How Federal Regulations Have Worked Until Today

I worked for the Customs Service (Customs and Border Protection after 2002) from 1989 to 2015. During my 26 years at the federal level, I developed and supervised a variety of regulations. Although I can only speak to customs regulations, my experience may be relevant to the regulatory process of other federal agencies.

Under the Administrative Procedures Act of 1946 (APA), agencies must first publish the proposed regulation in the Federal Register, allow the “public” x days to comment, and provide the name and telephone number of a contact person. In my extensive experience writing regulations, “audience” meant import corporations, but anyone can write a comment. I have never seen a comment from anyone other than the corporate importer or his lawyer.

Our job was to collect the comments and publish a summary of them, along with the agency’s response, and then publish a final regulation. The agency must try to address the concerns expressed in the comments wherever possible. In other words, we were not pointy-headed bureaucrats harassing business, but rather we worked with business. In every regulation I helped develop, public comments caused us to modify the original proposed regulation.

We also participated in the legislative process. Again, we worked with the importers to achieve mutually acceptable legislation. So much legislation was passed that the average congressman could care less and understand less, so our legislation was always passed by unanimous vote, when the Senate and the Speaker of the House were satisfied that we and the interests were on our side. We also produced committee reports with the importers explaining the intent of the legislation.

I should note that our cases are heard by the Foreign Trade Court in New York. Judges should be experts in customs law. We disagreed with many of the court’s decisions, but the court always rigorously followed them. Chevron and I do not recall the court striking down or misinterpreting any regulation, but followed our regulation as it was written. This was more than “due respect” Chevron required.

Today’s decision is a disaster.