                                           Slip Op. 05 - 9

 UNITED STATES COURT OF INTERNATIONAL TRADE

                                 :
UNITED STATES,                   :
                                 :
                      Plaintiff, :
                                 :
              v.                 :                     Before: MUSGRAVE, JUDGE
                                 :
NATIONAL SEMICONDUCTOR           :                     Court No. 03-00223
CORPORATION,                     :
                                 :
                     Defendant. :
                                 :

[In the plaintiff’s civil interest penalty suit arising from defendant’s two voluntary prior disclosures
to the United States Bureau of Customs and Border Protection, each party moved for summary
judgment. Because resolution of this matter requires fact finding and interpretation, both motions
are denied.]


                                                                             Dated: January 26, 2005


      Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Patricia M.
McCarthy, Assistant Director, Civil Division, Commercial Litigation Branch, United States
Department of Justice, (Stefan Shaibani); and Office of the Chief Counsel, U.S. Bureau of Customs
and Border Protection (Scott McBride), of counsel, for the plaintiff.

       Horton, Whiteley & Cooper (Robert Scott Whiteley), for the defendant.


                                     OPINION AND ORDER

       National Semiconductor Corporation (“NSC”) undervalued certain integrated circuits and

micro-assemblies imported between 1993 and 2000. The undevaluations resulted in $948,159.13

in unpaid merchandise processing fees and were due to erroneous statements on entry documents.

NSC reported the matters to the United States Bureau of Customs and Border Protection
Court No. 03-00223                                                                                 Page 2


(“Customs”) via two voluntary prior disclosures.1 After determining that NSC’s conduct had been

negligent, which NSC does not here dispute, Customs sent notices assessing civil interest-only

penalties of $228,924.75 and $21,915.46 with respect to each disclosure in accordance with 19

U.S.C. § 1592(c)(4)(B).2 NSC disputed these charges. The United States therefore brought this

action, consolidating both penalty notices.

       At this stage, each party requests summary judgment on the amount, if any, of the customs

penalty to be imposed. The government’s briefs argue that summary judgment is appropriate

because Customs’ assessments are proper and that Customs is entitled to judgment as a matter of law

for the full interest penalty amounts. It argues that section 1592(c)(4)(B) does not mandate



       1
          The November 13, 1998 disclosure proceeded from a lengthy review of NSC’s customs
compliance procedures undertaken by NSC with the assistance of an independent consultant.
Specifically, the review determined that inaccurate values had been stated for U.S.-origin
components of the micro-assemblies, the articles had been mis-classified, and certain “assists” had
not been properly included as additions to the transaction value for the merchandise. Plaintiff’s
Proposed Findings of Uncontroverted Fact (“PPFUF”) at 16. The March 3, 2000/May 29, 2001
disclosure concerned another group of importations involving similar “assist” undervaluations that
were later discovered by an NSC employee. PPFUF at 25.
       2
           The prior disclosure statute, 19 U.S.C. § 1592(c)(4), provides in pertinent part as follows:

                If the person concerned discloses the circumstances of a violation of
                subsection (a) of this section before, or without knowledge of, the
                commencement of a formal investigation of such violation, with respect to
                such violation, merchandise shall not be seized and any monetary penalty to
                be assessed under subsection (c) of this section shall not exceed - . . .
                                                 ***
                (B) if such violation resulted from negligence or gross negligence, the interest
                (computed from the date of liquidation at the prevailing rate of interest
                applied under section 6621 of Title 26) on the amount of lawful duties, taxes,
                and fees of which the United States is or may be deprived . . .

19 U.S.C. § 1592(c)(4).
Court No. 03-00223                                                                               Page 3


mitigation of penalties in prior disclosure cases but permits collecting the full amount of interest

without mitigation, that the interest penalty only partially compensates the government for its

“monetary losses,” and that no mitigation of interest penalties is warranted in this instance.

       The government also argues that since interest under the statute is calculated only from the

date of liquidation, not from the date of entry, the statute operates as mitigation in its own right.

According to the government, Customs’ policy since at least 1986 has been that “further” mitigation

in voluntary disclosure situations is unwarranted, absent extraordinary circumstances,3 because

“further” mitigation would only provide “unscrupulous” importers with an incentive to violate the

customs laws, not least because such would provide them with an “interest free government loan.”

       NSC’s motion for summary judgment responds that the Customs’ guideline on “mitigation”

for voluntary disclosure situations was and is not in accordance with 19 U.S.C. § 1592(c)(4). That

statute provides that “any monetary penalty to be assessed under subsection (c) of this section shall

not exceed … the interest on the amount of lawful duties” (italics added). By contrast, Customs’

guideline read as follows at the time NSC initiated its prior disclosures:

               In actual revenue-loss cases involving a prior disclosure where the degree of
               culpability is determined to be negligence or gross negligence, the claim for
               monetary penalty shall be equal to the interest computed from the date of
               liquidation on the amount of the actual loss of revenue resulting from the
               violation.




       3
         Pl.’s Br. at 6-7, referencing PPFUF at 35-36 (referencing Customs’ Fines, Penalties &
Forfeitures Handbook (April 1986) (stating that there will be “No Further Mitigation of Prior
Disclosure Dispositions In the Absence of Extraordinary Factors”) (emphasis in original)).
Court No. 03-00223                                                                                 Page 4


19 C.F.R. Pt. 171 App. B(E)(3) (as of Apr. 1, 2000) (italics added).4 Continuing, NSC urges

consideration of the fourteen factors addressed by the Court in United States v. Complex Machine

Works. Co., 23 CIT 942, 949-50, 83 F.Supp.2d 1307, 1315 (1999), arguing that such would mitigate

against the imposition of a substantial penalty.

       Subject matter jurisdiction here is bestowed by 28 U.S.C. § 1582(1). In accordance with

USCIT Rule 56(a), summary judgment is appropriate if the Court determines that “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50

(1986). “Under this standard, the court must reach a conclusion that there is no factual issue and that

the applicable laws warrant judgment in favor of the movant; absent such a conclusion, there can be

no summary judgment.” Precision Specialty Metals, Inc. v. United States, 24 CIT 1016, 1023, 116

F.Supp.2d 1350, 1359 (2000) (emphasis in original). In a summary judgment motion, the movant

bears the burden of demonstrating that there is no genuine issue of material fact. SRI Int’l v.

Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985). “In determining if a party has

met its burden the court does not ‘weigh the evidence and determine the truth of the matter,’ but


       4
           The guideline was amended shortly thereafter, effective July 24, 2000:

                Duty Loss Violation. The claim for monetary penalty shall be equal to the
                interest on the actual loss of duty computed from the date of liquidation to the
                date of the party's tender of the actual loss of duty resulting from the
                violation. Customs notes that there is no monetary penalty in these cases if
                the duty loss is potential in nature. Absent extraordinary circumstances, no
                mitigation will be afforded.

19 C.F.R. Pt. 171 App. B(F)(2)(f)(a) (2001). See 65 Fed. Reg. 39087 (June 23, 2000).
Court No. 03-00223                                                                            Page 5


rather the court determines ‘whether there is a genuine issue for trial.’” G&R Produce Co. v. United

States, 26 CIT 1247, 1249, 245 F. Supp.2d 1304, 1307 (2002) (quoting Anderson, 477 U.S. at 249).

Furthermore, “[t]he court views all evidence in the light most favorable to the non-moving party,

drawing inferences in the nonmovant’s favor.” Id. (referencing United States v. Diebold, Inc., 369

U.S. 654, 655 (1962).

          Considering the parties’ essential arguments, the Court notes that NSC correctly points out

that “shall be equal to” in Customs’ guideline(s) does not comport with the statute’s sliding-scale

language. Cf. United States v. Yuchius Morality Company, Ltd., 26 CIT 1224, 1235 (2002)

(“Congress has chosen to adopt only maximums, as opposed to prescribing precise penalties, for

proven violations under 19 U.S.C. §1592”). But, to the extent that Customs’ actual practice is in

accordance with the statute, the argument amounts to a tempest in a teacup. As pointed out by the

government, there is nothing in the regulations or guidelines that would preclude a request for

mitigation under any circumstances. Cf. 19 C.F.R. § 171.1, § 171.2, § 171.11, Pt. 171 App. B(G)

(2001).

          Under Customs’ view, those circumstances must be “extraordinary.” The perspective is not

unreasonable, and, of course, the prudent exercise of judicial discretion would consider opposing

viewpoints without subjugating judicial independence,5 but considering the government’s argument

that the prior disclosure statute amounts to mitigation in its own right, because it only partially



          5
           See, e.g., United States v. Valley Steel Products Co., 15 CIT 268, 271 (1991) (“[t]he
amount of the penalty to be assessed is within the sound discretion of the Court, but only after a
violation of section 592 has been proven”). Cf. United States v. Menard, Inc., 64 F.3d 678, 680 (Fed.
Cir. 1995) (observing that the amount of the civil penalty is within the sound discretion of the trial
court).
Court No. 03-00223                                                                                 Page 6


compensates the government (i.e., “deprives” it of interest from the date of entry), the Court

concludes that the argument is also wide of the mark. Until liquidation, the customs duties (and, by

implication, interest) owed on a particular importation are uncertain. Cf. 19 C.F.R. § 159.1

(“[l]iquidation means the final computation or ascertainment of the duties or drawback accruing on

an entry”); 19 C.F.R. Pt. 171 App. B(F)(2)(f)(a) (2001) (“Customs notes that there is no monetary

penalty in these cases if the duty loss is potential in nature”). The government’s monetization of the

matter, upon which interest could be based, is not made certain until such time.

        Lastly, the government opposes consideration of the Complex Machine factors, as argued by

NSC, in the context of this prior disclosure matter for negligence. However, United States v. ITT

Industries, Inc., 28 CIT ___, 343 F.Supp.2d 1322 (2004), would proceed to consider some, if not all

(as applicable), of those factors in context of a prior disclosure. See 343 F.Supp.2d at 1343-44. As

in that case, this Court is confronted with appeals to exercise discretion to determine the appropriate

amount of the penalty, if any, and the parties’ collective assertion that there are no genuine issues

of material fact to be resolved by a trial. Undoubtedly, the parties would rather that this matter be

summarily resolved, but the reality is that the parties argue contrary interpretations of fact. As

observed in ITT Industries:

                The Court cannot undertake this analysis on summary judgment. Because the
                Court has discretion to determine the appropriate penalty amount, . . . the
                Court is required to weigh evidence, make credibility determinations, and
                draw inferences from the facts, functions strictly delegated to a fact-finder or
                jury. . . . As the Court cannot properly perform these functions on summary
                judgment, the Court must deny the parties’ motions on this particular issue
                and order a trial.

Id. The cross-motions at bar are therefore denied, and the plaintiff is hereby ordered to set this

matter for trial.
Court No. 03-00223                                         Page 7



SO ORDERED.



                            __/s/_R. KENTON MUSGRAVE, JUDGE_____
                                  R. KENTON MUSGRAVE, JUDGE

Dated: January 26, 2005
       New York, New York
                                           ERRATA


United States v. National Semiconductor Corporation, Court No. 03-00223, Slip Op. 05-9, dated
January 26, 2005:


       Page 1: substitute Gary Graff for Scott McBride as the plaintiff’s of counsel.

       Line 2, correct “undevaluations” to “undervaluations.”


January 31, 2005
