his recommendation of conclusions of law, a motion to dismiss, a motion for judgment on the pleadings (including any motion asserting defenses based upon lack of jurisdiction of the subject matter or the person or upon failure to state a claim upon which relief can be granted), or a motion for summary judgment, together with any objections or responses thereto filed by opposing parties and any reply brief filed by the moving party.

(2) Action by Commission.-With respect to any such motion so referred the Commissioner shall prepare and file with the Clerk his recommendation for conclusions of law, and shall simultaneously return to the Clerk the motion and all accompanying papers.

(3) Notice of Commissioner's recommendation.— Upon the filing of the Commissioner's recommendation, the Clerk shall mail a notice of the filing and 5 copies of the recommendation to each party, as provided by Rule 3.

(4) Review by the Court.-(i) If any party is dissatisfied with the recommendation of the Commissioner made pursuant to subparagraph (2) of this paragraph (e), he shall file with the Court, within 30 days after the filing of the Commissioner's recommendation, a request for review of such recommendation and (a) a statement that he relies on the papers previously filed in connection with the motion or (b) a further brief specifying with particularity the matters which he wishes the Court to consider in the review and discussing the issues involved. When a further brief is filed by a dissatisfied party any adverse party may file an answering brief within 30 days. When such further or answering briefs are filed, they shall conform to Rule 7(d) with regard to duplication and number of copies.

(ii) If a timely request for review of the Commissioner's recommendation is filed pursuant to subdivision (i) of this subparagraph (4), the case shall be assigned to the calendar for argument before the Court.

(iii) In the absence of a timely request for review, the Court will adopt the Commissioner's recommendation as the basis of its action on the motion.

(f) Consideration of motions by Commissioner.— In connection with any motion referred to him the Commissioner may (1) require the moving party to supply any additional information to explain the nature and purpose of the motion, (2) schedule the motion for conference or hear oral argument in Washington or elsewhere, or (3) take such other action as in his judgment is requisite to a determination by him.

(g) Motions not referred.-Motions which will not be referred to a Commissioner include (1) procedural motions filed (i) after a case has been returned to the Court by the Commissioner or (ii) after the reference to the Commissioner has been suspended by the filing of a dispositive motion (subject to the lifting of such suspension by order pursuant to paragraph (e)); and (2) motions authorized by Rules 53 and 54.

(h) Evidence.-Upon the completion of pretrial procedures, the Commissioner shall proceed with the taking of such evidence as is necessary to close proof. Whenever practicable, such proof shall be taken in

one continuous session, at one place, or a series of consecutive sessions with a view to avoiding unnecessary intervening delays.

The Commissioner may require the production before him of evidence upon all pertinent matters, including the production of all books, papers, vouchers, writings, documents, plans, drawings, materials, or apparatus of any nature applicable thereto. He shall put witnesses under oath or affirmation and rule upon the admissibility of evidence, and he may call and examine witnesses, including the parties to the action.

(i) Substitution of Commissioners.—When the Commissioner to whom a case has been referred is unavailable, the Chief Commissioner or another Commissioner designated by him may: (1) rule upon motions, (2) conduct pretrial proceedings, or (3) hear evidence: Provided, That when oral testimony has been heard by one Commissioner after reference of the case to him, the case shall not thereafter, except for good cause, be referred to another Commissioner.

(j) Disqualification.—A Commissioner may at any time withdraw from a case if he deems himself disqualified. Upon the filing in good faith by any party of a timely and sufficient affidavit of personal bias or disqualification of a Commissioner, the Court shall determine the matter.

Rule 47. Argument before the Court.

(b) On motion.-When the time has expired for filing objections or responses to a motion to dismiss, to a motion for judgment on the pleadings, or to a motion for summary judgment, a case shall be assigned to the calendar unless otherwise disposed of, but such assignment shall not be made later than the Thursday preceding the opening of the regular session of the Court, except when otherwise ordered by the Court.

Rule 78. Disbarment.

(a) Where it is shown to the Court that any member of its bar has been disbarred from practice in the Supreme Court of the United States or in any other Federal court, or in any court of record of any State or Territory, or has been guilty of conduct unbecoming a member of the bar of this Court, he shall be forthwith suspended from practice before this Court; and unless, upon notice mailed to him at the address shown in the Clerk's records and to the clerk of any of the courts mentioned in which he shall have been disbarred, he shows good cause to the contrary within 30 days, he shall be disbarred.

(b) No one serving as a Judge or Commissioner or as the Clerk or the Secretary of this court shall practice as an attorney or counselor in any court or before any agency of the Government while continuing in that position; nor shall he or she after separating from that position practice as an attorney or counselor in this court until two years have elapsed after such separation; nor shall he or she ever participate, by way of any form of professional consultation and assistance, in any case that

was pending in this court during the period that he or she held such position; nor shall any law clerk or secretary to a Judge of this court or other employee ever participate, by way of any form of

Rule 4. Clerk.

professional consultation and assistance, in any case in this court in which he or she participated in any way during the period that he or she held such position.

(a) The clerk of the court shall keep his office in New York City, the official station of the court.

(b) The clerk and his deputies and assistants shall not practice law in any court.

(d) He shall have custody of and be responsible for all records, papers, and exhibits filed with the court or a judge thereof, and shall have, under the direction of the court, supervision of all employees in the clerk's office.

(g) He shall, with the approval of the court, assign a calendar clerk or clerks to attend all hearings in New York. The calendar clerk or clerks shall call the calendar and perform such other duties as may be assigned. The court reporter, traveling on circuit, shall act as calendar clerk. The court reporter, traveling on circuit, shall also accept on behalf of the clerk of the court such papers. exhibits, or both, offered for filing in connection with cases on the calendar or calendars of the circuit at that time.

Rule 7. Testimony before trial; depositions, discovery, and inspection.

(a) Permission to take testimony before trial may be granted for good cause shown. Application for such permission must be filed with the clerk of the court and a copy thereof served upon the opposite party within the time fixed by the court or one of the judges.

(b) By leave of court any party may cause to be taken the testimony of any person within the territorial jurisdiction of this court by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. Unless otherwise ordered by the court, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, including the existence, description, nature, custody, condition, and location of any books, documents (including price lists and catalogues, reports or depositions of consuls, customs agents, collectors, appraisers, assistant appraisers, examiners, and other officers of the Government), or other tangible things, and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition.

(c) A subpoena, issued and subject to the conditions as provided in Rule 18A, requiring the attendance of the person whose deposition is to be taken at a place and time specified in the subpoena shall be issued at the request of the party desiring to take the deposition.

(d) (1) The procedure as to motions to take such depositions, persons before whom the same may be taken, motions in connection therewith, notice, and, also, in the case of depositions to be taken upon written interrogatories, the procedure as to the filing of said interrogatories, the taking of the deposition, and its return to the court, shall follow generally that prescribed in Rule 21 for commissions and letters rogatory.

(2) In the case of depositions to be taken on oral examination, the person before whom it is to be taken shall put the witness on oath and shall personally or by someone acting under his direction and in his presence, record the testimony of the witness. Thereafter the procedure shall follow that prescribed in Rule 21.

(e) Upon written motion of any party showing good cause therefor, and upon notice to all other parties, a division or a judge of this court before whom an action is pending may order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents (including price lists and catalogues, reports or depositions of consuls, customs agents, collectors, appraisers, assistant appraisers, examiners, and other officers of the Government), papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to the matters within the scope of the examination permitted by this rule.

(f) If a deponent refuses to answer any question propounded upon oral examination or upon written interrogatories, the examination shall be completed on other matters or adjourned, as the proponent of the questions may prefer. Thereafter, on reasonable notice to all persons affected thereby, the proponent may apply to the division or judge of this court in which the action is pending for an order compelling an answer.

(g) If a party or an officer or employee thereof, refuses to obey any order made under Rule 7 or any provision thereof, the division or any judge of this court before whom the action is pending may make such orders in regard to the refusal as are just, and among others the following:

(1) An order that the matters regarding which the questions were asked, or the character or description of the thing or the contents of the paper,

or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things or items of testimony;

(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

(h) If a witness refuses to be sworn or refuses to answer any question after being directed to do so by the division or judge of this court before whom the action is pending, or refuses to comply with any order to produce any document or other thing for inspection, copying, or photographing, or permit it to be done, after being directed to do so by any division or judge, the refusal may be considered a contempt of court.

(i) No default judgment shall be rendered against the United States as defendant unless the plaintiff establishes his claim or right to relief by sufficient evidence, except as to those matters and facts where it may be held that plaintiff's claim is established because of the default of the defendant.

Rule 8. Pre-trial procedure; formulating issues.

(4) The limitation of the number of witnesses;

Rule 10. Attorneys.

(a) The bar of the United States Customs Court shall consist of those persons heretofore admitted to practice in the court who have signed the roll of attorneys and those attorneys hereafter admitted in the following manner:

(b) An applicant for admission to practice at the bar of the court may be admitted before any judge upon motion made by a member in good standing of the bar of the court, and receive a certificate of admission, following the filing of an application in a form prescribed by the court, when such applicant is shown to have been admitted to practice law in the United States courts or in the highest court of any State, territory, the District of Columbia. or outlying possessions of the United States, and is a member in good standing of the bar of one of such courts. Upon being admitted each applicant shall subscribe to the following oath:

swear (or affirm) that I will demean myself as an attorney and counselor-at-law of the United States Customs Court uprightly and according to law, and that I will support the Constitution of the United States. So help me God.

Upon subscribing thereto, he shall pay to the clerk the sum of $5.00 and shall be entitled to a certificate of admission. The clerk, as trustee, shall deposit such sum in a bank designated by the court and shall expend such moneys for the purchase of law books, for library conveniences, and other court purposes, only as directed by the court.

(c) Admission to practice at the bar of the court will be granted only upon the court's being satisfied that the applicant possesses the necessary qualifications as to professional standing, experience, and character.

Rule 11. Disbarment.

(a) Whenever a certificate shall be received from the clerk of any court, or a petition shall be filed with the clerk of the court, supported by an affidavit, setting forth any of the following facts concerning a member of the bar of the court:

(1) That he has been disbarred from practice in any court of the United States or State court, to which he was previously admitted;

(2) that he has been convicted of an indictable offense involving moral turpitude;

(3) that he has been guilty of dishonest or unethical conduct;

the clerk shall forthwith deliver said petition or certificate to the chief judge of the court who, after a copy thereof has been served upon the attorney named in the petition and the expiration of 10 days thereafter, during which time such attorney shall be permitted to file an answer to said petition, shall examine the petition and answer, and determine whether they contain probable cause for invoking the disciplinary powers of the court. If he shall so determine, he shall forthwith enter an order designating three judges to hear the matter. The order shall provide for a hearing within not more than 40 days nor less than 20 days after service, and a copy thereof shall be served upon the attorney named in the petition. The chief judge may designate an attorney-at-law to prosecute the proceeding in behalf of the petitioner.

Rule 14. Notice of appearance and substitution.

(b) If a protest, petition, or other paper initiating a proceeding bears the name and address of any member or members of the bar of the United States Customs Court, and when any such document has been filed under the personal direction of said member or members of the bar, he or they shall be recognized as the attorney or attorneys of record and no separate notice of appearance shall in such case be required.

Rule 15. Assignment of reappraisements, applications for review, and hearings thereon; statements or responses to be filed.

(d) Within the time and under the conditions and circumstances hereinafter specified, the plaintiff, or noticing party, and the defendant, or opposite party, as the case may be, in reappraisement appeals shall file with the court, and serve a copy upon the opposite party, a short, plain, and direct statement showing (1) the statutory basis of value contended for by that party, and (2) the unit value claimed to be the correct value of the merchandise. In the event that either party makes a claim or defense based upon matters other than those covered by items (1) and

(2) above, he shall so state, and also set forth in his statement the precise ground or basis for such claim or defense.

In the event that either party shall fail to file and serve such statement or response, the court may adopt and enforce against such party such action as shall be reasonable and appropriate under the circumstances, including, but not limited to, the dismissal of the action, an order that particular facts shall be taken as established, or an order refusing to allow the non-complying party to support or oppose particular claims or defenses or prohibiting him from introducing certain evidence, or striking pleadings or written statements.

Nothing herein contained shall be construed to impair or hinder the right of the court upon good cause shown to extend the time of either party to file such statement or to grant either party permission to amend his statement or position taken at any time before judgment.

The written statements and responses provided for in this rule shall be filed and served by the plaintiff and by the defendant at the respective times required under the following conditions or circumstances:

(1) Whenever a party mails or delivers a notice of trial pursuant to Rule 3 (t) he shall file and serve concurrently with such notice of trial the statement required by the rule, and the opposite party shall, within 10 days thereafter in cases appearing on New York calendars, or at or before the time of trial in all other cases, file and serve the response required by the rule; or

(2) Whenever a judge of the court sets a case for trial on a trial calendar and in his judgment it will further the effective administration of justice, and the filing and serving of such statements and responses are ordered, such statements required of the plaintiff shall be filed at least fifteen days prior to the date of such trial calendar, and the defendant shall, within ten days thereafter in cases appearing on New York calendars, or at or before the time of trial in all other cases, file and serve the response required by the rule, unless otherwise ordered.

(3) Whenever in the judgment of a judge of the court it will further the effective administration of justice, and the filing and serving of such statements and responses are ordered, they shall be filed and served at the times directed in the order therefor. (e) In all reappraisement cases appearing on New York calendars a party thereto shall give at least two days' notice, prior to the date set for trial of any case or cases, of the availability for inspection of long, extensive, or voluminous documents or exhibits which said party proposes to introduce at the trial of such cases. In trials or hearings at outports, such notice of availability shall be given by twelve noon of the day preceding the date of trial or hearing; Provided that, for good cause shown, the Court or judge presiding may determine what shall be reasonable notice of availability of inspection for long, extensive, or voluminous documents or exhibits. Upon failure of a party to give the notice provided for herein the Court may, in its discretion, refuse admission of said documents or exhibits into evidence.

Rule 18A. Subpoena.

(a) For attendance of witnesses; form; issuance. Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

(b) For production of documentary evidence.

A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(c) Service.

A subpoena may be served by the Customs Court marshal, by his deputy, or by a United States marshal or his deputy, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to him the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered. The party at whose instance a subpoena is issued shall be responsible for the payment of witness fees and mileage as well as fees and mileage of the officer who serves the subpoena. The failure to make payment of such charges on demand may be deemed by the Court as sufficient grounds for striking the testimony of such witness.

(d) Subpoena for a hearing or trial.

(1) At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within 100 miles of the place of the hearing or trial specified in the subpoena; but the court upon proper application and cause shown may authorize the service of a subpoena at any other place.

(2) A subpoena directed to a witness in a foreign country shall issue under the circumstances and in the manner and be served as provided in Title 28, USCA, § 1783.

(e) Contempt.

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court. Adopted Jan. 28, 1960, effective Mar. 1, 1960.

Rule 19. Marshal.

(a) The marshal and his deputies and assistants, appointed by the court, shall attend court at all its sessions at New York, the official station of the court, and shall serve and execute such process and orders as directed by the court.

(f) He shall perform such other duties as directed by the court.

(g) The fees of the Marshal of the Customs Court for service of any subpoena, writ, process, or other court paper or document, or for the doing of any act specified in the statute hereinafter mentioned, shall be the same as those provided in § 1921, Title 28 U.S.C., for similar services or acts by a United States Marshal, together with the same mileage, expense, and costs provided in said statute.

Rule 31. Applications for review, assignments of errors, and briefs.

(c) Within 30 days after the date of 'd notice of certification, unless specially excused therefrom by the court, the appellant or his counsel shall file a brief, serving one copy thereof on appellee or his counsel, and within 15 days thereafter the party so served shall file a brief, serving one copy thereof on the opposing party or his counsel, and both parties shall, at the time of serving the opposing party or his counsel, file four copies of said brief with the clerk of the court: Provided, That if the case originates in the State of Washington, Oregon, California, Nevada, Idaho, Utah, Arizona, New Mexico, Colorado, Wyoming, or Montana, or beyond the limits of the continental United States, there shall be allowed 10 days' additional time for the serving and filing of said briefs.

Rule 33. Briefs.

In every contested case a brief shall be filed by each of the parties within the time respectively allowed therefor by the court, unless specially excused therefrom by the court. Time for the filing of briefs in other contested matters, such as motions, objections, etc., may be requested by either or both of the parties, or such briefs may be ordered by the court to be filed within certain times.

Every brief of more than 15 pages shall contain a subject index with page references, to be supplemented by a list of authorities referred to, together with references to pages thereof. Briefs filed on the merits in reappraisement appeals and applications for review shall contain proposed findings of fact and conclusions of law. Each party shall serve a copy of his brief upon his adversary party and file proof of such service at the time of filing his brief.

Failure to file any of the briefs provided for by this rule shall not be deemed to be a waiver on the part of the supporting party, or a withdrawal of the opposition by the opposing party, but the court may, upon its own motion or on the motion of a party, take such action in the premises, including the striking or granting of the motion, or, in cases submitted for decision, the rendering of judgment or other relief in the case without further briefs or hearing,

or the entry of a rule to file supporting or opposing briefs, as it may in its discretion determine.

In every brief the party filing same shall include in said brief at appropriate places a concise and summary abstract or statement showing the pertinent, relevant, and material parts of all documents or exhibits relied upon, and also pointing out the nature of the documents or exhibits and what the abstracted documents or exhibits or parts thereof tend to show or prove. If any party shall fail, within the specified time, to file the brief, abstract, or statement required or authorized by this rule, the court, in its discretion, may disregard said documents or exhibits or any testimony or evidence adduced in the case by the noncomplying party.

No judgment by default for failure to file brief, abstract, or statement required or authorized by this rule shall be entered against the United States as defendant unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.

Rule 41. Assignment of subjects.

All protest cases filed in the office of the clerk shall be assigned to the several divisions of the court as follows:

TO FIRST DIVISION-TARIFF ACT OF 1930 Schedule 1.-All cases involving the classification of merchandise under paragraphs 1 to 97, inclusive. Schedule 2.-All cases involving the classification of merchandise under paragraphs 202 to 206 and 217 to 236, inclusive.

Schedule 4.-All cases involving the classification of merchandise under paragraphs 401 to 412, inclusive.

Schedule 6.-All cases involving the classification of merchandise under paragraphs 601 to 605, inclusive.

Schedule 7.-All cases involving the classification of merchandise under paragraphs 717 to 721, inclusive.

Schedule 11.-All cases involving the classification of merchandise under paragraphs 1101 to 1122, inclusive.

Schedule 15.-All cases involving the classification of merchandise under paragraphs 1501 to 1503, inclusive; 1506, 1511 to 1514, inclusive; 1516, 1518 to 1520, inclusive; 1524 to 1528, inclusive; 1530 to 1542, inclusive; 1545, 1546, 1549 to 1551, inclusive; and 1553, and also cases involving the question of drawback.

INTERNAL REVENUE CODE OF 1954

All cases involving merchandise assessed under Sections 4521, 4531, 4551, 4561, 4571, and 4581.

TO SECOND DIVISION-TARIFF ACT OF 1930 Schedule 2.-All cases involving the classification of merchandise under paragraph 208.

Schedule 3.-All cases involving the classification of merchandise under paragraphs 301 to 398, inclusive.

Schedule 9.-All cases involving the classification of merchandise under paragraphs 901 to 924, inclusive.