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

Appeal Process for Truckers/Carriers When The CBSA Issues ACI eManifest AMPs

Posted in AMPs, Canada's Federal Government, Cross-border trade, Customs Law

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Truckers (highway commercial carriers) can appeal the imposition of administrative monetary penalties (AMPs) imposed by the Canada Border Services Agency (“CBSA”) for failure to meet advance commercial information (ACI) reporting requirements.  The appeals are filed with the CBSA, Recourse Directorate.  We spoke to a source at the Recourse Direcotrate this week who informed us that there has been a significant increase in appeals of ACI AMPS penalties.

As of January of 2016, highway carriers transporting goods into Canada are required to transmit cargo and conveyance data electronically to the CBSA prior to arrival. The cargo and conveyance data must be received and validated by the CBSA a minimum of one hour before the shipment arrives at the border.

Certain Common AMPS

The AMPs penalties can be costly. For example, AMP C379 relates to a failure to submit advance information in the prescribed time or prescribed manner to the CBSA. For the first infraction, the penalty is $250; for the second infraction, the penalty is $375; and for the third and subsequent infractions, the penalty is $750 per instance. The AMPs penalty is imposed on a per instance basis.  Prescribed information must be transmitted in the prescribed trimeframe and in the prescribed manner.  These two separate obligations must be satisfied.  A contravention against any one obligation could result in the imposition of a penalty.

If the ACI information is received after arrival, the CBSA will more likely apply AMP C378, which relates to a failure to submit the prescribed pre-load/pre-arrival information relating to the cargo and/or conveyance.  The AMPs penalty is imposed on a per instance basis.  This AMPS penalty is applied when the pre-load/pre-arrival information is not provided in accordance with the timelines, technical requirements, specifications and procedures for electronic means as set out in the Reporting of Imported Goods Regulations and the applicable Electronic Commerce Client Requirements (see also D-Memorandum D12-3-1 Pre-Arrival Highway). For the first infraction, the penalty is $2000; for the second infraction, the penalty is $4,000; and for the third and subsequent infractions, the penalty is $8,000 per infraction.

The transmission of ACI data does not constitute a reporting for Customs Act purposes.  The CBSA will impose AMP C023 relating to a failure to report conveyances inbound and/or upon arrival.  For the first infraction, the penalty is $2000; for the second infraction, the penalty is $4,000; and for the third and subsequent infractions, the penalty is $8,000 per infraction.

AMP C375 relates to a failure by a person to transmit Conveyance Arrival Certification Message (CACM) as the Governor-in-Council may prescribe.  The penalty is issued on a per conveyance basis. After the July 10, 2015- January 10, 2016 grace period, for the first infraction, the penalty is $2000; for the second infraction, the penalty is $4,000; and for the third and subsequent infractions, the penalty is $8,000 per infraction.

More AMPs penalties are outlined in the Master Penalty Document.

We recommend that highway commercial carriers who transport goods into Canada implement a compliance protocol for ACI reporting. Fix any bugs discovered in connection with filing ACI eManifest submissions, implement a process to proactively identify errors, omissions, or other non-compliance and provide updated accurate information immediately. The implementation of internal controls may result in more efficient border processing by the CBSA and reduce delays and costly monetary penalties.

Appeals:

If a wishes to appeal/dispute the imposition of an AMPs penalty, a request for a Ministerial decision can be made to the CBSA‘s Recourse Directorate.  Requests for a Ministerial decision must be submitted within 90 days from the day the Notice of Penalty Assessment was served.  In exceptional circumstances, the filing deadline may be extended to one year.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at cyndee@lexsage.com. Alternatively, visit www.lexsage.com