United States v. UPS Customhouse Brokerage, Inc.

Slip Op. 10�11 UNITED STATES COURT OF INTERNATIONAL TRADE UNITED STATES, Plaintiff, BEFORE: JUDGE GREGORY W. CARMAN Court No. 04-00650 v. UPS CUSTOMHOUSE BROKERAGE, INC., Defendant. [Held: At trial, Plaintiff failed to prove entitlement to recover monetary penalties imposed on Defendant customs broker. Having failed to show grounds for a rehearing, Plaintiff�s request for an additional evidentiary proceeding is denied. Because the Court is designated by statute to decide the issues here, remand to Customs is not required. Discretionary remand would inappropriately allow Plaintiff to create a factual basis for recovery after trial, rendering Plaintiff�s burden of proof meaningless. Judgment will issue in favor of Defendant.] Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Jessica R. Toplin); Edward Greenwald, of counsel, U.S. Customs and Border Protection, Department of Homeland Security, for Plaintiff. Akin, Gump, Strauss, Hauer & Feld, LLP (Terence J. Lynam, Lars-Erik A. Hjelm, Natalya Daria Dobrowolsky, Lisa-Marie W. Ross, Thomas James McCarthy), for Defendant. January 28, 2010 OPINION & ORDER CARMAN , JUDGE: This case comes before the Court on remand from the Court of Appeals for the Federal Circuit (�Court of Appeals�). The United States (�Plaintiff� or �government�) brought this action pursuant to 28 U.S.C. § 1582(1) against Defendant, Court No. 04-00650 Page 2 UPS Customhouse Brokerage, Inc. (�UPS�), seeking to recover monetary penalties of $75,000 imposed by the Bureau of Customs and Border Protection (�Customs�) due to UPS�s alleged failure to exercise responsible supervision and control over its customs brokerage business in violation of section 641(b)(4) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1641(b)(4) (2000). This Court has issued four prior decisions regarding the instant litigation, and the Court of Appeals has issued two. First, the Court denied Defendant�s motion for partial summary judgment and Plaintiff�s motion to strike. United States v. UPS Customhouse Brokerage, Inc., 30 CIT 808, 442 F. Supp. 2d 1290 (2006) (�UPS I�). The Court certified an interlocutory appeal by Defendant, but the Court of Appeals denied permission to appeal. United States v. UPS Customhouse Brokerage, Inc., 30 CIT 1612, 464 F. Supp. 2d 1364 (�UPS II�), appeal denied, 213 F. App�x 985, 986, 2006 WL 3913545, at *1 (Fed. Cir. 2006). Plaintiff subsequently filed a motion for summary judgment, which the Court denied. United States v. UPS Customhouse Brokerage, Inc., 31 CIT 1023, 2007 WL 1894211 (2007) (�UPS III�). The Court thereafter conducted a bench trial, at the conclusion of which the Court found UPS liable for failure to exercise responsible supervision and control of its customs business, and entered judgment for the United States and against UPS. United States v. UPS Customhouse Brokerage, Inc., 32 CIT ____, 558 F. Supp. 2d 1331 (2008) (�UPS IV�). UPS successfully appealed, and the Court of Appeals issued an opinion affirming in part, vacating in part, and remanding in part. Court No. 04-00650 Page 3 United States v. UPS Customhouse Brokerage, Inc., 575 F.3d 1376 (Fed. Cir. 2009) (�UPS V�). The Court of Appeals held that Customs was required to consider each of the ten factors specifically listed in 19 U.S.C. § 111.1 when determining that Defendant failed to exercise responsible supervision and control of its customs business as required by 19 U.S.C. § 1641(b)(4).1 UPS V, 575 F.3d at 1382. Because the Court of Appeals affirmed in part, vacated in part, and remanded in part this Court�s post-trial opinion and judgment, the Court must now determine the appropriate action to be taken on remand. On November 5, 2009, the Court held a conference with counsel for the parties to discuss this question, and counsel submitted briefs to the Court on November 20, 2009. In partially reversing this Court�s judgment as to liability, the Court of Appeals stated: �Because Customs did not consider all ten factors listed in 19 C.F.R. § 111.1, its determination that UPS violated 19 U.S.C. § 1641 was improper.� Id. at 1383. The decision of the Court of Appeals makes plain that �[a]n agency must follow its own regulations,� and �Customs failed to do so.� Id. at 1382-83. This Court, in turn, �erred in upholding [Customs]�s determination that UPS did not exercise responsible 1 The factors of responsible supervision and control listed in 19 C.F.R. § 111.1 are referred to in this opinion variously as the �ten factors,� �§ 111.1 factors,� or simply �factors.� �Broker statute� refers generally to 19 U.S.C. § 1641, which sets forth requirements and procedures applicable to customs brokers, including the �responsible supervision and control� mandate at § 1641(b)(4) and a procedure to impose monetary penalties at § 1641(d)(2)(A). �Broker regulation� will refer generally to 19 C.F.R. Part 111, which inter alia defines �responsible supervision and control� and elaborates how Customs will implement the penalty procedure of § 1641(d)(2)(A). Court No. 04-00650 Page 4 supervision and control in violation of 19 U.S.C. § 1641[.]� Id. at 1378. The Court �up[held Customs]�s determination� by entering a judgment permitting Plaintiff to recover a civil penalty under 28 U.S.C. § 1582(1), despite Plaintiff�s improper underlying determination. As discussed fully below, Plaintiff did not establish at trial that Customs properly considered all ten § 111.1 factors. While the Court of Appeals� opinion made clear that Customs is required to consider the ten factors when imposing a monetary penalty upon a broker for lack of responsible supervision and control, the opinion did not identify which Customs official bears this responsibility. The Court concludes that the statute authorizing Customs to impose a monetary penalty for a § 1641(b)(4) violation requires that �the appropriate . . . customs officer shall� perform the consideration of the ten factors. See § 1641(d)(2)(A). Customs regulations indicate that the �appropriate customs officer� is usually the Fines, Penalties, and Forfeitures Officer (�FP&F Officer�) for the relevant port. See 19 C.F.R. §§ 111.94, 171.31.2 The trial record establishes that the FP&F Officer required to consider the ten factors in imposing the penalties at issue was Mr. Bert Webster. See infra, Analysis § II.C. Plaintiff, despite ample opportunity, did not present any evidence that Mr. Webster considered the ten § 111.1 factors. Nor did Plaintiff adduce evidence upon which the Court could have independently considered the ten factors. Therefore, Plaintiff failed to prove at trial that Customs 2 As discussed further below, the Commissioner of Customs is the appropriate officer in rare circumstances that the evidence indicates were not present here. See 19 C.F.R. § 171.31. Court No. 04-00650 Page 5 complied with 19 C.F.R. § 111.1 when imposing the penalties at issue, and it is not entitled to recovery. Plaintiff has not shown grounds for the granting of a further evidentiary hearing. Moreover, the evidence it has offered to present at such a proceeding could not, in any event, demonstrate proper consideration of the ten factors. For these reasons, Plaintiff�s request to enter further evidence is denied. Contrary to Defendant�s position, remand to Customs for further administrative proceedings is not required, because the Court is designated by statute to decide the issues in this case. Additionally, discretionary remand under 28 U.S.C. § 2643 would inappropriately permit Plaintiff to create�after the conclusion of the trial�a factual basis for recovery, rendering Plaintiff�s burden of proof meaningless. The Court therefore denies the request for remand. Judgment will issue for Defendant. BACKGROUND I. Post-Trial Opinion and Court of Appeals Opinion A. Relevant Issues in the Court�s Post-trial Opinion and Judgment Following trial de novo, the Court issued an opinion finding that Plaintiff had proven by a preponderance of the evidence that UPS misclassified 42 specific entries of merchandise under subheading 8473.30.9000 of the Harmonized Tariff Schedule of the United States (�HTSUS�). UPS IV, 558 F. Supp. 2d at 1349. The Court further found that, under the circumstances proven at trial, the misclassifications constituted a failure by UPS to comply with 19 U.S.C. § 1641(b)(4). See UPS IV, 558 F. Supp. 2d at 1352-54. Court No. 04-00650 Page 6 Section 1641(b)(4) states in full that �[a] customs broker shall exercise responsible supervision and control over the customs business that it conducts.� 19 U.S.C. § 1641(b)(4) (2000). Core to this holding was this Court�s interpretation of 19 C.F.R. § 111.1, the Customs regulation which defines the term �responsible supervision and control� as it appears in § 1641(b)(4). The operative definition is given as follows: �Responsible supervision and control� means that degree of supervision and control necessary to ensure the proper transaction of the customs business of a broker, including actions necessary to ensure that an employee of a broker provides substantially the same quality of service in handling customs transactions that the broker is required to provide. 19 C.F.R. § 111.1 (2000). Describing how that definition will be employed by Customs, the regulation states that �the determination . . . will vary depending upon the circumstances in each instance,� and �factors which Customs will consider include, but are not limited to� a list of ten factors specifically set forth: [1.] The training required of employees of the broker; [2.] the issuance of written instructions and guidelines to employees of the broker; [3.] the volume and type of business of the broker; [4.] the reject rate for the various customs transactions; [5.] the maintenance of current editions of the Customs Regulations, the Harmonized Tariff Schedule of the United States, and Customs issuances; [6.] the availability of an individually licensed broker for necessary consultation with employees of the broker; [7.] the frequency of supervisory visits of an individually licensed broker to another office of the broker that does not have a resident individually licensed broker; [8.] the frequency of audits and reviews by an individually licensed broker of the customs transactions handled by employees of the broker; [9.] the extent to which the individually licensed Court No. 04-00650 Page 7 broker who qualifies the district permit is involved in the operation of the brokerage; and [10.] any circumstance which indicates that an individually licensed broker has a real interest in the operations of a broker. Id. The trial Court held that the language of § 111.1 stating that Customs �will consider� the ten factors did not mandate that Customs weigh each and every one of the ten factors in every case, but rather permitted Customs to �consider the listed factors in section 111.1 or look beyond the factors and consider the totality of the circumstances, on a case-by-case basis as it did in this matter.� UPS IV, 558 F. Supp. 2d at 1353. In accordance with this interpretation of the broker regulation, the Court found UPS liable for failure to exercise responsible supervision and control of its customs business without discussing the proof regarding Customs� consideration of the ten factors, focusing instead on the operative definition of responsible supervision and control given by § 111.1. Id. at 1352-54. The Court then upheld the amount of fines sought by Plaintiff, entering judgment for Plaintiff and against Defendant in the amount of $75,000. Id. at 1356. B. Appeal UPS appealed and the Court of Appeals affirmed in part, vacated in part, and remanded in part. The Court of Appeals affirmed the Court�s holding that UPS had misclassified the entries at issue. UPS V, 575 F.3d at 1381. However, the Court of Appeals held that the term �will� in the phrase �will consider� of 19 C.F.R. § 111.1 �is a Court No. 04-00650 Page 8 mandatory term,� and thus �any interpretation of § 111.1 that does not require consideration of the listed factors is clearly inconsistent with the plain language of the regulation.� Id. at 1382. As a result, the Court of Appeals stated that Customs has an �obligation under the regulation to consider at the least the ten listed factors.� Id. (emphasis in original). Reviewing the record, the Court of Appeals stated: �[W]e do not see where all ten factors were even mentioned in the testimony. Additionally, where specific factors are discussed in the testimony, it is difficult to determine if those factors were actually considered by Customs.� Id. at 1383. The Court of Appeals then stated that �[b]ecause Customs did not consider all ten factors listed in 19 C.F.R. § 111.1, its determination that UPS violated 19 U.S.C. § 1641 was improper.� Id. For these reasons, the Court of Appeals stated, �we vacate that portion of the Court of International Trade�s judgment and remand for further proceedings.� Id. Finally, the Court of Appeals declined to reach the parties� appellate contentions about whether there were multiple violations of the broker statute and whether Customs could impose penalties of more than $30,000 in the aggregate, and vacated �those portions of the Court of International Trade�s judgment addressing these issues[.]� Id. II. Meaning and Effect of Court of Appeals� Opinion A. Question on Remand The Court of Appeals� holding that vacated the judgment in part was stated as follows: Court No. 04-00650 Page 9 Because the Court of International Trade erred in upholding [Customs�] determination that UPS did not exercise responsible supervision and control in violation of 19 U.S.C. § 1641, we vacate that portion of the court�s judgment and remand for further proceedings. Id. at 1378. More specifically, the Court of Appeals explained: Because Customs did not consider all ten factors listed in 19 C.F.R. § 111.1, its determination that UPS violated 19 U.S.C. § 1641 was improper. Accordingly, we vacate that portion of the Court of International Trade�s judgment and remand for further proceedings. Id. at 1383.3 The Court of Appeals thus made plain that two errors occurred below. Customs� error was failing to consider all ten factors when determining that UPS failed to exercise responsible supervision and control; this Court�s error was in upholding Customs� determination despite Plaintiff�s failure to prove that Customs had considered the ten factors. See id. When the Court of Appeals identifies an error and remands for further proceedings, the lower court must determine �what the appellate court�s mandate left for the district court to do.� Exxon Chemical Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 1482 (Fed. Cir. 1998). Since the Court�s error consisted of upholding Customs� determination despite Customs� flawed consideration of 19 C.F.R. § 111.1 in making that determination, the specific question here is: what impact does Customs� failure to 3 Section 111.1 of Title 19, Code of Federal Regulations (�the broker regulation�) defines the term �responsible supervision and control� found at 19 U.S.C. § 1641(b)(4), and lists ten specific factors that Customs �will consider� in deciding whether a broker has exercised responsible supervision and control. The broker regulation and its ten listed factors are discussed in detail infra. Court No. 04-00650 Page 10 follow 19 C.F.R. § 111.1 have on Plaintiff�s action to recover monetary penalties against UPS under 28 U.S.C. § 1582(1)? Put another way, can Customs correct its error and demonstrate that it should be permitted to recover the penalty under § 1582(1)? To answer this question, the Court considers the nature of Plaintiff�s cause of action, locates the flaw noted by the Court of Appeals in Customs� penalty procedure, and examines the effect of that error on the case. B. Plaintiff�s Cause of Action and the Court�s Jurisdiction Section 1582 of Title 28, United States Code, defines Plaintiff�s cause of action and the jurisdiction of the Court: The Court of International Trade shall have exclusive jurisdiction of any civil action which arises out of an import transaction and which is commenced by the United States� (1) to recover a civil penalty under section 592, 593A, 641(b)(6), 641(d)(2)(A), 704(i)(2), or 734(i)(2) of the Tariff Act of 1930[.] 28 U.S.C. § 1582 (2000) (emphasis added). In such a case, Plaintiff must create an evidentiary record at trial before the Court, which decides the facts and issues of law de novo on the basis of that record.4 28 U.S.C. § 2640(a)(6) (2000). The evidence must be relevant to the Court�s inquiry, which is whether or not the United States should be entitled to recover the imposed penalty. See Fed. R. Evid. 402. Plaintiff bears the burden of proving the case by a preponderance of the evidence. See St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 769 (Fed. Cir. 1993) (holding that civil 4 See Analysis, § III.1, infra, for a discussion of the appropriate standard of review for this action. Court No. 04-00650 Page 11 plaintiffs bear a preponderance of the evidence burden when no statute specifies otherwise). On the most basic level, therefore, the outcome of a § 1582(1) case involving the broker statute hinges on whether the United States has proven, upon the basis of the record it has assembled before the Court, that it is entitled to recover a monetary penalty properly imposed pursuant to the procedure of § 1641(d)(2)(A). To demonstrate that a penalty has been properly imposed under § 1641(d)(2)(A), Plaintiff must establish both that the broker committed a violation of Customs law as the predicate for the penalty,5 and that all formal requirements of the procedure for imposing the penalty were properly followed by Customs. See § 2640(a)(6); see also § 1641(d)(2)(A). The Court has no direct jurisdiction to independently impose a penalty for violation of the predicate statute�here, the responsible supervision and control statute at § 1641(b)(4). The Court�s statutory role is not to impose penalties on customs brokers, but rather to decide whether to permit recovery of penalties the government has already imposed. See 28 U.S.C. § 1582(1). Therefore, the Court�s determination regarding the predicate infraction does not in and of itself suffice to permit Plaintiff to recover the penalty. The Court decides whether Defendant violated the predicate statute only insofar as violation of the statute is a crucial component of the penalty 5 Customs is only statutorily authorized to initiate a § 1641(d)(2)(A) penalty proceeding where the broker, in relevant part, �has violated any provision of any law enforced by the Customs Service or the rules or regulations issued under any such provision.� 19 U.S.C. § 1641(d)(1)(C). Court No. 04-00650 Page 12 procedure of § 1641(d)(2)(A). Plaintiff must still demonstrate that all other formal requirements of the procedure were properly followed, where they are in dispute. C. Customs� Error Customs� error�its failure to consider all ten § 111.1 factors when determining whether to impose the monetary penalties�occurred during the § 1641(d)(2)(A) penalty process. To properly determine whether the Court may permit recovery of the monetary penalties at issue, the Court must first examine the penalty process, ascertain where Customs deviated from the process, and determine whether Customs can correct its error. Although the Court presumes that the parties are fully familiar with the § 1641(d)(2)(A) process, this appears to be the first recovery action for monetary penalties issued under § 1641(d)(2)(A) that has gone to trial,6 and a discussion of the underlying procedure will thus be useful and help to frame the analysis that follows. 1. The Penalty Procedure Statute and Regulations Section 1641(d)(2)(A) states, in relevant part: [T]he appropriate customs officer shall serve notice in writing upon any customs broker to show cause why the broker 6 To the Court�s knowledge, the only other suit by the government seeking to recover a monetary penalty issued under § 1641(d)(2)(A) was decided on summary judgment. See United States v. Ricci, 21 CIT 1145, 985 F. Supp. 125 (1997). In Lee v. United States, Plaintiff challenged a revocation action that was initially linked to a monetary penalty recovery action, but the government voluntarily dismissed the recovery component of the action before judgment. See 26 CIT 384, 387 n.4; 196 F. Supp. 2d 1351, 1356 n.4 (2002). Court No. 04-00650 Page 13 should not be subject to a monetary penalty . . . . The notice shall advise the customs broker of the allegations or complaints against him and shall explain that the broker has a right to respond . . . . Before imposing a monetary penalty, the customs officer shall consider the allegations or complaints and any timely response made by the customs broker and issue a written decision. A customs broker against whom a monetary penalty has been issued under this section shall have a reasonable opportunity under [19 U.S.C. § 1618] to make representations seeking remission or mitigation of the monetary penalty. [After any § 1618 proceeding], the appropriate customs officer shall provide to the customs broker a written statement which sets forth the final determination and the findings of fact and conclusions of law on which such determination is based. 19 U.S.C. § 1614(d)(2)(A) (emphasis added). This process is further defined in Customs� broker regulations at 19 C.F.R. Part 111, and in the fines, penalties, and forfeitures regulations at 19 C.F.R. Part 171. 2. Allegations or Complaints and Predicate Offense The penalty process begins with �allegations or complaints� against a broker. § 1641(d)(2)(A). Customs is authorized to initiate penalty actions when a broker �has violated any provision of any law enforced by the Customs Service or the rules or regulations issued under any such provision.� § 1641(d)(1)(C); see also 19 C.F.R. §§ 111.53(c) (setting forth grounds for suspension or revocation of a broker�s license), 111.91(a) (permitting monetary penalty where no license suspension or revocation is sought). Violations of the responsible supervision and control requirement in § 1641(b)(4) (a law enforced by Customs) can therefore serve as the predicate for a penalty action. Court No. 04-00650 3. Page 14 Prepenalty Notice and Broker Response The �appropriate customs officer� then issues to the broker a �prepenalty notice� that must include two things: notice to the broker of the allegations or complaints, and notice to the broker of its opportunity to respond to the allegations or complaints. 19 U.S.C. § 1641(d)(2)(A); 19 C.F.R. §§ 111.92 (providing for pre-penalty notice and time to respond), 111.93 (providing for broker response in form of petition for relief under 19 C.F.R. Chapter 171). The broker�s response must be filed with the Fines, Penalties, and Forfeitures Officer (�FP&F Officer�) for the relevant port. 19 C.F.R. § 111.94 (setting forth how Customs will decide whether to impose a penalty and notify broker of results); § 171.12(a) (indicating petition to be filed with relevant FP&F Officer). The contents of the prepenalty notice being only allegations or complaints, the customs broker plainly has not yet been subjected to imposition of a monetary penalty upon receiving the prepenalty notice. § 1641(d)(2)(A); 19 C.F.R. § 111.94. 4. Consideration of Allegations and Response Upon expiration of the deadline for the broker�s response, �the customs officer shall consider the allegations or complaints and any timely response made by the customs broker� before issuing a decision. § 1641(d)(2)(A). Customs regulations mandate that, �[i]f it is definitely determined that the act or omission forming the basis of a penalty . . . did not in fact occur, the claim shall be canceled by the Fines, Penalties, and Forfeitures Officer.� 19 C.F.R. § 171.31. See also 19 C.F.R. § 111.94 (indicating that the FP&F Officer will ultimately issue the written decision in a § 1641(d)(2)(A) case). Court No. 04-00650 Page 15 This is the step of the penalty procedure at which Customs committed the error noted in the Court of Appeals� opinion. In penalty cases like the one underlying this suit, initiated by allegations or complaints that a broker violated the responsible supervision and control requirement of § 1641(b)(4), Customs necessarily must �consider� whether or not the broker exercised responsible supervision and control. See § 1641(d)(2)(A), 19 C.F.R. §§ 111.1, 111.94, UPS V, 575 F.3d at 1383. It can therefore be deduced that the decision maker responsible for considering the allegations and the broker response�the FP&F Officer�is bound by any applicable Customs regulations, including the operative definition of responsible supervision and control, as well as the ten mandatory factors which 19 C.F.R. § 111.1 indicates that Customs �will consider.�7 Because the Court of Appeals based its decision on the failure of Customs to consider all ten factors in reaching its determination, Customs� error was committed by the FP&F Officer when that officer considered the allegations against UPS, along with UPS�s responses, without considering each of the ten factors of § 111.1. 5. Written Decision The broker statute requires that Customs, after considering the allegations and the broker�s response, issue a �written decision� to the broker. § 1641(d)(2)(A). 7 Of course, this applies equally to the customs officer who formulates the allegations or complaints that initiate the monetary penalty process; however, because that officer�s actions only initiate the penalty process and do not determine its outcome, the legally operative and therefore relevant consideration of the ten factors is that carried out by the penalty procedure decision maker. See 19 U.S.C. § 1641(d)(2)(A), 19 C.F.R. §§ 111.94, 171.31. Court No. 04-00650 Page 16 Customs regulations add a requirement that �the petitioner will be provided with a written statement setting forth the decisions on the matter and the findings of fact and conclusions of law upon which the decision is based.� 19 C.F.R. § 171.31a; accord 19 C.F.R. § 111.94. The written decision is issued by the FP&F Officer. 19 C.F.R. § 111.94. The Court of Appeals� decision in UPS V strongly implies that Customs must describe in its written decision the consideration given to each of the ten § 111.1 factors. See 575 F.3d at 1382 (stating that, where one factor is irrelevant, �Customs can simply explain that a particular factor does not apply and move on from there.�). This requirement is also arguably contained in 19 C.F.R. § 171.31a, since consideration of the ten factors requires Customs to analyze facts and conclude whether those facts constitute a violation of the law. 6. Broker�s Opportunity to Request Remission or Mitigation Finally, the broker must be given an opportunity to seek discretionary relief from Customs in the form of remission or mitigation of the penalty. § 1641(d)(2)(A). Pursuant to the broker statute, the remission or mitigation process is governed by 19 U.S.C. § 1618 and its implementing regulations at 19 C.F.R. Part 171.8 Id.; 19 C.F.R. § 111.95. After consideration of the broker�s petition, the FP&F Officer issues a final 8 The Customs regulations in Part 171 set forth a single petition procedure that governs both (a) a prepenalty response, and Customs� decision as to whether to impose a penalty, as well as (b) a request for discretionary remission or mitigation of a penalty already imposed, and Customs� decision of that petition. Court No. 04-00650 Page 17 written decision containing the findings of fact and conclusions of law upon which the decision is based. 19 C.F.R. § 111.95; 19 C.F.R. 171.31a. 7. Appeal and Recovery in Court The broker statute provides the broker with no direct route to judicial review of an imposed fine. Compare § 1641(d)(2)(A) (making no provisions for direct judicial appeal of imposition of a monetary penalty) with § 1641(d)(2)(B) (detailing penalty procedures including development of a formal record before an administrative law judge and the right to cross-examination) and § 1641(e) (permitting limited judicial review upon appeal when Customs denies, suspends, or revokes a broker�s license, or imposes a monetary penalty in lieu thereof, but not when Customs imposes a monetary penalty under § 1641(d)(2)(A)). On the other hand, the broker regulation provides that, when a monetary penalty is not timely paid by the broker, �Customs will refer the matter to the Department of Justice for institution of appropriate judicial proceedings.� 19 C.F.R. § 111.94. Although not specified, the reference to �appropriate judicial proceedings� in the regulations apparently anticipates the filing of a recovery action under 28 U.S.C. § 1582(1), such as the case at bar. D. This Court�s Error The error that the Court of Appeals noted on the part of the trial Court was that the trial Court �up[held Customs�] determination� and permitted recovery of a civil Court No. 04-00650 Page 18 penalty under § 1582(1) despite a flaw in the § 1641(d)(2)(A) procedure used to impose that penalty. UPS V, 575 F.3d at 1378. This Court wrongly resolved a dispute between the parties regarding the elements Plaintiff was required to prove to establish entitlement to recover its penalties. Defendant insisted that one required element of Plaintiff�s case was a demonstration that Customs had considered all ten factors of responsible supervision and control set out at 19 C.F.R. § 111.1, while Plaintiff maintained that it did not have to prove consideration of the ten factors. (Dkt. No. 95: Response to Court�s Request/Order Dated 11/7/07 (�Pretrial Letter Response�), A-1�A-2, B-2�B-3.) If Defendant�s position had prevailed, Plaintiff would have been required to prove that it had considered all ten factors in or to establish that Customs, through the appropriate decision maker, the FP&F Officer, had fully complied with the monetary penalty procedure in § 1641(d)(2)(A) and was entitled to recovery. When UPS raised this issue in the context of a § 1582(1) case, the effect was to assert not only that UPS had in fact exercised responsible supervision and control, but also to challenge whether Plaintiff had complied with all of the steps of the penalty procedure. Specifically, Defendant�s position constituted a claim that Customs did not properly conduct the �consideration� required by the broker statute and regulations. § 1641(d)(2)(A); 19 C.F.R. §§ 111.94, 171.31. This Court erroneously rejected UPS�s position and held that Plaintiff did not have to prove consideration of all ten factors to demonstrate entitlement to recover the Court No. 04-00650 Page 19 imposed penalty. See UPS IV, 558 F. Supp. 2d at 1353. This Court�s ruling thus expressed the view that the �consideration� step of the § 1641(d)(2)(A) process did not mandate consideration of all ten § 111.1 factors, and that, as a result, there was no defect in Customs� penalty process as alleged by Defendant. Id. This Court therefore focused its attention on whether, to the satisfaction of the Court on the basis of the record assembled before it, Defendant had actually committed the predicate violation underlying the penalty procedure, rather than whether Customs had rendered its decision on the allegations in the proper manner. Id. The Court of Appeals, in determining that Customs was required to consider all ten factors, accepted Defendant�s interpretation of the broker regulation, which this Court had rejected. UPS V, 575 F.3d at 1383. In the procedural context of a § 1582(1) case, the Court of Appeals� holding indicated that Plaintiff did not prove it had properly complied with the �consideration� step (and possibly the �written decision� step) of the penalty procedure. See § II.C.4-5, supra. Thus the Court of Appeals� holding did not disturb the Court�s substantive finding that UPS committed the predicate violation upon which the penalty procedure was based; instead, the Court of Appeals held that the Court erred in rejecting Defendant�s challenge to the procedure by which the penalty was imposed. By analogy, the defect noted by the Court of Appeals was comparable to the defect that would exist if Customs failed to provide the broker an opportunity to respond to the prepenalty notice, or if Customs failed to make the mitigation procedure available to Defendant. In the presence of such procedural Court No. 04-00650 Page 20 defects, the Court could not permit Plaintiff to recover the imposed penalties regardless of whether the broker had committed the underlying violation of Customs law. See, e.g., United States v. Chow, 17 C.I.T. 1372, 1376-77, 841 F. Supp. 1286, 1289-90 (1993) (dismissing government suit to recover a monetary penalty imposed under analogous statute 19 U.S.C. § 1592, where Customs provided importer only seven days for response but regulation required 30 days); see also United States v. Gold Mountain Coffee, Ltd., 8 C.I.T. 247, 251-52, 597 F. Supp. 510, 516 (1984) (noting that Court will not uphold seizure of merchandise as security for payment of monetary penalty issued under § 1592 where government cannot show certain conditions of § 1592(c)(5) were �satisfied during the process of obtaining the arrest warrant�). ANALYSIS Having determined that the Court of Appeals� opinion noted a defect in Customs� compliance with the penalty procedure of § 1641(d)(2)(A), the Court now arrives at the central issue on remand: whether Plaintiff can correct the defect and prove its entitlement to recover the penalties at issue. At a conference held on November 5, 2009, the Court heard the positions of the parties on what steps to take in response to the Court of Appeals� decision, and asked the parties to brief the following questions: (1) whether the Court should dismiss the case in light of the Court of Appeals� vacatur of the liability and penalty findings as a simple case in which Plaintiff failed to meet the burden of proof; (2) whether the Court should remand the case to Customs and, if so, what issues Customs should be Court No. 04-00650 Page 21 instructed to address; and (3) whether the Court should grant the government�s request, made during the November 5, 2009 conference, to reopen proceedings and allow the government to present additional testimony from Ms. Lydia Goldsmith.9 (Dkt. No. 121: Joint Letter of the Parties of November 9, 2009.) The Parties set forth their positions in briefs filed on November 20, 2009. (See Dkt. No. 123: Def.�s Post-Remand Brief; Dkt. No. 124: Pl.�s Post-Remand Brief.) After considering the positions of the parties and applicable law, the Court finds that Plaintiff failed to prove that the relevant Customs FP&F Officer properly considered the ten factors of § 111.1 when imposing the penalties at issue on UPS. Plaintiff has not established grounds for a rehearing and thus will not be given another opportunity to prove what it failed to prove at trial�consideration of the § 111.1 factors. Moreover, Plaintiff has not offered to present additional evidence that could establish that the FP&F Officer considered the ten factors. As to remand, the Court is authorized by 28 U.S.C. § 2640(a)(6) to decide the issues in this case at a trial de novo, so remand is not required. Discretionary remand under 28 U.S.C. § 2643 is inappropriate since the Court is tasked with deciding the case upon the record established before it. Furthermore, discretionary remand to Plaintiff would also permit the party bearing the burden of proof to create, after the conclusion of the trial, the factual prerequisites for 9 Ms. Goldsmith, Supervisory Import Specialist and Trade Enforcement Coordinator at the Customs Area Port of Cleveland, Ohio, was the government�s principal witness at trial on the issue of responsible supervision and control. Court No. 04-00650 Page 22 recovery. This would improperly render Plaintiff�s burden of proof meaningless. Plaintiff having failed to prove entitlement to recover the penalties at issue by a preponderance of the evidence at trial, judgment will be entered for Defendant. I. Plaintiff Did Not Establish at Trial That the Appropriate Customs Officer Considered the Ten Factors As already discussed, the �appropriate customs officer� to consider the ten factors is the FP&F Officer of the relevant port. The record here establishes that Mr. Bert Webster was that officer. According to Ms. Goldsmith, �I determined that there should be penalties, but I don�t make the final decision,� because Mr. Webster had to agree with her. (Tr. 928.) FP&F Officer Webster was �the one that has discretion, and he is the one that decides to issue� the prepenalty notices. (Tr. 982-83.) Mr. Webster�s discretion extended to deciding whether to bundle numerous misclassified entries together into a single penalty notice, so Ms. Goldsmith �didn�t know how many prepenalty notices would end up being issued.� (Tr. 1018.) Mr. Webster or his deputy also issued the written decisions, penalty statements, and penalty notices imposing monetary penalties upon UPS. See Tr. Ex. 66, 68, 70, 72, and 74. From this record, the Court finds by a preponderance of the evidence that Mr. Webster was the appropriate Customs officer responsible for conducting the consideration required by § 1641(d)(2)(A) and § 111.1. Plaintiff introduced no evidence whatsoever at trial to establish whether the FP&F Officer considered the ten § 111.1 factors. Plaintiff did not call Mr. Webster to Court No. 04-00650 Page 23 testify. Although Mr. Webster�s written decisions, penalty statements, and penalty notices in the penalty cases against UPS were introduced as trial exhibits,10 the ten § 111.1 factors are not discussed anywhere in those exhibits.11 There is no other relevant evidence in the trial record. Consequently, the Court finds that Plaintiff did not establish at trial that the appropriate Customs officer considered the § 111.1 factors when deciding whether to impose penalties upon UPS. II. Further Evidentiary Proceedings Are Inappropriate and Not Mandated by the Court of Appeals� Opinion Having found that Plaintiff did not prove consideration of the § 111.1 factors, the Court now examines whether Plaintiff can correct this defect. First, the Court considers whether Plaintiff should be permitted to supplement the record with additional evidence to establish that Customs considered all ten of the factors. The United States Code permits the Court to retry or rehear a case in certain circumstances: If the Court of International Trade is unable to determine the correct decision on the basis of the evidence presented in any civil action, the court may order a retrial or rehearing for all 10 Tr. Ex. 66 (written decision, penalty statement, and penalty notice in case 20004196-300221); Tr. Ex. 68 (written decision, penalty statement, and penalty notice in case 2000-4196-300222); Tr. Ex. 70 (penalty statement and penalty notice in case 2000-4196300223) (Plaintiff does not appear to have entered into evidence the written decision in this penalty case); Tr. Ex. 72 (written decision, penalty statement, and penalty notice in case 2000-4196-300319); and Tr. Ex. 74 (written decision, penalty statement, and penalty notice in case 2000-4196-300320). 11 As mentioned previously, such a discussion is probably required by the Court of Appeals� decision and the regulatory mandate that the written decision state the findings of fact and conclusions of law upon which it is based. See 575 F.3d at 1382; 19 C.F.R. § 171.31a. Court No. 04-00650 Page 24 purposes, or may order such further administrative or adjudicative procedures as the court considers necessary to enable it to reach the correct decision. 28 U.S.C. § 2643(b). Retrial or rehearing may be appropriate where there has been some error or irregularity in the trial, a serious evidentiary flaw, a discovery of important new evidence which was not available, even to the diligent party, at the time of trial, or an occurrence at trial in the nature of an accident or unpredictable surprise or unavoidable mistake which severely impaired a party�s ability to adequately present its case. In short, a rehearing is a method of rectifying a significant flaw in the conduct of the original proceeding. Oak Laminates Div. of Oak Materials Group v. United States, 8 CIT 300, 302, 601 F. Supp. 1031, 1033 (1984) (quoting W.J. Byrnes & Co. v. United States, 68 Cust. Ct. 358, 358 (1972)). �The purpose of a rehearing is not to relitigate.� Arthur J. Humphreys, Inc. v. United States, 973 F.2d 1554, 1560 (Fed. Cir. 1992) (citing Belfont Sales Corp. v. United States, 12 CIT 916, 917, 698 F. Supp. 916, 918 (1988), aff�d, 878 F.2d 1413 (Fed. Cir. 1989)). When a party moves for rehearing, that motion is �addressed to the sound discretion of the trial court.� Id. (citation omitted); see also Oak Materials Group, 8 CIT at 302, 601 F. Supp at 1033. A. Positions of the Parties 1. Plaintiff�s Position Plaintiff supports its argument that the Court should hold further evidentiary proceedings on two grounds. Court No. 04-00650 Page 25 First, Plaintiff asserts that �dismissal would violate the [Court of Appeals]�s express mandate and improperly grant [UPS] the appellate relief that the [Court of Appeals] denied it.� (Pl.�s Post-Remand Brief at 1.) In Plaintiff�s view, �the mandate requires this Court to conduct further proceedings on liability in light of the new interpretation of section 111.1 announced by the [Court of Appeals] for the first time.� (Id. at 3.) Plaintiff stresses that the Court of Appeals �affirmed� the post-trial judgment in part and declined to reach the damages issues �now� because doing so would be �premature.� (Id. at 2 (citing 575 F.3d at 1381, 1383).) The government theorizes that, in characterizing the damages issues as �premature� instead of �permanently foreclosed by an alleged failure of proof,� and declining to decide those issues �now,� instead of declining to decide them �forever,� the Court of Appeals required the introduction of further evidence to reestablish liability. (Id.) The Court of Appeals �would have reversed the judgment with instructions to dismiss� if UPS had fully prevailed on appeal. (Id. at 2-3 (citing Exxon Chem. Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 1483 (Fed. Cir. 1998).) Refusing to take further evidence would therefore require the Court to: (1) interpret as wholly inoperative . . . the Federal�s Circuit�s decision affirming this Court�s judgment regarding classification . . . (2) substitute the [Court of Appeals]�s use of the word �vacated� in its decision with �reversed�; (3) delete the words �additional proceedings� from the [Court of Appeals]�s mandate; and (4) ignore the [Court of Appeals]�s explicit ruling that all damages issues are premature and hold instead that they are permanently foreclosed in this case due to a supposed failure of proof. Court No. 04-00650 Page 26 (Id. at 4.) Second, Plaintiff urges the Court to reopen trial because �the [Court of Appeals]�s decision represents a[] . . . change in . . . the proper interpretation of 19 C.F.R. § 111.1,� id. at 6, and the government �should be provided an opportunity to establish that UPS violated 19 U.S.C. § 1641 under the correct legal standard announced by the [Court of Appeals],� id. at 8. Plaintiff seeks to �demonstrate to this Court that [Customs] considered each factor in its penalty determination� and �establish that Customs did comply with its regulation, even though we did not include this demonstration in our case-in-chief at trial.� (Id. at 8, 10.) Consideration of all ten factors would be established by presenting �additional testimony from Ms. Goldsmith that would expand and explicate her earlier trial testimony� and �establish that [Customs] actually did consider each factor in section 111.1[.]� (Id. at 9-10.) Plaintiff claims it �did not perceive, at the time [of trial], a need to establish that [Customs] had considered all ten factors as part of our case in chief,� id. at 8, and that �[h]ad we been apprised of the correct interpretation of section 111.1 before August 2009, we would have made this showing at trial,� id. at 12. 2. Defendant�s Position Defendant opposes further evidentiary proceedings, arguing that the Court is barred from taking further testimony by the standard of review in 5 U.S.C. § 706. (Id. at 7-8.) UPS interprets the Court of Appeals� opinion to foreclose the government from Court No. 04-00650 Page 27 presenting the Court with evidence that Customs did, in fact, consider all ten of the § 111.1 factors, because �the court of appeals unequivocally held that �Customs did not consider all ten factors listed in 19 C.F.R. § 111.1.�� (Id. at 11 (quoting UPS V, 575 F.3d at 1383) (emphasis added by Defendant).) According to UPS, permitting the government to introduce new evidence before the Court would give Plaintiff the ability to justify its imposition of a monetary penalty in circumvention of UPS�s right to be heard at the agency level under a correct application of the law. (Id. at 11-14.) B. Plaintiff Has Not Shown Grounds to Reopen the Trial Here, a rehearing would not serve to correct �a significant flaw in the conduct of the original proceeding� arising from some �irregularity in the trial�; a �serious evidentiary flaw�; the �discovery of important new evidence which was not available, even to the diligent party, at the time of trial�; or an �accident,� �unpredictable surprise,� or �unavoidable mistake� that �severely impaired a party�s ability to adequately present its case.� See Oak Laminates Division., 601 F. Supp. at 1033. For example, this Court�s erroneous interpretation of § 111.1 did not lead the Court to preclude Plaintiff from entering evidence needed to establish that Customs considered all ten factors; Plaintiff was free to offer that evidence, but never did so. Plaintiff makes no claim that Ms. Goldsmith�s proposed additional testimony was unavailable at the time of trial, or could not be presented due to some accident, surprise, or unavoidable mistake. Even if Plaintiff was surprised by what Ms. Goldsmith said on cross-examination and realized it had made some mistake in Court No. 04-00650 Page 28 examining her, Plaintiff still had sufficient opportunity to expand and explicate her testimony on redirect examination, or to request an opportunity to call another witness to testify regarding consideration of the ten factors. Plaintiff makes none of these claims, instead claiming only that it did not introduce the relevant evidence because it did not believe doing so was necessary. This indicates that a new hearing would improperly allow Plaintiff a chance to relitigate its case to correct what could perhaps best be characterized as a tactical mistake, apparently stemming from Plaintiff�s belief that the open § 111.1 issue would be decided in its favor. The Court of Appeals� announcement of a �new� interpretation of § 111.1 on appeal does not bring the error into the category of a surprise, accident, or mistake deserving a rehearing. The Court of Appeals� interpretation of § 111.1 was �new� only in the sense that the issue had never been addressed by that court before. Despite the novelty of the issue�or, more precisely, because of the novelty of the issue�Plaintiff had ample notice before trial that the Court�s ruling on this crucial issue was not a foregone conclusion. This is not a case in which Plaintiff could rely upon a longestablished interpretation of the law in planning its trial strategy, but rather a case in which Plaintiff knew well in advance of trial that the success of its case could depend upon establishing evidence to satisfy either of the two potential outcomes on the applicability of the § 111.1 factors. No flaw in the trial prevented Plaintiff from doing Court No. 04-00650 Page 29 then what it seeks to do now: putting on a witness to testify regarding the consideration given to the ten factors of § 111.1. The record also reveals that Plaintiff knew, long before trial, that the Court might base its decision of the case in part on a determination that Plaintiff�s burden of proof included establishing that Customs had considered all ten § 111.1 factors.12 The Court therefore rejects Plaintiff�s contention that it did not present at trial evidence relevant to this question�evidence which Plaintiff now says it possessed all along�due to a lack of notice that it might be required to do so. The Court also rejects Plaintiff�s contention that the Court of Appeals� opinion constituted a change in the law regarding 19 C.F.R. § 111.1 and should excuse Plaintiff�s failure to prove its case at trial. More than 15 months before trial, Defendant argued in its memorandum opposing Plaintiff�s motion for summary judgment that Plaintiff needed to prove that it had considered all ten § 111.1 factors. (See Def. SJ Opp. at 4 (Dkt. No. 66).) UPS contended that the Court should deny the motion because Plaintiff bore the burden of establishing not only that UPS misclassified certain import entries, but also �how these alleged misclassifications, taking into account each factor listed in 19 C.F.R. § 111.1, demonstrates [sic] the failure to exercise responsible supervision and control in violation of 19 U.S.C. § 1641(b)(4).� (Id. (internal quotations omitted).) Plaintiff 12 As mentioned earlier, this case appears to be the first case to go to trial in which the United States has sought to recover a monetary penalty for failure to exercise responsible supervision and control. The question of what elements Plaintiff had to prove to make out its case was therefore a question of first impression. Court No. 04-00650 Page 30 responded to this argument in detail, indicating that the government understood UPS to be arguing that the ten factors of § 111.1 were mandatory, and contending that the factors were inapplicable to this action. (Pl.�s SJ Reply at 6-12 (Dkt. No. 70).) The Court denied summary judgment on different grounds, but stated that the �Court acknowledges Defendant�s other challenges to Plaintiff�s case� and would allow those challenges to �be taken up at trial,� UPS III, 31 CIT at 1028, thus informing Plaintiff that the issue remained open. Defendant also argued in the Pretrial Letter Response that it viewed the ten factors to be an element of Plaintiff�s case, serving to notify Plaintiff that it might be required to present evidence regarding the ten factors at trial. Pretrial Letter Response at B-1�B-3. UPS characterized § 111.1 as setting forth a �fact-intensive inquiry that requires Customs, and now the Court, to consider a wide range of factors,� including the ten factors. Id. Although Defendant believed Plaintiff would have to present evidence on the substance of the ten factors for the Court itself to directly consider, it also maintained that Customs was required to consider the ten elements as well.13 Id. 13 The Court does not interpret § 111.1 as requiring the Court to independently consider each of the ten factors of § 111.1 in a case of this type. The Court takes this view because § 111.1 specifically states that the ten factors are factors which Customs �will consider,� and that language cannot mandate how the Court will make its own determination. 19 C.F.R. § 111.1. The Court�s determination of whether a predicate offense actually occurred to justify the initiation of a § 1641(d)(2)(A) proceeding is distinct, however, from the requirement that Customs prove that it complied with § 1641(d)(2)(A) by considering the ten factors when determining to impose the penalty it seeks to recover. See Background, § II.D, supra. Court No. 04-00650 Page 31 Plaintiff was thus notified that it might not only have to prove that it considered the ten factors in the deciding the outcome of the penalty proceeding, but also to present evidence regarding the ten factors from which the Court could determine that Defendant failed to exercise responsible supervision and control. The issue was next addressed in the final Pretrial Order, in which Defendant asserted that Plaintiff�s penalty claim �does not satisfy the regulatory factors set forth in the Customs regulations.� Pretrial Order, Schedule D-2 ¶ 5. Defendant also included in its list of triable issues the question of �[w]hether . . . misclassification of the entries underlying Plaintiff�s Complaint, if proven, amounts to a failure by Defendant to exercise responsible supervision and control in light of the extensive compliance measures taken by Defendant, the volume of its business, the particular HTSUS classification at issue, and the other factors required to be considered in determining whether a broker has exercised responsible supervision and control under 19 U.S.C. § 1641(b)(4). See 19 C.F.R. § 111.1 and 19 C.F.R. Part 171 App. C. § XI.� (Pretrial Order, Schedule F-2 ¶ 3 (emphasis added).) Finally, Defendant argued in its opening statement at trial that Plaintiff was required to introduce evidence about all of the § 111.1 factors. (Tr. 73-74.) Plaintiff did not object or make any argument of its own regarding this assertion. (See Tr. 60-63; 7374.) Court No. 04-00650 Page 32 From this record, the Court finds that Plaintiff was well aware before trial and at trial that the Court could rule against it on the issue of whether consideration of all ten factors was an element of its cause of action. The Court further finds that Plaintiff had reason to know that if the Court issued a ruling adverse to Plaintiff on this question, Plaintiff would be required to prove consideration of the ten factors in order to establish Defendant�s liability. The United States therefore cannot be excused for failing to put forward in its case-in-chief any evidence that the § 111.1 factors had been considered. This is especially true when Plaintiff now claims that it had evidence all along that Customs actually did consider all ten factors (an argument that Plaintiff, notably, failed to assert at or before trial). The Court finds puzzling Plaintiff�s failure to enter evidence purportedly in its possession which was relevant to an issue which it knew could be central to the outcome of the case. Nonetheless, it would be contrary to the purpose of trial and basic principles of finality for the Court to extend Plaintiff an opportunity to do correctly now that which it failed to do before. See Belfont, 698 F. Supp. at 918 (indicating that the purpose of a rehearing is to correct a flaw in the proceeding, not to give a party a chance to �relitigate�). C. Plaintiff Cannot Cure the Defect with Testimony from Ms. Goldsmith From Plaintiff�s proposal that Ms. Goldsmith give additional evidence, it appears that Plaintiff fails to apprehend the nature of the defect in its proof. Further testimony by Ms. Goldsmith is irrelevant because Mr. Webster, not Ms. Goldsmith, was the Court No. 04-00650 Page 33 Customs officer required to consider the ten factors. See 19 U.S.C. § 1641(d)(2)(A); 19 C.F.R. §§ 111.94, 171.31; see also Analysis, § I, supra. This is revealed in Ms. Goldsmith�s testimony. According to Ms. Goldsmith, her role in the formal penalty proceeding was limited to identifying UPS�s misclassified entries, drafting prepenalty notices, and forwarding the draft notices to Mr. Webster. Ms. Goldsmith stated, �I determined that there should be penalties, but I don�t make the final decision,� because Mr. Webster had to agree with her. (Tr. 928.) Issuing the prepenalty notices �is left up to the Fine & Penalties Office,� and Ms. Goldsmith did not know if the FP&F Office actually issued the notices that she forwarded. (Tr. 930.) �[T]he responsibility of the Fines & Penalties Office� also included obtaining any necessary higher-level clearances, and Ms. Goldsmith did not know if that was done. (Tr. 934, 936-37.) Ms. Goldsmith summarized her role in the process as follows: �The pre-penalty statement is written by the team. They forwarded it to me to review so I did make changes to the actual pre-penalty statement that they first wrote, and then the statement with the attachment of the entries is forwarded to FP&F.� (Tr. 962-63.) Mr. Webster was �the one that has discretion, and he is the one that decides to issue� the prepenalty notices. (Tr. 982-83.) Mr. Webster�s discretion extended to deciding whether to bundle numerous misclassified entries together into a single penalty notice, so Ms. Goldsmith �didn�t know how many pre-penalty notices would end up being issued.� (Tr. 1018.) From this record, the Court finds that Ms. Goldsmith merely formulated allegations against UPS and forwarded them to Mr. Webster, the relevant FP&F Officer, Court No. 04-00650 Page 34 who was responsible for considering the allegations and UPS�s response. Therefore, further testimony from Ms. Goldsmith, who did not decide the penalty actions, could not reveal whether Mr. Webster considered the ten factors in deciding to impose the penalties at issue. Even assuming, for the sake of argument, that Ms. Goldsmith�s consideration of all ten factors could satisfy Plaintiff�s burden of proof, the Court finds that additional testimony that she considered all ten factors would conflict with her prior testimony. Ms. Goldsmith�s only testimony regarding the ten factors arose during her crossexamination. In that testimony, Ms. Goldsmith expressed unfamiliarity with the contents of the broker regulation, not realizing at first that the 2000 version of the broker regulation (which was amended effective April 14, 2000) applied during the penalty proceedings, and testifying that she was using the prior version of the broker regulations when she met to discuss the penalty cases with Mr. Webster in February or March of 2000. (Tr. 971-80.) It appears that Ms. Goldsmith was also unaware that those prior regulations provided a definition of responsible supervision and control. (Tr. 97677.)14 14 With regard to the definition of responsible supervision and control, the amendment of the broker regulation which went into effect on April 14, 2000 merely relocated a previously-existing similar definition from § 111.11(d) to § 111.1 and amended some of the specific factors to be considered by Customs. See 51 Fed. Reg. 30,336, 30,337-38 (Aug. 26, 1986) (publishing final rule containing initial definition of responsible supervision and control in § 111.11(d)); 64 Fed. Reg. 22,726, 22,728 (Apr. 27, 1999) (proposing rule change consisting of modif