A senior official from Customs and Border Protection (CBP) this week said that any legislative effort aimed at curbing the evasion of trade remedy duties should preserve CBP's flexibility and avoid setting deadlines for it to respond to evasion complaints.
Speaking at a Nov. 28 press conference following CBP's East Coast Trade Symposium, Assistant Commissioner of International Trade Allen Gina said the agency has conveyed to congressional staff that each evasion complaint is "unique" and that the agency therefore cannot commit to addressing all claims within a specific timeline.
"What we've just asked of anybody who's addressing this issue is … build in some degree of flexibility that allows us to do a quality … review rather than something of quantity based on a time frame," Gina said.
He noted that one of reasons CBP may not be able to adhere to a specific timeline is that it often has to engage with other U.S. government agencies such as the Commerce Department in order to look into a complaint. Gina also stressed that CBP is a non-investigative agency and therefore has to work with Immigration and Customs Enforcement (ICE) in order to conduct an investigation and, if necessary, refer the matter to a U.S. attorney's office.
One of the key complaints by companies seeking to stop evasion of antidumping (AD) and countervailing duties (CVDs) is CBP's failure to respond to their complaints and report which steps, if any, it has taken to address them.
At a public session at the symposium, Gina emphasized that CBP must honor due process requirements, noting that some evasion allegations may not be valid or credible. "So we share [the desire of Ways and Means trade subcommittee Chairman Kevin Brady (R-TX)] and other members of the Congress … for us to be as transparent as we can in order to be as responsive as we can, but we're also reminded and sensitized to the fact that … everybody is innocent until proven guilty, and we want to make sure everybody's entitled to the appropriate due process," he said.
Gina's comments suggest that it could be hard for CBP to support a version of anti-evasion legislation passed by the Senate Finance Committee at a July 18 markup. The bill, the Enforcing Orders and Reducing Customs Evasion (ENFORCE) Act sponsored by Sen. Ron Wyden (D-OR), sets deadlines for CBP to pursue allegations of duty evasion and report the results back to stakeholders.
That bill differs from an alternative anti-evasion bill sponsored by Rep. Charles Boustany (R-LA) endorsed by Brady. Earlier this month, Brady said he planned to include Boustany's legislation in a larger customs reauthorization bill that he hopes to share "soon" with stakeholders for comment (Inside U.S. Trade, Nov. 23).
Boustany's bill, the Preventing Recurring Trade Evasion and Circumvention (PROTECT) Act (H.R. 5708) does not contain firm deadlines for CBP to respond to evasion complaints. The bill would direct CBP to inform interested parties that have raised complaints about the evasion of an AD or CVD order of the steps it has taken to address them. CBP would be free to do so at its own discretion without specific deadlines.
At the same press conference, Deputy Commissioner David Aguilar noted that CBP faces several constraints in following up on evasion complaints, including safeguarding privacy and ensuring due process for individuals who are the subject of a complaint.
The deputy commissioner said he believes CBP is doing "quite a bit" to curb evasion within its current bounds and constraints, but he conceded that it is possible to do more. In particular, he said CBP needs to ensure that it aligns itself with other agencies that might be involved looking into a complaint in order to allow information flow as quickly as possible.
Aguilar also told reporters that another constraint CBP faces relates to pursuing remedies against companies or individuals that may have evaded duties but are no longer in the U.S. "What do you do with a business that … [has] crossed the line, but they're in China?" he said. "How do you collect when he or she goes out of business?"
During the public event, he emphasized that all input by CBP staff to the legislative process is of a technical nature, and that it is up to Congress to determine whether or how that input gets incorporated into a bill. He said CBP does not comment on specific pieces of legislation.
Besides Boustany's PROTECT Act, there is also a House version of the ENFORCE Act, H.R. 3057, which shares key elements with its Senate counterpart, including setting firm deadlines for CBP to respond to evasion complaints. However, in contrast to the version approved by Finance, the pending House bill provides for administrative protective orders to protect business confidential information collected by CBP during an enforcement investigation.