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ation, and we note with satisfaction that many of the recommendations of that Association have been incorporated in the modified edition of S. 2857 as revised during the week of July 10, 1978 by Senator Dennis DeConcini. The proposed Revised Bill is a highly desirable and laudable one. Our following comments are directed toward that revised edition of S. 2857 as we find that a few problem areas still remain.

1. Vesting Exclusive Jurisdiction in the U.S. Customs Court in Matters “Directly Affecting Imports"-Section 1581, etc.

We find that the words "directly affecting imports" are ambiguous and most confusing; they cover imported articles after they enter into the commerce of this country and are in the hands of third parties, including ultimate consumers. These words should be limited only to imports before they enter into the commerce of the United States. If a definition of these words is not contained in the Bill, then it is rather essential that they be explained in explanatory notes.

There are also other matters that directly affect imports which should not be vested exclusively in the Customs Court, particularly when the expertise of that court is neither necessary, nor desirable, as hereinafter explained.

2. Final Agency Action-Section 1583 (ƒ)

Importers should be allowed, when extraordinary circumstances exist, to appeal immediately to the Customs Court from final agency action ("advice") relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, and the like issued by the Secretary of the Treasury or his delegate to the public or to the Customs Service without being required to wait many months until there will have been a liquidation of an import entry. The Customs Court should be given the authority to determine whether or not the extraordinary circumstances are such as to warrant immediate court review. See the preliminary injunctive relief procedures in the event of extraordinary circumstances as set forth in Section 2636 (d).

It is here appropriate to set forth our proposal that the revised Bill be amended to permit the filing of a protest and a review thereof in the Customs Court as soon as the Treasury Department denies a drawback rate. There is no need or benefit to be gained by delaying protest action for many months until liquidation has occurred on a drawback entry. Note Section 1587.

3. Exclusion of Goods at Request of Another Federal Agency-Section 1585 We recognize the fact that there will be inconsistent rulings if one line of decisions is adopted by the Customs Court in connection with the redelivery of imports pursuant to the terms of an entry bond or the exclusion of imports from entry or delivery, and another line of decisions is followed by the District Courts for a competitive domestic product. We urge, however, that the Customs Court be given the authority to handle such matters which relate to imports because the conditions and problems surrounding them are unique, and the Customs Court is better equipped to deal with these unusual factors. This authorization should be carefully conditioned by amendments to Section 1585 to prevent unnecessary conflicting and inconsistent legal interpretations by requiring the Customs Court to conform its rulings with what might otherwise be inconsistent positions taken by the district courts.

4. Suits Transferred from a District Court-Section 1591

Section 1591 is poorly phrased if it is intended to permit importers to bring initial action in the Customs Court to recover a civil penalty or forfeiture, to recover upon a bond, or to recover customs duties. It is now worded in such a way as to permit the Customs Court to do these things only if the civil action is first initiated in a district court. Similar faults will be found in Section 2646 of Title IV and Sections 703 and 705 of Title VII.

Section 1591 (d) (2) is poorly phrased, and is objectionable. Where the government sues an importer in a district court to recover a penalty, or to enforce a forfeiture, or to recover customs duties, the importer should have the unconditional right to a transfer to the Customs Court, where the expertise of that court will be available to pass upon questions relating to classification or valuation of imports, the duty rate and other matters within the sole responsibility of the Department of the Treasury.

Section 1591 (f) should also be amended to permit a hearing by the Customs Court either in the district where the action was first instituted, or at the headquarters of that Court in New York, at the option of the plaintiff.

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ation, and we note with satisfaction that many of the recommendations of that Association have been incorporated in the modified edition of S. 2857 as revised during the week of July 10, 1978 by Senator Dennis DeConcini. The proposed Revised Bill is a highly desirable and laudable one. Our following comments are directed toward that revised edition of S. 2857 as we find that a few problem areas still remain.

1. Vesting Exclusive Jurisdiction in the U.S. Customs Court in Matters "Directly Affecting Imports"-Section 1581, etc.

We find that the words "directly affecting imports" are ambiguous and most confusing; they cover imported articles after they enter into the commerce of this country and are in the hands of third parties, including ultimate consumers. These words should be limited only to imports before they enter into the commerce of the United States. If a definition of these words is not contained in the Bill, then it is rather essential that they be explained in explanatory notes.

There are also other matters that directly affect imports which should not be vested exclusively in the Customs Court, particularly when the expertise of that court is neither necessary, nor desirable, as hereinafter explained.

2. Final Agency Action—Section 1583 (f)

Importers should be allowed, when extraordinary circumstances exist, to appeal immediately to the Customs Court from final agency action ("advice") relating to classification, valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, and the like issued by the Secretary of the Treasury or his delegate to the public or to the Customs Service without being required to wait many months until there will have been a liquidation of an import entry. The Customs Court should be given the authority to determine whether or not the extraordinary circumstances are such as to warrant immediate court review. See the preliminary injunctive relief procedures in the event of extraordinary circumstances as set forth in Section 2636(d).

It is here appropriate to set forth our proposal that the revised Bill be amended to permit the filing of a protest and a review thereof in the Customs Court as soon as the Treasury Department denies a drawback rate. There is no need or benefit to be gained by delaying protest action for many months until liquidation has occurred on a drawback entry. Note Section 1587.

3. Exclusion of Goods at Request of Another Federal Agency-- Section 1585
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5. Set-Offs, Demands and Counterclaims-Section 1592

Section 1592 as revised is still objectionable. It will subject an importer who brings protest action in the Customs Court to the possibility of paying duties at a higher duty rate, or on the basis of a higher dutiable value on all pending protested entries where sales prices had been finalized on the basis of the cost of the duties as liquidated by Customs. This provision should be deleted since the government already has adequate judicial means to enforce its demands and other set-off's claims. No person who wants relief from government imposed duties and dutiable values believed to be unfair and unreasonable, should be subject to even greater import barriers as the outcome and reward for efforts to obtain justice. The authorizations permitted by the proposed provision would also preclude a trial by jury wherever the set-off, demand, or counterclaim on the same import transaction would otherwise be under the jurisdiction of the district courts. 6. Any Person Adversely Affected or Aggrieved-Section 2631 and Title VI, Sections 601 (d) (516 (c) (4)) and 601 (g) (516 (g) (i) (1))

Every American concern making or dealing in domestic articles is automatically "adversely affected or aggrieved" by competitive imported products; so is an importer or foreign exporter of competitor products. Such people may not be injured, but, nevertheless, the language of the statute permits them (and even sceems to encourage them) to harrass importers with frequent and spurious litigation. The adversely affected or aggrieved persons should be limited only to those who can establish that they have been materially injured. To ensure that unjustified harrassment is not the reason for litigation there should be a provision which would permit a harrassed importer to recover damages if the claims of the "adversely affected or aggrieved" person were not justified.

In addition, such persons should be required to initiate their action at the administrative level before instituting any action in the Customs Court, as importers must do.

We also object to the provision in Section 2631(b) which would permit any adversely affected or aggrieved" person to intervene in all civil actions, including protest claims under 19 U.S.C. 1514. To broaden the present law would place all importing interests in peopardy by providing constant threats. Here again it can be anticipated that domestic interests will harrass importers.

7. Entry Documents to Court Prior to Filing Complaints-Section 2634(a)

It is rather essential that all pertinent entry documentation be forwarded to the Customs Court when a summons is filed, and prior to the filing of a Complaint. Most of the cases in the Customs Court are decided on the basis of stipulations without the burdensome and expensive necessity of filing complaints and answers. The entry papers are needed at court not only for cases that are utlimately submitted by stipulation, but also for the very many cases where efforts are not successful in obtaining the consent of the government to submission stipulations, and they are therefore abandoned. Complaints and answers are not required for most of such cases. It will also be found that the Customs Service has a very poor record for keeping protested entries; many of such entries are lost, misplaced or destroyed.

8. Preliminary Injunctive Relief-Section 2636

We heartily endorse a preliminary injunctive relief procedure. It is urgently needed.

Section 2636(a) provides that "all liquidated duties or exactions shall have been paid at the time the (civil) action is filed". This provision carries out present practices. However, great hardship is occassionally caused by such a requirement. The provision should be amended to permit the filing of protests, etc. without the payment of duties or exactions whenever the court determines that such a payment would cause the protestant to "suffer substantial irreparable injury" (See Section 2636 (d)).

Importers and brokers at ports other than New York will be injured if they will be able to obtain injunctive relief from a substantial irreparable injury only in the Customs Court. Haste is here an important factor, and a bearing at the local port of entry is of utmost importance. Delays in arranging for a hearing by the Customs Court at a port away from New York will occur. The injured party should not be bound to undergo the expense of traveling from a distant city to New York with his attorney and witnesses. Such an injured party should have the option of bringing his action either in the Customs Court, or in the local

district court. Appeals from either court should go only to the U.S. Court of Customs & Patent Appeals.

Customs officials can be dilatory. Requests for rulings which are of importance to the importing community are frequently unduly delayed. While Section 2636 (d) provides for petitions for preliminary injunctive relief in extraordinary circumstances, and Section 2643 provides for the issuance of writs of mandamus, there should also be a specific provision which would require the Customs Service to report to the court, upon complaint of an undue delay by an importer, as to why the decision is being delayed, and if the court finds that the complaint is justified, to order action within a reasonable time.

9. Burden of proof-Section 2639

There should be no presumption of correctness attaching to all decisions by Customs as set forth in Section 2639 (i). Even the present law is repugnant and contrary to the democratic doctrine that there is a presumpion of innocence on the part of citizens. If there is to be any change, then there should be a burden in the first instance on the government to prove to the Court that the government is right. In no event should there be a presumption of correctness relating to such things as (a) exclusion of merchandise; (b) withholding of merchandise; (c) forefeiture; (d) denial of immediate delivery privileges, etc.

10. Scope and Standard of Review-Section 2640

The wording used in Section 2640 (a) is vague and confusing when it states that the issue presented "is of a type traditionally viewed as suitable for determination under any other standard of review". We have difficulty in understanding what is meant by these words, and it may be assumed that others will be similarly confused.

11. Ten Days to Amend Judgment-Section 2644 (b)

The fiindings of fact should be allowed to be set aside only when they are contrary to the weight of evidence, which is the standard traditionally followed by the U.S. Court of Customs and Patent Appeals. We object to the words "unless clearly erroneous".

It frequently takes many days for mail posted by the U.S. Customs Court at New York to be received at a distant port. Even in New York City mail deliveries are frequently delayed. Importers and brokers on the West Coast will be discriminated against and injured if they are not given more than 10 days to move to amend a judgment of the court. The present procedure for moving for a rehearing in the Customs Court is 30 days. This same time requirement should apply to Section 2644(b).

12. Denying, Revoking or Suspending Licenses of Customs Brokers-Section 1546 (c) (Section 502, Title V)

We support the position that the U.S. Court of Customs & Patent Appeals be given jurisdiction, but not the exclusive jurisdiction to review decisions by the Secretary of the Treasury to deny or revoke a customs broker's license, or any action challenging an order to revoke or suspend such license. The broker should have an option.

Few customs brokers are located in the vicinity of Washington, D.C. Brokers in the Western States will be injured and discriminated against if they will not be permitted to have their complaints heard before a local appellate court as they are permitted to do under the present low.

13. Notice Only in Federal Register-Title VI-Section 601 (Section 516)

All active customs brokers (and most active importers) subscribe to the weekly Customs Bulletins. It is and for many years has been the one government publication that is limited to official current customs developments concerning imports. Few of the smaller brokers subscribe to the daily Federal Register because articles of interest to such brokers can rarely be found therein. Information about important developments concerning the action taken by the government on protests and petitions by domestic interests should not be removed from the Customs Bulletins where it has traditionally been published. This important information to the importing trade should not be published only in the Federal Register. (See lines 8, 13, 22-page 29; line 8-page 31; line 23-page 32; and line 11-page 34 of amended S. 2857). Either it should continue to be published only in the Customs Bulletins, or it should be published both in the Customs Bulletins and in the Federal Register.

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