Special Import Measures Regulations (SOR/84-927)

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 President 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• (2) [Repealed, SOR/92-236, s. 4]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;

• (b.1) a list of the trade unions that represent persons employed in the production of like goods in Canada and the associations that include such trade unions, 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) The following factors may be considered in determining whether the dumping or subsidizing of goods has caused injury or retardation:

  • (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,

    • (i.1) any actual or potential negative effects on employment levels or the terms and conditions of employment of the persons employed in the domestic industry, including their wages, hours worked, pension plans, benefits or worker training and safety,

    • (ii) any actual or potential negative effects on cash flow, inventories, 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 factor that is relevant in the circumstances.

• (2) The following factors may be considered in determining whether the dumping or subsidizing of goods is threatening to cause injury:

  • (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 effects on hiring and on 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 factor that is relevant in the circumstances.

• (3) The following additional factors may be considered in determining whether the dumping or subsidizing of goods has caused injury or retardation or is threatening to cause injury:

  • (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 factor that is relevant in the circumstances.

37.11 The following factors may be considered in determining whether injury has been caused by a massive importation of dumped or subsidized goods or, if the importations have occurred within a relatively short period of time and in the aggregate are massive, by a series of importations of dumped or subsidized goods:

• (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 President’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 factor that is relevant in the circumstances.