Friday, June 03, 2011

Things I Should Have Said

I have a bad habit of assuming that people who visit this site are completely up to date on what is going on administratively. So, I failed to let people know about something fairly important: Customs issued new guidance to the ports on the proper use of the CF 28 (Request for Information) and CF 29 (Notice of Action) and how those documents relate to the commencement of an investigation. I posted about the issue here.

Due to my confirmed belief that there is no copyright in works created by the federal government, I am posting the notice in its entirety. Note, I have no idea why there are numbers throughout.

PASS TO:        Please pass this information to port directors, assistant port directors, import specialists, entry specialists, brokers, and importers.5
CONTACT:     For questions regarding this memorandum, please contact Ms. Laurie Dempsey,   Chief, Entry, Summary, and Drawback at (202) 863-6509,                                                                    
ENT11 OT:TPP:TFA:ESD MB May 24, 2011
MEMORANDUM FOR:   Directors, Field Operations
FROM: Executive Director, Trade Policy and Programs Office of International Trade 
SUBJECT:   CBP Forms 28 and 29 Language 
The purpose of this memorandum is to remind ports of U.S. Customs and Border Protection’s (CBP) policy concerning the appropriate issuance of CBP Form 28, Request for Information and CBP Form 29, Notice of Action.5 5 
The CBP Form 28 is used by CBP when there is insufficient information in the entry summary package to determine admissibility, appraised value, or classification of imported merchandise.5 Brochures, descriptive literature, blueprints, samples, proof of payment, affidavits, etc. may be requested.5
CBP has advised the field to limit the use of the CBP Form 28 for the purposes stated above and not extend its use as notification that a formal investigation has commenced as a matter of enforcement policy, not a matter of law. The preferred mechanism to inform the importer of the commencement of an investigation is by correspondence on CBP letterhead or the CBP Form 29.
CBP has also advised the field that the CBP Form 28 shall not be used to request proof of a properly executed valid power of attorney.5 CBP shall request proof of a properly executed valid power of attorney during a broker compliance visit or via an individually drafted letter. 
CBP has also advised the field concerning the use of the CBP Form 29.5 Generally, as stated in 19 CFR 152.2, an entry which is entered at a rate or value of merchandise which is too low, or the import quantity exceeds that of the entered quantity, and the estimated aggregate increase in duties exceeds $15, CBP will notify the importer of the specific nature of the difference.5 If the rate advance is a proposed action, the importer is afforded 20 days, from the date of CBP mailing the CBP Form 29, to furnish CBP with specific reasons why the rate advance should not be issued. 
It is CBP’s goal to act uniformly in providing legal notification to the appropriate party when proposing or taking certain actions.5 CBP should avoid using language on these forms such as “failure to provide information could lead to penalties under 19 USC 1592…” or “this office is investigating the classification of…” if in fact an investigation is not already in process.5 Such language defeats the goal of informed compliance and may dissuade importers from filing valid prior disclosures. 
For questions regarding this memorandum, please contact Ms. Laurie Dempsey, Chief, Entry, Summary, and Drawback at (202) 863-6509,
Please pass this information to port directors, assistant port directors, import specialists, entry specialists, brokers, and importers.5
Signed by Therese Randazzo for:Brenda B. Smith cc:5 Director, Trade Operations Division, Office of Field Operations

This is pretty important in that is should help the trade avoid fights over whether a prior disclosure is still appropriate. Apparently, Customs is planning to engage the trade and the ports in some training related to the issue. If that happens, I'll try to remember to pass it on.

1 comment:

Anonymous said...

Larry -

While the memo is pretty clear in stating that a CF 28 is NOT to be used as a medium for informing importers of the initiation of an investigation, it gets real fuzzy concerning the use of the CF 29. It STILL leaves the importer in Limbo.

From my active days at Customs I know both Brenda and Therese, and I would have thought that either or both of them would have demanded more clarity in the notice.

As Alice once said "...curiouser and curiouser..."

Your faithful Customs retiree