Ditbro Pearl Co. v. United States

515 F.2d 1157, 62 C.C.P.A. 95

Opinions

Baldwin, Judge.

This is an appeal from the judgment of the United States Customs Court, 72 Cust. Ct. 1, C.D. 4497 (1974), overruling appellant’s claim for classification of certain aluminum chain belts as other chains, item 652.38 TSUS. The opinion of the Customs Court, familiarity with which is assumed, appears at 72 Cust. Ct. 1, C.D. 4497 (1974). The court held that the imported merchandise was properly classified by the District Director of Customs as jewelry and other items of personal adornment, item 740.38 TSUS. We affirm.

The trial court found that the evidence fully supports the presumption of correctness attaching to the District Director’s classification of the imported merchandise under item 740.38 TSUS. We fully agree with this finding for the reasons given in the careful opinion of the Customs Court.

As to appellant’s argument that classification of the imported merchandise under item 740.38 TSUS represents a change in a prior uniform and established practice classifying chain belts as chains under item 652.38 TSUS, done without notice in violation of section 315 (d) of the Tariff Act of 1930, as amended, we also agree with the trial court’s holding on this point. The key issue is “whether the Secretary of the Treasury (or his delegate) has made a ‘finding’ of ‘an established and uniform practice’ pursuant to section 315(d).” Asiatic Petroleum Corp. v. United States, 59 CCPA 20, 22, C.A.D. 1029, 449 F. 2d 1309 (1971). Such a “finding” does not appear in the record before us, and this “obviates any need for notice prior to an effective change.” Martin Brokerage Co. v. United States, 36 Cust. Ct. 35, 39, C.D. 1750 (1956). The abstracted Customs Service decision, relied upon by appellant, T.D. 68-77(3), 2 Cust. Bull. 157 (1968), does not, on its face, purport to be such a “finding” as required by section 315(d), nor does this abstract convey any “clear impression” that a “finding” under that section was intended. Asiatic Petroleum Corp. v. United States, supra.

Appellant’s final argument is that the liquidation of the instant imported merchandise was in violation of Customs Regulations, i.e., 19 CFR 16.10a,

Footnotes

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* because classification of the imported chain belts was not in compliance with the abstracted T.D. 68-77(3), supra. It should suffice to merely point out that such an abstract is not a “published decision,” within the context of 19 CFR 16.10a (b), which could establish, under the provisions of 19 CFR 16.10a (c), a uniform practice within the meaning of section 315 (d). Borneo Sumatra Trading Co. v. United States, 56 Cust. Ct. 166, C.D. 2624 (1966). Such abstracts, as TD 68-77(3), supra, are “published as a matter of information and guidance” and not for the purpose of establishing a practice in accordance with 19 CFR 16.10a(b). See T.D. 72-8, 6 Cust. Bull. 10 (1972), for an example of a “published decision” within the context of 19 CFR 16.10a.

Accordingly, the judgment of the Customs Court is affirmed.

Now 19 CFR 152.14.

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Whether the abstract ivas a “decision” as envisaged in 19 CFR 16.10a is a question that appears nowhere in the complaint, in the answer, or in the opinion oí the Customs Court under review. It should not, therefore, be considered by us. Salentine & Co. v. United States, 59 CCPA 26, C.A.D. 1031, 450 F. 2d 908 (1971).