Based on recent activity in Congress, the possibility of a shutdown of US federal government activities for at least a brief period is looming larger. The government is funded until January 19 2018 and the prospect of a shutdown is growing.
Importers have asked how a partial shutdown would affect import activities. Below is a brief summary compiled from various sources and reflects what the US Customs and Border Protection (CBP) and other government agencies involved in import operations would likely do in the event of a shutdown. While the CBP could always modify its plans in future, this information – which is similar to what occurred during the 2013 federal government shutdown – can be useful as a planning tool for importers.
A government shutdown would affect more than just CBP import operations. Other agencies, such as the Food and Drug Administration, the Environmental Protection Agency, the Consumer Product Safety Commission and the United States Department of Agriculture, would also have their import monitoring or import documentation processing operations affected. In fact, a shutdown of these activities could lead to cargo processing delays, as these agencies have 'release and hold' authority over shipments independent of the CBP.
Cargo clearance and port activity
Overall, cargo clearance operations would continue. CBP officers and agriculture specialists would continue to show up to work, but would not be paid during the shutdown. However, how port activities would function is a matter for individual ports. Importers should contact their brokers and forwarders for questions specific to a particular port.
Since cargo clearance would continue, entry review screening for cargo security and screening for illegal imports would continue. Import specialists and entry specialists would continue to work and review entries, without pay.
Foreign trade zone operations would continue. Centres for excellence and expertise would continue to operate, but national account managers would be furloughed.
CBP headquarters and regional offices
Employees not directly connected to processing cargo (mainly at CBP headquarters and regional offices) would be furloughed. As a result, some non-essential trade activity would stop, including:
- e-allegations responses;
- anti-dumping and countervailing evasion targeting and auditing;
- processing of Jones Act waiver requests;
- prospective rulings, internal advice decisions or protest decisions by the Office of Regulations and Rulings;
- customs broker licences;
- training of CBP officers; or
- monitoring for textile fraud.
Customs – Trade Partnership Against Terrorism (C-TPAT) security validation visits and processing would not occur during a shutdown. C-TPAT members should contact C-TPAT if there are upcoming deadlines for clarification on the impact of any potential partial shutdown.
Automated Commercial Environment (ACE) developments could continue for a few weeks based on existing funds, but no ACE training or tech support would be available during the shutdown.
Deadlines for rulings and other decisions may also be affected. Many decisions would be published and available only after the shutdown ended. There is still an evolving body of law about the effects of a shutdown on these decisions, but one case from the 2013 shutdown period may prove illustrative. In Best Key Textiles Co Ltd v US(1) the Court of International Trade found that the 60-day notice period before a ruling revocation became effective under 19 USC 1625 and began to run after actual publication of the Customs Bulletin (rather than running from its listed publication date earlier during the shutdown). This would likely extend to other deadlines for items in the Customs Bulletin. The Department of Homeland Security and CBP will likely publish guidance as any shutdown looms.
For further information on this topic please contact David Salkeld or Orisia Gammell at Arent Fox LLP by telephone (+1 202 857 6000) or email ([email protected] or [email protected]). The Arent Fox LLP website can be accessed at www.arentfox.com.
Endnotes
(1) 942 F Supp 2d 1367, 1374 (2013).
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