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MEMORANDUM D11-3-2
LOCATOR NO: 618A
Ottawa, October 25, 1996
SUBJECT
MARKING DETERMINATION/RE-DETERMINATION OF GOODS IMPORTED FROM A NAFTA COUNTRY
This memorandum outlines and explains the legislation and regulations governing the marking determination and re-determination of goods imported from a NAFTA country, and advises importers/owners, exporters and producers on how to use appropriate sections of the legislation.
Notes:
1. For information regarding procedures to follow for NAFTA requests of re-determination or further re-determination of origin by an exporter/producer, refer to Memorandum D11-4-17, NAFTA Origin Re-determination Requests Filed by the Person Who Completed and Signed the Certificate of Origin.
2. Requests for re-determination of origin by an importer or person who is liable to pay duties on imported goods are covered in Memorandum D11-6-1 , Determination/Re-determination and Appraisal/Re-appraisal of Goods.
TABLE OF CONTENTS
- Legislation
- Regulations
- Guidelines and General Information
- Definitions
- Determination by a Designated Officer
- Deemed Determination
- Re-determination without Request – Section 61
- Request for Re-determination by the Deputy Minister – Section 63
- Re-determination without Request by the Deputy Minister – Section 64
- Appeals to the Canadian International Trade Tribunal (CITT)
- Requests Held in Abeyance
- Requests for Re-determination
- Notice of the Department's Decision – Determinations and Re-determinations
- General Principles
- Appendix A – Form B 236, Request(s) for a Marking Re-determination of Goods Imported from a NAFTAcountry, and coding instructions for its completion
- Appendix B – Supporting Documentation Requirements for a Re-determination Request Marking
- Appendix C – Criteria for Re-determination Pursuant to Paragraph 61 (e) of the Customs Act
- Appendix D – Criteria for Re-determination Pursuant to Requests under Paragraph 63(1) (b) of the Customs Act
- Appendix E – Criteria for Re-determination Pursuant to Paragraph 64 (a.1 ) of the Customs Act
- Appendix F – Revenue Canada – Trade Administration Services Offices
Legislation
Subsection 2(1) and sections 35.01, 35.02, 57.01, 61, 63, 64, 67, 68, 159.1, and 160 of the Customs Act.
Subsection 63.1(1) of the Customs Tariff.
Customs Act
2. (1) In this Act, "prescribed" means
(a) in the case of a form, the information to be given on a form or the manner of filing a form, authorized by the Minister, and
(b) in any other case, prescribed by regulation or determined in accordance with the rules prescribed by regulation.
Marking of Goods
35.01 No person shall import goods that are required to be marked by any regulations made pursuant to section 63.1 of the Customs Tariff unless the goods are marked in accordance with those regulations.
35.02 (1) Every person who fails to comply with section 35.01 is liable to a penalty of $250 for each failure to comply.
(2) The Minister or any officer designated by the Minister for the purposes of this section may, by notice served personally or by registered mail, require any person
(a) to mark the imported goods with respect to which there has been a failure to comply with section 35.01 in accordance with the regulations made pursuant to section 63.1 of the Customs Tariff within such reasonable time as may be stipulated in the notice; or
(b) to comply with section 35.01 in respect of any goods designated in the notice that will subsequently be imported by the person.
(3) Every person who fails to comply with a notice served on the person under subsection (2) in respect of goods is liable, in addition to any penalty provided for under subsection (1), to a penalty of $2000 or such lesser amount as the Minister may direct.
(4) Where a person imports goods of a prescribed class from a NAFTA country, that person is not liable to a penalty under this section unless
(a) the person has previously failed to comply with section 35.01 in respect of imported goods and has been given notice pursuant to subsection (2);
(b) the goods with respect to which there has been a failure to comply with section 35.01 or a notice given pursuant to subsection (2) have been released without being marked in the manner referred to in section 35.01; or
(c) the imported goods have been marked in a deceptive manner so as to mislead another person as to the country or geographic area of origin of the goods.
(5) Any person who is liable to pay a penalty under this section shall pay, in addition to the penalty, interest at the specified rate for the period beginning on the day after the day on which the person became liable to the penalty and ending on the day on which the penalty has been paid in full, calculated on the outstanding balance of the penalty.
Marking Determination
57.01 (1) Any officer, or any officer within a class of officers, designated by the Minister for the purposes of this section may, at any time before or within thirty days after goods imported from a NAFTA country are accounted for under subsection 32(1),(3) or (5), in the prescribed manner and subject to the prescribed conditions, make a determination as to whether the goods have been marked in the manner referred to in section 35.01 and shall give notice of the determination to the prescribed class of persons.
(2) Where an officer does not make a determination under subsection (1) in respect of goods imported from a NAFTA country within thirty days after the time the goods are accounted for under subsection 32(1),(3) or (5), a determination as to whether the goods have been marked in the manner referred to in section 35.01 shall be deemed to have been made in accordance with any representations that have been made in respect of the marking of the goods by the person who accounted for the goods.
Re-determination by Designated Officer
61. A designated officer may, after imported goods have been released,
(a) within ninety days,
(b) where it was not possible for an officer to make a determination or an appraisal under subsection 58(1) because of insufficient information, within two years,
(c) where, on the basis of an audit or examination under section 42 or a verification of origin under this Act, the designated officer deems it advisable, within two years,
(d) in the case of a verification of origin under this Act where an election to average has been made under the regulations made pursuant to section 13 of the Customs Tariff, such further time as may be prescribed, or
(e) where the Minister deems it advisable, within two years after the time a marking determination was made in respect of the goods under section 57.01 or a determination or an appraisal was made in respect of the goods under section 58, re-determine the marking determination, re-determine the tariff classification or re-appraise the value for duty of the goods and, where the designated officer makes such a re-determination or re-appraisal, the designated officer shall immediately give notice of that decision to
(f) the person who accounted for the goods under subsection 32(1),(3) or (5), the importer of the goods or the person who was the owner of the goods at the time of release, and
(g) persons who are members of the prescribed class, in the case of a re-determination of a marking determination.
Re-determination by the Deputy Minister
63. (1) Any person may
(a) within ninety days after the time the person was given an advance ruling under section 43.1, notice of a marking determination under section 57.01 or notice of a decision under section 60 or 61, or
(b) where the Minister deems it advisable, within two years after the time an advance ruling was given under section 43.1, a marking determination was made under section 57.01 or a determination or appraisal was made under section 58, request a review of the advance ruling, a re-determination of the marking determination, a further re-determination of the tariff classification or marking determination or a further re-appraisal of the value for duty re-determined or re-appraised under section 60 or 61.
(2) A request under this section shall be made to the Deputy Minister in the prescribed manner and in the prescribed form containing the prescribed information.
(3) On receipt of a request under this section, the Deputy Minister shall, with all due dispatch, affirm, revise or reverse the advance ruling, re-determine the marking determination or tariff classification or re-appraise the value for duty, as the case may be, and give notice of his decision to the person who made the request.
64. The Deputy Minister may re-determine the tariff classification or marking determination or re-appraise the value for duty of imported goods
(a) in the case of a determination of a tariff classification or an appraisal of value for duty, within two years after the time a determination or appraisal was made under section 58, where the Minister deems it advisable,
(a.1) in the case of a marking determination, within two years after the time the determination was made under section 57.01, where the Minister deems it advisable,
(b) at any time after a re-determination or a re-appraisal was made under subsection 63(3), but before an appeal under section 67 is heard, on the recommendation of the Attorney General for Canada, where the re-determination or re-appraisal would reduce duties payable on the goods,
(c) at any time, where the person who accounted for the goods under subsection 32(1), (3) or (5) or a person who was given notice of a marking determination under section 57.01 has failed to comply with any of the provisions of this Act or the regulations or has committed an offence under this Act in respect of the goods,
(d) at any time, where the re-determination or re-appraisal would give effect to a decision of the Canadian International Trade Tribunal, the Federal Court or the Supreme Court of Canada made in respect of the goods, and
(e) at any time, where the re-determination or re-appraisal would give effect in respect of the goods (in this paragraph referred to as the "subsequent goods") to a decision of the Canadian International Trade Tribunal, the Federal Court or the Supreme Court of Canada, or of the Deputy Minister under paragraph (b), made in respect of
(i) other like goods of the same importer or owner imported on or prior to the date of importation of the subsequent goods, where the decision relates to the tariff classification of those other goods, or
(ii) other goods of the same importer or owner imported on or prior to the date of importation of the subsequent goods, where the decision relates to the manner of determining the value for duty of those other goods,
and, where the Deputy Minister makes a re-determination or re-appraisal under this section, the Deputy Minister shall immediately give notice of that decision to the person who accounted for the goods under subsection 32(1), (3) or (5), the importer of the goods or the person who was the owner of the goods at the time of release, or in the case of a re-determination of the marking determination under paragraph (a. 1 ), to persons who are members of the prescribed class.
Appeal(s) To The Canadian International Trade Tribunal (CITT)
67. (1) A person who deems himself aggrieved by a decision of the Deputy Minister made pursuant to section 63 or 64 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the Deputy Minister and the Secretary of the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given.
(2) Before making a decision under this section, the Canadian International Trade Tribunal shall provide for a hearing and shall publish a notice thereof in the Canada Gazette at least twenty-one days prior to the day of the hearing, and any person who, on or before the day of the hearing, enters an appearance with the Secretary of the Canadian International Trade Tribunal may be heard on the appeal.
(3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.
68. (1) Any of the parties to an appeal under section 67, namely,
(a) the person who appealed,
(b) the Deputy Minister, or
(c) any person who entered an appearance in accordance with subsection 67(2),
may, with leave of a judge of the Federal Court, within ninety days after the date a decision is made under section 67, appeal therefrom to that Court on any question of law.
(2) The Federal Court may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing.
Offences
159.1 Every person commits an offence who
(a) fails to mark imported goods in the manner referred to in section 35.01;
(b) marks imported goods in a deceptive manner so as to mislead another person as to the country or geographic origin of the goods; or
(c) with intent to conceal the information given by or contained in the mark, alters, defaces, removes or destroys a mark on imported goods made pursuant to the regulations made under subsection 63.1(2) of the Customs Tariff.
160. Every person who contravenes section 12, 13, 15 or 16, subsection 20(1), section 31 or 40, subsection 43(2), 95(1) or (3), 103(3) or 107(1) or section 153, 155 or 156 or commits an offence under section 159 or 159.1
(a) is guilty of an offence punishable on summary conviction and liable to a fine of not more than fifty thousand dollars or to imprisonment for a term not exceeding six months or to both that fine and that imprisonment; or
(b) is guilty of an indictable offence and liable to a fine of not more than five hundred thousand dollars or to imprisonment for a term not exceeding five years or to both that fine and that imprisonment.
Customs Tariff
Marking of Goods
63.1 (1) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations
(a) specifying imported goods of any description or class, including any description or class specified in terms of the use of the goods, and requiring them to be marked in accordance with the regulations made pursuant to subsection (2) so as to indicate their country or geographic area of origin; and
(b) for determining the country or geographic area of origin of imported goods for the purposes of paragraph (a).
(2) The Minister may make regulations for the purpose of the administration of this section, including regulations
(a) prescribing the manner in which imported goods must be marked and any conditions that apply to the marking of the goods; and
(b) prescribing when the imported goods must be marked, including whether they must be marked before or after importation, and prescribing any conditions that apply in respect of the time of marking.
(3) Regulations made under this section may apply generally or in relation to particular countries or geographic areas defined in the regulations.
(4) The operation of section 64 is suspended during the period in which this section is in force.
Regulations
REGULATIONS RESPECTING THE MAKING OF MARKING DETERMINATIONS AND RE-DETERMINATIONS OF MARKING DETERMINATIONS IN RESPECT OF GOODS IMPORTED FROM A NAFTA COUNTRY
Short Title
1. These Regulations may be cited as the NAFTA Marking Determination and Re-determination Regulations.
Interpretation
2. In these Regulations,
" Act " means the Customs Act. (Loi)
Manner of Making A Determination
3. For the purposes of subsection 57.01(1) of the Act, an officer shall determine whether goods imported from a NAFTA country have been marked in the manner referred to in section 35.01 of the Act by reviewing, analyzing or examining any of the following material:
(a) advance rulings given in respect of the goods pursuant to section 43.1 of the Act, or by the customs administration of a NAFTA country other than Canada;
(b) determinations or re-determinations, made under the Act, in respect of marking, tariff classification or origin of goods imported from a NAFTA country;
(c) decisions of the Canadian International Trade Tribunal, the Federal Court or the Supreme Court of Canada made in respect of goods imported from a NAFTA country;
(d) reports prepared by an officer at the time the goods were examined in accordance with subsection 99(1) of the Act;
(e) samples of the goods taken by an officer in accordance with subsection 99(1) of the Act;
(f) information provided by the person who accounted for the goods pursuant to section 32 of the Act; and
(g) any other material provided by the importer, exporter or producer of the goods in respect of the marking of the goods.
Class of Persons
4. For the purposes of subsection 57.01(1) of the Act, the officer shall give notice of the marking determination made in respect of goods imported from a NAFTA country to the importer, exporter and producer of those goods.
5. For the purposes of paragraph 61 (g) of the Act, the officer shall give notice of any re-determination of a marking determination made pursuant to section 61 of the Act in respect of goods imported from a NAFTA country to the importer, exporter and producer of those goods.
6. For the purposes of section 64 of the Act, the Deputy Minister shall give notice of any re-determination of a marking determination made pursuant to paragraph 64 (a. 1 ) of the Act in respect of goods imported from a NAFTA country to the importer, exporter and producer of those goods.
GUIDELINES AND GENERAL INFORMATION
DEFINITIONS
1. The following definitions are for the purpose of this Memorandum:
"Canada Customs Coding Form B 3" a document used to account for imported goods, will also include other accounting documents; (Douanes Canada – Formule de codage B 3)
"commingled" means physically combined or mixed in inventory; (combiné)
"date of accounting," in respect to subsections 32(1), (3), and (5) of the Customs Act, is: for shipments duty-paid at terminal offices, show the date that appears in the "Accounting Date" field of Form K 84, Importer/Broker Account Statement, or, for cash transactions, show the date appearing in the "Statement Date" field of Form B 3-1 , Canada CustomsDetailed CodingStatement. For shipments paid at non-terminal locations or for recovery mode accounting documents, show the "Date Stamp" date that appears on the receipt copy of Form B 3, Canada Customs Coding Form; (date de la déclaration en détail)
"designated officer" includes the marking expert in the regions and officers at Headquarters; (agent désigné)
"domestic material" means a material, the country of origin of which, as determined under these Regulations, is the same country in which the goods are produced; (matière d'origine nationale)
"exporter" means a person exporting goods to Canada who may not be the producer of the goods; (exportateur)
"foreign material" means a material, the country of origin of which, as determined under these Regulations, is not the same country in which the goods are produced; (matière étrangère)
"fungible goods" means goods that are interchangeable for commercial purposes with other goods the properties of which are identical; (marchandises fongibles)
"fungible materials" means materials that are interchangeable for commercial purposes with other materials the properties of which are identical; (matières fongibles)
"importer" includes any person who accounts for imported goods; (importateur)
"incorporated" means physically incorporated into goods as a result of production; (incorporé)
"legible" means capable of being easily read; (lisible)
"producer" means a person who grows, mines, harvests, fishes, traps, hunts, manufactures, processes, or assembles a good; (producteur)
"production" means growing, mining, harvesting, fishing, trapping, hunting, manufacturing, processing, or assembling goods; (production)
"ultimate purchaser" means the last person in Canada who purchases the goods in the form in which they are imported, whether or not that purchaser is the last person to use the goods in Canada. (dernieracheteur)
DETERMINATION BY A DESIGNATED OFFICER
2. Pursuant to subsection 57.01(1) of the Customs Act, a designated officer may determine the marking of imported goods from a NAFTA country at any time before or within 30 calendar days after a final accounting is made under subsection 32(1), (3), or (5) of the Act.
3. Determinations will include all three marking components:
(a) Component 1: Is the good required to be marked with its country of origin?
(b) Component 2: What country of origin must be marked on the goods?
(c) Component 3: What are the acceptable method and manner of marking the goods?
4. A determination rendered under subsection 57.01(1) will be issued in the form of a letter.
5. When a determination of marking cannot be made due to lack of information, the designated officer will advise the importer or his agent that the imported goods are under review and that further information is required before a final decision can be given. If the additional information is not received within the 30 calendar day statutory time limit of subsection 57.01(1) of the Customs Act, a re-determination may be made by the designated officer pursuant to paragraph 61 (a) or 61 (e) of the Customs Act, based on the information available.
6. Notice of the determination shall be given to the importer, exporter, and producer of the goods.
DEEMED DETERMINATION
7. Subsection 57.01(2) of the Act provides that in those cases where a marking determination of imported goods from a NAFTA country is not made within 30 calendar days after the time the goods are accounted for under subsection 32(1), (3), or (5) of the Act, then a determination shall be deemed to have been made at the end of the 30 calendar day period.
RE-DETERMINATION WITHOUT REQUEST – SECTION 61
8. Pursuant to paragraph 61 (a) of the Customs Act, a designated officer may, within 90 days after a determination under section 57.01 of the Customs Act :
(a) re-determine a determination made under subsection 57.01; or
(b) complete a review initiated under section 57.01, where information was not received within the 30-day limits.
9. Re-determinations will include all three marking components:
(a) Component 1: Is the good required to be marked with its country of origin?
(b) Component 2: What country of origin must be marked on the goods?
(c) Component 3: What are the acceptable method and manner of marking the goods?
10. Pursuant to paragraph 61 (e) of the Customs Act, a designated officer may make a re-determination of a marking determination rendered under section 57.01 within two years, where the Minister deems it advisable. The criteria specified will be published in the near future.
REQUEST FOR RE-DETERMINATION BY THE DEPUTY MINISTER – SECTION 63
11. Pursuant to section 63 of the Customs Act, a NAFTA importer/owner, exporter, or producer may request a re-determination of a marking determination/re-determination rendered under section 57.01 or 61 of the Customs Act on goods imported from a NAFTA country:
(a) within 90 calendar days after the date of the decision given under section 57.01 or 61 of the Customs Act; or
(b) within two years, where the Minister deems it advisable, after the time a marking determination was made in respect of the goods under section 57.01 of the Customs Act.
12. The criteria, as specified by the Minister, for accepting requests filed under 63(1) (b) of the Customs Act will be published in the near future.
13. A request made to the Deputy Minister under paragraph 63(1) (a) or 63(1) (b) of the Act must be presented on the prescribed Form B 236, Request(s) for a Marking Re-determination of Goods Imported from a NAFTA Country, as contained in Appendix A.
14. A request for a marking re-determination may not be submitted to the Department until 30 calendar days after the goods are accounted for under subsection 32(1), (3), or (5) of the Customs Act or until a determination is made under section 57.01 of the Customs Act.
15. Subsection 63(3) of the Customs Act imposes an obligation upon the Deputy Minister to come to a decision with all due dispatch and to notify the person who made the request of the decision. The Department will render the re-determination in the form of a letter.
16. A notice of the re-determination shall be given to the importer/owner, exporter, and producer of the goods. The Department will render the re-determination in the form of a letter.
RE-DETERMINATION WITHOUT REQUEST BY THE DEPUTY MINISTER – SECTION 64
17. Pursuant to paragraph 64 (a. 1 ) of the Customs Act, the Deputy Minister may render a re-determination of a marking determination made under section 57.01 within two years where the Minister deems it advisable. The criteria, as specified by the Minister, for rendering re-determinations under 64 (a. 1 ) of the Act, will be published in the near future.
18. Pursuant to subsection 64 (c) of the Customs Act, the Deputy Minister may render a re-determination of a marking determination made under section 57.01 at any time where the importer/owner, exporter, or producer of the imported goods has failed to comply with any of the provisions of the Customs Act or the Regulations, or has committed an offence under the Customs Act in respect of the goods.
19. Pursuant to subsection 64 (d) of the Customs Act, the Deputy Minister may render a re-determination of a marking determination at any time where the re-determination would give effect to a decision of the Canadian International Trade Tribunal (CITT), the Federal Court, or the Supreme Court of Canada regarding the goods.
20. Pursuant to paragraph 64 (e) of the Customs Act, the Deputy Minister may re-determine the marking of certain goods, referred to as "subsequent goods," to give effect to a decision of CITT, the Federal Court or the Supreme Court of Canada, or of the Deputy Minister made under paragraph 64 (b) of the Customs Act.
APPEALS TO THE CANADIAN INTERNATIONAL TRADE TRIBUNAL (CITT)
21. Subsection 67(1) of the Customs Act allows a person who deems himself aggrieved by a decision of the Deputy Minister made pursuant to section 63 or 64 of the Act, to appeal the decision to CITT by filing a notice of appeal in writing with the Deputy Minister and the Secretary of the Canadian International Trade Tribunal within 90 days from the date that the Deputy Minister's notice of the decision was given. Notices of appeal shall be sent to:
Secretary
The Canadian International Trade Tribunal
15th floor
Standard Life Centre
333 Laurier Avenue West
Ottawa ON K1A 0G7
Facsimile: (613) 990-2439
and
Deputy Minister
Revenue Canada
11th floor
MacDonald Building
123 Slater Street
Ottawa ON K1A 0L8
Facsimile: (613) 952-1547
REQUESTS HELD IN ABEYANCE
22. Importers/owners, exporters, or producers awaiting a decision by the Deputy Minister, CITT, or Federal Court respecting the marking of goods imported from a NAFTA country, may request that the Department hold in abeyance subsequent requests for re-determination of marking filed pursuant to section 63 of the Act, until such time as the initial request/appeal is resolved at the final level. Such requests shall cover similar or identical goods reflecting the same issue or principle as those goods accounted for by the same importer/owner, exporter, or producer in the same region which are the subject of the request to the Deputy Minister, CITT, or Federal Court.
23. Other importers/owners, exporters, or producers of goods accounted for in the same region may also request that their requests for re-determination of marking filed pursuant to section 63 of the Act, be held in abeyance pending a decision on the request which is before the Deputy Minister, CITT, or Federal Court on similar or identical goods or on the same issue or principle, provided it can be clearly demonstrated that the issue or principle pertaining to the request will have an impact on the requests held in abeyance.
24. It is the responsibility of the importer/owner, exporter, or producer to satisfy regional officials that the request may be held in abeyance, and furnish the information that would enable customs to issue a decision on the request once the original request/appeal has been ruled on. Accordingly, the notation "to be held pending the result of the request/appeal No. XXX, dated XXX" must appear in the "Explanation" field on Form B 236.
REQUESTS FOR RE-DETERMINATION
Preparation of Form B 236, Request for a Marking Re-Determination of Goods Imported from a NAFTA Country
25. Form B 236, in duplicate, shall be prepared in the English or French language by the NAFTA importer/owner, exporter, or producer to request:
(a) a re-determination of marking by the Deputy Minister under paragraph 63(1) (a) of the Customs Act; or
(b) a re-determination of marking by the Deputy Minister under paragraph 63(1) (b) of the Customs Act.
26. All fields must be completed on Form B 236. Refer to Appendix A for a copy of Form B 236 and the coding instructions for its completion, which are contained on the reverse side of the form. Care should be taken to provide accurate and complete information respecting your request. The Department will accept properly completed, legible photocopies of Form B 236.
27. Forms B 236 that are incomplete or do not provide the necessary supporting information will be rejected without decision and will not be further processed. They will be considered to be invalid and, as such, legislative time-limit requirements will not be protected. A new or amended Form B 236 must be filed within the time limits prescribed by the applicable legislative authority.
Documentation Required to Support a Form B 236
28. Requests for re-determination must include documentation for all three marking components as further detailed in paragraphs 29 and 30 below.
29. Concerning component 1: Is the good required to be marked with its country of origin? or component 3: What are the acceptable method and manner of marking the goods?, the following information should be provided:
(a) descriptive illustrations, literature, samples, drawings, or catalogues relating to the goods that are the subject of the request;
(b) nature and/or condition of the goods when a factor.
30. Concerning component 2: What country of origin must be marked on the goods?, the mandatory information outlined in Appendix B should be provided.
31. All supporting documentation submitted must be readily identifiable to the goods and the transaction numbers which are the subject of the requests.
Presentation of Requests
32. Form B 236, in duplicate, shall be sent to the appropriate regional Revenue Canada customs office or to any customs office in the region where the goods were released under the Act.
33. The date the Form B 236 request is sent by registered mail or is received by hand at the appropriate Revenue Canada customs office, is deemed to be the date of filing for the purpose of meeting the time limits specified under section 63 of the Customs Act.
34. When determining time limits for purposes of filing requests under section 63 of the Customs Act, day one is the next day following:
(a) the date of the designated officer's decision respecting the marking of imported goods pursuant to subsection 57.01(1) or paragraph 61 (a) or 61 (e) of the Customs Act; or
(b) the date the deemed determination of marking was made under subsection 57.01(2) of the Customs Act.
35. When a time limit referred to in this Memorandum (e.g., for a determination/re-determination, or request for re-determination), falls on a holiday, Saturday or Sunday, the final day for carrying out the activity shall be the next working day.
36. Any inquiries respecting the status of a request should be made to the Director, Trade Administration Services, in the appropriate Revenue Canada customs office (see Appendix F) where the request was presented. Also, the requester should provide the filing date of Form B 236 as well as the original transaction number, date, and the TRS (Technical Reference System) number of the appeal under review.
NOTICE OF THE DEPARTMENT'S DECISION – DETERMINATION AND RE-DETERMINATIONS
37. A detailed notice will be prepared by the Department under the following circumstances:
(a) by a designated officer, to convey the results of a determination/re-determination under subsection 57.01 (1) and/or paragraphs 61 (a) or 61 (e) of the CustomsAct;
(b) by the Director, Trade Administration Services, to convey the results of a Deputy Minister's decision in respect of a request for re-determination under section 63 of the Customs Act;
(c) by a Headquarters officer, to convey the results of a Deputy Minister's decision in respect of a request for re-determination under section 63 of the Customs Act;
(d) by a Headquarters officer, to convey the results of a Deputy Minister's decision in respect of a re-determination under section 64 of the Customs Act.
38. The notice of the Department's decision as described in subparagraph 37 (a) above shall be provided to the NAFTA importer/owner, exporter, and producer. In situations where a customs broker or person acting on behalf of the importer has prepared the B 3 accounting document, the Department will notify that person.
39. The notice of the Department's decision as described in subparagraphs 37 (b) and (c) above, shall be provided to the person who made the request. In situations where a customs broker or person acting on behalf of the appellant has prepared the Form B 236, the Department will notify that person.
40. The notice of the Department's decision as described in paragraph 37 (d) above shall be provided to the NAFTA importer/owner, exporter, and producer. In situations where a customs broker, or person acting on behalf of the importer/owner, exporter, or producer has prepared the B 3 accounting document, the Department will notify that person.
GENERAL PRINCIPLES
41. Importation documents found not to be in compliance with the law will be re-determined.
42. The re-determination will reflect the interpretation of the law at the time of the re-determination.
43. A re-determination of marking initiated under section 61 or 64 of the Customs Act must be completed within the time limits specified in the legislation.
44. Application of these principles to specific situations will be determined by the law and in accordance with the interpretative policies set forth herein.
45. Subject to paragraph 46, when departmental advice, which clearly relates to the goods in question, was issued to the importer but was not followed, re-determinations will be made on importations cleared on and after the date that the advice was given, provided that such re-determinations can be made within two years of the date of a determination made under section 57.01 of the Customs Act. Such advice includes those contained in departmental published directives, policy papers and rulings issued to the importer/owner, exporter, or producer of the imported goods.
46. In cases of fraud or misrepresentation, re-determinations relating to the infraction will be made.
47. For cases not covered by paragraphs 43 and 44, and subject to paragraphs 18 through 20 and 48, re-determinations will be limited to those that can be made within 90 days of the date of a determination made under section 57.01 of the Customs Act.
48. The 90-day limitation in paragraph 47 will not apply if the Department has insufficient information about the goods to permit re-determination within 90 days of the date of a determination made under section 57.01 of the Customs Act. In such cases, the importer will, whenever possible, be advised in writing within 90 days of the date of a determination made under section 57.01 that additional information is required and that a re-determination, if needed, will be made as soon as possible. Such delayed re-determination will, in any event, be made within two years of the date of a determination made under section 57.01 of the Act.
49. New interpretative policies occasioned by new or amended legislation will come into effect on the effective date of the legislation.
50. Changes in interpretative policies occasioned by Canadian International Trade Tribunal declarations or Court decisions will be made effective on the date that the declaration or decision is announced by the Deputy Minister.
51. Other changes in interpretative policies will normally come into effect on the date of publication or on such later date as is specified, and will apply to importations made on and after the effective date.
52. For further information regarding the matters outlined in this Memorandum, contact the nearest Trade Administration Services office (See Appendix F).
Appendix A
Form B 236, Request(s) for a Marking Re-determination
of Goods Imported from a NAFTA Country,
and Coding Instructions for Its Completion
Appendix B
SUPPORTING DOCUMENTATION REQUIREMENTS FOR
A RE-DETERMINATION REQUEST
FOR MARKING
1. The Department will consider a re-determination request for marking submitted under section 63 of the Customs Act in accordance with Article 510 (b) of the NAFTA as to whether the proposed or actual marking of goods satisfies the country of origin marking requirements under Article 311 (Country of Origin Marking).
2. Re-determinations for marking contain three main components:
(a) Component 1: Is the good required to be marked with its country of origin?
(b) Component 2: What country of origin must be marked on the goods?
(c) Component 3: What are the acceptable method and manner of marking the goods?
3. In addition, there are two types of supporting documentation:
(a) mandatory information which must be submitted with Form B 236; and
(b) additional information which should be submitted with Form B 236 if the applicant can determine whether any of the criteria are applicable. It should be noted that customs may request such information if required, at a later date.
Note:The Determination of Country of Origin for the Purposes of Marking Goods (NAFTA Countries) Regulations shall hereinafter be referred to as the NAFTA Regulations.
MANDATORY INFORMATION
4. Form B 236 must be accompanied by the following specific information:
(a) identify which item in Schedule I of goods contained in Memorandum D11-3-1, Marking of Imported Goods, may be applicable;
(b) if the appellant is of the opinion that the goods may not require marking as a result of the exemptions contained in Memorandum D11-3-1, the specific exemption must be identified and a detailed explanation outlining the rationale for this position should be provided;
(c) if applicable, provide a copy of the pre-authorization or authorization to mark goods in Canada and identify which goods are the subject of a request for a re-determination of marking. Original transaction numbers (on Form B 3) should also be provided;
(d) provide a description of the end-use of each good;
(e) provide the Harmonized System tariff classification number for each of the goods which were imported into Canada and are the subject of the request. If a ruling regarding the tariff classification of the goods is available, a copy should be provided;
(f) for each good, provide producer's literature, drawings, photographs, or other descriptive literature, properly identified and in an organized manner, in order to suport the good's Harmonized System tariff classification number;
(g) for each good, provide a general description of the manufacturing process performed, in the order performed and the location (country) where each process occurs;
(h) provide a detailed list of all the materials incorporated into each good obtained from the producer which includes:
(1) whether the materials were imported from other NAFTA and/or non-NAFTA countries,
(2) the names and addresses (and telephone numbers – optional) of all NAFTA suppliers of materials, and
(3) for each material, provide producer's literature, drawings, photographs, or other descriptive literature, properly identified and in an organized manner, in order to classify the material;
(i) indicate which paragraph under sections 4 through 8 of the NAFTA Regulations is applicable to the goods (as indicated on the determination being appealed and which is applicable if under dispute);
(j) provide the size of the country of origin marking contained on the goods in measurement of inches or millimeters;
(k) provide a specific description as to where the country of origin marking is located on the good;
(l) provide the method of marking being used (e.g., stamping, etching, engraving);
(m) provide the specific details regarding the legibility of the marking used (e.g., colour of marking and background);
(n) if applicable, where abbreviations are used to represent the country of origin, provide the specific wording used;
(o) indicate the exact wording of the country of origin marking in the language it appears on the good;
(p) indicate whether there are any methods of marking that would not be suitable due to the nature of the goods;
(q) indicate how the goods will be packaged and provide a specific description of any marking described thereon;
(r) provide a specific description of the container to be used for shipping purposes and provide a specific description of any marking described thereon;
(s) if known at the time of importation, provide the name and address of the ultimate purchaser (see paragraph 1 of the Guidelines and General Information for the definition of "ultimate purchaser") and briefly explain what happens to the goods after importation. If the name of the ultimate purchaser is not known at the time of importation, describe how the goods are sold or distributed after importation;
(t) if the words "Canada" or "Canadian" or any abbreviations thereof, or the name of any country or place other than the name of the country of origin of the goods appears on the goods:
(1) indicate the wording used,
(2) indicate the locations of all such wording on the goods, and
(3) indicate the locations of the wording in relation to the country of origin marking on the goods;
(u) if the goods are iron or steel pipes or tubes, the following information must be provided:
(1) the inside diameter measurement in inches or millimeters of the pipes or tubes,
(2) the method of packaging and/or bundling that is used, and
(3) where the goods described have a critical surface finish, provide a description of the finish.
5. Applicants should refer to the Marking of Imported Goods Regulations contained in Memorandum D11-3-1 to obtain additional information regarding the marking of iron or steel pipes and tubes.
ADDITIONAL INFORMATION
6. If the appellant has determined or can determine whether any of the following criteria are applicable, the information indicated below should be submitted with Form B 236 when submitted to the Department. It should be noted that customs may request such information, if required, at a later date.
7. If possible, provide a properly identified sample of each good.
Goods Wholly Obtained or Produced in a Single NAFTA Country – Paragraph 4(1) (a) or subsection 4(2) of the NAFTA Regulations
8. If the goods do not contain materials from outside a single NAFTA country, i.e., they are completely manufactured in Canada, or Mexico, or the U.S. from materials which are completely produced in the same NAFTA country, the appellant should provide an explanation as to why the good qualifies under paragraph 4(1) (a) or subsection 4(2) of the NAFTA Regulations based on information obtained from the producer of the goods.
Goods Produced Exclusively from Domestic Materials in a Single NAFTA Country – Paragraph 4(1) (b) of the NAFTA Regulations
9. If the goods were produced exclusively from domestic components or materials in a single NAFTA country whereby each of the components or materials qualify as either wholly obtained or produced, or meet a tariff classification change in their own right under the Tariff Shift Rules (refer to Schedule III under the NAFTA Regulations contained in Customs Notice CN-843) as the same country in which the good was produced, the appellant should submit the information obtained from the producers as indicated below:
Note: For the purposes of this section, "domestic components or materials" shall be considered as a "good."
(a) a list of all materials incorporated into the good;
(b) the names and addresses (and telephone numbers – optional) of the suppliers of those materials;
(c) a general description of the manufacturing process performed, in the order performed and the location (country) where each process occurs;
(d) a list of the materials incorporated into the good which in the producer's opinion qualify as "wholly obtained or produced," in their own right under the NAFTA Regulations, Paragraph 4(1) (a) or a paragraph of subsection 4(2), e.g., ( a) a mineral good extracted in the territory of a country;
(e) a list of the materials incorporated into the good which in the producer's opinion, qualify in their own right as meeting any of the Tariff Shift Rules under the NAFTA Regulations (Schedule III contained in Customs Notice CN-843) applicable to such materials. The following additional information will be required:
(1) the tariff classification applicable to each good qualifying in its own right under Schedule III,
(2) a description of all materials used in the production of each good which qualifies in its own right under Schedule III which also indicates whether the incorporated materials were imported from other NAFTA and/or non-NAFTA countries,
(3) supplier confirmation letters to prove origin of any incorporated materials from other NAFTA and/or non-NAFTA countries that would cause each good to fail the Schedule III requirements, and
(4) an explanation as to why each good qualifies under either:
(i) paragraph 4(1) (b), or
(ii) paragraph 4(1) (c) under the NAFTA Regulations;
(f) when components or materials incorporated into the good fail to meet the Tariff Shift Rules Schedule III under the NAFTA Regulations, contained in Customs Notice CN-843) and it is determined that De Minimis (section 11 of the NAFTA Regulations) could be utilized, indicate the subsection applicable under the De Minimis provision. In addition, provide the values and/or weight information as indicated therein along with a copy of a commercial invoice if obtainable;
(g) when components or materials incorporated into the good are determined to be fungible in accordance with the General provision (subsection 5(2) of the NAFTA Regulations ), indicate the specific paragraph applicable under subsection 5(2);
(h) when the good is determined to be fungible, in accordance with the Fungible Goods provision (section 10 under the NAFTA Regulations ), indicate the specific subsection or paragraph under section 10 applicable thereto and provide an explanation why that subsection or paragraph is applicable to the good; and
(i) provide an explanation as to why the good qualifies for the Tariff Preference Override provision (section 8 under the NAFTA Regulations ). The completed and signed Certificate of Origin should accompany the explanation given.
Goods Satisfying a Tariff Classification Change Marking Rule in a Single NAFTA Country – Paragraph 4(1) (c) under the NAFTA Regulations
10. If the goods were produced from materials sourced in more than one NAFTA country, and/or any non-NAFTA country, the appellant should determine the tariff classification of the goods and determine the Tariff Shift Rule (Schedule III under the NAFTA Regulations, contained in Customs Notice CN-843) applicable to the goods of that tariff classification. In this case, the appellant may be requested to submit the following information obtained from the producer:
(a) an explanation as to why the good qualifies pursuant to the Tariff Shift requirements (Schedule III);
(b) supplier confirmation letters to prove origin of any materials from other NAFTA and/or non-NAFTA countries that would cause the goods to fail the Tariff Shift Rule requirements (Schedule III);
(c) when components or materials fail to meet the Tariff Shift Rules (Schedule III) and it is determined that De Minimis (section 11 under the NAFTA Regulations ) could be utilized, indicate the specific subsection and/or paragraph under section 11 applicable and provide the values and/or weight information as indicated therein along with a copy of a commercial invoice if obtainable;
(d) when a component or material used in the production of the good is determined to be fungible in accordance with the General provisions (subsection 5(2) under the NAFTA Regulations ), indicate the specific paragraph under subsection 5(2) applicable thereto and provide an explanation why that paragraph is applicable to the component or material;
(e) when the good is determined to be fungible, in accordance with the Fungible Goods provision (section 10 under the NAFTA Regulations ), indicate the specific subsection or paragraph under section 10 applicable thereto and provide an explanation why that subsection or paragraph is applicable to the good; and
(f) provide an explanation as to why the good qualifies for the Tariff Preference Override provision (section 8 under the NAFTA Regulations ). The completed and signed Certificate of Origin should accompany the explanation given.
All Other Goods – Qualifying Under Sections 5 through 7 of the NAFTA Regulations
11. For all other goods qualifying under sections 5 through 7 of the NAFTA Regulations, the appellant should:
(a) indicate the subsection or paragraph of the NAFTA Regulations applicable and provide an explanation why that subsection or paragraph is applicable to the good;
(b) when it is determined that De Minimis (section 11 of the NAFTA Regulations ) could be utilized, indicate the specific subsection or paragraph under section 11 applicable and provide the values and/or weight information as indicated therein along with a copy of a commercial invoice if obtainable;
(c) when a component or material used in the production of the good is determined to be fungible in accordance with the General provisions (subsection 5(2) under the NAFTA Regulations ), indicate the specific paragraph under subsection 5(2) applicable thereto and provide an explanation why that paragraph is applicable to the component or material;
(d) when the good is determined to be fungible, in accordance with the Fungible Goods provision (section 10 under the NAFTA Regulations ), indicate the specific subsection or paragraph under section 10 applicable thereto and provide an explanation why that subsection or paragraph is applicable to the good; and
(e) provide an explanation as to why the good qualifies for the Tariff Preference Override (section 8 of the NAFTA Regulations ). The completed and signed Certificate of Origin should accompany the explanation given.
Appendix C
(Published in the
near future)
Appendix D
(Published in the
near future)
Appendix E
(Published in the
near future)
Appendix F
REVENUE CANADA – TRADE ADMINISTRATION SERVICES OFFICES
| Area | Address | Telephone/Facsimile Numbers |
| Atlantic | 1557 Hollis Street P.O. Box 3080 Station Park Lane Centre Halifax NS B3J 3G6 |
T: (902) 426-8240 F: (902) 426-2768 |
| Québec | 130 Dalhousie Street P.O. Box 2267 Québec QC G1K 7P6 |
T: (418) 648-3401 F: (418) 648-3040 |
| Montréal | 400 d'Youville Square Montréal QC H2Y 2C2 |
T: (514) 283-7987 F: (514) 283-7500 |
| Ottawa | 11th floor 333 Laurier Ave W. Ottawa ON K1A 0L9 |
T: (613) 598-2053 (613) 598-3970 F: (613) 952-7149 |
| Toronto | 1 Front Street West P.O. Box 10 Station A Toronto ON M5W 1A3 |
T: (416) 973-1654 F: (416) 954-5623 |
| Hamilton | 26 Arrowsmith Road P.O. Box 2989 Hamilton ON L8N 3V8 |
T: (905) 308-8528 (905) 308-8538 F: (905) 308-8616 |
| Southwestern Ontario – Windsor |
P.O. Box 2280 Station A 185 Ouellette Avenue Windsor ON N8Y 4R8 |
T: (519) 257-6371 (519) 257-6373 F: (519) 257-6444 |
| Southwestern Ontario – London |
451 Talbot Street P.O. Box 5940 Station A London ON N6A 4T9 |
T: (519) 645-5144 F: (519) 645-5819 |
| Central | Federal Building 269 Main Street Winnipeg MB R3C 1B3 |
T: (204) 983-3694 (204) 984-7123 F: (204) 983-6635 |
| Alberta | 720 Harry Hays Building 220 – 4th Avenue S.E. Calgary AB T2G 4X3 |
T: (403) 292-6381 F: (403) 292-8856 |
| Vancouver | 333 Dunsmuir Street Vancouver BC V6B 5R4 |
T: (604) 666-6886 604) 775-6753 F: (604) 666-2212 |
References
ISSUING OFFICE -
Partnership and Strategic
Planning Division
LEGISLATIVE REFERENCES -
Customs Tariff, section 63.1
Customs Act, subsection 2(1) and sections 35.01, 35.02, 43.1, 57.01, 61, 63, 64, 67, 68, 159.1, and 160
HEADQUARTERS FILE -
N/A
SUPERSEDED MEMORANDA "D" -
N/A
OTHER REFERENCES -
N/A
