Government Shutdown Could Last Three Weeks or More, NCBFAA Counsel Says

The upcoming, near-certain government shutdown should last at least one week, and has a good chance of lasting three weeks or more, said Nicole Bivens Collinson, legislative counsel for the National Customs Brokers & Forwarders Association of America, speaking on a call hosted by the NCBFAA Sept. 29.

"I don't think we're on a good path and my prediction is that we will have a shutdown," Bivens Collinson said, adding that it will happen "regardless of what happens" between now and the final deadline of 12:01 a.m. Oct. 1. She gave a 40% chance that the shutdown would last more than one week.

Bivens Collinson said that she believes some members of Congress have taken the stance that it is better from a political standpoint to "have a shutdown than to try to keep the government open" based on their "ability to raise funds for the upcoming elections."

She said that while Republicans have a five-seat majority in the House, there are about 30 Republicans blocking House Speaker Kevin McCarthy, R-Calif., from moving forward, setting up the potential for a vote of no-confidence for McCarthy, which would mean the House would spend time trying to choose a new speaker (or retain McCarthy) instead of dealing with the shutdown.

The NCBFAA call mostly focused on how government operations would be affected by a lapse in funding. NCBFAA Customs Committee Chair Ralph De La Rosa and Richard DiNucci of Venable, the law firm which represents the NCBFAA as transportation counsel, both said that CBP operations would continue during the shutdown, including inspections at ports of entry, work at the Centers of Excellence and Expertise, as the NCBFAA has said previously (see 2309270052).

De La Rosa recommended downloading the Harmonized Tariff Schedule in case there are any system glitches. He said in prior shutdowns "some of the websites" went down during the shutdown and "if memory serves, I think the HTS was one of them." De La Rosa said "we don't want to be in a situation where we're scrambling to be able to classify our goods."

DiNucci said that CBP likely will set up a "war room" to connect with other partner government agencies (PGAs). That was a request made in a letter from the NCBFAA in preparation for a potential shutdown (see 2309180064).

During the shutdown, any questions for Automated Broker Interface Client Representatives should be directed to CBP Headquarters at cbptechnologyservicedesk@cbp.dhs.gov, De La Rosa said. The ABI Client Representatives in the field are likely to be furloughed, he said.

As for PGAs, Mike Lahar, the NCBFAA Regulatory Agencies Committee chair, recommended putting a message out to clients telling them to watch their PGA messages "very closely." Lahar said that while some of these agencies may be up and running, they may not be at 100%.

"If they are going to do an exam, or if there's a hold, it may not come until later than we are used to seeing," Lahar said. "So we need to make sure that our customers do watch the messages and that they are aware that even if in some cases, like EPA, that they decide to use the merchandise, there could be ramifications later on where EPA or another agency could decide that they want to see the shipment and the shipment hasn't been held and it's not available, then there could be problems."

FDA will operate nearly as usual with 80% of their workforce intact, Lahar said. FDA import operations will continue to function, as those positions are deemed essential. Lahar said that despite that, staffing levels "may not be equal across the board" and that some ports, especially smaller ports, may have furloughs.

On the other hand, most staff at the Consumer Product Safety Commission will be furloughed, Lahar said. There will be some CPSC staff available at the ports of entry, but that capacity will "be limited," he said. Automated "may proceeds" from CPSC will continue, he said, but it's unclear whether there will be any support for the automated process and "what would happen if those systems" fail.

EPA regional staff will be furloughed during the shutdown, said Cindy Thomas, who's also on the NCBFAA RAC. That means that, as in previous shutdowns (see 1901100031), there will be no processing of paper notices of arrival for pesticide shipments and "no response to emails or calls from the trade." Automated "may proceeds" should still work but any issue that requires EPA attention will not get approval, she said.

EPA has reserved the right to "ask for further review after they've issued that may proceed," which could cause some issues, depending on how long the shutdown lasts. The EPA said they reserve the right to review for 30 days, but it's unclear, if the shutdown lasts a while, whether EPA will review them. EPA staff have said they are still working on a contingency plan, she said.

The Fish and Wildlife Service will continue to work during the shutdown, but it won't issue "designated port waivers and most other permits and licenses," NCBFAA RAC Vice Chair Karen Damon said. Damon said that during the last government shutdown, the eDecs automated entry processing system was temporarily halted, causing delays due to manual clearance processes. Despite this, key import-related staff at the FWS headquarters will continue to work during the shutdown, she said.

National Oceanic and Atmospheric Administration Fisheries personnel are expected to be furloughed, but that will not impact trade significantly, with the exception of toothfish imports, Damon said. NOAA approval is not required for most seafood shipments, but toothfish do require NOAA approval and CBP is "not likely" to clear toothfish shipments during the shutdown, Damon said.

The Animal and Plant Health Inspection Service will largely remain intact with about 80% of its workforce, Damon said. "The preclearance and inspection of fruits and vegetables is going to continue, as well as animal quarantine import and export activities," Damon said. But delays still can be expected "since staffing will not be at 100%," she said.

The Bureau of Alcohol, Tobacco, Firearms and Explosives imports branch will not be "processing import applications" during the shutdown, and ATF staff will be furloughed, Lahar said. The ATF will be at "limited capacity" for critical activities and that will be limited to filing government contracts, he said. "So essentially, any shipments we would handle as a customs broker, ATF will not be there to help our customers," Lahar said.