Mr. JENKINS. Without objection the statement will be accepted into the record. (The balance of Mr. Prince's statement is as follows:) These statutory provisions relating to customs inspection services run counter to certain governmental policies as reflected in other statutory provisions. For many years it has been the general policy of the Government not to permit any part of the compensation of its officers or employees to be paid by any private party. In an appropriation act enacted March 3, 1917, it was provided: "No Government official or employee shall receive any salary in connection with his services as such an official or employee from any source other than the Government of the United States, except as may be contributed out of the treas-ury of any State, county, or municipality, and no person, association, or corporation shall make any contribution to, or in any way supplement the salary of, any Government official or employee for the services performed by him for the Government of the United States. Any person violating any of the terms of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $1,000 or imprisonment for not less than six months, or by both such fine and imprisonment as the court may determine.' For many years that provision was carried as section 66 of title 5 of the United States Code, Executive Departments and Government Officers and Employees. In the rather general revision of the code which was made by the act of June 25, 1948 (62 Stat. 862), this provision was transferred to new title 18, Crimes and Criminal Procedure, where it appears, modified in language but not in substance. as section 1914. That section reads: "Whoever, being a Government official or employee, receives any salary in connection with his services as such an official or employee from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality; or "Whoever, whether a person, association, or corporation, makes any contribution to, or in any way supplements the salary of, any Government official or employee for the services performed by him for the Government of the United States "Shall be fined not more than $1,000 or imprisoned not more than six months, or both." In this instance the overtime compensation is not paid directly to the customs officers by the carriers but is paid to the Collector of Customs who in turn is required to pay the same to the customs officers entitled thereto. Since the payment of this money by the carriers is required by law and the customs officers are entitled to receive it by specific statutory provision, no doubt neither could be held in violation of the criminal provision quoted above. However, without such such specific provisions it seems highly probable that the receipt of such money by a customs officer would be considered a violation of the criminal provision because the true source of such increments to his salary is clearly not the Government and it is certainly "in connection with his services as such an official." Likewise, it is pretty clear that the carriers are supplementing or making a contribution to the salary of the customs officer "for the services performed by him for the Government of the United States." Any argument that the customs overtime provisions do not run counter to the policy of this criminal provision because the overtime payments are incurred for the convenience of the carriers would clearly seem to be unsound. It could perhaps be argued that the time at which the services are performed by the customs officer is to some extent for the convenience of the carriers, but the "services performed by him" are for the sake of carrying out the customs laws of the United States and are thus clearly "for the Government of the United States." Furthermore, it seems to us that it is clearly a misconception to think of customs inspection service performed at night or on Sundays or holidays in connection with traffic coming into this country by rail, air or water as being solely for the benefit and convenience of the carriers. The carriers as a practical matter are obliged to schedule their operations so as to meet the convenience of the public with respect to times of departure at points of origin and times of arrival at points of destination. In most instances the international boundary is merely an intermediate point and it would not be possible to schedule all operations to arrive at the border during regular daytime business hours or to suspend service on Sundays and holidays and at the same time satisfy the necessities and convenience of the traveling and shipping public. Also, it is unthinkable that the public would tol erate the holding up of carriers at border points overnight or over Sundays and holidays so that customs inspections could be performed only in the daytime or on week days. I believe it to be the proper obligation of the Government to adopt such measures as are necessary to enable it to enforce customs laws with the least possible inconvenience to the public. I should say also that the Government's obligation to meet the necessities and convenience of the traveling and shipping public is equally as great as that of the carriers and therefore, in essence, arrangements to perform customs inspection service at night and on Sundays and holidays is in the general public interest rather than in the particular interest of the carriers. Another governmental policy to which the customs overtime provisions run counter is that contained in the Transportation Act of 1940. That act contains a formal declaration of national transportation policy, which declares it to be the intent of the Congress that the Government shall accord fair and impartial treatment to all modes of transportation, to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the postal service, and of the national defense. Thus it seems clear that the statutory provisions relating to customs inspection services are in direct conflict with the spirit of both of the general policies referred to above. In providing, as a condition to the furnishing of certain customs inspection services, that certain private interests must pay the compensation of the customs officers and employees performing such services, the provisions run counter to the first policy mentioned. In imposing such requirement upon the railroads, the airlines and the boat lines, while exempting motor carriers and other forms of highly competitive transportation, they run counter to the policy declared in the Transportation Act of 1940. On behalf of the railroads, I urge the inclusion in H. R. 5106 of an appropriate amendment to existing law which will remove the present unjust discrimination against them in this matter. As to the form which such an amendment might take, I call attention to H. R. 3550, introduced in the 1st session of the 81st Congress by Mr. Dingell. The railroads would be entirely satisfied with an amendment similar to the one proposed in that bill. As a matter of fact, their problem would be substantially met by a somewhat narrower exemption than the one for which that bill provides. That bill would retain the present provisions of the law which exempt highway vehicles, bridges, tunnels or ferries from the requirement to pay for overtime customs inspection, but would enlarge the exemption to include "the master, owner, operator, agent, or consignee of an aircraft, railroad train, or vessel engaged in overseas or foreign service (i) when operating pursuant to regular schedules and without regard to the actual time of arrival or departure, or (ii) when operating without schedule if the collector is given reasonable notice as to the expected time of arrival or departure". The vast majority of the overtime paid by the railroads is in connection with regularly scheduled operations so that their problem would be substantially solved if the amendment provided only the first of the two specified exemptions. They understand, however, that both exemptions are needed to meet the needs of the airlines and boat lines and therefore advocate the more complete exemption in the interest of greater substantiative equality of treatment of competing carriers. Mr. PRINCE. We point to several governmental policies that we think are being evaded and avoided by the present provision. The policy of having the railroads, airlines, and waterlines pay the overtime compensation, while the motor carriers are exempt from this requirement, runs counter to the policy of the Transportation Act of 1940 which provides for equal, fair, nondiscriminatory treatment of all forms of transportation. That is one policy that the present provisions run counter to. The second one also adverted to by Mr. Tipton is against the payment. of Government officials by private individuals or companies. This policy has been long established, and this runs directly to it. Furthermore, we think that the collection of customs duties is an obligation of the Government. It is just as much an obligation of the Government to consider the convenience and necessities of the traveling public and shipping public as it is of the carriers themselves. We cannot arrange to bring people in only between 8 a. m. and 5 p. m., on a weekday and say, "No, we cannot travel on Sundays or holidays, because there are no customs inspectors." Naturally, we would prefer to pay the overtime, if that is the only way you can do that. But I think the Government has an obligation equally as great as that of the carriers to facilitate customs inspection. They should do it with the least inconvenience to the traveling public. I think it is just as much for the general public good as it might be said to be for the particular interests of the carriers, to have the Government provide adequate service in the matter of customs inspection, and it is appropriate that the Government pay for this governmental function. That, in substance, is what we have here. We respectfully recommend that there be added to this bill an amendment which would provide for the Government taking over that overtime compensation. Mr. JENKINS. Mr. Prince, may I ask you a question? Do you know what the position of the executive department was on Mr. Dingell's bill, H. R. 5505 in the 81st Congress? Mr. PRINCE. I am sorry, I was not handling this matter at that time. I do know that the customs officers and their organizations have opposed this. They have opposed it bacause, I feel certain, they are aware of the fact that if the Government were paying the overtime, they would not get overtime at the rates they are getting now. Mr. JENKINS. Am I right that the Government was at one time working on an overall bill to settle this whole question of customs inspection services? Mr. PRINCE. They were working on a bill that had to do with the overtime rates by Government employees generally. Mr. JENKINS. Do you know what happened to that? Mr. PRINCE. The bill was not passed. It was reported out of the Senate, as I recall. I think that was S. 354 of the 82d Congress, if I am not mistaken. My recollection is that that bill was reported out favorably by the Senate, but that was the end of it as far as I can recall. Mr. JENKINS. All right, sir. Thank you very much for your testimony. We will adjourn the hearing until tomorrow morning at 10 o'clock. (Whereupon, at 3:11 p. m., the hearing was recessed, to reconvene Thursday, May 28, 1953, at 10 a. m.) CUSTOMS SIMPLIFICATION THURSDAY, MAY 28, 1953 HOUSE OF REPRESENTATIVES, Washington, D. C. The committee met, pursuant to recess, at 10 a. m., in room 1102, House Office Building, Hon. Daniel A. Reed (chairman) presiding. The CHAIRMAN. The committee will come to order. We will continue the hearings on the customs simplification. The first witness will be Mr. J. B. Colburn, Esquire, on behalf of the Association of the Customs Bar, New York City. If you will give your name and the capacity in which you appear, we will be very glad to hear you. STATEMENT OF J. BRADLEY COLBURN, THE ASSOCIATION OF THE CUSTOMS BAR, NEW YORK, N. Y. Mr. COLBURN. My name is J. Bradley Colburn, 25 Broadway, New York. I appear before the committee this morning on behalf of the Association of the Customs Bar. This association is composed of lawyers specializing primarily in the practice of customs law before the United States Customs Court, the Court of Customs and Patent Appeals, the Treasury Department, and other departments of the Government concerned with customs and tariff matters. The Customs Bar is directly interested in and concerned with the proposed legislation. Copies of the bill have been made available to all of the members and the statement which I shall present has been approved by the board of directors of the association and represents their composite views and specialized experience. I would like to digress a moment, and say that it has been the effort of the bar in this connection to so far as possible strip their consideration of this measure from any partisan viewpoint. We tried to approach it without reference to the character of our respective clientele and to present a wholly objective statement to the committee. The bill H. R. 5106 is offered as a measure to simplify some of the procedures connected with importation of merchandise into the United States but in fact goes far beyond mere simplification as such. The bill is replete with repeal or modification of specific limitations established by the Congress to guide and control administrative actions. The bill substitutes therefor general language which vests wide discretion in administrative officers and thereby may hamstring judicial review and subjects most of the procedures connected with the importation of merchandise into the United States to regulations by the Secretary of the Treasury. We believe it is bad policy to transfer such wide, unfettered discretion to any administrative officer, and we oppose the bill in its present form unless it be amended 123 34882-53- -9 to make the intention of the Congress more definite and to provide clearly for adequate judicial review. Mr. JENKINS. Do you intend to outline in detail in the statement what you think the amendments should be? Mr. COLBURN. In connection with each criticism we make of the bill, Mr. Jenkins, we will offer the language of an amendment which we think could cure the objection. Mr. JENKINS. That is fine; thank you. Mr. COLBURN. The summary explanation of the bill issued by the committee contains statements indicating that proposed repeals and modifications of existing law are not intended to limit or do away, in any part, with judicial review. We suggest that importers and American manufacturers alike who have an interest in importation into the United States are entitled to a clear and affirmative statement of this intention by adoption of amendments to give definite expression thereto. Certainly no doubt should be permitted to exist on this point. In much of the bill we have no particular interest as a bar, and we therefore offer no comments or suggestions. We confine our comments to certain provisions which we think are the most important, namely, section 2 dealing with repeal of certain provisions. Section 3, dealing with effective dates of rates of duty. Section 5, dealing with transportation of lead-bearing and zincbearing ores. Section 7, dealing with American goods returned. Section 15, dealing with dutiable values of imported merchandise. Section 19, dealing with amendment of entries. Section 22, dealing with conversion of currency. Section 23, dealing with transfer of goods in bonded warehouse. These sections will be discussed separately. Section 2, repeal of obsolete accounting provisions: At the outset I would like to jump over in my statement and say first that some of these repeals were specifically included as a part of Reorganization Plan No. 3, which was rejected by the Senate in the last Congress. They are incorporated again in this measure. Some of the statutes would deal with internal accounting procedures, and on those the bar has no comment. Others of these sections, however, seem to vitally affect the basis upon which rests the exercise of judicial review of administrative action. Thus, Revised Statutes 2621, 2622, and 2623 (19 U. S. C. 33, 34, and 35) describe certain functions of collectors of customs. They require the receiving of entries at "each of the ports," the payment of duty there; the keeping of records there, and the delivery of the merchandise there. The proposed repeal is absolute and no substitute provisions are suggested. The result seems to be to substitute the unfettered discretion of the Secretary of the Treasury for the existing definite statutory provisions making mandatory on certain officers the keeping and disclosure of the basic information necessary to implement the right of judicial review. If the proposed repeal be adopted, the Secretary of the Treasury might cause such records to be kept in Washington or in certain headquarters ports or not at all, and unless the record is properly and conveniently located the right of judicial review is substantially denied. The customs courts have uniformly held that both the Government and the importer have the |