An Expert's View about Law and Compliance in the United States

Posted on: 30 Aug 2012

This article provides essential Red Flags to be used when outsourcing trade compliance education/training. It arms you with critical information so you know what to look for and questions to ask.

This article is from the August 2010 Edition of The Export Practitioner. Certificate vs. Certification: Buyer Beware! BY JOHN PRIECKO and BETTY FISHMAN* Have you ever taken a training course in export compliance? At the end, did the instructor tell you that you were “certified”? What exactly does that mean? In recent years, there has been a proliferation of providers claiming to offer certifications for trade compliance professionals. You or your organization could spend a lot of time, effort and money for something that isn’t what you think it is or what it is portrayed to be. The goal of this article is to examine key issues that you and your organization need to look out for in this arena. It will also provide questions you need to get answered so you will know what you are getting and what you’re not. In addition, it aims to give employers a basis for judging the meaning of various certificate or certification claims on the resumes of people seeking trade compliance jobs. As in virtually every facet of trade compliance, thorough due diligence is crucial when it comes to outsourcing education and training. Some programs are sponsored by for-profit companies, while others are administered by non-profit trade groups or associations. Beware of programs that inflate, mislead or misrepresent what they are. There are significant differences between certificate and certification programs. Background The terms “certificate” and “certification” are similar, often confused and often used interchangeably. Yet, there are important differences between them. Each has its own role. Neither is necessarily superior to the other. However, it is important to know the differences in order to evaluate the type of recognition a person has earned. Generically, anyone who “certifies” or attests to something can claim to have issued a certification. An optometrist can certify that you have 20/20 vision; a veterinarian can certify that your pets have received all the required inoculations; a notary public can certify that he or she saw you sign a document. A trade compliance instructor can say that his class certified you in export licensing. But these are not true certification programs. The term certification, as used in occupational settings, is applied to a program designed to measure the individual's knowledge regardless of where it was gained and the ability to apply that knowledge to real-life situations in a certain field, often with the aim of safeguarding the public interest or public safety. 1 Professional certification programs are practice-based and criterion referenced. That means the individual is scored against a baseline standard. Examinees are not scored against one another; there is no curving of grades. In certification examinations, the passing grade is set independently by a determination of the level at which a “minimally competent” person should perform. Other Considerations Certification is often the beginning of eligibility to practice or to advance in a certain occupation. For example, doctors earn MD degrees based on passing all the required medical school coursework and can become licensed to practice medicine, but they are not recognized as specialists until they becomes board certified. Likewise, in the vocational trades, plumbers who have learned the basics must then apply them as apprentices to experienced plumbers before they can become licensed plumbers. “License” refers to a program administered by a government agency, usually a state, such as a professional engineer’s license or a driver’s license. Besides a license, other terms used in this context include “registration” and “credential.” “Credential” is a broader term that can include certificates, diplomas, degrees and all types of certifications. States also run “registries” (Registered Nurse) and certifications (Teacher Certifications) that serve as licenses. In each case, persons may practice in that profession only if they hold the appropriate state credential. Voluntary certification programs typically exist in fields where there is no state licensing program. Certificate A certificate is awarded upon the completion of something--a course or a program. If you take a course in first aid, you’ll receive a certificate of completion. A certificate in project management declares that you have completed and passed the coursework required by a specific institution in that field. Certificates recognize that the holder has acquired knowledge of some sort. There are hundreds, perhaps thousands, of certificate programs available through in-person or online coursework. These certificates are usually awarded by the providers of the coursework. A certificate program is relatively straightforward. Basically, you receive a document attesting that you attended or participated in a certain program. Sometimes this includes taking a test. For example, you attend a two-day program on trade compliance, paying one fee for the course and another for taking the test. Some companies require employees to have proof of attendance at such programs to meet annual training requirements and justify expending the funds. A training certificate is deemed to meet that proof. However, there are several potentially serious problems with this scenario. First, in most cases, both the course and test were put together by the vendor. The test, when there is one, is also graded by the vendor. Without external objective review and approval of the course content or the test, you have no guarantee of the quality of the program. Second, when such courses are held at conferences, the certificate doesn’t necessarily prove the individual actually attended the course. In some cases, the certificate is part of every registrant’s handout material. Even when an organization provides certificates at the end of the conference, it does not necessarily mean the person attended every relevant event unless attendance sheets were required for the individual sessions as well. 2 Finally, with today’s technology a person can easily create a “very official looking” certificate even if he did not attend the event, and chances are no one will be the wiser. Certification A certification program, by contrast, is very different. It is an objective assessment of a person’s ability to apply his or her knowledge to an occupational field and perform at a minimum level of competency in that field. Certification is awarded independently of any particular education, training or coursework. A person who becomes certified also has a continuing obligation to practice in accordance with the standards of the certification program and must usually demonstrate continuing competence at specific intervals in order to maintain the certification, sometimes called renewal of certification or recertification. The objective standards and the certification test are developed by an independent panel of subject-matter experts (SME). Once you meet all eligibility requirements and pass the final exam, you become certified. If there are required training classes, the objectives are set by or meet the learning objectives of the SME who have no vested interest in and no financial ties to the training course vendor. Additionally, the vendors who provide ongoing education and training may be reviewed and approved by an independent source using specific publicized standards to ensure content accuracy, consistency and quality. Further, the classes, testing, standards and recurring certification requirements are regularly reviewed and approved by a truly independent, recognized and responsible authority. This may be a government body, but be aware that individually created certification programs are not endorsed by any government organization. Here are some key differences between certificate and certification programs: Certificate Program Certification Program Acknowledgment of successful completion of a An objective assessment of an individual's particular course or series of courses, with or knowledge, skills and competency in a particular without examination at the end occupational specialty; success indicates mastery/competency as measured against a clearly defined, publicly available and defensible set of standards, usually through application, portfolio review, and/or exam Demonstrates knowledge of content at a specific Has on-going requirements involving point in time--the end of the course; there are no professional development in order to maintain; further requirements, although in some cases, the certificants must periodically “recertify” to course must be repeated periodically to refresh demonstrate they continue to meet competency the person’s knowledge, such as with regulatory requirements subject-matter education or training Awarded by the instructional organization which Awarded by an independent third-party provided the education or training; the test (if organization (typically not-for-profit) based on there is one) is usually developed and standards set by professionally recognized administered by the course provider. means; many certification organizations are themselves certified or accredited by other third- party organizations. 3 Available to anyone who completes the Typically requires work experience as a pre- specific coursework requisite in addition to academic or vocational education/training that is sometimes required Course content is usually not standardized and All candidates are rated against the same varies according to the specific provider or independently developed standards--an outline institution except in cases where such of required knowledge and skills, which is coursework is mandated by regulatory agencies developed through a defensible process (job/task analysis; role delineation) Does not require future adherence to any Often requires adherence to a Standard of standard(s) Practice or a Code of Ethics Usually listed on a resume under “Education” Typically results in credentials to be listed after or “Training” one's name (e.g. CPA for a Certified Public Accountant) Somewhere in Between In between the “pure” certificate and certification programs lies a hybrid certification based on specific learning objectives. In this case, the certification is given upon completion of standardized coursework, education or training, where the objectives are set by someone other than the actual providers, such as training mandated by federal agency regulations There are also programs developed in accordance with the standards of the American National Standards Institute or the National Commission on Competency Assurance where a certificate is awarded after successful completion of education or training according to criteria developed by independent SMEs. U.S. Government Endorsed Programs There are a variety of U.S. government (USG)-approved programs related to exports. These are worth noting but aren’t strictly certificate or certification programs in the sense we are talking about in this article. One is the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) Export Certification, which deals with export requirements for meat, poultry or processed egg products. Others include the Transportation Security Administration’s Certified Air Freight Forwarder, Certified Cargo Screening and Certified Cargo Screening Facilities Programs that focus on supply chain security. A better known and more relevant example is the Customs Broker licensing program of Customs and Border Protection (CBP). Here, CBP licenses private individuals, partnerships, associations or corporations to assist importers and exporters meet federal requirements governing international trade. To become a licensed Customs Broker you must pass a rigorous four-hour exam, submit an application and undergo a background investigation, including fingerprint analysis, review of character references, credit reports and any arrest records. You then have to pay appropriate fees and be approved by the CBP. The shortfall here is there are no USG-mandated recurring education or training requirements once you are licensed. Basically, you are a Customs Broker for life unless you violate the law or do not comply with CBP’s administrative and regulatory requirements. 4 You Can Do It Yourself Creating the illusion of certification credibility and validity is not hard. A variety of providers have already done this. You can do it too. Without consistent standards, who’s to say their programs, your program or my program is any better or worse than any other? As a hypothetical example, let’s say on our own we decide to establish a certification program for practitioners who are subject to the regulations of the Office of Foreign Assets Control (OFAC). We could then create three required face-to-face or online courses with tests at the end of each and then a final exam. If you pay me, attend our courses and take and pass our test, then you become a Certified OFAC Trade Complian ®ce Officer . Doesn’t that sound and look impressive? Notice the trademark registration symbol after the title? So, what’s wrong with this picture? Among other things, the name of the certification alone is misleading because it creates the illusion it’s somehow approved, condoned or endorsed by OFAC when, in fact, the agency had absolutely no input whatsoever in the curriculum or testing. This is NOT a true certification program! It’s really nothing more than a certificate of training. Trademark Considerations Also do not be misled by a registered trademark symbol--that superscript circle with the “R” inside. Only the U.S. Patent and Trademark Office (USPTO) can issue such a mark, which may only be used legally if the trademark is actually registered with the USPTO. All a real registered trademark means is someone filled out the paperwork and paid the USPTO a fee and the USPTO has determined that the mark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. It is not any measure of content or quality. You can and should check out trademark registrations on the USPTO website. Are they really registered? Based on first-hand experience with a little effort, practice and time, you can learn how to do this on your own. Essential Due Diligence Here are some of the Red Flags to watch out for in claimed certification programs. o There’s no independent validation of material, testing or recurring requirements o False declaration of government endorsement, support or recognition o Vendor-generated pronouncements or unproven claims (i.e. we are the global authority….) o Unsubstantiated claims that organizations, groups or individuals are taking their course or program o Assertions the certification title or acronym are registered trademarks when they aren’t o The provider is a store-front operation with limited or no real academic expertise or facilities o Certification requirements are arbitrarily vendor determined without publicly available and published standards 5 o Material is incorrect, out-of-date or not regularly reviewed for accuracy and currency Additionally, here are some of the questions you should always ask as part of your due diligence in selecting any outside source that claims it is offering certification for trade compliance education, training or related services: o Are the curriculum and certification standards independently developed/verified? o Who created the test? Who grades it? Who determines the pass/fail parameters? o What are recurring (re)certification requirements, who determines them, and what are they based on? o If endorsement by the USG or anyone else is claimed, ask for proof in writing and check it out for yourself. This is especially important, as the federal agencies can’t and won’t endorse a for-profit program. o Ask for references of those who have taken the program and talk to them directly about the content, quality and validity Now What? So what’s the solution? First, as an employer or employee who is looking to outsource anything, make sure you do your homework before you spend money to get bad advice or a flawed program. Always ask the hard questions before you or your organization commit. Without substantiated evidence, never assume the provider’s marketing claims are accurate. At the moment, no one is policing this arena; thus, buyer beware! The reality is there is no single universal standard. There are multiple standards created separately by a growing number of entities using their own criteria and self-administered programs with no true independent testing or validation. Without truly independent external content and quality checks, anyone can claim they have created “the standard” to be measured by. In fact, some are doing just that. Further, some allege credibility they simply do not have. A Value-Added Way Ahead The real solution is a long-overdue separate standards organization, perhaps a non-profit that operates under Sections 501(c)(3) or (c)(6) of the tax code and functions as a truly independent centralized clearing house for reviewing, endorsing and validating such programs. Something like a Trade Compliance Standards Commission or Council made up of independent, credible professionals and acknowledged and proven experts who are focused on quality education and training. Further, the best practice area is confusing, convoluted and inconsistent across industry and the trade compliance community in general. It too lacks unbiased oversight and a single universal standard. Even within the USG there’s disparity among departments over what an effective compliance program entails and what the best practices are. Thus, such an organization could also operate as a clearing house and focal point for trade compliance best practices and benchmarking. It could also: 6 o Add real credibility and legitimacy to valid certification programs o Enhance understanding of the letter and spirit of the regulations o Ensure a common approach to quality compliance programs o Harmonize compliance standards o Improve trade compliance across the board o Lead to agreement and guidance on core best practices by the government and industry o Provide oversight by a single centralized and independent organization Closing the Loop Harmonization and consistency are more important than ever before and especially so in light of ongoing and potential export control reforms. Likewise, setting and maintaining trade compliance standards are long overdue and will benefit industry and the USG on many fronts. There are enough trade compliance veterans already interested in setting a universal standard, but there’s a lot of work to be done. The challenge now is laying the groundwork and making it happen. * Mr. Priecko is the president and managing partner of Trade Compliance Solutions, a network of experienced professional resources for problem solving. He is a trade compliance veteran with more than 15 years expertise, particularly so in education, training and issues noted in the article. He can be reached at 703-895-1110 or jpriecko@comcast.net. Ms. Fishman is a certification consultant. She has 13 years experience managing certification and testing programs, working with SME groups, and developing new credentials. She also has nearly 20 years experience in test development and validation. She can be reached at 301-742- 7045 or bettyjfishman@gmail.com. [Reprints of this article with complete citation are authorized ONLY with the author’s or publisher’s permission.] 7
Posted: 30 August 2012

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