Customs Bills Need Balance Between Facilitation and Enforcement, Congressional Report Says

Forthcoming customs reauthorization legislation will force Congress to confront tensions between trade security and trade facilitation, costs and benefits -- including how to implement the International Trade Data System and monitor Automated Commercial Enforcement -- according to a March 22 report on CBP from the Congressional Research Service. Most of the issues for Congress relating to CBP reauthorization stem from the “inherent tension between the commercial interest in trade facilitation and the often competing goals of enforcing trade laws and import security measures,” said the report, which also details the agency’s history and programs.

A customs bill could codify existing trade facilitation programs like the Centers for Excellence and Expertise, for example, since such programs appear to be supported by industry. But some legislators “may assert that these programs align CBP too closely with industry partners, and therefore, might call into question CBP’s import security and trade enforcement functions,” the report said.

Legislators will face similar questions over the Customs-Trade Partnership Against Terrorism (C-TPAT). CBP’s “risk management” approach to import policy relies on trusted trader programs like C-TPAT, yet some businesses say the benefits of the program are too little, especially considering the time and money required to get certified, the report said. Congress could expand C-TPAT benefits in an effort to boost program participation -- so far, only about 8 percent of customs brokers have joined, the report said -- and facilitate trade flows. “In practice, however, it may be difficult to expand C-TPAT benefits,” the report said, citing limited capacity to add port lanes and CBP security concerns. “The best way to encourage C-TPAT membership may be to increase enforcement against non-members, thereby increasing the relative benefits of C-TPAT membership.”

ACE Funding

The report also mentions the longer -- and costlier -- than expected transition to the Automated Commercial Environment. CBP reportedly believes it has enough funds for ACE through fiscal year 2014, the report said, but the agency will need to pursue other funding to cover expected shortfalls for the 2015 and 2016 fiscal years. Congress has different options to monitor ACE: funding through its oversight function, during the appropriations process or passing additional legislation, the report said.

Congress can also influence how CBP implements the International Trade Data System (ITDS), which it calls a tool for improving interagency coordination; a key role, since CBP and partner agencies “have different missions and do not always collaborate successfully to implement U.S. import policies.” A 2012 Department of Homeland Security report found that CBP and Immigration and Customs Enforcement do not always share intelligence related to investigations, and even have data systems that are not designed to allow efficient information sharing. Congress could require each agency with responsibility for cargo clearance to use ITDS exclusively for authorizing the documentation, clearing or licensing of cargo, the report said. Some legislators, however, “may be reluctant to delegate additional enforcement powers to CBP because doing so may dilute the enforcement authority of other federal agencies, potentially undermining their own missions.”

The report also said improving port-of-entry infrastructure and expanding port-of-entry personnel will help speed trade flows and make more resources available for inspections. “Yet these types of win-win programs often are expensive to implement, and Congress may be reluctant to make such investments at this time.” Cost is also a big factor in Congressional consideration of the Department of Homeland Security’s 100 percent scanning program, which requires all maritime cargo containers admitted into the U.S. to be scanned. The Department extended the deadline to meet this requirement, and some members of Congress are frustrated over slow progress, the report said. The decision to delay was based on concerns about costs, logistics and limited cooperation from foreign governments and businesses, which often do not fully support 100 percent scanning, the report said. CBP also estimated that illicit cargo is in less than 1 percent of incoming containers, so “focusing enforcement on the likeliest containers may be the most effective enforcement strategy,” the report said. -- Jessica Arriens