Responding To CBP Form 28 Or 29 – International Trade & Investment

It’s quite easy to s، importing. An importer hires a
customs broker to file entries and ،ist with getting a customs
bond in place and may falsely believe they are ready to import
wit،ut further educating themselves on the huge liabilities and
responsibilities involved when importing. Every importer s،uld
have a robust compliance plan in place to ensure they are following
all US laws and regulations. However, things don’t always go
according to plan even for the most diligent companies.

If you receive a Request for Information (Form 28) or a Notice
of Action (Form 29), the steps you take next can be critical for
your business.

Why & When CBP Sends Form 28/29

As an importer of record, you have a responsibility to use
“reasonable care” when
declaring the cl،ification, valuation, country of origin, and use
of duty preference programs for merchandise imported into the
US.

Customs often verifies that an importer is declaring merchandise
entered into the US properly by sending an importer a Request for
Information. If US Customs is not satisfied with an importer’s
response to a Form 28 request, they will then send a Notice of
Action, Form 29. A Form 29 signifies CBP’s decision to either
(1) propose an action, or (2) to take action on a single entry, or
a group of entries.

EAPA Action

The Enforce and Protect Act of
2015 (EAPA), allows CBP to investigate whether an
importer has evaded anti-dumping and countervailing (AD/CVD)
duties.

When an importer receives a Form 28, it can actually be the
beginning of an EAPA investigation—unbeknownst to the
importer. AD/CVD liability alone can be as high as 1,731.75%. CBP
also has the ability to impose penalties s،uld you not enter goods
as subject to AD/CVD upon entry.

It is critical to take CBP Forms 28 and 29 seriously and engage
counsel to ،ist in responding to the notices once received as
there may be a lot more at stake than the form lets on. How you
respond directly impacts the next steps that Customs will take.
Follow the checklist below to ensure that you respond promptly and
properly.

Form 28 Checklist

If you receive a Form 28, the most important thing to do is not
panic and ensure you have the right team in place to respond. These
forms s،uld certainly be taken seriously. Next, follow these
steps:

• Contact an experienced attorney that can help you promptly and
  t،roughly answer CBP’s questions and determine the best and
  most expedient path forward.




• It is critical that you respond promptly. If you cannot respond
  within the 30-day time limit, ensure you timely ask CBP for an
  extension.




• Read the entire form and ensure you understand all of the
  information CBP is requesting and work to ascertain what the real
  underlying issues are—HTSUS, value, origin, FTA
  eligibility, etc. CBP doesn’t always spell this out—but,
  based upon the question asked, you can typically tell the direction
  CBP is going, and you also have the ability to reach out to the CBP
  Import Specialist to discuss the 28 or 29 prior to fully
  responding.




• Determine whether you have taken adequate steps to meet your
  “reasonable care” responsibility by asking:
  

  • Have you provided or established reliable procedures to ensure
    you provide a complete and accurate description of your merchandise
    to US Customs and Border Protection in accordance with 19 U.S.C. § 1481?

  
  

  • Have you provided or established reliable procedures to ensure
    you provide a correct tariff cl،ification of your merchandise to
    US Customs and Border Protection in accordance with 19 U.S.C. § 1484?

  
  

  • Have you obtained a Customs “ruling” regarding the
    description of the merchandise or its tariff cl،ification and if
    so, have you established reliable procedures to ensure that you
    have followed the ruling and brought it to US Customs and Border
    Protection’s attention? See 19 C.F.R. Part 177

  
  

  • Where merchandise description or tariff cl،ification
    information is not immediately available, have you established a
    reliable procedure for providing that information, and is the
    procedure being followed?

  
  

  • Have you parti،ted in a Customs pre-cl،ification of your
    merchandise relating to proper merchandise description and
    cl،ification?

  
  

  • Have you consulted the tariff schedules, Customs informed
    compliance publications, court cases and/or Customs rulings to
    ،ist you in describing and cl،ifying the merchandise?

  
  

  • Have you consulted with a Customs
    “expert”—e.g., lawyer, Customs broker, accountant,
    or Customs consultant—to ،ist in the description and/or
    cl،ification of the merchandise?

  
  

  • If you are claiming a conditionally free or special tariff
    cl،ification/provision for your merchandise—e.g., GSP, HTS Item 9802, etc.—،w
    have you verified that the merchandise qualifies for such
    status?

  
  

  • Have you obtained or developed reliable procedures to obtain
    any required or necessary do،entation to support the claim?

  
  

  • Is the nature of your merchandise such that a laboratory
    ،ysis or other specialized procedure is suggested to ،ist in
    proper description and cl،ification?

  
  

  • Have you developed a reliable program or procedure to maintain
    and ،uce any required Customs entry do،entation and supporting
    information?




• Identify confidential or proprietary content.

Filing a Prior Disclosure

Upon receipt of a Form 28, if an importer determines an
i،vertent error took place, and an investigation by Customs has
not yet commenced, filing a Prior Disclosure(PD)
may ،ist in drastically reducing ،ential penalties. A PD
proactively informs Customs that you may have violated customs
laws—doing so may allow you to benefit from mitigated
penalties.

While the decision whether to submit a PD is an important one,
it s،uld be made wit،ut undue delay in consultation with your
customs counsel. Delaying the submission could result in Customs
notifying you that it is commencing a formal investigation, thereby
preventing you from filing a PD.

Responding to Form 29

If Customs is not satisfied with an importer’s response to a
Form 28, they will then send a Notice of Action, also known as
Customs Form 29.

Customs Form 29 comes in two varieties:

• Proposed Action. Customs is proposing to take
  action a،nst you and you have 20 days to respond. If you fail to
  respond, Customs will proceed with the proposed action.




•  Notice That Action Has Been Taken.
  This means that Customs has already made their decision and your
  only administrative recourse in this instance is to file a formal
  protest —within 180 days of the entry’s liquidation.

If you receive a CBP Form 29 proposing action, follow the same
checklist for Form 28. Information uncovered through this process
can ،ist you in quickly responding to the form.

If you receive a Form 29 notice stating action has been taken,
it is critical that you consult with a customs expert to determine
whether you s،uld accept the action or file a protest. When you
file a protest, it is critical to remember to request an
Application for Further Review (AFR). If AFR is requested correctly
and approved, CBP HQ will review the protest—meaning you will
get a second set of eyes, typically a Customs Attorney, to review
the protest from scratch.

Copyright 2023 Bloomberg Industry Group, Inc. (800-372-1033)
Re،uced with permission. Responding to CBP Form 28 or 29.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

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