On August 20, 2021, U.S. Customs and Border Protection (“CBP”) issued Cargo Systems Messaging Service (“CSMS”) message # 49132200 addressing documentation requirements for import shipments valued over $2,500 to qualify for the duty-free “U.S. and Foreign Origin Goods Returned” preferential tariff provision under HTSUS Subheading 9801.00.10. As a reminder, the Trade Facilitation and Trade Enforcement Act of 2015 (“TFTEA”), signed into law on February 24, 2016, modified Subheading 9801.00.10 to include U.S. goods returned at any time as well as foreign origin goods returned within three (3) years of original export.

The new CSMS guidance aligns with the current documentation requirements in 19 C.F.R. § 10.1 (last revised in 2015). Essentially, the CSMS message reiterates that imports under HTSUS 9801.00.10 should be supported by a foreign shipper’s declaration (Section 10.1(a)(1)) and a declaration by the owner, importer, consignee, or agent having knowledge of the facts regarding the claim for free entry (Section 10.1(a)(2)). It also confirms that if the person making the declaration is a corporation then the declaration should be signed by the president, vice-president, secretary, treasurer or any employee or agent covered under a proper power of attorney, and that the declaration should be supported by a corporate certification. The CSMS confirms that if the value of the returned goods exceeds $2,500 and the goods are not marked with the name and address of a U.S. manufacturer then Customs may require additional documentation including a U.S. manufacturer’s statement verifying U.S. origin for the goods.

Significantly, the new CSMS message provides advice to customs brokers emphasizing the need to exercise responsible supervision and control when entering goods under HTSUS Subheading 9801.00.10. In that regard, it states that “An example of the broker exercising responsible supervision and control for Subheading 9801.00.10 claims is providing proof of the broker’s communication with the importer on what is required for such claims.” In the event that a customs broker fails to exercise responsible supervision and control when filing HTSUS Subheading 9801.00.10 claims, then the guidance warns that CBP may “address that deficiency through the broker informed compliance process” in the Broker Management Interim Guidance II document.

Husch Blackwell will continue to monitor CBP guidance with respect to regulatory changes involving HTSUS 9801.00.10.

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