This notice is available in its entirety on the Canada Border Services Agency website.
The purpose of this notice is to advise the trading community on how B2 requests for a NAFTA tariff treatment, on goods that were originally declared on a B3 under the MFN tariff treatment, will be processed, following the October 21, 2016 decision of the Federal Court of Appeal (FCA) in Canada (Attorney General) v. Bri-Chem Supply Ltd., 2016 FCA 257 (CanLII).
The FCA upheld the September 18, 2015 decision of the Canadian International Trade Tribunal (CITT) in Bri-Chem Supply Ltd. v. President of the Canada Border Services Agency (AP-2014-017), in particular the finding that section 32.2 of the Customs Act is the appropriate authority under which an importer may make corrections to tariff treatment declarations, provided the correction does not give rise to a claim for a refund.
Section 32.2 of the Customs Act places the responsibility on the importer to make a correction to an accounting declaration of tariff treatment when the importer has reason to believe that the declaration was incorrect. The declaration to a preferential tariff treatment is not an obligation imposed on the importer; it is to be made voluntarily as MFN tariff treatment is correct.
If an importer chooses to self-correct the tariff treatment from an MFN tariff treatment to a NAFTA preferential tariff treatment that would result in a revenue-neutral correction pursuant to subsection 32.2(2) of the Customs Act, this correction will be processed. The importer must make the correction within 90 days from the date where they have reason to believe that the goods qualify for this preferential tariff treatment. This correction will constitute a re-determination under section 59 of the Customs Act.