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The Bureau of Customs (BOC) is allowing persons other than the customs broker to file an application for accreditation and obtain a certificate of accreditation as declarant from the agency.

Customs Memorandum Order (CMO) No. 34-2019 provides interim rules on accreditation and registration of persons, other than the customs broker, who are entitled to act as declarant and sign the goods declaration for consumption, warehousing, and transit shipments. CMO 34-2019 implements Sections 106 (Declarant) and 107 (Rights and Responsibilities of the Declarant) of the Customs Modernization and Tariff Act (CMTA).

Under CMO 34-2019, declarants may be the consignee or importer; exporter; customs broker acting under the authority of the importer or from a holder of the bill; the person who has the right to dispose of the goods; the holder of the bill of lading or airway bill duly indorsed by the shipping line or airline; or a person duly empowered to act as agent or attorney-in-fact for each holder.

The Chamber of Customs Brokers, Inc. (CCBI) is, however, asking the BOC to recall CMO 34-2019, saying the guidelines are “in direct contrast” to provisions of the Customs Brokers Act of 2004.

In a letter to Customs commissioner Rey Leonardo Guerrero dated and received on July 12, CCBI president Adones Carmona said the issuance of Customs Memorandum Order (CMO) No. 34-2019 must be “recalled immediately.” He describes the CMO as authorizing non-customs brokers to “practice our beloved profession in direct contrast to the provisions of Republic Act (RA) 9280,” or the Customs Brokers Act of 2004.

Carmona said declarants accredited under CMO 34-2019 run the risk of getting criminally prosecuted and convicted and face imprisonment of not less than six years for “unauthorized practice” of the customs broker profession under Section 28 (Prohibition Against the Unauthorized Practice of Customs Broker Profession) and Section 34 (Penal Provisions) of RA 9280.

While the use of customs brokers’ services is not practiced in several other countries, RA 9280 mandates its use in the Philippines.

Carmona also pointed out that CMO 34-2019 was issued and promulgated “sans the legal requirement of public consultation.” He said CCBI believes that as the accredited professional organization of customs brokers in the Philippines, the group should have been notified of the issuance of the CMO at the very least.

Further, Carmona said, CMO 34-2019 contradicts Customs Administrative Order (CAO) No. 05-2019, which imposes criminal liability and other burdens upon the customs broker in accordance with RA 9280. He added that CMO 34-2019 is silent as to any liability of the declarant.

CAO 05-2019, which provides the rules on the registration of customs brokers, was welcomed by CCBI when it was issued last month for maintaining that customs brokers sign the goods declaration pursuant to RA 9280.

The CCBI president also noted that CMO 34-2019 is “unfair and degrading to our profession.” He noted in particular Section 11 of CMO 342019, which he said “simply and deliberately instructs the declarant” to input in BOC’s electronic-to-mobile (e2m) system area, which is intended for the Professional Regulation Commission (PRC) ID number of the customs broker, the entry “non-broker.”

“This completely negates the strict qualifications to become a customs broker required by RA 9280,” Carmona said.

He said the new order will also have a chilling effect on the more than 11,000 licensed customs brokers all over the Philippines who had spent at least four years working toward a Bachelor of Science in Customs Administration (BSCA) degree and another seven months to take and pass the customs brokers licensure examination.

“This CMO essentially kills not only the profession but also the BSBA program,” Carmona stated.

Further, Carmona said CMO 34-2019 “will surely encourage the proliferation of ‘declarants and consignees for hire’.”

He said the new order “opens the floodgates for just any individual and entity to be accredited as declarant without restraint and accountability as that of a licensed customs broker governed by RA 9280 and Code of Professional Ethics and Technical Standards.”

Carmona said there is also a pending declaratory relief case concerning Section 106 (d) of the CMTA filed by CCBI before the Regional Trial Court of Manila Branch 16. He said the chamber believes BOC should wait for the resolution and finality of the case.

“We understand that the Bureau of Customs has the mandate to fully implement the CMTA. However, this must not be done at the expense of and in total disregard of our profession,” said Carmona, who has requested for a meeting with BOC on the matter.

The declarant provisions under CMTA were an issue even while still a bill in Congress as it provides that engaging the services of customs brokers become optional two years after the law’s passage.

Carmona, in an interview with PortCalls prior to the signing of CMO 34-2019, said attorneys-in-fact shouldn’t replace customs brokers, but should instead sign on behalf of the importer or exporter.

He noted that the last paragraph of Section 107 of the CMTA states that: “The declarant shall sign the goods declaration, even when assisted by a licensed customs broker, who shall likewise sign the goods declaration.” He said this meant that that the customs broker shall still sign the declaration, along with the declarant, which could be the importer, exporter, or attorney-in-fact.

Former BOC deputy commissioner Atty. Agaton Teodoro Uvero, in his book Understanding International Trade, Tariff and Customs, said the last paragraph of Section 106 conflicts with the original intent of the law and as a result, has conflicting provisions within the paragraph.

If read together with Section 110 (Relationship Between the Bureau and Third Parties), Section 106 may be interpreted to mean that for the first two years, a goods declaration may only be processed by the declarant or the customs broker, Uvero said. After the two-year period lapses, any third party designated by the importer may now directly transact with customs and, consequently, process the goods declaration. The last paragraph of Section 107 likewise provides that the declarant shall sign the goods declaration even if assisted by a customs broker, who shall likewise separately sign the goods declaration, Uvero noted. – Roumina Pablo

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