Customs and International Trade Law Blog : International Trade Lawyer & Attorney : Becker & Poliakoff Law Firm : Customs Law, Border Protection

On May 20, 2010, the top management of both U.S. Customs and Border Protection (CBP) and the U.S. Immigration and Customs Enforcement (ICE) testified before the U.S. House of Representatives' Committee on Ways and Means Subcommittee on Trade.   Chairman Tanner said the hearing was "to strike the right balance" between trade facilitation and security.  Unfortunately, the Committee heard all about the enforcement success of both ICE and CBP without hearing about the difficulties faced daily by importers and customs brokers.

Chairman Tanner accurately stated:

There has been a growing concern that, in particular, CBP's modernization of trade functions, facilitation of trade, and enforcement of traditional customs laws have appeared to lag while the agency tightened security screening of passengers and cargo.

ICE was particularly proud of its accomplishments by its National Intellectual Property Rights Coordination Center.  In ongoing Operation Guardian, ICE has interdicted substandard, tainted, or counterfeit products, including food and medicine that pose health and safety risks to American consumers.  $26 million of such condoms, circuit breakers, toys, extension cords, honey, and shrimp were seized by ICE and CBP.

What was not revealed was how many unnecessary delays and expenses were caused by ICE and CBP for the legitimate merchandise that entered or transited the United States.  In order to determine the effectiveness of the targeting programs used by CBP, Congress needs to inquire about the number of detentions and examinations by CBP, and the consequential financial costs to importers.  The U.S. Government Accountability Office (GAO) is also concerned with properly targeted imported food shipments, as indicated in its May 6, 2010 report on "Food Safety".

Does CBP do a good job at targeting imported shipments?

Peter Quinter, Partner in Charge, Customs and International Trade Department

pquinter@becker-poliakoff.com or (954) 985-4101

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I attended the Advisory Committee on Commercial Operations of Customs and Border Protection (COAC) meeting on February 25, 2010 in Miami.  The 20 private sector members of COAC are jointly selected by the Department of Homeland Security and the Department of the Treasury, and include knowledgeable customs compliance and logistics personnel from such prominent companies as DHL, APL, Hasbro, and GE.  The COAC meets four times a year to discuss creating or changing the policies and procedures of U.S. Customs and Border Protection (CBP) as they affect the international trade community. 

The Miami meeting included an introduction by Acting Deputy Commissioner David Aguilar, referred to as "Chief" which is his title with the CBP component U.S. Border Patrol.  Chief Aguilar spoke about "security," "resilience," and "protecting customs and exchange" which apparently is the new terminology for the former "facilitating international trade".  His introduction focused on assessing and mitigating risks of people and cargo entering the United States.

Substantive presentations were made by, among others, Therese Randazzo, Director, IPR Policy and Programs, Office of International Trade on behalf of the IPR Subcommittee.  Therese discussed the new IPR sample bond form for trademark and copyright owners to use to get samples of detained or seized merchandise from CBP. 

Rich DiNucci, Director, Secure Freight Initiative, Office of Field Operations on the topic of Importer Security Filing, stated there were 2,300 ISF filers with 141,000 unique importer record numbers. Rich stated that the timeliness of the ISF or "10+2" filing has increased to 75%.  No penalties would be issued by CBP for ISF filing errors or failure to file...for now.

Bradd Skinner,  Director, Industry Partnership Programs, Office of Field Operations, spoke about C-TPAT (Customs-Trade Partnership Against Terrorism). Bradd announced that CBP now had 9,710 certified C-TPAT members, a dramatic increase from the original 7 members in 2001.  1,200 new members were added in 2009.  CBP Security Supply Chain Specialists conducted 14,000 validations so far in 87 countries.  297 companies were suspended or removed from C-TPAT in 2009.

The COAC is an excellent way for private sector persons and companies to interact with top level CBP and Treasury personnel regarding the critically important, and sometime competing, objectives of security and trade. Now more than ever, our Government needs to listen closely how to improve the daily lives of its citizens. Chief Aguilar, thanks for listening.

Peter Quinter, Partner, Customs and International Trade Department.

pquinter@becker-poliakoff.com or (954) 270-1864

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On February 1, 2010, Department of Homeland Security Secretary Janet Napolitano announced that the Department's budget for fiscal year 2011 would be $56 billion.  This was the first time for the Democratic Obama Administration to formally unveil its budget priorities after taking over from the Republican Bush Administration.  Guess what - it's more of the same.

The Federal Government's fiscal year runs from October 1 to September 30, so the Fiscal Year 2011 budget begins on October 1, 2010. Examples of more of the same include more Federal Air Marshals on international flights, 500 more machines at airport checkpoints to detect dangerous materials, 275 more explosive detection canine teams, and more machines to scan 40 foot ocean containers entering the country for weapons of mass destruction, explosives, contraband, and illegal aliens. Compare this with prior budgets or the 2008 Five Year Plan for DHS, and you too may conclude that this is more of the same.

The Department of Homeland Security includes U.S. Customs and Border Protection, the U.S. Secret Service, the U.S. Coast Guard, the Transportation Security Administration (TSA), Immigration and Customs Enforcement, FEMA, and the U.S. Citizenship and Immigration Services.  There are 230,000 employees in this mega-Department.

There are 3 items I especially like in the proposed budget. 

(1) raising the journeyman level for uniformed Customs Inspectors, Border Patrol Agents and Agricultural Specialists from the GS-11 to GS-12 level (a $10,000 base salary increase to $60,000);

(2)  a substantial increase in funding for stopping counterfeit merchandise from entering the United States, something which is very serious when we are talking about medicines, car and aviation parts; and

(3)  dual immigration priorities of (a) making it easier for legal immigrants to become citizens, and (b) removing from the United States illegal aliens who have been convicted of a crime, and are serving time in state and local jails.

If people voted for Obama with the expectation of drastic changes in homeland security policies, they will be sorely disappointed.  If people who did not vote for Obama were anxious that he would change the course of national security and counter-terrorism efforts of the prior Bush Administration, they will be pleased. 

For me, my desires are much simpler. If and when Secretary Napolitano announces that TSA no longer requires us to take off our shoes at the airport, then I'll know there is progress.  When my local police department gets rid of the huge barriers in its parking lot around the police department building, I'll be pleased. Unfortunately, the hundreds of billions of dollars spent on homeland security efforts since 9/11 will probably not result in my local library soon re-opening the after-hours book return slot.

Peter Quinter, Partner, Customs and International Trade Department.

pquinter@becker-poliakoff.com or (954) 270-1864

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