The National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) has filed an Amicus brief in the Court of International Trade contesting Customs and Border Protection’s (CBP) authority to revoke a customs broker’s entry filer code without affording the broker due process. The NCBFAA filed its brief in the case, Lizarraga Customs Broker v Bureau of Customs and Border Protection, US Department of Homeland Security; and Rosa Hernandez, Port Director, Otay Mesa, California.
The NCBFAA brief argues that, given the current paperless, automated environment, the prevalence of remote location filing, the inherent inefficiencies of manual filing and the inability to effect clearance through other government agencies, deactivation of the entry filer code is tantamount to suspension or revocation of the customs broker’s license. It further argues that the entry filer code is a property right that can only be revoked with due process.
As a result, Customs is required to serve notice upon the broker specifically stating the grounds for the complaint. The broker is afforded 30 days to respond after which a hearing must be held before an administrative law judge. Following the hearing, the agency must issue a written decision setting forth the findings of fact and the reasons for the decision. This decision is subject to judicial review. None of these procedures were followed in the instant case.
The NCBFAA also argued that CBP based its determination on the customs broker’s ‘misuse’ of his entry filer code notwithstanding the fact that Customs has never published guidelines as to what action might be considered to be a “misuse” that could lead to a deactivation of the filer.
The NCBFAA has questioned the validity of the regulation providing for the deactivation of a broker’s filer code because this substantive rule was promulgated without notice and comment as required under the Administrative Procedure Act. The NCBFAA has argued that the regulation should be invalidated as a result of this procedural misfeasance.
Headquartered in Washington, DC, the NCBFAA represents nearly 900 member companies with 100,000 employees in international trade - the nation’s leading freight forwarders, customs brokers, ocean transportation intermediaries (OTIs), NVOCCs and air cargo agents, serving more than 250,000 importers and exporters. Established in 1897 in New York, NCBFAA is the effective national voice of the industry. Through its various committees, counsel and representatives, the Association maintains a close watch over legislative and regulatory issues that affect its members. It keeps them informed of these and other related issues through its weekly Monday Morning eBriefing and various meetings as well as conferences throughout the year.