Information relating to Expiry Review Investigations conducted pursuant to the Special Import Measures Act

This is an extract from Chapter 7 of the SIMA Handbook

7. EXPIRY REVIEW INVESTIGATIONS

7.1. Introduction

The Canada Border Services Agency (CBSA) is responsible for conducting a portion of the expiry review of orders or findings made by the Canadian International Trade Tribunal (CITT or the Tribunal) pursuant to section 76.03 of the Special Import Measures Act (SIMA). The following outlines the CBSA’s policies and procedures with respect to the conduct of expiry review investigations under subsection 76.03(7) of SIMA. These policies and procedures do not supplant the provisions of SIMA.

7.2. Phases of an Expiry Review

There are three major phases of an expiry review. The first phase is the notice of expiry proceedings conducted by the Tribunal to decide whether to initiate an expiry review. If the Tribunal decides to initiate an expiry review, the second phase is the expiry review investigation by the President of the CBSA (the President) to determine whether there is a likelihood of continued or resumed dumping or subsidizing of the goods if the order or finding (subsequently referred to as “the order”) is rescinded. Finally, if the President determines that such likelihood exists, the third phase is the Tribunal's inquiry into the likelihood of injury or retardation to Canadian industry if the order is rescinded.

These policies and procedures pertain to the expiry review investigation conducted by the CBSA.

Information concerning the role and procedures of the Tribunal in an expiry review can be found on the CITT website.

7.3. Expiry Review Investigation

If the Tribunal decides to initiate an expiry review, it issues a notice of expiry review, notifies the President of its decision and provides the President with a copy of the administrative record on which it based its decision.

The President then initiates the expiry review investigation to determine whether the expiry of the order in respect of goods of a country or countries is likely to result in the continuation or resumption of dumping or subsidizing of the goods.  The CBSA sends questionnaires, commonly referred to as Expiry Review Questionnaires or ERQs, requesting information for purposes of its investigation.

The President has 120 days from receipt of the Tribunal's notice of initiation to complete the expiry review investigation and to make the determination. In addition to information provided by the Tribunal, the President makes the determination regarding the likelihood of continued or resumed dumping or subsidizing on the basis of the information available, including as appropriate:

  • responses to questionnaires sent to domestic producers in Canada, importers, and exporters (including foreign producers and vendors) and, in subsidy cases, foreign governments;
  • CBSA import statistics and enforcement data;
  • determinations from CBSA investigations and re-investigations (e.g., normal values, export prices and amounts of subsidy);
  • representations, case arguments and reply submissions submitted to the President by parties to the proceedings and persons interested;
  • other relevant information.

In an expiry review investigation, the President is required to determine whether the expiry of the order made by the Tribunal (declaring to what goods, including, where applicable, from what supplier and from what country of origin or export, the order applies) is likely to result in the continuation or resumption of dumping or subsidizing of the goods. Where the Tribunal made orders with respect to classes of goods of a country or (rarely) with respect to goods of a supplier (exporter, foreign producer or vendor) of a country, the President makes a determination regarding each order. Where the Tribunal made an order with respect to goods, as described, of a country or countries, the President may not modify the description of the goods, but may make different expiry review determinations with respect to such goods in relation to each country. Where the order involves both the dumping and the subsidizing of goods, the President makes separate expiry review determinations in relation to the dumping and in relation to the subsidizing of the goods of each country or of all countries.

Therefore, the President makes a determination  regarding the likelihood of continued or resumed dumping or subsidizing of the goods, as described, of each country or of all countries, as named, in the order made by the Tribunal.

At the conclusion of the expiry review investigation, the President provides notice of the determination to the Tribunal, to all parties to the proceedings and to any other persons interested. The Statement of Reasons is issued within 15 days of the notice of the determination.

If the President determines that the expiry of the order in respect of any goods of a country is likely to result in a continuation or resumption of dumping or subsidizing of the goods, the President also provides the Tribunal with the information required under section 73.3 of the Canadian International Trade Tribunal Rules (CITT Rules).   This information is generally referred to as the “administrative record” and includes the reasons for the determination, customs information relating to enforcement of the Tribunal’s order and customs information relating to the volume and value of all imports whether or not dumped or subsidized, and any other information taken into consideration by the President.

Where the President makes any determination that the expiry of the order is likely to result in a continuation or resumption of dumping or subsidizing of the goods, the complete administrative record is provided to the Tribunal.  This may include information relating solely to goods of a country or countries in respect of which the President determines that the expiry of the order is unlikely to result in a continuation or resumption of dumping or subsidizing.

7.3.1. Expiry Review Factors

In making the determination, the President may take into consideration the specific factors provided for in the Special Import Measures Regulations (SIMR), including any other factors that are relevant in the circumstances. The SIMR subsection 37.2(1) provides the following:

37.2 (1) In making a determination under paragraph 76.03(7)(a) of the Act, the President may consider

  1. whether there has been dumping of goods while a finding or order in respect of the goods is in effect and, if applicable,
    1. the period during which the dumping occurred,
    2. the volume and prices of the dumped and non-dumped goods,
    3. the margin of dumping, and
    4. for non-dumped goods, the amount by which the export prices exceed the normal values of the goods;
  2. whether there has been subsidizing of goods while a finding or order in respect of the goods is in effect and, if applicable,
    1. the nature and duration of the foreign subsidy program in respect of the goods,
    2. the period during which the subsidizing occurred,
    3. the volume of the subsidized goods, and
    4. the amount of subsidy;
  3. 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;
  4. 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;
  5. the potential for the foreign producers to produce the goods in facilities that are currently used to produce other goods;
  6. 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;
  7. 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;
  8. 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;
  9. 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
  10. any other factors that are relevant in the circumstances.

7.3.2. Expiry Review Investigation Schedule

A standard schedule for the key events in the expiry review investigation is provided below. This schedule is subject to modification depending on the circumstances of a particular investigation. The scheduling of events in a specific investigation will be made known at the time the President initiates the investigation.

Expiry Review Investigation Schedule

Day 0

The Tribunal issues Notice of Expiry Review and provides the President with a copy of the administrative record

Day 1

The CBSA initiates an Expiry Review Investigation and sends ERQs to domestic producers in Canada, importers, exporters (including foreign producers and vendors) and foreign governments

Initial CBSA information, including customs information, enforcement data, import statistics, market volume, value and shares, and any other relevant CBSA information, that is available is placed on Exhibit List

Day 28

Submission of Letters of Representation and Disclosure Undertakings (SIMA and Customs Act) by counsel are provided to the CBSA

Day 30

Additional CBSA information may be available

Day 38

Responses to ERQs and other information are due from importers, domestic producers in Canada, exporters (including foreign producers and vendors), and foreign governments

Day 38 to Day 50

Dissenting or additional information relating to responses to ERQs and other information are submitted to the CBSA

Day 50

Closing of the record date

Day 51

Finalized import statistics and estimates of the Canadian market are available

Day 60

Case arguments as to whether the expiry of the order or finding is likely or unlikely to result in continued or resumed dumping or subsidizing are due

Day 75

Reply submissions in response to the case arguments are due

Day 120

President's determination, notification to parties to the proceedings, to persons interested and to the Tribunal, and, if the President determines that the expiry of the order is likely to result in continued or resumed dumping or subsidizing, provision of the administrative record to the CITT as required under the CITT Rules

Day 135

Statement of Reasons issued

7.3.3. Expiry Review Questionnaire (ERQ)

The CBSA prepares the expiry review questionnaire (ERQ) to elicit the information necessary to make a determination as to whether the expiry of the order is likely to result in the continuation or resumption of dumping or subsidizing of the goods. The questions request information relating to the expiry review factors as provided in SIMR 37.2(1) which are considered by the President in making a determination. Questionnaires follow a standard format, but are modified on a case-by-case basis, as necessary.

The CBSA sends questionnaires to domestic producers of like goods in Canada and to exporters (including foreign producers and vendors) and importers of the subject goods. In an expiry review investigation concerning the subsidizing of goods, the government of the country of origin or export of the goods is also sent a questionnaire.

Examples of a standard ERQ for domestic producers in Canada, importers, exporters (including foreign producers and vendors) and foreign governments for purposes of the expiry review investigation are available on the directorate common drive.

See Part 4.12.1.1. for additional information about ERQs.

7.3.4. Period of Review

The Period of Review (POR) is selected by the CBSA for purposes of identifying the sales, exports and imports of the subject goods, to be examined for purposes of determining if the expiry of the order is likely to result in the continuation or resumption of dumping or subsidizing of the goods. The ERQs request information from domestic producers of like goods in Canada, from exporters (including foreign producers and vendors) and from importers of the goods in relation to this period in order to consider the expiry review factors listed in SIMR 37.2(1).

The POR is usually a minimum of 3 calendar years, but may be more in order to capture the most recent information, ending in the three months prior to the date of initiation of the expiry review.  The same POR is used for all countries included in the investigation.
The objective is to select a period which accurately reflects the performance of exporters and foreign producers with regard to dumping, subsidizing, production, capacity utilization, costs, sales volumes, prices, inventories, market share, exports and profits, etc., and which is sufficiently long to consider changes in the global market for the goods.

For related guidance on the Period of Review for the expiry review investigation, refer to the SIMA Policy on the Period of Investigation in Part 4.4.3.2. of the Handbook .

7.4. Procedural Requirements

7.4.1. Notification

The Tribunal provides notice of the initiation of the expiry review to all parties to the proceedings.  The CBSA also provides notice of the initiation of its expiry review investigation, to all parties to the proceedings, including the complainant(s), other domestic producers in Canada, importers, exporters, and governments of the named countries, and provides the investigation schedule which is published on the CBSA website.

At the conclusion of the expiry review investigation, the President provides notice of the determination to the Tribunal, to the parties to the proceedings and to the public, and issues the Statement of Reasons (SOR) within 15 days of the date of the determination. These are also published on the CBSA website.

See Part 4.12.4.9. for checklists which list the notices and documents required for an expiry review investigation.  Examples of expiry review investigation notices are available on the CBSA website.

7.4.2. Information Provided to the President by the Tribunal

Pursuant to paragraph 76.03(6)(b) of SIMA, the Tribunal provides a copy to the President of the administrative record on which it based its decision to initiate an expiry review. This may include the public and confidential prehearing staff reports from the previous or related inquiry or most recent review, whichever is applicable.

At the request of the President or of any party to the proceedings, additional information from previous or related Tribunal proceedings, that was not included in the administrative record based on which the Tribunal decided to initiate the expiry review, may be submitted to the President by the Tribunal in an expiry review.

Information provided to the Tribunal that has been designated confidential under the Canadian International Trade Tribunal Act (CITTA) and has subsequently been provided by the Tribunal to the President in the administrative record is not disclosed by the President.  Parties are required to obtain disclosure of this information from the Tribunal. The Tribunal decides if disclosure is made and sets the terms and conditions under which such information is disclosed.

CBSA includes the Tribunal's Statement of Reasons from the previous related inquiry and the past expiry reviews in the expiry review investigation administrative record. These documents are non-confidential and may be disclosed by the President.

Part 2.4.3. of the Handbook also refers to Information Provided to the President by the CITT.

7.4.3. Information Provided to the Tribunal by the President

At the conclusion of an expiry review investigation, the President provides the Tribunal with a notice of the determination. If the President determines that the expiry of the order or finding is likely to result in the continuation or resumption of dumping or subsidizing of the goods, the President provides the Tribunal with the complete administrative record.

The information required is described under section 73.3 of the Canadian International Trade Tribunal Rules (CITT Rules). 

The CBSA administrative record should include information relating solely to goods of a country or countries in respect of which the President determines that the expiry of the order is unlikely to result in a continuation or resumption of dumping or subsidizing of the goods. For more guidance on the documentation the CBSA provides to the CITT, refer to Part 4.13. of the Handbook.

7.5. Judicial Review of the President's Determination

In accordance with subsection 96.1(1) of SIMA, the President's determination under paragraph 76.03(7)(a) of SIMA is subject to judicial review by the Federal Court of Appeal. The determination is not subject to review within the CBSA and there is no appeal to the Tribunal.

 

Date modified: