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Preliminary Determination on Wind Towers

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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 Act into 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.

The Subject Goods are defined as follows:

  1. Certain steel utility wind towers and sections thereof originating in or exported from the People's Republic of China.
    1. with or without flanges, doors, or internal or external components (e.g., flooring/decking/platforms, ladders, lifts, brackets, electrical busbars, electrical cabling, conduit, cable harness for nacelle generator, interior lighting, tool and storage lockers) attached or adjoined to the wind tower or section, and

    2. whether or not they are joined with non-subject merchandise, such as nacelles or rotor blades, and whether or not they have internal or external components attached to the subject merchandise,

    3. but excluding,
      1. nacelles and rotors (e.g. blades and hubs), regardless of whether they are attached to the wind tower or sections,
      2. Subject to paragraph 1.C.i., flanges, doors and internal or external components which are not attached to the wind towers or sections thereof, unless those components are shipped with the wind towers or sections and are intended to be attached to the wind tower or sections as part of its final assembly or construction,

  2. For certainty and clarity,Items described at paragraph 1.A. and attached to the towers or sections thereof are part of the tower or tower sections and within scope unless specifically excluded under paragraph 1.C.,
    1. The wind towers and sections described at paragraph 1 are designed to, or capable of, supporting the nacelle and rotor blades for a wind turbine with both:
      1. a minimum rated electrical power generation capacity in excess of 100 kilowatts ("kW"), and
      2. with a minimum height of 50 meters measured from the base of the tower to the bottom of the nacelle (i.e., where the top of the tower and nacelle are joined) when fully assembled,

B. Items described at paragraph 1.A. and attached to the towers or sections thereof are part of the tower or tower sections and within scope unless specifically excluded under paragraph 1.C.,

C. The goods described at paragraph 1.A. are a non-exhaustive list. The absence of a good from the list does not mean the good is excluded.

D. The goods described at paragraph 1.A include a kit of fabricated steel components that are designed and intended to be assembled or constructed into a wind tower or section thereof.

What Does this Mean for Me?

Now that the CITT has made its preliminary decision, all eyes are on the CBSA, waiting to see what provisional anti-dumping duties they may impose.

Due to the short statutory deadlines, affected parties – importers, exporters, manufacturers, and Canadian users – should contact experienced Canadian legal counsel in order to determine how to respond, including how to get involved in investigation process.

Do you require assistance in this area?  If so, please click here.

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