CBP “Clarifies” Impact of Forms 28/29 on Prior Disclosures
In response to a trade association's request, U.S. Customs and Border Protection (CBP) has attempted to clarify whether a CBP Form 28 (Request for Information) and CBP Form 29 (Notice of Action) affect an importer's ability to make a valid prior disclosure.
In the response, CBP referred to T.D. 98-49 (63 Fed. Reg. 29126, May 28, 1998) in which it disagreed with a commenter that CBP Forms 28 and 29 could not be considered written evidence of commencement of a formal investigation. In T.D. 98-49, CBP explained that it would consider "the substance of the information contained" in the 28/29s and that it would treat each matter on a case-by-case basis, examining the specific facts and circumstances of each case.
CBP's response to request made clear that as "a matter of law" CBP Forms 28/29 "may be considered a 'commencement document' for prior disclosure purposes." It went on to state that, as a matter of policy, Form 29 will be used as evidence that a formal investigation has been commenced and giving notice to the importer of the investigation. CBP further stated that, as a matter of policy, Form 28 "alone should not be routinely considered a 'commencement document'" under the prior disclosure regulations. CBP also stated it would be issuing clarifying guidelines setting out the circumstances under which a Form 28 may be used as a "commencement document."
In its response, CBP clarified that importers should never treat a Form 28 lightly. Instead, as this firm has always advised, importers receiving a CBP Form 28 should stop, analyze, investigate, and thoroughly consider what information is being requested and assess the importer's potential entire exposure before responding. In this way, the importer and its counsel can determine whether a valid prior disclosure can be and should be made to CBP.
In light of CBP's response to the request, importers should be even more cautious when receiving CBP Forms 28/29 and more deliberative in the response and decision of whether to submit a prior disclosure and consult with legal counsel early.