FCC Use of Customs Broker as Potential 'Responsible Party' Deserves Review, NCBFAA Says

The National Customs Brokers & Forwarders Association of America filed a petition with the Federal Communications Commission on Dec. 1 asking the agency to reconsider its treatment of a customs broker as a potential "responsible party" for radio frequency device import compliance. The FCC updated its regulations to remove Form 740 filing requirements for RF device imports, but retained compliance requirements and said a customs broker can be a "responsible party" for import compliance (see 1711010011). The new rules impose "unreasonable responsibilities on customs brokers," the NCBFAA said.

The NCBFAA called on the agency to take a new look at the provisions. "We urge the FCC to reconsider the rule to ensure that the responsible party is a person positioned to know important details about the product and its supply chain," the NCBFAA said. Brokers lack "the leverage to be the 'enforcer' as FCC seems to envision," it said. "A customs broker informs the importer of the requirements for entry of the importer's products to the extent that the broker is aware of the specific product requirements, collects the needed data for entry and transmits the same to CBP through ACE."

The NCBFAA previously noted its objections within the rulemaking process (see 1709150004), but the FCC went forward with the regulations, including language seen by the association as onerous. "To the extent customs brokers are included in this rule, the responsibilities assigned to brokers should be reasonably proportionate to their function in the supply chain," the NCBFAA said. Customs brokers lack the expertise to say whether a product meets the FCC's technical requirements and "it would be counterproductive to the FCC's goals for consumer safety to expect a customs broker to fulfill this role," the trade group said.

The FCC's rules leave "a potentially significant gap in affixing responsibility" by allowing for any of three entities to make compliance determinations, the NCBFAA said. Such an allowance means "there is no certainty for the FCC or the trade as to which party actually determined that the radio frequency device was in compliance," it said. The FCC was also misguided in its mention of customs bonds as helping mitigate liability issues for customs brokers, the NCBFAA said. CBP requires "every importer to maintain a customs surety bond" to ensure payment to the government, it said. "A customs broker cannot use a Customs bond to guarantee an importer’s obligation to the broker."

The FCC also seemed to overlook the world of e-commerce, the group said. "There is no customs broker-importer relationship in most of these micro-transactions," the NCBFAA said. Without rules to impose the compliance requirement on such shipments, "there will be a huge hole in the regulatory framework," it said.

Instead of the FCC's current rules, if the agency "wants the customs broker to collect a compliance statement from the importer, as it suggests, the regulation should so state and simultaneously impose a requirement on the importer to provide such a statement to their broker," the group said. "Or, if the FCC wants the responsible party for determining compliance to be identified at entry, that should be an importer requirement with customs brokers responsible for transmitting that information through ACE."