(A) The Canadian International Trade Tribunal's preliminary inquiry into injury

 

When an investigation is initiated, the Tribunal must initiate a preliminary inquiry into whether the evidence discloses a reasonable indication that the dumping or subsidizing of the goods has caused injury or is threatening to cause injury to the Canadian industry. Notice of this decision is published in the Canada Gazette. Written notice is also sent to the President, the complainant, all known importers and exporters, the foreign government concerned, and any trade association known to have a particular interest in the inquiry.

 

The Tribunal will normally rely primarily on the information received from the CBSA and submissions of evidence and argument from parties. The Tribunal will not normally hold an oral hearing unless warranted by exceptional circumstances. The Tribunal will not normally issue questionnaires, however, depending on the circumstances of the case, the Tribunal may seek clarification from parties relating to issues pertinent to its preliminary injury inquiry.

 

The Tribunal must make its decision on this matter within 60 days after receiving notice from the CBSA that an investigation was initiated. The Tribunal may also form an opinion on what are the like goods and which domestic producers comprise the domestic industry. Where the evidence discloses a reasonable indication of injury, the CITT will make a preliminary determination of injury and the CBSA's investigation will continue until it is terminated or a preliminary determination of dumping or subsidizing is made. If the CITT determines that the evidence does not disclose a reasonable indication of injury, the preliminary injury inquiry will be terminated and the Tribunal will issue reasons for its decision 15 days later. The CBSA will terminate the dumping or subsidy investigation.

 

(B) The CBSA's preliminary investigation of dumping or subsidizing

The purpose of the CBSA's investigation is to obtain detailed information from exporters and importers, and the governments in a subsidy investigation, to determine if the goods are indeed being sold to importers in Canada at dumped or subsidized prices.

 

The conduct of the CBSA's investigation is governed by the legislative requirements of SIMA, the Special Import Measures Regulations and the administrative policies and procedures put in place by the CBSA. The circumstances prevailing in individual cases impose particular operational requirements, thus no two investigations are exactly the same.

 

However, the first phase in all investigations by the CBSA follows the same general path:

 

• - at the time of initiation, all known importers, exporters and, in a subsidy investigation, the foreign government(s), are requested to respond to requests for information;
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• - other interested parties are invited, by way of the CBSA's public notices, to file written submissions containing any information believed to be relevant to the investigation;
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• - response submissions are received and analyzed by CBSA officers;
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• - all information is analyzed in detail and normal values and export prices, margins of dumping, or amounts of subsidy are estimated; and
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• - based on the results, a decision is made to terminate the investigation or to issue a preliminary determination of dumping or subsidizing and proceed with the investigation.
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An investigation places a responsibility on all parties involved to provide accurate and detailed information in a timely manner. As required by SIMA, the President must make the required decisions and determinations within specified time limits. In the absence of complete data, these decisions are made on the basis of the facts available at the time.

 

(i) Time limits on the investigation

If the Tribunal determines that the evidence does not disclose a reasonable indication of injury, the CBSA will terminate its investigation. Where the Tribunal has made a preliminary determination of injury, the CBSA's investigation will continue and a decision will be made to terminate the investigation or make a preliminary determination of dumping or subsidizing within 90 days of initiation.

 

In the case of perishable agricultural or horticultural goods, the President will make the preliminary decision as expeditiously as possible after receipt of the Tribunal's preliminary injury decision, generally within 65 days of initiation.

 

In certain investigations where the circumstances are particularly complex, SIMA provides that the 90-day deadline may be extended to 135 days. However, the CBSA will complete its preliminary investigation within 90 days whenever possible.

 

The decision to terminate an investigation or to make a preliminary determination is based on the information available to the President in sufficient time to be analyzed before the decision is made. It is the responsibility of the parties involved in the investigation to respond promptly to requests for information.

 

(ii) Requests for information

The CBSA will send a request for information to all known exporters and importers on the day of initiation of the investigation. The request describes in detail the necessary information which must be prepared and submitted by the exporter or importer to allow the CBSA to determine normal values, export prices and margins of dumping. The request for information also provides an opportunity for the exporter to fully explain and document its pricing practices on sales to Canada.

 

The purpose of the importer's request for information is to obtain information to substantiate the information supplied by the exporter with respect to sales to importers in Canada, including the export price. The information requested from importers varies depending on whether the importer is related to the exporter. If the importer is not related to the exporter, the required information centres on the importer's purchase and importation of the goods under investigation. If the importer is related to the exporter, the required information centres on the subsequent resale in Canada of the goods to Canadian purchasers, including information describing the general, selling and administrative expenses associated with these sales.

 

In subsidy cases, a request for information is also forwarded to the foreign government(s) at the time of initiation of the investigation. The request for information is designed to elicit detailed information on the nature and operation of each government program identified as potentially conferring a benefit to the producer or exporter of the goods to Canada. Producers and exporters are requested to provide information on the receipt of benefits from the foreign administering authority and on their production and export of the goods to Canada.

 

A set of general instructions accompanies all requests for information 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.

 

(iii) Time limits for responses to requests for information

The notice of initiation of the investigation advises importers, exporters and the foreign governments of the legislated time limits and of the need for promptness in responding to the request for information due to the limited time available. Exporters and foreign governments are allowed 30 days and importers are allowed 21 days in which to respond. For exporters and foreign governments, the days allowed are counted from the date the party receives the request for information, which is deemed to occur seven days after it is sent by the CBSA.

 

Exporters and importers are advised to contact the CBSA in order to obtain any necessary clarification of the request for information and to confirm the respondent's intention to co-operate in the investigation.

 

Extensions to the time limits for receipt of responses to the requests for information are not normally granted. However, where the CBSA is satisfied that exceptional circumstances exist, an extension of a few days may be granted.

 

Information which is submitted past the time limit may not be considered in the preliminary phase of the investigation. If a preliminary determination of dumping or subsidizing is made, this information may be considered in the final phase of the investigation if sufficient time is available.

 

(iv) Submission of response to requests for information

It is the respondent's responsibility to ensure that the submission is received in Ottawa by the date specified.

 

(v) Analysis of submissions

Upon receipt of a respondent’s submission, CBSA officers will review the information in order to determine if the submission is substantially complete. If information is missing, it is requested again or the respondent is advised of the steps required to make the submission acceptable. Information subsequently provided may not be considered in the preliminary phase of the investigation but may be taken into account in the final phase if sufficient time is available.

 

Generally, information submitted in response to CBSA requests is verified in the final phase of the investigation. However, where deemed necessary by the CBSA, verification visits at the premises of exporters, importers and the foreign governments will take place during the preliminary phase of the investigation.

 

Additional information on verification of submissions is outlined later for the final phase of the investigation.

 

(vi) Disclosure of information

All information collected during an investigation is subject to the legislative requirements for confidential and non-confidential information.

 

Non-confidential edited versions or non-confidential summaries of confidential information must be provided to the CBSA. Failure by any party to provide adequate non-confidential information results in the confidential information being disregarded and excluded from any consideration in the decision making process.

 

Copies of non-confidential information are released by the CBSA to any party upon request. Access to confidential information will be granted to independent counsel representing other parties to the proceeding as provided for in section 84 of SIMA. When such disclosure is given, it is in accordance with a strict undertaking of confidentiality and the CBSA's policy on disclosure of confidential information.

 

(vii) Sampling

Where there is a large number of exporters, producers, importers or products, the investigation may concentrate on the largest percentage of goods from each country which can reasonably be investigated or, if necessary, a statistical sample. Normally, the larger exporters in each country subject to the investigation are investigated. All exporters of goods not included in the percentage or sample are informed that they need not submit the detailed information described in the request for information. These exporters are informed, however, that they may voluntarily submit the information described in the request for information for the purpose of determining a margin of dumping. Where time permits, voluntary submissions are reviewed and used to determine a margin of dumping for the preliminary decision in respect of that respondent. Otherwise, where practicable, the submission is reviewed and used during the next phase of the investigation. For exporters who are not included in the percentage or sample and who have not submitted information, the margin of dumping normally is based on the weighted average of the margin of dumping found for exporters in the same country who were required to provide information and who fully complied with the CBSA's request for information.

 

(viii) Extension of the time limit

If unusual circumstances make it difficult to reach a preliminary decision within the 90 days provided in SIMA, the President may extend the preliminary phase of the investigation by a further period of up to 45 days. The reasons set out in SIMA for which an investigation may be extended are:

 

• - the complexity or novelty of the issues - This condition includes an obstacle, legal or technical, related to the estimation of the dumping or subsidizing, where the resolution of the issue would significantly affect the calculations;
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• - the variety of goods or the number of persons involved - This condition includes circumstances where a reasonable decision on the question of dumping or subsidizing requires the accumulation and analysis of an extraordinary amount of data;
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• - the difficulty of obtaining satisfactory evidence - This condition includes circumstances where all the information required is not available despite the best efforts and co-operation of the parties. It does not include circumstances resulting from a lack of co-operation by the parties involved, since other remedies exist for this problem;
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• - any other circumstances which make it unusually difficult to make a decision - This last condition is intended to allow the President sufficient discretion to extend investigations in extraordinary cases not covered by any of the prior conditions.
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The decision to extend an investigation under the Act is based on a consideration of the facts and circumstances in the individual case at hand. However, in no case does the President extend an investigation solely for reasons of administrative convenience. A decision to extend an investigation is made only where it is in the best overall interest of all parties involved in the investigation.

 

A final consideration in the decision whether to extend an investigation is the length of the additional time required. Although SIMA provides for an extension of 45 days, this full period may not always be required. Thus, granting an extension does not necessarily mean that the preliminary investigation will be prolonged to the full 135 days.

 

Source: Canada Border Services Agency