More Room for Facilitation Proposals After 21CCF Draft Hits Congress, NCBFAA Lobbyist Says

NEW ORLEANS -- Much-anticipated customs modernization legislation likely won’t be introduced for at least another few months, but the National Customs Brokers & Forwarders Association of America’s legislative adviser isn’t worried about running out of time for Congress to pass it into law before the presidential election cycle, she said during a panel discussion April 26.

“Some folks are concerned about, we got to get it passed this year. If we don’t get it passed this year, it's not going to happen in an election year,” said Nicole Bivens Collinson of Sandler Travis (see 2304180076). “I absolutely believe this can happen in an election year. I don’t think it’s a problem at all.”

Speaking at the NCBFAA’s annual conference, she said the customs modernization legislation is “non-controversial,” and “not something that members of Congress are going to lose constituent votes over.” The bill “is not something that’s going to influence the presidential election outcome. I’m sorry, it’s just not.” And even if the bill doesn’t move in 2024, “I think we will have made significant progress and be ready to blast right into the next session of Congress, and I think it would move quickly in that session,” Collinson said.

The work of CBP’s 21st Century Customs Framework (21CCF) effort toward the customs modernization bill will culminate in June, when the Commercial Customs Operations Advisory Committee is due to make final recommendations on around five remaining CBP proposals, as well as CBP’s version of four out of the six trade facilitation proposals that came out of an October meeting among CBP, partner government agencies (PGAs) and the trade community, said panelist Garrett Wright, director-trade modernization at CBP.

The other two trade facilitation proposals involved PGA requirements. CBP decided those fell outside its jurisdiction and would be inappropriate to include in the package of proposals, Wright said.

The bill's language likely won’t be ready for introduction until July at the earliest, and possibly not until just before the August recess or even September, Collinson said. The measure likely will move through the standard legislative process, beginning with the consideration of amendments and hearings in the Senate Finance and House Ways and Means committees.

Because the bill is “pretty milquetoast” and “not really flashy,” it will likely move through Congress “pretty easily,” Collinson said, though she cautioned that "what is easy today just means that it might move faster than a glacier, and that it might move with some bipartisan support, and that it might actually pass both chambers of Congress,” she said.

But before the bill is introduced, Collinson expects that “some members” of Congress “who are a little less patient” might introduce other smaller customs bills “piecemeal,” even before the June COAC meeting. “Some pieces of legislation are actually being drafted right now,” she said. One of the bills “floating out there” includes a provision that would codify the Border Interagency Executive Council, she said. Another may address Section 321 de minimis shipments.

Rather than a tidy push of CBP’s 21CCF proposal through Congress to the president’s desk, the process likely will begin as multiple members of Congress “dumping it in the laps” of trade staff for the Finance and Ways and Means committees, and saying “we want you to sort it out.” That means that, “we’re probably going to see another bill that has a little bit of this, a little bit of that,” Collinson said, comparing it to “baking a cake.”

Sen. Bill Cassidy, R-La., is a particularly “strong flag waver” for the trade community, and he and his staff “want to put a stamp of approval on a lot of things,” particularly after the trade community's unexpectedly cold reaction to his initial attempt at a customs bill (see 2111030035), Collinson said. “I think that his staff felt like they were sort of hung out to dry because they thought that they were going to get a better reaction from the trade community than they did,” she said.

This time, Cassidy wants to “make sure there is a balanced level of facilitation,” Collinson said. “They understand the COAC is going through” the 21CCF process and “there are some agreed provisions, but they also think that there may be buttons that they can push a little bit further where CBP may be hesitant because it’s outside their jurisdiction,” she said, noting CBP’s reluctance to propose PGA-related legislative provisions. “They have a little bit more freedom in what they can do.”

“To that end, they’re starting to look at pulling together” ideas “from some of the trade interests,” Collinson said. In response, the NCBFAA has put together a list of its own priorities, which include harmonizing “core data” and PGA definitions, pre-clearance at foreign ports, electronic payments for all transactions and the inclusion in the legislation of the Customs Business Fairness Act, according to a slide shown in a presentation during the panel discussion (see 2303140058).

Collinson said she has also begun discussions at the behest of “the Hill” with a group that represents interests across the trade community, pulling together the American Association of Exporters and Importers, the Business Alliance for Customs Modernization and the U.S. Council for International Business as well as the NCBFAA. The group is trying to “agree or at least put forward some points that they all think that they could work toward and support” in terms of trade facilitation measures for importers and exporters, she said.

Other NCBFAA-specific priorities include “one entry, one portal, one release,” a single “governing body” that includes all PGAs and “an equal seat at the table for the Trade,” and a requirement for agencies to publish contact info for trade-facing roles on their websites and an organization chart “for trade engagement.”

The broker group is also pushing for recognition of clerical errors as a defense for export claims, as is the case for imports.

“If you want to sell this bill, if you want to get it passed, you got to talk about exports,” Collinson said in response to an audience question about exporter clerical errors. But because the provision would involve PGAs rather than exclusively CBP, the way to get it in the legislation is “going through the Hill,” she said.

A ninth NCBFAA priority centers on a centerpiece of CBP’s 21CCF proposals, which is a change to the entry statute at 19 USC 1484 that would allow multiple nontraditional parties to provide advance data on a shipment. The NCBFAA says the advance data should be “vetted and verified” by the importer or customs broker “before holding the importer responsible and finalizing the entry.” Gail Kan, recently acting CBP executive director-trade policy and programs and now special adviser for trade, said that provision has made it into CBP’s proposal.

Entry is still going to be the point where CBP and the trade determine what duties, taxes and fees are, Kan said. At that point, either the importer of record or its broker would “be the ones to make that conversion” of advance data provided by other parties to entry data, she said. “The importer of record is responsible for all duties, taxes and fees,” so “they should be the ones that decide when something becomes an entry,” Kan said.

Submission of advance data “is an opportunity for brokers,” said Vince Iacopella of Alba Wheels Up, also on the panel. “We generally do better when there’s more data,” he said, though he added that the ability for importers and brokers to vet data prior to entry “is really the hill to die on.”

Iacopella thinks “brokers will be involved” and will be the majority filers of entries with advance data, and “software companies will jump on it if they see a commercial advantage.” But the process “remains to be played out,” he said. “I don’t think this is baked yet. I think this is a great start."