Canada-U.S. Blog Trade Lawyers Cyndee Todgham Cherniak and Susan K. Ross

Category Archives: Customs Law

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The CBSA Issues Customs Notice 15-032 “Contingency Plan for System Outages”

Posted in Cross-border trade, Customs Law

On August 28, 2015, the Canada Border Services Agency (“CBSA”) posted Customs Notice 15-032 “Contingency Plan for System Outages”.  It is a short customs notice that primarily contains a link to the CBSA’s “System Outage Contingency Plan“. The System Outage Contingency Plan details requirements and procedures for Trade Chain Partners and all impacted parties during… Continue Reading

The CBSA Announces Seizure of Cocaine at Toronto Pearson Airport

Posted in Border Security, Customs Law

On August 28, 2015, the Canada Border Services Agency (“CBSA”) posted on the CBSA website a news release that on August 27th, CBSA officers at Toronto Pearson International Airport seized a suspected shipment of 23 kilograms of cocaine.  The news release provides the following details about the seizure: “On August 27, 2015, CBSA officers monitoring… Continue Reading

Dear Duck Dynasty, The Canada Border Services Agency Issues D-Memo on Decoy Calls

Posted in Customs Law, Legal Developments

On August 27, 2015, the Canada Border Services Agency (“CBSA”) issued D-Memorandum D10-14-65 “Tariff Classification of Decoy Calls“.  I did not realize that there was an issue relating specifically to decoy calls.  The issue was serious enough that the CBSA issued a specific administrative policy statement. The CBSA states that: “As heading 92.08 covers, among other… Continue Reading

Who Would Have Thought Tariff Classification of Pizza Kits Would Be So Complicated

Posted in Cross-border trade, Customs Law

On August 20, 2015, the Canada Border Services Agency (“CBSA”) issued D-Memorandum D-10-14-32 “Tariff Classification of Pizza Kits”.  The good news is that the D-Memorandum is only 2 pages in length.  The bad news is that the instructions to importers of pizza kits is as clear as mud. Paragraph 1 of D-Memorandum D-10-14-32 states as… Continue Reading

Do Currency Fluctuations Impact Importers?

Posted in Antidumping, Cross-border deals, Cross-border trade, Customs Law, GST/HST

The answer is “YES”, the current currency fluctuations in the Canadian dollar have an impact on importers.  Generally speaking, many importers in Canada purchase goods from foreign sources in United States dollars (foreign vendors do not desire Canadian dollars).  The current weakening of the Canadian dollar (on August 24, 2015, the Bank of Canada closing… Continue Reading

Wildfires Burning Near British Columbia/Washington State Border – Please Stay Safe

Posted in Border Security, Cross-border trade, Customs Law

There are many wildfires burning near the British Columbia/Washington State border. Please check for road closures before heading for the border. U.S. Customs has published a notice Wildfires on U.S./Canadian Border in Washington State.  The Canada Border Services Agency does not appear to have posted anything as of yet. Please stay safe and exercise caution… Continue Reading

Canada Requires a “Through Bill of Lading” to Claim GPT Tariff Treatment

Posted in Customs Law, GPT, Legal Developments, Uncategorized

The Canadian International Trade Tribunal (the “Tribunal”) recently held in ContainerWest Manufacturing Ltd v. President of the Canada Border Services Agency, AP-2014-025 (July 27, 2015) that “a through bill of lading is required for entitlement to the GPT.”  This decision may surprise many importers, customs lawyers and customs brokers. GPT means General Preferential Tariff.  Often… Continue Reading

People With Graves Disease Should Be Careful At the Border

Posted in Border Security, Customs Law, Personal Comments

I have Graves Disease. One of the not-so-fun symptoms is Graves’ Ophthalmopathy.  Some of the symptoms of Graves’ Ophthalmopathy are (a) inflamation/swelling of the eyes, (b) dryness/redness of the eyes and (c) eyelids do not retract quickly.  So, the customs officers see big red irritated eyes and think the worst (drugs).  Based on my personal… Continue Reading

What Should A Lawyer Do To Claim Solicitor-Client Privilege at the Canadian Border?

Posted in Border Security, Cross-border deals, Cross-border litigation, Customs Law

At the present time, the Canada Border Services Agency (“CBSA”) does not have a published or informal policy concerning what a lawyer should do to claim solicitor-client privilege during an examination of documents in a lawyer’s briefcase or electronic documents on a lawyer’s computer or PDA. Based on the Alain Philippon case, currently before the… Continue Reading

GSP Refunds Clarified

Posted in Corporate Counsel, Cross-border deals, Customs Law

While the oft-rumored Federal Register notice has yet to be seen, Customs and Border Protection (CBP) did publish information about obtaining refunds under the now reinstated Generalized System of Preferences (GSP). Information about the legislation which authorized the renewal was published in our Alert dated July 14, 2015. See MS&K Alert re GSP Renewal for… Continue Reading

The Times Are Changing, But Very Slowly

Posted in Aerospace & Defence, Border Security, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Government Procurement, Trade Agreeements, Trade Remedies

First, we learned relations with Cuba were thawing, and now – on July 14th – there is the nuclear deal with Iran. Many American companies are clambering to make commercial deals with businesses in both countries – but not so fast! In fact, little has changed in terms of U.S. relations with either country, at… Continue Reading

Trade Preference Programs Get New Life

Posted in Cross-border deals, Cross-border trade, Customs Law, Trade Agreeements

Originally published by the Journal of Comerce in July 2015 In the last few months, there has been extensive press coverage about the President’s trade agenda and the ultimate Congressional grant of Trade Promotion Authority. As noted in that coverage, the Trans-Pacific Partnership (TPP) (the Trans-Pacific trade deal being negotiated with Australia, Brunei Darussalam, Canada,… Continue Reading

Be Careful What You Wish For!

Posted in Border Security, Customs Law

Originally published by the Journal of Commerce in June 2015 This oft-stated warning is certainly true for those who engage in international trade. For many years, industry has complained to government about different agencies wanting different information at different times in the release process; some would take the data electronically, while others insisted on hard… Continue Reading

Customs Is Again Getting Overly Creative

Posted in Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Legal Developments, NAFTA, Trade Remedies

In late October 2014, Customs and Border Protection (CBP) issued a guidance message in which it laid down new rules regarding post-importation/post-entry claims for duty preference and duty reduction programs – see CSMS re PEA/1520(d) Claims for the exact text. Specifically, CBP decided unless the program under which the duty free claim is being made… Continue Reading

California Transparency in Supply Chain Act Update

Posted in Border Security, Corporate Counsel, Cross-border deals, Customs Law, Legal Developments, Politics

On April 13, 2015, California Attorney General Kamala Harris issued “A Resource Guide” for companies subject to California’s Transparency in the Supply Chain Act (the “Act”). This resource guide was published in conjunction with the first efforts by the State of California to enforce the Act which took effect in 2010. The recent enforcement effort… Continue Reading

Cuba Regulations Change – Round 1

Posted in Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Trade Agreeements

In the January 16, 2015 Federal Register, both the Office of Foreign Assets Control (OFAC) and the Bureau of Industry and Security (BIS) published the first revisions to the U.S.’ Cuba economic sanctions. As expected, those changes consisted mostly of expanding existing exceptions or granting general licenses in already well-defined areas. With this round of… Continue Reading

Customs Is Again Getting Overly Creative

Posted in Cross-border trade, Customs Law, Legal Developments, NAFTA, Trade Agreeements

In late October 2014, Customs and Border Protection (CBP) issued a guidance message in which it laid down new rules regarding post-importation/post-entry claims for duty preference  and duty reduction programs – see http://www.cbp.gov/sites/default/files/documents/CSMS%20message_Post%20entry%20preference%20claims.pdf for the exact text. Specifically, CBP decided unless the program under which the duty free claim is being made specifically contains a post-entry… Continue Reading

Court of Appeals for Federal Circuit (CAFC) Issues Decision In U.S. v. Trek Leather – Corporate Officer Held Liable

Posted in Aerospace & Defence, Anti-Trust/Competition Law, Border Security, Constitutional Law, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Government Procurement, Legal Developments, NAFTA, Trade Agreeements, Transportation

Yesterday, the CAFC issued its en banc decision in the U.S. v. Trek Leather case.  The Court held the President of the company liable for gross negligence due to his own actions, even if he is an agent of the company. By way of background, the case originated as a penalty action by Customs and… Continue Reading

Corporate Officers Becoming Liable for Negligent Acts Is Reconsidered

Posted in Aerospace & Defence, Anti-Trust/Competition Law, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Government Procurement

In July 2013, the decision of the Court of Appeals for the Federal Circuit (CAFC) was announced in United States v. Trek Leather, Inc. and Harish Shadadpuri, Case No. 2011-1527 (July 30, 2013). Harish Shadadpuri (Shadadpuri) was the President and sole shareholder of Trek Leather, Inc. (Trek). The question before the appellate court was whether,… Continue Reading

Auto Exporters – 1; Government ????

Posted in Border Security, Corporate Counsel, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Transportation

Originally published in the Journal of Commerce in April 2014. Ever since the government’s attempts to side with the car makers against the car exporters started, a lot of people have been scratching their heads – why did the government even get involved in what is at best a civil dispute between the dealers and… Continue Reading

Cybersecurity

Posted in Aerospace & Defence, Agriculture, Border Security, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border litigation, Cross-border trade, Customs Law, Energy, Environment, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Intellectual Property, NAFTA, Transportation

Originally published in the Journal of Commerce in May 2014. The word cybersecurity causes shudders in the hearts of anyone in the etailing business, and one need to look no further than Target, Michaels, eBay and Neiman Marcus for the latest examples of significant consumer data theft. Unfortunately, cybersecurity and the thought of data being… Continue Reading

Tips For Conducting An Internal Investigation

Posted in Aerospace & Defence, Agriculture, Anti-Trust/Competition Law, Border Security, Buy America, Constitutional Law, Controlled Goods Program, Corporate Counsel, Criminal Law, Cross-border deals, Cross-border litigation, Cross-Border Real Estate, Cross-border trade, Customs Law, Energy, Environment, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Government Procurement, Intellectual Property, Labour, Legal Developments, NAFTA, Transportation

Perhaps your computer system was hacked. Maybe you opened a container to find goods in it that did not belong to you (thank goodness they were not dangerous) or perhaps no goods but evidence people lived in the container while it was en route to the U.S., or you found sizable payments made to questionable… Continue Reading

Cybersecurity

Posted in Aerospace & Defence, Border Security, Buy America, Corporate Counsel, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Government Procurement, Legal Developments

President Obama issued Executive Order 13636 on February 12, 2014 setting out potentially far reaching cybersecurity standards. To learn what these new standards could mean for your company, the impact it will have on how companies are measured in the face of a hacking event and just what you are in for in the future, see http://www.msk.com/news/pub.cfm?id=2159&type=Alert.

Can I Sue the Canada Border Services Agency If They Make A Mistake?

Posted in Customs Law

I get asked this question very often.  The answer is “yes” with a BUT.  Pursuant to subsection 106(1) of the Customs Act (Canada), an action or proceeding may be brought against an officer or person assisting an officer.  Subsection 106(1) of the Customs Act (Canada) provides that “no action or judicial proceeding shall be commenced… Continue Reading