Plaintiff's motion to admit certain exhibits in evidence denied by order of Chief Judge Oliver and Judge Wilson ; Judge Mollison dissenting. The following memorandum accompanied the order denying the motion:
Wilson, Judge:
This matter is before us on a motion made by counsel for the plaintiff to have certain exhibits (plaintiff's exhibits 6, 7, and 8 for identification) admitted in evidence. It is contended in support of said motion that said exhibits are relevant in the determination of the proper rate of duty applicable to the involved woolen fabrics. Although we are not now concerned with the final decision of the case, yet in order to put the proposed exhibits in the proper setting, it is necessary to refer to the plaintiff's claims in the case and the evidence already in the record.
The merchandise involved herein consists of certain woolen fabrics "entered for consumption at the port of New York, N.Y., after 4:07 p.m. Eastern Daylight Saving Time, July 25, 1957, and before August 13, 1957." The imported goods were assessed by the collector at 45 per centum ad valorum, plus 37% cents per pound. Paragraphs 1108 and 1109(a) of the Tariff Act of 1930 were modified under the provisions of the General Agreement on Tariffs and Trade, T.D. 51802, so as to reduce the tariff rate on woolen fabrics of the kind provided for under paragraph 1109(a) to 37% cents per pound and 25 per centum ad valorem. However, the so-called Geneva reservation to the General Agreement on Tariffs and Trade reads as follows:
Note : The United States reserves the right to increase the ad valorem part of the rate applicable to any of the fabrics provided for in item 1108 or 1109(a) of this Part to 45 per centum ad valorem on any of such fabrics which are entered in any calendar year in excess of an aggregate quantity by weight' of 5 per centum of the average annual production of similar fabrics in the United States during the 3 immediately preceding calendar years.
In accordance with the foregoing reservation, the President of the United States, on May 24, 1957, notified the Secretary of the Treasury that for the calendar year 1957 the quota of foreign woolen fabrics of the type now under consideration would be 14 million pounds. Thereafter, under date of June 12, the United States Bureau of Customs sent out Circular Letter No. 2986, which was in effect on the date of the importations in question. This letter advised the collectors of customs of the United States that "As soon as preliminary information indicates that the quota is filled, telegraphic notice to that effect will be issued. Pinal instructions on the duty status of all entries and withdrawals will be issued upon receipt of complete reports from all collectors." Under date of July 23, 1957, a telegram was sent to each of the collectors of customs advising them that "Preliminary information indicates wool fabric quota may fill July 24. Effective opening business July 24 and pending further notification follow procedure BCL 2986 of June 12." Another telegram, dated July 25, 1957, directed to all collectors of customs, conveyed the information that "Preliminary reports indicate wool fabric quota filled close business July 25. Effective opening business July 26 require deposit higher ad valorem duty all entries and withdrawals per BOL 2986." On December 3, 1957, a letter from the Bureau of Customs notified the collector of customs at New Tort that the 1957 "quota on woolen and worsted fabrics was filled on July 25, 1957, at 3:07 p.m., e.s.t." Copies of all the messages sent by the Bureau of Customs to the collectors at the various ports are attached to a stipulation filed herein on March 7, 1960. Said attached documents are marked exhibits 1,2, 3, and 4.
It has been stipulated between the parties that a certain document, dated May 28, 1957, issued by the Committee for Reciprocity Information, marked exhibit 5, already in evidence, "is an official government document issued by the Committee for Reciprocity Information." Exhibit 5 sets forth the United States production of the types of woolen fabrics that would be dutiable, if imported, under paragraphs 1108 and 1109(a), for the years 1954 through 1956, which were the 3 years preceding the year in which the plaintiff's goods were imported and entered. The average domestic production for these 3 years was used in fixing a quota for the year 1957.
Counsel for plaintiff contends, in his argument, that the figures used by the President for the years 1954, 1955, and 1956 as a basis for fixing the quota of goods to be imported at the reduced rate for 1957 were inaccurate, and that the President, therefore, was without authority to base the quota of foreign goods to be admitted upon those figures. Evidently, for the purpose of substantiating the claim that the figures used by the President were inaccurate, the plaintiff has offered exhibits 6, 7, and 8 marked for identification. Plaintiff's exhibit 6 for identification, a document issued by the Committee for Reciprocity Information, contains a table setting forth the domestic production figures of woolen fabrics for the years 1953, 1954, and 1955, used by the President in determining the foreign quota to be admitted at the reduced rate for the year 1956. Plaintiff's exhibit 7 for identification, issued by the same committee, has a table attached setting forth the figures used by the President covering domestic production of the type of goods in question for the years 1955, 1956, and 1957 as the basis for fixing the quota for 1958. Plaintiff's exhibit 8 for identification sets forth certain figures taken from "Reports No. FT 110 — Bureau of the Census" covering the importation of woven woolen fabrics of the type in question for the months of May, June, July, and August 1957. There is no information in the document covering importations for the first 4 months of the year.
The crux of the issue here is, are the exhibits in question (plaintiff's exhibits 6, 7, and 8 for identification) admissible for the purpose of proving or attempting to prove that the figures used by the President, as set forth by plaintiff's exhibit 5 now in evidence, are unreliable and untrustworthy to the point of making invalid the Presidential finding of the amount of the domestic production of woven wool fabrics for the year 1957 and thereby establishing a basis for the quota of foreign goods to be admitted at the lower rate?
There is no question but that the figures set forth in plaintiff's exhibit 5 were used as the basis for the President's finding of the amount of domestic production for 1957 and in fixing the quota under attack. Neither is there any question but that there is some difference between the figures set forth in proposed exhibit 6 for the years of 1954 and 1955, and the figures for the same years contained in plaintiff's exhibit 5. The same is true of the figures used in exhibit 7 for the years 1955 and 1956 and those set forth in plaintiff's exhibit 5. However, it is obvious from an examination of all three tables (plaintiff's exhibit 5 now in evidence, and plaintiff's exhibits 6 and 7 marked for identification) that certain information in all of them was based upon estimates. It is also evident that the same type of information was used and that the same methods were followed in compiling all three tables, that is, certain parts of the information were based on estimates and the amount set forth in pounds in each table was computed by converting yard measurements to pounds. The court can see no value, therefore, in considering the figures used in determining the quotas for 1956 and 1958 for the purpose of discrediting the figures used for 1957. How can any more reliability be placed upon the tables contained in plaintiff's exhibits 6 and 7 for identification than attaches to the figures in plaintiff's exhibit 5? Looking at the situation as a whole it would appear that the best information obtainable was used in compiling the figures used in plaintiff's exhibit 5. In any event, that information could not be made to appear more or less accurate by receiving in evidence the proposed tables used in determining quotas for entirely different years. The court is, therefore, of the opinion that plaintiff's exhibits 6 and 7 for identification are inadmissible, and the defendant's objection to the admission of such documents is sustained.
Plaintiff's exhibit 8 for identification we think is also objectionable. The figures used in the exhibit cover only the second 4 months of the year 1957. This offer was obviously made upon the theory that the quota regulation did not become effective until May 1957. However, as pointed out by defendant, paragraph 7(b) of Presidential proclamation 3160, issued September 28,. 1956, T.D. 54212, reads as follows:
(b) following December 31,1956, until otherwise proclaimed by the President, if such fabrics are entered, or withdrawn from warehouse, for consumption in any calendar year after that total aggregate quantity by weight of such fabrics which shall have been notified by the President to the Secretary of the Treasury, and published in the Federal Register, has been so- entered or withdrawn during such calendar year; which quantity the President shall have found to be not less, than 5 per centum of the average annual production in the United States during the three immediately preceding calendar years of fabrics similar to such fabrics; .
It seems clear, therefore, that the determination of the quota should be on a calendar-year basis, beginning, in this instance, on January 1, 1957. Otherwise, the whole situation would be filled with utter confusion, since there is no assurance that the Quota would be fixed or determined on the same date each year. The proposed exhibit does not contain information that could assist the court in determining the issues involved in the final determination of the ease, since exhibit 8 for identification is incomplete and not based upon a proper construction of the proclamation covering quotas. The objection to the admission of said exhibit 8 for identification is, therefore, sustained.
For the reasons stated aforesaid, plaintiff's motion herein to admit exhibits 6, 7, and 8 for identification in evidence is denied.
Order will issue accordingly.