These guidelines set out the general approach of the Canadian International Trade Tribunal (the Tribunal) regarding the conduct of an expiry review of a order or finding under section 76.03 of the Special Import Measures Act (SIMA).1
Under SIMA, a order or finding ordinarily expires at the end of five years, unless it is continued by the Tribunal following the conduct of an expiry review. An expiry review is shared between the Tribunal and the Canada Border Services Agency (CBSA). Upon receipt of the Tribunal’s notice of expiry review, the CBSA commences an investigation to determine whether the expiry of the order or finding is likely to result in the continuation or resumption of dumping and/or subsidizing.
If the CBSA determines that the expiry of the order or finding is likely to result in the continuation or resumption of dumping and/or subsidizing, the Tribunal then determines whether the expiry of the order or finding is likely to result in injury to the domestic industry or retardation of the establishment of a domestic industry.
These guidelines focus on the roles, responsibilities and procedures of the Tribunal in an expiry review, and provide an overview of the CBSA’s key milestones in its expiry review investigation. For additional information on the CBSA’s roles, responsibilities and procedures, refer to its Information relating to Expiry Review Investigations Conducted pursuant to the Special Import Measures Act.
The Tribunal is required, pursuant to subsection 76.03(1) of SIMA, to initiate an expiry review with respect to a order or finding no later than five years after the order or finding was made or five years after it was continued following the conduct of a previous expiry review.
The expiry review, which is completed in 310 days, involves two distinct steps:
- the CBSA’s investigation into the likelihood of continued or resumed dumping and/or subsidizing, which is conducted in the first 150 days; and
- the Tribunal’s expiry review into the likelihood of injury or retardation caused by the continuation or resumption of dumping and/or subsidizing, which is conducted in the final 160 days.
Notice of expiry review
The expiry review commences when the Tribunal issues a notice of expiry review. The Tribunal may choose to issue the notice several months prior to the expiry date to efficiently manage its caseload. The notice includes a schedule of events and briefly describes the roles and responsibilities of the CBSA and the Tribunal in the conduct of an expiry review.
The notice of expiry review is published in Part I of the Canada Gazette. All persons known to be interested parties and the governments of the countries from which the goods covered by the order or finding are exported are advised of the notice of expiry review. The Tribunal also publishes the notice and the schedule of events.
Notices of participation and representation, and declarations and undertakings of confidentiality
Any person or government wishing to participate as a party in the Tribunal’s portion of an expiry review must file Form I—Notice of Participation (Party) within the date specified in the notice of expiry review. Each counsel who represents a party in the Tribunal’s portion of an expiry review must file Form II—Notice of Representation (Counsel or Representative) and, to obtain access to confidential information, must also file Form III—Declaration and Undertaking (Lawyers or Representative) within the date specified in the notice of expiry review. All forms are available on the Tribunal’s website. Those wishing to participate in the CBSA’s expiry review investigation must follow the CBSA’s procedures.
A party is not required to be represented by counsel; however, only counsel is able to obtain access to any confidential information on the record of the expiry review. The Tribunal ensures that a public version of any confidential information is available to parties not represented by counsel.
Termination of expiry review
Subsection 76.03(2) of SIMA provides that the Tribunal may terminate an expiry review at any time if, in the Tribunal’s opinion, the review is not supported by domestic producers. The question as to whether the expiry review is supported by domestic producers will be assessed by the Tribunal based on the circumstances specific to each case. However, the Tribunal will typically consider that the failure of domestic producers to file notices of participation with the Tribunal or to substantially participate in the expiry review indicates that the review is not supported.
To ensure that the CBSA does not unnecessarily proceed with its expiry review investigation in cases where there is no support for the expiry review, the Tribunal requires that each person or government wishing to participate in the Tribunal’s portion of an expiry review and, most importantly, domestic producers, file their notices of participation with the Tribunal no later than 15 days after the Tribunal issues the notice of expiry review.
If the Tribunal decides to terminate an expiry review, it will issue an order rescinding the order or finding with reasons to follow. Notice of the termination of the expiry review and of the rescission of the order or finding will be given to the CBSA, persons known to be interested parties, and the governments of the countries from which the goods covered by the order or finding are exported. The CBSA will refund any anti-dumping or countervailing duties collected between the expiry date of the order or finding and the date of the rescission.
The CBSA’s investigation
Upon receipt of a notice of expiry review, the CBSA is required to determine, within 150 days, whether the expiry of the order or finding is likely to result in the continuation or resumption of dumping and/or subsidizing of the goods under review. To reach its decision, the CBSA takes the following into consideration:
- information provided by parties in the form of submissions and questionnaire replies,
- trade compliance data,
- import statistics,
- the results of its most recent re-investigation, and
- market research.
The reasons for the CBSA’s determination are issued no later than 15 days following its determination.
If the CBSA determines that the expiry of the order or finding is likely to result in the continuation or resumption of dumping and/or subsidizing, the Tribunal then commences its 160-day portion of the expiry review. At the same time as the CBSA notifies the Tribunal of its affirmative determination, it transfers all the information it took into consideration in reaching its determination, including the data relating to its enforcement of the Tribunal’s order or finding, which provides the Tribunal with information pertaining to the volume and value of all imports under review entering Canada.
If the CBSA determines that the expiry of the order or finding is not likely to result in the continuation or resumption of dumping and/or subsidizing, it issues a decision to that effect, with reasons to follow 15 days later. Then, the Tribunal issues an order rescinding the order or finding. The CBSA will refund any anti-dumping or countervailing duties collected between the expiry date and the date of the rescission.
Schedule for the Tribunal’s portion of the expiry review
The following table provides an example schedule of key events in the Tribunal’s portion of the expiry review.
|1||Tribunal issues notice of expiry review and schedule|
|15||Notices of participation and representation, declarations and undertakings for the Tribunal’s portion of the expiry review|
|The CBSA has 150 days following the Tribunal’s notice of expiry review to conduct its investigation and issue its determination. If the CBSA issues an affirmative determination, the Tribunal has 160 days to conduct its portion of the expiry review.|
|Tribunal’s portion of the expiry review|
|1||Initiation of Tribunal’s expiry review (following an affirmative determination by the CBSA) and posting of expiry review questionnaires on its website|
|22||Replies to Tribunal expiry review questionnaires|
|53||Distribution of Tribunal exhibits, including information transferred from the CBSA, and investigation report|
|57||Investigation report teleconference (when required)|
|53-75||Requests for information (RFIs)
Objections to RFIs
Issuance of Tribunal’s directions
Receipt of replies to RFIs
|59-75||Requests for product exclusions
Domestic producers’ responses to requests for product exclusions
Requesters’ replies to domestic producers’ responses to requests for product exclusions
|60||Cases of parties in support of a continuation of the order or finding|
|68||Cases of parties in opposition to a continuation of the order or finding|
|76||Reply submissions of parties in support of a continuation of the order or finding|
|160||Order and statement of reasons issued|
Expiry review questionnaire
On Day 1 of its portion of the expiry review (i.e. following an affirmative determination by the CBSA), the Tribunal posts on its website expiry review questionnaires to be completed by domestic producers, importers, trading companies, foreign producers, as well as any known trade unions that represent workers employed in the domestic industry. In an expiry review pertaining to subsidized goods, the governments of the countries of export may also be asked to reply to an expiry review questionnaire. In these expiry review questionnaires, the Tribunal requests public and confidential information that covers the last three full calendar years of commercial activities and any interim periods in the year of the expiry review and the year immediately preceding the year of the expiry review. These questionnaires generally seek information on the volume and value of imports, domestic sales and exports, and the financial results of domestic producers.
Respondents have approximately three weeks to complete their expiry review questionnaires.
An investigation report (public and confidential) is prepared based on the responses to the expiry review questionnaires and other relevant information on the record. The report forms part of the record and is distributed to parties and counsel.
Following the distribution of the investigation report, a teleconference may be held if it is deemed useful to address any specific questions or issues raised by a party. The teleconference will generally take place within five days of the distribution of the investigation report. Due to the nature of the information being discussed, only counsel who have signed a confidentiality undertaking are permitted to participate.
Distribution of the Tribunal’s record
On or about Day 53, the Tribunal distributes the record to parties.
On the distribution date, the record consists of:
- all information transferred from the CBSA with its notice of determination of likelihood of continued or resumed dumping and/or subsidizing;
- replies to expiry review questionnaires;
- the public and confidential investigation reports prepared for the ongoing expiry review;
- the order or finding being reviewed with reasons for decision;
- the public and confidential investigation reports from the prior injury inquiry or the most recent related expiry review, if applicable; and
- other information collected from various sources.
Requests for information
From approximately Day 53 to Day 75, the Tribunal carries out its request for information (RFI) process for parties who demonstrate that they have a compelling need for supplementary information or relevant documents. The purpose of the RFI process is to facilitate the early exchange of information and documents to expedite the hearing process. Parties serve a copy of their RFIs on the Tribunal and on each other, providing an explanation as to why the information or documents sought are relevant in the proceedings. If a party objects to providing a response to an RFI, it must communicate the objection and an explanation for it in writing to the Tribunal, with copies to all other parties. The Tribunal then reviews all submitted RFIs and objections and provides directions as to which requests require a response.
As part of its RFI process, the Tribunal may direct parties to reply to Tribunal RFIs.
Requests for product exclusions
From approximately Day 59 to Day 75, the Tribunal carries out its product exclusion process. The Tribunal has the discretion to exclude products that would otherwise be subject to a finding of injury, threat of injury or retardation, or an order. If the Tribunal grants product exclusions, these products are not subject to anti-dumping and/or countervailing duties.
The Tribunal may exclude goods either on its own initiative or at the request of a party, but only if such exclusions will not cause or do not threaten to cause injury to the domestic industry. An example of a circumstance where such an exclusion would be granted is when there is no longer domestic production of the like goods.
The product exclusion process allows for the filing of requests for product exclusions, responses by the domestic industry to such requests and final replies from parties filing the requests for product exclusions.
Please consult the Tribunal’s Guidelines on Product Exclusion Requests for more information and the needed forms: Product Exclusion Request, Domestic Producer’s Response to Product Exclusion Request and Requester’s Reply to Domestic Producer’s Response.
Parties are not required to use these forms; submissions can be made in a different format, provided the parties submit all the information and supporting documentation requested in the forms.
Written case briefs or submissions
From approximately Day 60 to Day 76, parties are given the opportunity to submit, in writing, case briefs or submissions, and witness statements in support of, or in opposition to, a continuation of the finding of injury, threat of injury or retardation, or the order. If a party intends to call a witness to testify at the hearing, a witness statement must be filed.
Written case briefs, submissions and witness statements should be limited to argument and evidence on the likelihood of injury or retardation. Written submissions typically contain documentary evidence in the form of a written summary of the case to be made at the hearing, statements of evidence made by witnesses who will testify at the hearing, and exhibits on which parties will rely in their presentation of evidence.
Parties should, to the extent possible, base their submissions on public information. However, if parties file confidential information with the Tribunal, they must provide a public summary or redacted version of that confidential information and comply with the requirements of subsection 46(1) of the Canadian International Trade Tribunal Act (CITT Act). Further information regarding the treatment of confidential information in proceedings before the Tribunal can be found in the Tribunal’s Confidentiality Guidelines.
On or about Day 89, a hearing normally starts. A hearing, held before a panel of three members (decision-makers), can consist of both public sessions and, when the information discussed is of a sensitive or confidential nature, of in camera (private) sessions. It may be held either at the Tribunal’s premises in Ottawa, Ontario, or by way of videoconference, and can last anywhere from one to five days, depending on the number of participants. A hearing gives parties the opportunity to call and cross-examine witnesses and to argue their case before the Tribunal. It also provides the Tribunal with an opportunity to test written submissions and documentary evidence.
Where it considers it appropriate, the Tribunal may instead hold a hearing through written submissions only.
Tribunal’s order and reasons
On or about Day 160, the Tribunal issues its order and reasons for its determination on whether the expiry of the order or finding is likely to result in injury to the domestic industry or retardation of the establishment of a domestic industry. Depending on the circumstances of each case, however, the Tribunal may issue its reasons as late as Day 175, 15 days after the order.
In making its determination, the Tribunal may take into account any of the factors set out in subsection 37.2(2) of the Special Import Measures Regulations.
If the Tribunal determines that the expiry of the order or finding is likely to result in injury to the domestic industry or retardation of the establishment of a domestic industry, it issues an order continuing the order or finding, with or without amendment, for up to five years or until a request for an interim review is filed with the Tribunal within that five-year period. Anti-dumping and/or countervailing duties continue to be collected while the order is in effect.
If the Tribunal determines that the expiry of the order or finding is not likely to result in injury to the domestic industry or retardation of the establishment of a domestic industry, it issues an order rescinding the order or finding. Usually, the rescission of the order or finding is effective at the end of the five-year expiry period and anti-dumping or countervailing duties collected between this date and the date of the rescission will be refunded by the CBSA. However, in exceptional circumstances, the rescission can be retroactive to the date of a specific occurrence such as the cessation of domestic production.
Any party may request judicial review by the Federal Court of Appeal of the Tribunal’s decision. Alternatively, parties from the United States, Mexico or Canada may request a binational panel review of the Tribunal’s decision under the Canada-United States-Mexico–– Agreement. In addition, foreign governments that are members of the World Trade Organization may refer certain Tribunal decisions to the World Trade Organization’s dispute settlement body for review.
Any questions regarding these guidelines or any related matter should be addressed to:
Secretariat to the Canadian International Trade Tribunal
333 Laurier Avenue West
Ottawa Ontario K1A 0G7