The NEXUS program is a cross-border, discretionary, regulatory program enforced in Canada by the Canada Border Services Agency (CBSA) and in the United States by the Department of Homeland Security, Customs and Border Protection (CBP). Trusted travellers may be accepted into the NEXUS program after completing an extensive application form, meeting eligibility criteria and undergoing security checks and an interview.
NEXUS permits individuals to use alternative methods of reporting, including automated NEXUS kiosks (in airports) or dedicated NEXUS lanes at land border crossings and a Travelers’ Declaration Card (TDC) to report goods. A NEXUS member may also use dedicated lanes at airport security screening.
While NEXUS membership is desirable for both employers and employees, there are some issues both should know about:
No one is entitled to be accepted
Since the NEXUS program is discretionary, no person is entitled to be accepted into the program. The rules relating to eligibility are set out in the Presentation of Persons (2003) Regulations, SOR 2003/323, as amended. The Minister of Public Safety and Emergency Preparedness (Canada) and the U.S. Secretary of Homeland Security may reject any application for any reason.
Given the discretionary nature of the program, membership should not be a condition of employment. Acceptance into the NEXUS program may not be within an employee’s control.
If the minister does not accept an individual into the program, there is a Canadian review procedure. If an individual fails to obtain relief, a request for reconsideration may be filed with the CBSA, Recourse Directorate as a level two redress procedure. If an individual fails to obtain level two relief, the only remaining option is to file an application for judicial review with the Federal Court of Canada. The judicial review litigation process is expensive.
Where an application is rejected and it appears from the reasons provided that information in an individual’s customs file is incorrect, it may be possible to correct the information in the file and then reapply.
A previous border infraction (or criminal conviction or arrest) can be the basis for the rejection of a NEXUS application. If the information is correct, but the relevance needs to be diminished, it is more difficult to clear the record. However, if an individual has maintained a clean customs record for seven years after a minor infraction, it is possible to obtain a NEXUS authorization.
Once a person has been accepted into the NEXUS program, the minister (or a CBSA officer) should not revoke NEXUS authorization unless the individual has breached section 22 of the regulations or the rules of the NEXUS program.
Section 22 of the regulations states the minister may suspend or cancel a NEXUS authorization if a person (a) no longer meets the requirements of the authorization; (b) has contravened the Customs Tariff, the Export and Import Permits Act or the Special Import Measures Act, or any regulations made under any of those acts or; (c) has provided information that was not true, accurate or complete for the purposes of obtaining an authorization.
There are also rules of the NEXUS program (such as all persons in a vehicle must have memberships if the driver uses the NEXUS lane and not using NEXUS if commercial goods are to be declared).
That being said, a person may have a disagreement with a CBSA officer and the officer may exercise his discretion to cancel a membership. If the person believes the officer does not have a legal basis for cancelling a NEXUS authorization, the person may file an appeal with the CBSA NEXUS Program Redress Committee.
Caution is necessary
Any employee who uses the NEXUS membership in her employment should make sure to comply with all border laws and the rules of the NEXUS program. It is up to the individual to know the law and comply. An employee could have her NEXUS authorization cancelled based on an inadvertent mistake.
Further, when the CBSA calculates penalties for failure to declare, it will normally increase the level of penalties charged when an individual is a NEXUS program member. For example, a level one penalty of 25 per cent of the value of the goods may be increased to level two of 40 per cent of the value of the goods.
The CBSA takes the position NEXUS travellers should not make mistakes. Whether an error is unintentional is not considered to be a relevant factor by the CBSA, which has a zero tolerance policy for NEXUS members.
After membership is cancelled, an individual may be sent to secondary CBSA inspection more frequently. Individuals complain about the extra screening more than any other consequence of NEXUS cancellation/revocation, including the inconvenience and wasted time in secondary CBSA inspection (which can take hours).
Individuals who have committed a border law contravention are flagged in the CBSA database for extra screening. The individual will not know when he will be selected by the CBSA for secondary inspection. This means an employee with a black mark on her CBSA record may have to build in extra time when travelling for business purposes.
The individual may have to inform HR and others within business operations to build in extra travel time. This can mean paying more for an earlier flight or having to travel the night before. It may also be necessary to build in extra time where a connecting flight is required after cross-border travel.
In other words, one mistake can affect a person’s business life for up to six years (or more if a subsequent application of NEXUS program membership is rejected).
Most employers want employees to be trustworthy. “Trusted traveller” is a good label to be granted. If the CBSA does not think an individual is a trusted traveller, it may cause the employer to question why.
It’s rare for an employer to try to use the cancellation of a NEXUS program membership as a basis for dismissal or demotion. If an employer requests an individual obtain NEXUS authorization as a condition of employment and the individual is under a six-year NEXUS program banishment, a difficult discussion may occur.
Transporting commercial goods
Individuals can also lose their personal NEXUS authorization when the employer in Canada has asked an employee to pick up commercial goods in the United States. The term “commercial goods” is defined in the Accounting for Imported Goods and Payment of Duties Regulations, SOR 2006/152, as amended, as “goods imported into Canada for sale or for any commercial, industrial, occupational, institutional or like uses.”
Goods for resale, samples, promotional materials, business computers, mobile phones, PDAs, et cetera may be considered to meet this definition.
If the employee returns to Canada and attempts to report the commercial goods and the employee contravenes a border law or a rule of the NEXUS program, she may lose her NEXUS authorization. Unless the employee is well-versed in border laws and customs clearance is within the person’s job description, mistakes can be made.
Should employees be asked to pick up commercial goods and risk their NEXUS program membership for work activities? An employer could import the commercial goods using a customs broker and avoid NEXUS problems at the individual employee level. It is foreseeable that if an employee loses his NEXUS privileges, he may make a grievance if the employee’s family is no longer permitted to use the NEXUS-dedicated lanes when engaged in off-work activities.
Cyndee Todgham Cherniak is the Toronto-based founder of LexSage Professional, a boutique international trade and sales tax law firm. For more information, visit www.lexsage.com.
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