| January 31, 2020 is the deadline for filing Section 301 tariff exclusion requests for List 4A items for items imported from China. Do not discount the time and energy needed to prepare a proper exclusion request. Our law firm has helped many companies secure tariff exclusions. We welcome your questions. The October 2019 Customs Broker Exam Was A Debacle For CBP by Oscar Gonzalez, Attorney Hundreds of people who took the October 2019 customs broker exam studied weeks or months to prepare, but many were still surprised and even traumatized by what awaited them at the exam site which contributed to the low pass rate. It is not uncommon for people that sit for the exam to complain about errors found in the eighty multiple-choice questions of the 4.5 hour exam. While those kind of complaints have arisen, the greater concerns are about the testing conditions and extreme security measures that U.S. Customs and Border Protection (CBP) took. One of our students told us, “I am a former boxer and nothing makes me nervous. But my hands were shaking when I started that exam.” The customs broker exam is given by CBP. Since the exam went electronic in October 2017, CBP has outsourced the customs broker exam to private contractors and subcontractors. The private contractor proctors the exam and secures dozens of exam sites across the nation. While the private contractor performs these duties, CBP is ultimately and immediately responsible for any problems and successes with the customs broker exam. Just as CBP will not allow an importer to pawn off responsibility for legal compliance to its customs broker, CBP cannot pawn or assign its responsibility for the failures or success of the customs broker exam to private contractors and subcontractors. In administering the October 2019 exam, CBP ignored its own rules. Its Notice of Examination ( https://bit.ly/29gl6bo ) reads: " Examinees may use any written reference material; however, use of any electronic device during the exam (e.g., laptop, iPad / Nook / Kindle, smart phone, personal digital assistant, smart watch, etc.) is strictly prohibited." Thus people should have been allowed to bring in any written material, but no electronic devices. These are reasonable restrictions and allowances. People often depend on written resources developed and provided by the professional review courses they are enrolled in, like the one from our law firm. Some individuals also develop their own, personalized aids, including flash cards, mnemonics, rulers, and notes. The customs broker exam is open book. If you do not know how to classify goods going into the customs broker exam, there is no cheat sheet that is going to help you pass. Furthermore, CBP had always allowed people to bring with them any and all written material of their own choosing. As for banning electric devices, our students sometimes rely on sand timers, tiny and much cuter versions of the hour glasses. Unless you are Dorothy and your loathing of hour glasses is the Wicked Witch’s doing, who could object? How could you cheat with a sand timer? Apparently some CBP’s proctors objected because they deviated from the Notice of Examination and from tradition to ban both written materials and sand timers. Take that pass rate! But CBP proctors not only objected to pre-industrial time pieces, they also banned catalog racks that people use to bind the HTSUS. I cannot recall ever being forced to read, much less consult, a towering pile of 3,500 loose leaf pages, especially not in the middle of a time crunch. I imagine that a good gust would not have been conducive to the Gestapo security measures that the proctors were trying so hard to observe. Also, the catalog racks are nothing by solid steel, like really muscular three-hold binders. How could anyone use them to cheat? I supposed that the racks could be turned into weapons...if you were in prison and you needed a shiv. I don’t say that lightly. The proctors seemed to be emulating prison conditions. We hear that women were asked to lift up their blouses and were also asked to expose their bare shoulders. While no cavity searches have been reported, some proctors required people to pat themselves down and search for hidden electronic devices. I wonder if the proctors were expecting someone to yell, “Aha, I caught me. Officer, I would like to turn in, let me check the ID, give me a second, oh yes, I’d like to turn me in, but may I first have my catalog racks back?” Proctors demonstrated a vicious pettiness in other ways (as reported to us). One person was forced to remove the wrappers from their cough drops. Why? Maybe the wrappers contained the exam answers written in microscopic script or maybe they camouflaged an electronic device that, when swallowed, makes you smarter. People were forced to take off hair ties and jewelry (as if you can connect to the internet with a hoop earing). People were not allowed to bring in their suitcases with their course materials and were forced to make several trips from their car to their desk with about 75 pounds of course materials. We do not understand these tactics. Does CBP think that people that take the exam are children of trillionaires? Most exam facilities were not entirely conducive to exam-taking. Hundreds of people discovered that the top of their desks did not have enough room for both CBP’s computer (the one where individuals take and record their answers) and all the materials that exam-takers are instructed to bring (which require more landing space than your average aircraft carrier). One person started nudging the computer to make room for the materials when the proctor issued the following warning, and here I paraphrase: “I will kick you out if you touch that computer one more time.” I suspect most people would have been both intimidated and baffled. How do you take the customs broker exam on the computer that CBP assigned to you when CBP doesn’t allow you touch that computer? If CBP is requiring that exam-takers answer riddles as a condition of taking the exam, it should make that clear in its Notice of Examination. Of course, not all proctors acted so unpredictably, imperiously, or maliciously, but enough of them did, and that is the problem. Proctors may not have been reading from the same script, and whatever script or scripts they were consulting was not shared with the public. Proctors should not be allowed to spring new secret screening measures and certainly should not be allowed to deviate from CBP’s Notice of Examination. Abuse of discretion by proctors is now a larger and more certain problem than cheating. If proctors continue with this kind of nonsense, CBP will have to confront serious due process issues. Another problem with the October 2019 customs broker exam is that CBP forced exam-takers to sign a secret agreement not to discuss the contents of the exam with anyone. I have not seen or read the agreement because it is a secret agreement and people were not allowed to keep a copy, but conscripting the public into clandestine activities again raises due process concerns, to say the least.
Although the exam is electronic, CBP for some unfathomable reason takes weeks to officially record the answers and inform individuals of their score and whether they passed or failed. CBP presumably has its answer key finalized long before the exam date. Why does it take so long to get pass/fail letter out then? Is it because CBP is finding out that the test takers are smarter than the test writers? Lastly, CBP’s changed the exam date late in the game. In August 2019 (mind you, the exam was on October 17, 2019), CBP changed the exam date. The federal regulations say that the exam is to be given on “the fourth Wednesday in April and October unless the regularly scheduled examination date conflicts with a national holiday, religious observance, or other foreseeable event and the agency publishes in the Federal Register an appropriate notice of a change in the examination date.” It is now November and we still do not have a federal register notice telling us when the April 2020 exam date is. Moving the date at the last possible moment disrupts the travel and work plans for exam-takers. October 23 is national Mole Day. Perhaps CBP was concerned that holding the exam on that day would have infuriated the millions of people who annually take this day off from work to celebrate these short-sighted, subterranean mammals renown for burrowing intricate tunnels through prized gardens. Calamity avoided. Phew!
We instruct our students to study and practice taking the customs broker exam in unconventional and even noisy places to avoid being derailed on the actual exam day by circumstances that are not ideal. But this accommodation does not give CBP the license to ignore its legal obligation to provide a fair venue for the customs broker exam. The people who sit for the customs broker exam invest a great deal of money and time preparing for the ordeal; their taxes and fees also fund CBP and its contractors. CBP must not forget that exam-takers and CBP are both on trial on exam day. CBP flunked in October. The good news is that it has a whole six months to fix the very fixable problems. I’ll again be grading the agency just to make sure ....unless, of course, the whole thing falls on National Muskrat week, which I intend to take off from work. |
January 31, 2020 is the deadline for filing Section 301 tariff exclusion requests for List 4A items for items imported from China. Do not discount the time and energy needed to prepare a proper exclusion request. Our law firm has helped many companies secure tariff exclusions. We welcome your questions.
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The October 2019 Customs Broker
Exam Was A Debacle For CBP
by
Oscar Gonzalez, Attorney
Hundreds of people who took the October 2019 customs broker exam studied weeks or months to prepare, but many were still surprised and even traumatized by what awaited them at the exam site which contributed to the low pass rate. It is not uncommon for people that sit for the exam to complain about errors found in the eighty multiple-choice questions of the 4.5 hour exam. While those kind of complaints have arisen, the greater concerns are about the testing conditions and extreme security measures that U.S. Customs and Border Protection (CBP) took. One of our students told us, “I am a former boxer and nothing makes me nervous. But my hands were shaking when I started that exam.”
The customs broker exam is given by CBP. Since the exam went electronic in October 2017, CBP has outsourced the customs broker exam to private contractors and subcontractors. The private contractor proctors the exam and secures dozens of exam sites across the nation. While the private contractor performs these duties, CBP is ultimately and immediately responsible for any problems and successes with the customs broker exam. Just as CBP will not allow an importer to pawn off responsibility for legal compliance to its customs broker, CBP cannot pawn or assign its responsibility for the failures or success of the customs broker exam to private contractors and subcontractors.
In administering the October 2019 exam, CBP ignored its own rules. Its Notice of Examination (https://bit.ly/29gl6bo) reads: "Examinees may use any written reference material; however, use of any electronic device during the exam (e.g., laptop, iPad / Nook / Kindle, smart phone, personal digital assistant, smart watch, etc.) is strictly prohibited." Thus people should have been allowed to bring in any written material, but no electronic devices. These are reasonable restrictions and allowances. People often depend on written resources developed and provided by the professional review courses they are enrolled in, like the one from our law firm. Some individuals also develop their own, personalized aids, including flash cards, mnemonics, rulers, and notes. The customs broker exam is open book. If you do not know how to classify goods going into the customs broker exam, there is no cheat sheet that is going to help you pass. Furthermore, CBP had always allowed people to bring with them any and all written material of their own choosing. As for banning electric devices, our students sometimes rely on sand timers, tiny and much cuter versions of the hour glasses. Unless you are Dorothy and your loathing of hour glasses is the Wicked Witch’s doing, who could object? How could you cheat with a sand timer? Apparently some CBP’s proctors objected because they deviated from the Notice of Examination and from tradition to ban both written materials and sand timers. Take that pass rate!
| |
But CBP proctors not only objected to pre-industrial time pieces, they also banned catalog racks that people use to bind the HTSUS. I cannot recall ever being forced to read, much less consult, a towering pile of 3,500 loose leaf pages, especially not in the middle of a time crunch. I imagine that a good gust would not have been conducive to the Gestapo security measures that the proctors were trying so hard to observe. Also, the catalog racks are nothing by solid steel, like really muscular three-hold binders. How could anyone use them to cheat?
| |
I supposed that the racks could be turned into weapons...if you were in prison and you needed a shiv. I don’t say that lightly. The proctors seemed to be emulating prison conditions. We hear that women were asked to lift up their blouses and were also asked to expose their bare shoulders. While no cavity searches have been reported, some proctors required people to pat themselves down and search for hidden electronic devices. I wonder if the proctors were expecting someone to yell, “Aha, I caught me. Officer, I would like to turn in, let me check the ID, give me a second, oh yes, I’d like to turn me in, but may I first have my catalog racks back?”
| |
Proctors demonstrated a vicious pettiness in other ways (as reported to us). One person was forced to remove the wrappers from their cough drops. Why? Maybe the wrappers contained the exam answers written in microscopic script or maybe they camouflaged an electronic device that, when swallowed, makes you smarter. People were forced to take off hair ties and jewelry (as if you can connect to the internet with a hoop earing). People were not allowed to bring in their suitcases with their course materials and were forced to make several trips from their car to their desk with about 75 pounds of course materials. We do not understand these tactics. Does CBP think that people that take the exam are children of trillionaires?
Most exam facilities were not entirely conducive to exam-taking. Hundreds of people discovered that the top of their desks did not have enough room for both CBP’s computer (the one where individuals take and record their answers) and all the materials that exam-takers are instructed to bring (which require more landing space than your average aircraft carrier). One person started nudging the computer to make room for the materials when the proctor issued the following warning, and here I paraphrase: “I will kick you out if you touch that computer one more time.” I suspect most people would have been both intimidated and baffled. How do you take the customs broker exam on the computer that CBP assigned to you when CBP doesn’t allow you touch that computer? If CBP is requiring that exam-takers answer riddles as a condition of taking the exam, it should make that clear in its Notice of Examination.
| |
Of course, not all proctors acted so unpredictably, imperiously, or maliciously, but enough of them did, and that is the problem. Proctors may not have been reading from the same script, and whatever script or scripts they were consulting was not shared with the public. Proctors should not be allowed to spring new secret screening measures and certainly should not be allowed to deviate from CBP’s Notice of Examination. Abuse of discretion by proctors is now a larger and more certain problem than cheating. If proctors continue with this kind of nonsense, CBP will have to confront serious due process issues.
Another problem with the October 2019 customs broker exam is that CBP forced exam-takers to sign a secret agreement not to discuss the contents of the exam with anyone. I have not seen or read the agreement because it is a secret agreement and people were not allowed to keep a copy, but conscripting the public into clandestine activities again raises due process concerns, to say the least.
| |
Although the exam is electronic, CBP for some unfathomable reason takes weeks to officially record the answers and inform individuals of their score and whether they passed or failed. CBP presumably has its answer key finalized long before the exam date. Why does it take so long to get pass/fail letter out then? Is it because CBP is finding out that the test takers are smarter than the test writers?
| |
Lastly, CBP’s changed the exam date late in the game. In August 2019 (mind you, the exam was on October 17, 2019), CBP changed the exam date. The federal regulations say that the exam is to be given on “the fourth Wednesday in April and October unless the regularly scheduled examination date conflicts with a national holiday, religious observance, or other foreseeable event and the agency publishes in the Federal Register an appropriate notice of a change in the examination date.” It is now November and we still do not have a federal register notice telling us when the April 2020 exam date is. Moving the date at the last possible moment disrupts the travel and work plans for exam-takers. October 23 is national Mole Day. Perhaps CBP was concerned that holding the exam on that day would have infuriated the millions of people who annually take this day off from work to celebrate these short-sighted, subterranean mammals renown for burrowing intricate tunnels through prized gardens. Calamity avoided. Phew!
| |
We instruct our students to study and practice taking the customs broker exam in unconventional and even noisy places to avoid being derailed on the actual exam day by circumstances that are not ideal. But this accommodation does not give CBP the license to ignore its legal obligation to provide a fair venue for the customs broker exam. The people who sit for the customs broker exam invest a great deal of money and time preparing for the ordeal; their taxes and fees also fund CBP and its contractors. CBP must not forget that exam-takers and CBP are both on trial on exam day. CBP flunked in October. The good news is that it has a whole six months to fix the very fixable problems. I’ll again be grading the agency just to make sure ....unless, of course, the whole thing falls on National Muskrat week, which I intend to take off from work.
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