The Bureau of Customs (BOC) is restructuring its electronic-to-mobile (e2m) system to finally enable implementation of an order that will allow individuals, other than customs brokers, to act as declarant and sign the goods declaration.
BOC assistant commissioner and spokesperson Atty. Vincent Philip Maronilla, in a phone interview with PortCalls, said BOC is in the final stages of tweaking E2M, and targets implementing the order by the third week of October.
Once e2m is updated, only one signature from the declarant will be required in the goods declaration instead of the current two—one from the importer and the other from the customs broker.
The change in e2m implements Customs Memorandum Order (CMO) 34-2019, which was issued last July and provides interim guidelines for implementing Sections 106 (Declarant) and 107 (Rights and Responsibilities of the Declarant) of the Customs Modernization and Tariff Act (CMTA).
The order also provides rules on accreditation and registration of persons, other than the customs broker, entitled to act as declarant and to sign goods declaration for consumption, warehousing, and transit.
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.
Maronilla said there has been clamor from stakeholders to allow importers to choose who should declare their shipments.
Asked if, as claimed by customs brokers, accountability would be lessened if only importers sign the declaration, Maronilla said that may be to the contrary since importers can no longer point fingers at customs brokers for errors or violations.
A declarant is responsible for accuracy of goods declaration and for payment of duties, taxes, and other charges on the imported goods. The declarant is also liable for any violation of the CMTA and other related laws.
Maronilla said that even with CMO 34-2019, importers can “still freely” tap the services of customs brokers and assign them as the declarant.
He noted the plan to implement CMO 34-2019 was announced during BOC’s stakeholders’ dialogue on September 30.
Chamber of Customs Brokers, Inc. (CCBI) president Adones Carmona declined to comment so as not to preempt the group’s next move.
CCBI earlier asked BOC to recall CMO 34-2019, saying the guidelines were “in direct contrast” to provisions of the Customs Brokers Act of 2004.
Carmona, in a letter to BOC last July, described 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.
Carmona said declarants accredited under CMO 34-2019 run the risk of criminal prosecution and conviction, and of 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.
RA 9280 mandates the use of customs broker services in the Philippines, which is not a practice in some other countries.
Carmona 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 rules on registration of customs brokers, was welcomed by CCBI when it was issued for maintaining that customs brokers should sign the goods declaration pursuant to RA 9280.
The CCBI president noted that CMO 34-2019 is “unfair and degrading to our profession.” He cited in particular Section 11 of CMO 34-2019, which he said “simply and deliberately instructs the declarant” to input the entry “non-broker” in the e2m system area that is intended for the Professional Regulation Commission (PRC) ID number of the customs broker.
“This completely negates the strict qualifications to become a customs broker required by RA 9280,” Carmona said.
He noted implementation of the order will have a chilling effect on the more than 11,000 licensed customs brokers nationwide who spent at least four years acquiring a Bachelor of Science in Customs Administration (BSCA) degree and another seven months to take and pass the customs brokers’ licensure exam.
“This CMO essentially kills not only the profession but also the BSCA program,” the CCBI president stated.
Further, he said CMO 34-2019 “will surely encourage proliferation of ‘declarants and consignees for hire’” and “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 pointed out there is a 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 first wait for the case to be resolved and finalized .
The declarant provisions were an issue even when the CMTA was still a bill in Congress for stating that engaging the services of customs brokers becomes 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: “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 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 PortCalls column Across Borders published in February 2007, said the “last paragraph of Section 106 is in conflict with the original intent of the law and, as a result, has conflicting provisions within the paragraph.”
He added: “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; after the lapse of the two-year period, 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