From time to time importers may receive from U.S. Customs and Border Protection (“CBP” or “Customs”) a CBP Form 28 (“CF 28”) Request for Information. The issuance of a CF 28 is a standard procedure used by Customs to gain more information about entered merchandise. Totally harmless, right? Not necessarily. As discussed below, it is important for importers, and customs brokers responding on behalf of importers, to take the issuance and response to a CF 28 seriously.

According to CBP, a CF 28 is issued when there is “insufficient information in the entry summary package to determine admissibility, appraised value, or classification of the imported merchandise.”[1] CBP frequently uses CF 28s to request samples of a product, valuation and classification information, or support for a claim of free trade agreement qualification, among other requests. After receiving a CF 28, the importer has 30 days to provide a response to CBP. A CF 28 is not a voluntary request; if the importer does not respond within the given time-frame, Customs may issue a CBP Form 29 (“CF 29”) Notice of Action making a final decision on the question asked and, in cases of violations of Customs law, potentially cutting off the importer’s ability to mitigate penalties through the submission of a prior disclosure.[2] (For further information regarding the submission of a prior disclosure, see our previous article, Should I File a Customs Prior Disclosure?)

In a best-case scenario, after receiving a CF 28, an importer will provide the requested information, and CBP will be satisfied enough to close the matter. However, the issuance of a CF 28 means that Customs has concerns about the entry information and may suspect larger issues with the importer’s practices. Therefore, the importer should closely review the applicable issue (e.g., classification, related party valuation, etc.) and ask relevant questions like: What caused CBP to question the entry information? Was the issue a one-time mistake, or is there a pattern of entering merchandise with similar errors? Was the error unreasonable? The answers to these questions will assist the importer determine whether a prior disclosure should be submitted to the appropriate Center of Excellence and Expertise or the relevant port’s Fines, Penalties, and Forfeitures officer concurrently or shortly before submission of the CF 28 response to the requesting officer.

Sometimes the answers to the above questions will alert the importer to potential customs errors and its response to the CF 28 may increase the likelihood of an investigation or penalty action. For example, suppose ABC Produce Co. has imported boysenberries under HTS code 0811.90.2200 with an 11.2% duty while incorrectly declaring the HTS code for wild blueberries, which is 0811.90.2024 and has a free rate of duty. A CF 28 requesting information regarding ABC Produce Co.’s boysenberries’ classification should cause the company to strongly consider the submission of a prior disclosure concurrently with (or prior to) its CF 28 response. The advantageous misclassification of the berries could be grounds for a 19 U.S.C. § 1592 penalty for acting with negligence, gross negligence, or fraud when importing merchandise. If ABC Produce Co. responds to the CF 28 without protecting itself with a prior disclosure, CBP’s next communication may cut off ABC Produce Co.’s ability to mitigate any subsequent penalties.

Whether or not a prior disclosure will be submitted, the importer should make a thorough response to the CF 28 with input from experts and trade counsel as necessary. An adequate reply to CBP will prevent unnecessary back-and-forth with the agency or unwarranted suspicion of import practices.  Importantly, the importer should be thorough but not overly-expansive. The CF 28 response should answer the questions asked without revealing unrelated information that could cause CBP to expand its inquiry.

Depending on the nature of the CF 28 request, 30 days can be a burdensome deadline to prepare an adequate response. In some cases, like a free trade agreement validation, an acceptable CF 28 response will require a great deal of time and effort to collect all the necessary documents and information and present the response in a manner that is clear to the reviewing Customs personnel. In such cases, importers may need to coordinate with foreign suppliers and/or manufacturers, and translation of foreign language documents may be necessary. An extension may be requested from CBP if the specific circumstances requiring extra time for completion are provided to Customs.

As an additional note, importers whose products could be subject to antidumping or countervailing duty (“AD/CVD”) orders should be especially careful in responding to a CF 28.[3] In these cases, CBP may be considering the importer for an investigation under the Enforce and Protect Act of 2016 (“EAPA”), which provides a mechanism through which CBP must investigate parties accused of evading AD/CVD orders. In fact, in CBP’s first final determination of antidumping duty evasion under EAPA, issued on August 14, 2017, a CF 28 was issued prior to the official commencement of the evasion investigation. (A more detailed description of this final determination can be found in our previous article, Key Takeaways from CBPs First Final Determination of Evasion under EAPA.)

Finally, importers may receive CF 28s in the context of issues that are not so standard as the classification or valuation of an entry. For example, prompted by the passage of the Countering America’s Adversaries through Sanctions Act (“CAATSA”) (P.L. 115-44), CBP is now issuing CF 28s requesting information related to the use of North Korean forced labor in the production of imported merchandise. Under CAATSA, goods “mined, produced, or manufactured wholly or in part by the labor of North Korean nationals or citizens” are presumed to be produced through forced labor and are not entitled to entry unless CBP finds through clear and convincing evidence that the merchandise was not produced through forced labor.[4] Although imports from North Korea are prohibited by U.S. sanctions, North Korean labor is sometimes used to produce goods in other countries (e.g., China and Russia) that may export to the United States.

The North Korean forced labor provision of CAATSA is significant in that it shifts the burden of proof to the importer to demonstrate that North Korean forced labor was not used; however, 19 U.S.C. § 1307 generally prohibits the entry of any goods produced through forced labor. As such, a CF 28 may be issued to importers to ensure reasonable steps have been taken to prevent forced labor from entering their supply chain. These unique CF 28 requests require knowledge of CAATSA and 19 U.S.C. § 1307, and importers should familiarize themselves with the recently updated Forced Labor portion of CBP’s Informed Compliance Publication regarding Reasonable Care.[5]

If you have received a CF 28 Request for Information and require additional guidance in preparing a response or determining whether a prior disclosure would be advisable, feel free to contact us to discuss your options.