Vol. 151, No. 14 — July 12, 2017

Registration

SOR/2017-143 June 20, 2017

CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT

Regulations Amending the Canadian International Trade Tribunal Regulations and the Canadian International Trade Tribunal Procurement Inquiry Regulations

P.C. 2017-835 June 20, 2017

His Excellency the Governor General in Council, on the recommendation of the Minister of Finance, pursuant to section 40 (see footnote a) of the Canadian International Trade Tribunal Act (see footnote b), makes the annexed Regulations Amending the Canadian International Trade Tribunal Regulations and the Canadian International Trade Tribunal Procurement Inquiry Regulations.

Regulations Amending the Canadian International Trade Tribunal Regulations and the Canadian International Trade Tribunal Procurement Inquiry Regulations

Canadian International Trade Tribunal Regulations

1 The long title of the Canadian International Trade Tribunal Regulations (see footnote 1) is replaced by the following:

Canadian International Trade Tribunal Regulations

2 Section 1 of the Regulations and the heading before it are repealed.

3 The portion of subsection 5(1) of the Regulations before paragraph (a) is replaced by the following:

5 (1) For the purposes of determining, during an inquiry into a matter referred to the Tribunal under paragraph 20(a) of the Act or an inquiry into a complaint referred to in any of paragraphs 27(1)(a) to (a.2) and (a.4) to (b) or subsection 30.28(1) of the Act, whether the goods that are the subject of the reference or complaint are being imported as set out in that provision, the Tribunal shall examine, among other factors,

Canadian International Trade Tribunal Procurement Inquiry Regulations

4 Section 2 of the Canadian International Trade Tribunal Procurement Inquiry Regulations (see footnote 2) is amended by adding the following in alphabetical order:

CUFTA means the Canada-Ukraine Free Trade Agreement, done at Kyiv on July 11, 2016. (ALÉCU)

5 (1) Subsection 3(1) of the Regulations is replaced by the following:

3 (1) For the purposes of the definition designated contract in section 30.1 of the Act, any contract or class of contract concerning a procurement of goods or services or any combination of goods or services, as described in Article 1001 of NAFTA, in Article II of the Agreement on Government Procurement, in Article Kbis-01 of Chapter Kbis of the CCFTA, in Article 1401 of Chapter Fourteen of the CPFTA, in Article 1401 of Chapter Fourteen of the CCOFTA, in Article 16.02 of Chapter Sixteen of the CPAFTA, in Article 17.2 of Chapter Seventeen of the CHFTA, in Article 14.3 of Chapter Fourteen of the CKFTA, in Article 19.2 of Chapter Nineteen of CETA, in Article 504 of Chapter Five of the CFTA or in Article 10.2 of Chapter Ten of CUFTA that has been or is proposed to be awarded by a government institution, is a designated contract.

(2) Subsection 3(1) of the Regulations is replaced by the following:

3 (1) For the purposes of the definition designated contract in section 30.1 of the Act, any contract or class of contract concerning a procurement of goods or services or any combination of goods or services, as described in Article 1001 of NAFTA, in Article II of the Agreement on Government Procurement, in Article Kbis-01 of Chapter Kbis of the CCFTA, in Article 1401 of Chapter Fourteen of the CPFTA, in Article 1401 of Chapter Fourteen of the CCOFTA, in Article 16.02 of Chapter Sixteen of the CPAFTA, in Article 17.2 of Chapter Seventeen of the CHFTA, in Article 14.3 of Chapter Fourteen of the CKFTA, in Article 504 of Chapter Five of the CFTA or in Article 10.2 of Chapter Ten of CUFTA that has been or is proposed to be awarded by a government institution, is a designated contract.

(3) Paragraphs 3(2)(a) and (b) of the Regulations are replaced by the following:

(4) Paragraphs 3(2)(a) and (b) of the Regulations are replaced by the following:

6 (1) Paragraph 5(a) of the Regulations is replaced by the following:

(2) Paragraph 5(a) of the Regulations is replaced by the following:

7 (1) Paragraph 6(3)(b) of the Regulations is replaced by the following:

(2) Paragraph 6(3)(b) of the Regulations is replaced by the following:

8 (1) Paragraph 7(1)(c) of the Regulations is replaced by the following:

(2) Paragraph 7(1)(c) of the Regulations is replaced by the following:

9 (1) Paragraph 10(a) of the Regulations is replaced by the following:

(2) Paragraph 10(a) of the Regulations is replaced by the following:

10 (1) Section 11 of the Regulations is replaced by the following:

11 If the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement was conducted in accordance with the requirements set out in whichever of NAFTA, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, CETA, the CFTA or CUFTA applies.

(2) Section 11 of the Regulations is replaced by the following:

11 If the Tribunal conducts an inquiry into a complaint, it shall determine whether the procurement was conducted in accordance with the requirements set out in whichever of NAFTA, the Agreement on Government Procurement, the CCFTA, the CPFTA, the CCOFTA, the CPAFTA, the CHFTA, the CKFTA, the CFTA or CUFTA applies.

Coming into Force

11 (1) Subject to subsections (2) and (3), these Regulations come into force on the day on which section 32 of the Canada–Ukraine Free Trade Agreement Implementation Act, chapter 8 of the Statutes of Canada, 2017, comes into force, but if these Regulations are registered after that day, these Regulations come into force on the day on which they are registered.

(2) If section 95 of the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act, chapter 6 of the Statutes of Canada, 2017, is in force on the day on which these Regulations come into force, then subsections 5(2) and (4), 6(2), 7(2), 8(2), 9(2) and 10(2) of these Regulations are deemed never to have come into force and are repealed.

(3) If section 95 of the Canada–European Union Comprehensive Economic and Trade Agreement Implementation Act is not in force on the day on which these Regulations come into force, then subsections 5(1) and (3), 6(1), 7(1), 8(1), 9(1) and 10(1) of these Regulations are deemed never to have come into force and are repealed.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Canada-Ukraine Free Trade Agreement (CUFTA or the Agreement) was signed on July 11, 2016. The Canada-Ukraine Free Trade Agreement Implementation Act (the Act) was introduced in the House of Commons on November 3, 2016, and received royal assent on June 1, 2017. In addition to the implementing legislation, a number of regulatory amendments are also necessary to fully implement the CUFTA in Canada.

Background

Bilateral safeguard provisions are a common feature of Canadian free trade agreements. Such provisions represent a temporary safety valve in the event that an import surge resulting from tariff entitlements under a free trade agreement is injurious to Canadian producers. Under the CUFTA, bilateral safeguard measures consist of either a suspension of the further reduction of a rate of duty for a concerned product, or an increase in the rate of the duty back to the non-preferential rate.

Bilateral safeguard measures may be imposed only after the Canadian International Trade Tribunal (CITT) has conducted an inquiry and has determined that increased imports are a principal cause of serious injury, or threat thereof, to domestic producers of like or directly competitive goods. The Canadian International Trade Tribunal Regulations set out factors the CITT must examine when conducting a bilateral safeguard inquiry.

The CITT is also responsible for inquiring into complaints made by potential suppliers of goods or services relating to federal government procurement that is covered by various trade agreements. Procurement inquiries are governed by the Canadian International Trade Tribunal Procurement Inquiry Regulations, which allow the CITT to consider and make findings with respect to complaints concerning federal government procurement that is subject to the terms of the relevant free trade agreements.

Objectives

The objective of these amendments is to fully implement Canada’s rights and obligations under the CUFTA in relation to bilateral safeguards and procurement, and to address a recommendation made by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR).

Description

The Canadian International Trade Tribunal Regulations are amended to incorporate consequential amendments made by the Canada-Ukraine Free Trade Agreement Implementation Act to the Canadian International Trade Tribunal Act, and which provide the legislative authority for the CITT to conduct bilateral safeguard inquiries with respect to imports from Ukraine.

In addition, a minor technical amendment is made to subsection 5(1) of the Canadian International Trade Tribunal Regulations in order to correct references to provisions in the Canadian International Trade Tribunal Act, as recommended by the SJCSR in December 2015.

The Canadian International Trade Tribunal Procurement Inquiry Regulations are amended to incorporate the CUFTA so that the CITT may conduct procurement inquiries in respect of federal procurement bid complaints by potential Ukrainian suppliers.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to these amendments, as there are no costs imposed on small business.

Consultation

In December 2008, the Government of Canada launched public consultations with provinces and territories, businesses, industry associations and the general public to determine whether Canadians would be supportive of launching free trade negotiations with Ukraine.

Stakeholders were regularly consulted throughout the negotiations, including on issues concerning bilateral safeguards and procurement. The parliamentary process was an additional opportunity for stakeholders and the general public to be informed of, and comment on, the CUFTA. Supporters include the Canadian Agri-Food Trade Alliance, Canadian Pork Council, Canadian Meat Council, Canada-Ukraine Chamber of Commerce, and the Ukrainian Canadian Congress.

Rationale

By passing Bill C-31, Parliament has approved the implementation of the CUFTA. In addition to legislative amendments contained in the Act, these regulatory amendments are necessary to fulfill Canada’s bilateral safeguard and procurement rights and obligations under the CUFTA so that Canada and Ukraine can proceed with the implementation of the Agreement.

These amendments are non-discretionary in nature, as they reflect the negotiated outcome of the CUFTA. They are also similar to amendments required to implement Canada’s other free trade agreements (e.g. the Canada-European Union Comprehensive Economic and Trade Agreement, the Canada-Honduras Free Trade Agreement and the Canada-Korea Free Trade Agreement).

The CUFTA is an important milestone in the Canada-Ukraine bilateral relationship. In addition to generating commercial benefits for Canadian businesses, the CUFTA will support the economic reform efforts of the Government of Ukraine.

Implementation, enforcement and service standards

The CITT will administer and interpret these regulations in the course of its responsibilities in respect of conducting bilateral safeguard and procurement inquiries.

Contact

Alan Ho
International Trade Policy Division
Department of Finance
Ottawa, Ontario
K1A 0G5
Telephone: 613-369-4022