CBP Would Stay Largely Open During Government Shutdown

CBP revenue collections will be among the Department of Homeland Security operations that will be exempt from an all-out agency stoppage in the event of a government shutdown, according to a Jan. 19 detailed contingency plan issued by DHS. Some 54,000 of the 59,000 CBP employees will be "exempt and estimated to be retained during a lapse in appropriations," DHS said. "These employees are exempt since they are Presidential appointees, law enforcement officers, funded by other than annual appropriations, or necessary for the protection of life and property." Government funding will stop after Jan. 19 unless legislators can reach a deal for a continuing resolution.

CBP estimated that it can "complete an orderly cessation of" most "other activities not identified as exempt functions within four business hours following notification of a lapse in appropriations." The contingency plans are similar to the plans released in 2013 ahead of a government shutdown that year (see 13093028). "The dedicated men and women of DHS are fully prepared to protect the homeland and keep Americans safe should a lapse in government funding occur," a DHS official said by email. "Nearly ninety percent of all DHS personnel are considered essential staff and will continue to perform their duties in the event of a government shutdown. We urge Congress to fully fund DHS in order to pay the federal employees on the front lines defending our nation.”

The contingency plans don't specify which CBP operations are not exempt, but during the 2013 shutdown CBP stopped processing ruling requests (see 13100413), among other things. Ahead of a possible shutdown in late 2017, Arent Fox compiled a list of potential effects on CBP and trade processing. "Employees not directly related to processing cargo (mainly at CBP HQ and regional offices) would be furloughed," the law firm said. "As a result, some 'non-essential' trade activity would stop." That included antidumping and countervailing duty evasion targeting and auditing, textile fraud monitoring or issuance of customs broker licenses.

The "deadlines for rulings and other decisions would also be potentially affected," Arent Fox said. "Many decisions would only be published and available after the shutdown ended" and "there is still an evolving body of law about the effects of a shutdown on these decisions." One notable case from the 2013 shutdown involved a disputed effective date of a ruling revocation (see 13110522).

Environmental Protection Agency processing of pesticide imports was a major issue during the 2013 shutdown but may be less of a problem now. Previously, paper Notices of Arrival (NOAs) were required before pesticides and devices could be imported and EPA personnel were unable to review the NOAs while furloughed (see 13101002). CBP in 2016 updated its rules to allow for an electronic alternative to the NOAs through ACE (see 1609290029). The Food and Drug Administration, on the other hand, largely saw its border operations continue with minor disruptions in 2013, though FDA holds were problematic due to a lack of staff available for review. EPA and FDA did not comment.