CBP Issues New Guidance on Use of CBP Forms 28 and 29
U.S. Customs and Border Protection has issued a guidance memorandum to the ports on the appropriate use of CBP Form 28 (Request for Information) and CBP Form 29 (Notice of Action). The guidance states that the Form 28 should not be used as notification of the commencement of a formal investigation, either as a matter of policy or a matter of law. The guidance also states that Form 28 should not be used to verify Powers of Attorney (POAs).
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(In September 2010, a CBP official sent a letter to AAEI in response to its February request that CBP explain how its issuance of CBP Forms 28 and 29 affect the ability of importers to make a valid prior disclosure. At that time, CBP stated that as a matter of law, the Forms 28 and 29 may be considered a "commencement document" for prior disclosure purposes.
CBP added that as a matter of policy, the CBP Form 29 can and will be used as a document commencing a formal investigation and providing information to the importer. However, as a matter of policy, the CBP Form 28 alone should not routinely be considered a "commencement document." The official policy of CBP is to encourage the submission of valid prior disclosures. CBP does not wish to engage in any practice that works to counter this policy. See ITT’s Online Archives or 09/16/10 news, 10091614, for BP summary.)
Highlights of this new guidance includes the following:
Form 28 Should be Used to Get Info, Not as Notification of a Formal Investigation
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. Brochures, descriptive literature, blueprints, samples, proof of payment, affidavits, etc. may be requested.
CBP has advised the field to limit the use of the CBP Form 28 to 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.
CBP Letter, Form 29 are Preferred Mechanisms to Inform of Commencement of Investigation
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 Should Not Use Language That May Dissuade Importers from Filing Prior Disclosures
It is CBP’s goal to act uniformly in providing legal notification to the appropriate party when proposing or taking certain actions. 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. Such language defeats the goal of informed compliance and may dissuade importers from filing valid prior disclosures.
Form 28 Should Not be Used to Request Proof of Properly Executed POA
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. CBP shall request proof of a properly executed valid POA during a broker compliance visit or via an individually drafted letter.
Guidance on Use of Form 29 and Differences in Entered Value
CBP has also advised the field concerning the use of the CBP Form 29. 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.
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.