04-19664. Customs Broker License Examination Dates

AGENCY:

Customs and Border Protection, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

This document adopts as a final rule the interim rule amending the Customs and Border Protection (CBP) regulations to allow CBP to publish a notice changing the date on which a semi-annual written examination for an individual broker's license will be held when the normal date conflicts with a holiday, religious observance, or other scheduled event.

EFFECTIVE DATE:

August 30, 2004

FOR FURTHER INFORMATION CONTACT:

Alice Buchanan, Office of Field Operations (202-344-2673).

SUPPLEMENTARY INFORMATION:

Background

Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides that a person (an individual, corporation, association, or partnership) must hold a valid customs broker's license and permit in order to transact customs business on behalf of others, sets forth standards for the issuance of broker's licenses and permits, and provides for the taking of disciplinary action against brokers that have engaged in specified types of infractions. In the case of an applicant for an individual broker's license, section 641 provides that the Secretary of the Treasury may conduct an examination to determine the applicant's qualifications for a license. Section 641 also authorizes the Secretary of the Treasury to prescribe rules and regulations relating to the customs business of brokers as may be necessary to protect importers and the revenue of the United States and to carry out the provisions of section 641.

Pursuant to the Homeland Security Act of 2002 (Pub. L. 107-296) and Treasury Order No. 100-16, the Secretary of the Department of Homeland Security now has the authority to prescribe the rules and regulations relating to Customs brokers.

The regulations issued under the authority of section 641 are set forth in part 111 of the Customs and Border Protection (CBP) Regulations (19 CFR part 111). Part 111 includes detailed rules regarding the licensing of, and granting of permits to, persons desiring to transact customs business as customs brokers, including the qualifications required of applicants and the procedures for applying for licenses and permits. Section 111.11 sets forth the basic requirements for a broker's license and, in paragraph (a)(4), provides that an applicant for an individual broker's license must attain a passing grade on a written examination taken within the 3-year period before submission of the license application prescribed under § 111.12.

Section 111.13 sets forth the requirements and procedures for the written examination for an individual broker's license. Paragraph (b) of § 111.13 concerns the date and place of the examination and, in the first sentence, provides that “[w]ritten examinations will be given on the first Monday in April and October.”

On May 29, 2003, CBP published in the Federal Register (68 FR 31976) as T.D. 03-23 , an interim rule adding a provision that would allow CBP to publish a notice changing the date on which a semi-annual written examination for an individual broker's license will be held when the normal date conflicts with a holiday, religious observance, or other scheduled event. In the interim rule, CBP noted that the first Monday in October 2003, that is, October 6th, coincided with the observance of Yom Kippur, and CBP noted that the regulatory text quoted above did not provide for the adoption of alternative examination dates. In order to avoid conflicts with national holidays, religious observances, and other foreseeable events that could limit an individual's opportunity to take the broker's examination, T.D. 03-23 amended § 111.13(b) to provide CBP with some flexibility in those circumstances as regards the determination of the specific date on which an examination will be given. The interim rule requested comments, and those that were received are discussed below.

Discussion of Comments

Two commenters responded to the solicitation of public comment, and both requested that the regulation include a statement as to when the rescheduled examination will occur. Specifically, one commenter requested that the rescheduled examination date be no more than five business days (or one calendar week) later than the first Monday in April or the first Monday in October. The other commenter requested that we standardize the manner in which the rescheduled date will be determined, but did not request any specific time frame for the rescheduled date.

CBP believes that it is not necessary to include in the regulation a statement as to exactly when the rescheduled examination would occur. While CBP does not intend to schedule an examination later than one week after the first Monday in April or October, CBP believes that it would not be wise to standardize the rescheduled date(s) because CBP contracts the administration of the examinations to the Office of Personnel Management (OPM). Standardization as to when an examination would be rescheduled could unduly constrain CBP and OPM to what may become ill-timed or unavailable dates.

Conclusion

After analysis of the comments and further review of the matter, CBP has determined to adopt as a final rule, with no changes, the interim rule published in the Federal Register (68 FR 31976) on May 29, 2003, as T.D. 03-23.

Signing Authority

This final rule is being issued in accordance with 19 CFR 0.1(b)(1) of the CBP Regulations.

Inapplicability of Notice and Delayed Effective Date Requirements and the Regulatory Flexibility Act

Because this regulation finalizes an interim rule already in effect that provides a benefit to prospective applicants for individual customs broker licenses and imposes no new regulatory burden or obligation on any member of the general public, CBP finds that, pursuant to the provisions of 5 U.S.C. 553(d)(1) and (3), there is good cause for dispensing with a delayed effective date. Because no notice of proposed rulemaking is required for interim regulations, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) do not impose restrictions on the publication of this regulation.

Executive Order 12866

This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Drafting Information

The principal author of this document was Dwayne S. Rawlings, Office of Regulations and Rulings, Bureau of Customs and Border Protection.

List of Subjects in 19 CFR Part 111

• Administrative practice and procedure
• Brokers
• Customs duties and inspection
• Imports
• Licensing
• Reporting and recordkeeping requirements

Amendment to the Regulations

For the reasons set forth above, the interim rule amending § 111.13 of Title 19 of the Code of Federal Regulations (19 CFR part 111.13), which was published in the Federal Register (68 FR 31976) on May 29, 2003, as T.D. 03-23, is adopted as a final rule without change.

Dated: August 24, 2004.

Robert C. Bonner,

Commissioner, Customs and Border Protection.