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FRIDAY, JUNE 23, 1978


Washington, D.C. The subcommittee met, pursuant to notice, at 9:10 a.m. in room 4232, Dirksen Senate Office Building, Senator Dennis DeConcini (chairman of the subcommittee) presiding: Staff present: Romano Romani, staff director;

Michael J. Altier, deputy counsel; Kathryn M. Coulter, chief clerk; Pamela Q. Phillips, assistant chief clerk; and Lance H. Robbins, staff assistant.

Senator DECONCINI. We will now call the hearing to order. Good morning.

The Subcommittee on Improvements in Judicial Machinery will come to order.

We are here this morning to begin the first of 2 days of hearings on S. 2857, the Customs Courts Act of 1978, a bill which clarifies and reviews the procedures and jurisdiction of the U.S. Customs Court.

Ten years ago, the growth of the international trade industry spawned an increased demand for the quick resolution of disputes involving imports. Congress responded with the Customs Courts Act of 1970, which substantially modified the procedures of the U.S. Customs Court.

In recognition of the courts' expanding role in international trade, S. 2857, which we have before us today, considers changes in the powers and jurisdiction of the U.S. customs courts.

The volume of international trade litigation has grown and the importance of international commerce decisions has increased to the point that more and more citizens are becoming affected.

Unfortunately, the statutes relating to the jurisdiction of the courts that handle such litigation have remained relatively unchanged. It is my belief that the Customs Courts Act of 1978 will help to eliminate much of the confusion over the judicial review of certain trade decisions.

We need to evaluate the policies of the customs courts. We need to address any technical problems posed by the bill. And, we need to investigate the implications that this change may have in our judicial system.

As introduced, it is my understanding that the proposed legislation is not without some difficulties. I hope that these hearings will enable us to better understand the implications and ramifications of S. 2857 and its impact upon importers, businessmen, consumers, labor, and others involved in the world of international trade negotiations.


Our first witness will be Barbara Babcock, Assistant Attorney General of the Civil Division from the Department of Justice. She will be accompanied by David Cohen, Chief of the Customs Section of the Department's Civil Division. The Department has been working diligently on this legislation for some time, and their testimony will further assist the subcommittee with its development.

The Honorable Edward D. Re will follow and lend us his expertise as Chief Judge of the U.S. Customs Court. He will give us some insight as to how this bill will impact trade litigation.

We are also looking forward to hearing from Thaddeus Rojek, Chief Counsel of the U.S. Customs Service in the Treasury Department; Michael H. Stein, General Counsel with the U.S. International Trade Commission; and Robert E. Herzstein of the American Bar Association. Mr. Herzstein will be accompanied by Joseph S. Kaplan, also of the American Bar Association.

Our witnesses today also include Simon Katz and Barry Nemmers on behalf of the American Importers Association; Leonard Meeker on behalf of the Consumers Union; and James C. Trombetta, president of the John F. Kennedy Airport Customs Brokers Association, who will be accompanied by David Serko, counsel to the association.

Before we begin, if there is no objection, I would like to have placed in the record at this point a copy of S. 2857, the Customs Court Act of 1978.

[Material follows:]



S. 2857


APRIL 7 (legislative day, FEBRUARY 6), 1978 Mr. DEConcini introduced the following bill; which was read twice and re

ferred to the Committee on the Judiciary


А To clarify and revise various provisions of title 28 of the United

States Code relating to the judiciary and judicial procedure regarding judicial review of international trade matters, and for other purposes.

Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3. That this Act may be cited as the “Customs Courts Act of


4 1978”.






SEC. 101. The Congress declares that the purposes of this

8 Act are (1) to provide for a comprehensive system of judicial 9 review of matters directly affecting imports, utilizing, wher10 ever possible, the specialized expertise of the United States 11 Customs Court and Court of Customs and Patent Appeals,



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and the opportunity for ensuring uniformity afforded by the 2 national jurisdiction of these courts; (2) to prevent juris3 dictional conflicts in civil actions directly affecting imports 4 due to the present ill-defined division of jurisdiction between 5 the district courts and the customs courts; (3) to provide 6 expanded opportunities for judicial review of actions directly 7 affecting imports; and, (4) to grant to the customs courts 8 plenary powers possessed by other courts created under

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SEC. 201. Section 251 of title 28, United States Code, is


14 amended by striking out the first and second paragraphs of 15 such section and inserting in lieu thereof the following:

“The President shall appoint, by and with the advice 17 consent of the Senate, nine judges who shall constitute a 18 court of record known as the United States Customs Court. 19 Such court is hereby declared to be a court established under

20 article III of the Constitution of the United States.


“The President shall designate one of the judges, under

22 seventy years of age, to be the chief judge of the court. The

23 judge so designated shall continue to serve as chief judge 24 until he reaches the age of seventy and a new chief judge 25 is designated.”.

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