For the first time since the formation of U.S. Customs and Border Protection (CBP) in 2003, an existing Official of the agency was nominated by the President to serve as its Commissioner. Kevin McAleenan has led CBP as its Acting Commissioner since January 20th, 2017, overseeing 60,000 employees and a budget of over $13 billion. Prior to this role, Mr. McAleenan served the agency as its Deputy Commissioner since November 2014. As Deputy, he was responsible for CBP’s day-to-day operations.
However, unlike most of his fellow Department of Homeland Security (DHS) appointees who are approved by the Senate Homeland Security Committee, the CBP Commissioner is approved by the Senate Finance Committee. Accordingly, the Finance Committee focused heavily on CBP’s mission related to international trade while raising very minimal questions on immigration enforcement or other politically controversial issues under CBP’s purview, such as the President’s travel ban and border wall. McAleenan generally received praise from the Committee and appeared to have a smooth path to a vote by the full Senate.
The hearing focused on a range of trade enforcement issues such as intellectual property rights, e-commerce, goods made with forced labor, and anti-dumping. It was noted by the Committee that McAleenan, if confirmed, would assume the position as the agency’s first Commissioner after CBP was fully authorized by the Trade Enforcement and Trade Facilitation Act (TFTEA), passed into law in February 2016. The TFTEA formalizes CBP’s authority in these and other trade enforcement areas and directs the agency to implement certain practices, such as collaborating with the trade industry to enhance enforcement while facilitating trade flow to support the U.S. economy.
CBP Officer staffing and resource deployment was also a common theme in the hearing. Multiple members of the Committee noted resource needs at ports in their home states. McAleenan stated that the agency is continually working to refine its Workload Staffing Model and deploy technology based on trade flows and expected economic impacts pertaining to ports in need around the country. In their opening remarks, Committee Chair, Senator Orrin Hatch (R-UT) and ranking Democrat, Senator Ron Wyden (D-OR), both stated their intention to support his nomination. Regarding trade enforcement, Senator Wyden acknowledged that laws passed by Congress are only as meaningful as CBP’s capability to enforce them. Concerning resource allocation, he stated his concern that the Trump Administration would divert resources away from supporting CBP’s critical trade mission toward building border wall.
Intellectual Property Rights: IPR enforcement was a notable concern for Senator Hatch, who urged McAleenan to ensure CBP was executing the provision of the TFTEA stating that CBP shall share information on potential violations with rights holders to better identify violators. McAleenan agreed and noted that CBP, working with the ICE IPR Coordination Center, has made record numbers of IPR seizures in recent years. He acknowledged this issue as critical to the health and safety of American consumers as well as for the protection of American manufacturers. Senator Stabenow (D-MI) noted the challenge her constituency has faced with an influx of counterfeit auto parts, which McAleenan stated the CBP Center of Excellence and Expertise (CEE) in that industry was working to address.
E-Commerce: The rapid growth of e-commerce has presented challenges to CBP in recent years. The growth in volume of small packages delivered by air through express consignment and the postal service presents a challenge to the CBP workforce, which McAleenan acknowledged. More packages are arriving at traditionally lower volume ports, presenting a resource allocation challenge. More dangerous and difficult to detect synthetic drugs, such as fentanyl, are being moved via mail as opioid abuse increases in the U.S. McAleenan acknowledged the need for enhanced detection technology in this area.
The TFTEA also raised the de minimis threshold from $200 to $800 for packages that require formal entry, which includes duty and data submission requirements. The data challenge is compounded by the fact that the U.S. Postal Service (USPS) is not statutorily compelled to share mail data with CBP. A lack of data available to CBP makes cargo targeting and risk management efforts more challenging. While CBP and the USPS are engaging in data-sharing pilot programs, the Committee stated it would like to further address the issue in the future and encouraged McAleenan to support the STOP Act, aimed at expanding CBP’s authority to collect electronic advance data on mail.
Forced Labor: The Committee raised that the TFTEA had eliminated the ‘consumptive demand exemption’ from the Tariff Act of 1930, which had previously allowed for goods made with forced labor to enter the U.S. if the U.S. was not able to produce sufficient quantities to meet domestic demand. Additionally, a recent Associated Press investigation found that North Korean forced labor was being used in China to produce seafood bound for the U.S. While urging CBP to use appropriate regulations to enforce withholding orders on shipments of forced labor-made goods, members of the Committee offered varying perspectives on the degree of evidence or ‘reasonable suspicion’ that should be required for CBP to make such a withholding. Continued coordination by CBP with the Department of Labor and other private entities to identify high risk areas for forced labor imports was also encouraged.
Anti-Dumping: Senator Grassley (R-IA) raised the issue of uncollected or undispersed dumping duties, particularly on honey. McAleenan stated CBP was working to distribute appropriate duties under expanded authorities granted to the agency. Also discussed was the relatively recent Enforce and Protect Act (EAPA), which expands CBP’s ability to investigate and address dumping allegations.
Unified Cargo Processing: McAleenan acknowledged the importance of trade with Canada and Mexico and stated that CBP’s relationship with Mexico’s customs services is “as good as ever”. He stated he had met with Mexican officials four times in the past six months to enhance collaboration on trade and immigration enforcement. This included the strengthening and expansion of unified cargo processing programs, which consolidate U.S. and Mexican resources at the border, reduce duplicative inspections, and expedite trade flow. A number of these programs are currently operating in the rail and truck environments on both the U.S. northern and southern border.
ACE Deployment: Senator Hatch inquired about the completion timeline for the Automated Commercial Environment (ACE), CBP’s automated trade processing platform that has been deployed in phases over the last several years. McAleenan stated the last of the seven phases, pertaining to the processing of drawback, should be finished by February 2018.
Radiation Portal Monitors (RPMs): In discussing innovations in cargo processing, McAleenan referenced that CBP was enhancing the processing algorithms on its RPMs to reduce false alarms.
Electronic Device Searches: One of the few semi-contentious topics discussed was CBP’s policy on searching the electronic devices, including cell phones and laptops, of individuals seeking admission to the U.S., including U.S. citizens. Multiple court rulings have held that these device searches are permissible under CBP’s border search authority granted by the U.S. Constitution. However, it is the opinion of some members of Congress that the personal nature of these devices justifies that a higher level of reasonable suspicion, or even a warrant, should be required for CBP to search them. McAleenan reminded the committee that less than one percent of travelers entering the U.S. have any devices searched, and that this percentage is even smaller for Americans. He added that CBP was conducting border searches in the most judicious way possible, often above even the baseline requirements of the Constitution.
Pre-Clearance: Senator Maria Cantwell (D-WA), among others, was complimentary of the CBP Preclearance program, which stations CBP Officers at airports abroad to process U.S.-bound travelers through customs before they depart. McAleenan stated CBP would continue to seek to expand the program, while noting the growth of international airports in Dublin and Abu Dhabi since they have implemented Pre-Clearance. The program, which requires a large majority of the funding to be provided by the host country or airport, has received mixed reception from other major airports abroad considering the benefits of its adoption.
Biometrics: The Committee noted CBP’s progress on seeking to expand biometric data capture for travelers in the air-exit environment, but inquired why there had not been more progress in the land environment. McAleenan stated CBP was “not leaving land behind” in its efforts to deploy biometric capture eventually in all exit modes, including for pedestrians and personal vehicles, but he acknowledged that the air environment had started as a priority. He stated that the outbound land environment presents infrastructure challenges for biometric capture. He added that CBP would continue to work with airlines, TSA, and DHS Science & Technology to develop and deploy the most appropriate technology possible. Senator Cantwell proposed that the U.S. engage with Europe in implementing and enforcing biometric standards or consider revoking Visa Waiver Program status to certain foreign countries who did not meet them.
Traveler Processing Kiosks: In response to Senator Isakson (R-GA) seeking support for expected growth at Atlanta’s Hartsfield-Jackson International Airport (ATL), McAleenan responded that CBP had been working to deploy additional automated passport kiosks at ATL as well as other airports, while working in partnership with Delta Airlines on biometric and other technologies to process passengers faster.
Religious/Racial Profiling: Senator Cantwell also sought assurance from McAleenan that inappropriate profiling would not be conducted by CBP Officers in their questioning of individuals seeking entry to the U.S. McAleenan stated that although at times questions related to religion could be appropriate depending on the individual’s type of visa or travel, that it was not appropriate if not related to a legitimate risk management purpose.
Prior to serving as Deputy Commissioner, Mr. McAleenan has served CBP in various leadership positions including: Area Port Director of Los Angeles International Airport from 2006 to 2008, Deputy Assistant Commissioner of CBP’s Office of Field Operations from 2010 to 2012, and Assistant Commissioner of CBP’s Office of Field Operations from 2012 to 2013.
Mr. McAleenan began his public service career at CBP’s predecessor agency, the U.S. Customs Service, in the Office of Anti-Terrorism, which was created soon after the September 11th terrorist attacks. Within this newly created office, Mr. McAleenan was responsible for developing a strategy to prevent terrorist entry into the U.S. Prior to serving at CBP, Mr. McAleenan practiced business law at Gunderson Dettmer from 2000 to 2001 and corporate law at Sheppard Mullin Richter & Hampton LLP from 1998 to 2000.
Mr. McAleenan received his Juris Doctor at the University of Chicago Law School and a Bachelors of Arts degree in Political Science with a focus on Law, Jurisprudence and Social Thought at Amherst College.
Nomination and Response
Mr. McAleenan was nominated by President Trump to lead U.S. Customs and Border Protection as its Commissioner on March 30th, 2017. His nomination was met with support from a number of members of the international trade community who complimented his experience and expertise in executing CBP’s trade mission. This included the National Association of Foreign-Trade Zones, the National Retail Federation, the Coalition of New England Companies for Trade (CONECT), and the National Customs Brokers & Forwarders Association of America. Former CBP Acting Commissioner and current Principal at the Chertoff Group, Jayson Ahern, stated of McAleenan, “He brings all the different skill sets needed” The National Border Patrol Council also endorsed Mr. McAleenan to lead the agency.
 U.S. Customs and Border Protection, “Acting Commissioner Kevin K. McAleenan”, U.S. Customs and Border Protection (20 January 2017), https://www.cbp.gov/about/leadership-organization/acting-commissioner
 “Kevin McAleenan”, Service to America Medals, https://servicetoamericamedals.org/honorees/view_profile.php?profile=87
 Eric Kulisch, “A happy trade”, Adam Smith Project (4 April 2017), http://www.adamsmithproject.com/audiences-adam-smith/adam-smith-news-navigation/125.aspx
 Brandon Judd, “Letter to Senate Finance Committee”, National Border Patrol Council (17 August 2017), PDF, https://www.bpunion.org/images/media-relations/McAleenan-Support-Letter-NBPC.pdf