Canada Border Services Agency (“CBSA”) resets its “audit priority areas” twice per year – designating certain tariff classification codes as priority areas for customs verifications.
Priorities are based on CBSA’s work in certain industries or on CBSA’s view of “significant risk” importations from a tariff classification, valuation, and origin compliance perspective.
With the January 2024 audit priorities around the corner, it is a good time to review the outcomes from the July 2023 update.
When one feels mistreated at the border by Canada Border Services Agency (“CBSA”) officers, can one really do anything about it? The answer is “yes”, because the CBSA can be held indirectly liable for negligence as well as Charter breaches (through its officers).
As a recent case demonstrates, the road to judgement will usually be long and difficult and perhaps reserved for only the most egregious of cases, or where the matter is one of principle. Extreme facts will generally be required to make out a negligence claim against government departments like the CBSA, and inappropriately short limitations periods exist for bringing these suits.
On August 31, 2023, the Canadian International Trade Tribunal (“CITT”) issued a revised notice of an Expiry Review in respect on the dumping and subsidizing of copper pipe fittings from the Socialist Republic of Vietnam (“Vietnam”).
The CITT defined the Subject Goods in its May 25, 2018 Finding:
The CITT recently announced an Expiry Review of its Order on Seamless Carbon or Alloy Steel Oil & Gas Well Casing from China.
What is an Expiry Review
Expiry reviews are conducted jointly by the Canada Border Services Agency (“CBSA”) and the Canadian International Trade Tribunal (“CITT”) to review prior Anti-Dumping Duty (“ADD”) or Countervailing Duty (“CVD”) orders made by the CITT (“Orders”) underthe Special Import Measures Act (“SIMA”). They generally occur every five years following the original Order or subsequent renewal.
On July 5, 2023, the Canadian International Trade Tribunal (“CITT”) issed a preliminary determination of injury in respect of certain wind towers from China. The wind towers investigative process now moves back to CBSA, which will make a preliminary determination of its own by August 5, 2023 regarding dumping or subsidy – which can then result in the imposition of provisional duties!
On April 21, 2023, the Canada Border Services Agency (“CBSA”) released a notice that it was initiating investigations under the Special Import Measures Actinto the alleged dumping and subsidizing of certain wind towers from China. The investigation was initiated following a complaint by Marmen Inc. and Marmen Énergie Inc., from Trois-Rivières, Québec.
When you are a boutique Canadian law firm practising in a niche area like Indirect Tax, Customs and International Trade, AND you get multiple inquiries from multiple clients with the same problem, you KNOW something is up!
We have been getting a lot of recent inquiries about machinery being seized or held up at the Canadian border on the basis that it is “tobacco manufacturing equipment”.
On June 2, 2023, Canada Border Services Agency (“CBSA”) released a notice that it was starting a scope proceeding in respect of carbon steel fasteners originating in or exported from China or Taiwan. The proceeding was initiated by a potential importer, and will confirm whether CAMO Edge Screws are subject to the existing Canadian International Trade Tribunal (“CITT”) anti-dumping Order. The final decision and Statement of Reasons should be available by September 29, 2023.
The proposed changes may have major implications for how most goods are imported to Canada are valued and change how the terms “sold for export to Canada” and “purchaser in Canada” are defined – two bedrock definitions under the “Transaction Value” method.
These changes will likely have significant financial consequences for many importers, and for non-resident importers (“NRIs”) specifically!
The Consultation Period on these draft regulations closes June 26, 2023.
We frequently act for Clients whose goods or vehicles have been seized by Canada Border Services Agency (“CBSA”). More often that one would think, these seizures involve goods or conveyances (e.g., tractor-trailers, utility vehicles, transport trailers) that are owned by a person other than the importer (e.g., lease goods, borrowed goods, goods subject to a PPSA security).
Where this happens, the true owner is a third party to the seizure but must often take specific steps to protect its legal interest in the seized property. If nothing is done, the owner can often find the goods subject to forfeit and sold or disposed of by CBSA!
One of the most difficult aspects of dealing with anti-dumping measures can be figuring out whether goods are caught by an active measure or not. Because appeals in this area are pay-to-play, getting these issues right up front is extremely important!
Luckily, the Special Import Measures Act(“SIMA”) provides a formal process – called a “scope proceeding” – which will determine whether a good is caught by an Order (as well as Findings or Undertakings)!
While the technical aspects of a scope proceeding are complicated, based on historical jurisprudence in this area, many Clients prefer the certainty of a scope proceeding than simply importing on speculation – especially where the potential costs of CBSA taking a different view are measured in one, two and three times of goods sold!
On April 21, 2023, the Canada Border Services Agency (“CBSA”) released a notice that it was initiating investigations under the Special Import Measures Actinto the alleged dumping and subsidizing of certain wind towers from China. The investigation was initiated following a complaint by Marmen Inc. and Marmen Énergie Inc., from Trois-Rivières, Québec.
According to the posted Investigation Schedule, responses to Importer and Exporter questionnaires are due May 12, 2023 and May 29, 2023 respectively! These dates are unlikely to change or be extended. The CITT also recently announced its parallel process, with notices of participation due May 4, 2022!
On March 31, 2023, the Canada Border Services Agency (“CBSA”) released a notice confirming that its re-investigation in respect of grinding media originating in or exported from India had concluded, updating normal values and export prices.
One (1) producer/exporter fully co-operated with CBSA (AIA Engineering Ltd., or “AIA”, and associated subsidiaries), and was assigned normal values as part of the re-investigation. All other exporters of subject goods from India will be subject to 38.7% anti-dumping duties (“ADD”) and counter-vailing duties (“CVD”) of 24,831 Indian rupee per metric tonne.
If you disagree with a decision made by the Canada Border Services Agency (CBSA) regarding imported goods, you may have the right to administratively appeal the decision under section 60 of the Customs Act. Recently, key CBSA administrative materials which govern this procedure were updated with the aim to “streamline” this process. The result contains both good and bad news for parties hoping to resolve disputes before escalating to further tribunals or courts.
As we discussed in our prior blog, the Canada Border Services Agency (“CBSA”) has been conducting a re-investigation in respect of oil country tubular goods (“OCTG”) and certain seamless casing originating in or exported from China.
On March 17, 2023, CBSA released a notice confirming that the re-investigation concluded, updating normal values and export prices. That means normal values previously in place expired on March 17!
On February 21, 2023, the Canada Border Services Agency (“CBSA”) concluded its normal value review of refined sugar exported from the US by United Food Group Inc. (“United”).
Unlike re-investigations, where the CBSA reviews and redetermines normal values for all exporters in the industry, in a normal value review the CBSA only reviews the normal values of the named party – in this case United.
This particular normal value review was triggered by an importer appeal. However, while United responded to the CBSA’s RFI, the producer of the goods did not, and accordingly the CBSA concluded the review.
On February 13, 2023, the Canadian International Trade Tribunal (“CITT”) issued a notice that it was beginning an expiry review in respect of certain liquid dielectric transformers (large power transformers) originating in or exported from the Republic of Korea (South Korea). Anyone wanting to participate in the expiry review must file a Notice of Participation with the CITT by February 28, 2023!
Both domestic producers and exporters should consider participating in the expiry review, as current anti-dumping duties (“ADDs”) for goods without a normal value are 101%!
On February 2, 2023, the Canadian International Trade Tribunal (“CITT”) released an Order continuing the CITT’s original 2017 finding that the dumping of steel concrete reinforcing bar (“rebar”) originating in or exported from Belarus, Taiwan, Hong Kong, Japan, Portugal, and Spain (the “Listed Countries”) has caused injury to Canadian domestic injury.
The Order effectively means that the current anti-dumping duties (“ADDs”) of up to 108.5% will remain in place for Subject Goods originating in or exported from the Listed Countries.
Imported goods are identified using Canada’s tariff classification system. Tariff classification is important for two reasons: (1) the duty rate depends on the tariff classification; and (2) tariff classification determines eligibility for preferential duty rates under Canada’s various preferential trade agreements (generally speaking, “Free Trade Agreements” or “FTAs” for short).
Importers can sometimes find themselves in the unfortunate position of facing an enormous increase in duties, or disqualification from preferential FTAs, due to a tariff classification dispute with the Canada Border Services Agency (“CBSA”). As seen in the decision in Canada v. Best Buy Canada Ltd., 2021 FCA 161, classification is not always obvious!
On January 16, 2022, the Canadian Border Services Agency (“CBSA”) issued a notice that it will be conducting a re-investigation in respect of corrosion-resistant steel sheet (“COR (II)”) imported from Turkey and Vietnam (the “Listed Countries”). CBSA has issued a Request for Information (“RFI”) to both exporters and importers, and responses are due February 22, 2023!
Normal values established during the re-investigation will be effective as of the end date of the re-investigation, and all normal values currently in place will expire on that date.
On January 16, 2023, the Canadian International Trade Tribunal (“CITT”) issued a notice that it was beginning an expiry review in respect of certain carbon pipe fittings originating in or exported from the Socialist Republic of Vietnam (“Vietnam”). Anyone wanting to participate in the expiry review must file a Notice of Participation with the CITT by January 31, 2023!
Both domestic producers and exporters should consider participating in the expiry review, as current anti-dumping duties (“ADDs”) for goods without a normal value are 159%, and countervailing duties (“CVDs”) are 76,360.47 VND per unit!
