Nearly one-third of exporters have lost sales because of U.S. export regulations, according to the CBP Advisory Committee on Commercial Operations (COAC) 2013 Export Survey (here). COAC members discussed the survey, the first of its kind, at a meeting on Nov. 15 in Washington, D.C. Two of the main takeaways from the survey were the impact of export regulations on exporters and freight forwarders and the high cost of exports held at ports. One way the government could mitigate these negative outcomes is through flexible programs that target risk based on industry sector, said CBP’s Dan Baldwin.
CBP modified the National Customs Automation Program test that allows importers to use the Automated Broker Interface to file post-summary corrections (PSCs) of certain pre-liquidation ACE entry summaries (ESAR IV). The modifications to the ESAR IV test program "will allow filers greater access to data filed in ACE as it relates to the original entry and any subsequent PSC, limit certain additional data elements from being changed via PSC, and preclude a PSC on any entry that has been protested or where merchandise covered by the original entry has been conditionally released and its right to admission has not been determined," said CBP. CBP has been considering how to handle the question of greater data access since soon after the test was announced in 2011 (see 11081219).
The Advisory Committee on Commercial Operations (COAC) Role of the Broker working group recommended that it suspend efforts to draft requirements for certain information collection on importers by customs brokers until the agency finishes a proposal on updates to the Importer ID Input Record (CBP Form 5106). The recommendation, voiced during the Nov. 15 COAC meeting, would allow the COAC to see which proposed Form 5106 changes overlap with the bona fides efforts. A CBP report recently released on the issue pointed outlined some of the difficulties the working group faced in developing a standard of bona fides requirements (see 13111225).
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The National Customs Brokers and Forwarders Association of America (NCBFAA) applauded the Food and Drug Administration’s proposed definition of importer for the purposes of the Foreign Supplier Verification Program, in comments to agency submitted Nov. 14. In its July proposed rule, FDA proposed to define the importer as “the person who caused a food to be imported,” rather than as the CBP importer of record, because the nominal importer of record may not know much about the product (see 13072628). “This is an important distinction and we are encouraged that the FDA showed such a clear understanding of the nuances of the supply chain,” said NCBFAA. But while NCBFAA praised the agency’s adoption of its preferred importer definition, the association raised some concerns with implementation.
The National Customs Brokers and Forwarders Association of America (NCBFAA) asked the Federal Motor Carrier Safety Administration (FMCSA) to provide clarity on how the agency is interpreting the Moving Ahead for Progress in the 21st Century Act (MAP-21) and how it effects those involved in international trade. NCBFAA General Counsel Ed Greenberg of GKG Law submitted the Nov. 14 filing with FMCSA. The filing specifically requests information from FMCSA on how the agency is interpreting the MAP-21 statutory exemptions from bonding and registration requirements for customs brokers, non-vessel operating common carriers (NVOCCs), and indirect air carriers.
Prior disclosures of customs violations don’t protect companies from False Claims Act whistleblower lawsuits, said the U.S. Attorney for the District of Colorado in a brief filed Nov. 8. The government filed the brief as part of a lawsuit brought by Colorado customs broker Bonnie Jimenez against her former employer OtterBox. Jimenez alleges OtterBox knowingly failed to include assists in the transaction value of cellphone cases it imported from China over a five-year period (see 13100701). She says she repeatedly warned top management at the company, and was eventually fired for her trouble. As the whistleblower in a False Claims Act case, Jimenez stands to share in the proceeds if the Colorado U.S. District Court assesses penalties and damages against OtterBox. The U.S. government hasn’t intervened in the lawsuit, and declined to take a position on OtterBox’s alleged misdeeds in its brief. But it said OtterBox’s prior disclosure did not begin a formal CBP penalty proceeding, and doesn’t preclude Jimenez’ whistleblower suit.
Cargo processing delays and exams continued to be the largest challenge faced by importers and brokers, according to the second annual trade efficiency survey, which was released Nov. 8 by CBP. The survey, completed in July by the Advisory Committee On Commercial Operations (COAC), is meant to be a look at CBP's trade facilitation efforts and success at lowering costs of compliance. The retroactive system of antidumping/countervailing duty orders seems to have a disproportionate effect on the trade industry considering the amount of discussion and controversy the issue creates, the survey said. The survey was among a large set of COAC materials released by CBP (see 13111227).
CBP posted its draft agenda and 23 other documents for the upcoming Advisory Committee on Commercial Operations of Customs and Border Protection (COAC) meeting on Nov. 15, which include the results of the 2013 trade efficiency survey, draft recommendations, and other documents on trade modernization, the global supply chain, trade enforcement and other topics. The draft agenda is (here). The trade survey (here) will be summarized in more detail in a future issue of ITT.
Some major questions on a requirement for proof of importer identity that should be obtained by customs brokers remain unresolved within a CBP Advisory Committee on Commercial Operations (COAC) subcommittee focused on the issue, it said. The issue of which importer bona fides should be required information for customs brokers is being considered as part of CBP's trade modernization efforts, which include an overhaul to the regulations for customs brokers in 19 CFR Part 111 (see 12062211). The COAC Role of the Broker Working Group started actively working on the bona fides issue in July, said a report from CBP released ahead of the Nov. 15 COAC meeting.