On May 24, 2011, US Customs and Border Protection (CBP) issued a guidance memorandum to the field on the appropriate use of CBP Form 28 (Request for Information) and CBP Form 29 (Notice of Action). The memo states that CBP Form 28 should not be used as notification of the commencement of a formal investigation. Based on this memo and prior guidance, CBP is announcing the policy that CBP Form 28s will not routinely be used to commence investigations, but that CBP Form 29s can still be used as “commencement documents.”1
Effectively, this means that the option of making a valid prior disclosure should not be thwarted solely because an importer has received a CBP Form 28. However, based on the specific wording contained in a CBP Form 29, CBP might be able to argue that a valid prior disclosure cannot be made because an investigation has been commenced on the matter and the importer has been informed via the CBP Form 29.
As part of the newly issued guidance, CBP has advised the ports of entry to refrain from using the CBP Form 28 as notification that a formal investigation has commenced as a matter of enforcement policy. The May 2011 memo states that the preferred mechanism to inform the importer of the commencement of an investigation is by correspondence on CBP letterhead or the CBP Form 29. This is in contrast to and supersedes statements CBP made in a September 2010 letter that both CBP Form 28s and 29s could be “commencement documents.”
What should an importer do?
- If you receive a CBP Form 28 or 29, you should take the matter seriously and consider whether filing a prior disclosure to mitigate potential penalties would be advisable.
- Further, an importer who is considering a disclosure should carefully review these forms to determine whether the forms contain a statement that they cannot file a prior disclosure. Based on the new guidance issues by CBP, this should not be the case with respect to the CBP Form 28, but still might apply when a CBP Form 29 is issued to an importer.
- It is especially critical that importers maintain good communication practices with their customs brokers to know when important CBP documents, such as CBP Forms 28 and 29, are directed to them. We are aware of several instances where the customs broker received the CBP Form 28 or 29 and did not communicate the contents to the importer or overlooked the form altogether.
- The decision to self-disclose should be considered carefully. Where available, and depending on the situation, it can be a powerful tool to mitigate potential penalties.