Information relating to scope proceedings

Introduction

Scope proceedings are formal processes whereby an interested person can obtain a scope ruling from the CBSA. A scope ruling will specify whether the product in question falls within the product description of the applicable order, finding or undertaking, including whether the goods in question originate in a country named in the order, finding or undertaking.

A scope ruling is a ruling issued under subsection 66(1) of Special Import Measures Act (SIMA) as to whether certain goods are subject to an order or finding of the Canadian International Trade Tribunal (CITT), an undertaking in respect of which an investigation has been suspended under paragraph 50(a)(iii) or an order of the Governor in Council imposing a countervailing duty made under section 7 (subsequently referred to as an “anti-dumping or countervailing measure”). A scope ruling indicates whether the goods are subject to the anti-dumping or countervailing measure; it does not result in a modification of the measure.

When considering submitting an application for a scope proceeding, it is important to understand the purpose of a scope proceeding and to be aware of the other options available to help establish if goods are subject to SIMA duties. A Scope proceeding is a formal process under SIMA, normally requiring 150 days and up to 255 days from the receipt of application to be completed, and may not always be the best option. As a first step, it is recommended that one consult the Measures in force section of the SIMA website to determine if goods are subject to a SIMA finding. Additional information can be found on the webpage SIMA Appeals relating to Subjectivity where certain appeal decisions relating to subjectivity are summarized. It is important to note that scope proceedings are intended to only clarify whether goods are subject to a finding and are not intended to exclude goods from the finding. Requests for product exclusions from the finding are the responsibility of the Canadian International Trade Tribunal.

The following outlines the CBSA’s policies and procedures with respect to the conduct of scope proceedings under sections 63 to 69 of SIMA. These policies and procedures do not supplant the provisions of SIMA.

Scope Proceeding Process

Scope proceedings may be initiated as a result of the receipt of an application from an interested person (e.g., importers, exporters, domestic producers) or self-initiated by the CBSA. Refer to the chart for a visual presentation of the process.

Written Application

A written application must contain certain information, such as a description of the goods, in order to be considered complete. For information on interested persons, the required information and the submission of an application, please consult How to Apply for a Scope Ruling.

An application for a scope proceeding may request clarification on one or both of two particular subjectivity issues: whether the product in question falls within the product description of an anti-dumping or countervailing measure or whether the goods in question originate in the country named in an anti-dumping or countervailing measure.

Rejection or Initiation

After receipt of the application, the CBSA has 30 days (or 45 days, if extended) to review it and determine if the application should be rejected. If the application is rejected, the CBSA will notify the applicant and provide the reasons for its decision.

The CBSA may reject an application for the following reasons:

• the application is incomplete;
• there is already a scope ruling that applies to the goods in question;
• the goods have not been produced as of the day on which the application is received;
• the issue is the subject of a proceeding before the President, the CITT, the Federal Court of Appeal (FCA), the Supreme Court of Canada (SCC) or a binational panel;
• there is a decision setting out a finding of circumvention that resulted in an amended CITT order that applies to the goods;
• a decision by the CITT, the FCA, the SCC, or a binational panel, applies; and
• in the opinion of the President, the application is frivolous, vexatious or made in bad faith.

If the application is not rejected, a scope proceeding will be initiated. The CBSA may send requests for information (RFIs) to obtain the necessary information for its proceeding. The information requested in the RFI will be limited to the specific question of scope and will be customized to the particulars of each case. A set of general instructions will accompany the request for information to assist the parties in preparing the required information. The instructions include explanations of the information to be provided for specific situations as well as the rules regarding the treatment, use and disclosure of confidential information.

The CBSA is required to terminate the scope proceeding or make a scope ruling within 120 days of initiation (or 210 days, if extended).

Scope Proceeding Schedule

A sample scope proceeding schedule is illustrated below. The timeline to conduct the proceeding may be shortened if the CBSA considers it appropriate or extended in certain circumstances (e.g. complex or novel issues). The scheduling of events will be published on the CBSA’s website at the time the scope proceeding is initiated and will be updated as required.

Day 0	Initiation – RFIs sent out
Day 21	Importer’s response to request for information due
Day 28	Exporter/Producer responses to request for information due
Day 55	Closing of the administrative record
Day 80	Statement of Essential Facts published
Day 87	Case arguments due from interested persons
Day 94	Reply submissions due from interested persons
Day 120	Conclusion of scope proceeding, ruling issued and Statement of Reasons published

Notifications

The CBSA will notify the applicant, if any, the government of the country of export, the exporter, the importer and the domestic producers, of the initiation of the proceeding. The CBSA will also notify the applicant, if any, the government of the country of export, and any other parties who have requested notification, of a termination, an extension and the ruling.

Close of Administrative Record

In each scope proceeding, a date for the close of the administrative record will be established, after which no further information may be submitted by parties. This permits participants to prepare their case arguments and reply submissions based on the information that is on the record as of the date of the closing of the record. For further guidance on obtaining information related to a scope proceeding, please refer to the Guidelines on the Disclosure of Confidential Information.

Accordingly, it is important that participants submit all of the information they believe supports their position prior to the closing of the record in order that the CBSA may take this information into consideration. Parties will be notified of the date of the close of the administrative record through the scope proceeding schedule.

Termination

At any time prior to the issuance of the statement of essential facts, the CBSA may terminate the scope proceeding for the following reasons:

• the CBSA is unable to obtain or assess the accuracy of the evidence;
• the CBSA is of the opinion there are no grounds for making the scope ruling; or
• one or more of the conditions for rejecting an application for a scope ruling have come into effect subsequent to the initiation of the scope proceeding.

Statement of Essential Facts

The statement of essential facts (SEF) is a non-confidential report prepared by the CBSA. The SEF will include the CBSA’s preliminary assessment of whether the goods are subject to the anti-dumping or countervailing measure. It will also include 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 SEF, parties may choose to submit case arguments based on any relevant information available on the administrative record and respond to the CBSA’s preliminary assessment detailed in the SEF.

Parties may also submit reply submissions to the CBSA in response to the case arguments submitted. The date for receipt of both case arguments and reply submissions will be specified in the scope proceeding schedule. Generally, the CBSA will require that any case arguments be received no later than one week after the publication of the SEF and reply submissions be received no later than one week after case arguments are due. After the deadline for the receipt of reply submissions has passed, the CBSA will not consider any further submissions from parties.

Conclusion – Scope Ruling

As noted above, the CBSA will either terminate the scope proceeding or make a scope ruling within 120 days of initiation (or to 210 days, if extended).

A scope ruling takes effect on the day it was made unless otherwise stipulated and will include any terms and conditions that are considered appropriate. For example, a mill certificate may have to be included with the import documentation for a good considered to be not subject to a CITT finding. In this example, failure to provide the required certificate could result in the imposition of SIMA duties.

In making a scope ruling the CBSA may consider the following factors, as applicable:

• the detailed description of the goods in the order or finding;
• the detailed description of the goods in the preliminary determination of dumping or subsidizing and in the undertaking;
• the CITT’s reasons for the order or finding;
• the CBSA’s reasons for the preliminary determination of dumping or subsidizing;
• any relevant decision by the CITT, the FCA, the SCC, or a binational panel;
• the physical characteristics of the goods, technical specifications, product composition, product uses, product packaging and literature, and channels of distribution;
• the production activities undertaken in the subject country and the third country;
• the nature of the goods when they were exported from the subject country and the third country;
• the costs of production incurred in the third country; and
• any other relevant factors that may be applicable to the specifics of the case.

A scope ruling is binding on the CBSA for subsequent decisions made with respect to the goods to which the ruling applies that are released on or after the effective date of the ruling. For information on re-determinations see the Guide for Appealing a Duty Assessment.

Appeal to the CITT

Pursuant to subsection 61(1.1) a scope ruling may be appealed to the CITT by any interested person, which for these purposes is defined in subsection 52.3 of the Special Import Measures Regulations (SIMR). The notice of appeal must be filed in writing with the CBSA and the CITT within 90 days of the date the scope ruling was made. A decision made by the CITT may be further appealed to the FCA.

Review of Scope Ruling

The CBSA will review scope rulings to give effect to a decision of the CITT, FCA, or SCC and may also review scope rulings in the following circumstances:

• an order or finding is issued by the CITT with respect to goods of the same description as goods to which the ruling applies except that those goods originate in, or are exported from, a country that is different from a subject country in the ruling;
• the CITT, FCA, or binational panel makes a decision that relates to the subject matter addressed in the scope ruling;
• the CBSA makes a decision setting out a finding of circumvention that impacts the scope ruling;
• the ruling was based on erroneous information; and
• there has been a material change in circumstances since the ruling was made.

The review of a scope ruling will result in a confirmation, amendment or revocation of the scope ruling. However, the process by which the decision is made will vary depending on the circumstances under which the review is initiated.