CBP Issues Rule On Appeal of Customs Broker Exam Results: Why Filing An Appeal Makes Sense
On September 21, 2009, CBP issued a final rule stating that final administrative appeals of customs broker exam results should be directed to the Assistant Commissioner of the Office of International Trade. The final rule is of interest because it recaps some of the post-9/11 history of Customs’ integration within the Department of Homeland Security and the regulations applicable to the appeals process in general. First, the text of the rule takes us back to 2002, when the Homeland Security Act of 2002 transferred the functions of the U.S. Customs Service from the Treasury Department to the Secretary of Homeland Security. While the 2002 Act provided that the Secretary of the Treasury retains certain customs revenue functions, most such functions have been delegated by Treasury to the Department of Homeland Security, including the authority to prescribe rules and regulations relating to customs brokers. The Department of Homeland Security, CBP, has determined that the Assistant Commissioner of the Office of International Trade is to be the official to whom a final administrative appeal must be made should one want to contest a failing grade on the customs broker exam. The old rule was that final appeal was to be made to the Secretary of Homeland Security directly, or the Secretary's designee.
19 C.F.R. § 111.11 requires that a broker obtain a passing grade on the broker’s exam within 3 years of applying for a broker’s license. Section 111.13(f) provides that an examinee may appeal his or her failure of the broker's exam within 60 days after the date of the written notice of examination results. The initial appeal must be submitted to Trade Policy and Programs within the Office of International Trade, CBP. If the appeal is denied, a final appeal may be made within another 60 days following notice of denial by requesting review from the Assistant Commissioner of the Office of International Trade.
Appealing the results of an exam that was failed by only a few questions makes sense. Amazingly, on every exam there are typically several questions to which there is more than one right answer. However, on the grading key, one answer is often deemed “right” and the other considered to be flatly wrong. In such cases, unless an appeal is made, your arguably “right” answer will be automatically deemed wrong, unless you bring it to CBP’s attention. When an appellant or multiple appellants file appeals setting forth their logic as to why an alternate answer is correct, CBP may begin granting credit to all appellants for having made the same choice. Of course, this all occurs after the initial mailing of the exam results, so the only way to obtain credit for an alternate “right” answer is to appeal. Just as in the real world of trade, sometimes the Customs officials that draft the exam and exam takers take a different view of an issue, and sometimes both views are inherently correct. To have Customs take a second look and potentially remedy an unjust result, one must speak out.
