MEMORANDUM OPINION AND ORDER
Defendant moves, pursuant to rules 52 and 59 of the rules of this Court, for amendment and/or rehearing (clarification) of this Court’s memorandum opinion and judgment of June 6, 1985,
In Slip Op. 85-60, the Court granted plaintiff’s motion for summary judgment, but limited its holding to entry number 188,596, whiсh was the only entry covered by the original summons in Court No. 81-1-00100. However, during the course of the litigation, additional entries were severed from other cases and consolidated with Court No. 81-1-00100, which became designated as Consolidated Court No. 81-1-00100. All entries the subject of this consolidated action are thus:
Court Number Protest Entry Date of Date of
_ Number Number Entry Liquidation
80- 9-0U39-S 1001-8-004428 K350112 3/5/76 1/6/78
K458138 7/2/76 1/6/78
K499020 8/9/76 1/6/78
K522573 8/31/76 1/6/78
K522628 8/31/76 1/6/78
81- 1-00100 1001-8-010167 188596 12/12/76 5/12/78
82- 9-01243-S 1001-0-011514 804694 4/13/81 7/31/81
804807 4/17/81 7/31/81
804885 4/27/81 7/21/81
The rationale of the Court’s opinion in this case affects the disposition of the various entries differently. It is therefore necessary for the Court to explain in detail the application of its holding to the involved entries.
NATURE OF THE CLAIM
In this action, which originally came before the Court on plaintiff’s motion for summary judgment, plaintiff contends that its imported merchandise, known as “fused quartz” or “fused silica,” should be classified under items 540.11 and 540.41 of the Tariff Schedules of the United States (TSUS). The basis of plaintiff’s clаim is that the more than 300 known liquidations of entries over a 10 year period of like or similar merchandise classified under the same claimed item numbers constitutes “an established and uniform practice” within
Defendant, in cross-moving for partial summary judgment respecting plaintiffs section 1315(d) claim, contends that the notice requirement resulting from an established and uniform practice is predicated upon a “finding” of such practice by the Secretary of the Treasury. 2 Defendant claims that plaintiff has failed to prove that a uniform practice existed, but irrespective of such practice, plaintiff is not entitled to relief in the absence of a finding by the Secretary. Defendant therefore asserts it is entitled to summary judgment in its favor dismissing the uniform and established practice claim.
Dеfendant claims, in the alternative, that this Court lacks authority to determine whether a uniform and established practice existed; therefore, the case should be remanded to the Secretary of the Treasury to make the appropriate affirmative or negative finding. The defendant requests the Court further to certify the question for an interlocutory appeal pursuant to 28 U.S.C. § 1292(d)(1) (1982) shоuld the Court grant any relief to plaintiff or adhere to the Court’s earlier decision in
Heraeus-Amersil, Inc. v. United States,
8 CIT-,
STIPULATED FACTS
Plaintiff imports optical grade fused quartz or fused silica at the ports of Newark and John F. Kennedy International Airport (JFK). Upon the liquidation of plaintiff’s optical types that were imported from Germany during March-December, 1976 and April, 1981, Customs classified the merchandise in issue under item 540.67, TSUS.
3
In the previous period of 1968 through November, 1977, Customs liquidated other entries of plaintiff’s same optical types under items 540.11 and 540.41, TSUS.
4
Over 300 documented entries at the two ports mentioned above resulted in
From 1968 through November, 1977, at least five import specialists at the Newark and JFK ports of entry uniformly made advisory classifications of plaintiffs optical types under items 540.11 or 540.41. In 1977, however, another import specialist assumed advisory classificatiоn responsibility at JFK for plaintiffs optical types. This specialist made a new advisory classification which resulted in the change of classification to item 540.67.
The Secretary of the Treasury or his lawful delegee concededly made no “finding” under 19 U.S.C. § 1315(d) of whether an established and uniform practice existed as to the classification of optical grade fused quartz or fused silica. Aсcordingly, the Secretary never published, pursuant to section 1315(d), a notice of proposed change of practice in the classification of the merchandise at issue.
OPINION
In
Heraeus-Amersil, Inc. v. United States,
8 CIT-,
The controlling question now before the Court, then, is whether in light of the stipulated facts an
actual
established and uniform practice existed with respect to the classification of oрtical grade fused quartz or fused silica. In the briefs submitted in support of the cross-motions for summary judgment, and at oral argument, much of the argument of the parties was a rehash of the question regarding the necessity of a finding by the Secretary of the Treasury in order for an established and uniform practice to arise within the purview of section
Precedents concerning what specifically constitutes an established and uniform practice under section 1315(d) are unfortunately sparse. Nevertheless, the Court can make the determination on a case-by-case basis according to certain guiding principles.
See
8 CIT at -,
In this ease, the classification of fused quartz/fused silica under items 540.11 and 540.41 spanned a period of at least 10 years. Over 300 liquidations at two ports under these item numbers have been documented. The parties have been unable to find any evidence of variant liquidations during the 10-year period or earlier. On the basis of this large number of past entries over the long time period involved, the Court finds that plaintiff was entitled to rely upon the continued classification of its optical types under items 540.11 and 540.41 absent published notice of а contemplated change in classification practice pursuant to section 1315(d).
The only authority directly on point indicates that the classification practice here has existed well beyond the time span required for an established and uniform practice. Thus, in
Emil Dienert v. United States,
In many of the cases involving section 1315(d), the issue was whether or not some action by Customs constituted a finding.
See Heraeus-Amersil, 8
CIT at-n. 7,
In
Siemens,
100 entries of merchandise classified under a particular item number over possibly 2 years at a single port was not enough to create
de facto
an established and uniform practice.
Similarly, in Washington Handle Co. v. United States, 34 CCPA 80, C.A.D. 346 (1946), like classification treatment of twenty-eight shipments over a 2-year period was not enough to create an еstablished and uniform practice. Important to the court was the “considerable uncertainty” as to the proper classification during even the 2-year period. Id. at 86.
Prior discussions demonstrate that when Customs has not had a reasonable opportunity to investigate adequately the proper classification for a type of imported merchandise, an established and unifоrm practice will not arise in the interim. In Naumes Forwarding Service v. United States, 42 CCPA 110, C.A.D. 581 (1955), for example, Customs re-evaluated its method for determining the ratio representing the amount of imported concentrated lemon juice to natural juice. The court found that Customs was not required to follow the notice provisions of section 1315(d) when changing from a practice employed in liquidating entries over a 2-month period to оne “based on ‘the best current and authentic data.’ ” Id. at 112.
In the case now before the Court, nothing indicates that Customs was uncertain or was reconsidering the classification of fused quartz/fused silica prior to changing the classification of this merchandise. The Court is impressed that the practice existed for at least 10 years. Only upon reassignment of advisory classification responsibility did an import specialist initiate the change to classification under item 540.67. Unless Customs publishes notice of a contemplated change, the legislative objective under section 1315(d) of “lending certainty to the importing process” would clearly be circumvented.
See Heraeus-Amersil,
8 CIT at-,
In adhering to the above conclusion, the Court does not endorse plaintiff’s further contention that Customs is bound
ad infinitum
by a now discontinued “established and uniform practice” unless Customs publishes notice of the change in classification practice. Merchandise of entries subsequent to the change is not necessarily entitled to classification based on an administrative practice that has been discontinued and is therefore in retrospect no longer established and uniform. This result is different from that of the situation in which the importer bases its claimed classification on a
finding
by the Secretary of the Treasury that an established and uniform practice existed.
See Rank Precision Industries, Inc. v. United States,
68 CCPA
In the case before thе Court, there is no question that plaintiff was on actual notice of the change in classification practice as of December 30, 1977. The subsequent group of importations involved in this action was not entered until April of 1981. Plaintiff is therefore not entitled to have these later entries of merchandise classified on the basis of a practice which Customs had discontinued and not followed for over 3 years.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for summary judgment is granted in part. In these circumstances where Customs displayed no ambivalence as to the classification of plaintiff’s merchandise for 10 years in 300 liquidations, the Court holds that as a matter of law an established and uniform practice existed. For merchandise entered prior to the discontinuance оf the practice, Customs’ classification under a variant item number would have been valid only if preceded by publishing notice of the change pursuant to 19 U.S.C. § 1315(d). Customs may dispense with the publication requirement only after the practice has been discontinued and an importer is on actual or constructive notice of the discontinuance. The involved entries made before Dеcember 30, 1977, must accordingly be reliquidated under items 540.-11 or 540.41.
Regarding those entries occurring after December 30, 1977, plaintiff’s motion for summary judgment is denied and defendant’s cross-motion respecting plaintiff’s claim under section 1315(d) is granted. As plaintiff was aware that the administrative practice upon which it had based its claimed classification of merchandise in the later entries had long been discontinued, the established and uniform practice claim as to these entries must be dismissed.
ORDER
Upon reading and filing defendant’s motion for amendment and/or rehearing (clarification) of the Memorandum Opinion and Judgment in Slip Op. 85-60 (June 6, 1985), plaintiff’s response thereto, and upon all other papers and proceedings had herein, it is hereby
ORDERED, ADJUDGED and DECREED:
1. that defendant’s motion for amendment and/or rehearing is grаnted;
2. that this Court’s Memorandum Opinion and Judgment of June 6, 1985, Slip Op. 85-60 is vacated and set aside;
3. that plaintiff’s motion for summary judgment is granted in part;
4. that defendant’s cross-motion for partial summary judgment is granted in part;
5. that the Customs officials shall reliquidate the optical fused quartz or fused silica the subject of Court Numbers 80-9-01139-S and 81 — 1— 00100 previously liquidated under item 540.67, TSUS, under either item 540.11 or 540.41, as modified by T.D. 68-9, TSUS, as appropriate, and rеfund to plaintiff the excess duties paid together with interest as provided by law; and
6. that the established and uniform practice claim regarding the merchandise subject of Court Number 82-9-01243-S be dismissed.
The issues involved in this determination include a controlling question of law with respect to which there is a substantial ground for difference of opinion and an immediate appeal from the order may ma
Notes
. 19 U.S.C. § 1315(d) (1982) provides:
No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the Federal Register of notice of such ruling; but this provision shall not apply with respect to the imposition of antidumping duties, or the imposition of countervailing duties under section 1303 of this title.
. The Customs regulations provide that a uniform practice may also be established by publication of a ruling pursuant to 19 C.F.R. § 177.-10(b) (1984).
. Item 540.67 of the TSUS, as modified by T.D. 68-9, provides:
Optical glass in any form, including blanks for spectacle lenses and for other optical elements; non-optical-glass blanks for corrective spectacle lenses; synthetic optical crystals in the form of ingots, segments of ingots, sheets, or blanks for optical elements; all the foregoing not optically worked; polarizing matеrial, in plates or sheets, not cut to shape or mounted for use as polarizing optical elements; ********
540.67 Other optical glass and synthetic optical crystals; polarizing material........... ..........................25% ad val.
. Item 540.11, TSUS, as modified by T.D. 68-9, provides:
Glass, in the mass; glass, crushed, powdered or flaked (frostings); and waste or scrap glass; all the foregoing except glass provided for in items 540.21 and 540.27:
Glass in the mass:
540.11 Containing over 95 percent
silica by weight..........7.5% ad val.
Item 540.41, TSUS, as modified by T.D. 68-9, provides:
Glass rods, tubes, and tubing, all the foregoing not processеd:
540.41 Containing over 95 percent silica by weight..........7% ad val.
. This stipulated fact has been further clarified in the memoranda submitted by the parties in support of plaintiff’s motion for amendment and/or rehearing. The first entry of merchandise liquidated pursuant to the new classification practice was entry number 522578. The merchandise, entered on August 6, 1976, was liquidated on December 30, 1977, under item 540.67, TSUS. Plaintiffs protest of that liquidation, filed March 30, 1978, is now part of a separate judicial action, Court No. 80-7-01138.
. The Court gleaned that Congress, in codifying a then-existing administrative practice by enacting section 1315(d) "was attempting to lend certainty to the importing process. The importing community is thus aided by the provision’s remonstrance that an established and uniform practice not be changed absent public notice. [Citation omitted.]”
Heraeus-Amersil,
8 CIT at -,
The Court held that implementation of this congressional intent was not necessarily dependent upon a finding by the Secretary of the Treasury. This conclusion was reached by looking at what had been considered in other cases decided under section 1315(d). Given that “many cases have passed on the question of whether an actual uniform practice existed," оne is led to "conclude that the issue was meaningful to the determination. Otherwise, it would seem that .the courts were engaging in useless formulations.” 8 CIT at -,
Second, the effect of having section 1315(d) dependent on a finding by the Secretary would be the nullification of the Congressional purpose in certain cases:
To be sure, when the Secretary makes a finding that an established and uniform practice either exists or does not exist, that determination is within the Secretary's congressionally designated discretion. See Washington Handle Co. v. United States, 34 CCPA 80, 86 (1946). Such a determination cannot be disturbed by a court, except, perhaps, for an abuse of that discretion. See Rank Precision Industries, Inc. v. United States, 68 CCPA 78, 84,660 F.2d 476 , 480 (1981). In the absence of an affirmative or negative finding, however, the Court, when properly presented with the issue, may resolve it. In this connection, I will heed Chief Judge Markey’s stern admonition in the Ditbro Pearl case that to hold otherwise "would render § 315(d) a nullity in the hands of a Secretary choosing to refrain from ever making a finding.” Ditbro Pearl Co. v. United States, 62 CCPA 95, 97,515 F.2d 1157 , 1159 (Markey, C.J., concurring).
8 CIT at-,