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

Category Archives: Customs Law

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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

Prescribed Form for Reporting Exports of Controlled Goods From Canada

Posted in Canada's Federal Government, Customs Law, Export Controls & Economic Sanctions

On January 17, 2014, the Canada Border Services Agency posted Form BSF728 “”Electronic Export Reporting of Controlled Goods Process“. This form is required pursuant to section 95 of the Customs Act (Canada),  which requires “all goods that are exported shall be reported at such time and place and in such manner as may be prescribed.” … Continue Reading

What is a Detailed Adjustment Statement?

Posted in Customs Law, Trade Remedies

A detailed adjustment statement (also called a DAS) is the term used by the Canada Border Services Agency (CBSA) for an assessment or reassessment of duties (customs, excise, anti-dumping, countervailing) or penalties.  A DAS may be issued with respect to the original assessment/reassessment by the CBSA or after a request for redetermination.  The same for… Continue Reading

Play in Again Sam – CBSA Updates Royalties and License Fees Memoranum

Posted in Cross-border trade, Customs Law

On January 14, 2014, the Canada Border Services Agency (CBSA) issued a revised version of D-Memo D-13-4-9 “Royalties and License Fees”.  The revisions do not involve extensive changes to the CBSA’s existing policies.  The revised version of the D-Memo includes only minor amendments of a housekeeping nature. This presents an opportunity for importers of goods… Continue Reading

What Kind Of Wake Up Call Would You Like?

Posted in Aerospace & Defence, Border Security, Controlled Goods Program, Corporate Counsel, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption

Do you know if your customs compliance program is effective?  Do you know if your export controls and economic sanctions internal controls are working properly? Do you have any internal controls to detect payments of bribes to foreign public officials or the recording of such improper payments in your books and records? If the answer… Continue Reading

What is an Ascertained Forefeiture?

Posted in Customs Law

Normally, if an importer fails to declare goods or undervalues the goods, the Canada Border Services Agency (CBSA) may seize goods as forefeit and/or ascertain an amount as a penalty to get the goods back.  An ascertained forfeiture occurs when the goods cannot actually be seized (because the good cannot be located or seizing the… Continue Reading

The ABCs of Canadian Border/Customs Laws

Posted in Border Security, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, GST/HST, Harmonization, NEXUS, Tax, Trade Agreeements

As 2014 begins, we want importers in to Canada to succeed in their cross-border trade activities.  Here is an alphabetical guide to some the relevant Canadian customs/border issues. A =  Ascertained Forfeitures – The Canada Border Services Agency (CBSA) will issue an assessment based on best information available if they do not have the item. … Continue Reading

The CBSA Is Looking Out For Canadians Returning From Cruises Who May Have Shipped Undeclared Goods

Posted in Criminal Law, Customs Law, NEXUS

Canadians taking Caribbean cruises should know that the CBSA has seen it all before.  It is not uncommon for a Canadian or resident of Canada to be wrongly informed at a duty-free store on board the cruise ship or by a salesperson at a shop in a Caribbean port that they can save the Canadian… Continue Reading

A Wake-Up Call: USCBP Destroy Canadian Flute Virtuoso’s Flutes In Error

Posted in Agriculture, Border Security, Customs Law

On January 1, 2014, the Boston Globe reported in an article entitled “Virtuoso’s flutes destroyed by US Customs” that U.S. Customs and Border Protection (USCBP) opened Boujemaa Razgui’s luggage and destroyed his flutes. Mr. Razgui is a Canadian citizen and is a flute virtuoso who performs regularly with The Boston Camerata. At New York’s JFK… Continue Reading

Top 10 Canadian Customs/Border Issues Predictions for 2014

Posted in Border Security, Canada's Federal Government, Cross-border trade, Customs Law, Trade Agreeements, World Trade Organization

It is January 1, 2014 and time for Cyndee’s top 10 predictions for 2014. There will be a number of border issues for Canadians and persons doing business with Canadians. 1. The Canada Border Services Agency (CBSA) will confiscate and cancel an increasing number of NEXUS passes.  In 2013, we saw many NEXUS pass holders… Continue Reading

Make A List And Check It Twice To Reduce Risk Of NEXUS Confiscation

Posted in Customs Law, NEXUS, Uncategorized

Cross-border long week-end travel by Canadian residents sometimes results in disagreements with the Canada Border Services Agency (CBSA) at the Canada-US border and/or at airports. The best tip that I can offer is to make a list of (1) all purchases of goods outside Canada AND (2) all goods received as gifts AND (3) all… Continue Reading

He Said What?

Posted in Border Security, Corporate Counsel, Customs Law, Intellectual Property, Politics

An issue that frustrates trademark and copyright holders in all industries is counterfeit goods. It is commonly understood that many of the imported counterfeit goods coming to the U.S. originate in China. In fact, the seizure statistics released by CBP and ICE bear that out. According to those numbers, for the 2011 fiscal year, there… Continue Reading

U.S. Government Demands on Bangladesh Factories

Posted in Cross-border trade, Customs Law, Politics

Here is a link to the July 19th statement by the U.S. Dept. of Labor, USTR and State Dept. about conditions expected of factories in Bangladesh – http://www.dol.gov/opa/media/press/ilab/ILAB20131494.htm. Full implementation is necessary for Generalized System of Preferences benefits to be reinstated by the U.S. The major topics contained in the release are: Government Inspections for… Continue Reading

Importing and Exporting Copyrighted Grey Market Goods

Posted in Border Security, Cross-border litigation, Customs Law, Export Controls & Economic Sanctions, Intellectual Property, Trade Remedies

There continues to be a lot of press about the impact of Kirtsaeng v John Wiley & Sons, 133 S. Ct. 1351 (2013),  in which the U.S. Supreme Court recognized the validity of grey market goods being imported into the U.S. The thrust of the decision was recognition of a first sale doctrine, meaning once… Continue Reading

Fifth Amendment Right Not Absolute

Posted in Aerospace & Defence, Agriculture, Constitutional Law, Corporate Counsel, Criminal Law, Cross-border litigation, Customs Law, Export Controls & Economic Sanctions, FCPA/Anti-Corruption, Immigration law, Intellectual Property, Law Schools, Law Students, Legal Developments, State Courts, U.S. Federal Government, U.S. Supreme Court

Silence can be used against an individual based on the U.S. Supreme Court’s holding in Salinas vs. Texas. As such, companies would do well to expand the training they provide to staff to all employees. The failure of individuals to fully understand their legal rights can lead to terrible consequences for those individuals and their… Continue Reading

CBP Message, Primarily About Exports

Posted in Border Security, Cross-border trade, Customs Law, Export Controls & Economic Sanctions, Transportation

At the AAEI Annual Conference going on in D.C. right now, CBP has made several statements about its direction which are hopeful, if not somewhat eye-opening. First, trade in the last fiscal year increased yet again. Exports totaled $1.3 trillion and imports $2.3 trillion. It was also refreshing to hear CBP acknowledge that an efficient… Continue Reading

Conflict Minerals Update

Posted in Aerospace & Defence, Buy America, Corporate Counsel, Cross-border deals, Cross-border trade, Customs Law, Energy, Government Procurement, Trade Agreeements

With the first disclosures due on May 31, 2014, the Securities and Exchange Commission (SEC) has still not given industry a sense of when any guidance will be published. As such, publicly traded companies are still left to figure out how best to comply.  The immediate impact, of course, is on those companies required to… Continue Reading