1. Complaint

Generally, an anti-circumvention investigation is initiated as a result of the submission of a formal complaint. Along with other administrative information, the complaint, to the extent that this information is reasonably available to the complainant, must provide information substantiating the allegations of circumvention.

2. Initiation

A decision whether or not to initiate an anti-circumvention investigation must be made within 45 days of receipt of a circumvention complaint. If the CBSA is of the opinion that there is evidence that circumvention is occurring, based on prescribed anti-circumvention factors, the CBSA will initiate an investigation. The decision to initiate can be made with respect to some or all of the goods identified in the complaint. Likewise, an investigation can be specific to certain goods from an exporter(s) or with respect to certain goods from a country. The manner in which an investigation is initiated will be determined by the CBSA and is dependent on the circumstances of each case.

If the CBSA decides not to initiate, all actions with respect to the complaint are terminated. The CBSA will notify the complainant and provide the reasons for its decision.

At initiation, Requests for Information (RFIs) will be sent to importers, exporters, vendors and foreign producers of the goods under investigation as well as domestic producers of like goods in Canada in order to obtain the necessary information for the investigation. A set of general instructions accompanies all RFIs to assist the parties in preparing the required information. The instructions identify the period covered by the investigation and include explanations of the information to be provided for specific situations as well as the rules regarding the treatment, use and disclosure of confidential information.

3. Anti-circumvention Investigation Schedule

A sample schedule for the key events in an anti-circumvention 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 published on the CBSA’s website at initiation and will be updated as required.

4. Notifications

The CBSA will notify the importer, the exporter, the government of the exporting country, the domestic producers and the complainant, if any, of the initiation of the investigation, a termination, an extension, the publication of the statement of essential facts, and the final decision.

5. Close of Administrative Record

In each anti-circumvention investigation, a date for the close of the administrative record will be established, after which no further information may be submitted by parties. This permits the CBSA to produce the Statement of Essential facts and participants to prepare their case arguments and reply submissions based on the information that is on the record as of the date of the closing of the record.

Accordingly, participants should submit all of the information they believe supports their position prior to the closing of the record, in order that the CBSA may take this information into consideration in preparing the statement of essential facts. Parties will be notified of the date of the close of the administrative record through the anti-circumvention investigation schedule.

6. Termination – Goods are Within Scope of Order or Finding

During the investigation, evidence may be discovered that the goods under investigation are, in fact, subject to an order or finding. In considering whether the goods are subject to an order or finding, the CBSA will consider the prescribed factors for making a scope ruling.

If the goods are found to be subject to an order or finding, the CBSA will terminate the anti-circumvention investigation, prior to the publication of the statement of essential facts, and will issue its reasons for terminating the investigation, including the reasons for determining that the goods in question are subject to an order or finding. Pursuant to subsection 75(4), this decision to terminate is deemed to be a scope ruling.

7. Statement of Essential Facts

The statement of essential facts (SEF) is a non-confidential report prepared by the CBSA. The SEF will include the CBSA’s preliminary assessment of whether the evidence discloses a reasonable indication of circumvention. It will also include a summary of the facts that the CBSA relied on in making that preliminary assessment.

8. Submission of Case Arguments and Reply Submissions

After publication of the SEF, parties may choose to submit case arguments based on any relevant information available on the administrative record and respond to the CBSA’s preliminary assessment detailed in the SEF.

Parties may also submit reply submissions to the CBSA in response to the case arguments submitted. The date for receipt of both case arguments and reply submissions will be specified in the schedule. Generally, the CBSA will require that any case arguments be received no later than one week after the publication of the SEF and reply submissions be received no later than one week after case arguments are due. After the deadline for the receipt of reply submissions has passed, the CBSA will not consider any further submissions from parties.

9. Decision

In general, the CBSA will make a decision with respect to circumvention, based on prescribed anti-circumvention factors, within 180 days after the initiation of the investigation. In certain circumstances, such as where complex or novel issues arise, the CBSA may extend the period for making its decision to 240 days.

Where the CBSA makes a decision setting out a finding of circumvention, the CBSA will notify the CITT who will in turn modify the original finding or order to include the circumventing goods and thereby extend SIMA duties to those goods. The CBSA may also make a partial finding of circumvention, that is, find that only some goods under investigation are circumventing the order or finding. For example, where the investigation was initiated in respect of the goods from a country, the CBSA could decide that the importation of the goods from exporter A constitutes circumvention but that the importation of the goods from exporter B does not constitute circumvention.

Once the CITT modifies the order or finding, anti-dumping or countervailing duty is payable on all dumped or subsidized goods of the same description imported on or after the day the anti-circumvention investigation was initiated, and on all shipments of the goods released after the date of the Tribunal's order amending the order or finding. These duties are applicable until such time as the order or finding is amended or rescinded or it expires.

If the CBSA makes a decision that the order or finding is not being circumvented in respect of some or all of the goods, SIMA duties will not be extended to those goods.

Source: Canada Border Services Agency