Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



CBP Unilaterally Changes the Rules Again?

On June 8, 2010, Asst. Comm. Baldwin again confirmed that it is CBP’s long-standing policy to encourage prior disclosures. The reason these comments are notable is that a number of Ports have attempted to use the CBP Form 28 (Request for Information) as a device to claim an importer has been put on notice of an investigation, which then cuts off the right to file a prior disclosure and clear up past errors without being penalized. At this time, Headquarters is working with the Ports to make sure CBP staff understand what documents are needed to begin a formal investigation. If you receive a CBP Form 28 and it states words to the effect that you are under investigation for ____, e.g., undervaluation, misclassification, etc., then you have most likely been properly put on notice that an investigation has been commenced. However, the sort of CBP Forms 28 with which we are familiar say no such thing. They appear to be just a routine request for documents or other information from the importer.

On June 10, 2010, Charles Ressin (Chief, Penalties Branch, Office of Regulations and Rulings, CBP Headquarters) spoke at the Customs Lawyers Association meeting. He was asked about Mr. Baldwin's comments and responded by explaining that guidelines are being drafted to make sure the Ports understand that the routine issuance of a CBP Form 28 alone does not preclude the importer from filing a prior disclosure, unless the express "under investigation" language is included in the notice. At the same time, it appears that this proposed guidance may conclude that the issuance of a CBP Form 29 could result in disclosure rights being cut off. Why should the rules be any different just because a different form is used?

As CBP is developing this policy, it begs the question of what will happen to those cases under review where CBP Forms 28 and 29 have already been issued, the Port has taken the position prior disclosure rights are cut off, the importer has objected, and the matter is under review at CBP Headquarters. The significance of a CBP Form 29 in terms of prior disclosure rights also remains under consideration. At a time when CBP keeps saying that trade facilitation is a critical mission, it makes you wonder what these folks are really thinking.

 

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