                                          Slip Op. 06-73

                UNITED STATES COURT OF INTERNATIONAL TRADE

______________________________
                              :
UNITED STATES,                :
                              :
                  Plaintiff,  :
                              :
v.                            :               Court No. 02-00646
                              :               Before: Judge Judith M. Barzilay
OPTREX AMERICA, INC.,         :
                              :
                  Defendant. :
______________________________:


                          MEMORANDUM OPINION AND ORDER

[Defendant’s Motion for Partial Summary Judgment is denied.]

                                                                               Dated: May 17, 2006

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, (Patricia M.
McCarthy), Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice (Stephen C. Tosini); Frederick B. Smith, Assistant Chief Counsel, Bureau of Customs
and Border Protection, of counsel, for the plaintiff.

Sonnenberg & Anderson (Steven P. Sonnenberg), M. Jason Cunningham, of counsel, for the
defendant.


       Barzilay, Judge:    In this 19 U.S.C. § 1592 penalty action based on a claim of

negligence, discovery has been completed, and Defendant, Optrex America, Inc. (“Optrex”),

moves pursuant to USCIT Rule 56 for partial summary judgment against Plaintiff, United States

(specifically, the United States Bureau of Customs and Border Protection) (“Customs” or

“government”). Arguing that there are no genuine issues of material fact, Optrex claims that it is

entitled to a judgment as a matter of law on the issue of its exercise of reasonable care in
Court No. 02-00646                                                                         Page 2


classifying subject merchandise. Customs counters that summary judgment is not appropriate

because there are issues of material fact with respect to Optrex’s exercise of reasonable care.

Pursuant to USCIT Rule 56(h), Optrex filed its Statement of Material Facts As to Which There

Are No Genuine Issues to Be Tried (“Optrex Statement of Facts”), and the government filed its

Counterstatement of Material Fact [sic] (“Gov’t Statement of Facts”). The court has exclusive

jurisdiction over this matter pursuant to 28 U.S.C. § 1582, which provides for judicial review of

civil penalties assessed under 19 U.S.C. §1592. Because there remain genuine issues of material

fact, Defendant’s motion is denied.

                       BACKGROUND FACTS AND PROCEDUR AL HISTORY

        The government initiated this action in October 2002, claiming that between October 12,

1997, and June 29, 1999, Optrex introduced into the commerce of the United States certain liquid

crystal display (“LCD”) articles by means of negligent material false statements in violation of 19

U.S.C. § 1592. Specifically, Plaintiff claims that the LCD articles at issue1 were negligently



       1
          The government avers that the subject articles in this action consist of LCD panels.
Gov’t Statement of Facts ¶ 18 (stating that only LCD panels are at issue in this case); see Pl.’s
Resp. 3 (stating that “this case primarily involves LCD panels). In its response brief in
opposition to Defendant’s summary judgment, the government, however, seems to admit that
there is also a very small number of LCD character modules involved in this case. See Pl.’s
Resp. 24. Either side has yet to delineate which LCD products are precisely involved.
        It should be noted that initially Customs’ complaint included LCD modules classifiable
under heading 8531, HTSUS; the government later amended its complaint to correct for clerical
mistakes and to exclude graphic LCD modules. See Def.’s Reply 13; Am. Compl.; 2nd Am.
Compl. According to Optrex’s chief engineer, Mr. Houck, LCD panels – also known as glass
sandwiches, glass panels or LCD glass panels – consist of two layers of glass, have no on-board
drivers, and function only by receiving codes from a computing unit. See, e.g., Houck Dep. 17:2-
10, Jan. 14, 2004. LCD modules, on the other hand, are equipped with on-board electronic
drivers. See Houck Dep. 23:24-15 (testifying that “the addition of some sort of row or column
driver” makes “an LCD module distinct from an LCD panel.”).
Court No. 02-00646                                                                        Page 3


misclassified under heading 8531, Harmonized Tariff Schedule of the Untied States (“HTSUS”),

instead of heading 9013, HTSUS, in violation of the Federal Circuit’s decision in Sharp

Microelecs. Tech., Inc. v. United States, 122 F.3d 1446 (Fed. Cir. 1997). See Compl. ¶¶ 10-12

The parties do not dispute that as entered, the subject LCDs were classified under heading 8531,

HTSUS. Optrex Statement of Facts ¶ 19; Gov’t Statement of Facts ¶ 19.

       Customs’ investigation into Optrex’s classification of imported LCDs commenced in

June 1998. Gov’t Statement of Facts ¶ 16. After notifying Optrex of the investigation in April

1999, Customs began to review Optrex’s import practices by interviewing employees and

analyzing entry documents. Optrex Statement of Facts ¶¶ 30-34. During the investigation,

Optrex’s counsel maintained that Optrex had administered its import program properly and

acknowledged that although Customs’ review may show some areas of noncompliance, it also

illustrated that Optrex overpaid duties to U.S. Customs for past entries. Letter to Darrel E.

Woodard, Nov. 3, 1999. Subsequently, Optrex provided Customs with a “decision tree”

purporting to show the classification method Optrex used during the time period under review.

Letter to Frank Corace, Nov. 24, 1999, Def.’s S.J. Mem. Ex. B (“November 1999 letter”).

        Pursuant to 19 U.S.C. § 1592(b)(A)(i)-(vii), Customs issued a pre-penalty notice in May

2002, which alleged that Optrex’s negligence resulted in a violation of section 1592 and claimed

a $ 2,033,562.10 loss of revenue. Customs demanded a monetary penalty of $ 4,067,124.20.

Def.’s S.J. Mem. Ex. I. The pre-penalty notice charged Optrex with providing insufficient

information in the entry documents to enable Customs to determine the correct classification,

charging as follows: “During the period July 1997 through June 1999, Optrex . . . filed 991
Court No. 02-00646                                                                            Page 4


entries for merchandise that included LCD panels and components subject to classification in

heading 9013, HTSUS. At the time of entry, the LCD panels and components were classified in

HTSUS 8531 on the entry documents submitted to Customs.” Def.’s S.J. Mem. Ex. I.. In

response to the pre–penalty notice, Optrex claimed that it had exercised reasonable care by

consulting its counsel, its broker, and Customs about the correct classification of its products.

Hr’g Ex.2 H10 at 7. Customs rejected Optrex’s reasonable care defense on the basis “that

reliance on a broker or exporter alone may not be sufficient to show that an importer exercised

reasonable care.” Hr’g Ex. H12 at 5 (citing United States v. Golden Ship Trading Co., 25 CIT

40, (2001) (not reported in F. Supp. 2d)).

       As a result of discovery in this litigation, the government claims that it unearthed

documentary evidence (specifically, attorney-client communications), demonstrating that Optrex

disregarded continuous advice of counsel to correctly classify the subject entries under heading

9013, HTSUS, and that Optrex “contemporaneously kept a separate account on its books and

records reflecting the higher (correct duty rate) despite the fact that Optrex chose to pay the

(incorrect) lower duty rate in contravention of counsel’s express advice” – evidencing that

Optrex knew how to correctly classify LCD products. Pl.’s Resp. 6. Before the close of

discovery in this matter, Plaintiff deposed Optrex’s present employees, Ms. Marsh, Mr. Houck,



       2
         The court held an evidentiary hearing on February 17, 2005, regarding the government’s
allegation that it discovered new evidence to pursue a fraud claim. The court denied Plaintiff’s
motion to amend its complaint to add two additional claims, fraud and gross negligence, based
on a statutory interpretation of 19 U.S.C. § 1592. See United States v. Optrex Am., Inc., Slip Op.
05-160, 2005 WL 3447611 (CIT Dec. 15, 2005).
        At the court’s hearing on February 17, 2005, the court admitted certain exhibits into
evidence. Those exhibits are cited to as “Hr’g Ex.” followed by a number.
Court No. 02-00646                                                                          Page 5


and Ms. Tolbert, and former Optrex employee Ms. Terese Banas. Gov’t Statement of Facts ¶ 42.

The government’s claim of negligence centers around three letters from Optrex’s counsel to

Optrex and relevant deposition testimony.

       A. The October 1997 Letter

       In a October 1997 letter, Optrex’s counsel advised Optrex to follow Sharp, 122 F.3d

1446, a classification case holding that certain LCD glass panels should be classified under

HTSUS 9013. Hr’g Ex. H1 at 4. The letter stated that “the Sharp decision may have an impact

on the manner in which certain LCD displays imported by Optrex are classified,” emphasized

that it was Optrex’s “responsibility to determine the proper tariff classification of merchandise

which it imports,” and recommended that Optrex review its product line to ensure it did not

include any “glass only” LCD panels. Hr’g Ex. H1 at 1. Based on the Sharp decision, Optrex’s

counsel saw a strong argument that such “LCD glass panels are properly classifiable within tariff

subheading 9013” and advised Optrex to “immediately begin classifying any such LCD glass

panels within . . . 9013.” Hr’g Ex. H1 at 1. Counsel also advised Optrex to seek a binding ruling

from Customs to determine whether Sharp affected all types of “glass only” panels. Hr’g Ex. H1

at 1. The government avers that this October 1997 letter demonstrates that Optrex disregarded

the continuous advice of its counsel to correctly classify the subject entries under heading 9013,

HTSUS.

       B. The February 1999 Letter

       In a February 1999 letter, Optrex’s counsel inquires whether “the accrual rate . . . relate[s]

to the classification of imported merchandise.” Hr’g Ex. H2 at 1. The government claims that
Court No. 02-00646                                                                          Page 6


this letter demonstrates that “Optrex maintained an ‘import accrual’ in 1997 and 1998, based

upon the correct rate of duty, HTS 9013, for the subject merchandise.” Pl.’s Resp. 6 (citing Hr’g

Ex. H2).

       C. The May 1999 Letter

       In a third letter, dated one month after Customs notified Optrex that it was under

investigation, counsel provided Optrex with “the decision tree.” Hr’g Ex. H3 at 1. According to

Optrex’s counsel, the decision tree would “provide Optrex the most favorable method of

classifying products” and was “intended to satisfy both Customs and Optrex in the pursuit of

proper classification.” Hr’g Ex. H3 at 1. The government argues that the “decision tree” was

specifically created “to satisfy Customs” and supports this position by arguing that the tree

presents a classification scheme different from the one outlined in the October 1997 letter.3

Because the October 1997 letter advised Optrex to consider the implications of the Sharp


       3
         The October 1997 letter included a summary of how counsel at that time believed Optrex
classified its products based on a six-paragraph classification scheme developed by counsel and
Customs in 1995. Hr’g Ex. H1 at 2. According to the first paragraph, LCD panels and modules
dedicated to a specific use fell under HTSUS 8531. Hr’g Ex. H1 at 2. The second paragraph
stated that modules and panels with less than 80 lines were classifiable under HTSUS 8531.
Hr’g Ex. H1 at 2. Paragraphs 3-5 dealt with specific Customs rulings, and the last paragraph
advised that all other panels and modules should be classified under HTSUS 9013. Hr’g Ex. H1
at 2.
        According to counsel, the decision tree consists of three levels. The first contains duty
free products classifiable under HTSUS 8471 and 8473. (Products classifiable under Level I are
not at issue in this case.) The second level includes “electric sound or visual signaling apparatus”
classifiable under HTSUS 8531. Hr’g Ex. H3 at 1-2. The diagram for the second level specifies
four subheadings of HTSUS 8531 accompanied with examples. It includes subheading
8531.20.00 covering “LCD’s [sic] with 80 characters or less.” Hr’g Ex. H3. Counsel noted that
“Level II products include the subheadings which Optrex is already utilizing for classification
purposes.” Hr’g Ex. H3. All other products, primarily glass panels that could “not be classified
elsewhere, fell within Level III and corresponded to various higher duty rates under HTSUS
9013.” Hr’g Ex. H3 at 2.
Court No. 02-00646                                                                          Page 7


decision, while reaffirming its earlier classification advice given in 1995, and the decision tree

was “created” in May 1999, the government believes that Optrex knowingly misrepresented to

Customs that since 1994 it followed a classification methodology contained in the “decision

tree.” See Pl.’s Resp. 9.

       The government’s disagreement with Defendant’s Statement of Material Facts As to

Which There Are No Genuine Issues to Be Tried is best presented by quoting in pertinent part the

paragraphs of the government’s counterstatement:

               37. Optrex cooperated with Customs [sic] underlying penalty
               investigation by providing access to its files and personnel.4
               We dispute this proposed factual finding. Optrex impeded the
       investigation as long as possible by misleading investigators and failing to turn
       over records sought by the summons. As an example, for months, Optrex
       represented to Customs that Mr. Houck was the expert on classification. It was not
       until the March 18, 2002 interview with investigating agents that the we [sic]
       learned that he had no knowledge of classification matters. [Houck Dep. at 3-5.]
               ....
               44. Optrex provided information sufficient for Customs to determine
               classification of the subject articles.
               We dispute the proposed finding. Optrex stalled and refused to cooperate
       in the investigation until threatened with civil enforcement litigation before finally
       providing substantive compliance to the Customs summons. . . .

                45. Customs Port of Detroit created a “shipper file” with information
                relevant to the classification of Optrex’s imported LCD’s [sic].
                Import Specialist Frank Corace testified about these records at the
       evidentiary hearing upon our motion to amend. [Hr’g Tr. at 44-45.] The “shipper
       file” itself provides the best evidence of its contents, and Mr. Corace’s testimony
       provides the best evidence of his use of the Optrex “shipper file.” Thus, we
       dispute this proposed finding.

               46. The information contained in the shipper file was sufficient for
               Customs to determine whether classification of imported LCD’s [sic] was


       4
       Each paragraph in the government’s counterstatement of facts begins with quoting of
Defendant’s averments, which are italicized for the reader’s convenience.
Court No. 02-00646                                                                             Page 8


              correct.
              We dispute the proposed finding. Optrex imported a wide variety of
      products. Some of these products were new and the information in the shipper file
      was dated. Only in a limited number of cases was this shipper file information
      sufficient to ascertain the proper classification. See generally Corace Dec. [sic] at
      ¶¶ 1-6.

             47. Before the underlying investigation began, Optrex had provided
             Customs with Optrex’s LCD product catalog.
             We dispute this proposed finding as it implies that the catalog was a
      “current” catalog. Instead, the catalog reflected Optrex's product line as of 1995,
      which was well before the entries relevant to this case were made.

              48. LCD product catalogs are relevant to the classification of LCD’s
              [sic].
              We dispute this proposed finding because it is a legal conclusion which
      requires no response. Moreover, Optrex does not claim that the specific 1995
      catalog that it provided was relevant to the classification of its 1997 through 1999
      entries of LCD panels that are at issue in this case.

             49. Before the underlying investigation began, Optrex had provided
             Customs with Optrex’s LCD part number key.
             We dispute this proposed finding as much of the part number key was
      dated and not reflective of the full universe of products. In addition, not all fields
      were complete on the list. Accordingly, we dispute this proposed finding.
      Moreover, Optrex does not certify the completeness of its number key. See
      generally Corace Dec. [sic] at ¶¶ 1-6.

             50. Optrex’s LCD part number key is relevant to the classification of the
             subject LCD’s [sic].
             We dispute this proposed finding because it is a legal conclusion which
      requires no response.
             ....
             53. Optrex furnished information sufficient to permit Customs to
      determine the final classification of the subject LCD’s [sic].
             We dispute this proposed finding because it is a legal conclusion which
      requires no response. Moreover, Optrex does not address when or how it allegedly
      provided information concerning classification of the subject LCD panels. Indeed,
      Optrex admits by omission that the entry documents that it submitted to Customs
      were insufficient to determine the classification of the subject LCD panels.

             54. Optrex consulted with its licensed customs broker regarding the
Court No. 02-00646                                                                         Page 9


               classification and entry of the subject articles.
               We dispute this finding because the only evidence in this case
      demonstrated that this statement is patently inaccurate. Specifically, Ann
      Fitzpatrick, the manager of administration and accounting for Nippon Express in
      Detroit, Fitzpatrick Dep. at 16:17-18 (available at Tosini Decl. at Ex. 4), made
      clear that Optrex never sought Nippon Express' advice and that Optrex had
      directed Nippon Express to classify Optrex's LCD panels under HTS Ch. 8531.
      Specifically, when asked “how often would Optrex personnel come to you for
      advice on the property clarification concerning LCD modules and panels?,” Ms.
      Fitzpatrick answered: “They wouldn't.” Id. at 48:24-49:2; see also id. at
      49:14-50:23 and at Ex. 2 (testimony and Optrex documents that Optrex provided
      Nippon Express with the HTS codes to be used for Optrex's LCDs); id. at 53
      (establishing that the employees supervised by Ms. Fitzpatrick did not meet
      independently with Optrex with respect to classification of LCDs); id. at
      55:23-56:4 (testifying that she did not provide LCD classification advice to
      Optrex); id. at 66:18-67:7 (“just want to clarify that Optrex is a different -- than
      our other clients. Like I said, as far as classification we -- I never advised them on
      their LCD not knowing what the merchandise is. But as far as other
      classifications, like I said, if they received books, pamphlets, something out of the
      ordinary, we would discuss the classification. Q. And why wouldn't you advise
      them concerning classification of LCD products? A. Because I have -- I know
      they're very complex as far as their nature, they're programmed or not
      programmed, or something about how many characters, or their application, and I
      have no knowledge as to what they do with their -- you know, how that's applied
      to their merchandise").
               Ms. Fitzpatrick also testified that she was not provided with Optrex's
      so-called decision tree until 1999 or 2000, id. at 62 and at Ex. 10 thereto, and that
      neither Optrex nor Optrex's counsel sought her advice concerning the so-called
      decision tree. Id. at 64:4-12.

              55. Optrex consulted with Customs attorneys regarding the classification
              and entry of the subject articles.
              We agree that “Optrex consulted with Customs attorneys regarding the
      classification and entry of the subject articles.” However, Optrex disregarded the
      advice that it was given and then took affirmative steps to cover up this fact
      during Customs’ investigation and Court proceedings. Specifically, counsel
      explicitly advised Optrex to classify glass panel displays -- the subject
      merchandise in this case -- under HTS 9013. Exs. H-24; H-1 at 2,4; and H-2. The
      new information also revealed that Optrex contemporaneously kept a separate
      account on its books and records reflecting the higher (correct duty rate) despite
      the fact that Optrex chose to pay the (incorrect) lower duty rate in contravention of
      counsel's express advice. Specifically, a February 17, 1999, letter from counsel
Court No. 02-00646                                                                           Page 10


       reveals that Optrex maintained an “import accrual” in 1997 and 1998, based upon
       the correct rate of duty, HTS 9013, for the subject merchandise. Ex. H-2. The only
       testimony of any Optrex employee involved in the classification of the LCD
       panels subject to this action further demonstrates that Optrex based its import
       accrual upon the known correct rate of duty for its merchandise:
               Q: So what Optrex did . . . was it told Customs when it classified the
               merchandise coming in that it was classifiable at the lower rate, however,
               it set aside the amount of duties that would be owed if it were paying the
               higher rate into a separate account . . . [f]or specific products?
               A: Yep.
               Q: And those specific products were LCD displays?
               A: That's all we did, that's what was imported for Optrex, was LCD
               displays.
       Banas Dep.5 at 80:7-21 (available at Tosini Dec. [sic] at Ex. 3).
               Q: Why didn't Optrex just import the merchandise under the higher code if
               it believed that that was the duties that would be owed?
               A: That was not my decision to do that. That was the decision of the
               president of the company and the sales director at the time.
       Id. at 81:6-11.
               Q: . . . You stated that the effect of the rate of the import accrual was really
               to govern what the parent company would see about the subsidiary's
               profits and losses, right?
               A: Yes.
       Id. at 95:18:22.
               Likewise, Optrex affirmatively concealed its knowledge that the subject
       entries should have been classified under HTS 9013, throughout the investigation
       and this case.

               56. Optrex sought guidance from the Customs service by submitting a
               detailed classification process letter to Import Specialist Frank Corace in
               November of 1999.
               We dispute this proposed finding as this was not the purpose of this
       document. Optrex is referring to the decision tree it created in response to the
       investigation underlying this litigation. . . . The entries had already been filed by
       the time this document was created. The letter was an effort to respond to the
       investigation - not to seek Customs’ guidance. Accordingly, we dispute the
       proposed finding and it should be disregarded.



       5
        Ms. Banas is a former Optrex employee, who during the relevant time period (1997-
1998) had supervisory responsibility for Optrex’s accounting personnel and operations. Banas
Dep. 19:1-13.
Court No. 02-00646                                                                       Page 11


              57. Optrex consulted engineer Allen Houck for technical information
              related to the classification of the subject LCD’s [sic].
              We dispute this proposed finding as it implies that Mr. Houck had some
      knowledge of classification matters when he did not. [Referring to response to no.
      59]. Accordingly, we dispute this proposed finding and it should be rejected.
              ....
              59. Optrex relied upon the specialized technical knowledge of in-house
              experts, including engineer Allen Houck, regarding classification of the
              subject articles.
              We dispute this finding because the only evidence in this case
      demonstrates that this statement is inaccurate. The only employee identified in
      this proposed finding testified that he had no involvement in the creation of the
      so-called decision tree and had no knowledge of how a classification decision
      would be made using that document:
              Q: What, if any, involvement did you have in the creation of this decision
              tree?
              A: I didn’t have any involvement in the creation of this.
              Q: Do you know how a classification decision here at Optrex is made
              utilizing this decision tree as depicted in Exhibit 6 before you?
              A: No, I don’t.
      Houck Dep. at 14:5-11.

              60. Optrex created a classification decision tree for imported LCD’s [sic].
              We dispute this proposed finding because the decision tree is a
      self-serving document created after the entries at issue in this case were filed for
      the purpose of creating a facade of compliance with Optrex's reasonable care
      responsibilities. . . .

             63. Customs provided Optrex with no written response to Optrex’s
      decision tree as provided in the letter of November 1999.
             We dispute this proposed finding. At the hearing, we demonstrated that
      Customs responded [sic] Optrex’s letter of November 1999 with a number of
      summons’ [sic] and written requests for information substantiating whether
      Optrex actually followed its so-called “decision tree.” See, e.g., Ex. H-5
      (summonses issued to Optrex); Ex. H-8 (letter from Customs to Optrex of
      November 2, 2001, requesting information concerning Optrex’s so-called
      “decision tree”).
             ....
             67. Customs 2001 informed compliance publication regarding the
             classification of LCD’s [sic] was modified by the agency in 2004.
             We dispute this proposed finding since the publications are the best
      evidence of its contents. Accordingly, we dispute the proposed finding and it
Court No. 02-00646                                                                          Page 12


       should be disregarded.
              ....
              69. Optrex formulated and applied an LCD classification process that
              recognized that LCD’s [sic] are prima facie classifiable under HTSUS
              chapters 84, 85, and 90.
              We dispute this proposed finding because it is contradicted by the
       evidence of this case and there is absolutely no evidence to support this proposed
       finding. [Referring to responses to nos. 54, 55, 57, and 59.] Accordingly, we
       dispute the proposed finding and it should be disregarded.

Gov’t Statement of Facts ¶¶ 37, 44, 45, 46, 47, 48, 49, 50, 53, 54, 55, 56, 57, 59, 60, 63, 67, 69.

       In its motion for partial summary judgment, Optrex asserts that there are two parts to a 19

U.S.C. § 1592 action based on negligence: 1) the Government’s proof of an action or inaction

and 2) a determination of the level of culpability. See Def.’s S.J. Br. 9. When Optrex filed its

motion for partial summary judgment, it maintained that the first part was not appropriate for

summary judgment because in a parallel classification case, the Court had not yet decided the

proper classification of products at issue. See Optrex Am., Inc. v. United States, Court. No. 00-

08-00382. Since Optrex filed the pending motion, the Court has adjudicated that classification

case, finding for the government on all issues of classification of the subject merchandise. See

Optrex Am., Inc. v. United States, Slip Op. 06-26, 2006 WL 473896 (CIT Feb. 27, 2006), appeal

docketed, No. 2006-1375 (Fed. Cir. May 2, 2006). There are no arguments before the court that

the outcome in the classification case has an effect on the present case. Regardless, Plaintiff

correctly observes that Defendant essentially seeks summary judgment because the exercise of

reasonable care is a complete defense to this action, as explained below. See Pl.’s Resp. 17 n.4.
Court No. 02-00646                                                                           Page 13


                      I. STANDARD OF REVIEW AND SUMMARY JUDGMENT

       Summary judgment is appropriate when “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” USCIT R. 56(c)

(emphasis added); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P.

56(c)) (summary judgment is appropriate “if the pleadings [and the discovery materials] show

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

judgment as a matter of law.”) “[I]f the dispute about a material fact is ‘genuine,’ that is, if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party,” summary

judgment will not be awarded. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “As

to materiality, the substantive law will identify which facts are material. Only disputes over facts

that might affect the outcome of the suit under the governing law will properly preclude the entry

of summary judgment.” Id. The court must view the evidence, draw all reasonable inferences in

favor of the non-moving party, and determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Id. at 259 (internal citation omitted). Accordingly, “a court has an

independent obligation to determine, on the basis of parties’ submissions, whether a movant is

entitled to judgment as a matter of law.” United States v. T.J. Manalo, Inc., 26 CIT 1117, 1119,

240 F. Supp. 2d 1255, 1257 (2002). “[T]he party opposing summary judgment does not have the

burden of showing that there is a genuine issue for trial until the movant has produced

evidentiary material showing that there is no genuine issue as to any material fact and he is
Court No. 02-00646                                                                           Page 14


entitled to judgment as a matter of law.” 2361 State Corp. v. Sealy, Inc., 402 F.2d 370, 375 (7th

Cir. 1968).

       If summary judgment cannot be rendered upon the whole case, partial summary judgment

may be granted in some circumstances. See USCIT R. 56(d). “Partial summary judgment is

appropriate ‘when it appears that some aspects of a claim are not genuinely controvertible [and]

. . . genuine issues remain regarding the rest of the claim.’” Ugg Int'l, Inc. v. United States, 17

CIT 79, 83, 813 F.Supp. 848, 852 (1993) (ellipsis in original).

       In actions brought by the United States to recover monetary penalties “all issues,

including the amount of the penalty, shall be tried de novo.” 19 U.S.C. § 1592(e)(1) (2000).

                                          II. DISCUSSION

       A. Negligence and the Defense of Reasonable Care

       Section 1592 provides that “no person through fraud, gross negligence, or negligence may

enter, introduce, or attempt to enter or introduce any merchandise into the United States by

means of a material false document or statement, or a material omission.” United States v. Jac

Natori Co., 108 F.3d 295, 298 (Fed. Cir. 1997) (citing 19 U.S.C. § 1592(a)). The Department of

Justice can bring a “civil penalty” action pursuant to 19 U.S.C. § 1592(e) to recover a penalty

claim it sought on the administrative level. United States v. Optrex Am., Inc., Slip Op. 05-160,

2005 WL 3447611, at *7 (CIT Dec. 15, 2005); see 19 U.S.C. § 1592 (2000). When the monetary

claim brought by the government is based on negligence, “the United States shall have the

burden of proof to establish the act or omission constituting the violation, and the alleged

violator shall have the burden of proof that the act or omission did not occur as a result of
Court No. 02-00646                                                                            Page 15


negligence.” 19 U.S.C. § 1592(e)(4). Thus, section 1592(e)(4) “derogates from common law

negligence (i.e., duty, breach, causation, and injury) by shifting the burden of persuasion to the

defendant to show lack of negligence.” United States v. Ford Motor Co., 29 CIT ___, ___, 395 F.

Supp. 2d 1190, 1208 (2005). In particular, Customs defines negligence as a violation that

       results from an act or acts (of commission or omission) done through either the
       failure to exercise the degree of reasonable care and competence expected from a
       person in the same circumstances either: (a) in ascertaining the facts or in drawing
       inferences therefrom, in ascertaining the offender's obligations under the statute;
       or (b) in communicating information in a manner so that it may be understood by
       the recipient. As a general rule, a violation is negligent if it results from failure to
       exercise reasonable care and competence: (a) to ensure that statements made and
       information provided in connection with the importation of merchandise are
       complete and accurate; or (b) to perform any material act required by statute or
       regulation.
19 C.F.R. Pt. 171, App. B(C)(1) (2005); see H.R. Rep. No. 103-361(I) (1993) (stating same).

Thus, the court does not have to find scienter in a negligence case. See Ford Motor, 395 F. Supp.

2d at 1208; United States v. Hitachi Am., Ltd., 21 CIT 373, 380, 964 F. Supp. 344, 355-56

(1997), aff’d in part, rev’d in part on another grounds, 172 F.3d 1319 (Fed. Cir. 1999) (quoting

19 C.F.R. Pt. 171, App. B(B)(1) with approval).

       To meet its burden of proof, “Customs must establish by a preponderance of the evidence

that the materially false act or omission occurred.” Ford Motor, 395 F. Supp 2d at 1208; see also

United States v. Washington Int’l Ins. Co., 29 CIT ___, ___, 374 F. Supp. 2d 1265, 1270, 1275

(2005). “A preponderance of the evidence is . . . [e]vidence which is . . . more convincing than

the evidence . . . offered in opposition to it . . . .”6 Greenwich Collieries v. Director, OWCP, 990

       6
        “Unlike other standards of proof such as reasonable doubt or clear and convincing
evidence, the preponderance standard ‘allows both parties to share the risk of error in roughly
equal fashion,’ except that ‘when the evidence is evenly balanced, the [party with the burden of
Court No. 02-00646                                                                        Page 16


F.2d 730, 736 (3d Cir. 1993), aff’d, 512 U.S. 267 (1994). The importer then bears the burden of

showing that it did not act negligently. Limited case law explicates how this shift of burden

operates and what the alleged violator must establish to disprove negligence as a legal

conclusion. See, e.g., Ford Motor, 395 F. Supp 2d at 1208; United States v. Rockwell Int’l Corp.,

10 CIT 38, 43 n.5, 628 F. Supp. 206, 211 n.5 (1986). For the purposes of administrative

proceedings, Customs’ guidelines provide how an importer can demonstrate that it did not act

negligently – by showing that it acted with “reasonable care”:7

       Reasonable Care. General Standard: All parties, including importers of record or
       their agents, are required to exercise reasonable care in fulfilling their
       responsibilities involving entry of merchandise. These responsibilities include, but
       are not limited to: providing a classification and value for the merchandise;
       furnishing information sufficient to permit Customs to determine the final
       classification and valuation of merchandise; taking measures that will lead to and
       assure the preparation of accurate documentation, and determining whether any
       applicable requirements of law with respect to these issues are met. In addition, all
       parties, including the importer, must use reasonable care to provide accurate
       information or documentation to enable Customs to determine if the merchandise
       may be released. Customs may consider an importer's failure to follow a binding
       Customs ruling a lack of reasonable care. In addition, unreasonable classification
       will be considered a lack of reasonable care (e.g., imported snow skis are
       classified as water skis). Failure to exercise reasonable care in connection with the
       importation of merchandise may result in imposition of a section 592 penalty for
       fraud, gross negligence or negligence.


19 C.F.R. Pt. 171, App. B(D)(6). The drafting committee of the Mod Act noted its expectations


persuasion] must lose.’” Metro. Stevedore Co. v. Rambo, 521 U.S. 121, __, 117 S. Ct. 1953,
1963 n.9 (1997) (internal citations omitted).
       7
        The “reasonable care” requirement was added to 19 U.S.C. § 1484, which governs
importers’ obligations with respect to entry of merchandise, by the Customs Modernization and
Informed Compliance Act (“Mod Act”), passed as part of the North American Free Trade
Agreements Implementation Act, Pub. L. 103-182 § 637, Sect. 621, 107 Stat. 2057 (1993).
Customs then extended this concept of reasonable care to penalty cases.
Court No. 02-00646                                                                         Page 17


about an importer’s actions in fulfilling its burden of reasonable care:

       In meeting the “reasonable care” standard, the Committee believes that an
       importer should consider utilization of one or more of the following aids to
       establish evidence of proper compliance: seeking guidance from the Customs
       Service through the pre-importation or formal ruling program; consulting with a
       customs broker, a customs consultant, or a public accountant or an attorney; or
       using in-house employees such as counsel, a customs administrator, or if
       valuation is an issue, a corporate controller, who have experience and knowledge
       of customs laws, regulations and procedures8. . . .


H. Rep. No. 103-361 at 120, 1993 U.S.C.C.A.N. 2670 (1993).

       This Court has adopted Customs’ guidance in evaluating whether the alleged violator

meets its burden of proof that it did not act with negligence. See United States v. Pan Pac.

Textile Group, Inc., 29 CIT ___, ___, 395 F. Supp. 2d 1244, 1255 n.19 (2005) (stating that

whether importer was negligent turns on whether it exercised reasonable case, and citing to 19

C.F.R. Pt. 171, App. B(C)(1)); Ford Motor, 395 F. Supp. 2d at 1208 (citing to 19 C.F.R. pt. 171,

App. B(B)(1) for the definition of negligence, stating that defendant bears burden of showing that

it “exercised reasonable care under the circumstances and that the alleged violation was not

caused by its negligence,” and concluding that “negligence does not require the trier of fact to

determine intent”). Importantly, the defense of reasonable care operates as a complete defense to



       8
       The drafting committee of the Mod Act stated that
      The following are two examples of how the reasonable care standard should be
      interpreted by Customs: (a) the failure to follow a binding ruling is a lack of
      reasonable care; and (b) an honest, good faith professional disagreement as to
      correct classification of a technical matter shall not be lack of reasonable care
      unless such disagreement has no reasonable basis (e.g. snow skis are entered as
      water skis).
H.R. Rep. No. 103-361 at 120.
Court No. 02-00646                                                                          Page 18


a negligence claim. See Ford Motor, 395 F. Supp 2d at 1208-09 (finding negligence where

importer failed to declare assists on its entry documents or thereafter and failed to declare that

values stated in entry documents were not final); United States v. Yuchius Morality Co., 26 CIT

1224, 1231 (2002) (not reported in F. Supp.) (finding negligence where importer lacked record

keeping and showed no effort to fully and accurately account for relevant transactions); United

States v. Golden Ship Trading Co., 25 CIT 40, 47-48 (2001) (not reported in F. Supp.) (finding

negligence where importer failed to exercise reasonable care even though she demonstrated that

she relied on information provided by exporter and licensed customshouse broker because she

did not even attempt to verify or ascertain correctness of information contained in entry

documents regarding merchandise’s country of origin as it was supplied by exporter and provided

by broker).

       B. Issues of Material Fact As to Optrex’s Reasonable Care Arguments

         Optrex’s defense is premised on Customs’ guidelines on the standard of reasonable care.

In particular, Optrex argues 1) that it consulted with Customs professionals, 2) that it cooperated

with Customs in the underlying administrative proceedings, 3) that it attempted to comply with

Customs laws while Customs failed to furnish Optrex with adequate guidelines on classifying the

subject merchandise, 4) that its classification policies reflect Optrex’s professional disagreement

with Customs, and 5) that Optrex followed its decision tree created in good faith to comply with

Customs laws and regulations. In deciding whether Optrex met its burden in establishing that it

exercised reasonable care, the court will evaluate the evidence in connection with each of

Optrex’s arguments.
Court No. 02-00646                                                                           Page 19


       1. Optrex’s Claim That It Consulted with Customs Professionals

       Optrex claims that it exercised reasonable care in classifying the subject LCDs because it

consulted with customs professionals including a licensed customs broker, in-house technical

experts, and legal counsel. Def’s Mem. 13 (citing Banas Dep. 25-26, 36). The court, at this

point, cannot rule on this issue on summary judgment because each party has put forth sufficient

evidence to place it in dispute. Specifically, Ms. Banas, as one of the personnel responsible for

final classification of the company’s products, testified that she consulted with Nippon Express

regarding classification of the company’s products. See Banas Dep. 36. However, controverting

evidence raises issues as to whether Optrex consulted its Customs broker. See Fitzpatrick Dep.

48:24-49:2, Dec. 10, 2003 (testifying that Optrex did not seek advice regarding classification of

its LCD products from Nippon Express,9 the only Customs Broker Optrex indicated that it had

used in response to Customs’ questionnaire); Fitzpatrick Dep. 64 (testifying that she did not see

the decision tree until 1999). Because of this inconsistent testimony, the court cannot conclude

summarily that Defendant’s evidence outweighs Plaintiff’s evidence. In such cases, credibility of

testimony is best tested through the method of cross-examination.10


       9
         In its reply brief, Defendant offered another piece of evidence – a letter Nippon Express
wrote to Optrex’s predecessor, Asahi Glass, dated August 1991, stating that tariff under heading
8531 is the correct tariff. See Def’s Reply Br. Ex. H. The relevance of this evidence to the time
period in this case is tenuous.
       10
           Personal examination at trial “(1) insures that the witness will give his statements under
oath - thus impressing him with the seriousness of the matter and guarding against the lie by the
possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the
‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to
decide the defendant's fate to observe the demeanor of the witness in making his statement, thus
aiding the jury in assessing his credibility.” Maryland v. Craig, 497 U.S. 836, 845-46 (1990)
(quoting California v. Green, 399 U.S. 149, 158 (1970) (footnote & quotations omitted)
Court No. 02-00646                                                                          Page 20


        Optrex’s claim that it relied on the knowledge of its in-house experts is vitiated by the

testimony of Mr. Houck, one of its experts, who testified that he was neither involved in the

creation of the decision tree, nor was aware of its application. Houck Dep. 14:5-11, Jan. 14,

2004. In addition, aside from a naked assertion that its “in-house personnel reviewed the relevant

technical drawings, specification, and sales information,” Def. S.J. Mem. 20, Optrex did not

provide other evidentiary support.11 See Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 398

(1986) (stating that in moving for summary judgment, or for directed verdict, appellant failed to

point to any evidence to support its claim).

        The record indicates that Optrex did in fact seek and receive classification advice from its


(brackets in original)).



        11
         Unsupported statements of fact are not sufficient to meet the movant’s burden on a
motion for summary judgment. See, e.g., Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888-89
(1990); Anderson, 477 U.S. at 249 (Movant cannot rest on his allegations to win summary
judgment “without ‘any significant probaitve evidence tending to support’” his case.) (citation
omitted). It should be noted that USCIT Rule 56(e) requires the movant to support its assertions
with admissible evidence and, therefore, lay out foundation for each piece of evidence. See
USCIT R. 56(e)
       Supporting and opposing affidavits [in support of motion for summary judgment]
       shall be made on personal knowledge, shall set forth such facts as would be
       admissible in evidence, and shall show affirmatively that the affiant is competent
       to testify to the matters stated therein. . . . The court may permit affidavits to be
       supplemented or opposed by depositions, answers to interrogatories, or further
       affidavits. When a motion for summary judgment is made and supported as
       provided in this rule, an adverse party may not rest upon the mere allegations or
       denials of the adverse party's pleading, but the adverse party's response, by
       affidavits or as otherwise provided in this rule, must set forth specific facts
       showing that there is a genuine issue for trial. If the adverse party does not so
       respond, summary judgment, if appropriate, shall be entered against the adverse
       party.
USCIT R. 56(e).
Court No. 02-00646                                                                           Page 21


Customs attorney. See, e.g., Hr’g Exs. H1, H2, H3. The government does not dispute this fact,

but instead argues that what was required of Optrex “at the very least is [to] actually follow its

attorney’s advice.” Pl.’s Resp. 20. Optrex claims that it followed its attorney’s advice pointing

to the decision tree.12 See Def.’s Reply 10. Aside from the decision tree, Optrex does not present

other evidence to buttress its assertion. However, the decision tree alone is not a highly

probative piece of evidence because it was prepared during the administrative investigation and,

therefore, arguably in response to Customs’ investigation. See Hr’g Ex. 3 (counsel informing

Optrex that “the ‘decision tree’ is intended to satisfy both Customs and Optrex in the pursuit of

proper classification”). In addition, the Mod Act’s legislative history is neither talismanic of

what constitutes exercise of reasonable case; nor is consulting a Customs professional a safe

harbor for importers. Rather, the Mod Act suggests means of establishing evidence of reasonable

care. Thus, consultation with an attorney is evidence of compliance; it is not compliance in itself.



       12
           It should be noted that the government effectively highlights that in its Statement of
Facts, Optrex claimed to have merely “consulted” with its licensed Customs broker and legal
counsel regarding the classification and entry of the subject merchandise and that Optrex “relied”
on the “specialized technical knowledge of in-house experts, including engineer Allen Houck.”
Optrex Statement of Facts ¶¶ 54-55, 59. Although Optrex’s word choices are noteworthy, they
have no probative value. In other words, “consulting” does not mean that Optrex did not attempt
to comply with attorney’s advice.
        In its reply brief, citing to a document admitted into evidence at the February 17, 2005,
hearing, Optrex stated that it believed that “the advice from counsel did not necessarily require
classification under Heading 9013 or 8531, but might be more appropriate under Chapter 84 as a
part of an automatic data processing machine. The document states,
        Our attorney Sonnenberg thinks we have good grounds to make an argument with
        Customs to keep the reclassified parts in question in a 2.7 percent category. Even
        if the Detroit Customs local office doesn’t accept our argument, we still have a
        chance to win at a higher level by asking for a ruling.
Def.’s Reply 9 (citing Hr’g Tr. 110; Hr’g Ex. H24). However, Optrex never sought a ruling from
Customs.
Court No. 02-00646                                                                           Page 22


Other evidence may, accordingly, contradict that indicia of compliance. Thus, in this case, there

is evidence that at least some entries at issue were classified contrary to the legal advice given.

See Hr’g Exs. H1, H2, H24 (supporting government’s claim that attorney’s advice was express in

that certain LCD panels were classifiable only under heading 9013, HTSUS).

       2. Optrex’s Argument That It Cooperated with Customs

       Optrex argues that it exercised reasonable care by cooperating with Customs. The record

shows that Customs’s officials interviewed three Optrex employees who had knowledge relevant

to the classification of imported LCDs. Optrex also claims that it gave Customs full access to its

files, allowing Customs to review the company’s product catalogs, part number keys, and

spreadsheets showing the end use of the LCDs. Def.’s S.J. Mem. 16-17. For example, Optrex

cites to the in-court testimony of Frank Corace, Customs’ import specialist responsible for

electronics in Detroit, stating that Optrex provided him with a parts catalog, which allowed him

to understand what the product was and thus to classify it. Hr’g Tr. 46-47.

       While there is evidence in the record supporting Optrex’s claim of cooperation, the

government pinpoints certain instances that weaken Optrex’s claim of cooperation. For example,

Ms. Banas testified that she could not remember whether she consulted with Customs concerning

classification of merchandise or sought any advice, and that she never read any Customs rulings

concerning the same or similar merchandise that Customs had published. Banas Dep. 27. In

addition, the company maintained import accrual accounts that arguably suggest that the importer

knew that certain LCD products were properly classifiable under a higher duty rate, and that it set

aside an “import accrual” reflecting the duties, which would be owed in the event of the
Court No. 02-00646                                                                           Page 23


discovery of the company’s incorrect classification practices. At the same time, the court notes

that Optrex’s accrual account is not an unusual accounting practice, and that it had been reviewed

by Optrex’s auditors. See Hr’g T. 83-94, 95-102, 106, 108-110. The court cannot decide its

significance on summary judgment.

       3. Informed Compliance and Shared Responsibility

       Optrex claims that Customs’ own inability to consistently classify the imported LCD

products shows the weakness of a penalty claim based on alleged misclassification. Optrex

argues that it followed Customs’s regulations and rulings as well as judicial decisions by way of

informed compliance. This argument is premised on Mod Act, Pub. L. 103-182 § 623, which

applied two new concepts to classification – informed compliance and shared responsibility13 –

requiring Customs to inform the trade community of its legal obligations through sharing and



       13
         These concepts appear in the legislative history underlying the Mod Act:
       The guiding principle in our discussions with the trade community is that of “shared
       responsibility”. Customs must do a better job of informing the trade community of
       how Customs does business; and the trade community must do a better job to assure
       compliance with U.S. trade rules.
       ....
       As a general statement, Customs supports the JIG concept of “informed compliance.”
       Importers have the right to be informed about Customs rules and regulations, and its
       interpretive rulings and directives, and to expect certainty that the ground rules would
       not be unilaterally changed by Customs without the proper notice and an opportunity
       to respond.

Customs Modernization and Informed Compliance Act: Hearing on H.R. 3935 Before the House
Comm. on Ways and Means, Subcomm. on Trade, 102d Cong. 91 (1992) (statement of
Commissioner Carol Hallett, United States Customs Service); see also S. Rep. No. 103-189 at 64
(1993) (“Title VI also implements the concept of ‘informed compliance,’ which is premised on
the belief that importers have a right to be informed about customs rules and regulations, as well
as interpretive rulings, and to expect certainty that the Customs Service will not unilaterally
change the rules without providing importers proper notice and opportunity for comment.”).
Court No. 02-00646                                                                            Page 24


communication of information. Optrex maintains that informed compliance “requires clear,

consistent, well-reasoned publications and guidance from Customs,” which Customs failed to

provide. Def.’s S.J. Mem. 21. Specifically, Customs failed to respond to the November 1999

letter, and therefore “it was remiss in its duties of ‘shared responsibility’ and ‘informed

compliance.’” Def.s S.J. Mem. 19. Most critically, Optrex claims that Customs has remained

confused as to the proper classification of the subject LCDs throughout administrative and

judicial proceedings. For instance, Customs first alleged that certain graphic module LCDs were

improperly classified under HTSUS heading 8531, but in its third complaint, Customs dropped

its allegations of misclassification regarding the graphic module LCDs, “implicitly announc[ing]

that each and every graphic module that it removed has actually been properly classified by

Optrex.” Def.’s S.J. Mem. 25.

       The government explains that none of the “inconsistent” rulings Optrex cites involve

merchandise subject to this action. It maintains that Optrex purposefully sidesteps the following

facts: (1) Customs gave Optrex specific guidance in 1995, Hr’g Ex. H-24; (2) Optrex’s attorney

advised Optrex to classify its LCD panels under heading 9013, Hr’g Exs. H-24, H-1; (3) Optrex’s

attorney reiterated its advice that Optrex classify its LCD panels under HTSUS heading 9013,

after issuance of the Sharp decision in 1997, Hr’g Ex. 1; and (4) Optrex’s attorney again

reiterated his advice that Optrex classify LCD panels under HTSUS Ch. 9013, in February 1999,

less than two months before Optrex learned that it was under investigation, Ex. H-2. Pl.’s Resp.

23.

       The government’s argument has significant support in the record. Precisely because the
Court No. 02-00646                                                                        Page 25


classification of LCD products was such a complex area, Optrex should have sought a ruling

from Customs if it desired certainty. In addition, the decision tree was formulated after the

entries at issue had already been filed. It is questionable whether the November 1999 letter was

written to seek Customs’ guidance. As far as the parties’ arguments with respect to compliance

and shared responsibility are intertwined with their factual disagreements, the court cannot

decide at this stage whether Optrex’s actions were compliant.

       4. Optrex’s Argument of Professional Disagreement

       In a related argument, Optrex maintains that professional disagreement about the

classification of merchandise is not a breach of reasonable care. In support, Optrex argues that

Customs published rulings regarding LCD classification that were “incomprehensible.” Def.’s

S.J. Mem. 23-24. “The professional disagreement between the parties appears to be rooted in the

final application of the process to the subject LCD’s [sic].” Def.’s S.J. Mem. 22. In defense,

Optrex argues that it entered the subject merchandise under Heading 8531, HTSUS, with the

knowledge that Customs had reviewed documents and samples, using an experienced customs

broker and providing commercially acceptable invoices.

       The government raises certain factual issues as to Optrex’s conclusion that there was a

professional disagreement concerning the appropriate classification of LCD products at issue by

emphasizing that Customs changed its classification with respect to LCD modules and not with

respect to LCD panels.14 The government underscores that the classification of LCD panels is

not a contentious area because Customs has consistently held that LCD panels are classifiable


       14
         The government obliquely referred to a small number of LCD character modules
capable of displaying more than 80 characters as being involved in this case. See Pl.’s Resp. 24.
Court No. 02-00646                                                                         Page 26


under heading 9013, HTSUS. Optrex’s position is also undermined by the testimony of Ms.

Banas, who stated that with respect to some LCD products, the company ignored and did not

abide by the Customs ruling or Customs interpretation of the correct tariff heading. Banas Dep.

30:10-13; 31:11-25, 32:9-17.

       5. Optrex’s Argument that It Followed Its “Decision Tree” Policy

       Optrex maintains that its classification of merchandise under heading 8531 is reasonable

because the imported LCDs are prima facie classifiable under headings 8471, 8531 and 9013.

Def.’s S.J. Mem. 13 (citing 19 C.F.R. Pt. 171, App. B(C)(1)). It represents that the decision tree

does not contravene Customs law because it incorporates judicial precedent, Customs Rulings,

the Explanatory Notes, Optrex’s in-house technical experts (specifically, Optrex’s Director of

Engineering Allen Houck). The decision tree’s classification process is also consistent with the

pre-1997 classification advice it received from Customs counsel. In addition, the process

outlined in Customs’2001 Informed Compliance Publication regarding the classification of flat

panel displays “closely follow[ed] Optrex’s classification process as outlined in the 1999 letter to

Customs.” Def’s S.J. Mem. 21.

       Even if the court accepts Optrex’s claim that the decision tree reasonably reflected

Customs law at the time, there is no testimony before the court by Optrex’s employees, past or

present, that demonstrates that Optrex actually followed the procedures outlined in the decision

tree. While Optrex suggests that Optrex employees Dee Tolbert, Michele Marsh, and Allen

Houck corroborated that Optrex followed the “decision tree,” other evidence contradicts this

assertion. See Ratermann Decl. Ex. 8 (stating that Ms. Tolbert did not became responsible for
Court No. 02-00646                                                                        Page 27


classification matters until June or July of 1999); Marsh Dep. 25:15-24 (stating that as account

manager at relevant times, Marsh had no responsibilities relating to classification of

merchandise); Ratermann Decl. Ex. 5 (stating that Mr. Houck, as an engineer, was not involved

in final classification of products); Houck Dep. 14:5-11 (testifying that Houck had no

involvement in the creation of the “decision tree.”). The government also presented

contradictory evidence regarding Optrex’s assertion that Mike Manese, Optrex’s deceased

employee, was involved in the company’s classification decision. See Banas Dep. 19:25-20:4

(testifying that Mr. Manese had no responsibility over classification of merchandise). Finally, it

is problematic that the decision tree was formulated after the entries of the subject merchandise

were made, and that counsel informed Optrex that “the ‘decision tree’ was intended to satisfy

both Customs and Optrex in the pursuit of proper classification.” Hr’g Ex. H3. This evidence

vitiates Optrex’s assertion that the company followed the decision tree.

                                        III. CONCLUSION

       The court’s independent review of the record establishes that Optrex failed to

demonstrate that there are no genuine issues as to any material fact for summary judgment to be

granted at this time.

       Accordingly, it is hereby

       ORDERED that Defendant’s motion for summary judgment is DENIED.



    May 17, 2006                                                /s/ Judith M. Barzilay
_____________________________                                ______________________________
    New York, NY                                                Judith M. Barzilay, Judge
