On June 28, 2016, the Canada Border Services Agency (“CBSA”) quietly issued revised D-Memorandum D4-1-3 “Re-determinations and Appeals Under the Special Import Measures Act”. The preamble to the D-Memorandum indicates that it was revised to reflect changes in contact information and the process to request a re-determination by the President.
Some of the important information in the D-Memorandum includes:
- What can be re-determined?
A request for re-determination may cover:
(a) the normal value;
(b) the export price;
(c) the amount of subsidy;
(d) the amount of the export subsidy; or
(e) whether the goods are of the same description as those described in the order or finding of the Tribunal or in the order of the Governor in Council.
- Who can file a request for re-determination?
A request may be filed by the importer or the importer’s agent. In the case of goods of a NAFTA country, the government of that NAFTA country or the producer, manufacturer or exporter of the goods, if they are of that NAFTA country, may file a request. These requests will be reviewed whether or not the importer has paid the duties owing on the goods.
- Does an importer have to pay the assessed antidumping duties, GST, penalties and interest prior to the acceptance of the request for re-determination?
Yes. An importer, agent, NAFTA country, manufacturer or exporter from a NAFTA country may submit a request to the CBSA only if all duties owing on the goods have been paid. The CBSA will reject requests when importers have not paid the duties for the goods at issue.
- What is the time limit for filing a re-determination?
A request for re-determination must be filed within 90 days of the CBSA officer’s or the designated officer’s decision. If the 90th day after the date of the decision falls on a Saturday, Sunday or holiday, the final day for making a request for re-determination will be the next business day. The date of receipt of a request for re-determination, or the date of the registered postmark when delivered registered mail, is considered to be the date that the request is made.
- How to file a request for re-determination?
The CBSA states in the D-Memorandum that “[a] separate request on form B2, Canada Customs – Adjustment Request, must be made for every transaction with respect to the goods that are the subject of the request for re-determination, except in the case of blanket requests.” A blanket request is a procedure through which an importer may request re-determinations on more than one transaction on a single form B2. This can be done under specific conditions, provided that both the public and the CBSA receive administrative benefits. Under the blanket request procedure, the same designated officer or President’s decision is issued with respect to each transaction included in the request. Written authorization must be obtained prior to submitting the form B2 covering multiple transactions.
- What should be included with a request for re-determination?
The CBSA wishes to receive as part of the request for re-determination the following information (as attachments under field No. 37 of the B2):
(a) a statement setting out the grounds on which the determination or re-determination is contested;
(b) a statement setting out the facts on which the request for re-determination is based;
(c) evidence in support of the facts referred to in subparagraph (b) above;
(d) a copy of the original (i.e., interim and final) accounting document package;
(e) a copy of the customs invoice or a commercial invoice (which meets the CBSA’s invoice requirements);
(f) a copy of the cargo control document;
(g) copies of any required certificate(s) and/or permit(s); and
(h) a copy of the form B3-3, Canada Customs Coding Form, if available.
The CBSA identifies other documents that may facilitate an expeditious resolution of the request, such as, the purchase order or sales contract, commercial invoice and letter of credit. The CBSA informs that evidence to be submitted should include samples of the imported product, product literature/specifications, certificates of specification, and purchase documents describing the goods in detail (for example, purchase order, commercial invoice, etc.). The CBSA also wants to receive the telephone number of someone at the company/requester to be able to discuss the request for re-determination.