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CBSA Preliminary Determination: Wind Towers

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On July 20, 2023, the Canada Border Services Agency (“CBSA”) released a notice that it made a preliminary determination of dumping and subsidy in respect of certain wind towers originating in, or exported from, the People’s Republic of China – resulting in the application of provisional duties on imports of those Subject Goods!

Further to CBSA’s determination, on July 21, 2023, the Canadian International Trade Tribunal (“CITT”) released a notice that it is initiating its final inquiry to determine whether the dumping and subsidizing of the Subject Goods has caused, or is threatening to cause, injury to the Canadian domestic industry.

Anyone wishing to participate in the CITT inquiry and hearing must file a Notice by August 4, 2023.

Background

The investigation into the alleged dumping and subsidizing of certain wind towers from China was first initiated by the CBSA on April 21, 2023, under the Special Import Measures Act, following a complaint by Marmen Inc. and Marmen Énergie Inc., from Trois-Rivières, Québec. For further information on this step, see our blog post here, which also defines the Subject Goods.

On July 5, 2023, the CITT made a preliminary determination that there was a “reasonable indication” of injury from dumping and subsidizing with respect to Subject Goods originating in, or exported from, China. We discussed this step in our blog post here.

Provisional Duties Apply Effective July 20, 2023!

The CBSA’s preliminary determination of dumping and subsidizing means that provisional duties will be imposed on imports of the Subject Goods originating in, or exported from, China, and released by the CBSA on or after July 20, 2023.

The CBSA has assigned specific provisional duty rates (both anti-dumping duties (“ADDs”) and countervailing duties (“CVDs”)) to the Subject Goods for each of the Chinese exporters who participated in its investigation (namely, CS Wind China Co., Ltd., Penglai Dajin Offshore Heavy Industry Co., Ltd., and Shanghai Taisheng Wind Power Equipment Co., Ltd.). For goods from all other Chinese exporters, provisional duties (combined ADD/CVDs) of 193.8% of the export price now apply.

Both the CBSA and the CITT are continuing their investigations. The next expected step is the CBSA’s release of a final determination regarding dumping and subsidizing within 90 days after the date of their preliminary determination. This final determination may adjust the ADDs and CVDs, although provisional duties will remain in force until after the CITT issues their Final Determination of Injury.

More significantly, eyes are now on the CITT to see whether its Final Determination confirms that the dumping and subsidizing of Subject Goods from China has caused, or is threatening to cause, injury to the domestic Canadian industry. The CITT will hold a public hearing on this issue – currently scheduled for October 16, 2023 – with a Final Determination expected to be released by December 1, 2023. As noted earlier, anyone wishing to participate in the CITT hearing must file a Notice by August 4, 2023.

What Does this Mean for Me?

If your business imports Subject Goods, or is considering importing Subject Goods, you should seek Canadian legal advice immediately as to the possible consequences of importing goods during this time when the CBSA and CITT investigations remain ongoing. Failure to consult with Canadian legal counsel on this issue could lead to a costly assessment by CBSA down the road!

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