Bill C-43 Incorporates To Be Determined Advance Data Element Requirements, by Cyndee Todgham Cherniak

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On February 15, 2008, Bill C-43 "An Act to amend the Customs Act" was tabled for first reading in Canada's House of Commons. Most of the proposed provisions in Bill C-43 relate to housekeeping matters to allow Canada Border

Services Agency ("CBSA") officers to stop and question a person who is in and has not left a customs controlled area (e.g. the baggage area of airports). However, the following apparently innocuous provision is in the middle of proposed

Bill C-43, and to a trained customs eye, creates a

level of uncertainty in critically important areas:

"6. The Act is amended by adding the following

after section 12:

The Governor in Council may make regulations:

(a) requiring persons to give, before a conveyance's arrival in Canada, information about the conveyance and the persons and goods on board;

(b) respecting the information that must be given;

(c) prescribing the persons or classes of persons who must give the information;

(d) prescribing the circumstances in which the information must be given; and

(e) respecting the time within which and the manner in which the information must be given." (Emphasis added)

The "information that must be given" is the information that must be completed on customs import documentation at the point in time that the advance commercial information must be provided prior to the shipment of the goods to Canada. The advance commercial information is important to

ensure that the CBSA and the joint Canada-United States enforcement teams have sufficient information prior to the arrival of the goods to assess risk posed by the shipment and to make a determination regarding the inspection of the

shipment. Given the fact that the identification of high risk shipments is an important element of border security, it can be expected that the administrative monetary penalty system will be amended to include, or will encompass penalties (possibly on an escalating basis), for failure to

provide accurate advanced data.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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