The current Infringement Notice Scheme contains ‘amber line’ provisions in Customs Act subsections 243T (5) and (6) as exceptions to the strict liability offence for false statements resulting in a loss of duty. The rationale for keeping the provision was that the penalty is directly related to the amount shortpaid and has no maximum limit.
It should be noted however that amber line is only available in respect of false or misleading statements that may result in a loss of duty. It cannot be used for exports or for imports where the statement does not result in loss of duty or in cargo or outturn reports.
The most important matter of which to be aware when considering sending a FID ‘amber line’ is that amber line no longer provides protection from penalties being imposed after goods have been cleared.
Inputting “amber line” statements on FIDs.
Goods can be sent amber line by reason of uncertainty as to details for classification, dumping / countervailing, origin, preference, quantity, treatment code or valuation.
Section 243U provides that a person lodging an ‘amber line’ FID must make a statement that is similar to the following:
“In accordance with subsection 243T (5) of the Customs Act 1901, I am uncertain as to information pertaining to [describe information, e.g., classification] in lines [ ] and consider that as a result of including/not including that information, this statement might be false or misleading in a material particular. I am uncertain as to the information for the following reasons [ ].”
The import declaration provides a field for amber line statements to be made. If you are lodging electronically direct into the ICS, you can access an amber continuation screen by pressing <enter> with a blank control field and an amber statement continuation screen will be displayed. If there is insufficient space on the statement for all the grounds for the uncertainty to be detailed, an attachment should be attached to the FID, which will probably be redlined. This attachment should
be on company letterhead
specify the line numbers on the FID covered
identify the uncertainty or omission
give reasons or grounds for that uncertainty and
be signed by the owner of the goods or their broker.
Authority to deal and an exception to 243T
Please carefully note that ABF advice, after lodging amber line, that the goods are available for payment, or may be delivered, does not also mean that the criteria in subsection 243T (5) or (6) have been accepted as met because ABF may continue to investigate the matter. FIDs with amber statements are generally automatically set to a HOLD status and ABF can request further documentation or arrange for the goods to be examined before providing an authority to deal. The provision of an authority to deal after verifying the particulars of an amber line entry also does not guarantee the criteria in the legislation have been met in order to avoid a penalty.
If after review and whether or not an authority to deal has been issued, ABF consider that a false statement is serious enough to warrant consideration for an infringement notice, a delegate of the CEO will then examine the matter to ascertain, among other considerations, if the criteria in subsection (5) or (6) have been satisfied.
It is therefore important that brokers are aware that the amber line does not provide absolute protection from penalty. If a FID is to be lodged amber line they should ensure they have met the criteria contained in subsection 243T (5) or (6), and that any necessary post warrant amendments are entered and paid in a timely and accurate manner, as well as having due regard to storage charges that may occur as a result of a redline routing and review.
Importantly ABF require that if uncertainty exists, reasonable inquiry has been undertaken to clarify the matter before lodging ‘amber line’, which effectively means that if, for example, you are uncertain of tariff classification or the application of a particular TCO, lodge an application for tariff ruling before lodging the FID in preference to lodging it amber. A TA should provide protection against penalty, provided any posts required after the decision are lodged in a timely manner. Amber line does not provide a similar protection.