concurring.
Though the opinion of the lower court and the parties here express substantial concern for the presence or absence of a “finding” by the *97Secretary or bis delegate under § 315 (d), I view such consideration as premature. The first consideration must be the existence or nonexistence of an established uniform practice.
A uniform practice which did not exist could never have been “found.” A uniform practice which did exist should have been found.
If a uniform practice does exist and the Secretary desires to raise the duty he must follow § 315 (d). The making of a finding that a uniform practice exists is the first step under § 315(d).
If a uniform practice does not exist the Secretary is perfectly free to raise the duty and the question of his compliance with § 315(d) does not arise.
Appellant jumps the gun in equating the abstract to a “finding.” * In effect appellant is arguing that the Secretary took the first step under § 315(d), i.e., making a “finding,” but failed to take the subsequent steps under § 315(d). The abstract clearly does not constitute such a “finding.”
The government, on the other hand, argues that the Secretary need not follow the requirements of § 315(d) because he did not make a “finding.” To so hold would render § 315 (d) a nullity in the hands of a Secretary choosing to refrain from ever making a finding. Avoiding the first step in a procedure provides no excuse for avoiding the entire procedure.
In Asiatic Petroleum Corp. v. United States, 59 CCPA 20, 449 F. 2d 1309, C.A.D. 1029 (1971), the Acting Commissioner’s letter had recognized the existence of a uniform practice. Thus evidence of a uniform practice existed. To the extent that our opinion in Asiatic calls such evidence a “finding” in the sense of § 315(d), that opinion is, in my view, misleading.
The initial burden of appellant in this case was to establish the existence of a uniform practice. He failed to carry that burden. On that basis, and on it alone, I would affirm the judgment of the court below.