Customs Broker Regulations Finalized – Come into Effect Dec. 19

Trade Update • October 20, 2022

fter many years of collaboration between U.S. Customs and Border Protection (CBP), customs brokers, and the trade community, CBP has issued its final rules to modernize the customs broker regulations (in 19CFR 111). These rules will provide resource optimization for both industry and CBP in order to update compliance requirements which protect revenue and strengthen CBP’s knowledge of importers.

These final rules include: Final Rules Modernization of the Customs Broker Regulations (87 FR 63267) and Elimination of the Customs Broker District Permit Fee (87 FR 63262). Both rules will take effect on December 19, 2022.

Key Changes in Final Rules

• Creating a new term and definition for “Processing Center”
• Transitioning to a national permit framework from a district one
• Increasing license application fees and expanding forms of payment
• Codifying that U.S. customs business is conducted within the U.S. customs territory
• Revising regulations regarding the broker/client relationship
• Updating the responsible supervision and control oversight framework
• Strengthening cyber security and records requirements
• Modernizing broker reporting and the electronic data interface (ACE) capabilities through the broker account portal
• Changing broker exam and licensing processes

Permits

• CBP eliminated the broker districts and district permits
• Current district permit holders without a national permit will be automatically transitioned to a national permit before Dec. 19, 2022
• The national permit allows the broker to conduct customs business on a national scope
• The national permit eliminates permit waivers and simplifies permit management

Broker Licence Fee Changes and Electronic Payment

• CBP increases the license application fee from $200 per application to $300 for individual license applications and $500 for organization license applications to recover some of the costs associated with the processing of applications and to better align the processing expenses between the application types

• CBP allows for electronic submission of broker fees through the eCBP portal if a CBP EDI system exists (currently in practice for the broker exam fee and application as well as the triennial fee and report)

Duties and Responsibilities (Broker/Client Relationship)

• Brokers must execute a customs power of attorney directly with the importer of record or drawback claimant, and

  not via a freight forwarder

  or other (unlicensed) third party, to transact customs business for that importer of record or drawback claimant

• Brokers must advise the client on the proper corrective actions required in case of noncompliance, an error or an omission on the client’s part, and retain a record of their communication with the client

Responsible Supervision and Control Requirements

• CBP has increased Responsible Supervision and Control factors listed in regulation from

  10 to 13

• CBP may consider the listed Responsible Supervision and Control factors to the extent any are relevant to a specific broker when determining what is necessary to perform and maintain responsible supervision and control
• A sole proprietorship, partnership, association or corporation must employ a sufficient number of licensed brokers, the number of which may depend on multiple factors, such as the size of the broker entity, the skills and abilities of the employees and supervising employees, and the complexity and similarity of tasks

While the determination of what is necessary to perform and maintain responsible supervision and control will vary depending upon particular circumstances, each broker needs to evaluate his or her own business to identify how to provide high quality service to the clients. However, there are certain factors which CBP may consider, which include but are not limited to the following:

1. The training provided to broker employees;
2. The issuance of instructions and guidelines to broker employees;
3. The volume and type of business of the broker;
4. The reject rate for the various customs transactions relative to overall volume;
5. The level of access a broker’s employees have to current editions of CBP regulations, the Harmonized Tariff Schedule of the United States, and CBP issuances;
6. The availability of a sufficient number of individually licensed brokers for necessary consultation with employees of the broker;
7. The frequency of supervisory visits of an individually licensed broker to another office of the broker that does not have an individually licensed broker;
8. The frequency of audits and reviews performed by an individually licensed broker of the customs transactions handled by their employees;
9. The extent to which the individually licensed broker who qualifies the permit is involved in the operation of the brokerage and communicates with CBP;
10. Any circumstances which indicate that an individually licensed broker has a real interest in the operations of a broker;
11. The timeliness of processing entries and payment of duty, tax, or other debt or obligation owing to the Government for which the broker is responsible, or for which the broker has received payment from a client;
12. Communications between CBP and the broker, and the broker’s responsiveness and action to communications, direction, and notices from CBP; and
13. Communications between the broker and its officer(s) and member(s); and the broker’s responsiveness and action to communications and direction from its officer(s) and member(s).

Cyber Security and Records Requirements

• Brokers must maintain original records, including electronic records, within the U.S. customs territory
• Brokers must notify CBP when there has been a breach of electronic or physical broker records and provide the compromised importer of record numbers
• Revisions to records confidentiality allows brokers to share client information with third parties when authorized in writing by the client

Broker Reporting and the Electronic Data Interface (ACE)

CBP modernized regulations will allow brokers to transmit the following information via the ACE portal account:

• Information on new and terminated employees
• Office of record and recordkeeping address information
• Recordkeeping point of contact information
• Knowledgeable 24/7 point of contact information
• If the ACE portal is not available, the information must be submitted to the processing Center
• CBP eliminates the requirement to report an employee’s prior employer(s) and prior home address(s)

Full details on CBP’s Customs Broker Modernization Changes 19 CFR 111 can be found here.