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tion. We welcome the opportunity to offer our assistance in helping to achieve these laudatory and salutary purposes.

The revised bill also does not change the provision contained in the original Title II, entitled "Composition of the Customs Court and Assignment of Judges to Other Courts". We believe that the status of the Customs Court, as an Article III court, will be clarified and confirmed by these provisions which will eliminate statutory anachronisms affecting the Judges of the Customs Court. As I previously stated, the intent of these provisions is so obvious and salutary that they need no further justification. We welcome the inclusion and retention of these provisions in the bill, and again request your favorable consideration.

Section 1582 of the original and revised bill is concerned with the powers of the Customs Court, and is intended to give the Customs Court the same plenary powers as are possessed by the district courts of the United States. As it appeared in the original bill, Section 1582 contained three sentences concerning this matter. In my statement, I suggested that only the first sentence was needed to enable the Customs Court to exercise the same powers both in law and equity of, or as conferred by statute upon, a district court of the United States. I also stated that all other provisions in the original bill pertaining to the powers of the Customs Court could serve no purpose other than to limit the grant of plenary powers contained in that first sentence.

The revised Section 1582 eliminates from the original provisions the third sentence which would have withheld from the Customs Court the power to convene a jury. We welcome the elimination of that limitation and are pleased that it does not appear in the revised bill.

In its revised form, Section 1582 combines into one sentence the first and second sentences of the original Section 1582. To repeat my previous statement, only the first sentence is needed to achieve the intended purpose. If the Customs Court is given all the powers of a district court, it would, of course, also possess those powers specifically mentioned in the second sentence of the original Section 1582. If Congress were to enact the first sentence as originally proposed, the Customs Court would have all the powers of a district court, including, but not limited to, "preserving order, compelling the attendance of witnesses, and the production of evidence." I see no reason why these three particular powers must be enumerated in the statute. Accordingly, I believe it would be preferable if Congress enacted only the first sentence of the original Section 1582, and I recommend this suggestion for your favorable consideration,

As I mentioned in my statement, one of the major existing limitations of the powers of the Customs Court pertains to its inability to provide effective access to adequate remedies, under appropriate circumstances, without requiring the exhaustion of all administrative remedies. At present, the Customs Court, unlike a district court, has no power to compel agency actions, which are a prerequisite to the court's jurisdiction, even when they may be unlawfully delayed or unreasonably withheld.

This problem should be eliminated if Congress authorizes the Customs Court, by enacting the first sentence of Section 1582, to exercise all the plenary powers of a district court. However, if your Subcommittee believes that these powers alone would not be adequate to permit the Customs Court to provide timely and adequate relief before all administrative prerequisites are completed, then additional statutory provision should be made.

On this subject, I submitted for your consideration a proposal taken from a bill (S. 1430) which you introduced earlier in this session of Congress. I suggested that this earlier proposal was preferable to the comparable provision contained in the original draft of the present bill. In the revised bill, paragraph (d) of Section 2636 contains a significant revision of the original proposal, and I am now pleased to recommend it for your favorable consideration.

In my statement, I called to your attention the fact that the original bill contained no provisions to correct other existing disparities between the Customs Court and the district courts. One of these disparities concerns the effect on appeal of factual determinations made by the Customs Court. In this connection, I was pleased to see that the revised bill, at page 23a, includes as paragraph (b) to Section 2614 a proposal apparently patterned after Rule 52 of the Federal Rules of Civil Procedure. This proposal should give factual determinations made by the Customs Court the same effect on appeal as factual determinations made by a district court. We welcome this revision and recommend it for your favorable consideration.

To summarize the observations directed to those provisions of the bill which pertain to the status and powers of the Customs Court:

1. The provisions of Titles I and II to the revised bill, which are consistent with the same provisions in the original bill, are supported by the Judges of the United States Customs Court and we urge your speedy and favorable consideration.

2. The first sentence of Section 1582 of the original bill is the single most important provision having to do with the ability of the Customs Court to provide effective access to adequate judicial remedies within its subject matter jurisdiction. Personally and on behalf of all the Judges of the Customs Court I suggest that this provision, together with the provisions contained in Title II, of the bill, if enacted, will represent, in the area of international trade, a most significant legislative accomplishment of historical dimensions in the improvement of the judicial machinery of the United States. Consequently, consistent with my comments, I urge your favorable consideration of these proposals.

3. Section 2036(d) in the revised bill satisfies the reservations concerning this section in the original bill, and I am now able to join in recommending it for your favorable consideration.

4. Section 2644 (b), as I mentioned previously, supplies a proposal, not contained in the original bill, concerning the effect on appeal of findings of fact made by the Customs Court. This proposal also is recommended for your favorable consideration.

Separate and apart from those provisions which deal with the status and powers of the Customs Court are the remaining provisions of the bill which generally can be grouped into a category designed to expand the opportunities for, and to create a comprehensive system of, judicial review of all agency actions directly affecting importations. As I suggested in my statement, these provisions present a fundamental and overriding question for Congressional determination : Should those agencies which deal with importations he made subject to the same policy of judicial review as Congress has provided for other administrative agencies?

The original bill, as I suggested, would have established this same Congressional policy of judicial review for all agencies except the three agencies most directly involved with importations.

It seems to me that the revised bill indicates a forward movement from the original bill in the direction of establishing the statutory principle that persons adversely affected or aggrieved by the actions of these three agencies should be provided with the same access to judicial review and judicial remedies as Congress has made available for persons aggrieved by actions of other agencies. Whether this movement, which is commendable, has progressed far enough is, of course, a question which Congress ultimately must determine. I know that you have received from other interested persons constructive suggestions and criticisms which bear upon this issue. I assume that you also will receive suggestions and criticisms from the same interested persons on the revised bill.

We can expect, particuarly in the view of your expressed intent to move forward on this legislation, that Congress may very well enact provisions having to do with such specific issues as standing, time to commence an action, scope and standard of review, and similar issues. These new statutory provisions may reasonably be expected to come before the court for interpretation and application in specific cases and controversies. For this reason, I hestitate to submit specific comments and suggestions on particular statutory terms and provisions. I am confident that the analyses you will receive from interested parties will help you determine whether the revised bill will provide for persons involved with importations the same due process and equal protection of those laws affecting judicial review of agency actions which Congress has provided for persons dealing with other administrative agencies.

Of course, if your Subcommittee wishes to submit specific questions, I will attempt to answer them. I am ready and willing, on behalf of the United States Customs Court, to offer whatever assistance may be required to achieve the laudatory purposes of this proposed legislation.

I share your interest, Mr. Chairman, in seeing a completed comprehensive bill passed, and I applaud the efforts of all those who are working toward that goal. However, if that is not possible, I would again ask, on behalf of the United States Customs Court, that you consider enacting those provisions having to do with the status and powers of the Customs Court. As shown by the comments you received on these provisions in the original bill, they are not controversial and there is no reason for delaying their enactment.

I would like to take this opportunity once again to compliment the Department of Justice for its initiative in submitting the original bill, and its more recent efforts as reflected in the revised bill. The efforts to assist your Subcommittee are most encouraging. I also would like to thank you, Mr. Chairman, for your interest, and Mr. Michael Altier for his diligent efforts and cooperation. Sincerely,

EDWARD D. RE, Chief Judge.

BARNES, RICHARDSON & COLBURN,

-175 PARK AVENUE SOUTII,

New York, N.Y., July 14, 1978. Re S. 2857—Customs Courts Act of 1978 Mr. MICHAEL J. ALTIER, Deputy Counsel, Subcommittee on Improvements in Judicial Machinery, 6306

Dirksen Senate Office Bldg., Washington, D.C. DEAR MR. ALTIER : This is in response to Senator DeConcini's letter of July 6, 1978, in which he asked, in lieu of "follow-up” questions regarding the bill as originally introduced, that I analyze the revised bill dated June 30, 1978, and enclosed with his letter.

I am pleased to attempt to comply with the Senator's request. However, I feel somewhat handicapped by the short reply time and in that this revision was apparently put together by the Administration without any consultation with members of the Bar, the importers, or other members of the public. Without having had the benefit of any communication from or with the Administration and any analysis or explanation by them of why they have made certain changes or insisted on certain language, I also feel somewhat disadvantaged.

I have drafted my responses as if I were still testifying before the Committee. Therefore, these answers cannot be considered to have had the prior endorsement of the Association of the Customs Bar in the same manner in which the analysis and oral statement did. However, I appeared before the Committee as a representative of the Association and I believe that my responses can be treated in the same manner, based as they are on the Association's prior position on the bill as introduced, and on conversations I have subsequently had with members of the Association and of the Bar generally. For reaons of brevity, I will limit my responses to those revised sections of the bill to which I would either like to note objections or have particular comments with regard to the changes made. I was pleased to note from a first reading of the revised bill that a number of the Association' recommended changes have been adopted, but trouhlesome areas do remain.

$ 1581.–The revised first paragraph of this section substantially adopts the Association's recommendation. We were also pleased to see that the third and fourth paragraphs of the proposed section in the original version had been deleted. However, we continue to see no reason for the second paragraph which has been retained from the original version. As stated at page 2 of the Association's written analysis submitted on June 15, 1978 (hereinafter referred to simply as Analysis), the concern expressed in this paragraph is already covered by the phrase "except as otherwise provided by law” in the second line of the first paragraph of $ 1581. We still see no reason for including this second paragraph and believe that as it can only raise questions as to the meaning of the first paragraph in § 1581, it should not remain in the bill, particularly as the Government has given no reason for proposing it.

$ 1583.—The only changes made in the revised 1583 are the deletion of former paragraph (b) (which unfortunately had a laudable result but required amendments to Title 19 of the United States Code to effect), the elimination from the revised subparagraph (d) (v) of the inclusion of $ 232 of the Trade Expansion Act of 1962 as a prohibition (for the obvious reason stated at page 7 of the Analysis), and in the new paragraph (e) to have enlarged upon the concept contained in the former subparagraph (f) (i). These changes are not such as to alter the comments or recommendations contained at pages 4 through 10 of the Analysis recommending that the proposed § 1583 be stricken from the legislation. It is noted that the revised paragraph (f) has deleted the term “ruling" from the prohibition of judicial review. I am not sure that that is not a cosmetic deletion and we would be concerned if this provision were enacted and the courts would be denied jurisdiction to review a ruling with regard to marking, restricted merchandise, or entry requirements unless there were an importation of goods. Rulings of that type are not of the same essence as those relating to classification, valuation, rate of duty, etc. and are of the kind which oftentimes need to be tested, if they are going to be tested at all, upon their issuance. If a marking ruling is not able to be tested for invalidity upon its issuance, an importer is left either with the choice of not importing or of complying with the requirement, so that any judicial review would not be able to give him appropriate relief. This is similarly true with regard to a ruling on entry requirements which could also be of a nature that would place an importer in such an untenable risk or ex. traordinary expense that the ruling as a practical matter could not be judicially reviewed. These three types of rulings are the kind that should be reached in an injunctive proceeding if the requirements for such relief can be met by the plaintiff.

$ 1585.-Section 1585 has been reworded and we have no objection to the first five lines. However, the last phrase presents a problem in the attempt to divest the Customs Court of jurisdiction of a case challenging the exclusion of merchandise by Customs at the request of another Federal agency. We see no reason for this insertion and oppose it since the Customs Court would appear to be the proper body before whom to challenge action taken by Customs authorities even if it be at the request of another agency. The Customs courts have dealt with such matters in the past and we do not understand the effort to deprive the Customs Court of that jurisdiction for the future.

$ 1586.—For the reasons advanced at pages 11 and 12 of the Analysis, we adhere to the recommendation contained at page 12 for deletions in paragraphs (a) and (b) of $ 1586.

$ 1591.-We adhere to the objections noted at pages 12 and 13 of the Analysis to subparagraph (d) (2) and the objections noted at pages 13 and 14 of the Analysis to the original language in paragraph (f) retained in the revision with an addition "and unless the parties otherwise agree” which we do not think overcomes the objections and the reasons therefor noted in the Analysis. We have noted the acceptance of our change to paragraph (e). On the whole, we adhere to our recommendations for changes to g 1591 set forth at page 14 of the Analysis.

$ 1592.–For the reasons set forth at pages 14 to 18 of the Analysis, we continue our opposition to any provision for set-offs, demands, and counterclaims, even with the change included in the revised provision. It is noted that the revision refers not to an import transaction before the court but “the same import transactions before the court." This really would have a very chilling effect on utilization of judicial review and is contrary to the history and philosophical and political underpinnings to Customs litigation.

§ 2631.—While this section appears to have been improved by the deletion of the last sentence in subsection (a) and the addition of the second paragraph to subsection (b), we would still recommend the deletion of this section at this time. We believe that the introduction of suits filed by persons not a party to the administrative process or permitting intervention in the Customs Court are matters which require more study than they have heretofore received. In the absence of dialogue which we believe necessary to consideration of such a provision and in view of the general concern of the Bar and the importers, brokers and others with the introduction of these concepts, we believe that they had best be left for another time. See our comments and recommendation at pages 18 through 20 of the Analysis.

$ 2632.—We are pleased to see the adoption of our language in subparagraph (a), and agree with the liberalization of the provision in subparagraph (b).

$ 2634.-We note that while the revised bill includes the words “as part of the official record of the civil action” which we had proposed to come before the colon, the word “complaint” was retained in place of the word "summons” which we had recommended. We do not know if this is an oversight in view of the acceptance of the change we had recommended in $ 2632 (a), permitting the institution of actions by the filing of a summons or of a complaint. If the retention of the word "complaint” was intentional, we object. It is essential that the papers required to be forwarded by the section reach the court at the earliest time practicable. Papers making up the official record of the civil action are often required prior to the complaint stage for consideration of motions to suspend, jurisdictional motions, preparation of the complaint, and for trial preparation. They are also necessary to decisions whether to stipulate or abandon. Both of the prior dispositions of the case can occur without the filing of a complaint. Further, as pointed out at my oral testimony, it is essential that those records be preserved and it is more likely that they are going to be

preserved and retained if they are at the Customs Court than if they are dispersed among the numerous Customs offices throughout the country. It is more likely that these official documents will be available and forwarded to the Customs Court if they are forwarded concurrently with the summonsing of the case into court. Any delay in time will only increase the possibility that the papers, some of which may be in separate offices in a particular port, will be lost or destroyed.

We welcome the changes made in subparagraphs (b), (c), and (d).

8 2635.—I would suggest that the words "a summons (or if required by the rules of the court, a complaint) is filed" be replaced by the word "commenced" so that the phrase will read "shall be barred unless commenced in accordance with the rules of the Customs Court,". This would appear not only to be less awkward drafting but would conform that paragraph with the other similar provisions in paragraphs (b), (c), and (d). We were pleased to see the changes made in subparagraph (a) (1), (2), and (3).

We renew our recommendations for deletion of the words “of 1583 (a)” from paragraph (c) and for the deletion of paragraph (d). We call your attention again to the concern expressed at the top of page 31 of the Analysis with the use of the word "announcement” in paragraph (d).

§ 2636.— We agree with the improvement made in paragraph (a).

§ 2640.–For all of the reasons set forth at pages 40 through 43 of the Analysis, we adhere to the recommendation contained at page 44 of the Analysis as a substitute for the revised § 2610.

§ 26-11.-We agree with paragraph (a) as revised.

§ 2643.-We do not know the reason for withdrawing from the liberal language contained in paragraph (a) in the original bill. We further don't understand why § 1590 would be included in the substituted paragraph (a). In principle the same questions as involved in cases commenced pursuant to $ 1684 would be involved. Of course, the real mischief of the revised paragraph (a) is that it is limiting the occasions in which the Customs Court may issue money judgments, perhaps not in the minds of the drafters, even though such judgments might be appropriate in other instances. We would urge the retention of the original paragraph (a).

For the reasons set forth at pages 45 and 46 of the Analysis, we renew our objection to the proposed paragraph (b), which is largely that included in the original bill, and recommend that changes proposed at the bottom of page 46 and the top of page 47 of the Analysis.

$ 2644.--This section has been revised to include a recommendation made by the Customs Court. For the reasons stated at page 7 of the oral statement made on behalf of the Association of the Customs Bar, we would oppose enactment of paragraph (b) as proposed unless the words “or without sufficient basis in the record to support such findings" were inserted after the word "erroneous" in the second line of the first paragraph in (b). I do not understand the second paragraph in (b). It seems to me that the first sentence is covered by the retrial or rehearing motion made pursuant to present 28 U.S.C. 2639, recodified in the proposed revision to § 2645. If there is a demonstrable need for this additional language, then it is suggested the time period be extended to 30 days, the period comparable to that permitted for the filing of a motion for retrial or rehearing. The longer time period is deemed desirable in view of the national jurisdiction of the court and the international business commitments of most of the parties appearing before the court which lengthens the time for communication between plaintiffs and counsel. The second sentence in (b) seems misplaced and appears to belong in $ 2601 of the bill. We would note that it appears to conflict with the language contained in the first paragraph of (b) as proposed in the revision, although it certainly comports with the language which we have suggested be inserted. We would have no objection to this sentence being included in § 2601, but feel it has no place in the proposed revision of $ 2644.

$ 1546.-We note that the sentence which we had recommended be deleted from paragraph (d) was retained with the addition of the words “except as otherwise provided by law.” While this would appear to have the effect of retaining jurisdiction in the CCPA of that vested in it by 28 U.S.C.A. 1544 regarding certain findings of the Secretary of Commerce, this addition is really a throwback to other provisions of the original bill which have been deleted in the revised version. We think the problem is more cleanly solved by deletion of the sentence. We approve of the clarification achieved by the new paragraph (e) and the limitation thereof to paragraphs (c) and (d).

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