A little-reported action by the Customs and Border Patrol (CBP) branch of the Department of Homeland Security (DHS) threatens to criminalize the purchase of utility knives now in common use across the United States.
The CBP action would revoke four Bush administration letters originally issued by CBP from 2005 to 2007 allowing the importation, sale and use of the utility pocket knives that may be opened with one hand. Intervention by Congress may be necessary to settle the issue.
The pocket knives CBP is attempting to reclassify as switchblades under the Switchblade Knife Act of 1958 include a spring to assist opening. They are not the stiletto switchblades of West Side Story that flick open with the press of a button. These pocket knives have thumb studs near the base of the blade that must be pushed open 30 degrees before a spring completes the opening action. The blades, however, are clearly designed for utility.
Such knives are used by farmers, ranchers, tradesmen, sportsmen, hobbyists, and many others whose work make the ability to open a knife with one hand while the other hand is occupied a significant convenience, if not an outright necessity.
“The proposed regulation could have severe, unintended implications for all knives, not just assisted-opening knives,” a bipartisan group of 80 House lawmakers said in a June 22, two-page letter to DHS Secretary Janet Napolitano. CBP “would designate these knives as being switchblades, even though the federal law definition does not declare these types of knives as switchblades,” said the lawmakers, who also expressed their concern “that Customs’ intent is bypassing Congress, and its duty to make laws and uphold current statutes.” CBP says its action follows the intent of Congress as expressed in existing legislation.
On May 6, the CBP quietly published its proposed letter revocations in its obscure Customs Bulletin (to see how obscure, try to find it online), and allowed public comment only through June 21. Notice of that action and the proposed revocations were not published in the Federal Register, where such rulemaking notifications by federal agencies are required to appear. Unlike comments sought by other agencies (for example, the Federal Trade Commission or the Food and Drug Administration), comments to CPB could be made only by traditional mail services rather than by electronic filings through the CPB Web site. Yet, the 63-page document (pdf) announcing the CBP notice of revocation itself cites online sources.
The House lawmakers’ letter asked Napolitano to extend the comment period by an additional 120 days beyond the June 21 deadline and to “withdraw the current proposed revocation and allow the existing rulings to stand.”
Beyond exceeding the intent of Congress, comments filed by Knife Rights, Inc., a non-profit group “representing 35.6 million picket-knife owning Americans,” say the CBP reclassification of one-hand opening knives “would create confusion and mislead citizens who have no wrongful intentions.” But more than that, existing law does not “authorize CBP to make a rule in the Code of Federal Regulations,” Knife Rights says. “CBP has utterly failed to identify the foundation upon which it allegedly has the authority to write such a prohibition into the Code of Federal Regulations,” the organization says. “The CBP is exceeding its authority by legislating and acting as both Congress and the President in creating this new law.”
Knife Rights’ comments also note that the CBP conduct flies in the face of President Obama’s call for transparency in government. “My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use,” says the President’s Jan. 21 Memorandum for the Heads of Executive Departments and Agencies.
“CPB’s actions in this matter have evidenced a complete disregard for citizen input,” Knife Rights Chairman Doug Ritter said.
CBP Director of Public Affairs Mike Friel and Lloyd Easterling, CBP headquarters branch chief for media relations, did not answer calls and email regarding the issues of transparency, the short comment period or why CBP did not allow the filing of electronic comments.
In addition to the response by House lawmakers, a July 8 amendment by Sen. John Cornyn (R-Texas) and 12 colleagues to the Switchblade Knife Act passed the Senate by unanimous consent and was approved as part of the DHS Appropriations bill the Senate passed on July 9. The amendment clarifies the definition of switchblade knives, effectively nullifying CBP’s attempted revocation of the Bush administration letters.
“I’m not sure how Customs will deal with it internally, but they assure us this takes care of the problem,” Ritter said. “This carves out another exception that these knives — and any most typical folding knives — could no longer be considered a switchblade.”
The DHS appropriations bill now goes to conference committee. If the Switchblade Knife Act amendment survives there, the episode will be over until the next time a federal agency opts for stealthy action against basic American rights.