Senators grill CBPÆs Bersin
U.S. Customs and Border Protection Commissioner Alan Bersin received rough treatment during a confirmation hearing last week before the Senate Finance Committee over his failure to complete and maintain I-9 forms for domestic workers hired over the past 17 years, as required under immigration law.
The primary antagonists were Chairman Max Baucus, D-Mon., and ranking Republican Charles Grassley of Iowa, both of whom also challenged Bersin to make sure the agency gives commercial functions the same priority as border security.
The hearing was odd because Bersin already is in office courtesy of a recess appointment by President Obama in mid-March, but must still be confirmed in order to continue past 2011. Grassley took the White House to task for bypassing the Senate's consent role for high-level nominations when it knew bipartisan concern existed about whether Bersin violated immigration rules by not filling out proper documentation for household staff.
The Department of Homeland Security requires employers to fill out the I-9 form as a tool for verifying the employment eligibility of new hires. The form is supposed to be kept on file, but does not have to be submitted to immigration authorities as a routine matter.
Baucus called Bersin's oversight 'unacceptable' and his comments raised strong doubts about whether the committee would vote to favorably recommend Bersin be confirmed by the full Senate.
'I believe your failure to complete and maintain the I-9s goes to the heart of your duties as commissioner of Customs. To credibly enforce the law you first must follow the law,' Baucus said at the conclusion of the hearing.
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CBP is one of the primary agencies authorized to secure U.S. borders from unlawful entry.
Bersin told lawmakers he knew businesses had to maintain I-9s, but mistakenly assumed the requirement didn't apply to household employment. The CBP chief said he and his wife verified the eligibility of all 10 employees hired since 1993 by checking passports, permanent residency cards, drivers' licenses and other documentation, and paid all required taxes, save for a $56 accounting error. Bersin claimed he followed the spirit of the law by retaining copies of the documents and listing them on a piece of paper.
'If I had known about, if my wife had known about it, it would be of no difficulty to actually put the information on the I-9 form,' he said. 'I did not benefit by not having it a file in that form. There was no reason why we would not do it, if we knew it. We did not know that it applied to part-time housecleaning help.'
Bersin is a former U.S. attorney for the Southern District of California who served in the Clinton administration and then during the past year in DHS as the government's Southwest border czar in charge of coordinating policy and federal law enforcement efforts related to drug smuggling, immigration and cross-border trade and travel.
His background led Baucus to exclaim, 'I find it incredible that you didn't know about the I-9 obligation. That just doesn't pass the credibility test.'
The chairman went on to accuse Bersin of taking a cavalier attitude toward the I-9 requirement and treating it as 'irrelevant.'
The former San Diego school district superintendent explained that three of six workers he employed since 2006 were college students who worked on an irregular basis as family drivers and were paid on an hourly basis. He apologized for referring to the workers as independent contractors during the committee vetting process, but said that there was never any intent to conceal their employment.
Sen. Jeff Bingaman, D-N.M., came to Bersin's defense, saying the commissioner complied with the main goal of verifying employment eligibility. 'The fact that it wasn't done on this form is unfortunate, but not fatal in my view.'
Baucus and Grassley, who last year introduced a Customs reauthorization bill that included many provisions directing greater priority be placed on trade facilitation and enforcement efforts, made clear they expected CBP to restore balance to its twin missions and not overemphasize security measures at the expense of assisting legitimate traders from moving goods in and out of the country.
Among their complaints was that CBP often didn't consult with other government agencies, Congress or the private sector before plowing ahead with new rulemakings, such as the attempt to abolish the 'first sale' methodology for determining duty values. Grassley also cited the slow implementation and budget overruns for the Automated Commercial Environment and the International Trade Data System as examples of insufficient agency attention towards improving trade flows.
ACE is the multibillion-dollar information technology replacement architecture for programs that monitor, control and process imports and exports, and store data for online access. ITDS is designed to standardize information submitted to the government and share it across multiple agencies to eliminate redundant regulatory filing.
Baucus questioned Bersin's commitment to simplifying trade compliance processes and protecting U.S. companies from unfair trade practices, citing his law enforcement and education background as devoid of international trade experience. In response, the CBP commissioner said he understood the agency's power in promoting economic competitiveness as part of the national security agenda. He also pointed to his commercial experience as a corporate lawyer involved in counterfeiting cases and other issues, as well as his role during the Clinton administration helping to create and gain congressional authorization for the trusted traveler SENTRI system on the Southwest border.
In his opening remarks, Bersin said he was sensitive to concerns that CBP has not paid enough attention to import/export processes and welcomed some of the proposals in the Customs Reauthorization Act to improve CBP.
'I pledge to take your concerns into account, work with the trade community, provide notice of our intended activities and to remain as transparent as possible with Congress and the private sector, trade community and other agencies concerning decisions being made affecting trade at CBP,' he said.
The commissioner also committed that CBP would consult more with the industry-based Commercial Operations Advisory Committee.
Bersin reiterated his vision for reducing industry's trade compliance burden presented two days earlier during a COAC meeting in Philadelphia. CBP has an obligation to provide a reciprocal benefit to the trade community in the form of expedited processing of paperwork, and container and truck movements any time it imposes new requirements that add costs to importers and exporters, he said.
'We have asked the trade community to assume its fair share of the burden — to exercise reasonable care in customs matters, to provide information to better understand the parties to a transaction, and to invest in the resources necessary to keep up with current requirements. CBP needs to strive continually to provide an environment built upon predictability, transparency, and uniformity in the importing process,' Bersin said in his prepared statement.
'We need to weigh the cumulative costs of our decisions on business and, when possible, provide for simplified commercial processing. CBP and the trade community must be partners, allowing CBP to multiply our presence by leveraging both parties' expertise.'
Intellectual property rights enforcement, consumer product safety, trade security are critical enforcement priorities for CBP, he added.
Baucus subsequently chided Bersin for not knowing the amount of software that is pirated around the world.
'Don't you think as commissioner you ought to know how much is pirated and coming into the United States? Shouldn't you just have numbers at your fingertips like that, the scope of the problem and how Customs is handling it? Instead of platitudes and generalities we need to have data, specifics.'
Bersin responded that the amount of software seized is not a good barometer of the situation and that more needs to be done to get a handle on such criminal activity.
He said progress towards making Customs a more business friendly organization could be measured by the seizure of counterfeit goods, collection of antidumping and counter-veiling duties, reduced inspection times, the ability to provide adequate notice for rulings and policy changes, and speeding up the time it takes to process penalty petitions and drawback (a form of duty reimbursement) requests.
Baucus instructed Bersin to supply a list of six specific metrics for measuring progress on trade functions and said the committee might offer a couple of extra statistics for CBP to track. ' Eric Kulisch