Special Import Measures Regulations (SOR/84-927)

Acquisition of Shares

35.1 Where the subsidy in relation to any subsidized goods is in the form of the acquisition of shares, by a government, in a corporate enterprise, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, over the estimated total quantity of subsidized goods to which the subsidy is attributable, the difference between

• (a) the amount the government paid or agreed to pay for the shares, and

• (b) the fair market value of those shares immediately before the government’s decision to acquire the shares became public.

Purchase of Goods

35.2 Where the subsidy in relation to any subsidized goods is in the form of the purchase, by a government, of goods, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, over the estimated total quantity of subsidized goods to which the subsidy is attributable, the difference between

• (a) the amount the government paid or agreed to pay for the goods, and

• (b) the fair market value of the goods in the territory of that government.

Goods or Services Provided by a Government

36 Where the subsidy in relation to any subsidized goods is in the form of the provision, by a government, of goods or services, the amount of subsidy shall be determined by distributing, in accordance with generally accepted accounting principles, over the estimated total quantity of subsidized goods to which the subsidy is attributable, the difference between

• (a) the fair market value of the goods or services in the territory of the government providing the subsidy, and

• (b) the price at which the goods or services were provided by that government.

36.001 Where there is a significant difference between the amount of subsidy in relation to goods as otherwise determined under this Part and the future value, on the date of sale of the goods, of the amount of subsidy so determined, the amount of subsidy shall be the future value, on the date of sale, of the amount of subsidy as otherwise determined under this Part.

PART II.01Dispute Settlement Respecting Goods of a CUSMA Country

36.01 In this Part,

American Secretary

American Secretary means the person designated to serve as Secretary to the American Section of the Secretariat; (secrétaire américain)

Mexican Secretary

Mexican Secretary means the person designated to serve as Secretary to the Mexican Section of the Secretariat; (secrétaire mexicain)

Secretariat

Secretariat means the Secretariat established pursuant to paragraph 1 of Article 30.6 of the Canada–United States–Mexico Agreement. (Secrétariat)

36.02 For the purposes of the definition government of a CUSMA country in subsection 2(1) of the Act, the following are prescribed departments, agencies or other bodies:

• (a) for the purposes of subsection 77.011(1), subsection 77.011(6) of the English version, subsections 77.015(5), 77.017(1) and (3) and 77.019(6) of the Act,

  • (i) in respect of Mexico, the office of the Mexican Secretary, and

  • (ii) in respect of the United States, the office of the American Secretary;

• (b) for the purposes of subsections 77.011(4) and 77.013(3) of the Act,

  • (i) in respect of Mexico, the Secretaría de Economía (Secretariat of Economy), and

  • (ii) in respect of the United States, the Department of State; and

• (c) for the purposes of subsection 77.023(1), section 77.025 and subsections 77.028(1) and 77.031(1) and (2) of the Act,

  • (i) in respect of Mexico, the Secretaría de Economía (Secretariat of Economy), and

  • (ii) in respect of the United States, the office of the United States Trade Representative.

36.03 A government of a province of Canada or of a state of the United States that is aggrieved by a definitive decision is deemed to be a person who is entitled to file a request with the Canadian Secretary under subsection 77.011(2) of the Act.

36.04 For the purposes of subsection 77.012(1) of the Act, notice of an intention to make an application or to appeal in respect of a definitive decision that is to be given to every person who, but for section 77.012 of the Act, would be entitled to make such an application or to appeal shall be given by publication in the Canada Gazette of a notice to that effect and, if service of such a notice is required pursuant to the rules of procedure adopted or maintained pursuant to paragraph 14 of Article 10.12 of the Canada–United States–Mexico Agreement, by service of that notice in the prescribed manner under those rules.

• 36.05 (1) In this section, administrative record has the same meaning as in Article 10.8 of the Canada–United States–Mexico Agreement.

• (2) For the purposes of section 77.015 of the Act, a panel has the powers, rights and privileges of a superior court of record in respect of the compelling of production, and the examination, of the administrative record in respect of a definitive decision, other than any portion thereof that is government information within the meaning of the rules relating to panel reviews.

36.06 For the purposes of section 77.019 of the Act, a committee has the powers, rights and privileges of a superior court of record in respect of

• (a) the compelling of production, and the examination, of the record of a panel review; and

• (b) where the grounds for an extraordinary challenge proceeding before the committee are the grounds set out in subparagraph 13(a)(i) and paragraph 13(b) of Article 10.12 of the Canada–United States–Mexico Agreement,

  • (i) the compelling of production, and the examination, of documents relevant to those grounds,

  • (ii) the summoning and enforcement of attendance of witnesses and the compelling of those witnesses to give oral or written evidence on oath or on solemn affirmation, and

  • (iii) the administering of oaths and affirmations.

36.07 For the purposes of subsection 77.021(2) of the Act, the following are prescribed persons:

• (a) a member of a committee;

• (b) the staff of, or any person under contract to, a panel, committee or special committee;

• (c) the Canadian Secretary and the staff of, or any person under contract to, the Canadian Section of the Secretariat;

• (d) the Mexican Secretary and the staff of, or any person under contract to, the Mexican Section of the Secretariat;

• (e) the American Secretary and the staff of, or any person under contract to, the American Section of the Secretariat;

• (f) counsel for participants in the proceedings of a panel, committee or special committee and employees of, and any professional adviser retained by, or under the control or direction of, those counsel to whom confidential, personal, business proprietary or other privileged or prescribed information may be made available in respect of those proceedings; and

• (g) any other person to whom confidential, personal, business proprietary or other privileged or prescribed information is made available in respect of proceedings under Part I.1 of the Act.

PART II.1Dispute Settlement Respecting Goods of the United States

36.1 For the purposes of subsections 77.11(1), (5) and (6), 77.15(5), 77.17(1) and (3) and 77.19(5) of the Act, the American Secretary is the prescribed agency of the United States government.

36.2 A government of a province of Canada or of a state of the United States that is aggrieved by a definitive decision shall be deemed to be a person entitled to make a request to the Canadian Secretary under subsection 77.11(2) of the Act.

36.3 For the purposes of subsections 77.11(3) and 77.13(2) of the Act, the Department of State of the United States is the prescribed department of the United States government.

• 36.4 (1) For the purposes of subsection 77.12(1) of the Act, the manner by which notice of the intention to make an application or appeal is given to every person to whom notice of the definitive decision was sent by the President or every person that appeared in the proceedings before the Tribunal, as the case may be, shall be in writing.

• (2) [Repealed, SOR/92-236, s. 4]

36.5 For the purposes of subsection 77.15(2) of the Act, a panel shall have the powers, rights and privileges of a superior court of record to compel the production of and to examine the administrative record of proceedings in respect of the definitive decision, other than government information, as that expression is defined by the rules, for the purpose of the full review of the definitive decision.

36.6 For the purposes of subsection 77.19(2) of the Act, a committee shall have the following powers, rights and privileges of a superior court of record:

• (a) the power to compel the production of and to examine the record of the panel review, for the purpose of the full review of the decision of the panel; and

• (b) where the grounds of the extraordinary challenge are the grounds set out in subparagraph 13(a)(i) and paragraph 13(b) of Article 1904 of the Free Trade Agreement,

  • (i) the power to compel the production of and to examine documents relevant to those grounds,

  • (ii) the power to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath or on solemn affirmation, and

  • (iii) the power to administer oaths and affirmations.

36.7 For the purposes of subsection 77.21(2) of the Act, the following are prescribed persons:

• (a) each member of the staff of a panel or committee;

• (b) the Canadian Secretary, the American Secretary and the staff of the Secretariat and of the American Secretariat;

• (c) counsel for participants in the proceedings of the panel or committee and employees of those counsel to whom confidential, personal, business proprietary or privileged information may be made available in respect of those proceedings; and

• (d) any other person to whom confidential, personal, business proprietary or privileged information is made available in respect of proceedings under Part II of the Act.

PART IIIGeneral

Properly Documented Complaints

37 For the purposes of subparagraph (b)(ii) of the definition properly documented in subsection 2(1) of the Act, the following information is prescribed:

• (a) the volume and value of the complainant’s domestic production of like goods;

• (b) a list of all producers of like goods in Canada, and of associations of such producers in Canada, whom the complainant knows of;

• (b.1) a list of the trade unions that represent persons employed in the production of like goods in Canada and the associations that include such trade unions, whom the complainant knows of;

• (c) such details as are reasonably available to the complainant regarding the estimated volume and value of the production of like goods by the producers referred to in paragraph (b);

• (d) the name of each foreign producer or exporter of the allegedly dumped or subsidized goods whom the complainant knows of;

• (e) the name of each importer in Canada of the allegedly dumped or subsidized goods whom the complainant knows of;

• (f) such details as are reasonably available to the complainant regarding the evolution of the volume of imports of the allegedly dumped or subsidized goods; and

• (g) such details as are reasonably available to the complainant regarding the effect of imports of the allegedly dumped or subsidized goods on the price of like goods in Canada.

Injury, Retardation or Threat of Injury

• 37.1 (1) The following factors may be considered in determining whether the dumping or subsidizing of goods has caused injury or retardation:

  • (a) the volume of the dumped or subsidized goods and, in particular, whether there has been a significant increase in the volume of imports of the dumped or subsidized goods, either in absolute terms or relative to the production or consumption of like goods;

  • (b) the effect of the dumped or subsidized goods on the price of like goods and, in particular, whether the dumped or subsidized goods have significantly

    • (i) undercut the price of like goods,

    • (ii) depressed the price of like goods, or

    • (iii) suppressed the price of like goods by preventing the price increases for those like goods that would otherwise likely have occurred;

  • (c) the resulting impact of the dumped or subsidized goods on the state of the domestic industry and, in particular, all relevant economic factors and indices that have a bearing on the state of the domestic industry, including

    • (i) any actual or potential decline in output, sales, market share, profits, productivity, return on investments or the utilization of industrial capacity,

    • (i.1) any actual or potential negative effects on employment levels or the terms and conditions of employment of the persons employed in the domestic industry, including their wages, hours worked, pension plans, benefits or worker training and safety,

    • (ii) any actual or potential negative effects on cash flow, inventories, growth or the ability to raise capital,

    • (ii.1) the magnitude of the margin of dumping or amount of subsidy in respect of the dumped or subsidized goods, and

    • (iii) in the case of agricultural goods, including any goods that are agricultural goods or commodities by virtue of an Act of Parliament or of the legislature of a province, that are subsidized, any increased burden on a government support programme; and

  • (d) any other factor that is relevant in the circumstances.

• (2) The following factors may be considered in determining whether the dumping or subsidizing of goods is threatening to cause injury:

  • (a) the nature of the subsidy in question and the effects it is likely to have on trade;

  • (b) whether there has been a significant rate of increase of dumped or subsidized goods imported into Canada, which rate of increase indicates a likelihood of substantially increased imports into Canada of the dumped or subsidized goods;

  • (c) whether there is sufficient freely disposable capacity, or an imminent, substantial increase in the capacity of an exporter, that indicates a likelihood of a substantial increase of dumped or subsidized goods, taking into account the availability of other export markets to absorb any increase;

  • (d) the potential for product shifting where production facilities that can be used to produce the goods are currently being used to produce other goods;

  • (e) whether the goods are entering the domestic market at prices that are likely to have a significant depressing or suppressing effect on the price of like goods and are likely to increase demand for further imports of the goods;

  • (f) inventories of the goods;

  • (g) the actual and potential negative effects on existing development and production efforts, including effects on hiring and on efforts to produce a derivative or more advanced version of like goods;
    

  • (g.1) the magnitude of the margin of dumping or amount of subsidy in respect of the dumped or subsidized goods;

  • (g.2) evidence of the imposition of anti-dumping or countervailing measures by the authorities of a country other than Canada in respect of goods of the same description or in respect of similar goods; and

  • (h) any other factor that is relevant in the circumstances.

• (3) The following additional factors may be considered in determining whether the dumping or subsidizing of goods has caused injury or retardation or is threatening to cause injury:

  • (a) whether a causal relationship exists between the dumping or subsidizing of the goods and the injury, retardation or threat of injury, on the basis of the factors listed in subsections (1) and (2); and

  • (b) whether any factors other than the dumping or subsidizing of the goods have caused injury or retardation or are threatening to cause injury, on the basis of

    • (i) the volumes and prices of imports of like goods that are not dumped or subsidized,

    • (ii) a contraction in demand for the goods or like goods,

    • (iii) any change in the pattern of consumption of the goods or like goods,

    • (iv) trade-restrictive practices of, and competition between, foreign and domestic producers,

    • (v) developments in technology,

    • (vi) the export performance and productivity of the domestic industry in respect of like goods, and

    • (vii) any other factor that is relevant in the circumstances.