(a) Sections 554 and 558, title 5, United States Code, are applicable to the formal proceedings;

(b) He may be represented by counsel;

(c) He will have the right to cross-examine witnesses;

(d) He will be notified within 10 days after service of this notice of the time and place of a hearing on the charges; and

(e) Prior to the hearing on the charges, he may file, in duplicate with the district director, a verified answer to the charges.

§ 111.63 Service of notice and statement of charges.

(a) Individual licensee. The district director shall serve the notice of charges and the statement of charges against an 'ndividual licensee as follows:

(1) By delivery to the broker personally;

(2) By certified mail, 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 district director; or

(4) If attempts to serve the broker by the above methods are unsuccessful, the district 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 district director shall serve the notices of charges and the statement of charges against a partnership, association, or corporation 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 such member or officer with demand for a return card signed by the addressee;

(3) By any other means which the broker may have authorized in a written communication to the district director; or

(4) If attempts to serve the broker by the above methods are unsuccess

ful, the district 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 is by certified mail, the receipt of the return card duly signed shall be satisfactory evidence of service.

§ 111.64 Service of notice of hearing and other papers.

(a) Notice of hearing. Within 10 days after service of the notice and statement of charges, the district director shall serve upon the broker or his attorney, by one of the methods enumerated in § 111.63 or by ordinary mail, a written notice of the time and place of the hearing. The hearing shall be scheduled to take place within 5 days after service of the notice of hearing.

(b) Other papers. Other papers relating to the hearing may be served by ordinary mail or by one of the methods set forth in § 111.63 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 on the ground that additional time is necessary to prepare a defense, the hearing officer designated pursuant to § 111.67(a) may reschedule the hearing, notifying the broker or his attorney in writing of the extension and the new time for which the hearing has been scheduled.

[T.D. 75-58, 40 FR 11562, Mar. 12, 1975]

§ 111.66 Failure to appear.

When an accused broker or his attorney fails to appear for a scheduled hearing, the hearing officer designated pursuant to §111.67(a) shall proceed with the hearing as scheduled, and shall hear evidence submitted on behalf of the Government. The regulations of this part shall apply as though the broker were present, and the Secretary of the Treasury may issue an order of suspension or revocation if he finds it to be in order.

[T.D. 75-58, 40 FR 11562, Mar. 12, 1975]

§ 111.67 Hearing.

(a) Government representatives. The Commissioner shall designate as hearing officer an appropriate officer of the Customs other than a Customs officer of the district for which the license was issued. The hearing officer shall provide a competent reporter to make a record of the hearing. The Commissioner shall designate one or more persons to represent the Government at the hearing. The hearing officer may designate one or more persons to assist in the proceedings.

(b) Rights of the accused. The broker or his attorney shall have the right to examine all exhibits offered at the hearing and shall have the right to cross-examine witnesses and to present witnesses who shall 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 shall be given a reasonable time in which to prepare cross-interrogatories and, if the deposition is oral, shall be permitted to cross-examine the witness. The deposition shall become part of the hearing record.

(d) Transcript of record. When the record of the hearing has been transcribed by the reporter, the hearing officer shall deliver a copy to the broker and the Government's representative without charge.

[T.D. 70-134, 35 FR 9254, June 16, 1970, as amended by T.D. 75-58, 40 FR 11563, Mar. 12, 1975]

§ 111.68 Proposed findings and conclusions.

The hearing officer shall 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 therefor as contemplated by 5 U.S.C. 557(c).

[T.D. 75-58, 40 FR 11563, Mar. 12, 1975]

§ 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 shall make his recommended decision in the case and certify the entire record to the Secretary of the Treasury. The hearing officer's recommended decision shall conform with the requirements of 5 U.S.C. 557. [T.D. 75-58, 40 FR 11563, Mar. 12, 1975]

§ 111.70 Additional submittals.

Upon receipt of the record, the Secretary of the Treasury will afford the parties a reasonable opportunity to make such additional submittals as required by 5 U.S.C. 557(c) and 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 the 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 accused'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 district director to serve appropriate charges as a basis for new proceedings to be conducted in accordance with the procedure set forth in this subpart.

§ 111.73 Partial proof of charges.

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 his decision on any remaining charges if the facts alleged in the charges are established by the evidence.

§ 111.74 Decision and notice of suspension or revocation.

If the Secretary of the Treasury in the exercise of his discretion issues an order of suspension or revocation of the license of a broker, the Commissioner of Customs will notify the broker and publish a notice of suspension or revocation in the FEDERAL REGISTER and in the Customs Bulletin.

$111.75 Appeal from the Secretary's decision.

An appeal from the order of the Secretary of the Treasury suspending or revoking a license may be taken in accordance with the provisions of section 641(b) of the Tariff Act of 1930, as amended (19 U.S.C. 1641(b)). The commencement of such proceedings shall, unless specifically ordered by the court, operace as a stay of the Secretary's order of suspension or revocation.

§ 111.76 Reopening the case.

(a) Grounds for reopening. Any person whose license has been suspended or revoked may make written application in duplicate to the hearing officer to have the order of suspension or revocation set aside or modified upon the ground of newly discovered evidence or 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 specifically the precise character of the evidence to be relied upon and shall state the reasons why the applicant was unable to produce it when the original charges were heard.

(b) Procedure. The hearing officer shall forward the application with his recommendation to the Secretary of the Treasury. The Secretary may grant or deny the application for reopening of the case and may order the taking of additional testimony before the hearing officer. The hearing officer shall notify the applicant of the Secretary's decision. If the Secretary grants the application and orders a hearing, the hearing officer shall set a time and place for such hearing and give due notice thereof to the applicant. The procedure governing the ad

ditional hearing and recommended decision of the hearing officer shall be the same as that governing the original proceeding.

[T.D. 75-58, 40 FR 11563, Mar. 12, 1975]

§ 111.77 Notice of reinstatement.

If the Secretary of the Treasury issues an order vacating or modifying the prior order of suspension or revocation, the Commissioner will notify the broker and publish a notice of the new order in the FEDERAL REGISTER and the Customs Bulletin.

§ 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 such failure is not sufficiently serious to warrant initiation of suspension or revocation proceedings the regional Commissioner or the district director, with the approval of the regional Commissioner, may serve the broker with a written reprimand. Such reprimand and the facts on which it is based, may be considered in connection with any future disciplinary proceeding that may be instituted.

[T.D. 70-134, 35 FR 9254, June 16, 1970, as amended by T.D. 77-242, 42 FR 54284, Oct. 5, 1977]

§ 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 Commissioner for authorization to accept employment with or to assist a licensed broker. Such petition shall not be approved unless the Commissioner is satisfied that the petitioner has refrained from all activities in any way violative of the provisions of § 111.42 and that petitioner's conduct has been exemplary during the period of disability. The Commissioner shall also give consideration to the gravity of the misconduct which gave rise to the petitioner's disability. In any case in which such misconduct leads to pecuniary loss to the Government or to any person, the Commissioner shall also take into account whether the pe

SOURCE: T.D. 73-140, 38 FR 13551, May 23, 1973, unless otherwise noted.

§ 112.0 Scope.

This part sets forth regulations providing for the bonding of carriers which will receive merchandise for transportation in bond, and the licensing of cartmen and lightermen for the cartage of merchandise entered for warehouse, designated for examination, or taken into custody as unclaimed, and the procedures in applying for such bonds or licenses. This part also sets forth the regulations concerning the obtaining of identification cards by cartmen and lightermen, and their employees and the procedures for revoking or suspending licenses and identification cards. Provisions setting forth the duties and responsibilities of cartmen and lightermen are set forth in Part 125 of this chapter.

Subpart A-General Provisions

§ 112.1 Definitions.

When used in this part, the following terms shall have the meaning indicated:

(a) Carrier. A "carrier" is one who undertakes to transport goods, merchandise or people.

(b) Cartman. A "cartman" is one who undertakes to transport goods or merchandise within the limits of the port.

(c) Common carrier. A "common carrier" is a carrier owning or operating a railroad, steamship, or other transportation line or route which undertakes to transport goods or merchandise for all of the general public who choose to employ him.

(d) Contract carrier. A "contract carrier" is a carrier which undertakes to transport specific goods or merchandise for a specific person or group of persons, and is authorized to operate as such by any agency of the United States.

(e) Freight forwarder. A “freight forwarder" is one who engages in the business of dispatching shipments on behalf of other persons, for a consideration, in foreign or domestic commerce between the United States, its territor

ies or possessions, and foreign countries, and of handling the formalities incident to such shipments, and is authorized to operate as such by any agency of the United States.

(f) Lighterman. A "lighterman" is one who transports goods or merchandise on a barge, scow, or other small vessel to or from a vessel within the port, or from place to place within a port.

(g) Private carrier. A “private carrier" is a carrier of his own goods or merchandise.

§ 112.2 Bond or license required.

(a) Carriers. A bond provided for in this part is required to transact business as a carrier receiving merchandise for transportation in bond.

(b) Cartmen and lightermen. A bond and license provided for in this part are required to transact business as a cartman or lighterman for the cartage or lighterage of merchandise entered for warehouse, designated for examination, taken to container stations, or taken into custody as unclaimed.

Subpart B-Authorization of Carriers To Carry Bonded Merchandise

§ 112.11 Carriers which may be authorized.

(a) From port to port in the United States. The district director may authorize the following types of carriers to receive merchandise for transportation in bond from one port to another in the United States upon compliance with the provisions of this subpart: (1) Common carriers. (2) Contract carriers. (3) Freight forwarders. (4) Private carriers, if:

(i) The private carrier is the proprietor of a Customs bonded warehouse;

(ii) The merchandise to be transported is his property, having been imported by him or purchased from another importer; and

(iii) The merchandise is to be transported from the port of importation or port of entry for warehouse to the private carrier's Customs bonded warehouse to another Customs bonded warehouse for physical deposit, or, if for exportation, from a Customs

bonded warehouse of which the private carrier is the proprietor to a Customs bonded warehouse at the port of exportation.

(b) Between ports in Canada or Mexico through the United States. Canadian and Mexican motor vehicle common carriers may be authorized to transport merchandise under bond between ports in Canada or Mexico through the United States (see Part 123 of this chapter), upon compliance with the provisions of this subpart.

[T.D. 73-140, 38 FR 13551, May 23, 1973, as amended by T.D. 75–221, 40 FR 41084, Sept. 5, 1975]

§ 112.12 Application for authorization.

(a) General requirements. All carriers and freight forwarders desiring to be authorized to receive merchandise for transportation in bond shall file with the district director concerned a bond on Customs Form 3587 (except private carriers which file on Customs Form 3588 and airline companies which have the option to file a consolidated aircraft bond, Customs Form 7605 or the Customs Form 3587), in a sum specified by the district director accompanied by a fee of $50. A check or money order shall be made payable to the United States Customs Service.

(b) Special requirements. In addition to the requirements in paragraph (a) of this section, the specified carriers shall also file with the district director the following documents:

(1) Common carriers other than railroad, steamship, or airline companies. Common carriers other than railroad, steamship, or airline companies generally known to be engaged in common carriage, shall file a certified extract of its articles of incorporation or charter showing that it is authorized to engage in common carriage, and a statement that it is operating or intends to operate as a common carrier. (2) Contract carriers and freight forwarders. Contract carriers and freight forwarders shall file a certificate from the appropriate agency of the United States showing that the applicant is authorized to operate as a contract carrier or freight forwarder by that agency and a statement showing that