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Evaluating Risks and Exposures in Customs Transactions by Atty. George R. Tuttle
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Evaluating Risks and Exposures In Customs Transactions
June 20, 2012 Presented by George R. Tuttle, III George R. Tuttle Law Offices One Embarcadero Center, Suite 730, San Francisco Tel: (415)986-8780 Fax (415) 986-0908 E-mail: [email protected]
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About the Speaker
George R. Tuttle, III, Esq. George R. Tuttle, III is an attorney with the San Francisco law firm of
George R. Tuttle, P.C. For the past 25 plus years his practice has focused on import
regulation, Customs and Export Control matters. He has a wide range of experience handling Administrative, Judicial and enforcement matters, including classification determinations, rulings and regulatory interpretations, disclosures, investigations, and penalty cases. He also assists importers develop, and implement compliance programs.
Mr. Tuttle is a frequent speaker and instructor on Customs and export matters for various trade groups, including: AAEI, the Professional Association of Exporters and Importers (PAEI), Women-in-International Trade-Northern California (WIT-NC), San Francisco Customs Brokers and Freight Forwarders Association and the International Compliance Professionals Association (ICPA).
Mr. Tuttle can be contacted at: George R. Tuttle Law Offices One Embarcadero Center, Suite 730, San Francisco Tel: (415)986-8780 E-mail: [email protected]
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Why Evaluate Risks and Exposures In Customs Transactions?
Compliance extends beyond voluntary programs like ISA
Basic obligation of all importers Cost of non-compliance
– Disruption of business – Disruption of supply chain – Distraction to employees and
management – Penalties and Liquidated
damages – Detention and seizure of goods
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Evaluating Risks and Exposures In Customs Transactions
Like in life . . . – It is not what you see that
can hurt you . . .
– It is what you don’t see . . .
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What is a Risk Assessment?
“Risk Assessment and Self-testing Plan” described in Appendix I to the 2011 ISA Handbook – CBP allows flexibility and does not dictate specific
testing requirements “[E]ach company must perform its own risk assessment,
develop its own control procedures, and design its own self-testing program in order to monitor and mitigate risk and ensure that import transactions are accurate and compliant.”
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What is a Risk Assessment?
Appendix I -- August 2011 ISA Handbook states:
“Risk is the degree of exposure that would result in loss to the trade, industry, or the public.”
“Potential risk exists in ordinary day-to-day transactions as well as those extraordinary transactions that happen infrequently or unintentionally.”
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The Risk Equation
How do we measure risk? Subject + # transactions + Cost = Risk Cost of noncompliance
– Monetary (duty/ fee under or overpayment/ fines)
– Operational (i.e., supply chain impact) – Reputation
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Common Customs Penalties
False Statements 19 USC 1592 – 2x to 4x loss of Revenue (Negligence (+)
Liquidated Damages – 1 to 3x the entered value
Record keeping Up to $10K and loss of SPI benefit C/O Marking
– Detentions, Liq damages or 10% of value Imports contrary to law 1595a(c)
– Detain and seized
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Risk Matrix (Example)
Subject Area
Transactions Cost of Noncompliance
Risk
Classification All High High
Valuation Many Medium Medium
Origin Few Low Low
Special Trade None None Low
Recordkeeping All High High
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Risk Matrix
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Evaluating Your Risks and Exposures
What is a “risk assessment?” – Identify transactions that are
risks to CBP compliance
– Evaluate risks for effects, and
– Design control activities to manage/ minimize those risks.
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Where to Begin?
Identify Customs programs use by your company
Identify persons knowledgeable about products and programs;
Assemble compliance team
Review regulations and legal requirements
Determine what records must be maintained and/or procedures that must be followed
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Evaluating Your Risks and Exposures
Common subject areas associated with risk assessments --
– Classification – Valuation (multiple sub categories) – Special Trade areas / Transshipment – Quantity – Recordkeeping – Antidumping/ Transshipment
New “risk” areas include: – Product safety—CPSC/ FDA/ Medical – Trademark / trade names
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Where to Begin?
Select a Subject (i.e., Class, Value, FTA, etc) – Where should my data come from?
ACE/ ITRAC/ Special Broker Reports Company Business Reports
– Purchase Order Reports – Payment Records Reports – Receiving Records Reports
– Period of Review? – What is my sample size?
Statistical Judgmental
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Where to Begin: Data Collection and Analysis
Obtain copy of importer activity report “ITRAC” or ACE reports from Customs
– Review data for information on Exporters/manufacturers values tariff classifications Special duty /preferences
Link CBP web page – http://www.customs.gov/xp/cgov/admin/fl/foi
a/making_a_request/itrac/itrac.xml
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Where to begin: Data Collection and Analysis
Available ITRAC information includes:
– Filer Number – IOR – Ultimate Consignee – Entry Number – Entry Date – HTS Number/Desc. – Entered Value – Manuf. Id – Est. Duty/ Rate – Country of Export
– Country of Origin – Related Party Status – Special Program Indicator – Liquidation Date – Entry Type – Mode of Transport – Discrepancy Types – Export Date – Exams
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Specialized Broker Reports
Practice Tips – Considered Specialized Broker Invoice line item Reports
(See example) – Brokers/ Filers can added information to 7501 for:
Supplier Invoice Number Purchase Order
– Can you trace supplier/ vendor payments to Customs Entry? Do payment records reference vendor name and invoice
Number or Purchase Order?
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Specialize Broker Reports
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Specialize Broker Reports
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Risk Review Process
Review the company’s risk environment, such as: – Imports from specific manufacturers or suppliers
– Large volumes of imports under special duty provisions or special trade programs
– Large volumes of imports under tariff classifications with no or low duty rates or complex classification requirements
– Shipments from new suppliers or vendors
– Use of “First sale” or multi-tiered” purchase transactions
– Imports subject to antidumping, textiles and other sensitive Customs issues
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Tariff Classification Risk Reviews
Practice Tip – Use PO or Receiving Reports to
identify high value or high volume SKUs
– Identify products with unique classification requirements / duty free / low duty rates
– Match part or SKU with import tariff classification
– Test accuracy of tariff classification for high value / volume SKUs
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Tariff Classification Risk Reviews
– Does company: Maintain a record of the tariff classifications at the part or SKU level
(product/classification matrix)?
Document classifications with technical information and reference to pre-existing rulings or HTS classifications and Explanatory Notes
Rely on Broker to classify?
– Review high value or high volume SKUs
“Top 20” by volume or value of imported products?
Products that account for 70% of 80% of imports?
New suppliers or new products?
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Valuation: Where to begin-- Valuation Issues
Basis of Appraisement – What is my company’s “Basis of
Appraisement?” Valuation methods When does “transaction value” apply?
– Do I have imports from related parties? – Do I have no-charge shipments? – Do I have shipments based on assembly charges only?
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Transaction Value
When is transaction value appropriate? – Must have a sale of the imported goods for export to the United
States.
– No restrictions on disposition or use, except those
Imposed by law
Geographical resale territory
Which do not otherwise substantially affect the value
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Customs Valuation: 1401a(b)(2) The Related Party Rule
The transaction value of imported merchandise shall be the appraised value of that merchandise for the purposes of this chapter only if -
– *** (iv) the buyer and seller are not related, or – the buyer and seller are related but the transaction value is
acceptable
Burden is on importer to establish that the relationship does not affect the price
Customs has published ICP on valuation for related party transactions
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Acceptability of Inter-company Prices Based On “IRS” Transfer Pricing Methodology
CBP and IRS Transfer Pricing rules are not the same --
– “Customs approach to related party transactions differs from the IRS approach . . . the [IRS] methods review profitability on an aggregate basis, not a product by product basis.”
– “Customs generally analyzes related party transactions at a more detailed product by product level . . .
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Related Party Imports
Inherently A “Risk” – Need to evaluate related party transactions
against CBP Rules, i.e., “All costs plus a profit” Other methods may be acceptable New Ruling from CBP dealing with Post-import transfer
price adjustments – Customs Bulletin and Decision dated May 30, 2012 (Cust.
Bul. and Dec., vol. 23, no. 46) – Broker errors in categorizing supplier as (R)
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Valuation: Other Valuation Issues
• Focused Assessment Questionnaire Valuation Issues
Price Actually Paid or Payable Assists (e.g., Materials / Component Parts, Tools, Dies, Molds,
Merchandise Consumed, Engineering, Development, Art Work, Design Work, Plans)
Packing Charges Selling Commissions Royalties and License Fees Proceeds of Subsequent Resale Transportation Costs (e.g., International Freight, Foreign inland
Freight, Insurance)
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Valuation: Other Valuation Issues
Retroactive Price Adjustments (such as: Periodic and year end transfer price adjustments)
Price Reductions to Buyer to Settle debts (e.g., Reductions for Defective Merchandise)
Price Increases
Rebates and Allowances
Indirect Payments to 3rd Parties that benefit seller
Payment of Seller’s Debt by Buyer (e.g., quota)
Purchases on Consignment
Currency Exchange Adjustments
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Valuation: Where to begin Data Collection and Analysis
Obtain financial information related to:
– Accounts Payable and Vendor reports
– Sort ITRAC or ACE entry line by MID code and determine total value for period
– Sort vendor payments for same period
– Compare totals and determine reason for discrepancies
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Valuation: Where to begin
Review high value and/or high volume suppliers
– “Top 10” suppliers by volume or value?
– Suppliers that account for 70% of 80% of imports?
– New suppliers or new products?
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Price Paid Risk Analysis
Example: – Rank Supplier Transactions by value & quantity
MID # 1 - 20% by value of all import transactions MID # 2 -- 23% by value of all import transactions Others? Low value but high entry or line count Use ACE or ITRAC
– Consequences Under/ over report customs value Under/ over paid customs duties and/or fees (MPF) Potential Monetary penalties: 20%-40% value of merchandise
– Risk – High
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Valuation: Price Paid
The Generra Rule – All payments made by a buyer to a seller, or a
party related to the seller, are part of the price actually paid or payable for the imported merchandise. (Generra Sportswear Co. v. U.S., 8 CAFC 132 (1990))
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PRICE ACTUALLY PAID OR PAYABLE
Importers are often invoiced separately by vendors / suppliers for:
– tooling, molds, packaging items
– Expedited or “hot lot” manufacturing fees
– Small lot or small quantity surcharges
– Product modifications
– NRE or separate tooling charges for startup production costs
– Testing costs -- 542187 dated Nov. 7, 1980 (TAA No. 11); 543645 dated Feb. 17, 1987.
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PRICE PAID OR PAYABLE
Use P/O and Accounts Payable Data For Vendor selection and review: – Review account data, journal entries and
descriptions
– Match payment transactions to import entries If there are there differences in value, why?
Are there payments for separate services/ tooling/ Equip?
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Customs’ Four-way Match
(2) Invoice
(3) Payment
(1) Purchase Order
(4) Customs Entry Value
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Data Collection and Analysis
Key Business Documents – Finance Dept -- what are key general ledger accounts used
to record payments for goods, materials, equipment, royalties/ license fees and R & D ?
– Supply Contracts
– Production Agreements
– Royalty or License agreements
– R & D or Design and Development Cost Sharing Agreements
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Assists: What are they?
Generally, tangible items sent by the buyer – Directly or indirectly to the foreign supplier;
– Free of charge or at reduced cost;
– For use in connection with the production or the sale for export to the United States of the merchandise.
Legal Definition 1401a(h) – Materials, components, parts, and similar items incorporated in the
imported merchandise.
– Tools, dies, molds, and similar items used in the production of the imported merchandise.
– Merchandise consumed in the production of the imported merchandise.
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Assists: What are they?
Non-U.S. “intangibles” originating: – Engineering, – Development, – Art and design work – plans and sketches
Necessary for the production of the imported merchandise.
Will include U.S. and foreign based workers located at foreign production/ Mfg site working on development/ production. (excludes: management and QC services)
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Assists
Interview Manufacturing/Production for assist issues Sort Accounts Payable by Vendor
– Review vendor activity – Look for Vendors with high dollar value or frequent transactions – Review A/P and requester – Ask/ document whether assists (tooling/ components/equip) are
provided
Identify high value/ quantity vendors and suppliers of imports– – Review company export data/records from shipping for shipment of
components, tooling and equipment, to those vendors – Obtain Capital or Fixed asset report and check location of equipment
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Assists
Identify new product vendors or shifts in production Review
Supply Contracts
Production Agreements
R & D or Design and Development Cost Sharing Agreements
Profit split or profit sharing Agreements (may be treated as “Proceeds of subsequent resale”)
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Assists: What are they?
Machinery and Equipment – General treated as “fixed assets”
– Fixed asset ledger or register identifies the value and location of company owned fixed assets.
– Fixed assets which have a useful life of less than one year are not capitalized.
– Improvements or alterations made to an existing asset justifying capitalization, such additions should be made to the cost of the original asset.
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Valuation Issues
Deductions for Transportation Costs (e.g., International Freight, Foreign inland Freight, Insurance) – Does company engage in:
CFR — Cost and Freight CIF — Cost, Insurance and Freight DAP — Delivered at Place DDP — Delivered Duty Paid DAT — Delivered at Terminal
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Valuation Issues: Deductions
Does Broker take deductions from Invoice Price for:
– International Fright – Insurance – incidental international loading & transportation costs
HQ H178135, November 22, 201; H092560, dated April 7, 2010; HQ H119858, dated September 9, 2010; and HQ H119857, dated September 9, 2010.
– T.D. 00-20: importer may only deduct the actual costs for these charges from the price actually paid or payable.
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Valuation Issues: Royalties & License Fees
Fees paid for patents generally part of “price paid or payable” Fees paid for trade marks and copyrights may not, unless paid as a
condition of “right to import” Does company have Royalties & License agreements?
– What are General ledger accounts? – Are fees paid to exporter or party related to seller?
Use G/L Account to identify existence of agreements – Review language of Agreements – Some agreements reference both right to use patents and trademarks – Identify product suppliers and products
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Valuation Issues: Packing Charges
Separately charged packing materials are part of “price paid.” – See, HQ 545154 , dated June 3, 1994; HQ H028000, dated June
20, 2008. Review requirements with Purchasing
Sort Accounts Payable by Vendor – Review vendor activity or A/P reports
– Ask/ document whether
– Look for Vendors with high dollar value or frequent transactions Review A/P accounts with manager and requester
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Valuation Issues: Commissions
True “Buying Commissions” are not part of price paid
“Selling Commissions” are part of price paid
Does agent take “title” or ownership of goods (independent seller)?
Discuss Subject Matter with Procurement/ Buyers/ Sourcing teams – Identify vendors or agents that receive a commission – Evaluate relationship and/or language of specific agency agreement – Review CBP Rulings & Informed Compliance Pub. on “Buying
Commissions.” See HQ H125835, May 18, 2011.
Review A/P for possible unidentified commission payments related to imported merchandise
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Valuation: The “First Sale” Rule
The “First Sale” Rule
– CBP presumes that the price paid by the importer is the basis of transaction value
– In a multi-tiered distribution system the manufacturer's price constitutes a viable transaction value when the goods are: Clearly destined for export to the United States and the manufacturer and the middleman deal with each other at arm's
length. Manufacturer must have a “sale” to middleman for export to the United
States
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Valuation: The “First Sale” Rule
What data will you use for your “First Sale” Risk Analysis? – Vendor / AP list – ITRAC or ACE entry line data
Select transactions for testing: – High value/ quantity (line item) suppliers
– High value/ quantity items
– Does price paid mach declared customs value?
Is appropriate documentation available to support claim?
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Risk Analysis: Special Trade Programs
Sort ITRAC or ACE entry line data by SPI codes or tariff classifications (i.e., 9801/ 9802/ 9813)
Select entry line transactions for testing: – High value/ quantity claims
– High value/ quantity (line item) suppliers
– High value/ quantity items
Is appropriate documentation available to support claim? – Do you need certifications and/ or Mfg affidavits? – Do you need access to underlying production or Mfg source documents?
§181.22 NAFTA Certificate of origin and supporting records
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Risk Analysis: Special Trade Programs
9801/9802 claims require (19 CFR 10.1): – Foreign Shipper Declarations – Evidence of US export – U.S. Manufacturer declarations – Has company applied for and received waiver
from Port? – Review HQ H007668, dated June 20, 2007
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Recordkeeping
Importers are required to maintain entry records and related documentation for five years from date of transaction
Entry Records ((a)(1)(A) List) subject to Recordkeeping penalties (examples):
– 7501 and other “entry” forms – Commercial invoice – Bill of lading – Declarations/ supporting document for special claims – FDA/ FCC/ TSCA-- other OGA forms
Appendix to Part 163-Interim(a)(1)(A)List
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Record-keeping Risk Review
Sort ITRAC entry line data and summarize by entry and filer.
ACE Entry Summary report (AM_68) by date
– Perform 100% entry audit against (AM_68) or ITRAC to insure 100% entry records
Can do monthly, quarterly or annually.
(a)(1)(A) List Document Check – Create (a)(1)(A) document check List – Determine sample size/ stratification for you – Stratification ideas: broker/file and supplier
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Risk Analysis: Dumping & CVD
Scope of case may or may not include HTS
Goods may be transshipped through non-assessed country
Broker/filer may use wrong assigned rate
Summary of AD/CVD cases: http://pubapps2.usitc.gov/sunset/
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AD/CVD order In Place
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Department of Commerce AD/CVD Scope Descriptions
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Risk Analysis: Quantity
Quantity – Unacceptable practices: declaring numbers of containers
rather than number of units – Does Receiving report unresolved quantity discrepancies
to Trade Compliance? – Audit receiving discrepancy reports for accuracy – Does Trade Compliance report quantity discrepancies to
CBP?
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Conducting Your Risk Assessment
Identify risks and compliance goals – Identify legal and regulatory compliance objectives
– Sample entry and financial transactions
– Identify errors and causes, and
– Share results with other affected groups
– As a group determine how errors can be eliminated – develop written procedures that “reasonably ensure”
compliance objectives are met.
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What Are “Internal Controls”
Definition
A process directed by company management and other personnel
Designed and implemented to provide reasonable assurance that any given import transaction fully complies with U.S. import requirements.
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Preparing Internal Controls
Each control should include
– A statement of purpose (why control is necessary)
– Define accountability and responsibility for reporting in internal control documents and job descriptions.
– Description of procedure(s) to be followed
– Explanation of verification process
– Process for reporting & correcting errors, as appropriate using PEA or similar program
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Preparing your Internal Controls
Each process should explain . . . – Who does what? – What do they do? – When do they do it? – How do they document that they do it? – Who checks that they did it?
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Preparing your Internal Controls
Keep procedures simple!
Don’t reinvent the Wheel
Say what you are going to do & Do what you say!
Test and verify to make sure you have done what you said you were going to do!
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Resources: Customs Publications
– Customs Valuation Encyclopedia of Rulings and Decisions – Informed Compliance Publications
• Bona Fide Sales & Sales for Exportation to the United States • Buying & Selling Commissions • Customs Value • Determining the Acceptability of Transaction Value for Related
Party Transactions • Importation of Commercial Samples • Proper Deductions for Freight & Other Costs
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Resources: Customs Publications and FA Guidance
– Exhibit 4F - A Guide for Supporting Generalized System of Preferences (GSP) Claims
– Exhibit 5E - HTSUS 9801.00.10 - U.S. Goods Returned - Technical Information for Pre-Assessment Survey (TIPS)
– Exhibit 5H - HTSUS 9802.00.80 - U.S. Articles Assembled Abroad - Technical Information for Pre-Assessment Survey (TIPS)
– Exhibit 5M - Generalized System of Preferences - Technical Information for Pre-Assessment Survey (TIPS)
– Exhibit 5Q - Israel Free Trade Act (IFTA) - Technical Information for Pre-Assessment Survey (TIPS)
– Exhibit 5R - African Growth and Opportunity Act - Technical Information for Pre-Assessment Survey (TIPS)
– See Exhibit 5S - Quantity - Technical Information for Pre-Assessment Survey (TIPS)