Contact: Alan R. Klestadt, Esq. @ 212.557.4000 For Immediate Release
Mary Jo Muoio @ (973) 402-8300
NCBFAA Opposes CBP Entry Filer Code Suspension/Revocation Proposal
Washington, DC: In response to CBP’s Notice of Proposed Rulemaking on the Establishment of Due Process Procedures on License-Like Processes, the National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) has filed comments arguing that the proposal was unjustified and failed to provide accused brokers with adequate due process protections. Following a court finding, the NCBFAA has argued that the entry filer code is an inseparable component of a customs broker’s license which cannot be suspended or revoked without affording the broker due process. NCBFAA has taken the position that the CBP proposal is unconstitutional and an attempt to circumvent the procedural safeguards outlined in 19 USC 1641 and 19 CFR 111.
“CBP's proposal to allow for the rapid or immediate suspension or revocation of entry filer codes is an extraordinary remedy for which CBP has not established a need,” according to the NCBFAA’s filing. “We respectfully submit that the proposed regulations are defective on at least three separate legal grounds.”
· First, the proposal to authorize immediate suspension in the event of "willfulness" violates the constitutional minimum guarantee of due process and must be revised.
· Second, once issued, an entry filer code is an inseparable component of a broker's license. Thus, the proposal as a whole, which would effectively permit CBP to terminate any customs broker's operations with a bare minimum of due process, violates the stringent due process requirements of 19 U.S.C. § 1641(d).
· Third, the proposed regulations do not comport with the requirements of the Administrative Procedure Act, and should be modified to ensure that the protections of the APA are not neglected.
CBP should clearly define the condition of "misuse," under which filer code suspension or revocation may be effectuated. The protections afforded to entry filers should include, at a minimum, a probationary status as an interim step prior to suspension, as is afforded to Automated Broker Interface participants.
“We also disagree with CBP's determination that the proposed regulations will not have a substantial impact on a significant number of small business entities,” the NCBFAA continued, “and we request that CBP conduct a regulatory flexibility analysis as required by the Regulatory Flexibility Act to determine the viability of alternative proposals that could accomplish similar goals without the threat of economic catastrophe.”
The NCBFAA is further requesting that the portion of the NPRM which addresses the suspension or revocation of a licensed customs broker's entry filer code be withdrawn. In the event that CBP determines to move forward with this proposed rulemaking, the final regulations will require significant modification in order to recognize and preserve the broker's rights to due process regardless of the circumstances offered to justify such extraordinary action.
Headquartered in Washington, DC, the NCBFAA represents more than 850 member companies with 100,000 employees in international trade - the nation's leading freight forwarders, customs brokers, ocean transportation intermediaries (OTIs), NVOCCs and air cargo agents, serving more than 250,000 importers and exporters. Established in 1897 in New York, NCBFAA is the effective national voice of the industry. Through its various committees, counsel and representatives, the Association maintains a close watch over legislative and regulatory issues that affect its members. It keeps them informed of these and other related issues through its weekly Monday Morning eBriefing, and various meetings and conferences throughout the year.
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