Unlicensed Employees of National Broker Permit Holders Allowed to Perform 'Customs Business,' CBP Says
Employees for national customs permit holders may submit entries from a remote location, considered to be "customs business," as long as there's sufficient responsible supervision and control, CBP said in a March 21 ruling (here). That ruling, HQ H258892, involved Superior Brokerage Services (SBS), which holds local port permits and a "national permit in order to file entries remotely from their Minneapolis/St. Paul and Miami locations," CBP said. The company sought CBP input on whether its unlicensed employees in the Chicago freight forwarding office would be allowed to transmit entries remotely on weekends through the Automated Broker Interface (ABI), ACE or the Automated Commercial System. The law allows for only certain people to be involved in "customs business."
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Specifically, the company's Chicago office employees, who work on weekends, would log in to the Minnesota system to transmit the entries that were prepared by the Minnesota offices during the work week, the company said. "The Chicago employees would not review the entries, and the entries would be subject to a ten percent auditing requirement, as if filed in the Minneapolis/St. Paul office," the company told CBP. According to SBS, “they would merely be hitting the send button and then checking ABI for an [Automated Manifest System] match” and if "an airway bill changed, they would update as part of their normal break bulk function.” Also, "if entry documents are required, the Minneapolis/St. Paul office would send the packet the following week," it said. "Additionally, if a manifest issue arose, which cannot be corrected by the airline, the entry will not be made over the weekend" and "Minneapolis is still the only point of contact for all customs purposes, besides the importer of record."
Those Chicago employees would in fact be handling "customs business," based on a 2008 Court of International Trade ruling in Delgado vs. United States that laid out factors to identify what constitutes "customs business," CBP said. The entries filed by the Chicago office "will be performed in furtherance of the customs business performed by the Minnesota office," it said. "It will arise from the activities relating to the preparation of documents intended to be filed with CBP, in furtherance of customs business." Even though "the unlicensed employees are not engaging in the preparation of the documents to be submitted, evaluating the data before it is submitted, correcting errors, or altering the document, are activities concerning the entry and admissibility of merchandise," CBP said. "Accordingly, these activities are elevated to a level beyond 'mere electronic transmission of data' and constitute 'customs business.'"
Still, the "unlicensed Chicago employees may transmit such entry filings, under the appropriate supervision," the agency said. CBP regulations allow for some cases in which "an employee of a broker, acting solely for his employer, is not required to be licensed" for signing customs business documents or transacting other customs business if authorized, CBP said. Brokers with national permits also aren't required to file statements identifying the authorized unlicensed employees, CBP said. Because SBS is "a licensed corporation, its employees will be allowed to conduct customs business, and use the ABI system, under the necessary responsible supervision and control," CBP said.
The company should designate a licensed broker to be "in charge of supervising the activities performed under the national permit," it said. "There are licensed brokers in the Minneapolis/St. Paul and Miami locations, who can provide the oversight needed." In addition to auditing and monitoring, CBP suggested "other forms of supervision should be implemented such as training, the issuance of guidance instructions, and supervisory site visits. If SBS follows these guidelines to ensure the necessary supervision of the Chicago employees, the proposed transaction is permissible."