19 C.F.R. Subpart D—Cancellation, Suspension, or Revocation of License or Permit, and Monetary Penalty in Lieu of Suspension or Revocation
Title 19 - Customs Duties
This subpart sets forth provisions relating to cancellation, suspension, or revocation of a license or a permit, or assessment of a monetary penalty in lieu of suspension or revocation, under section 641(d)(2)(B), Tariff Act of 1930, as amended (19 U.S.C. 1641(d)(2)(B)). The provisions relating to assessment of a monetary penalty under sections 641(b)(6) and (d)(2)(A), Tariff Act of 1930, as amended (19 U.S.C. 1641(b)(6) and (d)(2)(A)), are set forth in subpart E of this part. (a) Without prejudice. The Assistant Commissioner may cancel a broker's license or permit “without prejudice” upon written application by the broker if the Assistant Commissioner determines that the application for cancellation was not made in order to avoid proceedings for the suspension or revocation of the license or permit. If the Assistant Commissioner determines that the application for cancellation was made in order to avoid those proceedings, he may cancel the license or permit “without prejudice” only with authorization from the Secretary of the Treasury. (b) With prejudice. The Assistant Commissioner may cancel a broker's license or permit “with prejudice” when specifically requested to do so by the broker. The effect of a cancellation “with prejudice” is in all respects the same as if the license or permit had been revoked for cause by the Secretary except that it will not give rise to a right of appeal. The Assistant Commissioner may accept a broker's written voluntary offer of suspension of the broker's license or permit for a specific period of time under any terms and conditions to which the parties may agree. The appropriate Customs officer may initiate proceedings for the suspension, for a specific period of time, or revocation of the license or permit of any broker for any of the following reasons: (a) The broker has made or caused to be made in any application for any license or permit under this part, or report filed with Customs, any statement which was, at the time and in light of the circumstances under which it was made, false or misleading with respect to any material fact, or has omitted to state in any application or report any material fact which was required; (b) The broker has been convicted, at any time after the filing of an application for a license under §111.12, of any felony or misdemeanor which: (1) Involved the importation or exportation of merchandise; (2) Arose out of the conduct of customs business; or (3) Involved larceny, theft, robbery, extortion, forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion, or misappropriation of funds; (c) The broker has violated any provision of any law enforced by Customs or the rules or regulations issued under any provision of any law enforced by Customs; (d) The broker has counseled, commanded, induced, procured, or knowingly aided or abetted the violations by any other person of any provision of any law enforced by Customs or the rules or regulations issued under any provision of any law enforced by Customs; (e) The broker has knowingly employed, or continues to employ, any person who has been convicted of a felony, without written approval of that employment from the Assistant Commissioner; (f) The broker has, in the course of customs business, with intent to defraud, in any manner willfully and knowingly deceived, misled or threatened any client or prospective client; or (g) The broker no longer meets the applicable requirements of §111.11 and §111.19.
Title 19: Customs Duties
PART 111—CUSTOMS BROKERS
Subpart D—Cancellation, Suspension, or Revocation of License or Permit, and Monetary Penalty in Lieu of Suspension or Revocation
§ 111.50 General.
§ 111.51 Cancellation of license or permit.
§ 111.52 Voluntary suspension of license or permit.
§ 111.53 Grounds for suspension or revocation of license or permit.
§ 111.54 [Reserved]
§ 111.55 Investigation of complaints.
Every complaint or charge against a broker which may be the basis for disciplinary action will be forwarded for investigation to the special agent in charge of the area in which the broker is located. The special agent in charge will submit a report on the investigation to the director of the port and send a copy of it to the Assistant Commissioner.
§ 111.56 Review of report on investigation.
The port director will review the report of investigation to determine if there is sufficient basis to recommend that charges be preferred against the broker. He will then submit his recommendation with supporting reasons to the Assistant Commissioner for final determination together with a proposed statement of charges when recommending that charges be preferred.
§ 111.57 Determination by Assistant Commissioner.
The Assistant Commissioner will make a determination on whether or not charges should be preferred, and he will notify the port director of his decision.
§ 111.58 Content of statement of charges.
Any statement of charges referred to in this subpart must give a plain and concise, but not necessarily detailed, description of the facts claimed to constitute grounds for suspension or revocation of the license or permit. The statement of charges also must specify the sanction being proposed (that is, suspension of the license or permit or revocation of the license or permit), but if a suspension is proposed the charges need not state a specific period of time for which suspension is proposed. A statement of charges which fairly informs the broker of the charges against him so that he is able to prepare his response will be deemed sufficient. Different means by which a purpose might have been accomplished, or different intents with which acts might have been done, so as to constitute grounds for suspension or revocation of the license may be alleged in the alternative under a single count in the statement of charges.
§ 111.59 Preliminary proceedings.
(a) Opportunity to participate. The port director will advise the broker of his opportunity to participate in preliminary proceedings with an opportunity to avoid formal proceedings against his license or permit.
(b) Notice of preliminary proceedings. The port director will serve upon the broker, in the manner set forth in §111.63, written notice that:
(1) Transmits a copy of the proposed statement of charges;
(2) Informs the broker that formal proceedings are available to him;
(3) Informs the broker that sections 554 and 558, Title 5, United States Code, will be applicable if formal proceedings are necessary;
(4) Invites the broker to show cause why formal proceedings should not be instituted;
(5) Informs the broker that he may make submissions and demonstrations of the character contemplated by the cited statutory provisions;
(6) Invites any negotiation for settlement of the complaint or charge that the broker deems it desirable to enter into;
(7) Advises the broker of his right to be represented by counsel;
(8) Specifies the place where the broker may respond in writing; and
(9) Advises the broker that the response must be received within 30 calendar days of the date of the notice.
§ 111.60 Request for additional information.
If, in order to prepare his response, the broker desires additional information as to the time and place of the alleged misconduct, or the means by which it was committed, or any other more specific information concerning the alleged misconduct, he may request that information in writing. The broker's request must set forth in what respect the proposed statement of charges leaves him in doubt and must describe the particular language of the proposed statement of charges as to which additional information is needed. If in the opinion of the port director that information is reasonably necessary to enable the broker to prepare his response, he will furnish the broker with that information.
§ 111.61 Decision on preliminary proceedings.
The port director will prepare a summary of any oral presentations made by the broker or his attorney and forward it to the Assistant Commissioner together with a copy of each paper filed by the broker. The port director will also give to the Assistant Commissioner his recommendation on action to be taken as a result of the preliminary proceedings. If the Assistant Commissioner determines that the broker has satisfactorily responded to the proposed charges and that further proceedings are not warranted, he will so inform the port director who will notify the broker. If no response is filed by the broker or if the Assistant Commissioner determines that the broker has not satisfactorily responded to all of the proposed charges, he will advise the port director of that fact and instruct him to prepare, sign, and serve a notice of charges and the statement of charges. If one or more of the charges in the proposed statement of charges was satisfactorily answered by the broker in the preliminary proceedings, the Assistant Commissioner will instruct the port director to omit those charges from the statement of charges.
§ 111.62 Contents of notice of charges.
The notice of charges must inform the broker that:
(a) Sections 554 and 558, Title 5, United States Code, are applicable to the formal proceedings;
(b) The broker may be represented by counsel;
(c) The broker will have the right to cross-examine witnesses;
(d) Within 10 calendar days after service of this notice, the broker will be notified of the time and place of a hearing on the charges; and
(e) Prior to the hearing on the charges, the broker may file, in duplicate with the port director, a verified answer to the charges.
§ 111.63 Service of notice and statement of charges.
(a) Individual. The port director will serve the notice of charges and the statement of charges against an individual broker as follows:
(1) By delivery to the broker personally;
(2) By certified mail addressed to the broker, with demand for a return card signed solely by the addressee;
(3) By any other means which the broker may have authorized in a written communication to the port director; or
(4) If attempts to serve the broker by the methods prescribed in paragraphs (a)(1) through (a)(3) of this section are unsuccessful, the port director may serve the notice and statement by leaving them with the person in charge of the broker's office.
(b) Partnership, association or corporation. The port director will serve the notice of charges and the statement of charges against a partnership, association, or corporation broker as follows:
(1) By delivery to any member of the partnership personally or to any officer of the association or corporation personally;
(2) By certified mail addressed to any member of the partnership or to any officer of the association or corporation, with demand for a return card signed solely by the addressee;
(3) By any other means which the broker may have authorized in a written communication to the port director; or
(4) If attempts to serve the broker by the methods prescribed in paragraphs (b)(1) through (b)(3) of this section are unsuccessful, the port director may serve the notice and statement by leaving them with the person in charge of the broker's office.
(c) Certified mail; evidence of service. When the service under this section is by certified mail, the receipt of the return card duly signed will be satisfactory evidence of service.
§ 111.64 Service of notice of hearing and other papers.
(a) Notice of hearing. After service of the notice and statement of charges, the port director will serve upon the broker and his attorney if known, by one of the methods set forth in §111.63 or by ordinary mail, a written notice of the time and place of the hearing. The hearing will be scheduled to take place within 30 calendar days after service of the notice of hearing.
(b) Other papers. Other papers relating to the hearing may be served by one of the methods set forth in §111.63 or by ordinary mail or upon the broker's attorney.
§ 111.65 Extension of time for hearing.
If the broker or his attorney requests in writing a delay in the hearing for good cause, the hearing officer designated pursuant to §111.67(a) may reschedule the hearing and in that case will notify the broker or his attorney in writing of the extension and the new time for the hearing.
§ 111.66 Failure to appear.
If the broker or his attorney fails to appear for a scheduled hearing, the hearing officer designated pursuant to §111.67(a) will proceed with the hearing as scheduled and will hear evidence submitted by the parties. The provisions of this part will apply as though the broker were present, and the Secretary of the Treasury may issue an order of suspension of the license or permit for a specified period of time or revocation of the license or permit, or assessment of a monetary penalty in lieu of suspension or revocation, in accordance with §111.74 if he finds that action to be in order.
§ 111.67 Hearing.
(a) Hearing officer. The hearing officer must be an administrative law judge appointed pursuant to 5 U.S.C. 3105.
(b) Rights of the broker. The broker or his attorney will have the right to examine all exhibits offered at the hearing and will have the right to cross-examine witnesses and to present witnesses who will be subject to cross-examination by the Government representatives.
(c) Interrogatories. Upon the written request of either party, the hearing officer may permit deposition upon oral or written interrogatories to be taken before any officer duly authorized to administer oaths for general purposes or in customs matters. The other party to the hearing will be given a reasonable time in which to prepare cross-interrogatories and, if the deposition is oral, will be permitted to cross-examine the witness. The deposition will become part of the hearing record.
(d) Transcript of record. The port director will provide a competent reporter to make a record of the hearing. When the record of the hearing has been transcribed by the reporter, the port director will deliver a copy of the transcript of record to the hearing officer, the broker and the Government representative without charge.
(e) Government representatives. The Assistant Commissioner will designate one or more persons to represent the Government at the hearing.
§ 111.68 Proposed findings and conclusions.
The hearing officer will allow the parties a reasonable period of time after delivery of the transcript of record in which to submit proposed findings and conclusions and supporting reasons for the findings as contemplated by 5 U.S.C. 557(c).
§ 111.69 Recommended decision by hearing officer.
After review of the proposed findings and conclusions submitted by the parties pursuant to §111.68, the hearing officer will make his recommended decision in the case and certify the entire record to the Secretary of the Treasury. The hearing officer's recommended decision must conform to the requirements of 5 U.S.C. 557.
§ 111.70 Additional submissions.
Upon receipt of the record, the Secretary of the Treasury will afford the parties a reasonable opportunity to make any additional submissions that are permitted under 5 U.S.C. 557(c) or otherwise required by the circumstances of the case.
§ 111.71 Immaterial mistakes.
The Secretary of the Treasury will disregard an immaterial misnomer of a third person, an immaterial mistake in the description of any person, thing, or place, or ownership of any property, any other immaterial mistake in the statement of charges, or a failure to prove immaterial allegations in the description of the broker's conduct.
§ 111.72 Dismissal subject to new proceedings.
If the Secretary of the Treasury finds that the evidence produced at the hearing indicates that a proper disposition of the case cannot be made on the basis of the charges preferred, he may instruct the port director to serve appropriate charges as a basis for new proceedings to be conducted in accordance with the procedures set forth in this subpart.
§ 111.73 [Reserved]
§ 111.74 Decision and notice of suspension or revocation or monetary penalty.
If the Secretary of the Treasury finds that one or more of the charges in the statement of charges is not sufficiently proved, he may base a suspension, revocation, or monetary penalty action on any remaining charges if the facts alleged in the charges are established by the evidence. If the Secretary of the Treasury, in the exercise of his discretion and based solely on the record, issues an order suspending a broker's license or permit for a specified period of time or revoking a broker's license or permit or, except in a case described in §111.53(b)(3), assessing a monetary penalty in lieu of suspension or revocation, the Assistant Commissioner will promptly provide written notification of the order to the broker and, unless an appeal from the Secretary's order is filed by the broker (see §111.75), the Assistant Commissioner will publish a notice of the suspension or revocation, or the assessment of a monetary penalty, in the
§ 111.75 Appeal from the Secretary's decision.
An appeal from the order of the Secretary of the Treasury suspending or revoking a license or permit, or assessing a monetary penalty, may be filed by the broker in the Court of International Trade as provided in section 641(e), Tariff Act of 1930, as amended (19 U.S.C. 1641(e)). The commencement of those proceedings will, unless specifically ordered by the Court, operate as a stay of the Secretary's order.
§ 111.76 Reopening the case.
(a) Grounds for reopening. Provided that no appeal is filed in accordance with §111.75, a person whose license or permit has been suspended or revoked, or against whom a monetary penalty has been assessed in lieu of suspension or revocation, may make written application in duplicate to the Assistant Commissioner to reopen the case and have the order of suspension or revocation or monetary penalty assessment set aside or modified on the ground that new evidence has been discovered or on the ground that important evidence is now available which could not be produced at the original hearing by the exercise of due diligence. The application must set forth the precise character of the evidence to be relied upon and must state the reasons why the applicant was unable to produce it when the original charges were heard.
(b) Procedure. The Assistant Commissioner will forward the application, together with his recommendation for action thereon, to the Secretary of the Treasury. The Secretary may grant or deny the application to reopen the case and may order the taking of additional testimony before the Assistant Commissioner. The Assistant Commissioner will notify the applicant of the Secretary's decision. If the Secretary grants the application and orders a hearing, the Assistant Commissioner will set a time and place for the hearing and give due written notice of the hearing to the applicant. The procedures governing the new hearing and recommended decision of the hearing officer will be the same as those governing the original proceeding. The original order of the Secretary will remain in effect pending conclusion of the new proceedings and issuance of a new order under §111.77.
§ 111.77 Notice of vacated or modified order.
If, pursuant to §111.76 or for any other reason, the Secretary of the Treasury issues an order vacating or modifying an earlier order under §111.74 suspending or revoking a broker's license or permit, or assessing a monetary penalty, the Assistant Commissioner will notify the broker in writing and will publish a notice of the new order in the
§ 111.78 Reprimands.
If a broker fails to observe and fulfill the duties and responsibilities of a broker as set forth in this part but that failure is not sufficiently serious to warrant initiation of suspension or revocation proceedings, Headquarters, or the port director with the approval of Headquarters, may serve the broker with a written reprimand. The reprimand, and the facts on which it is based, may be considered in connection with any future disciplinary proceeding that may be instituted against the broker in question.
§ 111.79 Employment of broker who has lost license.
Five years after the revocation or cancellation “with prejudice” of a license, the ex-broker may petition the Assistant Commissioner for authorization to assist, or accept employment with, a broker. The petition will not be approved unless the Assistant Commissioner is satisfied that the petitioner has refrained from all activities described in §111.42 and that the petitioner's conduct has been exemplary during the period of disability. The Assistant Commissioner will also give consideration to the gravity of the misconduct which gave rise to the petitioner's disability. In any case in which the misconduct led to pecuniary loss to the Government or to any person, the Assistant Commissioner will also take into account whether the petitioner has made restitution of that loss.
§ 111.80 [Reserved]
§ 111.81 Settlement and compromise.
The Assistant Commissioner, with the approval of the Secretary of the Treasury, may settle and compromise any disciplinary proceeding which has been instituted under this subpart according to the terms and conditions agreed to by the parties including, but not limited to, the assessment of a monetary penalty in lieu of any proposed suspension or revocation of a broker's license or permit.
Browse Previous | Browse Next
