Customs Broker Exam Test Taker Fights for Credit on 3 Questions on License Exam at Federal Circuit
Customs broker license exam test taker Byungmin Chae filed an informal brief at the U.S. Court of Appeals for the Federal Circuit on Oct. 3 in his bid to get credit for a handful of questions on the April 2018 customs broker license exam. Responding to the U.S.'s brief defending its answers for questions 5, 27 and 33 on the test, Chae further attempted to make his case for why his selected answers were correct (Byungmin Chae v. Janet Yellen, Fed. Cir. #22-2017).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
After taking the exam, Chae notched a 65% score -- shy of the 75% threshold needed to pass the test (see 2209010038). 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 filed suit at the Court of International Trade, contesting five questions on the test, though only getting credit for one. This was not enough to grant the test taker a passing grade, however, prompting Chae to take his case to the Federal Circuit.
The first question, question 5, challenged by Chae 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.
In his reply, Chae said that "the court should know that there is no 'foreign trade zone entry' term itself in the regulation and there is no reason to believe the entry here is the type of port of entry as claimed by CBP."
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."
To this, the test taker said that CBP cannot assume all packages in the exam are all international, and that some merchandise is allowed to pass free of duty without an entry which is not subject to inspection by CBP.
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 is the correct answer.
Chae argued that the focus is on the definition of the term "current production." This is how the agency can claim it was under 20 years old, Chae said, though his understanding is that the "current production was the current production process which was not discontinued as noted in the regulation," and that a party cannot define all the wall art pieces as being under 20 years since no further detail is provided.