CUSTOMS UPDATE: THE NEW 'HOMELAND' LOOK
Published in the Journal of Commerce
8/9/02

In the June 24-30, 2002 issue of JoC Week, Joel. R. Junker advocated the breaking up of the Customs Service into its separate law enforcement and trade facilitation functions. It seems some in Congress have the same idea.

The House of Representatives has passed its version of the Homeland Security Act of 2002, H.R. 5005. In it, all the functions of the Customs Service are transferred to the new Homeland Security Department. However, the job titles and functions listed as under the jurisdiction of the Commissioner of Customs exclude inspectors and agents. Apparently these employees will report to the Under Secretary for Border and Transportation Security.

While the bill is now being considered by the Senate, the version passed by the House leads to the obvious question of just how this new structure is going to work in a practical sense. If inspectors report to one part of the agency and the Import Specialists to another, what happens in case of a disagreement? How are operational issues to be resolved?

For traders, Customs is already notorious for providing almost no information in the case of a detention. Will inspectors now be allowed to hide behind the mantra of national security when declining to advise the importer or broker of what additional information is needed to obtain the release of detained goods? What will happen with the agents?

Recently chastised by the Court of International Trade for taking far too long to take action in a penalty case, what motive is there for agents to promptly deal with commercial cases when the appeal of cases involving terrorism, drug smuggling, money laundering, child pornography and the like is so much greater? Does the trade really want to rely on the kindness of the relationship between the Under Secretary and the Commissioner for relief?

Dramatic implications in new structure

There is little question H.R. 5005 was written to allow the House Ways and Means and Senate Finance Committees to retain jurisdiction over the trade issues currently part of their mandate. But this action leads to the question of just what dramatic complications lay ahead for traders. Perhaps the answer will come from the Special Assistant - Private Sector Liaison position being formulated?
 
This Special Assistant is charged with:

     (1) Creating and fostering strategic communications with the private sector to enhance the primary mission of the Department to protect the American homeland

     (2) Advising the Secretary on the impact of the Department's policies, regulations, processes, and actions on the private sector
 
     (3) Interfacing with other relevant Federal agencies with homeland security missions to assess the impact of these agencies' actions on the private sector

     (4) Creating and managing private sector advisory councils composed of representatives of industries and associations designated by the Secretary to:
         (A) Advise the Secretary on private sector products, applications, and solutions as they relate to homeland security challenges; and
         (B) Advise the Secretary on homeland security policies, regulations, processes, and actions that affect the participating industries and associations

     (5) Working with Federal laboratories, Federally-funded research and development centers, other Federally-funded  organizations, academia, and the private sector to develop innovative approaches to address homeland security challenges to produce and deploy the best available technologies for homeland security missions

     (6) Promoting existing public-private partnerships and developing new public-private partnerships to provide for collaboration and mutual support to address homeland security challenges

     (7) Assisting in the development and promotion of private sector best practices to secure critical infrastructure

Based on this list of responsibilities, it seems clear programs like the Customs and Trade Partnership Against Terrorism (C-TPAT) and Treasury's advisory committee regarding Customs Commercial Operations (COAC) will continue. However, nothing in this list of responsibilities requires the Special Assistant to do anything more than provide a vehicle for the trade to raise issues. How can the facilitation of legitimate trade and travelers be realistically accomplished if the very people involved in the inspection process are outside the jurisdiction of the Customs Commissioner? This turn of events may well lead to quite confusing and, therefore, expensive times for all of us, unless the Senate comes to its senses and places all of the agency's functions under one leadership.

The consensus in the trade community is general support for transferring Customs to the new department. However, that support has typically been provided based on the idea the agency would be able to properly function and balance trade facilitation with law enforcement. That assumption is now being sorely tested.

Questioning the current proposal is not unpatriotic, it is just common sense!