CBP Defends Answers to 3 Questions on Customs Broker License Exam at Federal Circuit
CBP properly denied customs broker license exam test taker Byungmin Chae credit for questions 5, 27 and 33 of the April 2018 customs broker license exam, the U.S. argued in an Aug. 31 reply brief filed at the U.S. Court of Appeals for the Federal Circuit. DOJ went through each question, detailing why CBP's answer was the correct one and why Chae's preferred answer was errant (Byungmin Chae v. Janet Yellen, Fed. Cir. #22-2017).
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After taking the exam, Chae notched a 65% score -- shy of the 75% threshold needed to pass the test. The test taker then appealed his results to CBP's Broker Management Branch, where a change brought his score up to 67.5% in August 2018. Following this, Chae took his test to the CBP executive assistant commissioner, which brought his score up to 71.25%, though he still needed CBP to grant him three more correct answers to get his license.
Chae then brought his case to the Court of International Trade, contesting five questions on the test. In June, the judge found that four of the five were reasonably rejected by CBP, though credit for one of the questions was given to Chae. This was not enough to grant the test taker a passing grade, however, prompting Chae to take his case to the Federal Circuit. Replying to the appellant's opening brief, the U.S. now defends CBP's answers to three questions on the test.
The first question, question 5, asked which of the following transactions is not required to be performed by a licensed customs broker. CBP identified "transportation in bond" as the correct answer while Chae argued that "Foreign Trade Zone entry" as the correct answer. CBP said that subsection (a)(2) of 19 C.F.R. Section 111.2(a)(2)(iv) "expressly states that a carrier can make entry for transportation in bond without being a broker." Chae argued that since the regulations don't have the term "foreign trade zone entry," there's no reason to think that the entry is the type as claimed by CBP.
"First, section 111.2(a)(2) does not identify foreign trade zone entry as a customs transaction that can be performed by a non-licensed individual," the reply brief said. "Second, the trial court correctly acknowledged that a phrase or term contained in a contested question is not required to appear in Customs regulations for the phrase to refer reasonably to the regulations."
Looking next to question 27, which asks which of the following mail articles are not subject to examination or inspection by CBP, the U.S. identified diplomatic pouches bearing the official seal of France and certified as only containing documents as the right answer. CBP said that this answer "tracks the language of the regulation and states that the diplomatic pouch bears the official seal of France and is certified as only containing documents. Accordingly, Answer C is the best answer."
Chae argued that none of the answer choices clarify whether the goods they describe are internationally shipped. CBP, though, said that the question "reasonablly assumes" that all identified articles are imported into the U.S. "The trial court correctly acknowledged that the purpose of the exam is to test an applicant's ability to interpret and apply customs and related laws, regulations and procedures," the brief said. "A reasonable examinee would presume that all answer choices concerned an importation of mail articles into the United States, and that the question tested the taker's ability to distinguish between imports that require a CBP examination or inspection and those that do not."
The last question defended by CBP, question 33, asked about the "classification of current production wall art depicting abstract flowers and birds that is mechanically printed, via lithography, onto sheets of paper, the paper measuring .35mm in thickness that have been permanently mounted onto a backing of .50 mm thick paperboard." CBP said Harmonized Schedule Tariff subheading 4911.91.3000 was the correct answer.
The subheading provides for "[o]ther printed matter, including printed pictures and photographs: Other: Pictures, designs and photographs: Printed not over 20 years at time of importation: Other: Lithographs on paper or paperboard: Over 0.51 mm in thickness." The question asks about a permanently mounted lithograph, with a combined thickness of the lithograph and mounting of 0.85 mm, featuring pictures of abstract flowers and birds and not over 20 years old at the time of import, and is mechanically printed onto sheets of paper that have been permanently mounted onto a paperboard backing, with a combined thickness of over 0.51 mm. As such, it is properly classified under CBP's identified subheading, making B the best answer, the brief said.
Chae argued that the phrase "current production" should be read to mean a "production process which was not discontinued" and that "no further detail on the shipment" shows that the wall art was under 20 years old. "The question identifies the merchandise as 'current production wall art that is mechanically printed, via lithography onto paper,'" the brief said. "As a printed article, the term 'current production' refers to the time in which the merchandise was printed, and, thus, reasonably means that the printed lithography is not over 20 years old. The question does not contain the phrase 'current production process' and '[e]xaminees cannot be permitted to reach conclusions by taking a portion of the question and formulating their own factual scenarios.'"