Outgoing CBP Commissioner Kerlikowske Discusses Agency's Recent Enforcement Focus

NEW YORK -- CBP issued a request for proposals seeking a private company to collect fines on its behalf, CBP Commissioner Gil Kerlikowske said at the Court of International Trade Judicial Conference on Nov. 21. Once selected, the collection agency will cost nothing to the taxpayer, instead taking a percentage of whatever fines it collects, he said. “Perhaps they’ll do a better job,” he said, noting congressional criticism of CBP’s collection efforts. “I’m not sure,” he said. In any case, CBP will learn about new collection methods and how they work, Kerlikowske said. A CBP official said in July that CBP is going through a procurement process with “multiple vendors” to find a company to collect unpaid antidumping and countervailing duties (see 1607280025).

Reflecting on his tenure as commissioner with about two months left until the change in administrations, Kerlikowske noted the increased attention CBP received following enactment of the Trade Facilitation and Trade Enforcement Act (TFTEA) in February. Much of that attention was enforcement-related, he said. Kerlikowske “never had more phone calls with more members of Congress” than the week the customs reauthorization bill was signed, and every legislator who called said enforcement should be key, he said. The president himself, immediately following his signing of the legislation, told Kerlikowske to “remember the enforcement posture.”

The number of reports and amount of information required by TFTEA has “really put an added workload on our folks,” Kerlikowske said. One area of increased focus has been bans on imports of goods produced by forced and prison labor following TFTEA’s elimination of the “consumptive demand” exemption, which previously allowed imports of products not otherwise available in sufficient quantities. Non-governmental organizations often point to the Labor Department’s list of goods produced by forced or child labor, but a mere presence on the DOL list is not evidence in itself that CBP should issue a withhold release order, he said. Upcoming rulings from CBP’s Office of Regulations and Rulings should provide additional clarity on forced labor import issues, Kerlikowske added.

Corporate board members need to take seriously another development that occurred on Kerlikowske’s watch, he said: the Federal Circuit’s decision on corporate officer liability for import violations in Trek Leather. There’s a “huge level of frustration among the American people” that corporate boards and individual officers weren’t held accountable following the 2008 collapse of the economy in recession, he said. It’s “very important” that CBP use its authority to go after corporate officers in cases of egregious violations of customs laws, Kerlikowske said. “That being said, we’re not going to err on the side of sweeping someone into a net,” he said. Corporate board members ought to take their roles seriously, knowing they will be held accountable “if the information and the evidence leads in that direction,” he said, “What did you know, when did you know, what level of responsibility and accord did you have?”

Though much recent discussion on the presidential transition has focused on border security, CBP has enough infrastructure already to tackle any such issues, he said. When 68,000 unaccompanied minors were coming across the Rio Grande Valley toward Texas, it wasn’t a border security issue; rather, the would-be immigrants walked straight up to CBP ports of entry to file asylum claims, he said. CBP has 18,000 border patrol agents, aircraft, drones and ground sensors. “We have a lot of stuff at the border,” Kerlikowske said. It isn’t a question of CBP trying to chase someone that’s trying to sneak through the border between ports of entry, he said. The issue is much more about the “global migration issues” affecting not only the U.S. but other countries as well, how those issues are handled and "how people are treated,” Kerlikowske said.