Citing continued requests from the trade community to improve the timeliness of U.S. Customs and Border Protection’s issuance of rulings and decisions, as well as the possibility that the Trump administration’s emphasis on enforcement and regulatory change could pose greater demands, the Commercial Customs Operations Advisory Committee approved March 1 a number of recommendations designed to improve the CBP ruling submission and issuance process. These recommendations were developed by the Rulings and Decisions Improvement Working Group of COAC’s Trade Modernization Subcommittee, which said the goal is to retain the high quality of existing rulings on issues such as classification, valuation, origin, preference programs, drawback, and other aspects of the entry and duty refund process while substantially improving communication with the trade community and the delivery time of the rulings. Senior CBP officials said that many of these recommendations are consistent with changes they have been considering internally but that further discussion between CBP and COAC is needed to prioritize which should be pursued first given the significant investments that would be required.
Subject matter expertise. In light of “the foreseeable, imminent shifts in U.S. trade and border policy” – ostensibly associated with the priorities expressed by the Trump administration as well as an executive order directing federal agencies to eliminate two regulations for every new one issued – COAC wants CBP to ensure that its Office of Regulations and Rulings has the necessary resources to maintain trade and other critical subject matter priorities.
CBP should also (1) help R&R attorneys take advantage of training programs provided to Centers of Excellence and Expertise and/or port personnel as well as those offered by universities, trade associations, and other institutions, and (2) consider placing R&R attorneys in the Centers and/or ports on a temporary duty basis (virtually, if possible) to enhance and/or facilitate R&R technical expertise and greater exposure to operational matters.
Automation and innovation. CBP should provide funding for R&R to develop a Web-based, end-to-end case management system that, at a minimum, receives the submission of ruling requests, creates records of such inquiries, enables the submitting party to check the status and receive major milestones of case processing, and records and disseminates and publishes the ruling or decision once the ruling or decision is final.
In the meantime R&R should (a) use email to receive ruling requests and send a copy of the final decision or ruling to the inquiring party, (b) provide a template and/or checklist to help ensure that ruling requests and protests include all vital information needed for the office’s deliberation, and (c) conduct outreach at association events and via webinars to clarify the type of information and best practices the trade community should consider when requesting a ruling or decision.
Reasonable care. COAC wants its proposed Mitigation Guidelines Working Group to address with R&R whether the pendency of a response to a prospective ruling request affects a determination as to whether the submitter exercised reasonable care.
Expedited action. To assist in alleviating the backlog of rulings, R&R should consider offering a new option for the protestant to request an expedited 60-day application for further review decision that would not result in a written published decision but would merely instruct the Center to grant or deny the protest. Further, to expedite the issuance of substitution drawback rulings under the Trade Facilitation and Trade Enforcement Act, R&R should leverage the expertise of the National Commodity Specialist Division, as appropriate.
Internal structure and communication. CBP should undertake a review of R&R’s organizational structure to optimize its resources and the supervisor-to-attorney ratio should be a key consideration in the office’s organization. In addition, using electronic means to the extent possible, R&R should take steps to ensure robust internal communication with the Centers to convey significant, pending R&R matters.
CROSS database. COAC and R&R have discussed studying the feasibility of sunsetting older (e.g., three to five years old) classification rulings, the necessary regulatory updates that would be required, whether the sunsetted rulings would still be available for access in CROSS or elsewhere for historical purposes only or deleted automatically when the ruling reaches the three- or five-year time frame, the impact of such sunsetting on parties to whom the rulings have been issued as well as other parties that rely on them, and options for exceptions to sunsetting any particular ruling if it is still being used. However, COAC did not formally submit this recommendation at its March 1 meeting to provide additional time for consideration.
COAC did, however, publicly recommend that R&R work with CBP’s Office of International Trade to research what enhancements could be made to the CROSS search and notification/alert features, as commercially permissible and financially practicable.
Future recommendations. ST&R’s Lenny Feldman, COAC working group and subcommittee lead, noted that a variety of demands are placed on R&R attorneys and staff, including responding to numerous Freedom of Information Act disclosure appeals (often on non-trade related matters) as well as assisting in the negotiation and implementation of U.S. free trade and other agreements. Feldman said there is thus a need to keep the working group active to consider developing additional recommendations designed to optimize R&R’s end-to-end workflow. For further information, please contact Lenny Feldman.