G/ADP/IG/W/57  
 
31 October 2018  
(18-6838) Page: 1/6 
Committee on Anti -Dumping Practices  
Informal Group on Anti -Circumvention  
 Original: English  
 
PRESENT ATION BY CANADA AT T HE INFORMAL  
GROUP ON ANTI -CIRCUM VENTION  
The following communication is being circulated at the request of the Delegation of Canada .1 
 
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Introduction  
This presentation provides an overview of Canada’s anti-circumvention regime, which came into 
effect in April 2018.  Please note that Canada has not yet conducted an anti -circumvention 
investigation, so this overview concerns what is set out in our law and regulations.  
Context  
Until recently, there was no m echanism in Canada to expand the scope of goods on which duties 
could be applied in order to capture goods that circumvent anti -dumping and countervailing duties.  
Following  a public consultation process, the Government announced a number of changes to its trade 
remedy system in 2017, which came into force in April of 2018. These included new 
anti-circumvention proceedings to investigate  allegations that anti -dumping and countervailing 
duties were being circumvented and, where warranted, to extend the scope of the duties to cover 
goods where circumvention is found to be occurring.  
The intent was to create an anti -circumvention proceeding that was expeditious and minimized 
additional burden, while respecting due process and transparency requirements.  The Canad a Border 
Services Agency (CBSA) is responsible for conducting anti -circumvention investigations . The CBSA 
is Canada’s investigating authority responsible for dumping and subsidy investigations, as well as 
duty assessment.  
Framework  
Canada’s anti -circumvent ion framework is set out in the Special Import Measures Act  (Sections  71 – 75) 
and the Special Import Measures Regulations  (Sections 57.11 to 57.21).  
According to this legislation, the following four  elements must be present in order for circumvention 
to be found:  
1. There must have been a change in trade pattern, either since a trade remedy investigation 
 was initiated or a trade remedy measure was imposed.  
2. One of the activities prescribed through regulation must be found to be occurring.  These 
 activities are:  
                                                
1 This document is a description of Canada's anti -circumvention regime, which served as the basis for 
Canada's presentation at the meeting of the Informal Group held on 24 October 2018.  G/ADP/IG/W/57  
 
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  • The assembly or completion of like goods in Canada or in a third country using parts or 
components  from a subject country, and  
• The slight modification of like goods.  
3. Importation of goods for which a circumvention activity applies undermines the remedial 
effects of anti -dumping and countervailing duties in force.  
4. The principal cause of the change in trade pattern is the imposition of anti -dumping or 
countervailing duties.  
All of the above elements of circumvention must be present for a finding of circumvention to be 
made. The factors may be considered on a country  level or on an exporter -specific level depending 
on the nature of the investigation.  
Factors considered  
Several factors may be considered in assessing these four elements.  
1. Change in trade pattern:  The CBSA could examine a number of factors, mostly relate d to 
imports, which  are intended to establish changes happened after the initiation of a dumping 
or subsidy investigation or the imposition of measures. As a hypothetical example, this may 
include evidence that imports of a product ceased after the imposition of trade measures but, 
at the same time, parts used to make that  product increased significantly.  
2. Prescribed activities:  There are factors related to each of the two main types of prescribed 
activity.   
• For assembly or completion in Canada or a third country , the factors relate 
determining whether assembly activities a re significant and would occur under normal 
trade practices. This includes an assessment of:  
• the nature of the processes and the facilities;  
• the level of investment into the processes or facilities;  
• the level of research and development related to the proc esses;  
• the costs of the processes in Canada or a third country;  
• any other factor that is relevant in the circumstances.  
An example would be where there is a measure against waterproof boots.  We then find 
that the same boots are being imported with a hole in them, and the hole is being plugged 
in Canada to make them waterproof again. These activities are likely considered very 
insignificant and would not normally occur under trade practices.  
• For slight modification , the purpose of the prescribed factors is  to allow the CBSA to 
assess to what extent the “slightly modified” good is substantively different than subject 
goods. Key considerations for such an assessment includes factors such as physical 
characteristics, substitutability, end uses, consumer prefer ences, channels of distribution, 
and differences in production costs and processes to name a few.  
3. Whether circumvention is undermining the remedial effect of existing duties:  With 
respect to whether circumvention is undermining the remedial effect of existing duties, t he 
CBSA would look at factors such as:  
• the price and volume of subject goods sold in Canada;  
• whether the subject goods and like goods serve the same markets; and  
• whether the goods have the same end us es.  G/ADP/IG/W/57  
 
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  4. The CBSA is also required to determine whether the principal cause of the change in trade 
pattern has been the imposition of trade measures.  Factors relevant to this consideration 
include:  
• the timing of when the change in trade pattern occurred  
• consideration of other possible reasons for why a change in trade pattern has occurred 
– including changes in consumer preferences and changes in technology that may have 
led to the change in trade pattern that were not caused by the imposition of 
anti-dumping and countervailing duties.  
Investigation process  
The anti -circumvention process generally takes 225 days from the time the CBSA receives a 
complaint until the CBSA makes a decision regarding circumvention. The process includes the 
following elements (please see Annex A for a process flowchart, and Annex B for timeframes).  
Complaint:  Interested parties may submit a complaint alleging that circumvention of an 
anti-dumping or countervailing duty is occurring.  Requirements for the complaint are set out in  
regulations, and are similar to those found for dumping or subsidizing complaints (e.g., name of 
complainant and known producers in the exporting country) but rather than asking for information 
substantiating allegations of dumping or subsidizing, the com plainant is required to submit 
information substantiating an allegation of circumvention.  
Once a complaint is received, the CBSA has 45 days to determine if an anti -circumvention 
investigation should be initiated.  If the CBSA decides not to initiate an in vestigation, the process 
terminates.  
Initiation:  An investigation will be initiated if there is evidence of circumvention.  Canadian law allow 
investigations to be initiated in respect of individual exporters or on a countrywide basis. The scope 
of an inves tigation will be determined on a case -by-case basis based on the facts of the case 
(e.g.,  information contained in the complaint).  
It should be noted that the CBSA may also self -initiate an anti -circumvention investigation, if 
evidence and circumstances wa rrant.  
Notification of initiation:  If an investigation is initiated, t he CBSA will notify the importer, the 
exporter, the government of the exporting country, the domestic producers and the complainant, if 
any, of the initiation.   
The CBSA will also establ ish the timeframes for the different procedural steps in the investigation.  
From the time of initiation, the CBSA has 180 days (or 240 days in complex cases) to render a 
decision.  However, the timing of intermediate steps may vary and would be set out at the outset of 
each case.  As such, the timing set out below is indicative.  
Requests for information:  Upon initiation, the CBSA will send out requests for information, with 
responses due within 21 days for importers, and 37 days for exporters/ producers.  The CBSA will 
assess the reliability and accuracy of information submitted, through on -site verification or other 
means.  
Close of Administrative Record:  In each investigation, a date for the close of the administrative 
record will be established, after which no new information may be submitted by parties (about day 
110 of the investigation).  
Statement of Essential Facts:  The CBSA will issue a statement of essential facts about day 135.  
This is a non -confidential report prepared by the CBSA that includes a pre liminary assessment of 
whether the evidence discloses a reasonable indication of circumvention. It also includes a summary 
of the facts that the CBSA relied on in making that preliminary assessment.  
Submission of Case Arguments and Reply Submissions:  After publication of the statement of 
essential facts, parties may submit case arguments based on any relevant information available on G/ADP/IG/W/57  
 
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  the administrative record and respond to the CBSA’s preliminary assessment. Parties may also 
submit reply submissions to the CBSA in response to the case arguments submitted. Generally, the 
CBSA requires that any case arguments be received no later than one week after the publication of 
the statement of essential facts, and reply submissions be received no later than one week af ter 
case arguments are due.  It should be noted that confidential information submitted by interested 
parties will be disclosed to independent counsel for interested parties that have a disclosure 
undertaking.   
CBSA decision and CITT order:  Where the CBSA d etermines that the goods are circumventing an 
order or finding, the Canadian International Trade Tribunal (CITT) will issue an order amending the 
order or finding to legally extend duties to those goods. This last step is procedural in nature 
(i.e., CITT m ay not revise the CBSA’s decision).  
The CBSA may also make a partial finding of circumvention, that is, find that only some goods under 
investigation are circumventing the order or finding. For example, where the investigation was 
initiated in respect of the goods from a country, the CBSA could decide that the importation of the 
goods from exporter A constitutes circumvention but that the importation of the goods from 
exporter  B does not constitute circumvention.  
Duty assessment:  Once the order is amended,  anti-dumping and/or countervailing duties will be 
extended to the good found to be circumventing the order, retroactive to the date of initiation of the 
anti-circumvention investigation.  If the CBSA makes a decision that the order or finding is not being 
circumvented in respect of some or all of the goods, trade remedy duties will not be extended to 
those goods.  
Transparency:  The reasons for various CBSA decisions (e.g., initiation or decision) as well as 
statements of essential facts are published on the CBSA’s Website.   
In addition, the CBSA will notify the importer, the exporter, the government of the exporting country, 
the domestic producers and the complainant, if any, of various steps in the investigation, including:   
• the initiation of the investigation  
• a termination  
• an extension  
• the publication of the statement of essential facts  
• the final decision.  
Scope ruling:  There is another possible outcome of an anti -circumvention investigation.  During the 
investigation, evidence may be discovered th at the goods under investigation are, in fact, already 
subject to an order or finding. In considering whether the goods are subject to an order or finding, 
the CBSA will consider the prescribed factors for making a scope ruling (these are also set out in t he 
same regulations).  
If the goods are found to be subject to an order or finding, the CBSA will terminate the 
anti-circumvention investigation, prior to the publication of the statement of essential facts, and will 
issue its reasons for terminating the i nvestigation. This decision to terminate is deemed to be a 
scope ruling.  
Reviews and appeals  
Anti-circumvention findings are subject to judicial review by the Federal Court of Appeal.  
The law also allows for interim reviews to be conducted when the circums tances on which a 
circumvention decision was based have changed.  As a result, the CBSA may rescind the decision 
under review or confirm or modify it.  If required, the CITT will amend the order or finding.  
The law allows for exemption reviews as well, which  address situations where an exporter is subject 
to a country -wide measure, and would like to seek an exemption.  This would be considered if the 
exporter was not notified of the anti -circumvention investigation, and if that exporter is not related 
to an ex porter that was notified.  
 G/ADP/IG/W/57  
 
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  ANNEX A  
PROCESS AND TIMEFRAM ES 
 
  
G/ADP/IG/W/57  
 
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  ANNEX B  
INVESTIGATION SCHEDU LE 
Day 0  The CBSA initiates an anti -circumvention investigation, sends out RFIs and issues its 
Statement of Reasons  
Day 21  Importer's response to Request for Information due  
Day 37  Exporter/Producer responses to Request for Information due  
Day 110  Close of Administrative Record  
Day 135  Statement of Essential Facts Published  
Day 142  Comments on the SEF are due  
Day 149  Responses to Comments due  
Day 180  Conclusion of Anti -circumvention investigation, CBSA's decision, notification to the CITT where 
circumvention is found, and Statement of Reasons issued.  
 
 
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