Canada: Hidden Changes To Antidumping/Countervailing Duty Laws: Canada Tables Omnibus Budget Bill That Includes Changes To The Special Import Measures Act

Last Updated: May 4 2016
Article by Cyndee Todgham Cherniak

On April 20, 2016, the Government of Canada (the Department of Finance) tabled Bill C-15 "Budget Implementation Act 2016 No. 1", which is an omnibus bill that implements some tax and other measures outlined in the 2016 Federal Budget. Since Bill C-15 is tabled by a majority government, the omnibus bill will surely be passed. Bill C-15 should be of interest to importers, exporters and foreign producers (and trade lawyers) because Division 10 of Bill C-15 contains proposed changes to Canada's trade remedies laws that are hidden at the end and could be overlooked. Articles 192 – 200 of Bill C-15 are the proposed changes to the Special Import Measures Act (also known as "SIMA"). However, most of the changes relate to (1) situations where the margins of dumping and amounts of subsidy are determined to be insignificant and (2) limitation periods for Canada Border Services Agency ("CBSA") and Canadian International Trade Tribunal ("CITT") decisions in an expiry review.

Bill C-15 amends the SIMA to provide that a finding by the President of the CBSA of an insignificant margin of dumping or an insignificant amount of subsidy in respect of goods imported into Canada will no longer result in the termination of a trade remedy investigation prior to the President's preliminary determination. I do not recall this happening in recent years, but it may be that the CBSA did not initiate against certain countries where the CBSA determined the volumes of imports from particular countries were insignificant.

The changes relating to time periods for expiry reviews are not particularly problematic. Even though the CITT's notice of the rescission of an order or finding has been reduced from 10 months to 2 months, parties will know that the rescission is coming because a full expiry review will not be conducted in cases where a the CITT determines that an expiry review is not warranted.

The "proposed" changes to SIMA are:

  • Section 192 of Bill C-15 changes the definition of "negligible" in subsection 2(1) of SIMA. The definition of "negligible" is clarified. The negligible threshold is applied in respect of "goods that are released into Canada from all countries and that are of the same description".
  • Section 193 of Bill C-15 creates a new provision (section 7.2 of SIMA) that permits the refund of antidumping and/or countervailing duties to an importer if duties are collected after the rescission of an antidumping/countervailing duty order of the CITT. This is a good addition for importers who are assessed duties by the CBSA after the CITT rescinds and order.
  • Subsections 194(1)-(3) of Bill C-15 amend the preamble to section 8.1 of SIMA by making a minor amendment and by referencing an exception created in new subsection 8.1(1.3) of SIMA.
  • Subsection 194(4) if Bill C-15 contains a new provision (subsection 8.1(1.3) of SIMA) relates to the non-collection of preliminary duties where the President of the CBSA determines that the margins of dumping and/or subsidy amounts are insignificant. This seems to be one of the significant amendments.
  • Section 195 of Bill C-15 amends section 30.1 of SIMA to address the revisions in section 194 of Bill C-15.
  • Section 196 of Bill C-15 replaces paragraph 35(1)(a) of SIMA to clarify the rules relating to the termination of preliminary determinations where "the President [of the CBSA] is satisfied tn respect of some or all of those goods that the actual or potential volume of goods is negligible."
  • Subsection 197(1) of Bill C-15 amends subparagraph 38(1)(a)(i) to refer to the President of the CBSA.
  • Section 197(2) of Bill C-15 adds subsection 38(1.1) of SIMA, which gives the President discretion to use the information available during the preliminary dumping investigation/preliminary subsidy investigation and determine that the margin or dumping or amount of subsidy is insignificant.
  • Section 197(3) of Bill C-15 adds subsection 38(1.2) of SIMA, which contains a deeming provision. "...If the President [of the CBSA] determines that the margin of dumping or the amount of subsidy is equivalent to 0% of the export price of the goods, then the margin or amount of subsidy is considered to be insignificant and the investigation in respect of those goods continues."
  • Section 198 of Bill C-15 amends paragraph 49(2)(b) of SIMA to account for the new rules relating to insignificant margins of dumping and/or amounts of subsidy.
  • Subsection 199(1) of Bill C-15 amends subsection 76.03(2) of SIMA to change the time period for the CITT's notice where in the order or findings is deemed to be rescinded. Currently, the CITT must publish the notice 10 months before the expiry of the order or finding. This will be changed to 2 months before the expiry of the order or finding.
  • Subsection 199(2) of Bill C-15 amends paragraph 76.03(7)(a) of SIMA to amend the time period for the CBSA's expiry review investigation. The CBSA currently has 120 days to conduct an expiry review (after receipt of the CITT's LE decision that an expiry review is warranted). The CBSA will have 150 days to conduct an expiry review after receipt of the CITT's LE decision.
  • Subsection 199(3) of Bill C-15 amends paragraph 76.03(10) of SIMA to amend a time period for the CITT's expiry review decision. Currently, there is no time period in the SIMA for the CITT's decision (other than the 5 year anniversary date of the original Order). The CITT will have 160 days to make its expiry review decision (after the day on which the CBSA's expiry review determination is received).
  • Section 200 of Bill C-15 indicate that the changes also apply to goods from a NAFTA country.

The changes relating to the negligibility issue apply in limited situations – where a country's exports are less than 3 percent of the total volume of goods that are released into Canada from all countries and that are of the same description. However, goods are not considered to be negligible if if they amount to less than 3% if the case is against three or more countries meet the less than 3% threshold and are above 7% when added together.

More analysis of these amendments will follow is subsequent postings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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