NCBFAA Raises Concerns Over CBP Informed Compliance Letters Issued to Brokers

CBP's Automotive and Aerospace Center of Excellence and Expertise “continues to issue an inordinate number of informed compliance letters compared to the other Centers and in a manner inconsistent with CBP laws, regulations and policy,” the National Customs Brokers & Forwarders Association of America said in an April 27 letter to the agency. The NCBFAA previously mentioned the issue to the director of the Center, “but feel[s] it is necessary to seek additional improvement at the Headquarters level,” it said.

While more recent letters from the Center are somewhat better and “no longer allege that customs brokers have displayed a lack of responsible supervision and control or committed an egregious act,” some problems persist, it said. After the NCBFAA sent a letter to the Center in September 2020, the center seemed to have “softened its tone expressing that the Center has identified a deficiency in the brokers’ conduct of its 'customs business' and as a result is forwarding an 'informed compliance' letter that could lead to future penalties,” it said. But, that “still reflects a misapplication and misunderstanding of the customs laws and regulations pertaining to customs broker requirements,” the trade group said.

Unlike the five-step escalation process described in CBP's Customs Broker Handbook, the A&A Center adopted a three-step rule whereby after three “informed compliance letters, typically reflecting an error on a single entry, it will issue a penalty,” the NCBFAA said. It isn't clear where the authority for the Center to implement its own rule comes from, it said. The center is also “holding the broker liable for the failure of the importer to produce documents that are the responsibility of the importer.” The regulatory or legal basis for that position is also missing and shows how the “Center is misconstruing regulatory and legal requirements and the broker’s responsibility or role with regard to an importer’s compliance, leading to the Center’s inappropriate issuance of informed compliance letters,” the trade group said.

Many of the A&A Center letters involve issues that “are reflective of importer compliance issues,” the NCBFAA said. “In many cases they do not reflect the documentation or data that a broker is expected or required to obtain under the customs regulations or policies. Our members understand that their obligation pursuant to the standard of responsible supervision and control is to advise their importer-clients that they are expected to obtain and provide such accurate documentation or data pursuant to their legal obligation to exercise reasonable care.”

The trade group would like to discuss the issues with CBP headquarters, it said. “Our objective is to enable our members to reconcile their collective experience and understanding of responsible supervision and control and non-egregious as well as egregious violations in a manner that is consistently administered throughout the Centers pursuant to the customs laws and regulations,” the NCBFAA said. CBP didn't comment.