trade declarations Archives

Anyone who has ever arrived at an airport outside of his or her home country knows all too well the chaotic, tedious, and time-consuming process of going through customs and immigration.

Now imagine that, instead of people, the lineup was made up of tractor-trailers full of time-sensitive goods and was several kilometers long because there aren’t enough customs officials to process the backlog of required paperwork. Somewhere far away from the lineup is a business owner impatiently waiting for those goods and becoming far more open to the idea of finding a new supplier. Now you’ve got a sense of what the borders of the UK and EU will be like come January 1, 2021. The total volume of import and export declarations entries is anticipated to balloon to approximately 400 million annually after Brexit, adding about £13 billion a year in cost to businesses. What’s more, British officials estimate only about one in three small-to-medium-sized businesses are prepared for the customs changes compared with about 70% of large businesses.

The good news is that for those businesses engaged in trade across the English Channel (small or large), there will be some relief in the form of a fast pass. It doesn’t let you skip the queue, but it does allow you to join it with far less fuss.

With the Brexit deadline fast approaching, this is the time for traders to embrace the UK’s customs simplifications for their future business activities.

What is CFSP?

CFSP was first introduced in 2001 to enable the import of shipments by traders from third countries to be completed in two stages – an initial declaration with reduced content is submitted at the port, and a second supplementary declaration containing full data is submitted weeks later (or months later in the case of phase one of the Brexit import declaration program). The use of CFSP provides a trader with greater certainty of the receipt of goods and cash flow savings.

During the first phase of Brexit, traders of non-controlled goods who wish to defer the finalization of their import declaration for six months may elect to use Entry in the Declarant’s Records (EIDR) rather than the submission of a full or initial port declaration. This process allows importers to use their commercial records to have goods clear customs without being required to complete a full custom import declaration or the initial CFSP declaration. However, the commercial records must be supplemented with additional information required by H.M. Revenue and customs using a Supplementary Declaration via CFSP within six months of the date of import.

An importer who uses the CFSP deferred declaration process can also participate in the Postponed Value-Added Tax (VAT) accounting scheme.

Who can apply for it?

A customs broker can be authorized for CFSP and provide this on an importer’s behalf; however, more complex import operations would benefit from an importer obtaining his or her own authorization.

If an importer decides to become authorized for CFSP in their own right, an application in advance of importing must be submitted and approved and 120 days should be allowed for the approval of the application. One key factor for importers to consider when applying for CFSP is that it is not merely a matter of applying for and being granted authorization. Applicants will also require software to produce supplementary declarations to the authorities.

To be eligible for CFSP, an importer must:

-Fulfill a set of criteria and comply with any additional criteria for the simplified procedure(s) required for his or her business model.

-Maintain and retain records for all shipments processed under CFSP.

-Keep a clear audit trail, and ensure all records are backed up and kept secure.

The requirements of CFSP for an importer in their own right can be costly and time-consuming, and as such should be weighed against an intermediary completing such activities on an importer’s behalf and using their CFSP authorization.

It is imperative that controls are in place by importers to validate customs declarations made on their behalf to ensure errors are captured and corrected.

Although CFSP will allow faster release of goods, use of simpler customs declarations, and cashflow benefits to importers; these can be outweighed by the additional fees and software costs. Importers looking to make an informed decision regarding whether or not CFSP is worthwhile for their businesses should conduct a thorough cost and business-process analysis and an equally thorough review of services and cost benefits.

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David Merritt is a director in the Global Trade Consulting division of trade services firm Livingston International. He can be reached at dmerritt@livingstonintl.com.

On May 21, 2020, the U.S. Department of the Treasury published a proposed rule that would amend the scope of mandatory filings before the Committee on Foreign Investment in the United States (“CFIUS”), an interagency body that reviews foreign investments into the United States to assess national security risks. The proposed rule follows the Treasury Department’s publication of the regulations implementing the Foreign Investment Review Modernization Act, a statute passed in 2018, which aimed to streamline and modernize the CFIUS review process.

We previously summarized the CFIUS regulations here and here. The proposed rule amends the scope of the mandatory declaration requirement for transactions involving U.S. businesses involved in critical technologies and makes clarifying revisions to the definition of “substantial interest” in the context of acquisitions involving foreign governmental involvement.

Modification of Critical Technology Rules for Triggering Mandatory Declarations

Most notably, the proposed rule would make three key changes to criteria triggering a mandatory declaration requirement in transactions involving a “TID U.S. business” involved in “critical technologies.” (For an analysis of what constitutes a TID U.S. business, please see our earlier alert here.) The current rule requires a mandatory declaration to be filed, among other circumstances, in a covered investment or covered control transaction of a U.S. business involved in critical technologies that are used or designed for one or more industries identified by NAICS codes in Appendix B to 31 C.F.R. Part 800. The proposed rule would, first, refine the scope of the critical technologies triggering the mandatory declaration by covering only those technologies that would require “U.S. regulatory authorization” for the export, re-export, transfer (in-country), or retransfer to the foreign acquirer involved in the transaction.

Second, as described further below, while focused in the first instance on the nationality of the foreign acquirer, if the foreign acquirer is itself subject to an ownership interest of 25% or more from a person in a third country, the export licensing requirements applicable to that third country person will also be relevant. Third, the amendments would eliminate the current requirement that the TID U.S. business be listed as one of the industries identified in Appendix B.

Regarding the first element, the proposed rule would define the term “U.S. regulatory authorization” to include authorization required by the Department of State under the International Traffic in Arms Regulations (“ITAR”); the Department of Commerce under the Export Administration Regulations (“EAR”); the Department of Energy relating to assistance to foreign atomic energy activities; or the Nuclear Regulatory Commission related to the export or import of nuclear equipment and material. In most cases, the availability of a license exception under the applicable export control regime would not be given effect; that is, if the export requires a license to the applicable parties under the relevant export control regime, the availability of a license exception for export would not similarly provide an exception to the mandatory declaration rule.

There are, however, four carve-outs—the first concerns the general authorization under Department of Energy export controls, and the other three concern three license exceptions under Part 740 of the EAR (specifically, the Strategic Trade Authorization (STA); Technology and Software – Unrestricted (TSU); and paragraph (b) of the Encryption (ENC) license exceptions). Thus, for example, transactions with foreign acquirers from countries with favorable treatment under the EAR’s Strategic Trade Authorization (STA) license exception at 15 C.F.R. § 740.20(c)(1) may be exempt from mandatory declaration requirement under the proposed rule. Second, the proposed rule could potentially expand the scope of transactions that trigger a mandatory declaration based on the export license requirements applicable to owners of the acquiring foreign entity.

In this regard, the proposed rule would also make the mandatory declaration requirement applicable to transactions where there is a foreign person who holds or is part of a group of foreign persons that together hold, a “voting interest for purposes of critical technology mandatory declarations” in a foreign acquirer. The proposed rule defines the term “voting interest for purposes of critical technology mandatory declarations” as a 25% voting interest or, in the case of entities organized as partnerships, a 25% interest in the general partner, managing member, or equivalent of the entity. Thus for, example, if foreign acquirer X of a TID U.S. business is from country to which a critical technology can be exported without a license, but X is 25% or more owned by Y in a third country to which an export license would be required, the mandatory declaration regulation would be triggered.

Finally, although not necessarily its intent, the proposed rule may actually broaden the application of the mandatory declaration requirement by removing the current Appendix B, such that the declaration requirement would no longer be limited to only those 27 industries listed in Appendix B. As a result, any acquisition of a U.S. TID business with the requisite involvement with a critical technology may trigger the mandatory declaration requirement, without regard to the industry in which the TID business operates.

Modification of Definition of “Substantial Interest”

The proposed rule would also amend the definition of “substantial interest” for purposes of transactions involving foreign governments. The current regulations require a mandatory declaration to be filed in transactions where a foreign person obtains a “substantial interest” in a TID U.S. business, and a foreign government (other than excepted foreign governments, currently only the U.K., Australia, and Canada) has a “substantial interest” in the foreign acquirer. The current definition of “substantial interest” applies, with respect to a foreign government’s interest in a foreign acquirer organized as a partnership or similar entity, when the foreign government holds at least 49% of the general partner, managing member, or equivalent of the entity.

The proposed rule would narrow that provision by applying it only when the general partner or equivalent entity primarily directs, controls, or coordinates the activities of the foreign acquirer. The current rule also contains a provision that any “voting interest” held by a parent entity in a subsidiary entity will be deemed to be 100%. Because there was some confusion as to whether this provision applied to non-voting partnership interests, the proposed rule would remove the term “voting” to clarify that this provision applies to such entities organized as both corporations (and equivalent entities) and partnerships (and equivalent entities).

Comments Due by June 22, 2020

Comments on the proposed rule may be submitted through June 22, 2020. Parties with interests which may be impacted by the rule should strongly consider submitting comments prior to this deadline to ensure that all relevant industry insight is considered by CFIUS prior to the final rule becoming effective.

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Simplifying Customs Procedures in the Post-Brexit Period

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