On August 27, 2015, the Canada Border Services Agency (“CBSA”) re-issued D-Memorandum D-14-1-2 “Disclosure of Normal Values, Export Prices, and Amounts of Subsidy Established Under the Special Import Measures Act”. The new D-Memo, which supercedes the previous version, is different.

The D-Memo primarily applies to importers who must pay applicable antidumping and/or countervailing duties on goods subject to an antidumping and/or subsidy Order.  Often importers are not aware of the normal value calculated for the exporter from whom they purchased the subject goods.  I like to call normal values calculated by the CBSA a “secret price list”.

While the subsidy rate (usually a monetary value per unit of measure) is publicly available on the CBSA web-site in the final determination or the conclusion if a reinvestigation, the normal values and export prices are not publicly available.  The CBSA takes the position that normal values and export prices are confidential because they are established based on confidential information provided by exporters and importers. This means that importers can buy goods and face an unexpected assessment of antidumping duties by the CBSA if the amount paid to the seller is less than the normal value.

Canada is different from the United States and other countries.  Canada collects antidumping and/or countervailing duties prior to the release of the goods and on a shipment-by-shipment basis.  The United States tallies up the antidumping and countervailing duties payable after the importation has occurred and in respect of number of shipments.

New D-Memo 14-1-2 states, in part, as follows:

Guidelines and General Information
1. Specific normal values and export prices are generally considered to be confidential and are not publicized or available to the general public. The amount of subsidy calculated for specific exporters who have cooperated in a dumping and/or subsidy investigation will normally be provided in the CBSA’s public decision documents, which are available on the CBSA Web site.

2. Importers should contact their respective exporters to obtain specific normal values, export prices and, if applicable, the amount of subsidy. However, this information may be released by the CBSA for purposes of:

(a) Releasing goods or accounting for goods released
CBSA officers may release normal values, export prices and amounts of subsidy to importers on a need-to-know basis, i.e. to obtain release of a shipment of goods or account for goods previously released.
(b) Determining potential liability for provisional duty, anti-dumping duty and countervailing duty on goods in-transit
CBSA officers may provide normal values, export prices and amounts of subsidy to an importer relative to goods, which the importer has purchased and which are in transit.
(c) Determining potential liability for provisional duty, anti-dumping duty and countervailing duty on a possible importation
CBSA officers may inform a potential importer whether or not quoted prices will incur provisional duty, anti-dumping duty or countervailing duty. Under no circumstances will a potential importer be given confidential normal values, export prices or the amounts of subsidy if no proof of price offer by the exporter is provided. The importer will only be informed whether or not the prices quoted will incur provisional, anti-dumping or countervailing duty.
3. Requests for normal values, export prices or amounts of subsidy and potential duty liabilities are to be made in writing and accompanied by a proof of purchase, proof that the goods are in-transit, or proof of the price offered by the exporter.

4. For certain goods, such as capital goods, the amount of anti-dumping duty or countervailing duty payable cannot be conclusively established prior to the entry of the goods. In such instances, the CBSA may require access to information relating to actual production costs, as well as other information relevant to determine the normal value, the export price, or the amount of subsidy not normally available or verifiable in advance of importation. Under certain circumstances, the CBSA may provide the exporter and importer with an estimate of the assessment, based on information provided in advance of actual production and shipment. The provision of such an estimate is not to be construed as limiting the CBSA in determining the actual assessment on the goods as provided for in the Special Import Measures Act. Please contact the Enforcement officer assigned to the case, as listed on the Measures in force Web page, for more information.

Previous D-Memo D-14-1-2 stated as follows:
Continue Reading The CBSA Has Revised D-Memo 14-1-2 Relating to Disclosure of SIMA Duties