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CANADA Regulations Amending the Special Import Measures Regulations AMENDMENTS 1. In the portion of subsection 11(1) of the Special Import Measures Regulations before paragraph (a), “subparagraph 20(c)(ii)” is replaced by “subparagraph 20(1)(c)(ii)” .2. (1) In the portion of section 13 of the Regulations before paragraph (a), “paragraph 11(b)” is replaced by “paragraph 11(1)(b)”. (2) In paragraph 13(c) of the Regulations, “subparagraph 11(b)(iv)” is replaced by “subparagraph 11(1)(b)(iv)”. 3. In section 14 of the Regulations, “paragraph 20(c)” is replaced by “paragraph 20(1)(c)”. 4. The heading before section 35 and sections 352 and 35.012 of the Regulations are replaced by the following: Excessive Relief of Duties and Taxes on Exported Goods 35. Where the subsidy in relation to any subsidized goods is contingent on the export of the goods and is in the form of an exemption from or remission, refund or drawback equal to an amount greater than the duties or taxes levied on the production, purchase, distribution, transportation, sale, export or import of the goods, the amount of subsidy shall be determined by deducting the amount of duties or taxes levied on or in respect of the exported goods, or the amount of duties or taxes that would have been levied on or in respect of the goods if they had not been exported, from the amount of the exemption, remission, refund or drawback that was granted in connection with the goods, and dividing the result by the quantity of goods, in relation to which the exemption, remission, refund or drawback was granted, that were exported during the period for which the duties or taxes were exempted, remitted, refunded or drawn back. Excessive Relief of Duties and Taxes on Inputs 35.01 (1) Where the subsidy in relation to any subsidized goods is contingent on the export of the goods and is in the form of an exemption from or remission, refund or drawback equal to an amount greater than the duties or taxes levied on goods consumed in the production of the exported goods, the amount of subsidy shall be determined by deducting the amount of duties or taxes levied on or in respect of the consumed goods from the amount of the exemption, remission, refund or drawback that was granted in connection with the consumed goods, and dividing the result by the quantity of goods, in relation to which the exemption, remission, refund or drawback was granted, that were exported during the period for which the duties or taxes were exempted, remitted, refunded or drawn back. (2) For the purpose of subsection (1), the only goods considered to be consumed in the production of the exported goods are (a) energy, fuel, oil and catalysts that are used or consumed in the production of the exported goods; and
5. (1) Subsection 37.1(2) of the Regulations is amended by striking out the word “and” at the end of paragraph (g.1) and by adding the following after that paragraph: (g.2) evidence of the imposition of anti-dumping or countervailing measures by the authorities of a country other than Canada in respect of goods of the same description or in respect of similar goods; and (2) Subsection 37.1(3) of the Regulations is replaced by the following: (3) For the purpose of determining whether the dumping or subsidizing of any goods has caused injury or retardation, or is threatening to cause injury, the following additional factors are prescribed: (a) whether a causal relationship exists between the dumping or subsidizing of the goods and the injury, retardation or threat of injury, on the basis of the factors listed in subsections (1) and (2); and (b) whether any factors other than the dumping or subsidizing of the goods have caused injury or retardation or are threatening to cause injury, on the basis of (i) the volumes and prices of imports of like goods that are not dumped or subsidized, (ii) a contraction in demand for the goods or like goods, (iii) any change in the pattern of consumption of the goods or like goods, (iv) trade-restrictive practices of, and competition between, foreign and domestic producers, (v) developments in technology, (vi) the export performance and productivity of the domestic industry in respect of like goods, and (vii) any other factors that are relevant in the circumstances. 6. The Regulations are amended by adding the following after section 37.1: Expiry Review Factors 37.2 (1) In making a determination under paragraph 76.03(7)(a) of the Act, the Commissioner may consider (a) whether there has been dumping of goods while a finding or order in respect of the goods is in effect and, if applicable, (i) the period during which the dumping occurred, (ii) the volume and prices of the dumped and non-dumped goods, (iii) the margin of dumping, and (iv) for non-dumped goods, the amount by which the export prices exceed the normal values of the goods; (b) whether there has been subsidizing of goods while a finding or order in respect of the goods is in effect and, if applicable, (i) the nature and duration of the foreign subsidy program in respect of the goods, (ii) the period during which the subsidizing occurred, (iii) the volume of the subsidized goods, and (iv) the amount of subsidy; (c) the performance of the exporters, foreign producers, brokers and traders including, where applicable, in respect of production, capacity utilization, costs, sales volumes, prices, inventories, market share, exports and profits; (d) the likely future performance of the exporters, foreign producers, brokers and traders on the basis of factors, where applicable, such as production, capacity utilization, sales volumes, prices, inventories, market share, exports and profits; (e) the potential for the foreign producers to produce the goods in facilities that are currently used to produce other goods; (f) evidence of the imposition of anti-dumping or countervailing measures by the authorities of a country other than Canada in respect of goods of the same description or in respect of similar goods; (g) whether measures taken by the authorities of a country other than Canada are likely to cause a diversion of dumped or subsidized goods into Canada; (h) any changes in market conditions domestically or internationally, including changes in the supply of and demand for the goods, in sources of imports into Canada, and in prices, market share and inventories; (i) the imposition of anti-dumping or countervailing measures by authorities of Canada in respect of similar goods while an order or finding in respect of the goods was in effect; and (j) any other factors that are relevant in the circumstances. (2) In making a determination under subsection 76.03(10) of the Act, the Tribunal may consider (a) the likely volume of the dumped or subsidized goods if the order or finding is allowed to expire, and, in particular, whether there is likely to be a significant increase in the volume of imports of the dumped or subsidized goods, either in absolute terms or relative to the production or consumption of like goods; (b) the likely prices of the dumped or subsidized goods if the order or finding is allowed to expire and their effect on the prices of like goods, and, in particular, whether the dumping or subsidizing of goods is likely to significantly undercut the prices of like goods, depress those prices, or suppress them by preventing increases in those prices that would likely have otherwise occurred; (c) the likely performance of the domestic industry, taking into account that industry’s recent performance, including trends in production, capacity utilization, employment levels, prices, sales, inventories, market share, exports and profits; (d) the likely performance of the foreign industry, taking into account that industry’s recent performance, including trends in production, capacity utilization, employment levels, prices, sales, inventories, market share, exports and profits; (e) the likely impact of the dumped or subsidized goods on domestic industry if the order or finding is allowed to expire, having regard to all relevant economic factors and indices, including any potential decline in output, sales, market share, profits, productivity, return on investments or utilization of production capacity, and any potential negative effects on cash flow, inventories, employment, wages, growth or the ability to raise capital; (f) the potential for the foreign producers to produce the goods in facilities that are currently used to produce other goods; (g) the potential negative effects of the dumped or subsidized goods on existing development and production efforts, including efforts to produce a derivative or more advanced version of like goods; (h) evidence of the imposition of anti-dumping or countervailing measures by the authorities in a country other than Canada in respect of goods of the same description or in respect of similar goods; (i) whether measures taken by the authorities in a country other than Canada are likely to cause a diversion of the dumped or subsidized goods into Canada; (j) any changes in market conditions domestically or internationally, including changes in the supply of and demand for the goods, as well as any changes in trends and in sources of imports into Canada; and
7. Sections 38 to 402 of the Regulations are replaced by the following: 38. Subject to section 39, where the same goods, like good, or similar goods are (a) subject to more than one properly documented complaint, the properly documented complaints may be joined by the Commissioner for the purpose of initiating a single investigation; (b) subject to more than one preliminary inquiry, the preliminary inquiries may be joined by the Tribunal and carried out as one preliminary inquiry; or (c) subject to more than one dumping investigation or subsidy investigation, or one or more dumping investigations and one or more subsidy investigations, the investigations may be joined by the Commissioner and carried out as one investigation. 39. Investigations may not be joined under paragraph 38(c) if a preliminary determination of dumping or subsidizing has been made in respect of any of those investigations. 40. (1) Where properly documented complaints are joined under paragraph 38(a), the Commissioner shall cause a notice of the joining to be given in writing to the complainants and the governments of the countries of export involved in the complaints. (2) Where preliminary inquiries are joined under paragraph 38(b), the Tribunal shall cause a notice of the joining to be given in writing to the Commissioner and the importers, exporters, governments of the countries of export and complainants involved in the inquiries. (3) Where investigations are joined under paragraph 38(c), the Commissioner shall cause a notice of the joining to be given in writing to the Secretary and the importers, exporters, governments of the countries of export and complainants involved in the investigations. Public Interest Inquiry 40.1 (1) A request referred to in subsection 45(1) of the Act shall be made in writing to the Secretary within 45 days after the issuance of an order or finding by the Tribunal under section 43 of the Act. (2) A request referred to in subsection 45(1) of the Act shall (a) include the name, address for service, telephone number and, if any, the facsimile number and electronic mail address of the requester and of the requester’s counsel, if any, and be signed by the requester or by the requester’s counsel, if any; (b) include a statement of the public interest affected by the imposition of an anti-dumping or countervailing duty indicating the degree to which it is affected; (c) include sufficient information as to whether the imposition of an anti-dumping or countervailing duty would not or might not be in the public interest; (d) address all relevant factors, including, where applicable, (i) the availability of goods of the same description from countries or exporters to which the order or finding does not apply, (ii) the effect that the imposition of an anti-dumping or countervailing duty has had or is likely to have on competition in the domestic market, (iii) the effect that the imposition of an anti-dumping or countervailing duty has had or is likely to have on producers in Canada that use the goods as inputs in the production of other goods and in the provision of services, (iv) the effect that the imposition of an anti-dumping or countervailing duty has had or is likely to have on competition by limiting access to goods that are used as inputs in the production of other goods and in the provision of services, or by limiting access to technology, (v) the effect that the imposition of an anti-dumping or countervailing duty has had or is likely to have on the choice or availability of goods at competitive prices for consumers, and (vi) the effect that the non-imposition of an anti-dumping or countervailing duty, or the non-imposition of such a duty in the full amount provided for in sections 3 to 6 of the Act is likely to have on domestic producers of inputs, including primary commodities, used in the production of like goods; and (e) include any other information that is relevant in the circumstances. (3) For the purposes of subsection 45(3) of the Act, the following factors are prescribed: (a) whether goods of the same description are readily available from countries or exporters to which the order or finding does not apply; (b) whether imposition of an anti-dumping or countervailing duty in the full amount (i) has eliminated or substantially lessened or is likely to eliminate or substantially lessen competition in the domestic market in respect of goods, (ii) has caused or is likely to cause significant damage to producers in Canada that use the goods as inputs in the production of other goods and in the provision of services, (iii) has significantly impaired or is likely to significantly impair competitiveness by (A) limiting access to goods that are used as inputs in the production of other goods and in the provision of services, or (B) limiting access to technology, or (iv) has significantly restricted or is likely to significantly restrict the choice or availability of goods at competitive prices for consumers or has otherwise caused or is otherwise likely to cause them significant harm; (c) whether non-imposition of an anti-dumping or countervailing duty or the non-imposition of such a duty in the full amount provided for in sections 3 to 6 of the Act is likely to cause significant damage to domestic producers of inputs, including primary commodities, used in the domestic manufacture or production of like goods; and (d) any other factors that are relevant in the circumstances. (4) Where, in relation to an inquiry, a person referred to in subsection 45(6) of the Act wishes to make representations to the Tribunal on the question referred to in that subsection, the request to make representations shall be made in writing and shall be filed with the Secretary within 21 days after the date of publication of the notice referred to in subsection 45(2) of the Act. (5) A request made by a person under subsection (4) shall out-line the person’s interest in the inquiry and shall give the name, address for service, telephone number, and, if any, the facsimile number and electronic-mail address of the person and of the person’s counsel, if any. 8. Section 41 of the Regulations is replaced by the following: 41. For the purpose of subsection 45(6) of the Act, the expression “person interested” means any person who is (a) engaged in the production, purchase, sale, export or import of any goods that are the subject of an investigation; (b) engaged in the production, purchase or sale of any goods produced in Canada that are like goods in relation to any goods that are the subject of an investigation; (c) acting on behalf of any person referred to in paragraph (a) or (b); (d) engaged in the production or sale of any goods produced in Canada that are used in the production of like goods in relation to any goods that are the subject of an investigation; (e) acting on behalf of any person referred to in paragraph (d); (f) required or authorized by any Act of Parliament or of the legislature of a province to make representations to the Tribunal on the question referred to in subsection 45(6) of the Act; (g) a user of any goods that are like goods in relation to any goods that are the subject of an investigation; or (h) an association whose purpose is to advocate the interests of consumers in Canada. 9. (1) The portion of section 43 of the Regulations before paragraph (a) is replaced by the following: 43. The fees that are payable under section 83 of the Act for the copying of information, and the fees that are payable for the copying of information that is disclosed under subsection 84(3) of the Act, shall be as follows: (2) Paragraphs 43(f)4 and (g)4 of the Regulations are re-placed by the following:
10. The Regulations are amended by adding the following after section 57: 57.1 The Commissioner may refuse to consider representations referred to in subsection 49(5) of the Act after the period beginning on the day on which an undertaking is offered and ending nine days after that day. 11. The Regulations are amended by replacing “subparagraph 20(c)(i)” with “subparagraph 20(1)(c)(i)” in the following provisions:
12. The Regulations are amended by replacing “paragraph 20(d)” with “paragraph 20(1)(d)” in the following provisions:
13. The Regulations are amended by replacing “Deputy Minister” with “Commissioner” in the following provisions with the necessary changes:
14. The Regulations are amended by replacing “Trade Administration Branch” with “Customs and Trade Administration Branch” in the following provisions:
15. The Regulations are amended by replacing “Revenue Canada” with “Canada Customs and Revenue Agency” in the following provisions:
COMING INTO FORCE 16. These Regulations come into force on the date of the coming into force of an Act to Amend the Special Import Measures Act and the Canadian International Trade Tribunal Act. |
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