United States: CBP's Informed Compliance Letters Notify Importers That An Audit Or Enforcement Action May Follow

U.S. Customs and Border Protection (CBP) recently issued letters to major U.S. importers that encourage the recipients to review their recent trade data and CBP's Informed Compliance Publications (ICPs), and remind them of potential CBP enforcement actions in the case of non-compliance with U.S. customs laws. CBP's Informed Compliance letters have caused some alarm in the importing community, and Akin Gump Strauss Hauer & Feld LLP has confirmed with CBP that receiving such a letter is an indication that CBP is considering an audit.

Background

CBP's letters were issued by its Office of Regulatory Audit, often with the subject line, "Distribution of Informed Compliance Publications and Other Informative Documents." In the letters, CBP:

  • provides a summary of the importer's top imports from the previous calendar year
  • recommends the review of certain listed Informed Compliance Publications (ICPs)
  • encourages importers to review their trade data and reminds importers of their ability to submit disclosures
  • warns importers that they could be subject to penalties and/or seizures in the event that CBP identifies non-compliance with U.S. customs law
  • requests that the importer sign and return a copy of the letter to CBP.

Letters May Indicate That a CBP Audit or Other Enforcement Action Is on Its Way

CBP informed Akin Gump that it is sending the letters to the top 1,000 importer-of-record numbers that CBP has not audited in the past 10 years as CBP works to clear its audit pool of major importers that it has not recently audited. CBP indicated that the letters are meant to remind importers of their legal obligations under U.S. customs law and give them a chance to review their compliance with U.S. customs laws before CBP commences any validation efforts, such as an audit. That said, CBP has indicated that recipients of the letter can expect to be subject to a CBP audit—either a general Focused Assessment (FA) or a Quick Response Audit (QRA) —in the foreseeable future.

CBP also informed Akin Gump that it will determine whether to conduct an FA or a QRA based on its analysis of each importer's risk profiles. If an importer has high-risk profiles across a number of compliance areas, (i.e., tariff classification, value), then CBP will likely conduct an FA. Similarly, CBP will also conduct an FA if an importer has high-risk profiles in Priority Trade Issue areas—such as antidumping and countervailing duties (AD/CVD) or free trade agreement claims—and the underlying compliance issues involve major customs data points (e.g., an importer with high-risk profiles for AD/CVD risk due to misclassification, value and/or country of origin). On the other hand, if the importer's risk is limited to one particular area, such as classification or value, CBP will likely conduct a QRA.

CBP's Letters Include Language Not Supported by Law and Do Not Change Importers' Legal Obligations

CBP's letters contain strong language that warns the importer that it is on notice regarding its legal obligations and that future violations "could result in seizure and forfeiture of imported merchandise and/or the assessment of monetary penalties." However, these letters do not have any material impact on importers' reasonable care and other legal obligations under the customs laws. As the importing community is aware, CBP and importers share responsibility for complying with U.S. customs law. Importers are always required to enter merchandise exercising reasonable care, and failing to do so may constitute a violation of 19 U.S.C. § 1592. Importers exercise reasonable care by reviewing relevant customs laws, CBP rulings and other CBP publications, such as ICPs (which are publicly available on CBP's website) when entering merchandise into the United States. An importer is always subject to potential customs penalties when failing to comply with customs legal requirements, regardless of whether or not they have received a letter from CBP. The fact that CBP is providing copies of certain ICPs to particular importers does not change the importers' legal obligations because the importers are already on notice of those publications before making entry.

Based on the language in the letters, we expect that CBP may be setting the stage for increased penalties, or penalties in circumstances where the agency has not issued them in analogous cases. It is foreseeable that CBP could argue in penalty proceedings that it went beyond its traditional shared responsibility by notifying an importer in writing that the agency had published various documents on the areas covered by the violation (i.e., tariff classification). For example, the agency could potentially argue that, as a result of the notification, any ongoing violations are the result of gross negligence or some higher culpability, since the importer was made aware of CBP's interpretations in the ICPs.

How the Importing Community May Respond to the Letter

While the letters do not impact an importer's legal obligations, they can serve as an indication that the recipients will likely be subject to a CBP audit. As a result, recipients may wish to start preparing for a CBP audit. Specifically, letter recipients may start reviewing their import data to identify any potential compliance risks and consider filing prior disclosures in the event that it identifies violations of 19 U.S.C. § 1592. Importers could also take this time to review their existing customs compliance policies to ensure that they are up to date and reflect the company's current practice. In addition, importers may also review and be familiar with any CBP ICPs applicable to their business. All of CBP's published ICPs are available to view and download here: https://www.cbp.gov/trade/rulings/informed-compliance-publications.

In addition, letter recipients might consider not signing and returning the letter. Importers are basically under no legal obligation to sign and return the letter to CBP, since CBP would arguably have to go through the Agency Information Collection process required by the Paperwork Reduction Act before it can formally require recipients to acknowledge receipt of the ICP letters. Thus, one option—in order to avoid establishing a formal record—might simply be to receive the ICP letter, address the possibility of an audit, take any additional compliance steps (e.g., prior disclosure review), and not sign and return the letter to CBP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.