Importing into the United States: A Guide for Commercial Importers

to international traffic and trade. Further, by providing procedural guidance to the import community, CBP enhances and increases compliance with domestic and international customs laws and regulations. CBP thus helps importers assure that their shipments are free from terrorist or other malicious interference, tampering, or corruption of containers or commodities. Today, CBP is the nation’s premiere border enforcement agency, and it accomplishes this new mandate in part by executing the responsibilities for which it has always been known: controlling, regulating, and facilitating the movement of carriers, people, and commodities between the United States and other nations; protecting the American consumer and the environment against the introduction of hazardous, toxic or noxious products into the United States; protecting domestic industry and labor against unfair foreign competition; and detecting, interdicting, and investigating smuggling and other illegal practices aimed at illegally entering narcotics, drugs, contraband or other prohibited articles into the United States. CBP is also responsible for detecting, interdicting, and investigating fraudulent activities intended to avoid the payment of duties, taxes and fees, or activities meant to evade the legal requirements of international traffic and trade; and for detecting, interdicting, and investigating illegal international trafficking in arms, munitions, currency, and acts of terrorism at U.S. ports of entry. Organization Field Operations Offices CBP operates through a field-office structure that consists of 20 Field Operations 6 offices around the United States. These field offices provide managerial oversight and operational assistance to 324 ports of entry around the nation and 14 preclearance offices in Canada and the Caribbean. Established according to geographic region, Field Operations offices are the means by which CBP Headquarters distributes key policies and procedures to CBP officers and importing staff around the country. Each field office supervises a certain number of service or area ports, which are larger, full-service ports with staff subdivisions designated to handle commercial transactions, as well as smaller ports of entry that handle less traffic. Field Operations offices provide guidance to the ports under their geographic jurisdiction to ensure the dissemination and implementation of CBP guidelines, policies and procedures. Import transactions are conducted at service ports, area ports, and ports of entry, so these locations will be of primary interest to the trade community. CBP is also responsible for administering the customs laws of the United States Virgin Islands. Ports Of Entry Ports of entry conduct the daily, port-specific operations like clearing cargo, collecting duties and other monies associated with imports, and processing passengers arriving from abroad. Port personnel are the face at the border for nearly all cargo carriers and people entering the United States. Ports of entry are the level at which CBP enforces import and export laws and regulations and implements immigration policies and programs. Port officers also perform agricultural inspections to protect the USA from potential carriers of animal and plant pests or diseases that could cause serious damage to America's crops, livestock, pets, and the environment. For a detailed listing of ports of entry, please refer to: http://www.cbp.gov/xp/cgov/toolbox/ports/. 7 U.S. CBP OFFICERS IN FOREIGN COUNTRIES • Bold indicates the presence of a CBP Attaché, Representative, International Operations Specialist and/or Technical Representative by 1 May, 2006. • * Indicates that a CBP Attaché, Representative and/or International Operations Specialist is currently waiting to deploy. Brussels, Belgium CBP Attaché U.S. Mission to the European Union 27 Blvd. Du Regent 1000 Brussels 011-32-2-508-2770 Ottawa, Canada CBP Attaché Embassy of the United States P.O. Box 866 station B Ottawa, Ontario K1P 5T1 Tel: 613-688-5496 *Hong Kong CBP Representative 11/F., St. John’s Building 33 Garden Road, Central Hong Kong Tel: 011-852-2230-5100 Rome, Italy CBP Representative American Embassy Via Veneto 119/A 00187 Rome Tel: 011-39-06-4674-2475 Tokyo, Japan CBP Representative American Embassy 10-5, Akasaka 1-Chome Minato-ku Tokyo 107-8420 Japan Tel: 011-813-3224-5433 8 Mexico City, Mexico CBP Attaché American Embassy Paseo de la Reforma 305 Colonia Cuauhtemoc Mexico City, D.F., Mexico C.P. 06500 Tel: 011-52-55-5080-2000 New Delhi, India CBP Representative 24 Kasturba Gandhi Marg. New Delhi 110021 India Tel: 011-91-11-2331-0080 * Panama City, Panama CBP Representative American Embassy Calle 38 & Avenida Balboa Panama City, Panama Tel: 011-507-225-7562 Singapore CBP Representative American Embassy 27 Napier Road Singapore 258508 Tel: 011-65-476-9020 Pretoria, South Africa ICE Attaché American Embassy 877 Pertorius Arcadia, Pretoria 001 Tel: 011-27-12-342-8062 *Bangkok, Thailand CBP Representative Sindhorn Building 130-1332 Wireless Road Tower 2, 12th Floor Bangkok 10330 Tel: 011-66-2-205-5015 9 London, United Kingdom CBP Representative American Embassy 24/31 Grosvenor Square London, W1A 1AE Tel: 011-44-207-894-0070 10 SUGGESTIONS TO THE EXPORTER FOR FASTER CLEARANCE OF YOUR MERCHANDISE: 1. Include all information required on your customs invoices. 2. Prepare your invoices carefully. Type them clearly. Allow sufficient space between lines. Keep the data within each column. 3. Make sure that your invoices contain the information that would be shown on a well-prepared packing list. 4. Mark and number each package so it can be identified with the corresponding marks and numbers appearing on your invoice. 5. Show a detailed description on your invoice of each item of merchandise contained in each individual package. 6. Mark your goods legibly and conspicuously with the country of origin unless they are specifically exempted from country-of-origin marking requirements, and with such other marking as is required by the marking laws of the United States. Exemptions and general marking requirements are detailed in Chapters 29 and 30. 7. Comply with the provisions of any special laws of the United States that may apply to your goods, such as laws relating to food, drugs, cosmetics, alcoholic beverages, radioactive materials, and others. (See Chapters 33, 34 and 35.) 8. Observe the instructions closely with respect to invoicing, packaging, marking, labeling, etc., sent to you by your customer in the United States. He or she has probably made a careful check of the requirements that will have to be met when your merchandise arrives. 9. Work with CBP to develop packing standards for your commodities. 10. Establish sound security procedures at your facility and while transporting your goods for shipment. Do not give narcotics smugglers the opportunity to introduce narcotics into your shipment. 11. Consider shipping on a carrier participating in the Automated Manifest System (AMS). 12. If you use a licensed customs broker for your transaction, consider using a firm that participates in the Automated Broker Interface (ABI). 11 ENTRY OF GOODS 2. Entry Process When a shipment reaches the United States, the importer of record (i.e., the owner, purchaser, or licensed customs broker designated by the owner, purchaser, or consignee) will file entry documents for the goods with the port director at the goods' port of entry. Imported goods are not legally entered until after the shipment has arrived within the port of entry, delivery of the merchandise has been authorized by CBP, and estimated duties have been paid. It is the importer of record's responsibility to arrange for examination and release of the goods. Pursuant to 19 U.S.C. 1484, the importer of record must use reasonable care in making entry. NOTE: In addition to contacting CBP, importers should contact other agencies when questions arise about particular commodities. For example, questions about products regulated by the Food and Drug Administration should be forwarded to the nearest FDA district office (check local phone book under U.S. government listings) or to the Import Division, FDA Headquarters, 301.443.6553. The same is true for alcohol, tobacco, firearms, wildlife products (furs, skins, shells), motor vehicles, and other products and merchandise regulated by the other federal agencies for which CBP enforces entry laws. Appropriate agencies are identified on page 197. Addresses and phone numbers for these agencies are listed in the appendix. Goods may be entered for consumption, entered for warehouse at the port of arrival, or they may be transported in-bond to another port of entry and entered there under the same conditions as at the port of arrival. Arrangements for transporting the merchandise in-bond to an in-land port may be made by the consignee or by a customs broker or by any other person with an interest in the goods for that purpose. Unless your merchandise arrives directly at the port where you wish to enter it, you may be charged additional fees by the carrier for transportation to that port unless other arrangements have been made. Under some circumstances, your goods may be released through your local port of entry, even if they arrive at a different U.S. port from a foreign country. Prior to the goods' arrival, arrangements for entry must be made at the CBP port of entry where you intend to file your duties and documentation. Goods to be placed in a foreign trade zone are not entered at the customhouse. See Chapter 41 for more information on foreign trade zones. Evidence Of Right To Make Entry Goods may only be entered by their owner, purchaser, or a licensed customs broker. When the goods are consigned “to order,” the bill of lading, properly endorsed by 12 the consignor, may serve as evidence of the right to make entry. An air waybill may be used for merchandise arriving by air. In most instances, entry is made by a person or firm certified by the carrier bringing the goods to the port of entry. This entity (i.e., the person or firm certified) is considered the “owner” of the goods for customs purposes. The document issued by the carrier for this purpose is known as a “Carrier’s Certificate.” An example of this certificate is shown in the Appendix. In certain circumstances, entry may be made by means of a duplicate bill of lading or a shipping receipt. When the goods are not imported by a common carrier, possession of the goods by the importer at the time of arrival shall be deemed sufficient evidence of the right to make entry. Entry For Consumption Entering merchandise is a two-part process consisting of: (1) filing the documents necessary to determine whether merchandise may be released from CBP custody, and (2) filing the documents that contain information for duty assessment and statistical purposes. Both of these processes can be accomplished electronically via the Automated Broker Interface (ABI) program of the Automated Commercial System (ACS). Entry Documents Within 15 calendar days of the date that a shipment arrives at a U.S. port of entry, entry documents must be filed at a location specified by the port director. These documents are: • Entry Manifest (CBP Form 7533) or Application and Special Permit for Immediate Delivery (CBP Form 3461) or other form of merchandise release required by the port director, • Evidence of right to make entry, • Commercial invoice or a pro forma invoice when the commercial invoice cannot be produced, • Packing lists, if appropriate, • Other documents necessary to determine merchandise admissibility. If the goods are to be released from CBP custody at the time of entry, an entry summary for consumption must be filed and estimated duties deposited at the port of entry within 10 working days of the goods' entry. Surety The entry must be accompanied by evidence that a bond has been posted with CBP to cover any potential duties, taxes, and charges that may accrue. Bonds may be secured through a resident U.S. surety company, but may be posted in the form of United 13 States currency or certain United States government obligations. In the event that a customs broker is employed for the purpose of making entry, the broker may permit the use of his bond to provide the required coverage. Entry Summary Documentation Following presentation of the entry, the shipment may be examined, or examination may be waived. The shipment is then released if no legal or regulatory violations have occurred. Entry summary documentation is filed and estimated duties are deposited within 10 working days of the entry of the merchandise at a designated customhouse. Entry summary documentation consists of: • Return of the entry package to the importer, broker, or his authorized agent after merchandise is permitted release, • Entry summary (CBP Form 7501), • Other invoices and documents necessary to assess duties, collect statistics, or determine that all import requirements have been satisfied. This paper documentation can be reduced or eliminated by using features of the ABI. Immediate Delivery An alternate procedure that provides for immediate release of a shipment may be used in some cases by applying for a special permit for immediate delivery on CBP Form 3461 prior to arrival of the merchandise. Carriers participating in the Automated Manifest System can receive conditional release authorizations after leaving the foreign country and up to five days before landing in the United States. If the application is approved, the shipment will be released expeditiously after it arrives. An entry summary must then be filed in proper form, either on paper or electronically, and estimated duties deposited within 10 working days of release. Immediate-delivery release using Form 3461 is limited to the following types of merchandise: • Merchandise arriving from Canada or Mexico, if the port director approves it and an appropriate bond is on file, • Fresh fruits and vegetables for human consumption arriving from Canada or Mexico and removed from the area immediately contiguous to the border and placed within the importer’s premises within the port of importation, • Shipments consigned to or for the account of any agency or officer of the U.S. government, • Articles for a trade fair, • Tariff-rate quota merchandise and, under certain circumstances, merchandise subject to an absolute quota. Absolute-quota items require a formal entry at all times, • In very limited circumstances, merchandise released from warehouse followed within 10 working days by a warehouse withdrawal for 14 consumption, • Merchandise specifically authorized by CBP Headquarters to be entitled to release for immediate delivery. Entry For Warehouse If one wishes to postpone release of the goods, they may be placed in a CBP bonded warehouse under a warehouse entry. The goods may remain in the bonded warehouse up to five years from the date of importation. At any time during that period, warehoused goods may be re-exported without paying duty, or they may be withdrawn for consumption upon paying duty at the duty rate in effect on the date of withdrawal. If the goods are destroyed under CBP supervision, no duty is payable. While the goods are in the bonded warehouse, they may, under CBP supervision, be manipulated by cleaning, sorting, repacking, or otherwise changing their condition by processes that do not amount to manufacturing. After manipulation, and within the warehousing period, the goods may be exported without the payment of duty, or they may be withdrawn for consumption upon payment of duty at the rate applicable to the goods in their manipulated condition at the time of withdrawal. Perishable goods, explosive substances, or prohibited importations may not be placed in a bonded warehouse. Certain restricted articles, though not allowed release from custody, may be warehoused. Information regarding bonded manufacturing warehouses is contained in section 311 of the Tariff Act (19 U.S.C. 1311). Unentered Goods If no entry has been filed for the goods at the port of entry, or at the port of destination for in-bond shipments, within 15 calendar days after their arrival, the goods may be placed in a general-order warehouse at the importer’s risk and expense. If the goods are not entered within six months from the date of importation, they can be sold at public auction or destroyed. Perishable goods, however, and goods subject to depreciation and explosive substances may be sold sooner. Storage charges, expenses of sales, internal revenue or other taxes, duties, fees, and amounts for the satisfaction of liens must be taken out of the money obtained from the sale of the unentered goods. Claims for the surplus proceeds of sale may be filed with the port director at whose instruction the merchandise was sent to sale. Any claim for such proceeds must be filed within 10 days of sale and supported with an original bill of lading. A photostatic copy or certified copy of the bill of lading may be used if only part of a shipment is involved in the sale. Carriers, not port directors, are required to notify a bonded warehouse of unentered merchandise. Once notified, the bonded warehouse operator/manager shall arrange for the unentered merchandise to be transported to his or her premises for storage at the consignee’s risk and expense. If the goods are subject to internal revenue taxes, but will not bring enough to pay the taxes if sold at public auction, 15 they are subject to destruction. Mail Entries Importers have found that in some cases it is to their advantage to use the national postal service—that is, a country's mail system, rather than courier services—to import merchandise into the United States. Some benefits to be gained are: • Ease in clearing shipments through CBP. The duties on parcels valued at $2,000 or less are collected by the letter carrier who delivers the parcel to the addressee (see note on page 16), • Savings on shipping charges: smaller, low-valued packages can often be sent less expensively through the mails, • No formal entry required on duty-free merchandise not exceeding $2,000 in value, • No need to clear shipments personally if under $2,000 in value. Joint CBP and postal regulations provide that all parcel post packages must have a CBP declaration securely attached to the outer wrapping giving an accurate description of the contents and their value. This declaration can be obtained at post offices worldwide. Commercial shipments must also be accompanied by a commercial invoice enclosed in the parcel bearing the declaration. Each mail parcel containing an invoice or statement of value should be marked on the outer wrapper, on the address side, “Invoice enclosed.” If the invoice or statement cannot be conveniently enclosed within the sealed parcel, it may be securely attached to the parcel. Failure to comply with any of these requirements will delay clearance of the shipment through CBP. Packages other than parcel post—for example, letter-class mail, commercial papers, printed matter, or samples of merchandise—must bear on the address side a label, Form C1, provided by the Universal Post Union, or the endorsement “May be opened for customs purposes before delivery,” or similar words definitely waiving the privacy of the seal and indicating that CBP officers may open the parcel without recourse to the addressee. Parcels not labeled or endorsed in this manner and found to contain prohibited merchandise, or containing merchandise that is subject to duty or tax, are subject to forfeiture. A CBP officer prepares the CBP entry (a form) for mail importations not exceeding $2,000 in value, and the letter carrier at the destination delivers the parcel to the addressee upon payment of duty. If the value of a mail importation exceeds $2,000, the addressee is notified to prepare and file a formal CBP entry (also called a 16 consumption entry) for it at the CBP port nearest him. A commercial invoice is required with the entry. A CBP processing fee of $5.00 will be assessed on each item of dutiable mail for which a CBP officer prepares documentation. The postal carrier will collect this nominal fee on all dutiable or taxable mail along with the duty owed. There is also a postal fee (in addition to prepaid postage) authorized by international postal conventions and agreements as partial reimbursement to the Postal Service for its extra work in clearing packages through CBP and delivering them. NOTE: The following general exceptions apply to the $2,000 limit: • Articles classified in Subchapters III and IV, Chapter 99, Harmonized Tariff Schedule, • Billfolds and other flat goods, • Feathers and feather products, • Flowers and foliage, artificial or preserved, • Footwear, • Fur, articles of, • Gloves, • Handbags, • Headwear and hat braids, • Leather, articles of, • Luggage, • Millinery ornaments, • Pillows and cushions, • Plastics, miscellaneous articles of, • Rawhides and skins, • Rubber, miscellaneous articles of, • Textile fibers and products, • Toys, games, and sports equipment, and • Trimmings. The limit for these articles is $250, except for textiles (fibers and products). Virtually all commercial shipments of textiles require formal entry, regardless of value. Unaccompanied shipments of made-to-measure suits from Hong Kong, a category that includes single suits for personal consumption, also require a formal entry regardless of the suit’s value. Transportation Of Merchandise In Bond Not all merchandise imported into the United States and intended for domestic commerce is entered at the port where it arrives. The importer may prefer to enter the goods at a different location in the United States, in which case the merchandise will 17 have to be further transported to that location. In order to protect United States revenue in these cases, the merchandise must travel in a bonded status from the port of arrival to the intended port of entry. This process is referred to as traveling under Immediate Transportation procedures and is accomplished by the execution of CBP Form 7512 (Transportation Entry and Manifest of Goods Subject to CBP Inspection and Permit). The merchandise is then placed with a carrier who accepts it under its bond for transportation to the intended destination, where the normal merchandise entry process will occur. 3. Right To Make Entry Entry By Importer Merchandise arriving in the United States by commercial carrier must be entered by the owner, purchaser, his or her authorized regular employee, or by the licensed customs broker designated by the owner, purchaser, or consignee. U.S. CBP officers and employees are not authorized to act as agents for importers or forwarders of imported merchandise, although they may give all reasonable advice and assistance to inexperienced importers. Customs brokers are the only persons who are authorized by the tariff laws of the United States to act as agents for importers in the transaction of their customs business. Customs brokers are private individuals or firms licensed by CBP to prepare and file the necessary customs entries, arrange for the payment of duties found due, take steps to effect the release of the goods in CBP custody, and otherwise represent their principals in customs matters. The fees charged for these services may vary according to the customs broker and the extent of services performed. Every entry must be supported by one of the forms of evidence of the right to make entry outlined in this chapter. When a customs broker makes entry, a CBP power of attorney is made in the name of the customs broker. This power of attorney is given by the person or firm for whom the customs broker is acting as agent. Ordinarily, the authority of an employee to make entry for his or her employer is established most satisfactorily by a CBP power of attorney. Entries Made By Others Entry of goods may be made by a nonresident individual or partnership, or by a foreign corporation through a U.S. agent or representative of the exporter, a member of the partnership, or an officer of the corporation. The surety on any CBP bond required from a nonresident individual or organization must be incorporated in the United States. In addition, a foreign corporation in whose name merchandise is entered must have a resident agent in the state where the port of entry is located who is authorized to accept service of process on the foreign corporation’s behalf. 18 A licensed customs broker named in a CBP power of attorney may make entry on behalf of the exporter or his representative. The owner’s declaration made by a nonresident individual or organization which the customs broker may request must be supported by a surety bond providing for the payment of increased or additional duties found due. Liability for duties is discussed in Chapter 13. An owner’s declaration executed in a foreign country is acceptable, but it must be executed before a notary public and bear the notary’s seal. Notaries public will be found in all American embassies around the world and in most of the larger consulates. Power Of Attorney A nonresident individual, partnership, or foreign corporation may issue a power of attorney to a regular employee, customs broker, partner, or corporation officer to act in the United States for the nonresident employer. Any person named in a power of attorney must be a resident of the United States who has been authorized to accept service of process on behalf of the person or organization issuing the power of attorney. The power of attorney to accept service of process becomes irrevocable with respect to customs transactions duly undertaken. Either the applicable CBP form (see Appendix) or a document using the same language as the form is acceptable. References to acts that the issuer has not authorized the agent to perform may be deleted from the form or omitted from the document. A power of attorney from a foreign corporation must be supported by the following documents or their equivalent when foreign law or practice differs from that in the United States: • A certificate from the proper public officer of the country showing the legal existence of the corporation, unless the fact of incorporation is so generally known as to be a matter of common knowledge. • A copy of that part of the charter or articles of incorporation which shows the scope of the corporation’s business and its governing body. • A copy of the document or part thereof by which the person signing the power of attorney derives his authority, such as a provision of the charter or articles of incorporation, a copy of the resolution, minutes of the board of directors’ meeting, or other document by which the governing body conferred this authority. In this case, a copy is required of the bylaws or other document giving the governing board the authority to designate others to appoint agents or attorney. A nonresident individual or partnership or a foreign corporation may issue a power of attorney to authorize the persons or firms named in the power of attorney to issue like powers of attorney to other qualified residents of the United States and to empower the residents to whom such powers of attorney are issued to accept service of process on behalf of the nonresident individual or organizations. A power of attorney issued by a partnership must be limited to a period not to 19 exceed two years from the date of execution and shall state the names of all members of the partnership. One member of a partnership may execute a power of attorney for the transaction of customs business of the partnership. When a new firm is formed by a change of membership, the prior firm’s power of attorney is no longer effective for any customs purpose. The new firm will be required to issue a new power of attorney for the transaction of its customs business. All other powers of attorney may be granted for an unlimited period. CBP Form 5291, or a document using the same language as the form, is also used to empower an agent other than an attorney-at-law or customs broker to file protests on behalf of an importer under section 514 of the Tariff Act of 1930 as amended. (See 19 CFR 141.32.) Foreign corporations may comply with CBP regulations by executing a power of attorney on the corporation’s letterhead. A form of power of attorney used for this purpose is given below. A nonresident individual or partner may use this same form. The X Corporation, ______________________________________________________ (Address, city, and country) organized under the laws of _______________________________ hereby authorizes ______________________________________________________________ (Name or names of employee or officer in United States) ______________________________________________________________ (and address or addresses) to perform on behalf of the said corporation any and all acts specified in CBP Form 5291, Power of Attorney; to accept service of process in the United States on behalf of the X Corporation; to issue powers of attorney on CBP Form 5291 authorizing a qualified resident or residents of the United States to perform on behalf of the X Corporation all acts specified in CBP Form 5291; and to empower such resident or residents to accept service of process in the United States on behalf of the said X Corporation. Because the laws regarding incorporation, notation, and authentication of documents vary from country to country, the agent to be named in the power of attorney should consult the port director of CBP at the port of entry where proof of the document’s existence may be required as to the proper form to be used and the formalities to be met. 4. Examination Of Goods And Entry Documents 20 Examination of goods and documents is necessary to determine, among other things: • The value of the goods for customs purposes and their dutiable status, • Whether the goods must be marked with their country of origin or require special marking or labeling. If so, whether they are marked in the manner required, • Whether the shipment contains prohibited articles, • Whether the goods are correctly invoiced, • Whether the goods are in excess of the invoiced quantities or a shortage exists, • Whether the shipment contains illegal narcotics. Prior to the goods’ release, the port director will designate representative quantities for examination by CBP officers under conditions that will safeguard the goods. Some kinds of goods must be examined to determine whether they meet special requirements of the law. For example, food and beverages unfit for human consumption would not meet the requirements of the Food and Drug Administration. One of the primary methods of smuggling narcotics into the United States is in cargo shipments. Drug smugglers will place narcotics inside a legitimate cargo shipment or container to be retrieved upon arrival in the United States. Because smugglers use any means possible to hide narcotics, all aspects of the shipment are examined, including container, pallets, boxes, and product. Only through intensive inspection can narcotics be discovered. Textiles and textile products are considered trade-sensitive and as such may be subject to a higher percentage of examinations than other commodities. CBP officers will ascertain the quantity of goods imported, making allowances for shortages under specified conditions and assessing duty on any excess. The invoice may state the quantities in the weights and measures of the country from which the goods are shipped or in the weights and measures of the United States, but the entry must state the quantities in metric terms. Excess Goods And Shortages In order to facilitate duty allowances for goods that do not arrive and to determine whether excess goods are contained in the shipment, the importer (or foreign exporter) is advised to pack the goods in an orderly fashion; properly mark and number the packages in which the goods are contained; list each package's contents on the invoice; and place marks and numbers on the invoices that correspond to those packages. 21 If the CBP officer finds any package that contains an article not specified on the invoice, and there is reason to believe the article was omitted from the invoice by fraud, gross negligence, negligence on the part of the seller, shipper, owner, or agent, a monetary penalty may be imposed, or in some cases, the merchandise may be seized or forfeited. (See e.g., 19 U.S.C. 1592.) If, during the examination of any package that has been designated for examination, the CBP officer finds a deficiency in quantity, weight or measure, he or she will make a duty allowance for the deficiency. An allowance in duty may be made for those packages not designated as long as the importer notifies the port director of the shortage before liquidation of the entry becomes final and establishes to the port director's satisfaction that the missing goods were not delivered. Damage Or Deterioration Goods that the CBP officer finds to be entirely without commercial value at the time of arrival in the United States because of damage or deterioration are treated as a “nonimportation.” No duties are assessed on these goods. When damage or deterioration is present with respect to part of the shipment only, allowance in duties is not made unless the importer segregates, under CBP supervision, the damaged or deteriorated part from the remainder of the shipment. When the shipment consists of fruits, vegetables, or other perishable merchandise, allowance in duties cannot be made unless the importer, within 96 hours of unloading the merchandise and before it has been removed from the pier, files an application for an allowance with the port director. Allowance or reduction of duty for partial damage or loss as a result of rust or discoloration is precluded by law on shipments consisting of any article partially or wholly manufactured of iron or steel, or any manufacture of iron or steel. Tare In determining the quantity of goods dutiable on net weight, a deduction is made from the gross weight for just and reasonable tare. Tare is the allowance for a deficiency in the weight or quantity of the merchandise caused by the weight of the box, cask, bag, or other receptacle that contains the merchandise and that is weighed with it. The following schedule tares are provided for in the CBP Regulations: Apple boxes. 3.6 kilograms (8 lb.) per box. This schedule tare includes the paper wrappers, if any, on the apples. China clay in so-called half-ton casks. 32.6 kilograms (72 lb.) per cask. Figs in skeleton cases. Actual tare for outer containers plus 13 percent of the gross weight of the inside wooden boxes and figs. Fresh tomatoes. 113 grams (4 oz.) per 100 paper wrappings. 22 Lemons and oranges. 283 grams (10 oz.) per box and 142 grams (5 oz.) per half-box for paper wrappings, and actual tare for outer containers. Ocher, dry, in casks. Eight percent of the gross weight; in oil in casks, 12 percent of the gross weight. Pimentos in tins, imported from Spain. Size can Drained weights 3 kilos 13.6 kilograms (30 lb.)—case of 6 tins 794 grams (28 oz.) 16.7 kilograms (36.7 lb.)—case of 24 tins 425 grams (15 oz.) 8.0 kilograms (17.72 lb.)—case of 24 tins 198 grams (7 oz.) 3.9 kilograms (8.62 lb.)—case of 24 tins 113 grams (4 oz.) 2.4 kilograms (5.33 lb.)—case of 24 tins Tobacco, leaf not stemmed. 59 kilograms (13 lb.) per bale; Sumatra: actual tare for outside coverings, plus 1.9 kilograms (4 lb.) for the inside matting and, if a certificate is attached to the invoice certifying that the bales contain paper wrappings and specifying whether light or heavy paper has been used, either 113 grams (4 oz.) or 227 grams (8 oz.) for the paper wrapping according to the thickness of paper used. For other goods dutiable on the net weight, an actual tare will be determined. An accurate tare stated on the invoice is acceptable for CBP purposes in certain circumstances. If the importer of record files a timely application with the port director of CBP, an allowance may be made in any case for excessive moisture and impurities not usually found in or upon the particular kind of goods. 5. Packing Of Goods—Commingling Packing Information on how to pack goods for the purpose of transporting them may be obtained from shipping manuals, carriers, forwarding agents, and other sources. This chapter, therefore, deals with packing goods being exported in a way that will permit CBP officers to examine, weigh, measure, and release them promptly. Orderly packing and proper invoicing go hand in hand. You will speed up the clearance of your goods through CBP if you: • Invoice your goods in a systematic manner, • Show the exact quantity of each item of goods in each box, bale, case, or other package, 23 • Put marks and numbers on each package, • Show those marks or numbers on your invoice opposite the itemization of goods contained in the package that bears those marks and numbers. When packages contain goods of one kind only, or when the goods are imported in packages the contents and values of which are uniform, the designation of packages for examination and the examination for CBP purposes are greatly facilitated. If the contents and values differ from package to package, the possibility of delay and confusion is increased. Sometimes, because of the kinds of goods or because of the unsystematic manner in which they are packed, the entire shipment must be examined. Pack and invoice your goods in a manner which makes a speedy examination possible. Always bear in mind that it may not be possible to ascertain the contents of your packages without full examination unless your invoice clearly shows the marks and numbers on each package (whether box, case, or bale) and specifies the exact quantity of each item of adequately described goods in each marked and numbered package. Also, be aware that CBP examines cargo for narcotics that may, unbeknownst to the shipper or the importer, be hidden inside. This can be time-consuming and expensive for both the importer and for CBP. Narcotics inspections may require completely stripping a container in order to physically examine a large portion of the cargo. This labor-intensive handling of cargo, whether by CBP, labor organizations, or private individuals, results in added costs, increased delays, and possible damage to the product. Importers can expedite this inspection process by working with CBP to develop packing standards that will permit effective CBP examinations with a minimum of delay, damage, and cost. A critical aspect in facilitating inspections is how the cargo is loaded. “Palletizing” cargo—loading it onto pallets or other consolidated units—is an effective way to expedite such examinations. Palletization allows for quick cargo removal in minutes using a forklift compared to the hours it would take manually. Another example is leaving enough space at the top of a container and an aisle down the center to allow access by a narcotic-detector dog. Your cooperation in this respect will help CBP officers decide which packages must be opened and examined; how much weighing, counting, or measuring must be done, and whether the goods are properly marked. It will simplify the ascertainment of tare and reduce the number of samples to be taken for laboratory analysis or for other customs purposes. It will facilitate verification of the packages and contents, as well as the reporting by CBP officers of missing or excess goods. And it will minimize the possibility that the importer may be asked to resubmit for examination packages that were already released under the belief that the ones originally designated for examination were sufficient for that purpose. 24 Packing a combination of different types of goods makes it impracticable for CBP officers to determine the quantity of each type of product in an importation. Such packing can also lead to a variety of other complications in the entry process. No problem will arise, however, from the orderly packing of several different kinds of properly invoiced goods in a single package. It is indiscriminate packing that causes difficulty. Commingling Except as mentioned hereafter, whenever articles subject to different rates of duty are so packed together or combined such that CBP officers cannot readily determine the quantity or value of each class of articles without physically separating the shipment or the contents of any package, the combined articles will be subject to the highest rate of duty applicable to any part of the commingled lot, unless the consignee or his agent separates the merchandise under CBP supervision. The three methods of ready ascertainment specified by General Note 3(f) of the Harmonized Tariff Schedule are: (1) Sampling, (2) Verification of packing lists or other documents filed at the time of entry, or (3) Evidence showing performance of commercial settlements tests generally accepted in the trade and filed in the time and manner as prescribed in the CBP Regulations. Segregation of merchandise is at the risk and expense of the consignee. It must be done within 30 days (unless a longer time is granted) after the date of personal delivery or the date of mailing a notice to the consignee by the port director that the goods are commingled. The compensation and expenses of the CBP officers supervising the segregation must be borne by the consignee. Assessing duty on the commingled lot at the highest applicable rate does not apply to any part of a shipment if the consignee or his agent furnishes satisfactory proof that: 1. Such part is commercially negligible, is not capable of segregation without excessive cost, and will not be segregated prior to its use in a manufacturing process or otherwise; and 2. The commingling was not intended to avoid the payment of lawful duties. Any article for which such proof is furnished shall be considered for all CBP purposes as a part of the article, subject to the next lower rate of duty, with which it is commingled. 25 In addition, the highest-rate rule does not apply to any part of a shipment if satisfactory proof is furnished that: 1. The value of the commingled articles is less than the aggregate value would be if the shipment were segregated; 2. The shipment is not capable of segregation without excessive cost and will not be segregated prior to its use in a manufacturing process or otherwise; and 3. The commingling was not intended to avoid the payment of lawful duties. Any merchandise for which such proof is furnished shall be considered for all CBP purposes to be dutiable at the rate applicable to the material present in greater quantity than any other material. The above rules do not apply if the tariff schedules provide a particular tariff treatment for commingled articles. 26 INFORMED COMPLIANCE 6. Definition Informed compliance is a shared responsibility between CBP and the import community wherein CBP effectively communicates its requirements to the trade, and the people and businesses subject to those requirements conduct their regulated activities in accordance with U.S. laws and regulations. A key component of informed compliance is that the importer is expected to exercise reasonable care in his or her importing operations. Informed compliance benefits both parties: When voluntary compliance is achieved, CBP resources need not be expended on redundant examinations or entry reviews for the importer’s cargo found to be dependably compliant. From the trade perspective, when voluntary compliance is attained, compliant importers are less likely to have their shipments examined or their entries reviewed. CBP publishes a wealth of information to assist the import community in complying with CBP requirements. We issue rulings and informed compliance publications on a variety of technical subjects and processes. Most of these materials can be found on-line at www.cbp.gov. We urge importers to make sure they are using the latest versions of any printed materials. 7. Reasonable Care Checklists Reasonable care is an explicit responsibility on the part of the importer. Despite its seemingly simple connotation, the term reasonable care defies easy explanation because the facts and circumstances surrounding every import transaction differ, from the experience of the importer to the nature of the imported articles. Consequently, neither CBP nor the importing community can develop a reasonable care checklist capable of covering every import transaction. CBP recommends that the import community examine the list of questions below. These questions may suggest methods that importers may find useful in avoiding compliance problems and in meeting the responsibilities of reasonable care. These questions are intended to promote compliance with CBP laws and regulations, but be aware that the list is advisory, not exhaustive. The checklist is intended as a guide and has no legal, binding or precedential effect on CBP or the importing community. The questions apply whether the importer of record conducts the transactions(s) 27 him- or herself, or whether the importer hires others to do it. General Questions for All Transactions: 1. If you have not retained an expert (e.g., lawyer, customs broker, accountant, or customs consultant) to assist you in complying with CBP requirements, do you have access to the CBP Regulations (Title 19 of the Code of Federal Regulations), the Harmonized Tariff Schedule of the United States (generally referred to as the Harmonized Tariff Schedule), and CBPBulletin and Decisions? (All three are available from the Superintendent of Documents, Tel. 202.512.1800.) Do you have access to the CBP Website at www.cbp.gov, or other research service that provides the information to help you establish reliable procedures and facilitate compliance with CBP law and regulations? 2. Has a responsible, knowledgeable individual within your organization reviewed your CBP documentation to assure that it is full, complete and accurate? If the documentation was prepared outside your organization, do you have a reliable method to assure that you receive copies of the information submitted to CBP, that it is reviewed for accuracy, and that CBP is apprised of needed corrections in a timely fashion? 3. If you use an expert to help you comply with CBP requirements, have you discussed your importations in advance with that person, and have you provided him or her with complete, accurate information about the import transaction(s)? 4. Are identical transactions or merchandise handled differently at different ports or CBP offices within the same port? If so, have you brought this fact to CBP officials’ attention? Questions by Topic: Merchandise Description & Tariff Classification Basic Question: Do you know what you ordered, where it was made, and what it is made of? 1. Have you provided a complete, accurate description of your merchandise to CBP in accordance with 19 U.S.C. 1481? (Also, see 19 CFR 141.87 and 19 CFR 141.89 for special merchandise description requirements.) 2. Have you provided CBP with the correct tariff classification of your merchandise in accordance with 19 U.S.C. 1484? 3. Have you obtained a CBP ruling regarding the description of your merchandise or its tariff classification (see 19 CFR Part 177)? If so, have you followed the ruling and apprised appropriate CBP officials of those facts (i.e., of the ruling and your 28 compliance with it)? 4. Where merchandise description or tariff classification information is not immediately available, have you established a reliable procedure for obtaining it and providing it to CBP? 5. Have you participated in a CBP classification of your merchandise in order to get it properly described and classified? 6. Have you consulted the tariff schedules, CBP informed compliance publications, court cases or CBP rulings to help you properly describe and classify the merchandise? 7. Have you consulted with an expert (e.g., lawyer, customs broker, accountant, customs consultant) to assist in the description and/or classification of the merchandise? 8. If you are claiming a conditionally free or special tariff classification or provision for your merchandise (e.g., GSP, HTS Item 9802, NAFTA), how have you verified that the merchandise qualifies for such status? Do you have the documentation necessary to support the claim? If making a NAFTA preference claim, do you have a NAFTA certificate of origin in your possession? 9. Is the nature of your merchandise such that a laboratory analysis or other specialized procedure is advised for proper description and classification? 10. Have you developed reliable procedures to maintain and produce the required entry documentation and supporting information? Valuation Basic Questions: Do you know the “price actually paid or payable” for your merchandise? Do you know the terms of sale? Whether there will be rebates, tie-ins, indirect costs, additional payments? Whether “assists” were provided or commissions or royalties paid ? Are amounts actual or estimated? Are you and the supplier “related parties”? 1. Have you provided CBP with a proper declared value for your merchandise in accordance with 19 U.S.C. 1484 and 19 U.S.C. 1401a? 2. Have you obtained a CBP ruling regarding valuation of the merchandise (see 19 CFR Part 177)? Can you establish that you followed the ruling reliably? Have you brought those facts to the attention of CBP? 29 2. Have you consulted the CBP valuation laws and regulations, CBP Valuation Encyclopedia, CBP informed compliance publications, court cases and CBP rulings to assist you in valuing merchandise? 4. If you purchased the merchandise from a “related” seller, have you reported that fact upon entry? Have you assured that the value reported to CBP meets one of the “related party” tests? 5. Have you assured that all legally required costs or payments associated with the imported merchandise (assists, commissions, indirect payments or rebates, royalties, etc.) have been reported to CBP? 6. If you are declaring a value based upon a transaction in which you were/are not the buyer, have you substantiated that the transaction is a bona fide “sale at arm’s length” and that the merchandise was clearly destined to the United States at the time of sale? 7. If you are claiming a conditionally free or special tariff classification or provision for your merchandise (GSP, HTS Item 9802, NAFTA), have you reported the required value information and obtained the documentation necessary to support the claim? 8. Have you produced the required entry documentation and supporting information? Country of Origin/Marking/Quota Basic Question: Have you ascertained the correct country of origin for the imported merchandise? 1. Have you reported the correct country of origin on CBP entry documents? 2. Have you assured that the merchandise is properly marked upon entry with the correct country of origin (if required) in accordance with 19 U.S.C. 1304 and any other applicable special marking requirements (watches, gold, textile labeling, etc)? 3. Have you obtained a CBP ruling regarding the proper marking and country of origin of the merchandise (see 19 CFR Part 177)? If so, have you followed the ruling and brought that fact to the attention of CBP? 4. Have you consulted with a customs expert regarding the correct country-of- origin/proper marking of your merchandise? 30 5. Have you apprised your foreign supplier of CBP country-of-origin marking requirements prior to importation of your merchandise? 6. If you are claiming a change in the origin of the merchandise or claiming that the goods are of U.S. origin, have you taken required measures to substantiate your claim (e.g., do you have U.S. milling certificates or manufacturers’ affidavits attesting to production in the United States)? 7. If importing textiles or apparel, have you ascertained the correct country of origin in accordance with 19 U.S.C. 3592 (Section 334, P.L. 103-465) and assured yourself that no illegal transshipment or false or fraudulent practices were involved? 8. Do you know how your goods are made, from raw materials to finished goods, by whom and where? 9. Have you ensured that the quota category is correct? 10. Have you checked the Status Report on Current Import Quotas (Restraint Levels), issued by CBP, to determine if your goods are subject to a quota category with “part” categories? 11. Have you obtained correct visas for those goods subject to visa categories? 12. For textile articles, have you prepared a proper country declaration for each entry, i.e., a single country declaration (if wholly obtained/produced) or a multi-country declaration (if raw materials from one country were transformed into goods in a second)? 13. Can you produce all entry documentation and supporting information, including certificates of origin, if CBP requires you to do so? Intellectual Property Rights Basic Question: Have you determined whether your merchandise or its packaging use any trademarks or copyrighted material or are patented? If so, can you establish that you have a legal right to import those items into and/or use them in the United States? 1. If you are importing goods or packaging bearing a trademark registered in the United States, have you established that it is genuine and not restricted from importation under the “gray-market” or parallel-import requirements of United States law (see 198 CFR 133.21), or that you have permission from the trademark holder to import the merchandise? 31 2. If you are importing goods or packaging that contain registered copyrighted material, have you established that this material is authorized and genuine? If you are importing sound recordings of live performances, were the recordings authorized? 3. Is your merchandise subject to an International Trade Commission or court-ordered exclusion order? 4. Can you produce the required entry documentation and supporting information? Miscellaneous 1. Have you assured that your merchandise complies with other agencies’ requirements (e.g., FDA, EPA, DOT, CPSC, FTC, Agriculture, etc.) and obtained licenses or permits, if required, from them? 2. Are your goods subject to a Commerce Department dumping or countervailing-duty investigation or determination? If so, have you complied with CBP reporting requirements of this fact (e.g., 19 CFR 141.61)? 3. Is your merchandise subject to quota/visa requirements? If so, have you provided a correct visa for the goods upon entry? 4. Have you assured that you have the right to make entry under the CBP Regulations? 5. Have you filed the correct type of CBP entry (e.g., TIB, T&E, consumption entry, mail entry)? Additional Questions for Textile and Apparel Importers Section 333 of the Uruguay Round Implementation Act (19 U.S.C. 1592a) authorizes the Secretary of the Treasury to publish a list of foreign producers, manufacturers, suppliers, sellers, exporters, or other foreign persons found to have violated 19 U.S.C. 1592 by using false, fraudulent or counterfeit documentation, labeling, or prohibited transshipment practices in connection with textiles and apparel products. Section 1592a also requires any importer of record who enters or otherwise attempts to introduce into United States commerce textile or apparel products that were directly or indirectly produced, manufactured, supplied, sold, exported, or transported by such named person(s) to show, to the Secretary’s satisfaction, that the importer has exercised reasonable care to ensure that the importations are accompanied by accurate documentation, packaging and labeling regarding the products’ origin. Under section 1592a, reliance solely upon information from a person named on the list does not constitute the exercise of reasonable care. Textile and apparel importers who have a 32 commercial relationship with any of the listed parties must exercise reasonable care in ensuring that the documentation covering the imported merchandise, its packaging and its labeling, accurately identify the importation’s country of origin. This demonstration of reasonable care must rely upon more information than that supplied by the named party. In order to meet the reasonable care standard when importing textile or apparel products and when dealing with a party named on this list, an importer should consider the following questions to ensure that the documentation, packaging and labeling are accurate regarding country-of-origin considerations. This list is illustrative, not exhaustive: 1. Has the importer had a prior relationship with the named party? 2. Has the importer had any seizures or detentions of textile or apparel products that were directly or indirectly produced, supplied, or transported by the named party? 3. Has the importer visited the company’s premises to ascertain that the company actually has the capacity to produce the merchandise? 4. Where a claim of an origin-conferring process is made in accordance with 19 CFR 102.21, has the importer ascertained that the named party actually performed that process? 5. Is the named party really operating from the country that he or she claims on the documentation, packaging or labeling? 6. Have quotas for the imported merchandise closed, or are they near closing, from the main producer countries for this commodity? 7. Does the country have a dubious or questionable history regarding this commodity? 8. Have you questioned your supplier about the product’s origin? 9. If the importation is accompanied by a visa, permit or license, has the importer verified with the supplier or manufacturer that the document is of valid, legitimate origin? Has the importer examined that document for any irregularities that would call its authenticity into question? 8. Compliance Assessment/Compliance Measurement Of primary interest to the trade community is the compliance assessment, which is the systematic evaluation of an importer’s systems supporting his or her CBP-related operations. The assessment includes testing import and financial transactions, reviewing 33 the adequacy of the importer’s internal controls, and determining the importer’s compliance levels in key areas. Compliance assessments are conducted in accordance with 19 U.S.C. 1509. The assessment is conducted by an interdisciplinary team composed of a CBP auditor, import specialist, account manager, industry expert (highly knowledgeable of the electronics or auto parts or surgical equipment industries, for example), and possibly other CBP specialists (attorneys, inspectors, scientists). The compliance assessment utilizes professionally accepted statistical sampling and auditing techniques to review selected import transactions from the company’s previous fiscal year. Compliance assessments will evaluate the company’s applicable customs operations such as: • Record keeping, • Merchandise classification/trade statistics, • Merchandise quantities, • Antidumping/countervailing duty operations, • Quota conformity, • Merchandise value, • Warehouse or foreign trade zone operations, • Merchandise transshipment, • Special trade programs (GSP, CBI, others). Companies found in compliance with CBP laws and regulations will get a report stating that fact. Companies whose systems are determined to be noncompliant will also get a report and will be asked to formulate, in cooperation with CBP advisors, a compliance improvement plan specifying corrective actions the company will take to increase compliance levels. Serious violations of law or regulation may result in CBP referring the company for a formal investigation or other enforcement actions. By law, CBP is required to provide the importer with advance notice of an intended assessment and an estimate of its duration. Importers are entitled to an entry conference, during which the assessment’s purpose will be explained and its duration provided. Using information from CBP databases about the company or the importer’s industry, the compliance assessment team may have prepared questionnaires seeking specific information about the importer’s internal procedures. These questionnaires will be distributed at the entry conference. Upon completion of the assessment, CBP will schedule a closing conference, at which its preliminary findings will be explained. A closing conference may not be scheduled for companies found to have serious enforcement issues. If no enforcement action is taken, CBP will provide the company with a written report of the assessment’s 34 results. The Importer Audit/Compliance Assessment Team Kit (also called the CAT Kit), which provides extensive details of the assessment procedure, can be found at CBP Website, www.cbp.gov, or by calling the CBP Regulatory Audit Division office nearest you. Compliance Measurement is the primary tool CBP uses to assess the accuracy of port-of-entry transactions and to determine the compliance rate for all commercial importations. By using statistical sampling methods, a valid compliance level for all commercial importations can be obtained. One of CBP’s goals is to assure that at least 99 percent of the import revenues legally owed the United States government are collected. Cargo is sampled for compliance with international trade laws at the port of entry, at the time of entry into the United States. Importers should be aware that misclassification of merchandise, among other violations, will be detected through the compliance measurement process. 9. A Notice To Small-Business Importers The Small Business Regulatory Enforcement Fairness Act was designed to create a more cooperative regulatory environment between federal agencies and small businesses. Your comments are important. The Small Business and Regulatory Enforcement Ombudsman and 10 regional Fairness Boards were established to receive comments from small businesses about federal agency enforcement activities and to rate each agency’s responsiveness to small business. If you wish to comment on the enforcement actions of U.S. Customs and Border Protection, call 1.888.REG.FAIR (1.888.734.3247). 35 INVOICES 10. Commercial Invoice A commercial invoice, signed by the seller or shipper, or his agent, is acceptable for CBP purposes if it is prepared in accordance with Section 141.86 through 141.89 of the CBP Regulations, and in the manner customary for a commercial transaction involving goods of the kind covered by the invoice. Importers and brokers participating in the Automated Broker Interface may elect to transmit invoice data via the Automated Invoice Interface or EDIFACT and eliminate the paper document. The invoice must provide the following information, as required by the Tariff Act: • The port of entry to which the merchandise is destined, • If merchandise is sold or agreed to be sold, the time, place, and names of buyer and seller; if consigned, the time and origin of shipment, and names of shipper and receiver, • A detailed description of the merchandise, including the name by which each item is known, the grade or quality, and the marks, numbers, and symbols under which it is sold by the seller or manufacturer to the trade in the country of exportation, together with the marks and numbers of the packages in which the merchandise is packed, • The quantities in weights and measures, • If sold or agreed to be sold, the purchase price of each item in the currency of the sale, • If the merchandise is shipped for consignment, the value of each item in the currency in which the transactions are usually made, or, in the absence of such value, the price in such currency that the manufacturer, seller, shipper, or owner would have received, or was willing to receive, for such merchandise if sold in the ordinary course of trade and in the usual wholesale quantities in the country of exportation, • The kind of currency, • All charges upon the merchandise, itemized by name and amount including freight, insurance, commission, cases, containers, coverings, and cost of packing; and, if not included above, all charges, costs, and expenses incurred in bringing the merchandise from alongside the carrier at the port of exportation in the country of exportation and placing it alongside the carrier at the first U.S. port of entry. The cost of packing, cases, containers, and inland freight to the port of exportation need not be itemized by amount if included in the invoice price and so identified. Where the required information does not appear on the invoice as originally prepared, it shall be shown on an attachment to the invoice, • All rebates, drawbacks, and bounties, separately itemized, allowed upon the exportation of the merchandise, • The country of origin, 36 • All goods or services furnished for the production of the merchandise not included in the invoice price. If the merchandise on the documents is sold while in transit, the original invoice reflecting this transaction and the resale invoice or a statement of sale showing the price paid for each item by the purchaser shall be filed as part of the entry, entry summary, or withdrawal documentation. The invoice and all attachments must be in the English language, or shall be accompanied by an accurate English translation. Each invoice shall state in adequate detail what merchandise is contained in each individual package. If the invoice or entry does not disclose the weight, gauge, or measure of the merchandise necessary to ascertain duties, the importer of record shall pay expenses incurred to obtain this information prior to the release of the merchandise from CBP custody. Each invoice shall set forth in detail, for each class or kind of merchandise, every discount from the list or other base price that has been or may be allowed in fixing each purchase price or value. When more than one invoice is included in the same entry, each invoice with its attachments shall be numbered consecutively by the importer on the bottom of the face of each page, beginning with number 1. If an invoice is more than two pages, begin with number 1 for the first page of the first invoice and continue in a single series of numbers through all the invoices and attachments included in one entry. If an entry covers one invoice of one page and a second invoice of two pages, the numbering at the bottom of the page shall be as follows: Inv. 1, p.1; Inv. 2, p.2; Inv. 2, p.3, etc. Any information required on an invoice may be set forth either on the invoice or on the attachment. Specific Requirements 1. Separate Invoice Required for Each Shipment. Not more than one distinct shipment from one consignor to one consignee by one commercial carrier shall be included on the same invoice. 2. Assembled Shipments. Merchandise assembled for shipment to the same consignee by one commercial carrier may be included in one invoice. The original bills or invoices covering the merchandise, or extracts therefrom, showing the actual price paid or agreed to be paid, should be attached to the invoice. 37 3. Installment Shipments. Installments of a shipment covered by a single order or contract and shipped from one consignor to one consignee may be included in one invoice if the installments arrive at the port of entry by any means of transportation within a period not to exceed 10 consecutive days. The invoice should be prepared in the same manner as invoices covering single shipments and should include any additional information that may be required for the particular class of goods concerned. If it is practical to do so, the invoice should show the quantities, values, and other invoice data with respect to each installment, and the identification of the importing conveyance in which each installment was shipped. 4. Production “Assist.” The invoice should indicate whether the production of merchandise involved costs for “assists” (e.g., dies, molds, tooling, printing plates, artwork, engineering work, design and development, financial assistance, etc.) that are not included in the invoice price. If assists were involved, state their value, if known, and by whom supplied. Were they supplied without cost, or on a rental basis, or were they invoiced separately? If the latter, attach a copy of the invoice. Whenever CBP requires information on the cost of production of goods for customs valuation, the importer will be notified by the port director. Thereafter, invoices covering shipments of such goods must contain a statement on the cost of production by the manufacturer or producer. 5. Additional Information Required. Special information may be required on certain goods or classes of goods in addition to the information normally required on the invoice. Although the United States importer usually advises the exporter of these special situations, section 141.89 of the CBP Regulations, which covers the requirements for these goods, has been reproduced in the appendix. 6. Rates of Exchange. In general, no rate(s) of exchange may be used to convert foreign currency for customs purposes other than the rate(s) proclaimed or certified in 31 U.S.C. 5151. For merchandise imported from a country having a currency for which two or more rates of exchange have been certified by the Federal Reserve Bank of New York, the invoice will show the exchange rate or rates used in converting the United States dollars received for the merchandise into the foreign currency and the percentage of each rate if two or more rates are used. If a rate or combination of rates used to pay costs, charges, or expenses is different from those used to pay for the merchandise, state that rate or combination of rates separately. When dollars have not been converted at the time the invoice is prepared, state that fact on the invoice, in which case the invoice shall also state the rate or combination of rates at which the dollars will be converted, or that it is not known what rate or rates will be used. Rates of exchange are not required for merchandise unconditionally free of duty or subject only to a specific rate of duty not depending on value. 38 11. Other Invoices Pro Forma Invoice If the required commercial invoice is not filed at the time the merchandise is entered, a statement in the form of an invoice (a pro forma invoice) must be filed by the importer at the time of entry. A bond is given for production of the required invoice not later than 120 days from the date of the entry summary, or entry if there is no entry summary. If the invoice is needed for statistical purposes, it must generally be produced within 50 days from the date on which the entry summary is required to be filed. The exporter should bear in mind that unless he or she forwards the required invoice in time, the American importer will incur a liability under his bond for failure to file the invoice with the port director of CBP before the 120-day period expires. Although a pro forma invoice is not prepared by the exporter, it is of interest to exporters as it gives a general idea of the kind of information needed for entry purposes. A pro forma invoice indicates what the importer may find necessary to furnish CBP officers at the time a formal entry is filed for a commercial shipment, if a properly prepared CBP or commercial invoice is not available at the time the goods are entered. An acceptable format for a pro forma invoice is reproduced in the appendix. Some of the additional information specified for the commodities under section 141.89 of the CBP Regulations may not be required when entry is made on a pro forma invoice. However, the pro forma invoice must contain sufficient data for examination, classification, and appraisement purposes. Special Invoices Special invoices are required for some merchandise. See 19 CFR 141.89. 12. Frequent Errors In Invoicing Foreign sellers or shippers must exercise care in preparing invoices and other documents used to enter goods into the commerce of the United States in order for their importers to avoid difficulties, delays, or possibly even penal sanctions. Each document must contain all information required by law or regulations, and every statement of fact contained in the documents must be true and accurate. Any inaccurate or misleading statement of fact in a document presented to a CBP officer in connection with an entry, or the omission from the document of required information, may result in delays in merchandise release, the detention of the goods, or a claim against the importer for domestic value. Even though the inaccuracy or omission was unintentional, the importer may be required to establish that he exercised due diligence and was not negligent, in order to avoid sanctions with consequent delay in obtaining possession of goods and closing the transaction. (See 19 U.S.C. 1592.) 39 It is particularly important that all statements relating to merchandise description, price or value, and amounts of discounts, charges, and commissions be truthfully and accurately set forth. It is also important that the invoices set forth the true name of the actual seller and purchaser of the goods, in the case of purchased goods, or the true name of the actual consignor and consignee when the goods are shipped otherwise than in pursuance of a purchase. It is important, too, that the invoice otherwise reflect the real nature of the transaction pursuant to which the goods were shipped to the United States. The fundamental rule is that both the shipper and importer must furnish CBP officers with all pertinent information with respect to each import transaction to assist CBP officers in determining the tariff status of the goods. Examples of omissions and inaccuracies to be avoided are: • The shipper assumes that a commission, royalty, or other charge against the goods is a so-called “nondutiable” item and omits it from the invoice. • A foreign shipper who purchases goods and sells them to a United States importer at a delivered price shows on the invoice the cost of the goods to him instead of the delivered price. • A foreign shipper manufactures goods partly with the use of materials supplied by the United States importer, but invoices the goods at the actual cost to the manufacturer without including the value of the materials supplied by the importer. • The foreign manufacturer ships replacement goods to his customer in the United States and invoices the goods at the net price without showing the full price less the allowance for defective goods previously shipped and returned. • A foreign shipper who sells goods at list price, less a discount, invoices them at the net price, and fails to show the discount. • A foreign shipper sells goods at a delivered price but invoices them at a price f.o.b. the place of shipment and omits the subsequent charges. • A foreign shipper indicates in the invoice that the importer is the purchaser, whereas he is in fact either an agent who is receiving a commission for selling the goods or a party who will receive part of the proceeds of the sale of the goods sold for the joint account of the shipper and consignee. • Invoice descriptions are vague, listing only parts of numbers, truncated or coded descriptions, or lumping various articles together as one when several distinct items are included. 40 ASSESSMENT OF DUTY 13. Dutiable Status Of Goods Rates Of Duty All goods imported into the United States are subject to duty or duty-free entry in accordance with their classification under the applicable items in the Harmonized Tariff Schedule of the United States. An annotated loose-leaf edition of the tariff schedule may be purchased from the U.S. Government Printing Office, Washington, DC 20402. (See 19 U.S.C. 1202.) When goods are dutiable, ad valorem, specific, or compound rates may be assessed. An ad valorem rate, which is the type of rate most often applied, is a percentage of the value of the merchandise, such as five percent ad valorem. A specific rate is a specified amount per unit of weight or other quantity, such as 5.9 cents per dozen. A compound rate is a combination of both an ad valorem rate and a specific rate, such as 0.7 cents per kilo plus 10 percent ad valorem. Free of Duty or Dutiable Rates of duty for imported merchandise may vary depending upon the country of origin. Most merchandise is dutiable under the most-favored-nation—now referred to as normal trade relations—rates in the General column under column 1 of the tariff schedule. Merchandise from countries to which these rates have not been extended is dutiable at the full or “statutory” rates in column 2 of the tariff schedule. Free rates are provided for many subheadings in columns 1 and 2 of the tariff schedule. Duty-free status is also available under various conditional exemptions which are reflected in the Special column under column 1 of the tariff schedule. It is the importer’s burden to show eligibility for a conditional exemption from duty. One of the more frequently applied exemptions from duty occurs under the Generalized System of Preferences (GSP). GSP-eligible merchandise qualifies for duty-free entry when it is from a beneficiary developing country and meets other requirements as discussed in Chapter 17. Other exemptions are found under the subheadings in Chapter 98 of the tariff schedule. These subheadings include, among other provisions, certain personal exemptions, exemptions for articles for scientific or other institutional purposes, and exemptions for returned American goods. Rulings On Imports CBP makes its decision on the dutiable status of merchandise when the entry is liquidated after the entry documents have been filed. When advance information is needed, do not depend on a small “trial” or “test” shipment because there is no guarantee that the next shipment will receive the same tariff treatment. Small importations may slip by, particularly if they are processed under informal procedures that apply to small shipments or in circumstances warranting application of a flat rate. An exporter, 41 importer, or other interested party may get advance information on any matter affecting the dutiable status of merchandise by writing to the port director where the merchandise will be entered or to: Director, National Commodity Specialist Division U.S. Customs and Border Protection One Penn Plaza, 11th Floor New York, New York 10119 or to: U.S. Customs and Border Protection Attention: Office of Regulations and Rulings Washington, DC 20229 Detailed information on the procedures for the issuance of administrative rulings is given in 19 CFR Part 177. Binding Decisions While you will find that, for many purposes, CBP ports are your best sources of information, informal information obtained on tariff classifications is not binding. Under 19 CFR part 177, the importing public may obtain a binding ruling, which can be relied upon for placing or accepting orders or for making other business determinations, under Chapters 1 through 97 of the Harmonized Tariff Schedule or by writing to: National Commodity Specialist Division U.S. Customs and Border Protection One Penn Plaza, 11th Floor New York, New York 10119 The ruling will be binding at all ports of entry unless revoked by the CBP Office of Regulations and Rulings. The following information is required in ruling requests: • The names, addresses and other identifying information of all interested parties (if known) and the manufacturer ID code (if known), • The name(s) of the port(s) at which the merchandise will be entered (if known), • A description of the transaction; for example, a prospective importation of (merchandise) from (country), • A statement that there are, to the importer’s knowledge, no issues on the commodity pending before CBP or any court, and 42 • A statement as to whether classification advice has previously been sought from a CBP officer, and if so, from whom, and what advice was rendered, if any. A request for a tariff classification should include the following information: • A complete description of the goods. Send samples, if practical, sketches, diagrams, or other illustrative material that will be useful in supplementing the written description, • Cost breakdowns of component materials and their respective quantities shown in percentages, if possible, • A description of the principal use of the goods, as a class or kind of merchandise, in the United States, • Information as to commercial, scientific or common designations, as may be applicable, and • Any other information that may be pertinent or required for the purpose of tariff classification. To avoid delays, your request should be as complete as possible. If you send a sample, do not rely on it to tell the whole story. Also, please note that samples may be subjected to laboratory analysis, which is done free of charge. If a sample is destroyed during laboratory analysis, however, it cannot be returned. Information submitted and incorporated in response to a request for a CBP decision may be disclosed or withheld in accordance with the provisions of the Freedom of Information Act, as amended 5 U.S.C. 552, 19 CFR 177.8(a)(3). Protests The importer may disagree with the dutiable status after the entry has been liquidated. A decision at this stage of the entry transaction is requested by filing a protest and application for further review on CBP Form 19. For entries filed before December 18, 2006, the time limit is within 90 days after liquidation, but for entries filed after that date, it is now 180 days (see CFR part 174; see 19 USC 1514(c)(3) as amended by section 2103(2)(B), Pub. L.108-429. The same legislation also eliminated the 1 year to file protests for clerical errors and mistakes of fact for entries after 12/18/04). If CBP denies a protest, the adverse decision may be appealed to the U.S. Court of International Trade. 43 Liability For Duties There is no provision under which U.S. duties or taxes may be prepaid in a foreign country before exportation to the United States. This is true even for gifts sent by mail. In the usual case, liability for the payment of duty becomes fixed at the time an entry for consumption or for warehouse is filed with CBP. The obligation for payment is upon the person or firm in whose name the entry is filed. When goods have been entered for warehouse, liability for paying duties may be transferred to any person who purchases the goods and desires to withdraw them in his or her own name. Paying a customs broker will not relieve the importer of his or her liability for customs charges (duties, taxes, and other debts owed CBP) should those charges not be paid by the broker. Therefore, if the importer pays the broker by check, he or she should give the broker a separate check, made payable to “U.S. Customs and Border Protection” for those customs charges, which the broker will then deliver to CBP. If the entry is made in the name of a customs broker, the broker may obtain relief from statutory liability for the payment of increased or additional duties found due if (1) the actual owner of goods is named, and (2) the owner’s declaration whereby the owner agrees to pay the additional duty and the owner’s bond are both filed by the broker with the port director within 90 days of the date of entry. 14. Containers or Holders CBP designates such items as lift vans, cargo vans, shipping tanks, pallets and certain articles used to ship goods internationally as instruments of international traffic. So long as this designation applies, these articles are not subject to entry or duty when they arrive, whether they are loaded or empty. Other classes of merchandise containers may also be designated as instruments of international traffic upon application to the Commissioner of CBP for such a designation. If any article so designated is diverted to domestic use, however, it must be entered and duty paid, if applicable. Containers specially shaped or fitted to contain a specific article or set of articles, suitable for long term use and entered with the articles for which they are intended, are classifiable with the accompanying articles if they are of a kind normally sold therewith. Examples of such containers are: camera cases, musical instrument cases, gun cases, drawing instrument cases, and necklace cases. This rule does not apply to containers that give the importation as a whole its essential character. Subject to the above rule, packing materials and packing containers entered with goods packed in them are classified with these goods if they are of a kind normally used 44 for packing such goods. However, this does not apply to packing materials or containers that are clearly suitable for repetitive use. 15. Temporary Free Importations Temporary Importation Under Bond (TIB) Goods of the types enumerated below, when not imported for sale or for sale on approval, may be admitted into the United States under bond, without the payment of duty, for exportation within one year from the date of importation. Generally, the amount of the bond is double the estimated duties. The one-year period for exportation may, upon application to the port director, be extended for one or more further periods which, when added to the initial one year, shall not exceed a total of three years. There is an exception in the case of articles covered in item 14: the period of the bond may not exceed six months and may not be extended. Merchandise entered under TIB must be exported or destroyed before expiration of the bond period, or any extension, to avoid assessment of liquidated damages in the amount of the bond. All goods entered under TIB are subject to quota compliance. Classes Of Goods (1) Merchandise to be repaired, altered, or processed (including processes which result in an article being manufactured or produced in the United States), provided that the following conditions are met: The merchandise will not be processed into an article manufactured or produced in the United States if the article is: • Alcohol, distilled spirits, wine, beer, or any dilution or mixture of these, • Perfume or other commodity containing ethyl alcohol, whether denatured or not, • A product of wheat. If merchandise is processed and results in an article being manufactured or produced in the United States other than those described above: • A complete accounting will be made to CBP for all articles, wastes, and irrecoverable losses resulting from the processing, and • All articles will be exported or destroyed under CBP supervision within the bonded period. Valuable waste must also be exported or so destroyed unless duty, if applicable, is paid. 45 (2) Models of women’s wearing apparel imported by manufacturers for use solely as models in their own establishments; these articles require quota compliance. (3) Articles imported by illustrators and photographers for use solely as models in their own establishments to illustrate catalogs, pamphlets, or advertising matter. (4) Samples solely for use in taking orders for merchandise; these samples require quota compliance. 46 (5) Articles solely for examination with a view to reproduction or for examination and reproduction (except photoengraved printing plates for examination and reproduction); and motion-picture advertising films. (6) Articles intended solely for testing, experimental, or review purposes, including plans, specifications, drawings, blueprints, photographs, and articles for use in connection with experiments or for study. If articles under this category are destroyed in connection with the experiment or study, proof of such destruction must be presented to satisfy the obligation under the bond to export the articles. (7) Automobiles, motorcycles, bicycles, airplanes, airships, balloons, boats, racing shells, and similar vehicles and craft, and the usual equipment of the foregoing, if brought temporarily into the United States by nonresidents for the purpose of taking part in races or other specific contests. Port directors may defer the exaction of a bond for a period not to exceed 90 days after the date of importation for vehicles and craft to take part in races or other specific contests for other than money purposes. If the vehicle or craft is not exported or the bond is not given within the period of such deferment, the vehicle or craft shall be subject to forfeiture. (8) Locomotives and other railroad equipment brought temporarily into the United States for use in clearing obstructions, fighting fires, or making emergency repairs on railroads within the United States or for use in transportation otherwise than in international traffic when the Secretary of the Treasury finds that the temporary use of foreign railroad equipment is necessary to meet an emergency. Importers can expedite approval of a request for temporary importation to meet an emergency by including evidence of the existence of the emergency, such as news reports. (9) Containers for compressed gases, filled or empty, and containers or other articles used for covering or holding merchandise (including personal or household effects) during transportation and suitable for reuse for that purpose. (10) Professional equipment, tools of trade, repair components for equipment or tools admitted under this item, and camping equipment imported by or for nonresidents for the nonresident’s use while sojourning temporarily in the United States. (11) Articles of special design for temporary use exclusively in connection with the manufacture or production of articles for export. (12) Animals and poultry brought into the United States for the purpose of breeding, exhibition, or competition for prizes, and the usual equipment therefor. (13) Works of free fine arts, drawings, engravings, photographic pictures, and philosophical and scientific apparatus brought into the United States by professional artists, lecturers, or scientists arriving from abroad for use by them for exhibition and in illustration, 47 promotion, and encouragement of art, science or industry in the United States. (14) Automobiles, automobile chassis, automobile bodies, cutaway portions of any of the foregoing, and parts for any of the foregoing, finished, unfinished, or cutaway, when intended solely for show purposes. These articles may be admitted only on condition that the Secretary of the Treasury has found that the foreign country from which the articles were imported allows or will allow substantially reciprocal privileges with respect to similar exports to that country from the United States. If the Secretary finds that a foreign country has discontinued or will discontinue the allowance of such privileges, the privileges under this item shall not apply thereafter to imports from that country. Relief From Liability Relief from liability under bond may be obtained in any case in which the articles are destroyed under CBP supervision, in lieu of exportation, within the original bond period. However, in the case of articles entered under item 6, destruction need not be under CBP supervision where articles are destroyed during the course of experiments or tests during the bond period or any lawful extension, but satisfactory proof of destruction shall be furnished to the port director with whom the customs entry is filed. ATA Carnet ATA stands for the combined French and English words “Admission Temporaire— Temporary Admission.” ATA carnet is an international customs document that may be used for the temporary duty-free importation of certain goods into a country in lieu of the usual customs documents required. The carnet serves as a guarantee against the payment of customs duties that may become due on goods temporarily imported and not reexported. Quota compliance is required on merchandise subject to quota; for example, textiles are subject to quota and visa requirements. A carnet is valid for one year. The traveler or businessperson, however, may make as many trips as desired during the period the carnet is valid provided he or she has sufficient pages for each stop. The United States currently allows ATA carnets to be used for the temporary admission of professional equipment, commercial samples, and advertising material. Most other countries allow the use of carnets for the temporary admission of these goods and, in some cases, other uses of the ATA carnet are permitted. Local carnet associations, as members of the International Bureau of the Paris-based International Chamber of Commerce, issue carnets to their residents. These associations guarantee the payment of duties to local customs authorities should goods imported under cover of a foreign-issued carnet not be reexported. In the United States, CBP has designated the U.S. Council of the International Chamber of Commerce, located at 1212 Avenue of the Americas, 48 New York, NY 10036, Tel. 212.354.4480, as the United States issuing and guaranteeing org