Measures are being considered to change how massive importations are treated under SIMA, including with respect to: the i) collection of relevant data by the CITT, ii) the applicable standard, and iii) timeframes for the notification of trade remedy complaints to foreign governments.

Background

The WTO agreements and SIMA allow for the imposition of retroactive duties for up to 90 days prior to the date of application of provisional measures when it is necessary to do so because of massive importations (i.e., increased importations in the period preceding the application of provisional measures). The government is consulting on potential amendments to SIMA related to three specific aspects of massive importations determinations: (1) the collection of relevant data; (2) the applicable standard; and (3) timeframes for the notification to the government of the country of export that a properly documented complaint has been received.

i) Collection of relevant data

Overview

To determine whether massive importations are occurring, the CITT needs to assess whether there was a surge in imports in the period preceding the application of provisional measures. It does so by comparing the volume of imports during two representative periods: (1) a period within the period beginning 90 days before the date of initiation of the investigation and ending on the date of the CBSA’s preliminary determination; and (2) a period within the period of investigation.

Current Canadian law and practice

The CITT can rely on all evidence on the record to assess whether massive importations are occurring. In practice, information on imports during the period of investigation is collected through the CITT importers’ questionnaire and is made available to all parties to the proceedings. However, information on imports occurring in the period beginning 90 days before the date of initiation of the investigation and ending on the date of CBSA’s preliminary determination is not systematically collected. Parties to the proceedings can make Requests for Information to obtain this information from importers.

Issue for consultation

The government is seeking views on a potential amendment to SIMA introducing a requirement for the CITT to collect information from importers on the volume, value, and inventory of imports occurring during the period beginning 90 days before the date of initiation of the investigation and ending on the date of the CBSA’s preliminary determination. It is envisioned that this information could be collected through the existing CITT importers’ questionnaire. This information could be made available to all parties to the proceedings in the CITT Investigation Report.

By allowing the CITT and parties to the proceeding to have access to better and more timely information on import trends, this amendment could make it easier for parties to make or respond to claims of massive importations and for the CITT to evaluate such claims.

Questions

  1. Should SIMA be amended to introduce a requirement for the CITT to collect information on imports occurring during the period beginning 90 days before the date of initiation of the investigation and ending on the date of the CBSA’s preliminary determination?
  2. Are there existing challenges in bringing or responding to claims of massive importations that the proposed amendment could address?
  3. Do you have any other comments on the proposed measure, including with respect to mechanisms for implementing it?

ii) Applicable standard

Overview

When massive importations are occurring, retroactive duties should only be imposed if it is justified given the circumstances of the case. To that end, the WTO Agreement on Subsidies and Countervailing Measures provides that retroactive duties should only be imposed when it is deemed necessary in order to preclude the recurrence of the injury and the WTO Agreement on Anti-Dumping provides that retroactive duties should only be applied when massive importations are likely to seriously undermine the remedial effect of the duties.

Current Canadian law and practice

One of the requirements found in section 42 of SIMA is that retroactive duties should only be applied when it appears necessary to the CITT that duties be assessed on the imported goods in order to prevent the recurrence of injury. In practice, a key factor that has been considered by the CITT to determine whether it is necessary that duties be assessed is whether there is evidence of stockpiling of the goods imported before the CBSA’s preliminary determination.

Issue for consultation

The government is seeking views on a potential amendment to section 42 of SIMA to change one of the requirements for the imposition of retroactive duties as follows: