By Bruce H. Leeds, Senior of Counsel, Braumiller Law Group
In a Federal Register Advance Notice of Proposed Rulemaking, dated Oct. 28, 2020, U.S. Customs & Border Protection (CBP) proposed a program for continuing education for licensed individual customs brokers.This is an idea whose time has come. Many professions have a requirement that licensed individuals complete a minimum number of hours of continuing education. The idea is that laws, regulations and practices change over time, and licensed practitioners therefore must keep up with the changes. CBP currently has no continuing education requirement for licensed brokers. Brokers must file a triennial report and pay permit fees, but they do not have to show that they are keeping up with changes.
The Federal Register notice provides the first draft framework for continuing education and solicits comments, feedback, and suggestions from the public.
The idea of continuing education has been around for a while. It got some serious traction in 2019 when CBP formed the Requirements for Customs Broker Continuing Education Task Force. This task force was placed under the Commercial Operations Advisory Committee (COAC) Rapid Response Subcommittee. The subcommittee had representatives from CBP and experienced licensed customs brokers from throughout the country. The Advance Notice of Proposed Rulemaking was based on the deliberations of this subcommittee.
Here are some of the elements of the proposed rule:
Number of Hours of Continuing Education
The proposed requirement is 40 hours of education over a 3-year period. CBP believes more than this would be a burden and less would be insufficient. CBP requested input on the number of hours that should be required.
What Training Qualifies Toward the 40 Hours?
Naturally, training and webinars offered by CBP will count toward the requirement. The Federal Register notice also lists established corporate training (but doesn’t define exactly what this is), and courses offered by customs broker associations. Relevant training offered by other U.S. Government agencies (Agriculture, FDA, EPA and CPSC) would also qualify. All private party training would need to be accredited (more to follow).
In the Federal Register notice, CBP asks what other training or coursework would qualify. CBP also asked about internal training conducted by customs brokers. Finally, CBP asks about training for customs brokers in remote areas (such as the Canadian and Mexican borders). Would web-based or third-party training be sufficient to meet the 40 hours?
Must All the Training Relate to International Trade?
In the proposed regulations, CBP recommends that 75% of the training should focus on Customs business and CBP operational and process requirements. The remaining hours could cover other U.S. Government agency requirements. CBP requests input on areas of training and whether a certain number of courses within each area be taken.
Do All Customs Brokers Need to Comply With the Continuing Education Requirements?
CBP proposes that all individually licensed customs brokers must meet the continuing education requirements, regardless of the length of time the broker has held the license, whether or not the broker is conducting customs business, or whether the broker is a sole proprietor, or an employee of a customs brokerage or importing company. Brokers who voluntarily suspend their license would have adjusted requirements. The continuing education requirement is suspended for the period the license is voluntarily suspended, but will reapply if the broker wants to reinstate their license
CBP requested input on whether there are any licensed brokers that should be exempted from the continuing education requirement.
How should the Continuing Education be tracked?
CBP does not propose any specific format or method to track continuing education hours. It could be a spreadsheet or a tracking software. Completion of the required hours would be reported to CBP with the existing Triennial Report through ACE or other mechanism. CBP contemplates that the broker would check a box in ACE certifying that the education requirement has been met. CBP further contemplates that it would do a random sample of 10% of the brokers, requiring them to provide additional documentation showing that they met the requirement.
What if the Continuing Education is Not Reported to CBP?
CBP is considering two options. In Option (1) CBP would send the broker a warning letter if he/she did not certify they met the continuing education requirement. If the broker did not comply with the warning letter and submit evidence of continuing education, the broker’s license would be suspended. If the broker still did not comply, his/her license would be revoked by operation of law. In Option (2) CBP would follow the process for submission of a Triennial Report. If the education hours were not reported by March 31 of the reporting year, CBP would provide written notice of suspension to the broker. The broker would then be given 60 days to file the continuing education report. If this was done, the broker’s license would be reinstated. If not, the broker’s license would be revoked by operation of law.
CBP will work with a broker that has temporary or extenuating circumstances affecting their ability to obtain the education hours.
If CBP discovers that a licensed broker made a false or misleading report, it could result in a penalty, suspension, or revocation of the broker’s license.
“Accreditation” means qualifying training as counting toward the continuing education requirement. Relevant U.S. Government provided training would be accredited. CBP states that it is currently not in position to accredit private entities for offering education. Instead, CBP is proposing to outsource the accreditation process.
CBP proposes that a likely approach would be to utilize the Request for Information (RFI) process it currently uses for procurement activities to select and approve accreditors. CBP would publish an application process in the Federal Register. If approved, the accreditors could review and approve training for CBP continuing education credit.
CBP suggests that entities applying to become an accreditor meet a number of requirements, including:
- At least one key official holding a customs broker license
- A list of professional references
- Resumes for key personnel involved in course work
- A demonstrated knowledge of international trade laws, regulations and Customs business
- A description of the criteria an accreditor would use to evaluate training for accreditation
If selected through this process, private parties would be able to approve training to qualify toward the continuing education requirement.
The selected entities would not be able to self-approve their training – they would need to go to other approved accreditors.
CBP will also not set the fee that the accreditors could charge for their services – that is determined by the individual companies.
Submitting Comments and Recommendations
CBP is seeking comments, feedback and suggestions to this Advance Notice of Proposed Rulemaking. Throughout the document published in the Federal Register CBP asks questions of the public about aspects of the proposal. Individuals, companies and associations can submit comments through www.regulations.gov. Cite Docket no. USCBP-2020-0042. Comments are due on or before Dec. 28, 2020.