CBP Quietly Expands CHB Exam Eligibility

CBP will allow members of military reserves to sit for the Oct. 3 customs exam, allowing such members as the sole exception to a prohibition on government employees taking the test. The exception may only be temporary as it considers a finalized policy, said CBP. The new exception is likely the result of a lawsuit brought against the agency and settled earlier this year. Federal customs regulations bar officers or employees of the U.S. Government from being licensed as customs brokers or sitting for the exam.

CBP Researching the Issue

"We are researching this issue and until such time as we make a definitive interpretation, we are allowing reservists to take the exam," said a CBP spokesman. The spokesman said CBP is only researching the question of allowing reservists to take the exam and not other government employees.

The application to the October exam now provides for the reservist exception. The application now asks "Is the Applicant an Officer or Employee of the United States Government?," allowing for two choices: either "Yes (If yes, you may not take the exam, exception = Reserves)" or "Yes (Reserves)." According to CFR 19 Section 111.13(b), "In order to be eligible to take the written examination, an individual must on the date of examination be a citizen of the United States who has attained the age of 18 years and who is not an officer or employee of the United States Government." The application is (here).

Bill Nusbaum forced the issue before the April exam, filing a lawsuit against CBP. The government quickly settled the suit, allowing Nusbaum to take the April exam. Nusbaum who works for NNR Global Logistics in Illinois, was among the significant numbers that didn't pass the April exam but plans to sit for the October exam, this time without the legal fight. Nusbaum said in an interview he was satisfied to see the exception on the new application, though questions remain on licensing if he passes this time around. "I don’t know if I have to go through another legal battle if I were to pass the test," he said. "That’s another thing I’m a little worried about."

The Reserve Officers Association of the U.S. (ROA), which is actively involved in the issue, said the change is a move in the right direction. "We are very pleased that the Department of Homeland Security now seems to get it and will let reservists not on active duty to take the exam like any other eligible person," said Captain Sam Wright, director of ROA's Service Members Law Center. CBP "should not be standing in the way of reservists getting and keeping jobs," he said.

Wright notes there seems to be some inconsistencies within the regulations as National Guard members have been considered eligible, but really are as much federal employee as a reservist. Wright said he was unfamiliar with any other federal licensing policies that prohibit reservists, though it's somewhat unusual for the federal government to oversee the licensing, which in most other industries is handled at the state level. Since Sept. 11, 2001, a total of 855,979 reserve members have been activated, according to the Defense Department.

March Suit Filed, CBP Settled

The issue was breached in March by Nusbaum, an Army Reservist for 26 years who was deployed for about a year in Iraq and wanted to sit for the customs exam in April. A lawsuit was filed in March seeking injunctive relief in the U.S. Court of International Trade by Lawrence Friedman, a lawyer at Barnes Richardson. The suit asked the court to allow Nusbaum to take the exam because members of the reserves are not considered employees of the U.S. government when not on active duty and under the statute, 19 U.S.C. Section 1641 (b)(2), CBP has no ability to prohibit U.S. government employees from taking the customs exam. (Email documents@brokerpower.com for a copy of the lawsuit.

The statute only expressly requires applicants to be a U.S. citizen, provides evidence of good moral character, and show evidence of qualifications to render valuable service in the customs business. The idea that potential conflicts of interest may preclude government employees from providing valuable service shouldn't be an issue for those who would passively hold a broker's license, just as law school graduate shouldn't be prevented from taking a bar exam due to the possibility of an eventual conflict of interest, said the suit. "It is inconceivable that in enacting the customs broker law Congress would have envisioned a circumstance in which a regulation of Customs and Border Protection (or its predecessor) would be implemented and interpreted in a manner that effectively excludes our U.S. military reservists from good and valuable full-time careers," it said.

"The statute is clear as to the qualifications Congress expects of an applicant to be a licensed customs broker," the suit said. "Nothing in the statute even hints at giving Customs the authority or leeway to exclude U.S. Army Reservists (or other government employees) from sitting for the broker’s exam. Thus, the regulation is inconsistent with the plain meaning of the statute and is, therefore, unenforceable."

(See ITT's Online Archives 12082713 for more information on the Oct. 3 CHB exam.)