Federal Register: October 13, 2009 (Volume 74, Number 196)
DOCID: fr13oc09-7 FR Doc E9-24489
DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
CFR Citation: 19 CFR Part 111
CBP ID: [CBP Dec. 09-38]
NOTICE: RULES
DOCID: fr13oc09-7
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Customs Broker License Examination Appeals
DATES: This final rule is effective on October 13, 2009.
DOCUMENT SUMMARY:
This final rule amends the U.S. Customs and Border Protection (CBP) regulations, which govern the licensing and conduct of customs brokers. The rule specifies the proper CBP official who is authorized to decide the final administrative appeal of a failing grade on the customs broker written examination. The current regulations provide that the final administrative appeal on a failing grade on the broker's exam should be sent in writing to the Secretary of Homeland Security, or her designee. This final rule amends the CBP regulations to specify that examinees should submit final administrative appeals to the Assistant Commissioner, Office of International Trade.
SUMMARY:
Customs Broker License Examination Appeals
SUPPLEMENTAL INFORMATION
Background
Section 641 of the Tariff Act of 1930 (Tariff Act), as amended (19 U.S.C. 1641) authorizes the Secretary of the Treasury to prescribe rules and regulations relating to the customs business of brokers as necessary to protect importers and the revenue of the United States. Specifically, section 641 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. In the case of an applicant for an individual broker's license, section 641 states that the Secretary of the Treasury may conduct an examination to determine an applicant's qualifications for a license.
The Homeland Security Act of 2002 (Homeland Security Act) generally transferred the functions of the U.S. Customs Service from the Treasury Department to the Secretary of Homeland Security. 6 U.S.C. 101 et seq. Section 412 of the Homeland Security Act (6 U.S.C. 212) provides that the Secretary of the Treasury retains customs revenue functions unless the Secretary of the Treasury delegates the authority to the Secretary of Homeland Security. The regulation of customs brokers is encompassed within the customs revenue functions set forth in section 412 of the Homeland Security Act. On May 15, 2003, the Secretary of the Treasury delegated authority related to the customs revenue functions to the Secretary of Homeland Security subject to certain exceptions. See Treasury Order No. 10016 (Appendix to 19 CFR Part 0). Since the authority to prescribe the rules and regulations related to customs brokers is not listed as one of the exceptions, this authority now [[Page 52401]]
resides with the Secretary of Homeland Security.
Pursuant to section 641 of the Tariff Act, part 111 of title 19 of the Code of Federal Regulations sets forth the conduct and licensing requirements for customs brokers. Section 111.11 sets forth the basic requirements for obtaining a broker's license, including the requirement that the applicant must obtain a passing grade on the written examination within a 3year period before submitting the application for a broker's license. 19 CFR 111.11.
Section 111.13(f) provides that an examinee can appeal a failing grade on the written examination by first filing a written appeal with Trade Policy and Programs, Office of International Trade, U.S. Customs and Border Protection (CBP), within 60 calendar days after the date of the written notice of the examination results. 19 CFR 111.13(f). After reviewing the submission, CBP provides the examinee with a written notice setting forth the decision on the appeal. If CBP's decision on the appeal reaffirms the result of the examination, the examinee may subsequently request review of CBP's decision on the appeal by writing to the Secretary of Homeland Security, or her designee, within 60 calendar days after the date of the notice from CBP.
Explanation of Amendment
As noted above, the Secretary of the Treasury delegated to the Secretary of Homeland Security the authority to prescribe rules and regulations relating to customs brokers. The Secretary of Homeland Security, in turn, delegated some of this authority to the Commissioner of CBP including the authority to regulate brokers. See Delegation Number 7010.3, dated May 11, 2006.
On October 19, 2007, CBP published a final rule in the Federal Register, at 72 FR 59166, setting forth technical corrections to the CBP regulations to reflect changes in CBP's organizational structure. Among the many technical changes in that document, consistent with the Homeland Security Act and Treasury Delegation 10016, CBP amended 19 CFR 111.13(f) to remove the Secretary of the Treasury as the official with the authority to issue the final administrative appeal on a failing grade on the broker's exam and gave the Secretary of Homeland Security or her designee that authority.
Since the publication of the final rule regarding this particular technical amendment, CBP has determined that the Assistant Commissioner in CBP's Office of International Trade is the most appropriate official to issue the final administrative appeal on a failing grade on the written customs broker's exam. This designation is consistent with DHS Delegation Number 7010.3, which delegates the authority to regulate customs brokers to the Commissioner of CBP. In addition, CBP notes that the Office of International Trade is staffed with examination subject matter experts and is uniquely positioned to independently and expeditiously review examination appeals. Accordingly, Sec. 111.13(f) is being amended in this document by removing ``Secretary of Homeland Security, or his designee'' and adding, in its place, ``Assistant Commissioner, Office of International Trade, U.S. Customs and Border Protection.''
Administrative Procedure Act
Since this rule pertains to matters relating to rules of agency organization, procedure, or practice, this rule is not a substantive rule and is exempt from the notice and comment rulemaking requirements under the Administrative Procedure Act. See 5 U.S.C. 553(b)(A). In addition, the delayed effective date requirement of 5 U.S.C. 553(d) does not apply to this rule for these same reasons.
Regulatory Flexibility Act
Because this rule is not subject to the notice and public comment procedure requirements of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Executive Order 12866
These amendments do not meet the criteria for a ``significant regulatory action'' as specified in Executive Order 12866. Therefore, the Office of Management and Budget (OMB) has not reviewed this rule. Signing Authority
This document is being issued by CBP in accordance with Sec. 0.1(b)(1) of the CBP regulations (19 CFR 0.1(b)(1)).
List of Subjects in 19 CFR Part 111
Administrative practice and procedure, Brokers, Customs duties and
inspection, Imports, Licensing, Reporting and recordkeeping requirements.
Amendments to the CBP Regulations
For the reasons set forth above, part 111 of title 19 of the Code of
Federal Regulations (19 CFR part 111) is amended as follows: PART 111CUSTOMS BROKERS
1. The general authority citation for Part 111 continues to read as follows:
Authority: 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1624, 1641.
2. In Sec. 111.13, paragraph (f) is revised to read as follows: Sec. 111.13 Written examination for individual license.
* * * * *
(f) Appeal of failing grade on examination. If an examinee fails to
attain a passing grade on the examination taken under this section, the
examinee may challenge that result by filing a written appeal with
Trade Policy and Programs, Office of International Trade, U.S. Customs
and Border Protection, Washington, DC 20005 within 60 calendar days
after the date of the written notice provided for in paragraph (e) of
this section. CBP will provide to the examinee written notice of the
decision on the appeal. If the CBP decision on the appeal affirms the
result of the examination, the examinee may request review of the
decision on the appeal by writing to the Assistant Commissioner, Office
of International Trade, U.S. Customs and Border Protection, within 60
calendar days after the date of the notice on that decision.
Dated: September 21, 2009.
Janet Napolitano,
Secretary.
[FR Doc. E924489 Filed 10909; 8:45 am]
BILLING CODE 911114P
FOR FURTHER INFORMATION CONTACT
Russell Morris, Broker Compliance Branch, Trade Policy and Programs, Office of International Trade, (202) 8636543.