When Customs and Border Protection (CBP) takes action that the importer does not like (e.g. seizes its merchandize, denies preferential trade agreement, etc.), the importer believing in the legitimacy of the transaction may wish to disagree with CBP. If such disagreement takes place at the administrative level (e.g. with Fines, Penalties and Forfeitures Office or Protest Office) it should be standard and fair for the importer to have all of the CBP information that the importer is entitled to have. Access to such information may enable the importer to see the decision process that CBP would not otherwise have disclosed. This, in turn, puts the importer in a better position shall it desire to challenge an adverse government action. In other words, disagreement with CBP begins with Freedom of Information Act request.
CBP does have a FOIA dedicated page but the page invites visitors to either submit the request online, through Form G-639, or the request pertaining to Importer Trade Activity (ITRAC). The author of this post is not certain about the effectiveness of the online request, because the request appears to be routed through CBP’s Headquarters (CBP HQ). Depending on the circumstances, CBP HQ may even be preferred option. However, majority of inquiries are done at the port level, because that is where most of the action takes place. Form G-639 is primarily for inquiries to CBP’s sister agency: U.S. Citizenship and Immigration Services. ITRAC may not be desirable because the scope of information under ITRAC is very limited. See Available ITRAC Information. Assuming that importer’s preference is to deal with the port directly, the CBP’s FOIA dedicated page is not the best starting point.
Good starting point is the recognition that the FOIA request may not be free. If the importer is not willing/able to pay for the government service, then it is the end of the inquiry. FOIA costs for CBP are prescribed under Department of Homeland Security regulations Title 6. Specifically under 6 C.F.R. § 5.11. If the request is made for commercial use (e.g. business importer in furtherance of its business) than the importer will pay various types of fees. Here are the most common:
- Search and Retrieve Fee at following rates:
- $4.00 / 15 minutes for “clerical” work
- $7.00 / 15 minutes for “professional” work
- $10.25 / 15 minutes for “managerial” work
- Duplication fee at $0.10 / page
Note that the regulation does not define the meaning of “clerical” / “professional” / “managerial.” From the language, one may conclude that “clerical” is the default, even if that clerical work is done by the manager. But, because no clear lines are drawn in the regulation, CBP may disagree with such interpretation (and be right under Chevron deference). This is merely preliminary estimate as CBP should notify the importer about the exact costs – if they exceed $25 – after FOIA request is filed, so there will be no surprises.
Once the importer figures to proceed, actual CBP regulations under C.F.R.’s Tilte 19 become helpful. Specifically, 19 C.F.R. § 103.5 which is jurisdictional regulation allowing requests to be made at the port level. Ready to start drafting?!
FREEDOM OF INFORMATION ACT REQUEST
FORCBP ENTRY ___________
FROM: [Importer’s Name and Address]
[date]TO: Port Director [Address]
Dear Port Director:
Pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et. seq., and implementing regulations, 19 C.F.R. Part 103, [importer’s name] respectfully requests your Office to provide copies of any and all documents pertaining to the importation of merchandise under CBP Entry [entry number], where the requester is listed as the importer of record. [Importer’s Name] desires to have copies made and furnished without first inspecting them. 19 C.F.R. § 103.5.
The records include, but not limited to, any and all documents pertaining to [entry/entry summary documentation, seizure, request for information, notice of action, etc.].
Further, in this request, the term “records” is used to include, but not be limited to, the following: all documents, reports, rough notes, manuals, lists, inter-agency memoranda, intra-agency memoranda, data, correspondence, books, telegrams, schedules, photographs, sound reproductions, ledger books, graphs, catalogues, statements or any other handwritten, typewritten, computerized, printed, recorded or graphic material of any kind or description whatsoever.
If any document is denied, in whole or in part, please specify which exemption(s) is (are) claimed for each document or portion denied and provide a complete itemized inventory and a detailed factual justification of the total or partial denial of each document. Specify the number of pages in each document and the total number of pages pertaining to this request.
In excising material, please “black out” the material rather than “white out” or “cut out.” [Importer’s name] expects, as provided by FOIA, that the remaining non-exempt portions of all documents will be released.
Please respond to this request within ten (10) working days as provided in the Freedom of Information Act and the implementing regulation 19 C.F.R. § 103.6. If you experience delay in complying with any one portion of the request, please do not hold back the other portions. [Importer’s name] is agreeable to a piecemeal delivery. If you have any questions, please contact [importer’s contact]. Please communicate your response(s) in writing to the following address [importer’s address].
[Importer’s name] agrees to pay reasonable charges incurred in connection with the requested search and the copying of the requested records and need no prior notice of the amount of the copying and search fees unless they exceed fifty dollars ($50). If you anticipate exceeding this $50 limit, please contact [importer’s contact].
Your Office maintains the proper jurisdiction to process this request pursuant to 19 C.F.R. § 103.5(d)(2).
Thank you,
/s/ [Importer]
Enclosures: [list exhibits or supporting documents if any]
