Chapter 7. Maintaining Importation Documents: Recordkeeping Obligations

• Author: Michael D. Sherman
• Pages: 147-153

CHAPTER 7

Maintaining Importation

Documents: Recordkeeping

Obligations

MICHAEL D. SHERMAN

If a tree falls in the forest and there is no documentation of the event, did it really

happen? As far as CBP is concerned, the answer may be “no” even as the CBP

auditor steps over the uprooted tree lying horizontally across his path. Well,

maybe in this situation even CBP would believe, but in the world of CBP, there

is one fundamental dictate—proving it means documenting it. CBP, it could be

said, is guided by the words of former President Ronald Reagan (in another,

somewhat weightier context, but nonetheless fully applicable to CBP’s mindset):

“Trust, but verify.” The importance of the obligation of maintaining and produc-

ing records when requested by CBP cannot be overstated.

Simply put, it is the law, and that is a very good reason why its importance

cannot be overstated. What is the reasoning behind the recordkeeping require-

ments? As a U.S. court of appeals succinctly explained, it is to “enhance Customs’

ability to insure compliance with the Customs’ laws.” Very straightforward.

The statutory provisions related to record keeping are 9 U.S.C. §§ 508 and

509. The records that must be kept, maintained, and rendered for examination

are set forth in § 508, and § 509 gives Customs the authority to examine and to

require production of those records as well as to examine “any record” that may

be “relevant” to an investigation or inquiry. The recordkeeping regulations,

implementing the statutory mandates, are found in 9 C.F.R. part 63.

WHO ARE “RECORD KEEPERS?” H

The requirements apply to anyone whose activities are subject to CBP author-

ity—the importer, to be sure, as well as anyone filing a drawback claim, a party

who transports or stores merchandise under bond, and the like.2 The statute even

includes a person who “knowingly” causes an importation, but the regulations

make clear that “knowingly” only means if the person, placing an order with an

importer, controls the terms and conditions of the importation or provides equip-

ment, components, material assistance, etc., to the importer with knowledge that

they will be used in the production of the imported merchandise.3

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