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Window Opening for Export Provisions in Customs Bill as CBP, Census Address Clerical Error Penalties

NEW ORLEANS -- The time may be coming soon to incorporate exporter priorities in upcoming customs modernization legislation, including provisions addressing clerical errors, as CBP and the Census Bureau also work to include language on clerical errors in penalty mitigation guidelines, CBP officials said during a panel discussion April 26.

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CBP is poised to submit its import-focused legislative proposals stemming from the 21st Century Customs Framework initiative in late summer or early fall, after expected adoption at a Commercial Customs Operations Advisory Committee meeting in June, according to Nicole Bivens Collinson, the National Customs Brokers & Forwarders Association of America’s legislative adviser. After that, a window for submitting additional trade facilitation proposals will likely open up as the bill is considered by the House Ways and Means and Senate Finance committees, she said, speaking at the NCBFAA’s annual conference.

Adding provisions on exports could help the overall bill move forward. “If you want to sell this bill, if you want to get it passed, you got to talk about exports,” Collinson said. And the path for adding export provisions is directly through the Hill, she said, referring to Congress on Capitol Hill.

While the COAC had pushed for proposing two legislative provisions addressing exports -- one adopting for exporters the same progressive filing model the proposal will include for imports, and the other providing that “clerical issues do not rise to the level of a violation” -- the Census Bureau was not comfortable with the changes in statute, said Garrett Wright, CBP director-trade modernization.

For its part, CBP was not comfortable with proposing legislation outside of its own agency jurisdiction, said Gail Kan, recently acting CBP executive director-trade policy and programs and now special adviser for trade. “COAC pushed it, we heard it and we had to step back and defer,” she said.

Census did agree with working with CBP on “cooling on the clerical issues threat” administratively, and CBP is “actively working with Census to bake that into our mitigation guidelines,” Wright said. “So there is language being developed right now,” he said. “It has to go through the approval process, but it's being developed right now. That, I think, is going to solve a lot of issues.”

Despite those efforts, the NCBFAA lists as one of its priorities for the customs modernization bill “recognizing clerical error as a defense for export claims, as is the case for imports,” according to a presentation slide shown during the panel discussion.

The trade association is one of several tasked by “the Hill” with putting together a consensus set of proposals from groups representing disparate supply chain actors, including the NCBFAA, the American Association of Exporters and Importers, the Business Alliance for Customs Modernization and the U.S. Council for International Business, Collinson said.

Lawmakers with a keen interest in trade, including Sen. Bill Cassidy, R-La., also are working to push facilitation proposals on their own, outside of the CBP’s 21CCF effort, and could introduce their own bills even before CBP’s proposals are put up for adoption in June, Collinson said. “They have a little bit more freedom in what they can do,” she said. “To that end, they’re starting to look at pulling together” ideas “from some of the trade interests,” Collinson said.

Despite concerns from some that time is running out on the bill because passage will be impossible once the 2024 presidential campaign heats up, Collinson sees consideration of the bill stretching out into 2024 or even into the next Congress in 2025. She said the bill’s non-controversial nature means it should move through Congress “pretty easily,” though she cautioned the process will still be slow and uncertain.

Despite the lack of export provisions in CBP’s 21CCF legislative proposals, the agency is willing to help get export facilitation into the final bill, Kan said. As the trade community takes the lead after the proposals are submitted to Congress, that next phase will be “the forum where you really want to put that focus on exports and work with the interagency," she said, "and CBP would always love to help facilitate that to the best of our ability."