An Act to amend certain Acts as a result of the accession of the People’s Republic of China to the Agreement Establishing the World Trade Organization

Link to law: http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2002_19/FullText.html

An Act to amend certain Acts as a result of the accession of the People’s Republic of China to the Agreement Establishing the World Trade Organization

S.C. 2002, c. 19

Assented to 2002-06-13

An Act to amend certain Acts as a result of the accession of the People’s Republic of China to the Agreement Establishing the World Trade Organization

SUMMARY

This enactment gives effect to the rights of Canada pursuant to the Protocol on the Accession of the People’s Republic of China to the World Trade Organization that came into effect on December 11, 2001.

The enactment amends the Canadian International Trade Tribunal Act, the Customs Tariff and the Export and Import Permits Act to authorize the Governor in Council to impose, under certain conditions and after an inquiry by the Canadian International Trade Tribunal, special trade measures to protect Canadian industries from injury or threat of injury that could be caused by imports from the People’s Republic of China. These special trade measures, called safeguards, will be available until December 11, 2013.

The enactment also amends the Special Import Measures Act to allow the Canada Customs and Revenue Agency greater flexibility in conducting anti-dumping investigations related to imported Chinese goods when the price or the cost of production of those goods in China is not determined by market economy conditions.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. 47 (4th Supp.) CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT

1. Paragraph 26(1)(c) of the Canadian International Trade Tribunal Act is replaced by the following:

(c) where an inquiry, except an inquiry under sections 30.21 to 30.25, in relation to like or directly competitive goods has been completed or terminated by the Tribunal under this Act during the twenty-four month period preceding the date of receipt of the complaint, that the circumstances are sufficiently different to warrant a new inquiry.

2. Subsection 29(4) of the French version of the Act is replaced by the following:

Marginal note:Publication d’avis

(4) Le Tribunal fait publier dans la Gazette du Canada un avis pour chaque rapport établi en application du paragraphe (1) et en avise les autres intéressés.

3. Subsection 30(4) of the French version of the Act is replaced by the following:

Marginal note:Publication d’avis

(4) Le Tribunal fait publier dans la Gazette du Canada un avis de transmission pour chaque rapport visé au paragraphe (1) et en notifie les autres intéressés.

4. The Act is amended by adding the following after section 30.19:

SAFEGUARD MEASURES IN RESPECT OF CHINA

Marginal note:Definitions

30.2 The following definitions apply in this section and in sections 30.21 to 30.25.

“action”

« mesure »

“action” means

(a) any action, including a provisional action, taken

(i) by the People’s Republic of China to prevent or remedy market disruption in a WTO Member other than Canada, or

(ii) by a WTO Member other than Canada to withdraw concessions under the World Trade Organization Agreement or otherwise to limit imports to prevent or remedy market disruption in that Member caused or threatened by the importation of goods originating in the People’s Republic of China; or

(b) any combination of actions referred to in paragraph (a).

“market disruption”

« désorganisation du marché »

“market disruption” means a rapid increase in the importation of goods that are like or directly competitive with goods produced by a domestic industry, in absolute terms or relative to the production of those goods by a domestic industry, so as to be a significant cause of material injury, or threat of material injury, to the domestic industry.

“significant cause”

« cause importante »

“significant cause” means, in respect of a material injury or threat thereof, an important cause that need not be as important as, or more important than, any other cause of the material injury or threat.

“WTO Member”

« membre de l’OMC »

“WTO Member” means a Member of the World Trade Organization established by Article I of the Agreement Establishing the World Trade Organization, signed at Marrakesh on April 15, 1994.

Marginal note:Inquiry into market disruption and trade diversion

30.21 (1) The Tribunal shall inquire into and report to the Governor in Council on any matter in relation to

(a) the importation of goods originating in the People’s Republic of China into Canada in such increased quantities or under such conditions as to cause or threaten to cause market disruption to domestic producers of like or directly competitive goods, or

(b) any action that causes or threatens to cause a significant diversion of trade into the domestic market in Canada

that the Governor in Council refers to the Tribunal for inquiry.

Marginal note:Terms of reference

(2) The Tribunal shall conduct an inquiry under subsection (1) and shall prepare its report on it in accordance with the terms of reference established by the Governor in Council.

Marginal note:Tabling of report

(3) The Minister shall cause a copy of each report submitted to the Governor in Council pursuant to this section to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is submitted.

Marginal note:Notice of report

(4) The Tribunal shall cause a notice of the submission of a report pursuant to this section to be published in the Canada Gazette.

Marginal note:Filing of complaint — market disruption

30.22 (1) Any domestic producer of goods that are like or directly competitive with goods originating in the People’s Republic of China being imported into Canada, or any person or association acting on behalf of any such domestic producer, may file a written complaint with the Tribunal alleging that the imported goods are being imported in such increased quantities or under such conditions as to cause or threaten to cause market disruption to domestic producers of like or directly competitive goods.

Marginal note:Contents of complaint

(2) A complaint shall

(a) state in reasonable detail the facts on which the allegations are based;

(b) state an estimate of the total percentage of Canadian production of the like or directly competitive goods that is produced by the domestic producers by whom or on whose behalf the complaint is filed;

(c) be accompanied by any information that is available to the complainant to support the facts referred to in paragraph (a) and to substantiate the estimate referred to in paragraph (b);

(d) be accompanied by any other information that may be required by the rules; and

(e) make any other representations that the complainant deems relevant to the matter.

Marginal note:Commencement of inquiry

(3) On receipt of a complaint that meets the requirements of subsection (2), the Tribunal shall commence an inquiry into the complaint if it is satisfied

(a) that the information provided by the complainant and any other information examined by the Tribunal discloses a reasonable indication that the goods originating in the People’s Republic of China that are the subject of the complaint are being imported in such increased quantities or under such conditions as to cause or threaten to cause market disruption to domestic producers of like or directly competitive goods;

(b) that the complaint is made by or on behalf of domestic producers who produce a major proportion of the domestic production of the like or directly competitive goods; and

(c) where an inquiry under this section and sections 30.21 and 30.23 to 30.25 in relation to like or directly competitive goods has been completed or terminated during the twelve-month period preceding the date of receipt of the complaint, that the circumstances are sufficiently different to warrant a new inquiry.

Marginal note:Notice of decision to commence inquiry

(4) Where the Tribunal decides to commence an inquiry into the complaint, it shall immediately

(a) notify the complainant and each other interested party in writing of its decision, of the reasons for it and of the date on which any hearing in the inquiry shall commence;

(b) cause a notice of its decision and the date on which any hearing in the inquiry shall commence to be published in the Canada Gazette; and

(c) send to the Minister a copy of its decision, a copy of the complaint, and the information accompanying the complaint, and a copy of any other relevant information examined by the Tribunal in relation to the complaint.

Marginal note:Notice of decision not to commence inquiry

(5) Where the Tribunal decides not to commence an inquiry into the complaint, it shall immediately

(a) notify the complainant and each other interested party in writing of its decision, of the reasons for its refusal to commence an inquiry and, where the reasons for its decision are based in whole or in part on information that was obtained from a source other than the complainant, of the fact that the decision was based in whole or in part on such information; and

(b) cause a notice of its decision to be published in the Canada Gazette.

Marginal note:Determination by Tribunal

(6) The Tribunal shall, in the inquiry into the complaint, determine whether, having regard to any regulations made pursuant to paragraphs 40(a) and (k.1), the goods originating in the People’s Republic of China that are the subject of the complaint are being imported in such increased quantities or under such conditions that they cause or threaten to cause market disruption to domestic producers of like or directly competitive goods.

Marginal note:Other matters

(7) The Tribunal shall, in the inquiry into the complaint, examine any other matter in relation to the complaint that the Governor in Council refers to it for examination.

Marginal note:Report on inquiry

(8) The Tribunal shall prepare a report on the inquiry not later than ninety days after the inquiry is commenced and shall submit a copy of it to the Governor in Council, the Minister, the complainant and any other person who made representations to the Tribunal during the inquiry.

Marginal note:Notice of report

(9) The Tribunal shall cause a notice of the report to be given to each other interested party and to be published in the Canada Gazette.

Marginal note:Tabling of report in certain cases

(10) Where, pursuant to subsection (7), the Governor in Council refers a matter to the Tribunal, the Minister shall cause a copy of the report on the inquiry to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is submitted to the Governor in Council.

Marginal note:Filing of complaint — trade diversion

30.23 (1) Any domestic producer of goods that are like or directly competitive with goods that are subject to any action, or any person or association acting on behalf of any such domestic producer, may file a written complaint with the Tribunal alleging that the action causes or threatens to cause a significant diversion of trade into the domestic market in Canada.

Marginal note:Contents of complaint

(2) A complaint shall

(a) state in reasonable detail the facts on which the allegations are based;

(b) state an estimate of the total percentage of Canadian production of the like or directly competitive goods that is produced by the domestic producers by whom or on whose behalf the complaint is filed;

(c) be accompanied by any information that is available to the complainant to support the facts referred to in paragraph (a) and to substantiate the estimate referred to in paragraph (b);

(d) be accompanied by any other information that may be required by the rules; and

(e) make any other representations that the complainant deems relevant to the matter.

Marginal note:Commencement of inquiry

(3) On receipt of a complaint that meets the requirements of subsection (2), the Tribunal shall commence an inquiry into the complaint if it is satisfied

(a) that the information provided by the complainant and any other information examined by the Tribunal discloses a reasonable indication that an action causes or threatens to cause a significant diversion of trade into the domestic market in Canada; and

(b) that the complaint is made by or on behalf of domestic producers who produce a major proportion of domestic production of the like or directly competitive goods.

Marginal note:Notice of decision to commence inquiry

(4) Where the Tribunal decides to commence an inquiry into the complaint, it shall immediately

(a) notify the complainant and each other interested party in writing of its decision, of the reasons for it and of the date on which any hearing in the inquiry shall commence;

(b) cause a notice of its decision and the date on which any hearing in the inquiry shall commence to be published in the Canada Gazette; and

(c) send to the Minister a copy of its decision, a copy of the complaint, and the information accompanying the complaint, and a copy of any other relevant information examined by the Tribunal in relation to the complaint.

Marginal note:Notice of decision not to commence inquiry

(5) Where the Tribunal decides not to commence an inquiry into the complaint, it shall immediately

(a) notify the complainant and each other interested party in writing of its decision, of the reasons for its refusal to commence an inquiry and, where the reasons for its decision are based in whole or in part on information that was obtained from a source other than the complainant, of the fact that the decision was based in whole or in part on such information; and

(b) cause a notice of its decision to be published in the Canada Gazette.

Marginal note:Determination by Tribunal

(6) The Tribunal shall, in the inquiry into the complaint, determine whether, having regard to any regulations made pursuant to paragraphs 40(a) and (k.1), an action causes or threatens to cause a significant diversion of trade into the domestic market in Canada.

Marginal note:Other matters

(7) The Tribunal shall, in an inquiry, examine any other matter in relation to the complaint that the Governor in Council refers to it for examination.

Marginal note:Report on inquiry

(8) The Tribunal shall prepare a report on the inquiry not later than seventy days after the inquiry is commenced and shall submit a copy of it to the Governor in Council, the Minister, the complainant and any other person who made representations to the Tribunal during the inquiry.

Marginal note:Notice of report

(9) The Tribunal shall cause a notice of the report to be given to each other interested party and to be published in the Canada Gazette.

Marginal note:Tabling of report in certain cases

(10) Where, pursuant to subsection (7), the Governor in Council refers a matter to the Tribunal, the Minister shall cause a copy of the report on the inquiry to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is submitted to the Governor in Council.

Marginal note:Further inquiry

30.24 (1) The Governor in Council may, at any time after the receipt of a report prepared by the Tribunal pursuant to subsection 30.22(8) or 30.23(8), request the Tribunal to inquire into and report to the Governor in Council on any matter in relation to that report.

Marginal note:Terms of reference

(2) The Tribunal shall conduct an inquiry under subsection (1) and shall prepare its report on it in accordance with the terms of reference established by the Governor in Council.

Marginal note:Copies of report

(3) The Tribunal shall send a copy of each report submitted to the Governor in Council pursuant to subsection (1) to the Minister, the complainant and any other person to whom a copy of the report on the original inquiry was submitted pursuant to subsection 30.22(8) or 30.23(8), as the case may be.

Marginal note:Notice of report

(4) The Tribunal shall cause a notice of the submission of a report to the Governor in Council pursuant to subsection (1) to be given to each other interested party and to be published in the Canada Gazette.

Marginal note:Tabling of report

(5) The Minister shall cause a copy of each report submitted to the Governor in Council pursuant to subsection (1) to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is so submitted.

Marginal note:Notice of expiring orders

30.25 (1) The Tribunal shall cause to be published in the Canada Gazette a notice of the expiry date of any order that imposes a surtax on any goods under subsection 77.1(2) or 77.3(1) of the Customs Tariff or includes any goods on the Import Control List under subsection 5.4(2) or (4) of the Export and Import Permits Act, but no notice shall be published if the order ceases to have effect or is repealed under section 77.2, subsection 77.3(4) or section 77.4 of the Customs Tariff or is repealed under subsection 5.4(5) of the Export and Import Permits Act before the end of the effective period specified in that order.

Marginal note:Manner and contents of publication

(2) The notice shall be published in accordance with the rules and shall state the final date for filing an extension request in respect of the order.

Marginal note:Filing of request relating to extension orders

(3) Any domestic producer of goods that are like or directly competitive with any goods that are subject to an order referred to in subsection (1), or any person or association acting on behalf of any such domestic producer, may file with the Tribunal a written request that an extension order be made under subsection 77.3(1) of the Customs Tariff or subsection 5.4(4) of the Export and Import Permits Act because an order continues to be necessary to prevent or remedy market disruption to domestic producers of like or directly competitive goods.

Marginal note:Time limit for filing extension request

(4) An extension request shall be filed no later than the final date for filing specified in the notice published pursuant to subsection (2).

Marginal note:Receipt to be acknowledged

(5) The Tribunal shall, forthwith after receipt of an extension request, notify the requester in writing of its receipt and the date of its receipt.

Marginal note:Contents of extension request

(6) An extension request shall

(a) state in reasonable detail the facts on which the allegations are based;

(b) state an estimate of the total percentage of Canadian production of the like or directly competitive goods that is produced by the domestic producers by whom or on whose behalf the extension request is filed;

(c) be accompanied by any information that is available to the complainant to support the facts referred to in paragraph (a) and to substantiate the estimate referred to in paragraph (b);

(d) be accompanied by any other information that may be required by the rules; and

(e) make any other representations that the requester deems relevant to the matter.

Marginal note:Inquiries into extension requests

(7) On receipt of an extension request that meets the requirements of subsection (6), the Tribunal shall commence an inquiry into the request within thirty days after the request is filed if the Tribunal is satisfied

(a) that the information provided by the requester and any other information examined by the Tribunal discloses a reasonable indication that an order continues to be necessary to prevent or remedy market disruption to domestic producers of like or directly competitive goods; and

(b) that the extension request is made by or on behalf of domestic producers who produce a major proportion of the domestic production of the like or directly competitive goods.

Marginal note:Notice of decision to commence inquiry

(8) Where the Tribunal decides to commence an inquiry into the extension request, it shall immediately

(a) notify the requester and each other interested party in writing of its decision, of the reasons for it and of the date on which any hearing in the inquiry shall commence;

(b) cause a notice of its decision and the date on which any hearing in the inquiry shall commence to be published in the Canada Gazette; and

(c) send to the Minister a copy of its decision, a copy of the extension request, and the information accompanying the extension request, and a copy of any other relevant information examined by the Tribunal in relation to the extension request.

Marginal note:Notice of decision not to commence inquiry

(9) Where the Tribunal decides not to commence an inquiry into the extension request, it shall immediately

(a) notify the requester and each other interested party in writing of its decision, of the reasons for its refusal to commence an inquiry and, where the reasons for its decision are based in whole or in part on information that was obtained from a source other than the requester, of the fact that the decision was based in whole or in part on such information; and

(b) cause a notice of its decision to be published in the Canada Gazette.

Marginal note:Continuing necessity of order

(10) The Tribunal shall, in the inquiry into the extension request, determine whether an order continues to be necessary to prevent or remedy market disruption to domestic producers of like or directly competitive goods.

Marginal note:Other matters

(11) The Tribunal shall, in the inquiry into the extension request, examine any other matter in relation to the extension request that the Governor in Council refers to it for examination.

Marginal note:Report on extension inquiry

(12) The Tribunal shall prepare a report on the inquiry not later than forty-five days before the expiry date of the order to which the inquiry under subsection (7) relates and shall submit a copy of it to the Governor in Council, the Minister, the requester and any other person who made representations to the Tribunal during the inquiry.

Marginal note:Notice of report

(13) The Tribunal shall cause a notice of the report to be given to each other interested party and to be published in the Canada Gazette.

Marginal note:Tabling of report in certain cases

(14) Where, pursuant to subsection (11), the Governor in Council refers a matter to the Tribunal, the Minister shall cause a copy of the report on the inquiry to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is submitted to the Governor in Council.

Marginal note:Expiry date

30.26 Sections 30.2 to 30.25 cease to have effect on December 11, 2013.

Marginal note:1997, c. 14, s. 31

5. Paragraph 39(1)(c) of the Act is replaced by the following:

(c) specifying any additional information that must accompany a complaint filed under any of subsections 23(1) to (1.1), 30.01(2), 30.011(1), 30.012(2), 30.11(1), 30.22(1) and 30.23(1) or an extension request filed under subsection 30.04(1) or 30.25(3); and

Marginal note:1994, c. 47, s. 42(1)

6. (1) Subparagraph 40(a.1)(ii) of the Act is replaced by the following:

(ii) conducting inquiries and reporting on matters referred to the Tribunal pursuant to section 18, 19 or 30.21, or

(2) Section 40 of the Act is amended by adding the following after paragraph (k):

(k.1) providing, for the purposes of sections 30.2 to 30.25, factors for determining whether

(i) goods originating in the People’s Republic of China are being imported in such increased quantities or under such conditions as to cause or threaten to cause market disruption to domestic producers of like or directly competitive goods, or

(ii) an action causes or threatens to cause a significant diversion of trade into the domestic market in Canada;

1997, c. 36 CUSTOMS TARIFF

7. The Customs Tariff is amended by adding the following after section 77:

Safeguard Measures in Respect of China

Marginal note:Definitions

77.1 (1) The following definitions apply in this section and in sections 77.2 to 77.8.

“market disruption”

« désorganisation du marché »

“market disruption” means a rapid increase in the importation of goods that are like or directly competitive with goods produced by a domestic industry, in absolute terms or relative to the production of those goods by a domestic industry, so as to be a significant cause of material injury, or threat of material injury, to the domestic industry.

“significant cause”

« cause importante »

“significant cause” means, in respect of a material injury or threat thereof, an important cause that need not be as important as, or more important than, any other cause of the material injury or threat.

Marginal note:Surtax — market disruption

(2) Subject to section 77.2, if at any time it appears to the satisfaction of the Governor in Council, on the basis of a report of the Minister or of an inquiry made by the Canadian International Trade Tribunal under section 30.21 or 30.22 of the Canadian International Trade Tribunal Act, that goods originating in the People’s Republic of China are being imported in such increased quantities or under such conditions as to cause or threaten to cause market disruption to domestic producers of like or directly competitive goods, the Governor in Council may, on the recommendation of the Minister, by order, make any such goods, when imported into Canada or a region or part of Canada specified in the order during the period that the order is in effect, subject to a surtax

(a) at a rate specified in the order; or

(b) at a rate specified in the order that varies from time to time as the quantity of those goods imported into Canada or that region or part of Canada during a period specified in the order equals or exceeds quantities specified in the order.

Marginal note:Maximum rate

(3) The rate specified under subsection (2) may not exceed the rate that in the opinion of the Governor in Council is sufficient to prevent or remedy market disruption to domestic producers of like or directly competitive goods.

Marginal note:Minister’s report

(4) A report of the Minister referred to in subsection (2) may be made only if there are, in the opinion of the Minister, critical circumstances.

Marginal note:Inquiry

(5) If an order is made under subsection (2) on the basis of a report of the Minister, the Governor in Council shall immediately refer the matter to the Canadian International Trade Tribunal for an inquiry under subsection 30.21(1) of the Canadian International Trade Tribunal Act.

Marginal note:Period and repeal

77.2 (1) An order made under subsection 77.1(2)

(a) subject to section 77.3, has effect for a period specified in the order; and

(b) may be amended or repealed at any time by the Governor in Council on the recommendation of the Minister unless, before that time, a resolution directing that the order cease to have effect has been adopted by both Houses of Parliament under section 77.4.

Marginal note:Cessation

(2) If an order is made under subsection 77.1(2) on the basis of a report of the Minister, the order ceases to have effect at the end of the two hundredth day after the day on which the order is made unless, before the order so ceases to have effect, the Canadian International Trade Tribunal reports to the Governor in Council, on the basis of an inquiry made under section 30.21 or 30.22 of the Canadian International Trade Tribunal Act, that the goods described in the report of the Minister are being imported in such increased quantities or under such conditions as to cause or threaten to cause market disruption to domestic producers of like or directly competitive goods.

Marginal note:Extension order

77.3 (1) If, at any time before the expiry of an order with respect to any goods made under this subsection or subsection 77.1(2) or under subsection 5.4(2) or (4) of the Export and Import Permits Act, it appears to the satisfaction of the Governor in Council, as a result of an inquiry made by the Canadian International Trade Tribunal under subsection 30.25(7) of the Canadian International Trade Tribunal Act, that an order continues to be necessary to prevent or remedy market disruption to domestic producers of like or directly competitive goods, the Governor in Council may, on the recommendation of the Minister, make an extension order imposing a surtax on any goods specified in the previous order.

Marginal note:Scope and rate

(2) If an extension order is made under subsection (1),

(a) the extension order applies to goods imported into Canada, or any region or part of Canada, specified in the order during the period that the order is in effect; and

(b) the rate of the surtax imposed by the extension order must, subject to subsection (3),

(i) be at a rate specified in the extension order, or

(ii) be at a rate specified in the extension order that varies from time to time as the quantity of those goods imported into Canada or that region or part of Canada during a period specified in the order equals or exceeds totals specified in the order.

Marginal note:Maximum rate

(3) The rate specified in the extension order may not exceed the rate that in the opinion of the Governor in Council is sufficient to prevent or remedy market disruption to domestic producers of like or directly competitive goods.

Marginal note:Period and repeal of extension orders

(4) Every extension order made under subsection (1)

(a) remains in effect, subject to this section, for the period that is specified in the order; and

(b) may, notwithstanding any other provision of this section, be amended or repealed at any time by the Governor in Council on the recommendation of the Minister unless, before that time, a resolution directing that the order cease to have effect has been adopted by both Houses of Parliament under section 77.4.

Marginal note:Resolution of Parliament of cessation

77.4 Notwithstanding sections 77.1 to 77.3 and 77.5 to 77.8, if a resolution directing that an order made under subsection 77.1(2), 77.3(1) or 77.6(2) cease to have effect is adopted by both Houses of Parliament, the order ceases to have effect on the day that the resolution is adopted or, if the adopted resolution specifies a day on which the order ceases to have effect, on that specified day.

Marginal note:Notice in Canada Gazette

77.5 If an order made under

(a) subsection 77.1(2) remains in effect by reason of subsection 77.2(2), or

(b) subsection 77.1(2), 77.3(1) or 77.6(2) ceases to have effect by reason of a resolution of both Houses of Parliament,

the Minister shall cause a notice to that effect to be published in the Canada Gazette.

Marginal note:Definitions

77.6 (1) The following definitions apply in this section.

“action”

« mesure »

“action” means

(a) any action, including a provisional action, taken

(i) by the People’s Republic of China to prevent or remedy market disruption in a WTO Member other than Canada, or

(ii) by a WTO Member other than Canada to withdraw concessions under the World Trade Organization Agreement or otherwise to limit imports to prevent or remedy market disruption in that Member caused or threatened by the importation of goods originating in the People’s Republic of China; or

(b) any combination of actions referred to in paragraph (a).

“WTO Member”

« membre de l’OMC »

“WTO Member” means a Member of the World Trade Organization established by Article I of the Agreement Establishing the World Trade Organization, signed at Marrakesh on April 15, 1994.

Marginal note:Surtax — trade diversion

(2) If at any time it appears to the satisfaction of the Governor in Council, on the basis of an inquiry made by the Canadian International Trade Tribunal under section 30.21 or 30.23 of the Canadian International Trade Tribunal Act, that an action causes or threatens to cause a significant diversion of trade into the domestic market in Canada, the Governor in Council may, on the recommendation of the Minister, by order, make any goods originating in the People’s Republic of China, when imported into Canada or a region or part of Canada specified in the order during the period that the order is in effect, subject to a surtax

(a) at a rate specified in the order; or

(b) at a rate specified in the order that varies from time to time as the quantity of those goods imported into Canada or that region or part of Canada during a period specified in the order equals or exceeds quantities specified in the order.

Marginal note:Maximum rate

(3) The rate specified under subsection (2) may not exceed the rate that in the opinion of the Governor in Council is sufficient to prevent or remedy diversion of trade into the domestic market in Canada.

Marginal note:Amendment or repeal

(4) An order made under subsection (2) may be amended or repealed at any time by the Governor in Council on the recommendation of the Minister unless, before that time, a resolution directing that the order cease to have effect has been adopted by both Houses of Parliament under section 77.4.

Marginal note:Regulations

77.7 The Governor in Council may make regulations for carrying out the purposes of sections 77.1 to 77.6 and may, by order, suspend a surtax or rate in whole or in part from application to any goods or any class of goods.

Marginal note:Decision of Governor in Council final

77.8 The decision of the Governor in Council is final on any question that may arise regarding the application of the surtax or rate imposed under sections 77.1 to 77.6.

Marginal note:Expiry date

77.9 Sections 77.1 to 77.8 cease to have effect on December 11, 2013.

8. The definition “customs duties” in section 80 of the Act is replaced by the following:

“customs duties”

« droits de douane »

“customs duties”, other than for the purposes of sections 95 and 96, means customs duties imposed under Part 2, other than surtaxes imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78 or temporary duties imposed under any of sections 69 to 76.

9. Subsection 94(1) of the Act is replaced by the following:

Definition of “customs duties”

94. (1) In sections 95 and 96, “customs duties” means customs duties imposed under Part 2, other than additional customs duties levied under section 21, surtaxes imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78 or temporary duties imposed under any of sections 69 to 76.

10. Subparagraph 99(a)(iii) of the Act is replaced by the following:

(iii) the circumstances in which, and the classes of goods in respect of which, relief of duties levied under section 21 or under the Special Import Measures Act, a surtax imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty imposed under any of sections 69 to 76, a tax levied under the Excise Tax Act or a duty imposed under the Excise Act may not be granted,

11. Paragraph 113(4)(a) of the Act is replaced by the following:

(a) the circumstances in which, and the classes of goods in respect of which, a refund or drawback of duties levied under section 21 or under the Special Import Measures Act, a surtax levied under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty levied under any of sections 69 to 76, a tax levied under the Excise Tax Act or a duty levied under the Excise Act may not be granted under subsection (1);

R.S., c. E-19 EXPORT AND IMPORT PERMITS ACT

Marginal note:1994, c. 47, s. 102

12. Subsection 4.2(2) of the Export and Import Permits Act is replaced by the following:

Marginal note:Application of definition in regulations

(2) Any regulations made under paragraph 40(b) of the Canadian International Trade Tribunal Act defining “like or directly competitive goods” apply for the purposes of sections 5 and 5.4.

13. The Act is amended by adding the following after section 5.3:

Marginal note:Definitions

5.4 (1) The following definitions apply in this section.

“action”

« mesure »

“action” means

(a) any action, including a provisional action, taken

(i) by the People’s Republic of China to prevent or remedy market disruption in a WTO Member other than Canada, or

(ii) by a WTO Member other than Canada to withdraw concessions under the World Trade Organization Agreement or otherwise to limit imports to prevent or remedy market disruption in that Member caused or threatened by the importation of goods originating in the People’s Republic of China; or

(b) any combination of actions referred to in paragraph (a).

“market disruption”

« désorganisation du marché »

“market disruption” means a rapid increase in the importation of goods that are like or directly competitive with goods produced by a domestic industry, in absolute terms or relative to the production of those goods by a domestic industry, so as to be a significant cause of material injury, or threat of material injury, to the domestic industry.

“significant cause”

« cause importante »

“significant cause” means, in respect of a material injury or threat thereof, an important cause that need not be as important as, or more important than, any other cause of the material injury or threat.

“WTO Member”

« membre de l’OMC »

“WTO Member” means a Member of the World Trade Organization established by Article I of the Agreement Establishing the World Trade Organization, signed at Marrakesh on April 15, 1994.

Marginal note:Addition to Import Control List — market disruption

(2) If at any time it appears to the satisfaction of the Governor in Council, on a report of the Minister made pursuant to an inquiry made by the Canadian International Trade Tribunal under section 30.21 or 30.22 of the Canadian International Trade Tribunal Act, that goods originating in the People’s Republic of China are being imported or are likely to be imported into Canada in such increased quantities or under such conditions that they cause or threaten to cause market disruption to domestic producers of like or directly competitive goods, those goods may, by order of the Governor in Council, be included on the Import Control List, for the purpose of limiting the importation of such goods to the extent and for the period that in the opinion of the Governor in Council is necessary to prevent or remedy the market disruption.

Marginal note:Addition to Import Control List — trade diversion

(3) If at any time it appears to the satisfaction of the Governor in Council, on a report of the Minister made pursuant to an inquiry made by the Canadian International Trade Tribunal under section 30.21 or 30.23 of the Canadian International Trade Tribunal Act, that an action causes or threatens to cause a significant diversion of trade into the domestic market in Canada, any goods originating in the People’s Republic of China may, by order of the Governor in Council, be included on the Import Control List, for the purpose of limiting the importation of such goods to the extent that is necessary to prevent or remedy the trade diversion.

Marginal note:Extension order

(4) The Governor in Council may, on the recommendation of the Minister, make an extension order including on the Import Control List any goods with respect to which an order has been made under this subsection or subsection (2) or under section 77.1 or 77.3 of the Customs Tariff if, at any time before the order expires, it appears to the satisfaction of the Governor in Council, as a result of an inquiry made by the Canadian International Trade Tribunal under subsection 30.25(7) of the Canadian International Trade Tribunal Act, that an order continues to be necessary to prevent or remedy market disruption to domestic producers of like or directly competitive goods.

Marginal note:Repeal or amendment of inclusion order

(5) If at any time it appears to the satisfaction of the Governor in Council that an order including any goods on the Import Control List under subsection (2), (3) or (4) should be repealed or amended, the Governor in Council may, on the recommendation of the Minister, by order, repeal or amend the order.

Marginal note:Addition to Import Control List

(6) If at any time it appears to the satisfaction of the Governor in Council, on a report of the Minister made as described in subsection (2), that goods originating in the People’s Republic of China are being imported or are likely to be imported into Canada at such prices, in such quantities or under such conditions as to make it advisable to collect information with respect to the importation of those goods in order to ascertain whether the importation is causing or threatening to cause market disruption to domestic producers of like or directly competitive goods, those goods may, by order of the Governor in Council, be included on the Import Control List in order to facilitate the collection of that information.

Marginal note:Addition to Import Control List

(7) If at any time it appears to the satisfaction of the Governor in Council, on a report of the Minister made as described in subsection (3), that an action causes or threatens to cause a significant diversion of trade into the domestic market in Canada so as to make it advisable to collect information with respect to goods originating in the People’s Republic of China in order to ascertain whether the action causes or threatens to cause a significant diversion of trade into the domestic market in Canada, those goods may, by order of the Governor in Council, be included on the Import Control List in order to facilitate the collection of that information.

Marginal note:Addition to Import Control List

(8) If, for the purpose of facilitating the implementation of an order made under section 77.1, 77.3 or 77.6 of the Customs Tariff, the Governor in Council considers it necessary to control the importation of goods originating in the People’s Republic of China or collect information with respect to their importation, the Governor in Council may, by order, include those goods on the Import Control List for that purpose.

Marginal note:Goods deemed to be removed from List

(9) If goods are included on the Import Control List by order of the Governor in Council under subsection (8), the goods shall be deemed to be removed from that List on the earlier of

(a) the day, if any, specified in that order, and

(b) the day on which the order made under section 77.1, 77.3 or 77.6 of the Customs Tariff ceases to have effect or is repealed pursuant to section 77.2, 77.3 or 77.4 of that Act, as the case may be.

Marginal note:Expiry date

(10) Subsections (1) to (9) cease to have effect on December 11, 2013.

Marginal note:1997, c. 14, s. 75

14. Subsection 8(2) of the Act is replaced by the following:

Marginal note:Import permits

(2) Notwithstanding subsection (1) and any regulation made under section 12 that is not compatible with the purpose of this subsection, if goods are included on the Import Control List solely for the purpose of collecting information pursuant to subsection 5(4.3), (5) or (6) or 5.4(6), (7) or (8), the Minister shall issue to any resident of Canada applying therefor a permit to import those goods, subject only to compliance with and the application of any regulations made under section 12 that it is reasonably necessary to comply with or apply in order to achieve that purpose.

Marginal note:1997, c. 14, s. 78(1)

15. (1) The portion of subsection 10(2) of the Act before paragraph (a) is replaced by the following:

Marginal note:Alteration of permits, etc.

(2) If a permit has been issued under this Act to any person for the exportation or importation of goods that have been included on the Export Control List or the Import Control List solely for the purpose described in subsection 5(4.3), (5) or (6), 5.1(1), 5.2(1), (2) or (3) or 5.4(6), (7) or (8), and

Marginal note:1997, c. 14, s. 78(2)

(2) Paragraph 10(2)(c) of the Act is replaced by the following:

(c) the goods have, subsequent to the issuance of the permit, been included on the Export Control List or the Import Control List for a purpose other than that described in subsection 5(4.3), (5) or (6), 5.1(1), 5.2(1), (2) or (3) or 5.4(6), (7) or (8),

R.S., c. S-15 SPECIAL IMPORT MEASURES ACT

Marginal note:1999, c. 12, s. 7, c. 17, par. 183(1)(u)

16. The portion of subsection 20(1) of the Special Import Measures Act before paragraph (c) is replaced by the following:

Marginal note:Normal value where export monopoly

20. (1) Where goods sold to an importer in Canada are shipped directly to Canada

(a) from a prescribed country where, in the opinion of the Commissioner, domestic prices are substantially determined by the government of that country and there is sufficient reason to believe that they are not substantially the same as they would be if they were determined in a competitive market, or

(b) from any other country where, in the opinion of the Commissioner,

(i) the government of that country has a monopoly or substantial monopoly of its export trade, and

(ii) domestic prices are substantially determined by the government of that country and there is sufficient reason to believe that they are not substantially the same as they would be if they were determined in a competitive market,

the normal value of the goods is

TRANSITIONAL PROVISIONS

Marginal note:Definitions

17. The following definitions apply in this section and in section 18.

“commencement day”

« date de référence »

“commencement day” means the day on which this section comes into force.

“new Act”

« nouvelle loi »

“new Act” means the Special Import Measures Act as it read on the commencement day.

“new regulations”

« nouveaux règlements »

“new regulations” means the regulations made under the new Act.

“old Act”

« ancienne loi »

“old Act” means the Special Import Measures Act as it read on the day before the commencement day.

“old regulations”

« anciens règlements »

“old regulations” means the regulations made under the old Act.

“order or finding”

« ordonnance ou conclusions »

“order or finding” has the same meaning as in subsection 2(1) of the Special Import Measures Act.

Marginal note:Disposition of notified complaints

18. (1) Subject to this section, if, before the commencement day, notice of a complaint respecting the dumping or subsidizing of goods that is properly documented, within the meaning assigned to that expression by subsection 2(1) of the old Act, has been given under paragraph 32(1)(a) of the old Act, any proceeding, process or action in respect of the goods shall be continued and disposed of in accordance with the old Act and the old regulations.

Marginal note:Proceedings re goods subject to order after commencement date

(2) If the Canadian International Trade Tribunal makes an order or finding under subsection 43(1) of the Special Import Measures Act on or after the commencement day with respect to goods that are the subject of a complaint referred to in subsection (1), any subsequent proceeding, process or action in relation to any of those goods other than the following shall be disposed of in accordance with the new Act and the new regulations:

(a) a judicial review in relation to that order or finding and any proceeding, process or action in relation to the judicial review;

(b) a proceeding, process or action in relation to any of those goods that were released before the commencement day; or

(c) a proceeding, process or action in relation to any of those goods that were released on or after the commencement day but on or before the day on which the Canadian International Trade Tribunal made the order or finding.

Marginal note:Effect of order or finding

(3) For greater certainty, any order or finding that is in effect on the commencement day shall, for the purposes of sections 3 to 6 of the new Act, have the same force and effect as if it were made under the new Act.

Marginal note:Determination of normal value, etc., where undertaking

(4) Any determination, on or after the commencement day, of a normal value or margin of dumping in relation to any goods that are subject to an undertaking accepted before the commencement day shall be made in accordance with the new Act.

Marginal note:Determination of normal value, etc.

(5) A normal value or margin of dumping determined in relation to goods under the old Act shall, for the purposes of goods released on or after the commencement day, other than goods to which paragraph (2)(c) applies, be deemed to have been made under the new Act.

Marginal note:Re-determination of normal value, etc.

(6) A re-determination of a normal value or margin of dumping referred to in subsection (5) shall be made in accordance with the new Act.

COORDINATING AMENDMENTS

Marginal note:1997, c. 36

19. On the later of the coming into force of

(a) the definition “customs duties” in section 80 of the Customs Tariff, as enacted by section 8 of this Act, and

(b) the definition “customs duties” in section 80 of the Customs Tariff, as enacted by section 41 of the Canada-Costa Rica Free Trade Agreement Implementation Act,

the definition “customs duties” in section 80 of the Customs Tariff is replaced by the following:

“customs duties”

« droits de douane »

“customs duties”, other than for the purposes of sections 95 and 96, means customs duties imposed under Part 2, other than surtaxes imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78 or temporary duties imposed under any of sections 69 to 76.1.

Marginal note:Bill C-47

20. If Bill C-47, introduced in the 1st Session of the 37th Parliament and entitled the Excise Act, 2001, has not received royal assent on the later of the coming into force of section 42 of the Canada-Costa Rica Free Trade Agreement Implementation Act and section 9 of this Act, then at that time subsection 94(1) of the Customs Tariff is replaced by the following:

Definition of “customs duties”

94. (1) In sections 95 and 96, “customs duties” means customs duties imposed under Part 2, other than additional customs duties levied under section 21, surtaxes imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78 or temporary duties imposed under any of sections 69 to 76.1.

Marginal note:Bill C-47

21. (1) Subsections (2) to (4) apply if Bill C-47, introduced in the 1st Session of the 37th Parliament and entitled the Excise Act, 2001 (the “other Act”), receives royal assent.

(2) If, on the later of the coming into force of section 9 of this Act and section 42 of the Canada-Costa Rica Free Trade Agreement Implementation Act, section 351 of the other Act is not in force, then at that time

(a) subsection 94(1) of the Customs Tariff is replaced by the following:

Definition of “customs duties”

94. (1) In sections 95 and 96, “customs duties” means customs duties imposed under Part 2, other than additional customs duties levied under section 21, surtaxes imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78 or temporary duties imposed under any of sections 69 to 76.1.

(b) subsection 411(2) of the other Act is repealed.

(3) If, on the later of the coming into force of section 9 of this Act and section 351 of the other Act, section 42 of the Canada-Costa Rica Free Trade Agreement Implementation Act is not in force, then at that time

(a) subsection 94(1) of the Customs Tariff is replaced by the following:

Definition of “customs duties”

94. (1) In sections 95 and 96, “customs duties” means customs duties imposed under Part 2, other than

(a) additional customs duties levied under sections 21.1 to 21.3;

(b) surtaxes imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78; or

(c) temporary duties imposed under any of sections 69 to 76.

(b) subsection 411(2) of the other Act is repealed.

(4) On the latest of the coming into force of section 9 of this Act, section 351 of the other Act and section 42 of the Canada-Costa Rica Free Trade Agreement Implementation Act, subsection 94(1) of the Customs Tariff is replaced by the following:

Definition of “customs duties”

94. (1) In sections 95 and 96, “customs duties” means customs duties imposed under Part 2, other than

(a) additional customs duties levied under sections 21.1 to 21.3;

(b) surtaxes imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78; or

(c) temporary duties imposed under any of sections 69 to 76.1.

Marginal note:Bill C-47

22. If Bill C-47, introduced in the 1st Session of the 37th Parliament and entitled the Excise Act, 2001, has not received royal assent on the later of the coming into force of section 43 of the Canada-Costa Rica Free Trade Agreement Implementation Act and section 10 of this Act, then at that time subparagraph 99(a)(iii) of the Customs Tariff is replaced by the following:

(iii) the circumstances in which, and the classes of goods in respect of which, relief of duties levied under section 21 or under the Special Import Measures Act, a surtax imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty imposed under any of sections 69 to 76.1, a tax levied under the Excise Tax Act or a duty imposed under the Excise Act may not be granted,

Marginal note:Bill C-47

23. (1) Subsections (2) to (4) apply if Bill C-47, introduced in the 1st Session of the 37th Parliament and entitled the Excise Act, 2001 (the “other Act”), receives royal assent.

(2) If, on the later of the coming into force of section 10 of this Act and section 43 of the Canada-Costa Rica Free Trade Agreement Implementation Act, section 352 of the other Act is not in force, then at that time

(a) subparagraph 99(a)(iii) of the Customs Tariff is replaced by the following:

(iii) the circumstances in which, and the classes of goods in respect of which, relief of duties levied under section 21 or under the Special Import Measures Act, a surtax imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty imposed under any of sections 69 to 76.1, a tax levied under the Excise Tax Act or a duty imposed under the Excise Act may not be granted,

(b) subsection 411(3) of the other Act is repealed.

(3) If, on the later of the coming into force of section 10 of this Act and section 352 of the other Act, section 43 of the Canada-Costa Rica Free Trade Agreement Implementation Act is not in force, then at that time

(a) subparagraph 99(a)(iii) of the Customs Tariff is replaced by the following:

(iii) the circumstances in which, and the classes of goods in respect of which, relief of duties levied under sections 21.1 to 21.3 or under the Special Import Measures Act, a surtax imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty imposed under any of sections 69 to 76, a tax levied under the Excise Tax Act or a duty imposed under the Excise Act, 2001 may not be granted,

(b) subsection 411(3) of the other Act is repealed.

(4) On the latest of the coming into force of section 10 of this Act, section 352 of the other Act and section 43 of the Canada-Costa Rica Free Trade Agreement Implementation Act, subparagraph 99(a)(iii) of the Customs Tariff is replaced by the following:

(iii) the circumstances in which, and the classes of goods in respect of which, relief of duties levied under sections 21.1 to 21.3 or under the Special Import Measures Act, a surtax imposed under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty imposed under any of sections 69 to 76.1, a tax levied under the Excise Tax Act or a duty imposed under the Excise Act, 2001 may not be granted,

Marginal note:Bill C-47

24. If Bill C-47, introduced in the 1st Session of the 37th Parliament and entitled the Excise Act, 2001, has not received royal assent on the later of the coming into force of section 44 of the Canada-Costa Rica Free Trade Agreement Implementation Act and section 11 of this Act, then at that time paragraph 113(4)(a) of the Customs Tariff is replaced by the following:

(a) the circumstances in which, and the classes of goods in respect of which, a refund or drawback of duties levied under section 21 or under the Special Import Measures Act, a surtax levied under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty levied under any of sections 69 to 76.1, a tax levied under the Excise Tax Act or a duty levied under the Excise Act may not be granted under subsection (1);

Marginal note:Bill C-47

25. (1) Subsections (2) to (4) apply if Bill C-47, introduced in the 1st Session of the 37th Parliament and entitled the Excise Act, 2001 (the “other Act”), receives royal assent.

(2) If, on the later of the coming into force of section 11 of this Act and section 44 of the Canada-Costa Rica Free Trade Agreement Implementation Act, subsection 354(2) of the other Act is not in force, then at that time

(a) paragraph 113(4)(a) of the Customs Tariff is replaced by the following:

(a) the circumstances in which, and the classes of goods in respect of which, a refund or drawback of duties levied under section 21 or under the Special Import Measures Act, a surtax levied under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty levied under any of sections 69 to 76.1, a tax levied under the Excise Tax Act or a duty levied under the Excise Act may not be granted under subsection (1);

(b) subsection 411(4) of the other Act is repealed.

(3) If, on the later of the coming into force of section 11 of this Act and subsection 354(2) of the other Act, section 44 of the Canada-Costa Rica Free Trade Agreement Implementation Act is not in force, then at that time

(a) paragraph 113(4)(a) of the Customs Tariff is replaced by the following:

(a) the circumstances in which, and the classes of goods in respect of which, a refund or drawback of duties levied under sections 21.1 to 21.3 or under the Special Import Measures Act, a surtax levied under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty levied under any of sections 69 to 76, a tax levied under the Excise Tax Act or a duty levied under the Excise Act, 2001 may not be granted under subsection (1);

(b) subsection 411(4) of the other Act is repealed.

(4) On the latest of the coming into force of section 11 of this Act, subsection 354(2) of the other Act and section 44 of the Canada-Costa Rica Free Trade Agreement Implementation Act, paragraph 113(4)(a) of the Customs Tariff is replaced by the following:

(a) the circumstances in which, and the classes of goods in respect of which, a refund or drawback of duties levied under sections 21.1 to 21.3 or under the Special Import Measures Act, a surtax levied under section 53, 55, 60, 63, 68, 77.1, 77.3, 77.6 or 78, a temporary duty levied under any of sections 69 to 76.1, a tax levied under the Excise Tax Act or a duty levied under the Excise Act, 2001 may not be granted under subsection (1);

COMING INTO FORCE

Marginal note:Coming into force

26. The provisions of this Act, other than sections 19 to 25, or the provisions of any Act enacted or amended by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
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