back by court 41.1 (1) Where a final determination under paragraph 41(1)(a) or a decision under paragraph 41(1)(b) is set aside and the matter referred back to the Deputy Minister on an application under Section 96.1, the Deputy Minister shall:
Action on final determination or decision referred back by panel (2) Where a final determination under paragraph 41(1)(a) or a decision under paragraph 41(1)(b) is referred back to the Deputy Minister under Subsection 77.015(3) or (4) or 77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the Deputy Minister shall:
Final determination (3) Where the Deputy Minister reconsiders a matter involving a final determination pursuant to Subsection (1) or reconsiders and rescinds a final determination pursuant to Subsection (2), Section 41 shall again apply in respect of the goods to which the final determination applied as if that Section had not previously applied in respect of those goods, except that the action that the Deputy Minister is required by that Section to take shall, notwithstanding anything therein, be taken by the Deputy Minister within such period as is specified by the panel that made the order or the Federal Court of Appeal, as the case may be, or, in the case of the Federal Court of Appeal, within 90 days after the Court gives its ruling, if it did not specify a period. Decision to terminate (4) Where the Deputy Minister reconsiders a matter involving a decision pursuant to Subsection (1) or reconsiders and rescinds a decision pursuant to Subsection (2),
Deputy Minister to be guided by Canada's obligations 41.2 The Deputy Minister shall, in an investigation respecting the subsidizing of any goods, take into account the provisions of paragraphs 10 and 11 of Article 27 of the Subsidies Agreement.
INQUIRIES BY TRIBUNAL Tribunal to make inquiry 42. (1) The Tribunal, forthwith after receipt by the Secretary pursuant to subsection 38(3) of a notice of a preliminary determination, shall make inquiry with respect to such of the following matters as is appropriate in the circumstances:
and it appears necessary to the Tribunal that duty be assessed on the imported goods in order to prevent the recurrence of that injury; and
Tribunal to make or resume inquiry (2) Where the Secretary receives a notice pursuant to paragraph 52(1)(e) in respect of goods with respect to which an undertaking or undertakings have been terminated, the Tribunal shall, unless it has already made a finding with respect to the goods, forthwith make or resume its inquiry as to whether the dumping or subsidizing:
Assessment of cumulative effect (3) In making or resuming its inquiry under subsection (1), the Tribunal may 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:
Tribunal to be guided by Canada's obligations (4) The Tribunal shall, in making a cumulative assessment under Subsection (3), take into account the provisions of paragraph 12 of Article 27 of the Subsidies Agreement. When domestic industry based on regional markets (5) Where Subsection 2(1.1) applies in respect of the dumping or subsidizing of goods to which the preliminary determination applies, the Tribunal shall not find that the dumping or subsidizing of those goods has caused injury or retardation or is threatening to cause injury unless:
Tribunal to make order or finding 43. (1) In any inquiry referred to in Section 42 in respect of any goods, the Tribunal shall, forthwith after the date of receipt by the Secretary of notice of a final determination of dumping or subsidizing with respect to any of those goods, but, in any event, not later than 120 days after the date of receipt by the Secretary of notice of a preliminary determination with respect to the goods, make such order or finding with respect to the goods to which the final determination applies as the nature of the matter may require, and shall declare to what goods, including, where applicable, from what supplier and from what country of export, the order or finding applies. Separate order or finding (1.01) Where an inquiry referred to in Section 42 involves goods of:
the Tribunal shall make a separate order or finding under Subsection (1) with respect to the goods of each NAFTA country. Suspension of S. (1.1) (1.02) The operation of subsection (1.1) is suspended during the period in which subsection (1.01) is in force. Separate order or finding (1.1) Where an inquiry referred to in Section 42 involves goods of the United States as well as goods of other countries, the Tribunal shall make a separate order or finding under Subsection (1) with respect to the goods of the United States. Notice of order or finding (2) The Secretary shall forward by registered mail to the Deputy Minister, the importer, the exporter and such other persons as may be specified by the rules of the Tribunal:
Publication of notice (3) The Secretary shall cause a notice of each order or finding made by the Tribunal pursuant to this Section to be published in the Canada Gazette. Recommencement of inquiry 44. (1) Where pursuant to an application for judicial review under the Federal Count Act or an application under Section 96.1 of this Act, an order or finding of the Tribunal is set aside or is set aside in relation to particular goods, the Tribunal shall:
and a new order or finding compatible with the final disposition of the issues raised by or as a result of the application shall be made by the Tribunal with respect to the goods in respect of which the inquiry is recommenced forthwith and, in any event, not later than 120 days after:
Idem (2) Where an inquiry is recommenced pursuant to Subsection (1) with respect to any goods:
Where imposition of duty not in public interest 45. (1) Where, 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 and 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 those Sections, in respect of the goods would not or might not be in the public interest, the Tribunal shall, forthwith after making the order or finding,
Persons interested may make representations (2) Where any person interested in an inquiry referred to in Subsection (1) makes a request to the Tribunal for an opportunity to make representations to the Tribunal on the question whether the Tribunal should, if it makes an order described in any of Sections 3 to 6 with respect to any goods in respect of which the inquiry is being made, make a report pursuant to paragraph (1)(a) with respect to those goods, the Tribunal shall afford 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. Tribunal to advise Deputy Minister 46. Where, during an inquiry referred to in Section 42 respecting the dumping or subsidizing of goods to which a preliminary determination under this Act applies, the Tribunal is of the opinion that:
the Tribunal, by notice in writing setting out the description of the goods first mentioned in paragraph (a), shall so advise the Deputy Minister. Termination of proceedings 47. Subject to Part I.1 or II and Subsections 76(2.1) and (2.2), 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. 48. [Repealed, R.S., 1985, C. 47 (4th Supp.), S. 52] UNDERTAKINGS Acceptance of undertaking 49. (1) Subject to Subsection (2), the Deputy Minister may, in an investigation respecting the dumping or subsidizing of goods, accept an undertaking or undertakings with respect to dumped or subsidized goods where the Deputy Minister is of the opinion that observance of the undertaking or undertakings, as the case may be, will eliminate:
Idem (2) The Deputy Minister shall not accept an undertaking with respect to dumped or subsidized goods:
to increase by more than the estimated margin of dumping of the goods or the estimated amount of subsidy thereon;
Request to complete investigation and inquiry (3) Where the exporter, in the case of an investigation and inquiry with respect to dumped goods, or the government of the exporting country, in the case of an investigation and inquiry with respect to subsidized goods, wishes to offer an undertaking with respect to the dumped or subsidized goods, as the case may be, but wishes the investigation and inquiry with respect to the goods to be completed,
Time for offering undertaking (4) The Deputy Minister may refuse to accept any undertaking offered after such period of time as is prescribed for the purpose of this subsection. Procedure where undertaking accepted 50. Forthwith after the Deputy Minister accepts, in an investigation by the Deputy Minister under Section 31, an undertaking or undertakings with respect to dumped or subsidized goods:
Suspension of operation of time period 50.1 (1) Where an undertaking has been accepted with respect to the dumping or subsidizing of goods, the operation of any period specified, pursuant to this Act, for the doing of any thing in relation to those goods is suspended for such period as the undertaking is in force and is resumed on the expiration or termination of the undertaking. Extension of time period (2) A period to which Subsection (1) applies is extended by a period equal to:
Deputy Minister to terminate undertaking 51. (1) The Deputy Minister shall forthwith terminate an undertaking in respect of which the Deputy Minister receives, within 30 days after the date of the notice of acceptance of an undertaking or undertakings with respect to dumped or subsidized goods given pursuant to paragraph 50(a)(i) but before an order is made by the Tribunal under Subsection 43(1) in respect of the goods, a request for termination from:
Deputy Minister to resume investigation (2) Where the Deputy Minister terminates any undertaking pursuant to Subsection (1), he shall forthwith cause the investigation to be resumed with respect to all the goods to which the investigation related when he accepted the undertaking or undertakings, as the case may be, and shall cause notice of the resumption of the investigation to be given as provided in paragraph 34(1)(a). Termination of undertakings by Deputy Minister 52. (1) Where, at any time after accepting an undertaking or undertakings with respect to any dumped or subsidized goods that were the subject of an investigation, the Deputy Minister:
the Deputy Minister shall forthwith
Termination where no dumping, etc. (1.1) Where, at any time after the Deputy Minister accepts an undertaking or undertakings with respect to any dumped or subsidized goods that were the subject of an investigation:
the Deputy Minister shall forthwith
Termination where conditions no longer exist (1.2) Except where 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 Subsection 76(4), (4.1) or (4.11) or 76.1(2), the Deputy Minister shall terminate the undertaking or undertakings where, 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. Effect of termination of undertaking (1.3) A termination of an undertaking under Subsection (1.2) terminates all proceedings under this Act respecting the dumping or subsidizing of the goods to which the undertaking relates, unless, in any case where the Deputy Minister has accepted two or more undertakings, the Deputy Minister, for good reason, otherwise directs. Where no action to be taken (2) Where, in any investigation respecting the dumping or subsidizing of goods, a number of undertakings are accepted by the Deputy Minister under Section 49 and any one or more of those undertakings have been or are being violated, the Deputy Minister shall not, unless he sees good reason to the contrary, take any action under Subsection (1) if the undertakings that have not been and are not being violated account for substantially all the imports into Canada of the goods. Review and renewal of undertaking by Deputy Minister 53. (1) Except where 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 Subsection 76(4), (4.1) or (4.11) or 76.1(2), the Deputy Minister shall review the undertaking before the expiration of five years from the date on which it was accepted and before the expiration of each subsequent period, if any, for which it is renewed pursuant to this Section and if, on any such review, the Deputy Minister is satisfied:
the Deputy Minister shall renew the undertaking for a further period of not more than five years. Expiration of undertaking (2) An undertaking that is not renewed for a further period pursuant to a review under Subsection (1) expires at the end of the period before the expiration of which the review was required to be made. Expiration terminates all proceedings (3) Where an undertaking expires by reason of Subsection (2), the expiration terminates all proceedings under this Act respecting the dumping or subsidizing of the goods to which the undertaking relates, unless, in any case where the Deputy Minister has accepted two or more undertakings, the Deputy Minister, for good reason, otherwise directs. Notice (4) Where an undertaking is renewed or not renewed pursuant to Subsection (1) , the Deputy Minister shall cause notice of the decision to renew or not to renew, as the case may be, to be given and published as provided in paragraph 34(1)(a) and filed with the Secretary. Action on decision referred back by Court 53.1 (1) Where a decision under Subsection 53(1) to renew or not to renew an undertaking is set aside and the matter referred back to the Deputy Minister on an application under Section 96.1:
Action on decision referred back by panel (2) Where a decision under Subsection 53(1) to renew or not to renew an undertaking is referred back to the Deputy Minister under Subsection 77.015(3) or (4) or 77.019(5), or under Subsection 77.15(3) or (4) or 77.19(4):
Amendment of undertaking 54. Subject to Subsections 53(1) and (2), an undertaking may be amended at any time in accordance with its terms.
DETERMINATIONS BY DESIGNATED OFFICER Determination by designated officer 55. (1) Where the Deputy Minister:
the Deputy Minister shall cause a designated officer to determine, not later than six months after the date of the order or finding,
Application (2) Subsection (1) applies only in respect of:
RE-DETERMINATIONS AND APPEALS Re-determination by Designated Determination final 56. (1) Where, subsequent to the making of an order or finding of the Tribunal or an order of the Governor in Council imposing a countervailing duty under Section 7, any goods are imported into Canada, a determination by a customs officer:
made within 30 days after they were accounted for under Subsection 32(1), (3) or (5) of the Customs Act is final and conclusive. Request for re-determination (1.01) Notwithstanding Subsection (1):
Suspension of S. (1.1) (1.02) The operation of Subsection (1.1) is suspended during the period in which Subsection (1.01) is in force. Request for re-determination (1.1) Notwithstanding Subsection (1):
Determination deemed to have been made (2) Where, in the case of any imported goods referred to in Subsection (1), a determination referred to in that subsection that is relevant in the case of those goods is not in fact made in respect of them within the thirty days referred to in that Subsection, that determination shall be deemed to have been made:
Review by designated officer 57. A designated officer may re-determine any determination referred to in Subsection 56(1),
unless the Deputy Minister has previously re-determined the determination pursuant to Section 59. Determination or re-determination final 58. (1) A determination or re-determination by a designated officer under Section 55 or 57 with respect to any imported goods is final and conclusive. Request for re-determination (1.1) Notwithstanding subsection (1):
Suspension of S. (2) (1.2) The operation of Subsection (2) is suspended during the period in which Subsection (1.1) is in force. Request for re-determination (2) Notwithstanding subsection (1):
Permissive re-determination 59. (1) Subject to Subsection (3), the Deputy Minister may re-determine any determination or re-determination referred to in Sections 55, 56 or 57 made in respect of any imported goods
Idem (2) The Deputy Minister may re-determine any determination or re-determination referred to in Sections 55, 56 or 57 made 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. Mandatory re-determination (3) On a request made under Subsection 58(1.1) or (2) to re-determine a determination under Section 55 or a re-determination under Section 57, the Deputy Minister shall:
Notice of re-determination (3.1) The Deputy Minister shall cause notice of each re-determination under this section to be forwarded, by registered mail, to the importer and, where the imported goods are goods of a NAFTA country, to the government of that NAFTA country, to such persons as may be prescribed and, if the re-determination gives effect to a decision of a panel under Part I.1, to the Canadian Secretary. Presumption (3.2) A notice sent to the government of a NAFTA country pursuant to Subsection (3.1) shall be deemed, for the purposes of this Act, to have been received by that government 10 days after the day on which it was mailed. Suspension of SS. (4) and (5) (3.3) The operation of Subsections (4) and (5) is suspended during the period in which Subsections (3.1) and (3.2) are in force. Notice of re-determination (4) The Deputy Minister shall cause notice of each re-determination under this Section to be forwarded, by registered mail, to the importer and, where the imported goods are goods of the United States, to the United States Government, to such persons as may be prescribed and, if the re-determination gives effect to a decision of a panel under Part II, to the Canadian Secretary. Presumption (5) A notice sent to the United States Government pursuant to Subsection (4) shall be deemed, for the purposes of this Act, to have been received by that government 10 days after the day on which it was mailed. Effect of re-determination 60. (1) Where, in accordance with Section 57 or 59, a re-determination as to whether any goods are goods described in paragraph 56(1)(a) or a re-determination of the normal value or export price of or the amount of subsidy or export subsidy on the goods has been made:
if on the re-determination it is determined that the additional duty is payable or that the whole or the part of the duty paid was not payable, as the case may be. Decision of Deputy Minister (2) Notwithstanding Subsection 25(2), any duties imposed, by virtue of this Act, on goods sold to an importer in Canada shall be included in the costs referred to in subparagraph 25(1)(c)(i) or (d)(v), as the case may be, where, in any re-determination referred to in Subsection (1), the Deputy Minister is of the opinion that:
Appeal to Canadian International Trade Tribunal Appeal to the Tribunal 61. (1) Subject to Section 77.012 or 77.12, a person who deems himself aggrieved by a re_determination of the Deputy Minister made pursuant to Section 59 with respect to any goods may appeal therefrom to the Tribunal by filing a notice of appeal in writing with the Deputy Minister and the Secretary of the Tribunal within ninety days after the day on which the re-determination was made. Publication of notice of appeal (2) Notice of the hearing of an appeal under Subsection (1) shall be published in the Canada Gazette at least 21 days prior to the day of the hearing, and any person who on or before that day enters an appearance with the Secretary of the Tribunal may be heard on the appeal. Order or finding of the Tribunal (3) On any appeal under Subsection (1), the Tribunal may make such order or finding as the nature of the matter may require and, without limiting the generality of the foregoing, may declare what duty is payable or that no duty is payable on the goods with respect to which the appeal was taken, and an order, finding or declaration of the Tribunal is final and conclusive subject to further appeal as provided in Section 62. Appeal to Federal Court Appeal to Federal Court on question of law 62. (1) Any of the parties to an appeal under Section 61, namely:
may, within 90 days after the making of an order or finding under Subsection 61(3), appeal therefrom to the Federal Court of Appeal on any question of law. Disposition of appeal (2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require and, without limiting the generality of the foregoing, may:
Interest on amounts owing 62.1 (1) Any person who fails to pay any amount owing under paragraph 60(1)(a) shall pay, in addition to the amount owing, interest at the prescribed rate or at a rate determined in the prescribed manner in respect of each month or fraction of a month commencing 30 days after the amount became outstanding during which any amount remains outstanding, calculated on the amount outstanding. Interest on refunds (2) Any person who is given a refund under paragraph 60(1)(b) of an amount paid shall be given, in addition to the refund, interest at the prescribed rate or at a rate determined in the prescribed manner in respect of each month or fraction of a month between the time the amount was paid and the time the refund is given, calculated on the amount of the refund. Amounts under ten dollars (3) Where interest owing under this section is less than ten dollars, no interest shall be paid. 63. to 75. [Repealed, R.S., 1985, C. 47 (4th Supp.), S. 52] Finality and Review of Orders and Findings Application for judicial review 76. (1) 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 by Tribunal and re-hearing (2) 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 Deputy Minister or any other person or of any government, review the order or finding and, in the making of the review, may re-hear any matter before deciding it. Idem (2.1) Where the Tribunal receives notice of action taken pursuant to 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 Deputy Minister or any other person or of any government, review the order or finding and, in making such a review, may re-hear any matter before deciding it. Idem (2.2) Where an order or finding of the Tribunal 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 Tribunal shall review the order or finding and, in making such a review, may rehear any matter before deciding it. Refusal (3) The Tribunal shall not initiate any review pursuant to Subsection (2) or (2.1) at the request of any person or government unless the person or government satisfies the Tribunal that a review is warranted. Order of refusal (3.1) Where the Tribunal decides not to initiate a review pursuant to Subsection (2) at the request of a person or government, the Tribunal shall make an order to that effect and give reasons therefor, and the Secretary shall forward a copy of the order and the reasons by registered mail to that person or government and cause notice of the order to be published in the Canada Gazette. Completion of review (4) On completion of a review pursuant to Subsection (2) of an order or finding, the Tribunal shall make an order rescinding the order or finding or continuing it with or without amendment, as the circumstances require, and give reasons for the decision. Idem (4.1) On completion of a review pursuant to Subsection (2.1) or (2.2) of an order or finding, the Tribunal shall confirm the order or finding or rescind it and make such 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, where it makes another order or finding, shall declare to what goods, including, where applicable, from what supplier and from what country of export, the order or finding applies. Separate order or finding (4.11) Where a review pursuant to subsection (2.1) involves goods of:
and the Tribunal makes another order or finding pursuant to Subsection (4.1), the Tribunal shall make a separate order or finding under that Subsection with respect to the goods of each NAFTA country. Suspension of S. (4.2) (4.12) The operation of Subsection (4.2) is suspended during the period in which Subsection (4.11) is in force. Idem (4.2) Where a review pursuant to Subsection (2.1) involves goods of the United States as well as goods of other countries and the Tribunal makes another order or finding pursuant to Subsection (4.1), the Tribunal shall make a separate order or finding under that Subsection with respect to the goods of the United States. Notice (4.3) On completion of a review pursuant to subsection (2), (2.1) or (2.2), the Secretary shall:
Order or finding deemed to be rescinded (5) Where the Tribunal has not initiated a review pursuant to Subsection (2) with respect to an order or finding before the expiration of five years after:
the order or finding shall be deemed to have been rescinded as of the expiration of the five years. Request by Minister of Finance for review 76.1 (1) Where at any time after the issuance, by the Dispute Settlement Body established pursuant to Article 2 of Annex 2 to the WTO Agreement, of a recommendation or ruling, the Minister of Finance considers it necessary to do so, having regard to the recommendation or ruling, the Minister of Finance may request that:
Result of review (2) On completion of a review under Subsection (1), the Deputy Minister or the Tribunal, as the case may be, shall:
Reasons (3) Where a decision, 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 therefor and shall set out to what goods, including, where practicable, the name of the supplier and the country of export, the decision, 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, order or finding continued under paragraph (2)(a) or (b) or made under paragraph (2)(c). Deeming (5) Any decision or 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:
77. [Repealed, R.S., 1985, C. 47 (4th Supp.), S. 52]
PART I.1 DISPUTE SETTLEMENT RESPECTING GOODS OF A NAFTA
COUNTRY Definitions 77.01 (1) In this Part, "appropriate authority" "appropriate authority", in relation to a definitive decision, means either the Deputy Minister or the Tribunal, according to which made the decision; "committee" "committee" means an extraordinary challenge committee appointed pursuant to section 77.018; "definitive decision" "definitive decision" means:
in so far as it applies to or is made in respect of particular goods of a NAFTA country, but does not include any such determination, re-determination, decision, order or finding that is made for the purpose of giving effect to a decision of the Federal Court of Canada or the Supreme Court of Canada relating to those goods; "Minister" "Minister" means the Minister for International Trade; "NAFTA country Secretary" "NAFTA country Secretary" means the secretary of the national Section of the Secretariat provided for in Article 2002 of the North American Free Trade Agreement; "panel" "panel" means a panel appointed pursuant to Section 77.013; "rules" "rules" means the rules of procedure, as amended from time to time, made pursuant to Chapter Nineteen of the North American Free Trade Agreement; "special committee" "special committee" means a special committee appointed pursuant to Subsection 77.023(2). Inconsistency (2) In the event of any inconsistency between the provisions of this Part and the provisions of the Federal Court Act, the provisions of this Part prevail to the extent of the inconsistency.
Request for Review Request for review of definitive decision 77.011 (1) The Minister or the government of a NAFTA country, the goods of which are the subject of a definitive decision, may request, in accordance with paragraph 4 of Article 1904 of the North American Free Trade Agreement, that the definitive decision, in so far as it applies to goods of that NAFTA country, be reviewed by a panel. Idem (2) Any person who, but for Section 77.012, would be entitled to apply under the Federal Court Act or Section 96.1 of this Act, or to appeal under section 61 of this Act, in respect of a definitive decision may, in accordance with paragraph 4 of Article 1904 of the North American Free Trade Agreement, file with the Canadian Secretary a request that the definitive decision be reviewed by a panel. Deeming (3) A request made under Subsection (2) shall be deemed to be a request by the Minister for binational panel review within the meaning of paragraph 4 of Article 1904 of the North American Free Trade Agreement. Limitation period (4) A request under Subsection (1) or (2) may only be made within thirty days after the day on which notice of the definitive decision is published in the Canada Gazette or, in the case of a re-determination of the Deputy Minister under Subsection 59(1) or (3), within 30 days after the day on which notice of the re-determination is received by the government of a NAFTA country. Grounds for request (5) A request under Subsection (1) or (2) for the review of a definitive decision may be made only on a ground set forth in Subsection 18.1(4) of the Federal Court Act. Notification of request for review (6) On receiving a request from the government of a NAFTA country under Subsection (1) or on receiving a request under Subsection (2), the Canadian Secretary shall notify the Minister and the appropriate NAFTA country Secretary of the request and the day on which it was received by the Canadian Secretary. No application or appeal (7) Where a request is made under Subsection (1) or (2) for the review of a definitive decision by a panel, 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 the decision. 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:
Limitation period extended (2) For the purpose of permitting a government or person to apply under the Federal Court Act or Section 96.1 of this Act in respect of a definitive decision after the expiration of the limitation period established by paragraph 4 of Article 1904 of the North American Free Trade Agreement for requesting a review of the decision, the limitation period referred to in Subsection 18.1(2) of the Federal Court Act and Subsection 96.1(3) of this Act is extended by 10 days and shall be calculated as commencing on the day on which the limitation period established by that paragraph commences. Establishment of Panels Appointment of panel 77.013 (1) On a request under Section 77.011 for the review of a definitive decision by a panel, a panel shall be appointed for that purpose in accordance with paragraphs 1 to 4 of Annex 1901.2 to Chapter Nineteen of the North American Free Trade Agreement and any regulations made in connection therewith. Judges may be appointed (2) Judges of any superior court in Canada and persons who are retired judges of any superior court in Canada are eligible to be appointed to a panel. Single panel (3) Where a request is made for the review of a final determination of the Deputy Minister under paragraph 41(1)(a) that applies to or is made in respect of particular goods of a NAFTA country and another request is made for the review of an order or finding of the Tribunal under Subsection 43(1) that applies to or is made in respect of those goods, one panel may, with the consent of the Minister and the government of that NAFTA country, be appointed to review the final determination and the order or finding. Administrative record forwarded 77.014 On the appointment of the members of a panel to review a definitive decision, the appropriate authority shall cause a copy of the administrative record to be forwarded in accordance with the rules. Review by Panel Conduct of review 77.015 (1) A panel shall conduct a review of a definitive decision in accordance with Chapter Nineteen of the North American Free Trade Agreement and the rules. Powers of panel (2) A panel has such powers, rights and privileges as are conferred on it by the regulations. Disposition after review (3) On completion of the review of a definitive decision, a panel shall determine whether the grounds on which the review was requested have been established and shall make an order confirming the decision or referring the matter back to the appropriate authority for reconsideration within the period specified by the panel. Review of action of appropriate authority (4) A panel may, on its own initiative or on a request made in accordance with the rules, review the action taken by the appropriate authority pursuant to an order under Subsection (3) and make a further order as described in that subsection within 90 days after the day on which the Canadian Secretary receives notice of the action. Decision (5) A decision of a panel shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the panel, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made pursuant to Subsection (3) or (4) to the Minister, the government of the NAFTA country involved, the appropriate authority and any other person who was heard in the review and shall cause notice of the decision to be published in the Canada Gazette. Action on Decision of Panel Action by appropriate authority 77.016 (1) Where a panel makes an order under Subsection 77.015(3) or (4) or takes any action under Subsection 77.019(5) referring a matter back to the appropriate authority for reconsideration, the appropriate authority shall, within the period specified by the panel, take action under this Act not inconsistent with the decision of the panel. Appropriate authority not required to act twice (2) Notwithstanding any other provision of this Act, an appropriate authority is not required to act on an order under Subsection 77.015(4), unless it requires the authority to take action that is different from that taken by the authority under the order under Subsection 77.015(3).
Extraordinary Challenge Proceeding Request for extraordinary challenge proceeding 77.017 (1) Within the period after a panel makes an order under Subsection 77.015(3) or (4) prescribed by the rules, the Minister or the government of the NAFTA country to which the order relates may request, in writing to the Canadian Secretary, that an extraordinary challenge proceeding be commenced with respect to the order. Ground for request (2) A request for an extraordinary challenge proceeding may be made only on a ground set forth in paragraph 13 of Article 1904 of the North American Free Trade Agreement. Notification of request for extraordinary challenge proceeding (3) On receiving a request under this section made by the Minister, the Canadian Secretary shall notify the appropriate NAFTA country Secretary of the request and the day on which it was received by the Canadian Secretary, and on receiving a request under this section made by the government of a NAFTA country, the Canadian Secretary shall notify the Minister of the request and the day on which it was received by the Canadian Secretary. Appointment of extraordinary challenge committee 77.018 On a request under Section 77.017 for an extraordinary challenge proceeding, an extraordinary challenge committee shall be appointed for that purpose in accordance with paragraph 1 of Annex 1904.13 to Chapter Nineteen of the North American Free Trade Agreement and any regulations made in connection therewith. Conduct of extraordinary challenge proceeding 77.019 (1) A committee shall conduct an extraordinary challenge proceeding and make a decision in accordance with Annex 1904.13 to Chapter Nineteen of the North American Free Trade Agreement and the rules. Powers of committee (2) A committee has such powers, rights and privileges as are conferred on it by the regulations. Where no grounds (3) Where a committee conducting an extraordinary challenge proceeding determines that the grounds in the request for the proceeding are not established, the committee shall deny the request, and the decision of the panel in respect of which the request was made shall stand affirmed. New panel (4) Where an order of a panel is set aside by a committee, a new panel shall, in accordance with this Part, be appointed and conduct a review of the definitive decision that was the subject of that order. Action by panel (5) Where an order of a panel is referred back to the panel by a committee, the panel shall take action not inconsistent with the decision of the committee. Decision (6) A decision of a committee shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the committee, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made by the committee to the Minister, the government of the NAFTA country involved, the appropriate authority and any other person who was heard in the proceeding and shall cause notice of the decision to be published in the Canada Gazette. Orders and decisions final 77.02 (1) Subject to Subsection 77.015(4) and Section 77.019, an order or decision of a panel or committee is final and binding and is not subject to appeal. No review (2) Subject to Subsection 77.015(4) and Section 77.019, no order, decision or proceeding of a panel or committee made or carried on under, or purporting to be made or carried on under, this Act shall be:
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the panel or committee to make or carry on or that, in the course of any proceeding, the panel or committee for any reason exceeded or lost jurisdiction. No references (3) Subsection 18.3(1) of the Federal Court Act does not apply to a panel, committee or special committee.
Members Code of conduct 77.021 (1) Every member of a panel, committee or special committee shall comply with the code of conduct, as amended from time to time, established pursuant to Article 1909 of the North American Free Trade Agreement. Disclosure undertaking respecting confidential information (2) Every member of a panel and every prescribed person shall sign and comply with a disclosure undertaking, in the prescribed form, respecting the disclosure and use of confidential, personal, business proprietary and other privileged or prescribed information made available to the member or person in proceedings under this Part.
Immunity (3) Subject to Section 77.034, no action or other proceeding lies or shall be commenced against a member of a panel for or in respect of anything done or omitted to be done, or purported to be done or omitted to be done, under this Part. Remuneration and expenses of panel members 77.022 Every member of a panel shall be paid such remuneration and is entitled to such travel and living expenses incurred in the performance of the member's duties under this Part as are fixed by the Free Trade Commission established pursuant to Article 2001 of the North American Free Trade Agreement.
Review by Special Committee Request for review 77.023 (1) A request for a review by a special committee may be made to the Canadian Secretary by the government of a NAFTA country only with respect to an allegation referred to in Article 1905.1 of the North American Free Trade Agreement. Appointment of special committee (2) On a request for a review referred to in Subsection (1), a special committee shall be appointed for that purpose in accordance with Annex 1904.13 of the North American Free Trade Agreement and any regulations made in connection therewith. Stay of panel reviews and committee proceedings 77.024 (1) Subject to Subsection (2), where a special committee makes an affirmative finding against a NAFTA country pursuant to a request made by Canada in respect of an allegation referred to in Article 1905.1 of the North American Free Trade Agreement, the Minister shall stay all:
that were requested by the government or a person of that NAFTA country after the date on which consultations were requested under Article 1905.1 of the North American Free Trade Agreement. Exception (2) Subsection (1) does not apply in respect of a panel review or committee proceeding that was requested more than 150 days prior to the affirmative finding by the special committee. Stay on request 77.025 Where a special committee makes an affirmative finding against Canada pursuant to a request made by the government of a NAFTA country, the government of that NAFTA country may request that the Minister stay all:
that were requested by the government or a person of that NAFTA country, and where such a request for a stay is made the Minister shall stay all such reviews and proceedings. When stay becomes effective 77.026 Where the Minister stays panel reviews and committee proceedings, the stay shall become effective
Suspension of time periods 77.027 Where a special committee makes an affirmative finding against Canada or a NAFTA country pursuant to a request made by the government of a NAFTA country or Canada in respect of an allegation referred to in Article 1905.1 of the North American Free Trade Agreement:
shall not run unless and until resumed in accordance with Subsection 77.033. Suspension of panel process 77.028 (1) The Minister may suspend the operation of Article 1904 of the North American Free Trade Agreement with respect to goods of a NAFTA country:
Notice of suspension (2) Where the Minister suspends the operation of Article 1904 of the North American Free Trade Agreement under Subsection (1) with respect to goods of a NAFTA country, the Canadian Secretary shall forward a written notice of the suspension to the NAFTA country Secretary of that NAFTA country and shall publish a notice of the suspension in the Canada Gazette. Suspension of benefits 77.029 (1) The Governor in Council, on the recommendation of the Minister of Finance and the Minister, may, by order, at any time after the expiration of 60 days, but in no case later than 90 days, following an affirmative finding against a NAFTA country by a special committee requested by Canada under Article 1905.2 of the North American Free Trade Agreement, suspend the application to that NAFTA country of such benefits under the North American Free Trade Agreement as the Governor in Council considers appropriate in the circumstances. Powers (2) For the purpose of suspending the application to a NAFTA country of benefits under Subsection (1), the Governor in council may do any one or more of the following things:
Period of order (3) Unless revoked, an order made under Subsection (1) shall have effect for such period as is specified in the order. Definitions (4) In this Section, "federal law" means the whole or any portion of any Act of Parliament or regulation, order or other instrument issued, made or established in the exercise of a power conferred by or under an Act of Parliament. Order not a statutory instrument (5) An order made under Subsection (1) is not a statutory instrument for the purposes of the Statutory Instruments Act. Action consistent with determination (6) Whenever, after an order is made under Subsection (1), the special committee referred to in that subsection makes a determination pursuant to paragraph 1905.10(a) of the North American Free Trade Agreement, the Governor in Council shall take action consistent with that determination. Only one section applies 77.03 Where the operation of Article 1904 of the North American Free Trade Agreement is suspended under Section 77.028 in respect of a NAFTA country, benefits under Article 1905.2 of the North American Free Trade Agreement may not be suspended under Section 77.029 in respect of that NAFTA country, and where benefits under Article 1905.2 of the North American Free Trade Agreement are suspended under Section 77.029 in respect of a NAFTA country, the operation of Article 1904 of the North American Free Trade Agreement may not be suspended under Section 77.028 in respect of that NAFTA country. Referral to Federal Court of Appeal 77.031 (1) Where the Minister suspends the operation of Article 1904 of the North American Free Trade Agreement under paragraph 77.028(1)(a) and:
Idem (2) Where the government of a NAFTA country suspends the operation of Article 1904 of the North American Free Trade Agreement with respect to goods of Canada under Article 1905.8 of the North American Free Trade Agreement and:
Idem (3) For the purposes of Subsections (1) and (2), where any application has been made to the Federal Court of Appeal for the review of any definitive decision, that definitive decision may not be subsequently reviewed by a panel or committee if the suspension of Article 1904 is terminated pursuant to Section 77.032. Termination of suspension 77.032 The Minister shall terminate any suspension effected under Subsection 77.028(1) if a special committee reconvened pursuant to Article 1905.10 of the North American Free Trade Agreement determines that the problems in respect of which the special committee's affirmative finding was based have been corrected. Resumption 77.033 All panel reviews and committee proceedings stayed under Subsection 77.024(1) or Section 77.025 and any running of the time periods suspended under section 77.027 shall resume:
Offence Offence 77.034 (1) Every person commits an offence who contravenes or fails to comply with:
Punishment (2) Every person who commits an offence under Subsection (1) (a) is guilty of an indictable offence and liable to a fine not exceeding one million dollars; or (b) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding 100,000 dollars. Consent (3) No proceedings for an offence under this section shall be instituted without the consent in writing of the Attorney General of Canada.
Regulations Regulations 77.035 The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations:
Publication in Canada Gazette 77.036 The rules, the code of conduct established pursuant to Article 1909 of the North American Free Trade Agreement and any amendments made to the rules or code shall be published in the Canada Gazette. Application of Acts Application 77.037 No provision
that comes into force after the coming into force of this section shall be applied in respect of goods of a NAFTA country, unless it is expressly declared by an Act of Parliament that the provision applies in respect of goods of that NAFTA country. Suspension of Part II 77.038 The operation of Part II is suspended during the period in which this Part is in force.
PART II DISPUTE SETTLEMENT RESPECTING GOODS Interpretation Definitions 77.1 (1) In this Part, "American Secretary" "American Secretary" means the secretary of the United States section of the Secretariat provided for by Article 1909 of the Free Trade Agreement; "appropriate authority" "appropriate authority", in relation to a definitive decision, means either the Deputy Minister or the Tribunal, according to which made the decision; "committee" "committee" means an extraordinary challenge committee appointed pursuant to Section 77.18; "definitive decision" "definitive decision" means
that applies to or in respect of particular goods of the United States, but does not include any such determination, redetermination, decision, order or finding that is made for the purpose of giving effect to a decision of the Federal Court of Canada or the Supreme Court of Canada relating to those goods; "Minister" "Minister" means the Minister for International Trade; "panel" "panel" means a panel appointed pursuant to Section 77.13; "rules" "rules" means the rules of procedure, as amended from time to time, made pursuant to Chapter Nineteen of the Free Trade Agreement; "Secretariat" Secretariat means the Canadian Secretariat established by Section 77.23. Inconsistency (2) In the event of any inconsistency between the provisions of this Part and the provisions of the Federal Court Act, the provisions of this Part prevail to the extent of the inconsistency.
Request for Review Request for review of definitive decision 77.11 (1) The Minister or the United States Government may request, in accordance with paragraph 4 of Article 1904 of the Free Trade Agreement, that a definitive decision be reviewed by a panel. Idem (2) On a request made to the Canadian Secretary by any person who, but for Section 77.12, would be entitled to apply under Section 28 of the Federal Court Act or Section 96.1 of this Act or to appeal under Section 61 of this Act in respect of a definitive decision, the Minister shall request, in accordance with paragraph 4 of Article 1904 of the Free Trade Agreement, that the definitive decision be reviewed by a panel. Limitation period (3) No request shall be made to the Canadian Secretary under Subsection (2) more than 25 days after the day on which notice of the definitive decision is published in the Canada Gazette or, in the case of a re-determination of the Deputy Minister under Subsection 59(1) or (3), the day on which notice of the re-determination is received by the United States Government. Grounds for request (4) A request by the Minister for the review of a definitive decision may be made only an a ground set forth in Subsection 28(1) of the Federal Court Act. Notification of request for review (5) On receiving a request under this section made by the Minister, the Canadian Secretary shall notify the American Secretary of the request and the day on which it was received by the Canadian Secretary, and on receiving a request under this section made by the United States Government, the Canadian Secretary shall notify the Minister of the request and the day on which it was received by the Canadian Secretary. No application or appeal (6) Where a request is made by the Minister or the United States Government for the review of a definitive decision by a panel, 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 the decision. 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:
Limitation period extended (2) For the purpose of permitting a government or person to apply under Section 28 of the Federal Court Act or Section 96.1 of this Act in respect of a definitive decision after the expiration of the limitation period established by paragraph 4 of Article 1904 of the Free Trade Agreement for requesting a review of the decision, the 10-day limitation period referred to in Subsection 28(2) of the Federal Court Act and Subsection 96.1(3) of this Act is extended by 30 days and shall be calculated as commencing on the day on which the limitation period established by that paragraph commences. Establishment of Panels Appointment of panel 77.13 (1) On a request under Section 77.11 for the review of a definitive decision by a panel, a panel shall be appointed for that purpose in accordance with paragraphs 1 to 4 of Annex 1901.2 to Chapter Nineteen of the Free Trade Agreement and any regulations made in connection therewith. Single panel (2) Where a request is made for the review of a final determination of the Deputy Minister under paragraph 41(1)(a) that applies to or in respect of particular goods of the United States and another request is made for the review of an order or finding of the Tribunal under Subsection 43(1) that applies to or in respect of those goods, one panel may, with the consent of the Minister and the United States Government, be appointed to review the final determination and the order or finding. Administrative record forwarded 77.14 On the appointment of the members of a panel to review a definitive decision, the appropriate authority shall cause a copy of the administrative record to be forwarded in accordance with the rules.
Review by Panel Conduct of review 77.15 (1) A panel shall conduct a review of a definitive decision in accordance with Chapter Nineteen of the Free Trade Agreement and the rules. Powers of panel (2) A panel has such powers, rights and privileges as are conferred on it by the regulations. Disposition after review (3) On completion of the review of a definitive decision, a panel shall determine whether the grounds on which the review was requested have been established and shall make an order confirming the decision or referring the matter back to the appropriate authority for reconsideration within the period specified by the panel. Review of action of appropriate authority (4) A panel may, on its own initiative or on a request made in accordance with the rules, review the action taken by the appropriate authority pursuant to an order under Subsection (3) and make a further order as described in that Subsection within ninety days after the day on which the Canadian Secretary receives notice of the action. Decision (5) A decision of a panel shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the panel, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made pursuant to Subsection (3) or (4) to the Minister, the United States Government, the appropriate authority and any other person who was heard in the review and shall cause notice of the decision to be published in the Canada Gazette.
Action on Decision of Panel Action by appropriate authority 77.16 (1) Where a panel makes an order under Subsection 77.15(3) or (4) referring a matter back to the appropriate authority for reconsideration, the appropriate authority shall, within the period specified by the panel, take action under this Act not inconsistent with the decision of the panel. Appropriate authority not required to act twice (2) Notwithstanding any other provision of this Act, an appropriate authority is not required to act on an order under Subsection 77.15(4), unless it requires the authority to take action that is different from that taken by the authority under the order under Subsection 77.15(3).
Extraordinary Challenge Proceeding Request for extraordinary challenge proceeding 77.17 (1) Within the period after a panel makes an order under Subsection 77.15(3) or (4) prescribed by the rules, the Minister or the United States Government may request, in writing to the Canadian Secretary, that an extraordinary challenge proceeding be commenced with respect to the order. Ground for request (2) A request for an extraordinary challenge proceeding may be made only on a ground set forth in paragraph 13 of Article 1904 of the Free Trade Agreement. Notification of request for extraordinary challenge proceeding (3) On receiving a request under this Section made by the Minister, the Canadian Secretary shall notify the American Secretary of the request and the day on which it was received by the Canadian Secretary, and on receiving a request under this Section made by the United States Government, the Canadian Secretary shall notify the Minister of the request and the day on which it was received by the Canadian Secretary. Appointment of extraordinary challenge committee 77.18 On a request under Section 77.17 for an extraordinary challenge proceeding, an extraordinary challenge committee shall be appointed for that purpose in accordance with paragraph 1 of Annex 1904.13 to Chapter Nineteen of the Free Trade Agreement and any regulations made in connection therewith. Conduct of extraordinary challenge proceeding 77.19 (1) A committee shall conduct an extraordinary challenge proceeding and make a decision in accordance with Annex 1904.13 to Chapter Nineteen of the Free Trade Agreement and the rules. Powers of committee (2) A committee has such powers, rights and privileges as are conferred on it by the regulations. New panel (3) Where an order of a panel is set aside by a committee, a new panel shall, in accordance with this Part, be appointed and conduct a review of the definitive decision that was the subject of that order. Action by panel (4) Where an order of a panel is referred back to the panel by a committee, the panel shall take action not inconsistent with the decision of the committee. Decision (5) A decision of a committee shall be recorded in writing and shall include the reasons for the decision and any dissenting or concurring opinions of members of the committee, and the Canadian Secretary shall forward, by registered mail, a copy thereof and of the order made by the committee to the Minister, the United States Government, the appropriate authority and any other person who was heard in the proceeding and shall cause notice of the decision to be published in the Canada Gazette. Orders and decisions final 77.2 (1) Subject to Subsection 77.15(4) and Section 77.17, an order or decision of a panel or committee is final and binding and is not subject to appeal. No review (2) Subject to Subsection 77.15(4) and Section 77.17, no order, decision or proceeding of a panel or committee made or carried on under, or purporting to be made or carried on under, this Act shall be:
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the panel or committee to make or carry on or that, in the course of any proceeding, the panel or committee for any reason exceeded or lost jurisdiction. No references (3) Subsection 28(4) of the Federal Court Act does not apply to a panel or committee. Members Code of conduct 77.21 (1) Every member of a panel and every member of a committee shall comply with the code of conduct, as amended from time to time, established pursuant to Article 1910 of the Free Trade Agreement. Disclosure undertaking respecting confidential information (2) Every member of a panel and every prescribed person shall sign and comply with a disclosure undertaking, in the prescribed form, respecting the disclosure and use of confidential, personal, business proprietary and other privileged information made available to the member or person in proceedings under this Part. Immunity (3) Subject to Section 77.26, no action or other proceeding lies or shall be commenced against a member of a panel for or in respect of anything done or omitted to be done, or purported to be done or omitted to be done, under this Part. Remuneration and expenses of panel members 77.22 Every member of a panel shall be paid such remuneration and is entitled to such travel and living expenses incurred in the performance of the member's duties under this Part as are fixed by the Canada-United States Trade Commission established pursuant to the Free Trade Agreement. Secretariat Establishment of Canadian Secretariat 77.23 There is hereby established a secretariat, to be called the Canadian Secretariat, for the purpose of facilitating the implementation of Chapter Nineteen of the Free Trade Agreement and the work of panels and committees. Secretary 77.24 (1) There shall be a Secretary of the Secretariat to be appointed by the Governor in Council, on the recommendation of the Minister, to hold office for a term not exceeding five years. Salary and expenses (2) The Canadian Secretary shall be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council. Absence or incapacity of Secretary (3) In the event of the absence or incapacity of the Canadian Secretary or if the office of Canadian Secretary is vacant, the Governor in Council may appoint another person, on such terms and conditions as the Governor in Council deems appropriate, to act as Canadian Secretary and a person so acting shall have all the powers, duties and functions of the Canadian Secretary under this Part and be paid such salary or other remuneration and expenses as may be fixed by the Governor in Council. Superannuation (4) The provisions of the Public Service Superannuation Act, other than those related to tenure of office, apply to the Canadian Secretary, except that a person appointed as Canadian Secretary from outside the Public Service may, by notice in writing given to the President of the Treasury Board not more than sixty days after the date of appointment, elect to participate in the Diplomatic Service (Special) Superannuation Act, in which case the provisions of that Act, other than those relating to tenure of office, apply to the Canadian Secretary from the date of appointment and the provisions of the Public Service Superannuation Act do not apply. Chief executive officer (5) The Canadian Secretary is the chief executive officer of the Secretariat and has supervision over and direction of the work and staff of the Secretariat. Staff 77.25 Such officers, clerks and employees as are required for the proper conduct of the work of the Secretariat shall be appointed in accordance with the Public Service Employment Act. Offence Offence 77.26 (1) Every person commits an offence who contravenes or fails to comply with:
Punishment (2) Every person who commits an offence under Subsection (1)
Consent (3) No proceedings for an offence under this Section shall be instituted without the consent in writing of the Attorney General of Canada. Regulations Regulations 77.27 The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations:
Publication in Canada Gazette 77.28 The rules, the code of conduct established pursuant to Article 1910 of the Free Trade Agreement and any amendments made to the rules or code shall be published in the Canada Gazette. Application of Acts Application 77.29 No provision
that comes into force after the coming into force of this Section shall be applied in respect of goods of the United States, unless it is expressly declared by an Act of Parliament that the provision applies in respect of goods of the United States. PART III GENERAL
Deputy Minister may require evidence to be provided 78. (1) Where:
the Deputy Minister believes on reasonable grounds that any person in Canada is able to provide evidence relevant 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. Notice to provide evidence (2) Where, by notice given pursuant to Subsection (1), the Deputy Minister requires any person to provide evidence, he shall:
Evidence or statement to be provided (3) Where a person is required by notice given pursuant to Subsection (1) to provide the Deputy Minister with evidence, the person shall:
No oral evidence (4) Nothing in this Section shall be construed as authorizing the Deputy Minister to require any person to provide evidence orally. Extension of time (5) Where, pursuant to paragraph (2)(b), the Deputy Minister specifies the time within which evidence is to be provided, the Deputy Minister may, either before or after the expiration of that time, extend the time within which the evidence is to be provided. 1984, C. 25, S. 78. Designation of evidence as confidential 79. (1) Where a person who provides the Deputy Minister with evidence pursuant to Subsection 78(3) wishes some or all of the evidence to be kept confidential, the person shall submit, at the time the evidence is provided, a statement designating as confidential the evidence that he wishes to be kept confidential, together with an explanation of why he designated that evidence as confidential. Summary or statement to be provided (2) Where, pursuant to Subsection (1), a person submits to the Deputy Minister a statement designating evidence as confidential, together with the explanation referred to in that Subsection, the person shall submit to the Deputy Minister, at the same time, a summary of the evidence designated as confidential in sufficient detail to convey a reasonable understanding of the evidence. 1984, C. 25, S. 79. Collection of Duty 80. [Repealed, R.S., 1985, C. 1 (2nd Supp.), S. 209] Recovery of duties from person other than importer 81. (1) Notwithstanding anything in this Act, where 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 pursuant to this Act, the 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. Recourse under Customs Act (2) Where an amount that is less than the duty payable in respect of goods imported into Canada is recovered from a person pursuant to Subsection (1), such recovery is without prejudice to any recourse available to Her Majesty under the Customs Act with respect to the remainder of the duty payable.
Disclosure of Information Definition of "information" 82. In Sections 83 to 87, "information" includes evidence. Information to be disclosed 83. Where information is provided to the Deputy Minister for the purposes of any proceedings under this Act, every party to the proceedings has, unless the information is information to which Subsection 84(1) applies, a right, on request, to examine the information during normal business hours and a right, on payment of the prescribed fee, to be provided with copies of any such information that is in documentary form or that is in any other form in which it may be readily and accurately copied. Information to be disclosed 83.1 Where information is provided to the Deputy Minister for the purposes of any proceedings under this Act in respect of goods of a NAFTA country, the Deputy Minister shall, on receipt of a request from the government of that NAFTA country, provide that government with copies of any such information that is requested that is in documentary form or that is in any other form in which it may be readily and accurately copied, unless the information is information to which Subsection 84(1) applies. Information not to be disclosed 84. (1) Where a person:
and that designation or submission, as the case may be, is not withdrawn by the person, no person employed in the public service of Canada who comes into possession of that information while he is so employed shall, either before or after he ceases to be so employed, knowingly disclose that information, 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. Disclosure of summary or statement (2) Subsection (1) does not apply in respect of any summary of information or statement referred to in paragraph 85(1)(b) or any summary referred to in Subsection 79(2). 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 may be disclosed 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 by that counsel only in those proceedings or other proceedings, subject to such conditions as the Deputy Minister considers are 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:
Definition of "counsel" (4) In Subsection (3), "counsel", in relation to a party to proceedings under this Act, includes any person, other than a director, servant or employee of the party, who acts in the proceedings on behalf of the party. Designation of information as confidential 85. (1) Where a person who provides information to the Deputy Minister for the purposes of proceedings under this Act wishes some or all of the information to be kept confidential, the person shall submit, at the time the information is provided,
together with an explanation that justifies the making of any such statement. Interpretation (2) A person who designates information as confidential pursuant to paragraph (1)(a) fails to comply with paragraph (1)(b) where:
Where there has been failure to comply 86.1 (1) Where a person has designated information as confidential pursuant to paragraph 85(1)(a) and the Deputy Minister considers that the designation is warranted, but the person has failed to comply with paragraph 85(1)(b), the Deputy Minister shall cause the person to be informed of that failure, of the ground on which he has so failed and of the application of Subsection 87(3) if the person fails to take, within the time limited therefor by or pursuant to that Subsection, such action as it is necessary for him to take in order to comply with paragraph 85(1)(b). Where Deputy Minister considers designation unwarranted (2) Where, pursuant to paragraph 85(1)(a), a person has designated information as confidential and the Deputy Minister considers that, because of its nature, extent, availability from other sources or the failure of the person to provide any explanation of why he designated it as confidential, the designation of that information as confidential is unwarranted, the Deputy Minister shall cause the person
Withdrawal of designation or submission of explanation 87. (1) Where a person is notified pursuant to paragraph 86(2)(a) with respect to any information that he has designated as confidential pursuant to paragraph 85(1)(a), the person may, within 15 days after being so notified:
and where the person does neither of those things within the 15 days, that information shall not thereafter be taken into account by the Deputy Minister in the proceedings for the purposes of which it was provided or in any proceedings arising out of those proceedings, unless the Deputy Minister obtains it elsewhere than from that person. Deputy Minister to reconsider (2) Where, pursuant to Subsection (1), a person submits to the Deputy Minister, within the 15 days referred to in that Subsection, an explanation or further explanation of why the person designated information as confidential, the Deputy Minister shall again consider whether, taking into account that explanation or further explanation, the designation of the information as confidential is warranted and, if the Deputy Minister decides that it is not warranted, shall cause the person to be notified that the information will not thereafter be taken into account by the Deputy Minister in the proceedings for the purposes of which it was provided or in any proceedings arising out of those proceedings, in which case the information shall not thereafter be taken into account by the Deputy Minister in any such proceedings, unless he obtains it elsewhere than from that person. Where failure to comply not rectified (3) Subject to Subsection (4), where a person who has been informed pursuant to Section 86 that he has failed to comply with paragraph 85(1)(b) with respect to any information does not, within 15 days after being so informed or within such longer time not exceeding 30 days after being so informed as the Deputy Minister, either before or after the expiration of the 15 days, in his discretion allows, take such action as it is necessary for the person to take in order to comply with paragraph 85(1)(b) the Deputy Minister shall cause the person to be notified that the information will not thereafter be taken into account by the Deputy Minister in the proceedings for the purposes of which it was provided or in any proceedings arising out of those proceedings, in which case the information shall not thereafter be taken into account by the Deputy Minister in any such proceedings, unless he obtains it elsewhere than from that person. Exception (4) Subsection (3) does not apply in respect of any information that the Deputy Minister is prohibited by Subsection (1) or (2) from taking into account in the proceedings for the purposes of which it was provided. Application of Sections 86 and 87 88. Sections 86 and 87 do not apply in respect of evidence submitted to the Deputy Minister pursuant to Subsection 78(3).
Ruling on Who is Importer Request for ruling on who is importer in Canada 89. (1) Where a question arises or is raised as to which of two or more persons is, for the purposes of this Act, the importer in Canada of goods imported or to be imported into Canada on which duty is payable or has been paid or will be payable if the goods are imported, the Deputy Minister may, and at the request of any person interested in the importation of the goods shall, request the Tribunal for a ruling on that question, unless, in the case goods that have been imported into Canada,
Where the Deputy Minister makes a request under Subsection for a ruling on the question referred to therein, the Deputy Minister shall:
Investigation deemed to continue Where, in any investigation, the Deputy Minister makes a final determination of dumping or subsidizing under Subsection 41(1) in respect of any goods, the investigation shall, for the purpose of paragraph (2)(b), be deemed to continue until such time as the Tribunal makes an order or finding in respect of the goods. Tribunal's ruling 90. Where a request is made to the Tribunal under Subsection 89(1) for a ruling on the question referred to therein, the Tribunal:
Rules 91. (1) Where:
the following rules apply:
Limitation on reconsideration of order or finding (2) The Tribunal shall not commence reconsideration of an order or finding under the authority of paragraph (1)(g):
Completion of reconsideration (3) Where the Tribunal reconsiders an order or finding under the authority of paragraph (1)(g):
Separate order or finding (4) Where a reconsideration under the authority of paragraph (1)(g) involves goods of the United States as well as goods of other countries and the Tribunal makes another order or finding under paragraph (3)(a), the Tribunal shall make a separate order or finding under that paragraph with respect to the goods of the United States. Determination pursuant to Section 55 92. A determination made pursuant to Section 55 in respect of any imported goods on the basis that the importer of the goods was a person who is subsequently ruled by the Tribunal not to have been the importer thereof shall be deemed not to have been made and, for the purpose of that Section, the date of the order or finding of the Tribunal with respect to goods that appear to be of the same description as the imported goods shall be deemed to be:
Determination pursuant to Section 56, 57 or 59 93. A determination or re-determination made pursuant to Section 56, 57 or 59 in respect of any goods on the basis that the importer of the goods was a person who is subsequently ruled by the Tribunal not to have been the importer thereof shall be deemed not to have been made and the goods shall, for the purposes of Section 56, be deemed to be accounted for on the earlier of:
Ruling binding 94. A ruling given by the Tribunal on the question of who is the importer in Canada of any goods imported or to be imported into Canada is binding on the Deputy Minister, and on every person employed by the Department of National Revenue in the administration or enforcement of this Act, with respect to the particular goods in relation to which the ruling is given, unless the Tribunal is fraudulently misled or, in the case only of goods to be imported into Canada, material facts that are not available to the Deputy Minister at the time the Tribunal gives its ruling come to the Deputy Minister's attention after it is given. Deputy Minister to provide name of importer 95. Where any person interested in the importation of goods into Canada requests the Deputy Minister to provide the person with the name of the importer of the goods, the Deputy Minister shall, except in prescribed circumstances, forthwith provide the person with the name of the importer.
Gathering of Information Deputy Minister may gather information in advance 96. In order to facilitate the administration and enforcement of this Act, where the Deputy Minister believes that goods sold to an importer in Canada or goods located or in the course of production out of Canada are or may be of the same description as goods to which an order or finding of the Tribunal described in Sections 3, 5 or 6 applies and that they will or may be imported into Canada, the Deputy Minister may, for the purpose of estimating the margin of dumping of or the amount of subsidy on the goods before they are imported into Canada, seek from persons in or out of Canada, in such manner and form as he considers appropriate in the circumstances, such information as he believes will be useful for that purpose.
Application for Review Application for judicial review 96.1 (1) Subject to Section 77.012 or 77.12, an application may be made to the Federal Court of Appeal to review and set aside:
(d) an order of the Tribunal under Subsection 76(3.1);
Grounds of application (2) An application may be made under this Section on the ground that the Deputy Minister or the Tribunal, as the case may be,
(e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. Filing of application (3) Subject to Subsection 77.012(2), an application may be made under this Section by any person directly affected by the determination, decision, order or finding by filing a notice of the application in the Federal Court of Appeal within 30 days after the time the determination, decision, order or finding was first communicated to that person by the Deputy Minister or the Tribunal, or within such further time as the Federal Court of Appeal or a judge thereof may, before or after the expiration of those 30 days, fix or allow. Trial Division deprived of jurisdiction (4) Where the Federal Court of Appeal has jurisdiction under this Section to hear and determine an application to review and set aside a determination, decision, order or finding, the Trial Division has no jurisdiction to entertain any proceeding in respect of that determination, decision, order or finding. Hearing in summary way (5) An application under this Section shall be heard and determined without delay and in a summary way in accordance with the rules made in respect of applications for judicial review pursuant to Sections 18.1 and 28 of the Federal Court Act. Disposition (6) On an application under this Section, the Federal Court of Appeal may dismiss the application, set aside the final determination, decision, order or finding, or set aside the final determination, decision, order or finding and refer the matter back to the Deputy Minister or the Tribunal, as the case may be, for determination in accordance with such directions as it considers appropriate. No references 96.11 (1) Subsection 18.3(1) of the Federal Court Act does not apply to the Deputy Minister or the Tribunal in respect of proceedings under this Act relating to goods of a NAFTA country. Suspension of S. 96.2 (2) The operation of Section 96.2 is suspended during the period in which Subsection (1) is in force. No references 96.2 Subsection 18.3(1) of the Federal Court Act does not apply to the Deputy Minister or the Tribunal in respect of proceedings under this Act relating to goods of the United States. Request for review of final determination 96.21 (1) The Minister for International Trade may, in the manner provided for by the law of a NAFTA country giving effect to the North American Free Trade Agreement, request that a final determination be reviewed by a panel established under that law. Idem (2) Any person who, but for the law of a NAFTA country giving effect to the North American Free Trade Agreement, would be entitled under the law of that NAFTA country to commence domestic proceedings for judicial review of a final determination may file with the Canadian Secretary a request that the final determination be reviewed by a panel established under that law. Deeming (3) A request under Subsection (2) shall be deemed to be a request by the Minister for binational review within the meaning of paragraph 4 of Article 1904 of the North American Free Trade Agreement. Limitation period (4) A request under Subsection (1) or (2) may only be made within 30 days after the day on which notice of the final determination is published in the official publication of the NAFTA country, or, in the case of a final determination of which notice is not so published, within 30 days after the day on which notice of the final determination is received by the Minister. Definition of "final determination" (5) In this Section, "final determination" means a final determination as defined in Annex 1911 of the North American Free Trade Agreement. Suspension of s. 96.3 (6) The operation of Section 96.3 is suspended during the period in which this Section is in force. Request for review of final determination 96.3 (1) The Minister for International Trade may, in the manner provided for by the American law giving effect to the Free Trade Agreement, request that a final determination be reviewed by a panel established under that law. Idem (2) On a request made to the Canadian Secretary by any person who, but for the American law giving effect to the Free Trade Agreement, would be entitled under American law to commence domestic proceedings for judicial review of a final determination, the Minister for International Trade shall, in the manner provided for by the American law giving effect to the Free Trade Agreement, request that the final determination be reviewed by a panel established under that law. Limitation period (3) No request shall be made to the Canadian Secretary under Subsection (2) more than 25 days after the day on which notice of the final determination is published in the Federal Register or, in the case of a final determination of which notice is not so published, the day on which notice of the final determination is received by the Minister. Definition of "final determination" (4) In this Section, "final determination" means a final determination as defined in subparagraph (b) of the definition of that term in Article 1911 of the Free Trade Agreement. REGULATIONS Regulations 97. (1) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations:
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;
Regulations prescribing rate of interest (2) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations prescribing a rate of interest or rules for determining a rate of interest for the purposes of this Act.
RELATED PROVISIONS - R.S., 1985, C. 41 (3rd supp.), M. 115: "115. (1) Every order made by the Governor in Council pursuant to Section 7 of the Customs Tariff, chapter C-41 of the Revised Statutes of Canada, 1970, as that Section read immediately before the coming into force of the Special Import Measures Act, that was in force on the day immediately preceding the coming into force of the Special Import Measures Act shall be deemed to have and to have had the same force and effect for the purposes of that Act and shall continue, and be deemed to have continued, in effect as if it were an order or finding described in Section 3 or 4 of that Act and were made pursuant to Section 43 of that Act and that Act shall apply, and shall be deemed to have applied, in respect of the order as if it had been made on the day on which that Act came into force. (2) For greater certainty, for the purposes of making any review, pursuant to Section 76 of the Special Import Measures Act, of an order referred to in Subsection (1), a review may be made of any report made pursuant to Section 16.1 of the Anti-Dumping Act, chapter A-15 of the Revised Statutes of Canada, 1970, on which the order is based, as if the report were part of the order."
BILL C-57 An Act to implement the Agreement Establishing the World Trade Organization Transitional Provisions 187. In this Section and Section 188, "commencement day" "commencement day" means the day on which this Section comes into force; "new Act" "new Act" means the Special Import Measures Act as it read on the commencement day; "new rules and regulations" "new rules and regulations" means rules made under Section 39, and regulations made under Section 40, of the Canadian International Trade Tribunal Act as those Sections read on the commencement day; "old Act" "old Act" means the Special Import Measures Act as it read on the day immediately before the commencement day; "old rules and regulations" "old rules and regulations" means rules made under Section 39, and regulations made under Section 40, of the Canadian International Trade Tribunal Act as those Sections read on the day immediately before the commencement day; "order or finding" "order or finding" has the same meaning as in Subsection 2(1) of the Special Import Measures Act; "Tribunal" "Tribunal" means the Canadian International Trade Tribunal established by Subsection 3(1) of the Canadian International Trade Tribunal Act. Disposition of notified complaints 188. (1) Subject to this Section, where, 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 Section 2(1) of the old Act, has been given pursuant to paragraph 32(1)(a) of the old Act, any proceeding, process or action in respect of the goods shall be continued and disposed of in accordance with the old Act and the old rules and regulations. Proceedings re goods subject to order made after commencement day (2) Where the Tribunal makes an order or finding pursuant to 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:
shall be disposed of in accordance with the new Act and the new rules or regulations. Effect of order or finding (3) For greater certainty, any order or finding that is in effect on the commencement day shall, for the purposes of Sections 3 to 6 of the new Act, have the same force and effect as if it were made under the new Act. Review by the Tribunal (4) A review by the Tribunal under Subsection 76(2) of the Special Import Measures Act of an order or finding in effect on the commencement day shall be disposed of in accordance with:
New Act does not justify review (5) For the purposes of Subsection 76(3) of the Special Import Measures Act, the Tribunal may not be satisfied that a review of an order or finding is warranted by reason only of the coming into force of the new Act and the new rules and regulations. Determination of normal value, etc., where undertaking (6) 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 Act. Determination of normal value, etc. (7) A normal value, export price, amount of subsidy or margin of dumping determined in relation to goods under the old Act shall, for the purposes of goods released on or after the commencement day, other than goods to which paragraph (2)(c) applies, be deemed to have been made under the new Act. Re-determination of normal value, etc. (8) A re-determination of a normal value, export price, amount of subsidy or margin of dumping referred to in Subsection (7) shall be made in accordance with the new Act.
Application Application to goods from a NAFTA country 189. Sections 144 to 188, any provision of the Special Import Measures Act as enacted by any of those Sections, or any rule or regulation made under the Special Import Measures Act as amended as a result of the Agreement and any regulations under Subsection 13(2) of the Customs Tariff, to the extent that they apply for the purposes of the Special Import Measures Act, apply to goods from a NAFTA country, within the meaning assigned to that expression by Subsection 2(1) of the Special Import Measures Act. |
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