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shall cause publication to be made in the Federal Register of the notice of desire to contest the determination. Within thirty days after publication, the petitioner may commence an action in the United States Customs Court contesting the determination.
“(3) (A) Any suit instituted pursuant to paragraph (1) or (2) of this section shall be subject to judicial review as provided in section 2640 (b) of title 28, United States Code.
“(B) person adversely affected or aggrieved by a decision of the Secretary or the Commission of a kind that is appealable by an American manufacturer, producer, or wholesaler pursuant to subsection (d) (1) or (d) (2) of this section, is entitled to judicial review as provided in subsection (i) of this section.”.
(f) Subsection 516(g) of the Tariff Act of 1930, as amended, is hereby amended to read as follows:
“(g) If the cause of action is sustained in whole or in part, on the merits: and without remand for further proceedings by a decision of the United States Customs Court or of the United States Court of Customs and Patent Appeals or of the United States Supreme Court: (1) merchandise of the character covered by the published determination of the Secretary or of the Commission which is entered for consumption or withdrawn from warehouse for consumption after the date of publication of the court decision in the weekly Customs Bulletin shalt be subject to appraisement, classification, assessment of duty and entry in accordance with the final judicial decision in the action: Provided, That, in the event a judicial decision relating to (a) a decision of the Secretary of the Treasury under section 201 of the Antidumping Act, as amended, or (b) a decision of the Secretary under section 303 of the Tariff Act of 1930, as amended, relating to merchandise which is free of duty, no additional duties shall be assessed unless and until the Commission makes the affirmative determinations required under subsection (b) (1) of section 303 of the Tariff Act of 1930, as amended, or section 201(a) of the Antidumping Act, as amended, whichever is applicable; and (2) the liquidation of entries covering such merchandise so entered or withdrawn shall, to the extent the court overrules the determination of the Secretary or of the Commission and from the time of such publication of the decision, be suspended until final disposition is made of the action. Upon final disposition of the action, all entries the liquidation of which was or should have been suspended shall be liquidated, or if necessary, reliquidated in accordance with the final decision.”.
(g) Section 516 of the Tariff Act of 1930, as amended is amended by adding the following new subsection (i):
“(i) (1) Any person adversely affected or aggrieved by a decision or determination of the Secretary or the United States International Trade Commission that is subject to judicial review under subsection (c)(4) or (d) (3) (B) of this section, may file an action for such review in the Customs Court. Such action must be filed within thirty days of the decision or determination, or, if notice of the decision is required to be published, within thirty days of publication, whichever is later.
“(2) Upon the filing of an action for judicial review under subsection (1) of this subsection, the Customs Court shall review the record of the decision of the Secretary or the United States International Trade Commission. The court may affirm the decision or order that the entire matter he returned for further consideration, but the Court may not modify the decision.
"(3) In any action for limited judicial review under this section, the findings of fart of the Secretary or of the Commission shall be conclusive unon the Court and the parties. The decision shall he affirmed unless the Court determines that it was arbitrary, capricious, or contrary to the applicable statute.
“(4) Unon application of any party, the Court may make the action a preferred cause on ita docket, but the Court may not suspend the effectiveness of the decia sion until final disposition of the action, including any appeals.
“(5) Excent as specifically provided in subsections (c) and (d) of this section, the limited remedy provided in this subsection constitutes the exclusive form of judicial review of decisions of the Secretary and the United States International Trade Commission unres sections 303 and 516 of the Tariff Act of 1930, as amonden, and sertion 201 of the Antidumning Art. 1921. as amended.
(h) The amendments specified in this section shall become effective on the day following the date of its enactment: Provided. That, nothing contained in this Act shall be construed to require the dismissal of any action otherwise validly brought before that date under former subsection 1582(b) of title 28 of the
United States Code to contest any failure of the Secretary of the Treasury to assess countervailing duties or antidumping duties, pursuant to subsection 516 (c) of the Tariff Act of 1930, as amended (19 U.S.C. 1516(c)), due to negative injury determinations by the United States International Trade Commission under section 303 of the Tariff Act of 1930, as amended (19 U.S.C. 1303), under section 201 of the Antidumping Act of 1921, as amended (19 U.S.C. 160).
SEC. 602. (a) Paragraph (b) (1) of section 514 of the Tariff Act of 1930, as amended, is amended by deleting the last sentence of the paragraph and by inserting in lieu thereof the following new provision : "Except as provided in sections 485(d) and 557 (b) of the Tariff Act of 1930, as amended, protests may be filed with respect to merchandise which is the subject of a decision specified in subsection (a) of this section by (a) the importers or consignees shown on the entry papers, or their sureties; (a) any person paying any charge or exaction; (c) any person seeking entry or delivery; (d) any person filing a claim for drawback; or. (e) any authorized agent of any of the persons specified in (a) through (d)."
(b) Paragraph (b) (2) of sections 514 of the Tariff Act of 1930, as amended, is amended by adding the following new provision-"a protest by a surety may be filed within ninety days from the date of mailing of notice of demand for payment against its bond ; Provided, That, if another party has not filed a timely protest, the surety's protest shall certify that it is not being filed to collusively extend another authorized person's time to protest as specified in this subsection."
TITLE VII-TECHNICAL AND CONFORMING AMENDMENTS
SEC. 701. The first sentence of paragraph (a) of section 250 of the Trade Act of 1974 is amended by deleting all that appears after “United States” and by inserting in lieu thereof “Court of Customs and Patent Appeals”.
Sec. 702. (a) The second sentence of the second paragraph of paragraph (b) of section 641 of the Tariff Act of 1930, as amended, is amended by deleting all that appears after “filing," and before "sixty," and by inserting in lieu thereof “the Court of Customs and Patent Appeals, within".
(b) The second paragraph of paragraph (b) of section 641 of the Tariff Act of 1930, as amended, is amended by adding the following new sentence immediately after the third sentence of that paragraph "For purposes of this paragraph, all relevant rules prescribed in accordance with sections 2072 and 2112 of title 28, United States Code, shall be applicable to the Court of Customs and Patent Appeals.”.
SEC. 703. Section 1340 of title 28, United States Code, is amended by adding the following new sentence: “The Customs Court shall possess jurisdiction over any civil action, not within its exclusive jurisdiction, arising under any Act of Congress providing for revenue from imports or tonnage upon transfer from a district court as provided in sections 1591 and 1593 of title 28, United States Code.".
SEC. 704. Section 1355 of title 28, United States Code, is amended by adding the following new sentence: "The Customs Court shall have jurisdiction of any such action or proceeding upon transfer from a district court as provided in section 1591 of title 28, United States Code.".
Sec. 705. Section 1356 of title 28, United States Code, is amended by adding the following new sentence: “The Customs Court shall have jurisdiction of any such action or proceeding upon transfer from a district court as provided in section 1591 of title 28, United States Code.".
SEC. 706. Section 751 of title 28, United States Code, is amended by adding the following new paragraph (f):
“(f) When the Customs Court is sitting in a judicial district, other than the Southern and Eastern Districts of New York, the clerk of each district court, or an authorized deputy clerk, upon the request of the Chief Judge of the Customs Court and with the approval of the district court, shall act in the district as clerk of the Customs Court, in accordance with rules and orders of the Customs Court, for all purposes relating to the case when pending before that court.”.
SEC. 707. Section 1491 of title 28, United States Code, is amended by inserting after the word "suits" where it first appears in the first sentence of the second paragraph of that section the following: "within the exclusive jurisdiction of the Customs Court, or”.
SEC. 708. Section 2414 of title 28, United States Code, is amended by inserting after "court" in the first sentence of the first paragraph of that section the following “or Customs Court”.
SEO. 709. Section 1919 of title 28, United States Code, is amended by inserting after the word "court” where it first appears, the following: “or the Customs Court”.
SEC. 710. Chapter 125 of title 28 is amended by adding a new section thereto as follows: "§ 1963a. Registration of judgments of the Customs Court
"A judgment in an action for the recovery of money or property entered by the Customs Court which has become final by appeal or expiration of time for appeal may be registered in any district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner in any district in which the judgment is a lien.".
SEC. 711. Section 1331(a) of title 28, United States Code, as amended, is amended by adding the following new sentence: “The district courts shall not possess jurisdiction pursuant to this section over any matter within the exclusive jurisdiction of the Customs Court.”.
SEC. 712. Paragraph (a) of section 2602 of title 28, United States Code is amended by deleting all that appears after “Appeals” and before "shall” and by inserting, in lieu thereof, the following: "arising under sections 1585 and 1591 of this title or section 516 of the Tariff Act of 1930, as amended”.
SEC. 713. Section 3 of the Act of July 5, 1884 (23 Stat. 119), is amended to read as follows: “The decision of the Commissioner of Customs on all questions of interpretation growing out of the execution of the laws relating to the collection of tonnage tax and to the refund of such tax when collected erroneously or illegally, shall be subject to judicial review in the Customs Court as provided in title 28, United States Code: Provided, That, in the Customs Court, and upon appeal, if any, from that court, the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.”.
SEC. 714. Section 514(a) of the Tariff Act of 1930, as amended, is amended by deleting the last sentence of that paragraph.
SEC. 715. (a) The provisions of section 2631 as contained in section 402 of this Act shall become effective as to entries liquidated on and after the date of enactment.
(b) All other provisions of this Act shall become effective upon the date of enactment: Provided, That, this Act shall not cause the dismissal of any action instituted prior to the date of enactment under the then existing jurisdictional statutes concerning the Customs Court or the Court of Customs and Patent Appeals.
U.S. COURT OF CUSTOMS AND PATENT APPEALS,
Washington, D.C., July 10, 1978. Mr. MICHAEL J. ALTIER, Deputy Coun sel, Subcommittee on Improvements in Judicial Machinery, 6306
Dirksen Senate Office Building, Washington, D.C.
We offer the following, relatively minor, comments:
"In any suit instituted pursuant to this section, the decision of the Secretary shall be subject to judicial review as provided in section 2640 (a) (2) of title 28, United States Code."
(3) Page 27, Sec. 504 should be revised to read :
Sec. 504. Chapter 167 of title 28, United States Code, is amended by inserting the following new section : "$ 2603. Judicial conference.
The Court of Customs and Patent Appeals is authorized to conduct an annual judicial conference for the purpose of considering the business of the court and improvements in the administration of justice in the court.
The basis for comments (1) and (2) appears obvious. That for comment (3) requires some explanation.
Though the provision of Sec. 504 in the revised draft sent with your letter appears the more logical placement and would be perfectly acceptable to this court, that placement may have a potential for objection and thus for possible delay in the progress of S. 2857. The placement of authorization of our judicial conference in chapter 167, and the language itself, limit the provision to this court.
Our judicial conferences have from their beginning in 1974 enjoyed the largest attendance of any held by any court. They have thus far been conducted as a project of the Bar. Statutory authorization would enable substantial improvement and is strongly to be desired. The court is therefore deeply appreciative of the Subcommittee's willingness to consider such authorization and will be pleased to accept it, wherever placed in title 28. Sincerely,
HOWARD T. MARKEY.
SHARRETTS, PALEY, CARTER & BLAUVELT, P.C.,
Washington, D.C., July 14, 1978. Re Customs Courts Act of 1978. SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL MACHINERY, 6306 Dirksen Senate Office Building, Washington, D.C. Attn: Mr. Michael J. Altier, Deputy Counsel
DEAR MR. ALTIER: We appreciate the opportunity afforded us to comment upon the revised draft of S. 2857, the Customs Courts Act of 1978. As we explained to you in our telephone conversation, because of time constraints it was impossible to review the draft with our Committee on Customs Law of the New York County Lawyers Association. Therefore, the comments and recommendations set forth below are entirely our own, rather than those of the NYCLA or any committee thereof.
We believe that the revised draft of June 30, 1978 (all references set forth 'below are to this revision) represents a substantial improvement over the previous draft. The revised bill is much more integrated and cohesive, and less self-contradictory and confusing.
However, in our rather hurried review of the draft, we find ourselves unable to approve the following provisions :
1. Page 20. The clause at the beginning of revised 28 USC § 2640 reading "Unless a particular issue presented is of a type traditionally viewed as suitable for determination under any other standard of review” is probably the most objectionable feature of the revision. This proviso would cause untold confusion and would generate endless controversy over the question of whether a de novo trial is required in the actions specified in 28 USC § 2640(a). Under present law, there can be no doubt that a de novo trial is required in the actions specified in § 2640 (a), because of the informality of the procedures by which the Customs Service assesses duty or takes other action on entries of merchandise. Therefore the right of trial de novo, in the actions specified in § 2640 (a), should be continued without any qualification or reservation whatsoever, and we accordingly urge that the "unless" clause be deleted.
2. Page 7. We think the language in new 28 USC § 1585 immediately following the words "pursuant to action taken by the Customs Service” may be improved if the following language is substituted : “(except action taken by the Customs Service on behalf of or pursuant to the direction of a court or another Federal agency). Exclusion of imports from entry or delivery pursuant to 19 USC § 1305 for alleged obscenity shall continue to be reviewable in district court as provided for under present law."
5. Page 7. As we pointed out at page 16 of our prior submission, new 28 USC § 1586 should include specific language vesting jurisdiction in the Customs Court over the administrative exaction or assessment of liquidated damages or penal sums under Customs bonds, to clarify the presently-unsettled law. We therefore suggest the following language:
"For purposes of this section, liquidated damages or penal sums assessed or exacted under bonds given to the United States for any Customs purpose shall be treated as "other exactions”.
4. Page 15. Omission of the phrase "if necessary to the disposition of the litigation” at the end of the second paragraph of proposed new 28 USC § 2634 (c) appears to be inadvertent, since the same language does appear in proposed new 2634 (b) and (d).
5. Page 17. In proposed new 28 USC 8 2635(d), the language appearing after the phrase "is barred" should be replaced by the following language: "unless commenced within thirty days of publication of the President's final decision in the Federal Register.” The present language pertaining to “announcement” by the President is ambiguous and subject to difficulty of interpretation. There should be no doubt regarding the particular act of the President which starts the running of this extremely short statute of limitations.
6. Page 23. Proposed new § 2643 (C) should be deleted. It imposes unwarranted limitations upon the new grant of “equity powers" contained in proposed new 28 USC § 1582. We see no reason whatsoever to deny the Customs court these new powers in actions arising under proposed new § 1586, § 1587, § 1588, § 1589, § 1590, and $ 1591 of Title 28 or proposed new $ 516 (c) of the Tariff Act of 1930.
7. Page 23a. With regard to the first paragraph of proposed new 28 USC $ 2644(b), we favor the addition of the phrase "or without sufficient basis in the record to support such findings” after the word “erroneous”, as suggested by Mr. Vance in his oral presentation on behalf of the Association of the Cutsoms Bar at the June 27th hearings. We agree with Mr. Vance that the phrase in question restates and reaffirms present appellate practice in the Court of Customs and Patent Appeals.
8. Page 35. In line 13 of proposed new subsection (g) of $ 516 of the Tariff Act of 1930, as amended, the word “of” should be inserted after the phrase "in the event”.
9. Page 42. We are puzzled by Section 714 which would delete last sentence of present $ 514(a) of the Tariff Act of 1930 as amended (19 USC § 1514(a)). This provision reads as follows:
“When a judgment on order of the United States Customs Court has become final, the papers transmitted shall be returned, together with a copy of the judgment or order to the appropriate Customs officer, who shall take action accordingly.” In most instances judgments or orders of the Customs Court are implemented by the appropriate Customs official by further processing the entry papers upon their return to him or her, e.g., the entries are reliquidated in the case of a decision in favor of the importer, and refund made accordingly. It would be disruptive to the normal functional relationship between the Customs Court and the Customs Service if the present practice were to be discontinued.
In conclusion, we again thank the Subcommittee for an opportunity to review the revised draft. We request that upon the printing of a clean bill, interested members of the bar and of the public be given further opportunity, hopefully upon longer notice, to participate in the legislative process. Sincerely,
DONALD W. PALEY.
UNITED STATES CUSTOMS COURT,
New York, N.Y., June 14, 1978. Hon. DENNIS DECONCINI, Chairman, Subcommittee on Improvements in Judicial Jachinery Committee on
the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR DECONCINI: Thank you very much for sending me a copy of the revised Customs Courts Act of 1978. Please consider this letter as my response to your request, contained in your letter of July 6, 1978, for an analysis of the revised bill.
Consistent with the position of the United States Customs Court, as explained in my statement submitted to your Subcommittee, my comments here also group the provisions of the revised bill into two general categories:
1. Those designed to clarify and confirm the status of the Customs Court as a court established under Article III of the Constitution of the United States, and to give the Customs Court the same plenary powers over cases within its subject matter jurisdiction as those possessed by the district courts of the United States; and
2. Those designed to expand the opportunities for, and create a comprehensive system of, judicial review of all agency actions affecting importations by increas. ing the jurisdiction of the Customs Court.
The revisions do not change Title I which sets forth the declaration of purposes. As I mentioned in my statement, the Judges of the United States Customs Court are in total agreement with the stated purposes of the proposed legisla