Security and Trade Facilitation

• Author: T. James Min II, Matthew A. Vega, Jamie A. Joiner
• Pages: 291-313

CHAPTER 13

Security and Trade Facilitation

T. JAMES MIN II, ESQ., MATTHEW A. VEGA, ESQ.,

JAMIE A. JOINER

For the rst time in our nation’s history, one agency has the lone responsibility

for protecting our borders. As the single, unied border agency, CBP’s mission is

vitally important to the protection of America and the American people. CBP’s

priority mission is preventing terrorists and terrorist weapons from entering the

United States, while also facilitating the ow of legitimate trade and travel.

–Robert C. Bonner, Former Commissioner of U.S. Customs and Border Protection

H INTRODUCTION

Even though it’s been well over a decade, we all remember where we were

on September , 200. The events that took place on that day are crystal clear

whether we were in Washington, D.C., New York, or any other part of the world.

The skies with no planes, ports closed, U.S. international trade flow coming to

a halt. It was an eerie day for all Americans but even more poignant for those

involved in international trade.

Additional events since then, including the explosives enclosed in printer ink

cartridges found on air cargo flights destined to the United States in 200 on both

UPS and FedEx planes, have further heightened the need for border security.

We have seen a flurry of new programs, initiatives, and regulatory requirements

and proposals to secure our borders while facilitating legitimate trade. Many of

these programs and requirements have placed enormous burdens on import-

ers, carriers, brokers, and other participants in international trade. And yet in

parallel to these developments, there have been bilateral, regional, and global

efforts at streamlining the clearance of goods at borders, most notably the global

efforts in the context of the World Trade Organization (WTO) and the World

Customs Organization (WCO). While the overall WTO Doha Round has lan-

guished, negotiations for the trade facilitation component of the Doha Round

were successfully concluded in December 203 as part of the Bali Package. How

do these efforts coincide or conflict? This chapter will focus on and survey these

various efforts and requirements that deal with security and trade facilitation in

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292 CHAPTER 13

a manner relevant to practitioners of customs law, whether as outside counsel or

in-house counsel. This chapter also aims to be a useful reference to non-lawyers

who deal with customs and trade issues. CBP’s newest initiatives, identified under

the umbrella of “Trusted Trader Programs,” are discussed in Chapter 4.

H POST 9/11 ENVIRONMENT

All the new initiatives arising after 9/ can be categorized into three main areas:

() governing regulatory authority; (2) supply chain screening; and (3) physical or

conveyance security. With respect to the governing regulatory authority, the Depart-

ment of Homeland Security (DHS) was created by the Homeland Security Act of

2002,2 pulling 22 then-existing federal agencies into the newly created department.

U.S. Customs and Border Protection (CBP) led the charge on initiatives in

the areas of supply chain screening and physical security that affect trade facilita-

tion, including () 24-hour manifest rule; (2) Container Security Initiative (CSI);

(3) Customs-Trade Partnership against Terrorism (C-TPAT); (4) use of nonin-

trusive inspection technology; (5) National Targeting Center (NTC) Automated

Targeting System (targeting for risk of terrorism); (6) Secure Freight Initiative;

(7) electronic reporting of additional security filing data elements for cargo (also

known as “0+2” or the Security Filing Initiative); (8) automated commercial envi-

ronment; (9) the Global Trade Exchange (GTX); (0) Air Cargo Advance Screening

(ACAS); and () Trusted Trader Program (discussed in Chapter 4). As discussed

further here and in Chapter 2, agencies beyond CBP, including the U.S. Food

and Drug Administration (FDA) and the Consumer Product Safety Commission

(CPSC), are now targeting import security and safety-related issues.

H SUPPLY CHAIN SECURITY

Partnerships/Nonregulatory

Customs-Trade Partnership against Terrorism

C-TPAT enables CBP to ensure its security standards and recommendations are

effectively established throughout the supply chain. This frees CBP to allocate

resources towards examining and auditing more questionable shipments. The

program allows for an exchange of information between CBP and industry in

which CBP establishes supply chain criteria for C-TPAT partners to fulfill, while

partners provide CBP with action plans that show an alignment of security from

the port of origin to the port of entry.

In addition to homogenizing security standards for facilities releasing U.S.-

bound cargo, C-TPAT is part of a wider initiative to combat terrorism. It achieves

this goal by requiring increased security at the loading dock and plant. In the past,

CBP found that goods are vulnerable to tampering while they are at the initial

loading dock and that this risk could be mitigated by increasing the number and

use of camer as, implementing more thorough background checks, increasing the

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