Customs Broker License Exam Taker Falls 1 Question Shy of Passing Grade After CAFC Appeal

The U.S. Court of Appeals for the Federal Circuit upheld CBP's decision not to grant credit to customs broker license exam test taker Byungmin Chae of Elkhorn, Nebraska, for two questions on the April 2018 exam. Judges Pauline Newman, Sharon Prost and Todd Hughes granted Chae credit for one of three questions he challenged, but that was insufficient to bring him up to the 75% threshold needed to pass the test.

Chae originally scored 65%, appealing his results twice to CBP, which then raised his score to 71.25%. Still needing credit on three more questions, the test taker filed suit at the Court of International Trade to contest five questions. He received credit for one. Chae, representing himself, then appealed questions 5, 27 and 33 to the Federal Circuit.

Question 5 was a multiple choice one on transactions not required to be performed by a licensed customs broker. CBP identified "transportation in bond" as the correct answer, while Chae chose "Foreign-Trade Zone entry" as the correct answer. Not disputing CBP's answer, Chae claimed that his answer was also correct. The appellate court agreed, granting him credit for the question.

Question 27 was a multiple choice one on which mail articles are not subject to examination or inspection by CBP. The U.S. said the proper answer was diplomatic pouches bearing the official seal of France and certified as containing only documents, while Chae chose a package to a government official with merchandise. The court held that a package to a government official containing merchandise cannot be exempted regardless of any difference in meaning between "shall be passed free of duty" and "examination or inspection by Customs" as laid out in federal regulations.

Question 33 concerned classification of "current production wall art depicting abstract flowers and birds that is mechanically printed, via lithography, onto sheets of paper, the paper measuring .35mm in thickness that have been permanently mounted onto a backing of .50 mm thick paperboard." CBP said Harmonized Tariff Schedule subheading 4911.91.3000 is the correct answer, while Chae answered with HTS subheading 9702.00.0000.

The court found HTS Chapter 97, Note 2 "explicitly excludes lithographs produced by 'any mechanical or photomechanical process' from heading 9702," precluding Chae's answer. While the description of "'current-production' strains the application of '[p]rinted not over 20 years at time of importation,' it is not inconsistent," Newman wrote.

(Byungmin Chae v. Janet Yellen, Fed. Cir. # 22-2017, dated 04/25/23; Judges: Pauline Newman, Sharon Prost and Todd Hughes; Attorneys: Byungmin Chae pro se; Marcella Powell for defendant U.S. government)