Special Import Measures Act (R.S.C., 1985, c. S-15)

Preliminary Determination of Injury or of Dumping or Subsidizing

Marginal note:Preliminary determination of injury

• 37.1 (1) On or before the sixtieth day after the initiation of an investigation under section 31, the Tribunal shall make, with respect to the goods in respect of which the investigation has not been terminated under section 35, a preliminary determination that there is evidence that discloses a reasonable indication that the dumping or subsidizing has caused injury or retardation or is threatening to cause injury.

• Marginal note:Notification

  (2) The Tribunal shall cause notice of the preliminary determination to be

  • (a) given to the President, the exporter, the importer, the government of the country of export, the complainant, if any, and any prescribed persons; and

  • (b) published in the Canada Gazette.

Marginal note:Preliminary determination of dumping or subsidizing

• 38 (1) Subject to section 39, after the sixtieth and on or before the ninetieth day after the initiation of an investigation under section 31, the President shall make a preliminary determination of dumping or subsidizing with respect to the goods in respect of which the investigation has not been terminated under section 35 after estimating and specifying, in relation to each exporter of goods in respect of which the investigation is made, as follows:

  • (a) in the case of dumped goods,

    • (i) estimating the margin of dumping of the goods to which the preliminary determination applies, using the information available to the President at the time the estimate is made, and

    • (ii) specifying the goods to which the preliminary determination applies;

  • (b) in the case of subsidized goods,

    • (i) estimating the amount of subsidy on the goods to which the preliminary determination applies, using the information available to the President at the time the estimate is made,

    • (ii) specifying the goods to which the preliminary determination applies, and

    • (iii) subject to subsection (2), where the whole or any part of the subsidy on the goods to which the preliminary determination applies is a prohibited subsidy, specifying that there is a prohibited subsidy on the goods and estimating the amount of the prohibited subsidy thereon; and

  • (c) in the case of dumped or subsidized goods, specifying the name of the person the President believes, on the information available to the President at the time the President makes the estimate referred to in subparagraph (a)(i) or (b)(i), as the case may be, is the importer in Canada of the goods.

• Marginal note:Insignificant margin or amount

  (1.1) The President may in making a preliminary determination under subsection (1), using the information available to him or her at that time, make the determination that the margin of dumping of, or the amount of subsidy on, any goods of a particular exporter is insignificant.

• Marginal note:Deeming provision

  (1.2) For the purposes of a preliminary determination, if the President determines that the margin of dumping or the amount of subsidy is equivalent to 0% of the export price of the goods, then that margin or amount is considered to be insignificant and the investigation in respect of those goods continues.

• Marginal note:Exception

  (2) The President shall not specify or estimate anything pursuant to subparagraph (1)(b)(iii) where the President is of the opinion that, having regard to the country that is providing the export subsidy, the nature of the goods on which there is an export subsidy and the circumstances under which the export subsidy is provided, provision of the export subsidy in relation to those goods is not inconsistent with that country’s obligations under the international agreement known as the General Agreement on Tariffs and Trade, 1994.

• Marginal note:Notice of preliminary determination

  (3) Where the President makes a preliminary determination under subsection (1), the President shall

  • (a) cause notice of the determination to be given and published as provided in paragraph 34(1)(a); and

  • (b) cause to be filed with the Tribunal written notice of the determination, stating the reasons therefor, together with such other material relating to the determination as may be required under the rules of the Tribunal.

Marginal note:Time extended

• 39 (1) If, in any investigation respecting the dumping or subsidizing of goods, the President, before the expiration of the ninety days referred to in subsection 38(1), causes written notice to be given to the persons and the government referred to in paragraph 34(1)(a) that by reason of

  • (a) the complexity or novelty of the issues presented by the investigation,

  • (b) the variety of goods or number of persons involved in the investigation,

  • (c) the difficulty of obtaining satisfactory evidence in the investigation, or

  • (d) any other circumstance specified in the notice that, in the opinion of the President, makes it unusually difficult for him to decide within those ninety days whether to terminate the investigation with respect to some or all of the goods, proceed in accordance with subsection 38(1) or accept an undertaking or undertakings,

  the decision referred to in paragraph (d) will not be made within those ninety days, the period of ninety days referred to in section 38 is thereupon extended to one hundred and thirty-five days.

• Marginal note:Notice of time extension

  (2) Where the President causes notice to be given pursuant to subsection (1), he shall cause a notice to the same effect to be published in the Canada Gazette forthwith.

40 [Repealed, 1999, c. 12, s. 24]

Final Determination

Marginal note:Final determination or termination

• 41 (1) Within 90 days after making a preliminary determination under subsection 38(1), the President shall

  • (a) terminate the investigation in respect of any goods of a particular exporter if, on the available evidence, the President is satisfied that there has been no dumping or subsidizing of the goods or that the margin of dumping of, or amount of subsidy on, those goods is insignificant; and

  • (b) make a final determination of dumping or subsidizing in respect of the goods that are the subject of the investigation and for which the investigation has not been terminated under paragraph (a) if, on the available evidence, the President is satisfied that there has been dumping or subsidizing and the President shall specify, in relation to each exporter of goods in respect of which the investigation is made, as follows:

    • (i) in the case of dumped goods, the goods to which the determination applies and the margin of dumping of the goods, and

    • (ii) in the case of subsidized goods,

      • (A) the goods to which the determination applies,

      • (B) the amount of subsidy on the goods, and

      • (C) subject to subsection (2), if the whole or any part of the subsidy on the goods is a prohibited subsidy, the amount of the prohibited subsidy on the goods.

• Marginal note:Exception

  (2) The President shall not specify anything under clause (1)(b)(ii)(C) if the President is of the opinion that, having regard to the country that is providing the export subsidy, the nature of the goods and the circumstances under which the export subsidy is provided, provision of the export subsidy in relation to those goods is not inconsistent with that country’s obligations under the international agreement known as the General Agreement on Tariffs and Trade, 1994.

• Marginal note:Notice of final determination

  (3) Where the President makes a final determination of dumping or subsidizing in respect of goods, he shall cause notice that he has made the determination to be

  • (a) given and published as provided in paragraph 34(1)(a); and

  • (b) filed with the Tribunal in writing, stating the reasons therefor, together with such other material relating to the determination as may be required under the rules of the Tribunal.

• Marginal note:Notice of termination

  (4) Where the President causes an investigation respecting the dumping or subsidizing of any goods to be terminated pursuant to subsection (1) in respect of those goods, he shall cause notice of the termination to be

  • (a) given and published as provided in paragraph 34(1)(a); and

  • (b) given in writing to the Tribunal.

Marginal note:Action on final determination or decision referred back by Court

• 41.1 (1) If a decision under paragraph 41(1)(a) or a final determination under paragraph 41(1)(b) is set aside and the matter referred back to the President on an application under section 96.1, the President shall

  • (a) reconsider the matter and make a new final determination or decision; and

  • (b) cause notice of the action taken pursuant to paragraph (a) to be given and published as provided in paragraph 34(1)(a) and to be given in writing to the Tribunal.

• Marginal note:Action on final determination or decision referred back by panel

  (2) If a decision under paragraph 41(1)(a) or a final determination under paragraph 41(1)(b) is referred back to the President under subsection 77.015(3) or (4), 77.019(5), 77.15(3) or (4) or 77.19(4), the President shall

  • (a) reconsider the final determination or decision and confirm or rescind it or, in the case of a final determination, vary it; and

  • (b) cause notice of the action taken pursuant to paragraph (a) to be given and published as provided in paragraph 34(1)(a) and to be given in writing to the Tribunal and the Canadian Secretary.

• Marginal note:Final determination

  (3) Where the President reconsiders a matter involving a final determination pursuant to subsection (1) or reconsiders and rescinds a final determination pursuant to subsection (2), section 41 shall again apply in respect of the goods to which the final determination applied as if that section had not previously applied in respect of those goods, except that the action that the President is required by that section to take shall, notwithstanding anything therein, be taken by the President within such period as is specified by the panel that made the order or the Federal Court of Appeal, as the case may be, or, in the case of the Federal Court of Appeal, within ninety days after the Court gives its ruling, if it did not specify a period.

• Marginal note:Decision to terminate

  (4) Where the President reconsiders a matter involving a decision pursuant to subsection (1) or reconsiders and rescinds a decision pursuant to subsection (2),

  • (a) the President shall be deemed to have made, on the day on which the order referring the matter or decision back to the President was made, a preliminary determination of dumping or subsidizing in respect of the goods that were the subject of the investigation that was terminated;

  • (b) the President shall resume the investigation that was terminated;

  • (c) section 41 shall again apply as described in subsection (3); and

  • (d) sections 42 and 43 shall again apply in respect of the goods to which the decision relates as if those sections had not previously applied in respect of those goods, except that the action that the Tribunal is required by those sections to take shall, notwithstanding anything therein, be taken by the Tribunal within one hundred and twenty days after the day on which the order referring the decision back to the President was made.

Marginal note:President to be guided by Canada’s obligations

41.2 The President shall, in an investigation respecting the subsidizing of any goods, take into account the provisions of paragraphs 10 and 11 of Article 27 of the Subsidies Agreement.