CBP Creating AD/CV Single Bond Guide, COAC Considering IPR "C-TPAT"

(Note that this is the first COAC meeting where CBP Commissioner Bersin was not in attendance. See ITT’s Online Archives 11093006 for BP summary on Bersin’s departure from CBP if not confirmed by the Senate by December 31, 2011.)

AD and CV Enforcement and Collection of Duties

New CBP Dumping Team to Focus on Evasion and Duty Collection

CBP has created a Re-Engineering Dumping (RED) team to, among other things, identify the threats, challenges, and vulnerabilities of each step of the AD/CV process.

According to CBP, the major RED team activities are:

• STB if evasion suspected. Creating Single Transaction Bond scenarios which will guide CBP ports on when to require importers to submit single transaction bonds if CBP suspects that AD/CV evasion is taking place.
• Ensure brokers receive POAs. Emphasizing to Brokers their responsibility in requiring power of attorney to ensure legitimacy of importers.
• Improve collection, enforcement. Developing programs that will strengthen the AD/CV administration, enforcement and collections process.
• Hold compliance webinars. Developing webinars on how to comply with various orders. (This is anticipated to be available to both an internal as well as an external audience.)
• Map AD/CV process. Identifying the major steps in the import process, the Department of Commerce AD/CV process and the areas where CBP currently has vulnerabilities and where CBP is taking enforcement action.
• Share enforcement data. Exploring the use of sharing CBP enforcement data with Commerce as part of their Administrative Protective Order record so that interested parties/petitioners are provided feedback more timely.
• Set five year strategy. Developing a 5 Year AD/CVD Strategy.

COAC Subcommittee Looking at Pilots, Bonding, Info Sharing

Although the COAC AD/CV Subcommittee did not have any recommendations to submit to CBP at the October meeting, the subcommittee emphasized that its goal is to form specific recommendations and potential pilot projects that can help address ongoing concerns related to the collection and enforcement of AD/CV duties.

The subcommittee noted that its recent discussions on AD/CV issues have included the following areas:

• how the bonding process could be utilized as an effective took to ensure compliance;
• expedited information sharing between CBP and others (including the trade), including intra-agency information sharing, that can help identify areas of concern in the most timely manner; and
• examples of recent CBP success stories as well as other CBP tools such as e-Allegations¹ and ideas on how to further publicize such stories and tools to lead to additional enforcement success.

Subcommittee to Analyze “Retrospective v. Prospective” Issue

The Subcommittee has formally decided to undertake discussion and analysis of one additional aspect of the overall AD/CV issue -- the “retrospective vs. prospective” AD/CV system and the role this issue plays with collection and enforcement.

(See ITT’s Online Archives 10120807 for summary of ITA’s report to Congress on retrospective and prospective AD/CV duty collection systems.

See ITT’s Online Archives 10052180 for summary of CBP Commissioner Bersin’s testimony before Congress on AD/CV issues, including the retrospective/prospective issue.)

During the last COAC meeting, CBP Commissioner Bersin paid particular attention to this aspect of AD/CV enforcement, and noted that effective enforcement would not be possible until this overarching issue is dealt with.

(See ITT’s Online Archives 11082902 for summary of AD/CV enforcement discussion at August 2011 COAC meeting.)

No Mention of AD/CV Jump Teams

Although the use of “jump teams” for AD/CV enforcement was discussed at the August 2011 COAC meeting, it was not discussed at the October COAC meeting.

Intellectual Property Rights Enforcement

Subcommittee Exploring C-TPAT-Like Programs, Authentication “Keys,” Etc.

The COAC IPR Subcommittee is in the process of finalizing its recommendations to COAC on the facilitation area (i.e., expedited processing to speed the release of legitimate goods) of CBP’s IPR Enforcement Strategy and is exploring the following:

• C-TPAT-like programs - viability of C-TPAT-like supply chain management programs for trusted partners through which CBP could obtain advance information on low risk imports. Currently, the subcommittee is testing program viability by reaching out to various trade organizations for feedback.
• Authentication “key” - use of a distribution chain management solution to IPR enforcement. This serialization concept might include the generation of some “key” that is passed through the supply chain as a way of validating the authenticity of merchandise. The subcommittee is testing program viability by reaching out to various trade organizations for feedback.
• Targeting database - establishment of a robust database for use by CBP Officers and by the Automated Targeting System (ATS) in determining the authenticity of merchandise and in improving targeting to focus inspections on high risk cargo.
• IPR “key” in cargo release data - voluntary transmission of an IPR “key” to CBP by legitimate importers in the cargo release data set that would link to a robust database. A valid IPR key would lower the “IPR targeting score” for that shipment, shrinking the haystack for CBP and speeding release for the importer.
• ISF-type advance data for IPR - use of Importer Security Filing-type data for improved IPR targeting pre-arrival. Under Simplified Entry, cargo release decisions will likely be made earlier, requiring targeting for admissibility and trade violations pre-arrival.
• Sharing samples with rights holders - the legal authority to share unredacted samples with right holders prior to seizure with appropriate safeguards for all legitimate importers.

The subcommittee states that it will continue its work to explore these concepts, assess feedback from the trade, and finalize its facilitation recommendations to COAC.

Subcommittee Says Importers May Not Want ISA Component for IPR

The Subcommittee notes that during the last term of COAC, the IPR Subcommittee discussed the possibility of creating an IPR component to the Importer Self-Assessment Program. However, Subcommittee members have indicated that an ISA-IPR program may not be attractive to importers. CBP has asked the Subcommittee for other ideas for identifying shipments as low risk for IPR infringement.

(See ITT’s Online Archives 11042622 for summary of the issue of an IPR component for ISA at various Spring 2011 CBP events.)

¹CBP’s online reporting system for allegations or information on infringing conduct or shipments of infringing goods being imported into the U.S.

(See ITT's Online Archives 11100411 for summary of the 17 documents CBP posted in advance of the October 4 COAC meeting.)