Canada’s Anti-circumvention investigation: Review of the CBSA’s Decision

1. Judicial Review

In accordance with paragraph 96.1(1)(c.2) of SIMA, the CBSA's decision in the anti-circumvention investigation is subject to judicial review by the Federal Court of Appeal.

2. Interim Review

The CBSA may conduct an interim review of a decision that sets out a finding of circumvention. A review may be necessary when the circumstances on which a circumvention decision was based have changed. On completion of the review, the CBSA will rescind the decision under review or confirm it, with or without amendment, as the circumstances require. If required, the CITT will amend the order or finding.

3. Exemption Review

In limited circumstances, the possibility arises that exporters whose goods are covered by the extension of duties may not have had the opportunity to participate in the anti-circumvention investigation because they were not notified. Exporters, who can demonstrate that their goods were not circumventing an order or finding of the CITT may seek an exemption from the extension of duties resulting from an anti-circumvention investigation. The CBSA will initiate an exemption review where the circumstances warrant this.

Subject goods imported from the exporter making the request will be assessed anti-dumping and/or countervailing duty during the exemption review.

4. Request for Exemption

The exporter may request that the CBSA determine whether their goods may be exempt from the extension of duties if the exporter:

1. establishes that they are not associated with any exporter who was given notice of the circumvention investigation; and
2. has not been
   1. given notice of the initiation of that investigation, or
   2. requested to provide information during the course of that investigation.

The exporter’s request for exemption must be made in writing and must contain the following information in accordance with subsection 57.21(1) of the Special Import Measures Regulations (SIMR):

1. the name and address of the exporter, along with a list of associated persons;
2. confirmation, along with evidence in support, that the goods for which the request for exemption is made have been sold or consigned to an importer in Canada;
3. a detailed description of the goods;
4. if applicable, the name and address of each producer of parts or components and, if known, the name and address of each person that uses those parts or components;
5. if applicable, the name and address of any exporter or producer of parts or components used to assemble or complete the goods;
6. if applicable, the name and address of any exporter or producer of like goods that were slightly modified;
7. an indication of the applicable CITT amending order; and
8. a justification for the request,
9.  

The request for an exemption review must be sent to:

SIMA Registry and Disclosure Unit
Trade and Anti-dumping Programs Directorate
Canada Border Services Agency
100 Metcalfe Street, 11th floor
Ottawa, Ontario K1A 0L8
Canada

Provided the exporter meets the above requirements and the CBSA is satisfied that the review is warranted, the CBSA will initiate the review. The CBSA will notify the importer, the exporter, the government of the exporting country and the domestic producers of the initiation and completion of the review.

Upon completion of the review, the CBSA will make a determination that the goods from the exporter are:

1. subject to the extension of duties if the President is satisfied that circumvention is occurring; or
2. exempt from the extension of duties if the President is satisfied that no circumvention is occurring.

If the CBSA determines that the goods are exempt, the CITT will amend the order or finding that is affected by the review in order to give effect to the CBSA’s determination. Duties will cease on the day the CITT amends the order.

Source: Canada Border Services Agency