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V. Reviews

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(I) The Present System

A positive injury finding by the Tribunal under section 43 of SIMA is subject to subsequent review by the Tribunal, either on its own initiative, or pursuant to a request for review. Following a review of a section 43 finding, the Tribunal has the power to make an order rescinding the finding or continuing it with or without amendment.

Consistent with the WTO, the Tribunal can conduct two types of review under section 76 of SIMA:

1. interim reviews (based on changed circumstances), which can occur anytime between a positive injury finding under section 43 of SIMA and the issuance of a "Notice of Expiration";

2. expiry (or sunset) reviews, which can occur upon a request filed in response to the Tribunal's Notice of Expiration.

Section 76 of SIMA does not expressly differentiate between interim and expiry reviews, nor does it provide any guidance as to the grounds for the initiation of interim and expiry reviews.

In conducting interim reviews, the Tribunal may consider whether a key circumstance has changed so fundamentally as to render the original finding no longer valid. With respect to expiry reviews, the Tribunal assesses the likelihood that injurious dumping or subsidy will continue if the finding is rescinded.

(II) Summary of Proposals and Recommendations

During this review of SIMA, the Sub-Committees became aware of a number of issues related to the implementation of reviews. In part, these issues have come into sharper focus in reference to the requirements of Article 11 ("Duration and Review of Anti-dumping Duties and Price Undertakings") of the WTO Anti-dumping Agreement. These issues include:

i. the need for SIMA to distinguish expressly between interim and expiry reviews, consistent with the WTO Anti-dumping Agreement;

ii. the provision of legislative and regulatory guidance for the initiation of interim and expiry reviews, and possibly the inclusion of an illustrative list of grounds for initiation;

iii. the provision of legislative and regulatory guidance respecting the determination of whether or not to continue a finding or order;

iv. the authorization to conduct reviews on a specific aspect of a finding or order;

v. the authorization to make a review determination retroactive when rescinding a finding or order;

vi. the consideration of cumulation in reviews. The Canadian Steel Producers Association has proposed that the CITT should have legislative instruction to apply cumulation consistently;

vii. the application of bifurcation in the administration of reviews, consistent with recommendations elsewhere in this report.

The Sub-Committees recommend that the Minister of Finance reform SIMA provisions for the conduct of interim and expiry reviews, in light of the comments made above, and in this context, to bifurcate the administrative responsibilities for the conduct of such reviews. (11)

The Sub-Committees further recommend that section 76 of SIMA be amended to require the CITT to assess the cumulative injurious effects of dumping/subsidizing in conducting interim and expiry reviews. (12)

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