When Does a Request for Information Become an Investigation?

Abstract

According to Charles Ressin, Chief of the Penalties Branch within the Office of Regulations and Rulings at U.S. Customs and Border Protection (CBP), the question of when a request for information becomes an investigation will be answered in guidelines being drafted to assist Customs ports of entry in understanding the relationship between an importer’s right to make a prior disclosure and the CBP Form 28 (Request for Information). Mr. Ressin addressed this issue during his June 10, 2010 remarks at the Customs Lawyers Association meeting in Washington, D.C. Importers can only hope that the answer is as Mr. Ressin suggested—that unless the CBP Form 28 expressly states that the importer is “under investigation,” the importer’s ability to make a prior disclosure is not foreclosed when it receives a CBP Form 28. What remains less certain, however, is the impact on the prior disclosure right when CBP issues a CBP Form 29 (Notice of Action). This article addresses the legal underpinnings of an importer’s right to make a prior disclosure and the intersection of that right with CBP’s issuance of Forms 28 and 29. The winds may be changing in how CBP routinely uses these documents.