Short Title

1 These Regulations may be cited as the Special Import Measures Regulations.

Interpretation

2 In these Regulations,

Act

Act means the Special Import Measures Act; (Loi)

American Secretariat

American Secretariat means the United States section of the Secretariat provided for by Article 1909 of the Free Trade Agreement; (secrétariat américain)

industrial research

industrial research[Repealed, SOR/2001-54, s. 1]

officer

officer means an officer as defined in subsection 2(1) of the Customs Act; (agent)

pre-competitive development activity

pre-competitive development activity[Repealed, SOR/2001-54, s. 1]

production

production includes manufacturing, growing and processing; (production)

start-up period of production

start-up period of production means the period that

• (a) begins on the date that

  • (i) new production facilities are first used for commercial production, or

  • (ii) production first commences for commercial purposes of a product that is new, or substantially different from products previously produced by the producer, and that requires production equipment or technology that is new or substantially different from production equipment or technology previously used by the producer, and

• (b) ends on the date that the level of production is no longer limited to a significant degree owing to technical difficulties related to the use of new production facilities or the production of a new or substantially different product. (période de démarrage de la production)

Application

2.1 The operation of the definition American Secretariat in section 2, of Part II.1 and of sections 46 to 49 is suspended for the period during which subsections 56(1.02), 58(1.2) and 59(3.3) and section 77.038 of the Act are in force, except in respect of a definitive decision that was made before the coming into force of subsections 56(1.02), 58(1.2) and 59(3.3) and section 77.038 of the Act.

PART INormal Value and Export Price

NORMAL VALUE ADJUSTMENTS

Quantitative Adjustments

3 For the purposes of sections 15, l9 and 20 of the Act, the price of like goods shall be adjusted to reflect the quantity discount generally granted in connection with a sale of like goods in the same or substantially the same quantities as the quantities of the goods sold to the importer in Canada.

4 Where the quantity discount referred to in section 3 cannot be ascertained, the price of like goods shall be adjusted by

• (a) adding thereto the amount that would reflect the costs that would be incurred by the exporter, or

• (b) deducting therefrom the amount that would reflect the savings that would accrue to the exporter,

if the like goods were sold by the exporter in the same or substantially the same quantities as the quantities of goods sold to the importer in Canada.

Qualitative Differences

5 For the purposes of sections 15, 19 and 20 of the Act, where the goods sold to the importer in Canada and the like goods differ

• (a) in their quality, structure, design or material,

• (b) in their warranty against defect or guarantee of performance,

• (c) in the time permitted from their date of order to the date of their scheduled shipment, or

• (d) in their conditions of sale, other than the conditions referred to in paragraphs (b) or (c) or any conditions that result in any adjustment being made pursuant to any other section of these Regulations,

and that difference would be reflected in a difference between the price of the like goods and the price at which goods that are identical in all respects, including conditions of sale, to the goods sold to the importer in Canada would be sold in the country of export, the price of the like goods shall be adjusted

• (e) where the price of the like goods is greater than the price of the identical goods, by deducting therefrom the estimated difference between those prices; and

• (f) where the price of the like goods is less than the price of the identical goods, by adding thereto the estimated difference between those prices.

Discounts

6 For the purposes of sections 15, 19 and 20 of the Act, where any rebate, deferred discount or discount for cash is generally granted in relation to the sale of like goods in the country of export, the price of the like goods shall be adjusted by deducting therefrom the amount of any such generally granted rebate or discount for which the sale of the goods to the importer in Canada would qualify if that sale occurred in the country of export.

Delivery Costs

7 For the purposes of sections 15 and 19 and subparagraph 20(1)(c)(i) of the Act, where like goods are sold at a delivered price, the price of the like goods shall be adjusted by deducting therefrom the cost of their delivery.

8 For the purposes of sections 15 and 19 and subparagraph 20(1)(c)(i) of the Act, where like goods are generally sold at a common delivered price when delivered to any destination within a zone that, under the ordinary commercial practice of the vendor of the like goods, is considered to be a common transportation zone, the price of the like goods shall be adjusted by deducting therefrom an amount that reflects the average cost incurred by the vendor in delivering the like goods to destinations in that zone.

Substitution of Trade Level

9 For the purposes of sections 15 and 19 and subparagraph 20(1)(c)(i) of the Act, where purchasers of like goods who are at the trade level nearest and subsequent to that of the importer in Canada have been substituted for purchasers who are at the same or substantially the same trade level as that of the importer, the price of the like goods shall be adjusted by deducting therefrom

• (a) the amount of any costs, charges or expenses incurred by the vendor of the like goods in selling to purchasers who are at the trade level nearest and subsequent to that of the importer that result from activities that would not be performed if the like goods were sold to purchasers who are at the same or substantially the same trade level as that of the importer; or

• (b) in the absence of information relating to the costs, charges and expenses mentioned in paragraph (a), an amount not exceeding the discount that is generally granted on the sale of like goods by other vendors in the country of export to purchasers who are at the same or substantially the same trade level as the importer.

Taxes and Duties

10 For the purposes of sections 15, 19 and 20 of the Act, where any taxes or duties that are borne by like goods or any materials or components forming a part thereof are not borne by the goods sold to the importer in Canada, the price of the like goods shall be adjusted by deducting therefrom the amount of those taxes or duties.

Cost of Production and Other Costs

• 11 (1) For the purposes of paragraph 19(b) and subparagraph 20(1)(c)(ii) of the Act,

  • (a) subject to section 12 of these Regulations, the expression cost of production, in relation to any goods, means the aggregate of all costs that are

    • (i) attributable to, or in any manner related to, the production of the goods, or

    • (ii) directly attributable to the design or engineering of the goods;

  • (b) the expression a reasonable amount for profits, in relation to any goods, means an amount equal to

    • (i) where the exporter has made in the country of export a number of sales of like goods for use in the country of export, and where those sales when taken together produce a profit and are such as to permit a proper comparison, the weighted average profit made on the sales,

    • (ii) where subparagraph (i) is not applicable but the exporter has made in the country of export a number of sales of goods that are of the same general category as the goods sold to the importer in Canada and are for use in the country of export, and where those sales when taken together produce a profit and are such as to permit a proper comparison, the weighted average profit made on the sales,

    • (iii) where subparagraphs (i) and (ii) are not applicable but producers, other than the exporter, have made in the country of export a number of sales of like goods for use in the country of export, and where those sales when taken together produce a profit and are such as to permit a proper comparison, the weighted average profit made on the sales,

    • (iv) where subparagraphs (i) to (iii) are not applicable but producers, other than the exporter, have made in the country of export a number of sales of goods that are of the same general category as the goods sold to the importer in Canada and are for use in the country of export, and where those sales when taken together produce a profit and are such as to permit a proper comparison, the weighted average profit made on the sales,

    • (v) where subparagraphs (i) to (iv) are not applicable but the exporter has made in the country of export a number of sales of goods that are of the group or range of goods that is next largest to the category referred to in subparagraph (iv) and are for use in the country of export, and where those sales when taken together produce a profit and are such as to permit a proper comparison, the weighted average profit made on the sales, or

    • (vi) where subparagraphs (i) to (v) are not applicable but producers, other than the exporter, have made in the country of export a number of sales of goods that are of the group or range of goods that is next largest to the category referred to in subparagraph (iv) and are for use in the country of export, and where those sales when taken together produce a profit and are such as to permit a proper comparison, the weighted average profit made on the sales; and

  • (c) the expression a reasonable amount for administrative, selling and all other costs, in relation to any goods, means

    • (i) an amount equal to all administrative, selling and other costs, including the costs of any warranty against defect or guarantee of performance and any design or engineering costs, that are not included in the cost of production but are reasonably attributable to the production and domestic sales of like goods made by the exporter, that satisfy the greatest number of the conditions set out in paragraphs 15(a) to (e) of the Act, taking into account subsection 16(1) of the Act, or

    • (ii) where an amount cannot be determined under subparagraph (i), an amount equal to all administrative, selling and other costs, including the costs of any warranty against defect or guarantee of performance and any design or engineering costs, that are not included in the cost of production but are reasonably attributable to the production and sale of the goods.

• (2) For the purposes of subparagraphs (1)(b)(i), (ii) and (v), where the exporter is not the producer of the goods referred to in those subparagraphs, a reasonable amount for profits shall also include the amount of profits earned by the producer and any subsequent vendors in respect of sales of those goods to the exporter.

• (3) For the purpose of subparagraph (1)(c)(i), where the exporter is not the producer of the goods referred to in that subparagraph, a reasonable amount for administrative, selling and all other costs shall also include the amounts incurred by the producer and any subsequent vendors in respect of sales of those goods to the exporter.

11.1 For the purpose of subsection 16(3) of the Act,

• (a) the cost of production, in relation to any goods, shall, subject to section 12, be calculated by aggregating all costs that are

  • (i) attributable to, or in any manner related to, the production of the goods, or

  • (ii) directly attributable to the design or engineering of the goods; and

• (b) the administrative, selling and all other costs, in relation to any goods, shall be calculated by aggregating all administrative, selling and other costs, including the cost of any warranty against defect or guarantee of performance and any design or engineering costs that are not included in the cost of production but are attributable to the production and sale of the goods.

12 For the purposes of subparagraphs 11(1)(a)(ii) and 11.1(a)(ii), where the costs that are directly attributable to the design or engineering of the goods (in this section referred to as “first-mentioned goods”) cannot be determined, but the costs that are directly attributable to the design or engineering of goods of the same general category as the first-mentioned goods, produced and sold by any exporter or producer, can be determined, the costs that are directly attributable to the design or engineering of the first-mentioned goods shall be considered to be the amount that reflects the cost of the design or engineering of the goods of the same general category, such amount being adjusted to reflect the value of any differences in the design or engineering between the first-mentioned goods and the goods of the same general category.

13 For the purposes of paragraph 11(1)(b),

• (a) sales that are such as to permit a proper comparison are sales, other than sales referred to in paragraph 16(2)(a) or (b) of the Act, that satisfy the greatest number of the conditions set out in paragraphs 15(a) to (e) of the Act, taking into account subsection 16(1) of the Act;

• (b) the price of like goods shall be adjusted in the manner provided for in sections 3 to 10; and

• (c) the price of goods of the same general category or of goods of the group or range of goods that is next largest to the category referred to in subparagraph 11(1)(b)(iv) shall be adjusted in the manner provided for in sections 3 to 10, and for that purpose the expression “like goods” shall be read as “goods of the same general category” or “goods of the group or range of goods that is next largest to the category referred to in subparagraph 11(1)(b)(iv)”, as the case may be, wherever that expression occurs in those sections.

• 13.1 (1) Subject to subsection (2), for the purpose of section 23.1 of the Act, the cost of production of goods, and the administrative, selling and all other costs with respect to the goods, for a start-up period of production shall be determined in accordance with sections 11 and 11.1.

• (2) Where any of the costs determined under subsection (1) are affected by start-up operations that limit the level of production associated with the initial phases of commercial production owing to technical difficulties during the start-up period of production that are related to the use of new production facilities or the production of a new or substantially different product, the affected costs shall be adjusted on the basis of the costs that exist at the end of the start-up period of production or, if the period extends beyond the investigation period, on the basis of the costs that exist at the end of that period.

State Trading Countries

14 For the purpose of determining the normal value of any goods pursuant to paragraph 20(1)(c) of the Act, sections 4 to 6, 9 and 11 shall be read with the substitution of

• (a) the expression “country of production” for the expression “country of export”, wherever that expression occurs therein; and

• (b) the word “producer” for the word “exporter”, wherever that word occurs therein.

15 For the purpose of determining the normal value of any goods pursuant to paragraph 20(1)(d) of the Act, sections 4 to 6 shall be read with the substitution of

• (a) the expression “vendor in Canada of the imported like goods” for the word “exporter”, wherever that word occurs therein; and

• (b) the word “Canada” for the expression “the country of export”, wherever that expression occurs therein.

16 For the purpose of determining the normal value of any goods pursuant to paragraph 20(1)(d) of the Act, the price of like goods sold in Canada shall be adjusted by deducting therefrom an amount equal to the sum of

• (a) all costs, including any duties and taxes, that result from the importation of the like goods or their sale by the importer to the purchaser in Canada;

• (b) the amount of profit, determined in accordance with section 17, made by the importer of the like goods on their sale;

• (c) all costs, charges and expenses incurred by the importer or exporter of the like goods, or any other person, in preparing the like goods for shipment to Canada that are additional to the costs, charges and expenses generally incurred on sales of the like goods for domestic consumption in the country of export; and

• (d) all other costs, charges and expenses incurred by the exporter or importer of the like goods, or any other person, that result from the exportation of the like goods or arise from their shipment to Canada.

17 For the purposes of paragraph 16(b), the amount of profit made by an importer on the sale of like goods in Canada is

• (a) the amount of profit that generally results from sales of like goods by vendors in Canada who are at the same or substantially the same trade level as the importer of the like goods to purchasers in Canada who are not associated with those vendors;

• (b) if the amount described in paragraph (a) cannot be determined, the amount of profit that generally results from sales of goods of the same general category as the like goods by vendors in Canada, who are at the same or substantially the same trade level as the importer of the like goods to purchasers in Canada who are not associated with those vendors; or

• (c) where the amounts described in paragraphs (a) and (b) cannot be determined, the amount of profit that generally results from sales of goods that are of the group or range of goods that is next largest to the category referred to in paragraph (b), by vendors in Canada who are at the same or substantially the same trade level as the importer, to purchasers in Canada who are not associated with those vendors.

• 17.1 (1) For the purposes of subsection 20(1) of the Act, the customs territory of the People’s Republic of China is a prescribed country.

• (2) [Repealed, SOR/2013-81, s. 1]

• 17.2 (1) For the purposes of subsection 20(1) of the Act, the customs territory of the Socialist Republic of Vietnam is a prescribed country.

• (2) [Repealed, SOR/2013-81, s. 2]

Discount Rate for Normal Value

18 For the purposes of subsection 21(1) of the Act, where it is not possible to ascertain the interest rate referred to in clause 21(1)(a)(ii)(A) of the Act or there is no such interest rate, the interest rate to be selected is

• (a) the interest rate prevailing, in the country in which the like goods were sold, at the date of the sale of the like goods, for commercial loans available in that country in the same currency in which the payments for the like goods are expressed and on credit terms, other than the interest rate, that most closely approximate the credit terms on which the sale was made;

• (b) where the interest rate described in paragraph (a) cannot be ascertained or where there is no such interest rate, the lowest interest rate prevailing, in any country other than the country in which the like goods were sold, at the date of the sale of the like goods, for commercial loans available in that other country in the same currency in which the payments for the like goods are expressed and on credit terms, other than the interest rate, comparable to the credit terms on which the sale was made;

• (c) where the interest rates described in paragraphs (a) and (b) cannot be ascertained or where there are no such interest rates, the lowest interest rate prevailing, in any country other than the country in which the like goods were sold, at the date of the sale of the like goods, for commercial loans available in that other country in the same currency in which the payments for the like goods are expressed and on credit terms, other than the interest rate, that most closely approximate the credit terms on which the sale was made;

• (d) where the interest rates described in paragraphs (a) to (c) cannot be ascertained or where there are no such interest rates, the interest rate equal to the average yield in the year preceding the sale of the like goods on securities, for terms not exceeding one year, issued by the government that issues the currency in which the payments for the like goods are expressed; or

• (e) where the interest rates described in paragraphs (a) to (d) cannot be ascertained or where there are no such interest rates, the average interest rate paid on Special Drawing Rights held by the International Monetary Fund in the year preceding the sale of the like goods.

19 Where the normal value of any goods is to be determined under paragraph 20(1)(d) of the Act, section 18 of these Regulations shall be read with the substitution of

• (a) the word “Canada” for the expressions “the country in which the like goods were sold” and “that country”, wherever those expressions occur therein; and

• (b) the expression “sale of the imported like goods” for the expression “sale of the like goods”, wherever that expression occurs therein.

EXPORT PRICE ADJUSTMENTS

Profits

20 For the purpose of subparagraph 25(1)(c)(ii) of the Act, the expression an amount for profit, in relation to a sale of goods by an importer, means the amount of profit that would be made in the ordinary course of trade on the sale of the goods.

21 For the purpose of subparagraph 25(1)(d)(i) of the Act, the expression an amount for profit, in relation to any assembled, packaged or otherwise further manufactured goods or any goods into which imported goods have been incorporated, means the amount of profit that would be made in the ordinary course of trade on the sale of the goods.

22 For the purposes of sections 20 and 21, the amount of profit that would be made in the ordinary course of trade on the sale of the goods is

• (a) the amount of profit that generally results from sales of like goods in Canada by vendors who are at the same or substantially the same trade level as the importer to purchasers in Canada who are not associated with those vendors;

• (b) where the amount described in paragraph (a) cannot be determined, the amount of profit that generally results from sales of goods of the same general category in Canada by vendors who are at the same or substantially the same trade level as the importer to purchasers in Canada who are not associated with those vendors; or

• (c) where the amounts described in paragraphs (a) and (b) cannot be determined, the amount of profit that generally results from sales of goods that are of the group or range of goods that is next largest to the category referred to in paragraph (b), by vendors in Canada who are at the same or substantially the same trade level as the importer, to purchasers in Canada who are not associated with those vendors.

Discount Rate for Export Price

23 For the purposes of subsection 27(1) of the Act, where it is not possible to ascertain the interest rate referred to in clause 27(1)(a)(ii)(A) of the Act or there is no such interest rate, the interest rate to be selected is

• (a) the interest rate prevailing, at the date of the sale of the goods to the importer in Canada, in the country in which the vendor is located, for commercial loans available in that country in the same currency in which the payments for the goods are expressed and on credit terms, other than the interest rate, that most closely approximate the credit terms on which the sale was made;

• (b) where the interest rate described in paragraph (a) cannot be ascertained or where there is no such interest rate, the lowest interest rate prevailing, at the date of the sale of the goods to the importer in Canada, in any country other than the country in which the vendor is located, for commercial loans available in that other country in the same currency in which the payments for the goods are expressed and on credit terms, other than the interest rate, comparable to the credit terms on which the sale was made;

• (c) where the interest rates described in paragraphs (a) and (b) cannot be ascertained or where there are no such interest rates, the lowest interest rate prevailing, at the date of the sale of the goods to the importer in Canada, in any country other than the country in which the vendor is located, for commercial loans available in that other country in the same currency in which the payments for the goods are expressed and on credit terms, other than the interest rate, that most closely approximate the credit terms on which the sale was made;

• (d) where the interest rates described in paragraphs (a) to (c) cannot be ascertained or where there are no such interest rates, the interest rate equal to the average yield in the year preceding the sale of the goods to the importer in Canada on securities, for terms not exceeding one year, issued by the government that issues the currency in which the payments for the goods are expressed; or

• (e) where the interest rates described in paragraphs (a) to (d) cannot be ascertained or there are no such interest rates, the average interest rate paid on Special Drawing Rights held by the International Monetary Fund in the year preceding the sale of the goods to the importer in Canada.

24 Where an export price is determined under section 25 of the Act, section 23 of these Regulations shall be read with the substitution of

• (a) the word “Canada” for the expressions “the country in which the vendor is located” and “that country”, wherever those expressions occur therein; and

• (b) the expression “sale of the goods by the importer in Canada” for the expression “sale of the goods to the importer in Canada”, wherever that expression occurs therein.

Goods in Transit

25 For the purpose of subsection 30(1) of the Act, the normal value and export price of goods exported to Canada from one country but passing in transit through another country shall be determined as if the goods were shipped directly to Canada from the first-mentioned country if

• (a) the goods are conveyed to Canada from the first-mentioned country on a through bill of lading to a consignee in Canada;

• (b) the goods have not been entered for trade or consumption in an intermediate country or have not remained in an intermediate country for any purpose other than transhipment; and

• (c) where requested by an officer, the importer of the goods submits

  • (i) the original bill of lading for the goods, or a certified copy of it, or

  • (ii) if the original bill of lading for the goods, or a certified copy of it, is not available, any other information or documents that are available to the importer for the purpose of determining the country of export of the goods.

Sustained Movement in the Rate of Exchange

• 25.1 (1) For the purpose of section 30.2 of the Act, where a sale of goods to an importer in Canada takes place during a period in which there is a sustained movement in the rate of exchange that results in an appreciation of the value of the foreign currency in which the normal value of the goods is denominated in terms of the currency in which the exporter’s selling price of those goods is denominated, and the exporter’s selling price of those goods is adjusted from the price prevailing 60 days before the date of the sale to reflect the sustained movement in the rate of exchange, the export price of the goods shall be adjusted by multiplying that price by the result obtained by dividing the prevailing rate of exchange in respect of the foreign currency for the date of sale, by the average of the rates of exchange in respect of that foreign currency prevailing for each of the 30 days before the 60th day before the date of sale.

• (2) Where the exporter’s selling price of the goods is denominated in Canadian dollars, the prevailing rate of exchange for the purpose of subsection (1) shall be the rate of exchange referred to in section 5 of the Currency Exchange for Customs Valuation Regulations.

• (3) Where the exporter’s selling price of the goods is denominated in foreign currency, the prevailing rate of exchange for the purpose of subsection (1) shall be determined on the basis of rates of exchange referred to in section 5 of the Currency Exchange for Customs Valuation Regulations.

PART I.1Margin of Dumping Based on Percentage or Sample

• 25.2 (1) For the purpose of subsection 30.3(3) of the Act, the margin of dumping in relation to the goods of an exporter that were not included in the percentage or sample and the goods of the exporter for which a margin of dumping was not determined in accordance with subsection 30.3(2) of the Act shall be equal to the weighted average margin of dumping established as a result of the application of sections 15 to 30 of the Act in respect of goods from that exporter that are included in the percentage or sample.

• (2) Where a margin of dumping cannot be determined under subsection (1) because no goods from the exporter were included in the percentage or sample, the margin of dumping shall

  • (a) be equal to the weighted average of the margins of dumping established as a result of the application of sections 15 to 28 and 30 of the Act, excluding paragraph 25(1)(e), in respect of goods that are from the same country and are included in the percentage or sample;

  • (b) where a margin of dumping cannot be determined under paragraph (a), be equal to the weighted average of the margins of dumping established as a result of the application of sections 15 to 28 and 30 of the Act, excluding paragraph 25(1)(e), in respect of goods that are from all other countries whose goods are under consideration and are included in a percentage or sample; or

  • (c) where a margin of dumping cannot be determined under paragraph (a) or (b), be determined in a reasonable manner based on the information available to the Commissioner.

• (3) Any margin of dumping that is insignificant shall not be taken into account in a determination of the margin of dumping under subsection (2).

25.3 [Repealed, SOR/2001-54, s. 2]

PART IIAmount of Subsidy

General

26 There shall be deducted from the amount of subsidy in relation to any subsidized goods

• (a) the amount of any fee or other expense necessarily incurred by the recipient of the subsidy in obtaining the subsidy;

• (b) the amount of any tax, duty or other charge levied by a government against the recipient of the benefit of the subsidy for the purpose of offsetting the subsidy; and

• (c) the amount of any loss in the value of the subsidy that results from the deferred receipt of the subsidy where the deferral has been imposed by the government that granted the subsidy.

Grant

27 Where the subsidy in relation to any subsidized goods is in the form of a grant, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, the amount of the grant over

• (a) where the grant was, or is, to be used for operating expenses in the production, purchase, distribution, transportation, sale, export or import of subsidized goods, the estimated total quantity of subsidized goods to which the grant is attributable;

• (b) where the grant was, or is, to be used for the purchase or construction of a fixed asset, the estimated total quantity of subsidized goods for the production, purchase, distribution, transportation, sale, export or import of which the fixed asset was, or will be, used for the anticipated useful life of the fixed asset;

• (c) where the use of the grant was, or is, not for the purposes described in paragraph (a) or (b) or is unknown, the estimated total quantity of subsidized goods the production, purchase, distribution, transportation, sale, export or import of which was, or will be, carried out by the person who received the grant during the weighted average useful life, not exceeding 10 years, of fixed assets used by the industry of that person.

• 27.1 (1) Any amount that relates to the direct transfer of funds or liabilities by the practices of a government shall be treated as a grant under section 27.

• (2) Any amount otherwise owing and due to a government that is exempted or deducted and any amount owing and due to a government that is forgiven or not collected by the government shall be treated as a grant under section 27.

Loan at a Preferential Rate

28 Where the subsidy in relation to any subsidized goods is in the form of a preferential loan, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, over the quantity of goods determined in accordance with section 31, the present value of the sum of

• (a) the amount determined in accordance with section 29, and

• (b) any costs, other than interest, that would have been incurred by the recipient of the preferential loan with respect to a non-guaranteed commercial loan that the recipient could have obtained,

such present value being determined as of the date the loan funds were advanced and by reference to the discount rate referred to in section 30.

• 29 (1) The amount referred to in paragraph 28(a) is the difference between

  • (a) the amount of interest that would be payable, by the recipient of the preferential loan, on a non-guaranteed commercial loan in the same currency in which the payments for the preferential loan are expressed and on the same credit terms, other than the interest rate, as are applicable to the preferential loan, and

  • (b) the amount of interest payable on the preferential loan.

• (2) For the purposes of paragraph (1)(a), the interest rate is

  • (a) the prevailing interest rate in the territory of the government that made the preferential loan, at the date the preferential loan was made, in respect of non-guaranteed commercial loans that the recipient of the preferential loan could have obtained, in the same currency in which the payments for the preferential loan are expressed and on credit terms, other than the interest rate, that are the same or substantially the same as the credit terms of the preferential loan;

  • (b) where the interest rate described in paragraph (a) cannot be ascertained or where there is no such interest rate, the prevailing interest rate in the territory of the government that provided the preferential loan, at the date the preferential loan was provided, in respect of non-guaranteed commercial loans that the recipient of the preferential loan could have obtained, in the same currency in which the payments for the preferential loan are expressed and on credit terms, other than the interest rate, that most closely approximate the credit terms of the preferential loan; or

  • (c) where the interest rates described in paragraphs (a) and (b) cannot be ascertained or where there are no such interest rates, the prevailing interest rate in the territory of the government that provided the preferential loan, at the date the preferential loan was made, in respect of non-guaranteed commercial loans that

    • (i) producers of like goods, whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the preferential loan, could have obtained,

    • (ii) where subparagraph (i) is not applicable, producers of goods of the same general category, whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the preferential loan, could have obtained, or

    • (iii) where subparagraphs (i) and (ii) are not applicable, producers of goods of the group or range of goods that is next largest to the category referred to in subparagraph (ii), whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the preferential loan, could have obtained,

    in the same currency in which the payments for the preferential loan are expressed and on credit terms, other than the interest rate, that most closely approximate the credit terms of the preferential loan.

30 The discount rate for the purposes of section 28 is the same as the interest rate determined in accordance with subsection 29(2).

31 The quantity of goods, for the purpose of section 28, is

• (a) where the preferential loan was, or is, to be used for operating expenses in the production, purchase, distribution, transportation, sale, export or import of subsidized goods, the estimated total quantity of subsidized goods to which the preferential loan is attributable;

• (b) where the preferential loan was, or is, to be used for the purchase or construction of a fixed asset, the estimated total quantity of subsidized goods for the production, purchase, distribution, transportation, sale, export or import of which the fixed asset was, or will be, used for the anticipated useful life of the fixed asset;

• (c) where the use of the preferential loan was not or is not for the purposes described in paragraph (a) or (b) or is unknown, the estimated total quantity of subsidized goods the production, purchase, distribution, transportation, sale, export or import of which was or will be carried out by the person who received the preferential loan during the weighted average useful life of fixed assets, not exceeding 10 years, used by the industry in which that person is engaged.

Loan Guarantees

• 31.1 (1) Where the subsidy in relation to any subsidized goods is in the form of a loan guarantee, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, over the quantity of goods determined in accordance with subsection (2), the present value of the difference between

  • (a) the amount of interest and any administrative fees the person on whose behalf the guarantee is provided would have had to pay in respect of the loan had it not been for the guarantee, and

  • (b) the amount of interest and any administrative fees the person on whose behalf the guarantee is provided will actually pay in respect of the loan secured by the guarantee,

  such present value being determined as of the date the loan funds were advanced and by reference to the discount rate determined in accordance with subsection (3).

• (2) For the purposes of subsection (1), the quantity of goods is

  • (a) where the loan secured by the guarantee was, or is, to be used for operating expenses in the production, purchase, distribution, transportation, sale, export or import of subsidized goods, the estimated total quantity of subsidized goods to which the loan is attributable;

  • (b) where the loan secured by the guarantee was, or is, to be used for the purchase or construction of a fixed asset, the estimated total quantity of subsidized goods for the production, purchase, distribution, transportation, sale, export or import of which the fixed asset was, or will be, used during the anticipated useful life of the fixed asset;

  • (c) where the use of the loan secured by the guarantee was not or is not a use set out in paragraph (a) or (b) or is unknown, the estimated total quantity of subsidized goods the production, purchase, distribution, transportation, sale, export or import of which was or will be carried out by the person who received the loan during the weighted average useful life of fixed assets, not exceeding 10 years, used by the industry in which that person is engaged.

• (3) For the purposes of subsection (1), the discount rate is

  • (a) the prevailing interest rate in the territory of the government that provided the loan guarantee, at the date the loan was made, in respect of commercial loans that the recipient of the loan could have obtained, in the same currency in which the payments for the loan are expressed and on credit terms, other than the interest rate, that are the same or substantially the same as the credit terms of the loan;

  • (b) where the interest rate described in paragraph (a) cannot be ascertained or where there is no such interest rate, the prevailing interest rate in the territory of the government that provided the loan guarantee, at the date the loan was made, in respect of commercial loans that the recipient of the loan could have obtained, in the same currency in which the payments for the loan are expressed and on credit terms, other than the interest rate, that most closely approximate the credit terms of the loan; or

  • (c) where the interest rates described in paragraphs (a) and (b) cannot be ascertained or where there are no such interest rates, the prevailing interest rate in the territory of the government that provided the loan guarantee, at the date the loan was made, in respect of commercial loans that

    • (i) producers of like goods, whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the loan, could have obtained,

    • (ii) where subparagraph (i) is not applicable, producers of goods of the same general category, whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the loan, could have obtained, or

    • (iii) where subparagraphs (i) and (ii) are not applicable, producers of goods of the group or range of goods that is next largest to the category referred to in subparagraph (ii), whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the loan, could have obtained,

    in the same currency in which the payments for the loan are expressed and on credit terms, other than the interest rate, that most closely approximate the credit terms of the loan.

Income Tax Credits, Refunds and Exemptions

32 Where the subsidy in relation to any subsidized goods is contingent on the export of those goods and in the form of a credit against, a refund of or an exemption from income taxes levied during any period, the amount of subsidy shall be determined by dividing

• (a) the amount of the credit, refund or tax not paid by reason of the exemption, as the case may be,

by

• (b) the quantity of goods exported during the period.

Deferral of Income Taxes

33 Where the subsidy in relation to any subsidized goods is contingent on the export of those goods and in the form of a deferral of income taxes, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, the amount determined in accordance with section 34 over the quantity of goods exported during the period for which taxes would have been paid had the taxes not been deferred.

• 34 (1) The amount for the purpose of section 33 is the present value of the interest that would have been payable, by the recipient of the deferral of income taxes, on a commercial loan in an amount equal to the amount of the deferred taxes, for a period equal to the period of the deferral, and with repayment terms similar to those in the payment schedule that applies to the deferred taxes, such present value being determined as of the date the deferral of income taxes came into effect in respect of the recipient of the deferral and by reference to the discount rate determined in accordance with subsection (2), and the interest rate in respect of such a loan being equal to the rate that is

  • (a) the prevailing interest rate in the territory of the government that permitted the deferral of income taxes, at the date the taxes would have been payable had they not been deferred, in respect of commercial loans that the recipient of the deferral could have obtained and that have a period the same or substantially the same as the period of the deferral and repayment terms comparable to those in the payment schedule applicable to the deferred taxes;

  • (b) where the interest rate described in paragraph (a) cannot be ascertained or where there is no such interest rate, the prevailing interest rate in the territory of the government that permitted the deferral, at the date the taxes would have been payable had they not been deferred, in respect of commercial loans that the recipient of the deferral could have obtained and that have a period that most closely approximates that of the period of the deferral and repayment terms that most closely approximate those in the payment schedule applicable to the deferred taxes; or

  • (c) where the interest rates described in paragraphs (a) and (b) cannot be ascertained or where there are no such interest rates, the prevailing interest rate in the territory of the government that permitted the deferral, at the date the taxes would have been payable had they not been deferred, in respect of commercial loans that

    • (i) producers of like goods, whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the deferral, could have obtained,

    • (ii) where subparagraph (i) is not applicable, producers of goods of the same general category, whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the deferral, could have obtained, or

    • (iii) where subparagraphs (i) and (ii) are not applicable, producers of goods of the group or range of goods that is next largest to the category referred to in subparagraph (ii), whose financial creditworthiness is the same or substantially the same as or, in the absence of that condition, approximates that of the recipient of the deferral, could have obtained,

    and that have a period that most closely approximates that of the period of the deferral and repayment terms that most closely approximate those in the payment schedule applicable to the deferred taxes.

• (2) The discount rate for the purposes of subsection (1) is the same as the interest rate determined in accordance with that subsection.

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

  • (b) goods incorporated into the exported goods.

Acquisition of Shares

35.1 Where the subsidy in relation to any subsidized goods is in the form of the acquisition of shares, by a government, in a corporate enterprise, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, over the estimated total quantity of subsidized goods to which the subsidy is attributable, the difference between

• (a) the amount the government paid or agreed to pay for the shares, and

• (b) the fair market value of those shares immediately before the government’s decision to acquire the shares became public.

Purchase of Goods

35.2 Where the subsidy in relation to any subsidized goods is in the form of the purchase, by a government, of goods, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, over the estimated total quantity of subsidized goods to which the subsidy is attributable, the difference between

• (a) the amount the government paid or agreed to pay for the goods, and

• (b) the fair market value of the goods in the territory of that government.

Goods or Services Provided by a Government

36 Where the subsidy in relation to any subsidized goods is in the form of the provision, by a government, of goods or services, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, over the estimated total quantity of subsidized goods to which the subsidy is attributable, the difference between

• (a) the fair market value of the goods or services in the territory of the government providing the subsidy, and

• (b) the price at which the goods or services were provided by that government.

36.001 Where there is a significant difference between the amount of subsidy in relation to goods as otherwise determined under this Part and the future value, on the date of sale of the goods, of the amount of subsidy so determined, the amount of subsidy shall be the future value, on the date of sale, of the amount of subsidy as otherwise determined under this Part.

PART II.01Dispute Settlement Respecting Goods of a NAFTA Country

36.01 In this Part,

American Secretary

American Secretary means the person designated to serve as Secretary to the American Section of the Secretariat; (secrétaire américain)

Mexican Secretary

Mexican Secretary means the person designated to serve as Secretary to the Mexican Section of the Secretariat; (secrétaire mexicain)

Secretariat

Secretariat means the Secretariat established pursuant to paragraph 1 of Article 2002 of the North American Free Trade Agreement. (Secrétariat)

36.02 For the purposes of the definition government of a NAFTA country in subsection 2(1) of the Act, the following are prescribed departments, agencies or other bodies:

• (a) for the purposes of subsection 77.011(1), subsection 77.011(6) of the English version, subsections 77.015(5), 77.017(1) and (3) and 77.019(6) of the Act,

  • (i) in respect of Mexico, the office of the Mexican Secretary, and

  • (ii) in respect of the United States, the office of the American Secretary;

• (b) for the purposes of subsections 77.011(4) and 77.013(3) of the Act,

  • (i) in respect of Mexico, the Secretaría de Comercio y Fomento Industrial (Secretariat of Trade and Industrial Development), and

  • (ii) in respect of the United States, the Department of State; and

• (c) for the purposes of subsection 77.023(1), section 77.025 and subsections 77.028(1) and 77.031(1) and (2) of the Act,

  • (i) in respect of Mexico, the Secretaría de Comercio y Fomento Industrial (Secretariat of Trade and Industrial Development), and

  • (ii) in respect of the United States, the office of the United States Trade Representative.

36.03 A government of a province of Canada or of a state of the United States that is aggrieved by a definitive decision is deemed to be a person who is entitled to file a request with the Canadian Secretary under subsection 77.011(2) of the Act.

36.04 For the purposes of subsection 77.012(1) of the Act, notice of an intention to make an application or to appeal in respect of a definitive decision that is to be given to every person who, but for section 77.012 of the Act, would be entitled to make such an application or to appeal shall be given by publication in the Canada Gazette of a notice to that effect and, if that person is a person referred to in subrule 33(1)(a) of the NAFTA Article 1904 Panel Rules, by serving that person with a written notice in the manner set out in rule 25 of those Rules.

• 36.05 (1) In this section, administrative record has the same meaning as in Article 1911 of the North American Free Trade Agreement.

• (2) For the purposes of section 77.015 of the Act, a panel has the powers, rights and privileges of a superior court of record in respect of the compelling of production, and the examination, of the administrative record in respect of a definitive decision, other than any portion thereof that is government information within the meaning of the rules relating to panel reviews.

36.06 For the purposes of section 77.019 of the Act, a committee has the powers, rights and privileges of a superior court of record in respect of

• (a) the compelling of production, and the examination, of the record of a panel review; and

• (b) where the grounds for an extraordinary challenge proceeding before the committee are the grounds set out in subparagraph 13(a)(i) and paragraph 13(b) of Article 1904 of the North American Free Trade Agreement,

  • (i) the compelling of production, and the examination, of documents relevant to those grounds,

  • (ii) the summoning and enforcement of attendance of witnesses and the compelling of those witnesses to give oral or written evidence on oath or on solemn affirmation, and

  • (iii) the administering of oaths and affirmations.

36.07 For the purposes of subsection 77.021(2) of the Act, the following are prescribed persons:

• (a) a member of a committee;

• (b) the staff of, or any person under contract to, a panel, committee or special committee;

• (c) the Canadian Secretary and the staff of, or any person under contract to, the Canadian Section of the Secretariat;

• (d) the Mexican Secretary and the staff of, or any person under contract to, the Mexican Section of the Secretariat;

• (e) the American Secretary and the staff of, or any person under contract to, the American Section of the Secretariat;

• (f) counsel for participants in the proceedings of a panel, committee or special committee and employees of, and any professional adviser retained by, or under the control or direction of, those counsel to whom confidential, personal, business proprietary or other privileged or prescribed information may be made available in respect of those proceedings; and

• (g) any other person to whom confidential, personal, business proprietary or other privileged or prescribed information is made available in respect of proceedings under Part I.1 of the Act.

PART II.1Dispute Settlement Respecting Goods of the United States

36.1 For the purposes of subsections 77.11(1), (5) and (6), 77.15(5), 77.17(1) and (3) and 77.19(5) of the Act, the American Secretary is the prescribed agency of the United States government.

36.2 A government of a province of Canada or of a state of the United States that is aggrieved by a definitive decision shall be deemed to be a person entitled to make a request to the Canadian Secretary under subsection 77.11(2) of the Act.

36.3 For the purposes of subsections 77.11(3) and 77.13(2) of the Act, the Department of State of the United States is the prescribed department of the United States government.

• 36.4 (1) For the purposes of subsection 77.12(1) of the Act, the manner by which notice of the intention to make an application or appeal is given to every person to whom notice of the definitive decision was sent by the Commissioner or every person that appeared in the proceedings before the Tribunal, as the case may be, shall be in writing.

• (2) [Repealed, SOR/92-236, s. 4]

36.5 For the purposes of subsection 77.15(2) of the Act, a panel shall have the powers, rights and privileges of a superior court of record to compel the production of and to examine the administrative record of proceedings in respect of the definitive decision, other than government information, as that expression is defined by the rules, for the purpose of the full review of the definitive decision.

36.6 For the purposes of subsection 77.19(2) of the Act, a committee shall have the following powers, rights and privileges of a superior court of record:

• (a) the power to compel the production of and to examine the record of the panel review, for the purpose of the full review of the decision of the panel; and

• (b) where the grounds of the extraordinary challenge are the grounds set out in subparagraph 13(a)(i) and paragraph 13(b) of Article 1904 of the Free Trade Agreement,

  • (i) the power to compel the production of and to examine documents relevant to those grounds,

  • (ii) the power to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath or on solemn affirmation, and

  • (iii) the power to administer oaths and affirmations.

36.7 For the purposes of subsection 77.21(2) of the Act, the following are prescribed persons:

• (a) each member of the staff of a panel or committee;

• (b) the Canadian Secretary, the American Secretary and the staff of the Secretariat and of the American Secretariat;

• (c) counsel for participants in the proceedings of the panel or committee and employees of those counsel to whom confidential, personal, business proprietary or privileged information may be made available in respect of those proceedings; and

• (d) any other person to whom confidential, personal, business proprietary or privileged information is made available in respect of proceedings under Part II of the Act.

PART IIIGeneral

Properly Documented Complaints

37 For the purposes of subparagraph (b)(ii) of the definition properly documented in subsection 2(1) of the Act, the following information is prescribed:

• (a) the volume and value of the complainant’s domestic production of like goods;

• (b) a list of all producers of like goods in Canada, and of associations of such producers in Canada, whom the complainant knows of;

• (c) such details as are reasonably available to the complainant regarding the estimated volume and value of the production of like goods by the producers referred to in paragraph (b);

• (d) the name of each foreign producer or exporter of the allegedly dumped or subsidized goods whom the complainant knows of;

• (e) the name of each importer in Canada of the allegedly dumped or subsidized goods whom the complainant knows of;

• (f) such details as are reasonably available to the complainant regarding the evolution of the volume of imports of the allegedly dumped or subsidized goods; and

• (g) such details as are reasonably available to the complainant regarding the effect of imports of the allegedly dumped or subsidized goods on the price of like goods in Canada.

Injury, Retardation or Threat of Injury

• 37.1 (1) For the purposes of determining whether the dumping or subsidizing of any goods has caused injury or retardation, the following factors are prescribed:

  • (a) the volume of the dumped or subsidized goods and, in particular, whether there has been 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 effect of the dumped or subsidized goods on the price of like goods and, in particular, whether the dumped or subsidized goods have significantly

    • (i) undercut the price of like goods,

    • (ii) depressed the price of like goods, or

    • (iii) suppressed the price of like goods by preventing the price increases for those like goods that would otherwise likely have occurred;

  • (c) the resulting impact of the dumped or subsidized goods on the state of the domestic industry and, in particular, all relevant economic factors and indices that have a bearing on the state of the domestic industry, including

    • (i) any actual or potential decline in output, sales, market share, profits, productivity, return on investments or the utilization of industrial capacity,

    • (ii) any actual or potential negative effects on cash flow, inventories, employment, wages, growth or the ability to raise capital,

    • (ii.1) the magnitude of the margin of dumping or amount of subsidy in respect of the dumped or subsidized goods, and

    • (iii) in the case of agricultural goods, including any goods that are agricultural goods or commodities by virtue of an Act of Parliament or of the legislature of a province, that are subsidized, any increased burden on a government support programme; and

  • (d) any other factors that are relevant in the circumstances.

• (2) For the purposes of determining whether the dumping or subsidizing of any goods is threatening to cause injury, the following factors are prescribed:

  • (a) the nature of the subsidy in question and the effects it is likely to have on trade;

  • (b) whether there has been a significant rate of increase of dumped or subsidized goods imported into Canada, which rate of increase indicates a likelihood of substantially increased imports into Canada of the dumped or subsidized goods;

  • (c) whether there is sufficient freely disposable capacity, or an imminent, substantial increase in the capacity of an exporter, that indicates a likelihood of a substantial increase of dumped or subsidized goods, taking into account the availability of other export markets to absorb any increase;

  • (d) the potential for product shifting where production facilities that can be used to produce the goods are currently being used to produce other goods;

  • (e) whether the goods are entering the domestic market at prices that are likely to have a significant depressing or suppressing effect on the price of like goods and are likely to increase demand for further imports of the goods;

  • (f) inventories of the goods;

  • (g) the actual and potential negative effects on existing development and production efforts, including efforts to produce a derivative or more advanced version of like goods;

  • (g.1) the magnitude of the margin of dumping or amount of subsidy in respect of the dumped or subsidized goods;

  • (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

  • (h) any other factors that are relevant in the circumstances.

• (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.

37.11 For the purposes of determining whether injury has been caused by a massive importation of dumped or subsidized goods, or by a series of importations of dumped or subsidized goods where the importations have occurred within a relatively short period of time and in the aggregate are massive, the following factors are prescribed:

• (a) whether there has been an increase of at least 15% in the volume of imports of those goods from an individual country of export and in respect of which an investigation under the Act has not been terminated, during a representative period within the period beginning 90 days before the date of initiation of the investigation and ending on the date of the Commissioner’s preliminary determination under subsection 38(1) of the Act, relative to a preceding representative period of comparable duration within the period of investigation;

• (b) whether the importer, producer or exporter of the dumped goods has a history of importing into Canada, or exporting into Canada, dumped goods in respect of which the Tribunal has made an order or finding that the dumping of the goods has caused injury or retardation or a threat of injury;

• (c) whether the authorities of a country other than Canada have determined that injury to the domestic industry of that country was caused by the dumping of goods of the same description, or of similar goods, by an exporter of the goods that are under investigation;

• (d) whether there has been a significant increase in the volume of domestic inventories of the dumped or subsidized goods within a relatively short period of time; and

• (e) any other factors that are relevant in the circumstances.

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

  • (k) any other factors relevant in the circumstances.

Joining Investigations

38 Subject to section 39, where the same goods, like goods 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 outline 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.

Person Interested

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.

42 For the purposes of subsection 89(1) and section 95 of the Act, a person referred to in paragraphs 41(a) to (c) of these Regulations is a person interested in the question as to which of two or more persons is the importer in Canada where that question arises under the Act.

Fee Payable

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:

• (a) for photocopying a page with the dimensions of not more than 21.5 cm by 35.5 cm, $0.20 per page;

• (b) for microfiche duplication, non-silver, $0.40 per fiche;

• (c) for 16 mm microfilm duplication, non-silver, $12 per 30.5 mm roll;

• (d) for 35 mm microfilm duplication, non-silver, $14 per 30.5 mm roll;

• (e) for microform-to-paper duplication, $0.25 per page;

• (f) for magnetic tape-to-tape duplication, $25 per 731.5 mm reel;

• (g) for personal computer magnetic diskette duplication, $2 per diskette (all sizes); and

• (h) for compact disk duplication, $20 per disk.

Currency Conversion

• 44 (1) Subject to subsection (2) and section 45, where an amount that is used or taken into account for any purpose in the administration or enforcement of the Act is expressed in the currency of a country other than Canada, the equivalent dollar value of that amount shall be calculated by multiplying that other currency amount by the prevailing rate of exchange referred to in section 5 of the Currency Exchange for Customs Valuation Regulations in respect of that currency for the date of sale.

• (2) Where a sale of foreign currency on forward markets is directly linked to the export sale to an importer in Canada, the rate of exchange that was used in the forward sale of currency shall be used in place of the rate of exchange referred to in subsection (1).

45 Where sufficient information has not been furnished or is not available at the time goods have been released from customs possession or entered for warehouse, whichever is the earlier, to enable the calculation under section 44 to be made on the basis of the date of sale, the date of shipment to Canada shall be used in place of the date of sale for the purpose of that section.

Re-determinations

46 Where a manufacturer, producer or exporter of goods of the United States files a request for re-determination, the manufacturer, producer or exporter is hereby prescribed for the purposes of subsection 59(4) of the Act.

47 For the purposes of subsections 56(1.1) and 58(2) of the Act, a request for re-determination shall be delivered by hand or sent by registered mail to the Director General, Anti-dumping and Countervailing Directorate, Customs and Trade Administration Branch, Canada Customs and Revenue Agency, Ottawa, Ontario K1A 0L5.

48 For the purposes of subsections 56(1.1) and 58(2) of the Act, the information to accompany a request for a re-determination shall be

• (a) a statement setting out the grounds on which the determination or re-determination is contested;

• (b) a statement setting out the facts on which the request for re-determination is based;

• (c) evidence in support of the facts referred to in paragraph (b); and

• (d) where the request for re-determination is made by the importer of the goods, a copy of

  • (i) the documentation used in accounting for the goods under subsection 32(1), (3) or (5) of the Customs Act, and

  • (ii) where the goods were released prior to accounting, the documentation used in making an interim accounting for the goods under subsection 32(2) of the Customs Act, if different from the documentation referred to in subparagraph (i).

49 For the purposes of subsections 56(1.1), 58(2) and 59(4) and (5) of the Act, the Department of State of the United States is the prescribed department of the United States government.

50 For the purposes of subsection 59(3.1) of the Act, a manufacturer, producer or exporter of goods of a NAFTA country who files a request for a re-determination is a prescribed person.

51 For the purposes of subsections 56(1.01) and 58(1.1) of the Act, a request for a re-determination shall be delivered by hand or sent by registered mail to the Director General, Anti-dumping and Countervailing Directorate, Customs and Trade Administration Branch, Canada Customs and Revenue Agency, Ottawa, Ontario K1A 0L5.

52 For the purposes of subsections 56(1.01) and 58(1.1) of the Act, a request for a re-determination shall be accompanied by

• (a) a statement setting out the grounds on which the determination or re-determination is contested;

• (b) a statement setting out the facts on which the request for re-determination is based;

• (c) evidence in support of the facts referred to in paragraph (b); and

• (d) where the request for the re-determination is made by the importer of the goods, a copy of

  • (i) the documentation used in accounting for the goods under subsection 32(1), (3) or (5) of the Customs Act, and

  • (ii) where the goods were released prior to accounting, the documentation used in making an interim accounting for the goods under subsection 32(2) of the Customs Act, if that documentation is different from the documentation referred to in subparagraph (i).

53 For the purposes of the definition government of a NAFTA country in subsection 2(1) of the Act, the following are prescribed departments for the purposes of subsections 56(1.01), 58(1.1) and 59(3.1) of the Act:

• (a) in respect of the United States, the Department of State; and

• (b) in respect of Mexico, the Secretaría de Comercio y Fomento Industrial (Secretariat of Trade and Industrial Development).

54 For the purposes of the Act,

• (a) the Federal Register is deemed to be the official publication of the United States; and

• (b) the Diario Oficial de la Federación is deemed to be the official publication of Mexico.

• 55 (1) For the purposes of subsection 13.2(2) of the Act, a request for a review shall be made in writing and shall contain the following information:

  • (a) confirmation that the goods have been sold or consigned to an importer in Canada;

  • (b) with respect to each sale or consignment of the goods to an importer in Canada,

    • (i) the name and address of the importer,

    • (ii) a detailed description of the goods,

    • (iii) the date of sale or consignment of the goods,

    • (iv) the date of shipment of the goods,

    • (v) the purchase or consignment order number with respect to the goods and the date of the purchase or consignment order,

    • (vi) complete details of the

      • (A) contract of sale or of the purchase order acknowledgement or acceptance, or

      • (B) consignment contract or of the consignment order acknowledgment or acceptance, and

    • (vii) the name and address of the manufacturer or producer of the goods; and

  • (c) a description of the exporting enterprise and a list of all associated persons who are located in the country of export.

• (2) A request for a review shall be delivered to the Director General, Anti-dumping and Countervailing Directorate, Customs and Trade Administration Branch, Canada Customs and Revenue Agency, Ottawa, Ontario K1A 0L5.

56 The security referred to in subsection 13.2(4) of the Act shall be posted

• (a) if it is in the form of cash or a certified cheque, with an officer at the customs office at which the goods are or are to be released; and

• (b) if it is in any other form, with an officer at the regional office of Canada Customs and Revenue Agency of the region in which the goods are or are to be released.

Refusal of Acceptance of Undertaking

57 For the purpose of subsection 49(4) of the Act, the period of time commences on the day on which the preliminary determination of dumping or subsidizing is made in respect of the goods to which the undertaking has been offered and ends 60 days after that day.

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.

Number of Copies of Written Submissions

58 A person who is making a written submission for the purposes of the Act shall submit the number of copies specified by an officer.