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

Category Archives: Customs Law

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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

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