Georgia Woman Challenges 6 Questions on 2021 Customs Broker License Exam at CIT
Georgia woman Skeeter-Jo Stoute-Francois filed suit at the Court of International Trade Feb. 16 to contest six questions on the October 2021 customs broker license exam. In her complaint, Stoute-Francois said that after appealing the test results to the Treasury Department, she was left just short of the 75% grade needed to pass the test, failing at 73.75% (Skeeter-Jo Stoute-Francois v. U.S., CIT # 24-00046).
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The test taker originally received a score of 67.50%, but after Treasury made adjustments to four questions on the test, her score was bumped up to 73.75%. Her appeal followed on six of the test's questions.
Question 16 asked how frequently an applicant for admission, who becomes liable for a harbor maintenance fee when imported cargo is unloaded from a commercial vessel at a port under 19 CFR 24.24 and admitted to a foreign-trade zone, must pay all fees for which they are liable. CBP said the correct answer was "quarterly" while Stoute-Francois said "weekly."
Stoute-Francois said "the question lacks essential facts." CBP's regulations introduce a "de minimis for quarterly payments," noting that a quarterly payment is not needed "if the total value for all shipments for which a fee was assessed for the quarter does not exceed $10,000." The question doesn't contain information on the value of the shipments, "making it impossible to determine whether the de minimis threshold is met," she said.
"A more specific presentation of facts is essential to arrive at an accurate response, and the current formulation of the question hinders a fair evaluation," the complaint said.
Question 20 asked which piece of information is not needed on a commercial invoice. CBP said the answer was an "itemized list by name and amount of packing, cases, containers, and inland freight to the port of exportation, if included in the invoice price, and so identified," while the Georgia woman said it was the "name of a responsible employee of the exporter, who has knowledge, or who can readily obtain knowledge, of the transaction."
Stoute-Francois said the question is ambiguous since it asks which is "NOT a requirement" though all answers are options that can be listed on the commercial invoice, "although they may not be requirements." The key point here is that "something which can be waived, if not expressly stated, cannot be considered an absolute requirement," the complaint said. The information in CBP's answer "is subject to waiver by the port director if not readily available," meaning it can't be categorized as a requirement.
Question 34 asked by which metal an article of base metal containing two or more base metals is classified. CBP said it is the metal that predominates by weight over each of the other metals, while Stoute-Francois said it was the metal that gives the article its essential character. The Georgia woman said she "firmly" believes her choice "aligns with the principles outlined in the General Rules of Interpretation (GRI) and warrants a thorough re-consideration."
GRI 1 says the entire product is classified as it if was made of only that material or part which gives it its essential character "when the essential character" can be found. Per the GRI system, "the determination of essential character precedes considerations of weight or predominance," making her answer correct, the brief said.
Questions 44, 45 and 46 all asked for the classifications in the Harmonized Tariff Schedule of various items. Stoute-Francois said that Questions 44 and 45 were "fundamentally unfair" since she didn't have access to "ALL Customs Rulings during the exam" and that the relevant rulings were not part of the exam's material list.
Question 44 asked for the classification of "an automatic baseball pitching machine that releases five time- delayed balls in succession." CBP said it was classified in HTS subheading 9503.00.0073, while Stoute-Francois said the answer was subheading 9506.69.2040, arguing on appeal that her choice "aligns most closely with the common and popular meaning of the product described in the fact pattern."
Question 45 asked for the classification of a "battery-powered, digital blood-pressure monitor." CBP said it was subheading 9018.19.9550, while the test-taker said it was 9018.90.5040. "The logical deduction that, given the primary purpose of the device is to measure blood pressure and the absence of a more specific classification like 9018.19.9530 (blood pressure machine), 9018.90.5040 (sphygmomanometer) becomes the most fitting choice. Reinforce that the device essentially functions as a sphygmomanometer," the complaint said.
Question 46 asked for the classification and duty rate of "D-Aspartic acid (CAS #1783-96-6)." CBP said it was subheading 2922.49.4950, dutiable at 4.2%, while Stoute-Francois said it was 2922.49.4950K, free of duty. She said the question lacked essential facts, adding that her answer reflected her knowledge about how the industry uses D-Aspartic acid.