HERAEUS-AMERSIL, INC., PETITIONER V. UNITED STATES OF AMERICA

   No. 86-724

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Federal Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Discussion
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-16a) is reported
at 795 F.2d 1575.  The opinion of the Court of International Trade
(Pet. App. 19a-31a) is reported at 617 F. Supp. 89.  The previous
opinion of the Court of International Trade (Pet. App. 34a-46a) is
reported at 600 F. Supp. 221.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 17a) was entered on
July 8, 1986.  A petition for rehearing was denied on August 1, 1986
(Pet. App. 18a).  The petition for a writ of certiorari was filed on
October 30, 1986.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether imported merchandise may be classified at a higher tariff
without following the 30-day notice and publication requirements of 19
U.S.C. 1315(d) where a court, rather than the Secretary of the
Treasury, has determined that there was an "established and uniform
practice" of classifying that kind of merchandise at a lower tariff
and the importer had actual notice that the Customs Service has
abandoned its earlier classification practice.

                               STATEMENT

   1. Petitioner, Heraeus-Amersil, Inc., imports fused quartz and
fused silica into the United States (Pet. App. 3a).  From 1968 through
November 1977, the Customs Service classified all of petitioner's
imports under the provisions of the Tariff Schedules of the United
States covering certain "glass in the mass" and similar products and
"glass tubine" and similar products (ibid.).  In December 1977,
however, the Customs Service determined that such merchandise should
be classified under a different provision covering "optical glass" and
retroactively applied the new (and higher) tariff rate to merchandise
that had been imported between March and December 1976 (id. at 3a-4a).
 Later, the Customs Service also applied the higher tariff rate to
merchandise that petitioner imported in April 1981 (id. at 4a).

   2. Petitioner filed timely administrative protests concerning each
application of the higher tariff rate (Pet. App. 4a).  The Customs
Service denied the protests (ibid.).  Accordingly, petitioner filed
suit in the Court of International Trade, alleging, inter alia, that
the Customs Service had a "uniform and established practice" of
classifying this merchanidse at the lower tariff and that the Customs
Service was therefore precluded from reclassifying petitioner's
imports until it complied with the 30-day notice and publication
requirements of 19 U.S.C. 1315(d).  Pet. App. 4a-5a.  The United
States responded, inter alia, that the court lacked authority to
determine whether any such "established and uniform practice" existed
and that the matter should be remanded to the Secretary of the
Treasury to make the necessary findings (id. at 5a).

   The court held, contrary to the argument of the United States, that
it had authority to determine whether an "established and uniform
practice" of classifying particular merchandise existed (Pet. App.
24a-27a, 38a-43a).  Moreover, it agreed with petitioner that the
Customs Service's practice over a 10-year period of consistently
classifying petitioner's merchandise under the same tariff provision
constituted an actual "established and uniform practice"
notwithstanding the Secretary's failure to make an administrative
"finding" to this effect (id. at 25a-30a).  But the court rejected
petitioner'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" (id. at
30a).  The court reasoned that "(a)doption of (petitioner's) position
could lead to the absurd result of allowing importers to go back
through the records, find long-discontinued 'established and uniform
practices' and protest classifications accordingly, in total disregard
of what everyone involved knows is the current position of Customs
regarding the merchandise" (ibid.).  Accordingly, the court held that,
since "(petitioner) was on actual notice of the change in
classification practice as of December 30, 1977" (ibid.), the "entries
made before December 30, 1977, must * * * be reliquidated" (id. at
31a), but the "entries occurring after December 30, 1977" need not be
reliquidated (ibid.).

   3. On appeal by both the United States and petitioner, the Federal
Circuit affirmed (Pet. App. 1a-16a).  It agreed with petitioner that,
"(c)ontrary to the United States' postulate that an established and
uniform practice arises upon only a formal finding by the Secretary *
* *, the courts have consistently made such findings where the actual
existence of a uniform practice was at issue" (id. at 9a-10a).
Likewise, it found that the Court of International Trade had "properly
held that (petitioner) successfully proved the existence of an
established and uniform practice of liquidating the merchandise under
(the lower tariff rate) cannot be changed until publication pursuant
to (19 U.S.C.) 1315(d)" (id. at 13a), finding that "it was not the
intent of Congress when it enacted the 1315(d) notice provision that,
where the Secretary (though requested) failed to decide whether an
established and uniform practice existed and that determination had to
be made by the court, the lack of a published notice in the Federal
Register would bar the application of an administrative change in
rates even though the affected importer was specifically informed that
Customs had changes its practice" (id. at 15a).  The court reasoned
that "(t)he words of 1315(d) -- which relate solely to a change in
duties found by the Secretary to have been imposed under an
established and uniform practice -- do not so provide" (ibid.), and
that there is "no sufficient reason why Congress would have desired
substantially to prolong use of a formerly-employed rate known by the
particular importer to have already been abandoned by Customs * * *"
(ibid).  Accordingly, the court held that "the Court of International
Trade (had) correctly determined that the entries entered before
December 30, 1977 must be reliquidated * * * but not those entries
entered after December 30, 1977" (id. at 16a (footnote omitted)).

                              DISCUSSION

   The court below correctly held that the Customs Service could apply
a higher tariff rate to merchandise that petitioner imported long
after December 30, 1977, when petitioner had actual notice of the
revised classification.  That holding does not conflict with any
decision of this Court or of any other court of appeals.  Accordingly,
further review is not warranted.

   1. Petitioner principally contends (Pet. 5-7) that, under the
governing statute, the Secretary of the Treasury may not change any
practice found to be "established and uniform" until he publishes a
notice of intent to do so in the Federal Register.  This contention is
incorrect.

   The statute provides only that "(n)o 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 * * *
under an established and uniform practice shall be effective * * *
prior to the expiration of thirty days after the date of publication
in the Federal Register of notice of such ruling" (19 U.S.C.1315(d)
(emphasis added)).  The statute thus precludes the Secretary from
changing a tariff without publication only where the Secretary has
made a "finding" that an "established and uniform practice" was in
existence.  See Commonwealth Oil Refining Co. v. United States, 480
F.2d 1352, 1360-1361 (C.C.P.A. 1973);  Martin Brokerage Co. v. United
States, 36 Cust. Ct. 35, 39, C.D. 1750 (1956).  Here, of course, it
was the Court of International Trade which determined that an
"established and uniform practice" existed.  Accordingly, on its face,
the statute does not preclude the Secretary from applying a higher
tariff rate to petitioner's merchandise.

   Nor does the purpose of the statute require that the Secretary be
precluded from imposing a higher tariff in these circumstances.  The
publication requirement acknowledges "that the importing community
relies upon the existence of established and uniform practices in
conducting their business" (Pet. App. 13a).  Thus, "(i)f the Secretary
makes a finding that an established and uniform practice has existed,
the Secretary should not revoke that practice prior to publication of
notice to that effect in the Federal Register" (id. at 13a-14a).  "By
that means, the Secretary's change in the pre-existing practice (as he
has established it or found it to be) is made known to all importers
throughout the country" (id. at 14a).  "Similarly, where an
established and uniform practice has been judicially found (because
Customs refused to pass on that issue) * * * the importing community
should be afforded a grace period to permit it to make business
decisions in light of any new agency action changing that practice"
(ibid.).  But requiring the Customs Service to apply "the rate in
existence at the time the merchandise was imported * * * until notice
of the change is given" accomplishes this purpose (ibid.).  It ensures
that the importer is not charged a tariff of which it does not have
advance notice.

   In contrast, requiring the Secretary to follow the publication
requirement when a court, rather than the Secretary, determines that
an "established and uniform practice" existed would have a deleterious
effect on the administration of the customs statute.  "If we accepted
(petitioner's) point that it is entitled to the application of lower
rates until Customs complies with the 1315(d) notice provision of
publication in the Federal Register, (petitioner) could receive a
windfall because the lower (putatively incorrect) rate would apply to
the April 1981 merchandise even though (petitioner) knew of Customs'
change in classification three years earlier" (Pet. App. 15a (footnote
omitted)).  Indeed, "(a)doption of (petitioner's) position could lead
to the absurd result of allowing importers to go back through the
records, find long-discontinued 'established and uniform practices'
and protest classifications accordingly, in total disregard of what
everyone involved knows is the current position of Customs regarding
the merchandise (id. at 30a).  This clearly is not a tenable
interpretation of the customs law.  See generally Norwegian Nitrogen
Co. v. United States, 288 U.S. 294, 318 (1933).

   Finally, petitioner errs in suggesting that (Pet. 6) the customs
law must be interpreted in this fashion to ensure that it has an
opportunity to comment on the Secretary's change in "established and
uniform practice." Petitioner is not entitled to any such opportunity
for comment.  19 U.S.C. 1315(d) does not require the Secretary to
solicit comments of interested parties;  it merely requires the
Secretary to publish a notice that he intends to change an established
and uniform practice that he has found to exist.  19 C.F.R. 177.10
does provide that interested parties shall have an opportunity for
comment;  however, 19 C.F.R. 177.10 is applicable only where the
Customs Service has itself created an established and uniform practice
by published ruling.  See Rank Precision Industries, Inc. v. United
States, 660 F.2d 476, 480 n.11 (C.C.P.A. 1981).  The Customs Service
has not published any such ruling here.  Accordingly, even if the
court had by mandamus ordered the Secretary to "find" that an
established and uniform practice existed, as petitioner requested
(Pet. 6), petitioner would not have been entitled to any opportunity
for comment.

   2. Petitioner suggests (Pet. 8-10) that the decision below violates
the constitutional and statutory requirement that the treatment of
imports be uniform, but that contention is doubly inappropriate in
this case.  First, the merchandise involved in this case is imported
at only two ports in the United States.  See Pet. App. 3a, 12a & n.11.
 Since nothing in the record indicates that any other importers at
these two ports have been treated any differently from petitioner,
either as to the timing of their receipt of actual notice or as to the
classification of their imports, there is no evidence of actual
nonuniformity.  Second, the decision below holds only that petitioner
cannot complain of the classification of its goods on the ground of
failure to publish the statutory notice.  It does not preclude any
importer from challenging the new tariff rate as substantively invalid
for any reason, including nonuniformity of application.  The decision
below expressly left open the question whether the new tariff is
substantively valid.  See id. at 16a n.16.

   3. Finally, petitioner's contention (Pet. 10-13) that the decision
below conflicts with decisions requiring agencies to explain
departures from prior agency practice is sophistic.  The United States
argued throughout this litigation that the courts lack authority to
determine initially whether an "established and uniform practice"
exists.  The United States asked that the case be remanded to the
Secretary so that he could consider whether an established and uniform
practice existed in this case and, if so, explain why and whether a
change is warranted.  Petitioner urged the courts to decide whether an
established and uniform practice existed.  It is because the courts
followed petitioner's urging that the Secretary has had no opportunity
to explain why and whether a change is required.  Moreover, the court
below expressly stated that petitioner "remains free to challenge the
correctness of (the new rate) on its own merits, if proper protests
have been filed" (Pet. App. 16a n.16).  Thus, no intervention by this
Court is required to ensure that the Secretary provides an explanation
concerning why a new tariff is appropriate.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   DAVID M. COHEN

   JOSEPH I. LIEBMAN

   JOHN J. MAHON

      Attorneys

   JANUARY 1987