Florida Group Concerned About Idea of 'Deputizing' Customs Brokers

Some of CBP's proposed changes for the regulations that govern customs brokers (see 2006040037) appear likely result in unexpected problems if not addressed by the agency before the rules are finalized, the Florida Customs Brokers and Forwarders Association said in recently filed comments. “We feel strongly against the concept of a customs broker being a 'force multiplier' from an enforcement perspective and, while we do want to ensure there is 'enhanced compliance,' deputizing brokers, as some of these proposed changes demand, can lead to an unnecessarily conflictive, non-productive broker-importer as well as broker-CBP client relationship,” the trade group said. Comments in the docket are due Aug. 4.

One change that worries the FCBF are new requirements for when a broker discovers illegal activity by a client. The proposal would require the brokers to cut business ties and report attempts by clients to defraud the government, but “CBP does not have the authority to deputize customs brokers as an extension of law enforcement,” the association said. Such requirements would “put the broker at risk for civil action and transitions the broker into 'policing' the import community, which is clearly not the role of a customs broker,” it said. It's also unclear what are “the implications of a customs broker making an erroneous claim in reporting an importer-client inevitably found not to have conducted a fraudulent or criminal act,” it said.

Also troubling is the proposed requirement that brokers give advice on “corrective actions” and retain documentation of the advice, the FCBF said. “Customs brokers readily correct information prior to or post entry to reflect proper actions taken, but our concern lies with the consequences of potentially requiring the broker to maintain a record that could be used for an investigation or proceeding against the interests of the broker or their importer-client,” it said.

Some proposed new factors for determining responsible supervision and control “are largely subjective requirements and decrease a broker’s certainty in adopting and executing the necessary processes and procedures,” the group said. While not in this proposal, the FCBF voiced support for the possibility of required continuing education for brokers (see 2002130025).

Comstock & Theakston, a customs broker and drawback specialist, raised a number of similar concerns in its comments. The company would like CBP to provide more specifics about a planned requirement for having a “sufficient number of licensed brokers,” it said. “We feel that leaving a subjective requirement without any standard allows for anyone to interpret the regulation as they see fit,” the company said. “Given the fact that a broker’s failure to exercise responsible supervision and control can lead to assessment of broker penalties, we recommend that CBP eliminate 'sufficient' and replace it with a standard number that can be applied to all brokers.”