United States v. Wanxiang Am. Corp. , 2023 CIT 115 ( 2023 )

Slip Op. 23-
UNITED STATES COURT OF INTERNATIONAL TRADE
UNITED STATES,
Plaintiff,
v. Before: Gary S. Katzmann, Judge
Court No. 22-00205
WANXIANG AMERICA
CORPORATION,
Defendant.
OPINION AND ORDER
[ Wanxiang’s Motion to Dismiss is denied. ]
Dated: August 16, 2023
Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., argued for Plaintiff United States. With her on the
brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy,
Director, and L. Misha Preheim, Assistant Director. Of counsel on the brief was Steven J.
Holtkamp, Office of the Associate Chief Counsel, U.S. Customs and Border Protection, of
Chicago, IL.
Michael E. Roll, Roll & Harris LLP, of Los Angeles, CA, argued for Defendant Wanxiang
America Corporation. With him on the brief was Brett I. Harris.
Katzmann, Judge: This case implicates important questions of fair notice and culpable
intent when facing the specter of civil administrative penalties. Plaintiff the United States (“the
Government”) brings an action seeking more than $97 million in lost revenue and civil penalties
against Defendant Wanxiang America Corporation (“Wanxiang”) for nine counts of grossly
negligent and negligent violations of 19 U.S.C. § 1592 across hundreds of entries. The Complaint
pleads two categories of claims. First, the Government alleges that Wanxiang negligently failed
to identify that its entries of wheel hub assemblies (“WHAs”) were subject to the antidumping
Court No. 22-00205 Page 2
duty order on taper roller bearings (“TRBs”) and, in turn, did not pay the requisite antidumping
duties. 1 See Antidumping Duty Order; Tapered Roller Bearings and Parts Thereof, Finished or
Unfinished, from the People’s Republic of China, 52 Fed. Reg. 22667 (Dep’t Com. June 15, 1987)
(“TRB Order”). Second, the Government alleges that Wanxiang negligently classified its entries
of automotive parts and accessories under incorrect item numbers of the Harmonized Tariff
Schedule of the United States (“HTSUS”); some of those classifications, the Government further
1
A “bearing” is “a machine part in which another part (such as a journal or pin) turns or slides.”
Bearing, Merriam-Webster, https://www.merriam-webster.com/dictionary/bearing (last updated
Aug. 11, 2023). “TRBs are a type of antifriction bearing made up of an inner ring (cone) and an
outer ring (cup). Cups and cones sell either individually or as a preassembled ‘set.’” NTN Bearing
Corp. of Am. v. United States, 127 F.3d 1061, 1063 (Fed. Cir. 1997).
WHAs, while similar to TRBs, are “significantly different products” according to Wanxiang.
Def.’s Br. at 8. In connection with a sunset review of the TRB Order, the International Trade
Commission (“ITC”) stated that:
All TRBs . . . including wheel hub assemblies, share the same basic elements (i.e.,
cups, cones, rolling elements, and cages) and perform the same basic functions of
reducing friction among moving parts, carrying loads, and handling radial and
thrust forces. Indeed, most of the value of a wheel hub assembly is attributed to
components common to TRBs and wheel hub assemblies.
Tapered Roller Bearings from China at 12, Inv. No. 731-TA-344 (Third Review), USITC Pub.
4343 (Aug. 2012) (emphasis added). Nonetheless, the ITC found that the majority of market
participants indicated that TRBs and WHAs:
do not have the same physical characteristics or end uses, citing, for example, that
wheel hub assemblies are dedicated for automotive use whereas TRBs have
multiple applications and that wheel hub assemblies incorporate additional features
or parts, such as flanges or ABS components not found on TRBs.
Id. The question of whether WHAs are “significantly different” from TRBs is relevant to whether
Wanxiang exercised reasonable care in not identifying WHA entries as subject to the TRB Order.
See infra pp. 30–32. For that reason, apart from presuming the pleaded allegations as true and
drawing all reasonable inferences in favor of the Government, the court expresses no view on the
degree of similarity between the two products at this stage.
Court No. 22-00205 Page 3
alleges, resulted from gross negligence because Wanxiang knew that those classifications were
incorrect.
Wanxiang moved to dismiss the Complaint, see Compl., July 13, 2022, ECF No. 2, for
failure to state a claim under USCIT Rule 12(b)(6), see Def.’s Mot. to Dismiss, Oct. 12, 2022, ECF
No. 12. Per Wanxiang, both categories of claims fail as a matter of law. First, Defendant contends
that while it is now clear that the TRB Order applies to WHAs, it had no fair notice at the time of
the entries; the Government’s attempt to collect duties and penalties on Wanxiang’s then-
reasonable interpretation of the TRB Order amounts to an impermissibly retroactive application of
law. Second, Wanxiang argues that the alleged misclassifications of automotive parts and
accessories fail for three reasons: (i) misclassifications alone cannot constitute the basis for a false
statement under 19 U.S.C. § 1592; (ii) classification under a particular tariff heading was correct
as a matter of law; and (iii) an alleged nonbinding notice from Customs cannot, without more,
plausibly establish gross negligence or negligence.
Wanxiang’s Motion to Dismiss is denied. Considering the issues relating to automotive
parts first, the court holds that (i) an alleged misclassification, without more, sufficiently pleads
falsity under § 1592; (ii) Wanxiang’s proposed tariff heading improperly wades into the merits at
the pleadings stage; and (iii) the nonbinding nature of a Customs notice does not vitiate an
importer’s duty of reasonable care and can support a factual finding that an importer acted in gross
negligence of the customs laws. Finally, accepting all allegations in the Complaint as true and
construing all reasonable inferences in favor of Plaintiff, the court concludes that Wanxiang’s fair
notice objection raises relevant questions about whether Wanxiang acted negligently but does not
preclude § 1592 liability as a matter of law.
Court No. 22-00205 Page 4
BACKGROUND
I. Legal Framework
It is an importer’s responsibility to exercise reasonable care when entering merchandise
into the United States. See 19 U.S.C. § 1484(a); 19 C.F.R. pt. 171, app. B(D)(6) (2022). An
importer must, “using reasonable care,” “make entry . . . by filing with [Customs] . . . such
information as is necessary to enable [Customs] to determine whether the merchandise may be
released from custody of the Bureau of Customs and Border Protection.” 19 U.S.C. §
1484(a)(1)(A). Customs’s regulations require that importers file an “entry summary,” and, at time
of entry, file “[e]vidence of the right to make an entry,” a “commercial invoice,” and a “packing
list.” 19 C.F.R. § 142.3(a)–(b). Among other requirements, “[t]he entry summary filed for
merchandise subject to an antidumping or countervailing duty order must include the unique
identifying number assigned by the Department of Commerce, International Trade
Administration.” Id. § 141.61(c).
19 U.S.C. § 1592 enables the United States to enforce those requirements against importers.
Under § 1592, the United States may file suit in the Court of International Trade to collect lost
revenue and civil penalties for the fraudulent, grossly negligent, or negligent entry of merchandise
into the United States by means of material false information or material omission.2 Subsection
1592(a) states in relevant part:
2
Before filing suit in court, Customs must initiate an administrative process. Id. § 1592(b). As
part of that administrative process, Customs must issue a “pre-penalty notice” to the allegedly
offending importer, a “written penalty notice,” and ultimately a “final determination and the
findings of fact and conclusions of law on which such a determination is based.” Id. The importer
has two opportunities to make representations to Customs defending its conduct: first after the pre-
penalty notice, and second after the written penalty notice. Id. § 1592(b)(1)(A)(vii), (b)(2).
Court No. 22-00205 Page 5
Without regard to whether the United States is or may be deprived of all or a portion
of any lawful duty, tax, or fee thereby, no person, by fraud, gross negligence, or
negligence—
(A) may enter, introduce, or attempt to enter or introduce any merchandise
into the commerce of the United States by means of—
(i) any document or electronically transmitted data or information,
written or oral statement, or act which is material and false, or
(ii) any omission which is material . . . .
19 U.S.C. § 1592(a)(1)(A). Claims under § 1592(a) require, then, at most four elements:
(1) act or omission;
(2) materiality;
(3) falsity (if the violation is not premised on an omission); and
(4) culpability.
See id. 3
Under element four, Customs’s regulations further define the three degrees of culpability
in § 1592: fraud, gross negligence, and negligence. See 19 C.F.R. pt. 171, app. B(C) (2022). Only
gross negligence and negligence are at issue here. Grossly negligent violations of § 1592 “result[]
from an act or acts (of commission or omission) done with actual knowledge of or wanton
disregard for the relevant facts and with indifference to or disregard for the offender’s obligations
under the statute.” Id. pt. 171, app. B(C)(2); United States v. Ford Motor Co., 463 F.3d 1286, 1292
(Fed. Cir. 2006) (“An importer is guilty of gross negligence if it behaved willfully, wantonly, or
with reckless disregard in its failure to ascertain both the relevant facts and the statutory obligation,
3
Section 1592 liability may also be premised on aiding and abetting conduct, which is not at issue
in this case. See id. § 1592(a)(1)(B).
Court No. 22-00205 Page 6
or acted with an utter lack of care.”). Moreover, “if the monetary penalty is based on gross
negligence, the United States shall have the burden of proof to establish all the elements of the
alleged violation.” 19 U.S.C. § 1592(e)(3). The maximum penalty for gross negligence is “the
lesser of (i) the domestic value of the merchandise, or (ii) four times the lawful duties, taxes, and
fees of which the United States is or may be deprived.” Id. § 1592(c)(2)(A).
By contrast, an importer’s conduct is negligent if:
it 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.
19 C.F.R. pt. 171, app. B(C)(1). As a general rule, a failure “(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” would constitute
negligence. Id. In negligence cases, “Customs has the burden merely to show that a materially
false statement or omission occurred; once it has done so, the defendant must affirmatively
demonstrate that it exercised reasonable care under the circumstances.” Ford, 463 F.3d at 1279;
see also 19 U.S.C. § 1592(e)(4) (shifting burden to the alleged violator to show that its act or
omission “did not occur as a result of negligence”). The maximum penalty for negligence is “the
lesser of (i) the domestic value of the merchandise, or (ii) two times the lawful duties, taxes, and
fees of which the United States is or may be deprived.” 19 U.S.C. § 1592(c)(3)(A).
Finally, subsection 1592(d) allows the United States to recover any lawful duties, taxes, or
fees lost “as a result of a violation of subsection (a) . . . , whether or not a monetary penalty is
assessed.” Id. § 1592(d).
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II. Factual Background
The following facts are allegations pleaded in the Complaint. Defendant Wanxiang is a
subsidiary of Wanxiang Group Corporation, a multinational automotive components
manufacturing company located in the People’s Republic of China (“China”). Compl. ¶ 6.
Wanxiang imported universal joints and parts thereof (including crosses, cross assemblies, yokes,
caps, cups, bearing caps, and bearing kits), WHAs incorporating radial ball and tapered roller
bearings, radial ball bearings, tapered roller bearings, and other parts and accessories of
automobiles (including axles, cages for double offset joints of constant velocity axles (“CV”),
races for CV axles used in utility vehicles, CV-joint parts, tube assemblies, and steering shafts for
combines) into the United States from October 1, 2007, to September 30, 2012. Id. ¶¶ 8–9. That
merchandise, the Government alleges, was negligently or grossly negligently entered into the
United States by means of material false statements or omissions in violation of 19 U.S.C. § 1592.
See id. ¶ 9.
The Government asks that the court enter judgment against Wanxiang for (1) unpaid duties,
taxes and fees (lost revenue) pursuant to 19 U.S.C. § 1592(d) in the amount of $31,185,209.11,
plus pre-judgment interest pursuant to 19 U.S.C. § 1505, and (2) a penalty in the amount of
$66,190,766.98, plus interest, for negligent and grossly negligent violations of 19 U.S.C. §
1592(a). Id. at 13. “[A]bsent judgment on Counts Five and Seven for grossly negligent violations
of 19 U.S.C. § 1592(a),” the Government alternatively requests that the court assess a penalty in
the amount of $62,370,418.22, plus interest, for negligent violations of 19 U.S.C. § 1592(a). Id.
at 14. To support its claim for relief, the Complaint pleads nine counts that are summarized in the
following sections.
Court No. 22-00205 Page 8
A. Count 1: Recovery of Lost Revenue Relating to All Products
The United States demands unpaid customs and antidumping duties, taxes, or fees (lost
revenue) in the amount of $31,185,209.11 under 19 U.S.C. § 1592(d). See id. ¶¶ 58–59.
B. Count 2: Penalty for Negligence Relating to Wheel Hub Assemblies
In 1987, Commerce issued an antidumping duty order covering TRBs and parts thereof,
finished or unfinished, from China. See TRB Order, 52 Fed. Reg. 22667. The scope of the
antidumping duty order, unchanged from that of the underlying antidumping duty investigation,
encompassed:
[T]apered roller bearings and parts thereof, currently classified in Tariff Schedules
of the United States (TSUS) items 680.30 and 680.39; flange, take-up cartridge,
and hanger units incorporating tapered roller bearings, currently classified in TSUS
item 681.10; and tapered roller housings (except pillow blocks) incorporating
tapered rollers, with or without spindles, whether or not for automotive use,
currently classified in item 692.32 or elsewhere in the TSUS.
Tapered Roller Bearings, Rollers and Parts Thereof, Finished or Unfinished, From the People’s
Republic of China; Initiation of Antidumping Duty Investigation, 51 Fed. Reg. 33283, 33284
(Dep’t Com. Sep. 19, 1986); see also Tapered Roller Bearings and Parts Thereof, Finished or
Unfinished, From the People’s Republic of China; Preliminary Determination of Sales at Less
Than Fair Value, 52 Fed. Reg. 3833, 3833 (Dep’t Com. Feb. 6, 1987) (detailing the same scope).
The antidumping case number assigned to the TRB Order is A-570-601. 52 Fed. Reg. at 22667.
From October 1, 2007, to September 30, 2012, Wanxiang entered WHAs exported by
Wanxiang Qianchao Company Limited into the United States. Id. ¶ 20. The Government alleges
three material false statements or omissions in violation of 19 U.S.C. § 1592 in connection with
Wanxiang’s entry of WHAs: (1) Wanxiang identified the WHAs on the relevant entry summary
as “01” consumption entries, not as “03” antidumping entries, see id. ¶ 23; (2) Wanxiang omitted
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the antidumping case number, A-570-601, on the relevant entry summary, see id. ¶ 24; and (3)
Wanxiang classified the WHAs as automobile parts under Harmonized Tariff Schedule of the
United States (HTSUS) heading 8708, in either subheading 8708.99.6890 or subheading
8708.99.8180, at a duty rate of 2.5 percent ad valorem, see id. ¶ 26.
Those three statements or omissions, the Complaint alleges, resulted from a lack of
reasonable care and amount to a negligent violation of 19 U.S.C. § 1592. Id. ¶ 61. The
Government seeks a penalty for negligence in the amount of $53,879,970.62, which represents
two times the total loss of antidumping duties of $26,939,985.31 for the WHAs. Id. ¶ 62.
C. Count 3: Penalty for Negligence Relating to Radial Ball Bearings and
TRBs
From October 1, 2007, to September 30, 2012, Wanxiang entered radial ball bearings and
TRBs into the United States. Id. ¶ 29. Wanxiang classified the radial ball and TRBs that it entered
under HTSUS heading 8708, in either subheading 8708.99.6890 or subheading 8708.99.8180, at
a duty rate of 2.5 percent ad valorem. Id. ¶ 30. The Complaint alleges that the entries are instead
properly classifiable under HTSUS heading 8482, which covers “Ball or roller bearings,” and are
specifically described by subheading 8482.10.5016 at a duty rate of 9 percent ad valorem,
subheading 8482.10.5068 at a duty rate of 9 percent ad valorem, subheading 8482.20.0080 at a
duty rate of 5.8 percent ad valorem, and subheading 8482.99.0500 at a duty rate of 9.9 percent ad
valorem. Id. ¶ 31.
That false statement, the Complaint alleges, resulted from a lack of reasonable care and
amounts to a negligent violation of 19 U.S.C. § 1592. Id. ¶ 64. The Government seeks a penalty
for negligence in the amount of $1,204,204.64, which represents two times the total loss of
antidumping duties of $602,102.32 for the for the radial ball bearings and TRBs. Id. ¶ 65.
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D. Counts 4–6: Universal Joints and Parts of Universal Joints
From October 1, 2007, to September 30, 2012, Wanxiang entered universal joints and parts
and accessories of universal joints (including crosses, cross assemblies, yokes, caps, cups, bearing
caps, and bearing kits) into the United States. Id. ¶ 34. Before July 1, 2009, Wanxiang classified
the universal joints and parts and accessories of universal joints under several HTSUS headings:
(1) Heading 8708, in subheading 8708.94.7510 at a duty rate of 2.5 percent ad valorem, subheading
8708.99.1600 duty free, and subheading 8708.99.6890 at a duty rate of 2.5 percent ad valorem; (2)
Heading 8709, in subheading 8709.90.0000 as duty free; and Heading 8483, in subheadings
8483.10.5000, 8483.90.0030, and 8483.90.0080, all duty free. Id. ¶ 35.
Those false statements before July 1, 2009, the Complaint alleges, resulted from a lack of
reasonable care and amounts to a negligent violation of 19 U.S.C. § 1592. Id. ¶ 67. The
Government seeks a penalty for negligence in the amount of $3,368,808.32, which represents two
times the total loss of duties of $1,684,404.16 for the universal joints and parts and accessories of
universal joints entered on and between October 1, 2007, and July 1, 2009. Id. ¶ 68.
On July 1, 2009, Customs issued a CBP Form 29, “Notice of Action,” to Wanxiang. Id. ¶
36. In the Notice of Action, Customs stated that Wanxiang had misclassified crosses and steering
yokes in entry number BZF-60075095, under HTSUS subheading 8432.90.0080 as duty free, and
also advised Wanxiang that the correct tariff classification of crosses and steering yokes is under
HTSUS subheading 8483.90.8040 at a duty rate of 2.8 percent ad valorem. Id. Following the
Notice of Action on July 1, 2009, Wanxiang continued to classify universal joints and parts and
accessories of universal joints (including crosses, cross assemblies, yokes, caps, cups, bearing
caps, and bearing kits) into the United States under subheading 8708.94.7510 at a duty rate of 2.5
Court No. 22-00205 Page 11
percent ad valorem, subheading 8708.99.1600 duty free, subheading 8708.99.6890 at a duty rate
of 2.5 percent ad valorem, subheading 8709.90.0000 duty free, and subheadings 8483.10.5000,
8483.90.0030, and 8483.90.0080, all duty free. Id. ¶ 37.
Count 5 of the Complaint charges that Wanxiang’s conduct after the Notice of Action on
July 1, 2009, was grossly negligent. Id. ¶ 70. The Government seeks a penalty for gross negligence
in the amount of $7,557,676.92, which represents four times the total loss of revenue of
$1,889,419.23 for the universal joints and parts and accessories of universal joints entered after
July 1, 2009, and until September 30, 2012. Id. ¶ 71. In the alternative, Count 6 charges that
Wanxiang’s conduct after the Notice of Action on July 1, 2009, was negligent. Id. ¶ 73. The
Government seeks a penalty for negligence in the amount of $3,778,838.46, which represents two
times the total loss of revenue of $1,889,419.23 for the universal joints and parts and accessories
of universal joints entered after July 1, 2009, and until September 30, 2012. Id. ¶ 74.
E. Counts 7–8: Universal Joints That Were Entered Under a Duty-Free
Actual Use Provision for Agricultural Parts
Wanxiang also entered universal joints duty free as parts of agricultural machines under
HTSUS Heading 9817, subheading 9817.00.6000, an actual use provision that is subject to the
requirements of 19 C.F.R. §§ 10.133–139. Id. ¶ 42. The Complaint alleges that “Wanxiang was
aware of” the relevant requirements in the Code of Federal Regulations at the time of the entry.
Id. ¶ 43.
Count 7 charges that Wanxiang’s conduct was grossly negligent. Id. ¶ 76. The
Government seeks a penalty for gross negligence in the amount of $83,020.60, which represents
four times the total loss of revenue of $20,755.15 for the agriculture machine parts. Id. ¶ 77. In
the alternative, Count 8 charges that Wanxiang’s conduct was negligent. Id. ¶ 79. The
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Government seeks a penalty for negligence in the amount of $41,510.30, which represents two
times the total loss of revenue of $20,755.15 for the agricultural machine parts. Id. ¶ 80.
F. Count 9: Miscellaneous Parts
Finally, Wanxiang entered miscellaneous parts and accessories into the United States. Id.
¶ 46. Wanxiang classified these miscellaneous parts and accessories under several HTSUS
subheadings, including subheadings 8432.90.0080, 8708.99.1600, and 8709.90.0000, all duty-free
tariff provisions. Id. ¶ 47. The Complaint alleges that the entries are instead properly classifiable
under HTSUS subheading 8483.90.8010 at a duty rate of 2.8 percent ad valorem, subheading
8708.50.5110 at a duty rate of 2.5 percent ad valorem, or subheading 8708.99.6890 at a duty rate
of 2.5 percent ad valorem. Id. ¶ 48.
Count 9 charges that Wanxiang’s conduct was negligent. Id. ¶ 82. The Government seeks
a penalty for negligence in the amount of $97,085.88, which represents two times the total loss of
revenue of $48,542.94 for the miscellaneous parts and accessories. Id. ¶ 83.
III. Procedural History
On January 17, 2018, Customs issued a pre-penalty notice to Wanxiang that CBP was
contemplating issuing a demand for duties in the amount of $35,973,268.39 and a penalty in the
amount of $77,157,756.08 for violation of 19 U.S.C. § 1592. Id. ¶ 51. Wanxiang responded to
the pre-penalty notice on June 27, 2018. Id. ¶ 52. On April 11, 2019, Customs issued a notice to
Wanxiang assessing a penalty in the amount of $66,190,766.98 for multiple negligent and grossly
negligent violations of 19 U.S.C. § 1592, and demanding payment of $31,185,209.11 in lost
revenue. Id. ¶ 53. Wanxiang has not paid the total amount of $97,375,976.09 in lost revenue and
penalties that Customs has demanded. Id. ¶ 55.
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Seeking to collect lost revenue under § 1592(d) and assess penalties under § 1592(c), the
Government timely filed this action. See Compl. Wanxiang filed the instant Motion to Dismiss
the Complaint on October 12, 2022. See Def.’s Mot. to Dismiss; Def.’s Mem. of Law in Support
of Def.’s Mot. to Dismiss, Oct. 12, 2022, ECF No. 12-1 (“Def.’s Br.”). The United States filed a
response on December 21, 2022, see Pl.’s Opp. to Def.’s Mot. to Dismiss, Dec. 21, 2022, ECF No.
15, to which Wanxiang filed a reply on February 3, 2023, see Def.’s Reply, Feb. 3, 2023, ECF No.
23. The court issued questions in advance of oral argument, see Ct.’s Qs. for Oral Arg., Apr. 7,
2023, ECF No. 26, to which the parties filed responses, see Pl.’s Resp. to Ct.’s Qs., Apr. 20, 2023,
ECF No. 27; Def.’s Resp. to Ct.’s Qs., Apr. 20, 2023, ECF No. 28. The court invited parties to
file submissions after oral argument on May 17, 2023, see Oral Arg., May 17, 2023, ECF No. 34,
and both parties made such submissions on May 26, 2023, see Pl.’s Post Oral Arg. Br., May 26,
2023, ECF No. 35; Def.’s Letter to the Ct., May 26, 2023, ECF No. 36.
JURISDICTION AND STANDARD OF REVIEW
The court has subject matter jurisdiction under 28 U.S.C. § 1582, which grants to the Court
of International Trade “exclusive jurisdiction of any civil action which arises out of an import
transaction and which is commenced by the United States . . . to recover a civil penalty under
section 592 . . . of the Tariff Act of 1930.” Id. § 1582(1).
Before the court is Wanxiang’s Motion to Dismiss the Complaint for failure to state a claim
under USCIT Rule 12(b)(6). See Mot. to Dismiss at 1. Identical to its FRCP analogue, USCIT
Rule 12(b)(6) allows litigants to move to dismiss any or all claims for relief in a pleading for
“failure to state a claim upon which relief can be granted.” USCIT R. 12(b)(6). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
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claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hartford Fire Ins. Co. v.
United States, 772 F.3d 1281, 1284 (Fed. Cir. 2014). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
at 556).
When considering a motion to dismiss, the court must accept well-pleaded factual
allegations in the Complaint to be true and draw all reasonable inferences in favor of the
nonmoving party. Hartford Fire, 772 F.3d at 1284. The court’s factual review is usually limited
to the four corners of the Complaint but may also include “matters incorporated by reference or
integral to the claim, items subject to judicial notice, [and] matters of public record.” A & D Auto
Sales, Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014) (alteration in original) (citation
omitted).
DISCUSSION
Wanxiang’s challenges to the Complaint are grouped into two categories. First, seeking to
dismiss Counts 3 through 7 of the Complaint, Wanxiang argues that the Complaint fails to state a
§ 1592 claim with respect to its tariff classification of automotive parts and accessories for three
different reasons. Second, taking aim at Count 2 of the Complaint, Wanxiang contends that the
Complaint fails to state a § 1592 claim with respect to the WHA entries because Wanxiang did not
have fair notice that WHAs were subject to the TRB Order. The below table summarizes each
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I. The Complaint States a § 1592 Claim with Respect to Wanxiang’s Tariff
Classification of Automotive Parts and Accessories
Wanxiang argues that various counts within Counts 3 through 9 fail to state a claim for
three reasons. First, Wanxiang contends that alleged misclassifications, standing alone, cannot
constitute false statements under § 1592 because Wanxiang’s misclassifications were the result of
bona fide disagreement over the law and not misstatements of fact. Second, Wanxiang claims that
its classification for universal joints was correct as a matter of law and, therefore, cannot be a false
statement. And third, Wanxiang urges the court to dismiss the charges of gross negligence and
negligence premised on the Notice of Action from Customs because the Notice of Action was not
prospectively binding on Wanxiang. The court considers and finds unpersuasive in turn all three
contentions.
A. Counts 3 Through 9 State a Claim Because Misclassifications Can
Constitute False Statements.
Seeking to dismiss Counts 3 through 9, Wanxiang argues that the Complaint’s allegations
that Wanxiang misclassified the articles at issue in those counts cannot, without more, constitute
false statements required for § 1592 liability. See Def.’s Br. at 39–44. Defendant insists that the
tariff classifications asserted by Wanxiang in its entry paperwork are legal conclusions upon which
reasonable minds can disagree, not statements of fact that constitute the “false statements and
omissions in violation of 19 U.S.C. § 1592(a)” as alleged in the Complaint. Id. at 41–42, 44.
Wanxiang’s argument hinges on the meaning of falsity in § 1592. As discussed above,
pleading a § 1592 claim premised on an act, rather than omission, requires four elements: (1) the
act; (2) falsity; (3) materiality; (4) culpability. See 19 U.S.C. § 1592(a)(1)(A). It is uncontested
that misclassification qualifies as a “written . . . statement,” see id., and that the Complaint
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adequately pleaded the misclassifications as “material,” see Def.’s Br. at 39–45; Def.’s Reply at
28. The precise question then is not whether the misclassification is more legal or factual in nature,
but whether the Government can establish that Wanxiang’s classification was “false” under §
1592.
“False” is undefined both in § 1592 and the agency’s accompanying regulations. See 19
U.S.C. § 1592; 19 C.F.R. pt. 171, app. B(C). So the court turns to “its ordinary meaning.” United
States v. Sterling Footwear, 41 CIT __, __, 279 F. Supp. 3d 1113, 1128 (2017) (citing United
States v. Rockwell Automation Inc., 30 CIT 1552, 1557, 462 F. Supp. 2d 1243, 1248 (2006)). A
statement is “false” when it is “untrue,” “deceitful,” or “erroneous.” False, Black’s Law Dictionary
(11th ed. 2019); see also Sterling Footwear, 217 F. Supp. 3d at 1128 (defining “false” in § 1592
as “untrue” or “not genuine; inauthentic”). And even if a statement is material and false, the
statement must also have been the result of culpable intent—fraud, gross negligence, or
negligence—in order to establish § 1592 liability. See 19 U.S.C. § 1592(a)(1); see also id. §
1592(a)(2) (noting further that “clerical errors or mistakes of fact are not violations . . . unless they
are part of a pattern of negligent conduct”).
A misclassification on the entry paperwork, standing alone, is a false written statement that
may establish § 1592 liability. The act of declaring that an article is classified under a particular
HTSUS subheading includes at least two component assertions: (1) a legal assertion about the
proper meaning of the specific terms in the tariff provision, and (2) a factual assertion that the
application of the facts to the law would justify a particular subheading as properly construed. See
Franklin v. United States, 289 F.3d 753, 757 (Fed. Cir. 2002) (whereas “[t]he proper scope and
meaning of a tariff classification term is a question of law,” the question of “whether the goods at
Court No. 22-00205 Page 18
issue fall within a particular tariff term as properly construed is a question of fact”). Whether the
first assertion is false is related to the meanings of “wrong” or “erroneous”; the importer unlawfully
construes the tariff provision. Whether the second assertion is false implicates the definitions of
“untrue” or even “deceitful”; the importer is misrepresenting the nature of the product or has failed
to correctly apply the law to a set of facts. One or both of those assertions may be at issue in any
given case where an alleged misclassification forms the basis for § 1592 liability.
Prior decisions of this court have similarly considered misclassifications to be false
statements under § 1592. See, e.g., United States v. Cruzin Cooler, LLC, 44 CIT __, __, 459 F.
Supp. 3d 1366, 1375 (2020) (“[A] misclassification of merchandise on Customs’ entry
documentation establishes a false statement.”); United States v. Six Star Wholesale, Inc., 43 CIT
__, __, 359 F. Supp. 3d 1314, 1317, 1319–21 (2019) (the defendant “falsely classif[ied] 27 entries
of wire hangers as ‘clothes racks,’” “falsely indicat[ed] that no antidumping duties should be
assessed” by filing “01” type entries, and was at fault for “erroneous descriptions and classification
of the subject merchandise”) 4; Sterling Footwear, 279 F. Supp. 3d at 1135–37 (evaluating “whether
the undisputed facts demonstrate the falsity of the asserted classification” and concluding that “the
unrebutted evidence demonstrates the existence of a false statement; i.e., that the subject entries
were misclassified”); United States v. Int’l Trading Servs., LLC, 41 CIT __, __, 222 F. Supp. 3d
1325, 1332 (2017) (finding that “the classification of the entries under subheading 1701.99.0500
4
Particularly analogous to the Complaint here, the complaint in Six Star Wholesale pleaded
misclassification of polyethylene retail carrier bags (“PRCBs”) without any other allegations of
untrue factual descriptions in the Customs paperwork. See Compl. ¶¶ 14–15, Six Star Wholesale,
359 F. Supp. 3d 1314 (CIT filed Oct. 8, 2014). Reviewing a motion for default judgment, the court
nonetheless found that the complaint was well pleaded and assessed penalties based in part on the
misclassification of PRCBs. See Six Star Wholesale, 359 F. Supp. 3d at 1319, 1321–23.
Court No. 22-00205 Page 19
constituted a false statement” because the entries were “not covered by the provisions of” an
applicable general note in the HTSUS); United States v. Optrex Am., Inc., 32 CIT 620, 631–32,
560 F. Supp. 2d 1326, 1336–37 (2008) (“Customs has proven by a preponderance of the evidence
that Optrex made material false statements or omissions . . . . During the period under review,
Optrex classified LCD glass panels under HTSUS heading 8531, which the Federal Circuit has
since declared the wrong classification for such devices.”), appeal voluntarily dismissed, 329 F.
App’x 264 (Fed. Cir. 2009). Wanxiang does not cite to, nor is the court aware of, a case where
pleading falsity under § 1592 has required the narrower allegation that a statement of fact was
untrue. See Def.’s Br. at 39–45; Def.’s Reply at 25–28. 5
5
Wanxiang appears to ground its interpretation of § 1592 being limited to misstatements of fact
in § 1484, which states that an importer’s “entry shall set forth such facts in regard to the
importation as the Secretary may require.” 19 U.S.C. § 1484(d)(1); see Def.’s Br. at 16–17. But
Wanxiang cites no case for the proposition, nor does the court find it convincing, that because an
importer’s duty requires accurate statements of fact—which no party disputes—falsity must be
limited to untrue statements of fact.
Wanxiang’s citation to Fabrene, Inc. v. United States, 17 CIT 911 (1993), is unavailing for two
reasons. See Def.’s Br. at 42. First, the statute in that case stated that Customs may reliquidate an
entry to correct “a clerical error, mistake of fact, or other inadvertence not amounting to an error
in the construction of a law.” 19 U.S.C. § 1520(c)(1) (1988) (repealed 2004) (emphasis added).
Unlike § 1592, § 1520 did not include the word “false” and expressly distinguished between
mistakes of fact and erroneous constructions of law. Second, the complaint in that case alleged
that if Customs had physically examined the sample of imported merchandise instead of relying
on the NIS description, then it would have properly classified that merchandise. See Fabrene, 17
CIT at 914. But “Customs’ reliance on the NIS description does not itself establish a mistake of
fact,” which was defined as “‘a mistake which takes place when some fact which indeed exists is
unknown, or a fact which is thought to exist, in reality does not exist’”; the complaint, therefore,
failed to state a claim. Id. (emphasis added) (quoting C.J. Tower & Sons of Buffalo, Inc. v. United
States, 68 Cust. Ct. 17, 22, 336 F. Supp 1395, 1399 (1972)). The court next reasoned that the
misclassification by Customs in that case resulted from an error in the construction of the
applicable law—another reason that the complaint failed to state a claim—but it did not hold that
misclassifications always result from errors in law. See id.Court No. 22-00205 Page 20
At the root of Wanxiang’s argument about falsity are well-founded concerns that
reasonable disagreements in classification may still subject an importer to § 1592 liability. It warns
that “[a]llowing the Government’s case to proceed . . . would amount to a judicial rewriting of §
1592 to cover the declaration of wrong legal conclusions.” Def.’s Reply at 27. Because § 1592
raises the specter of civil penalties against importers, Wanxiang is right to question the outer
bounds of unlawful conduct. Two significant hurdles for the Government, however, keep the risk
of regulatory overbreadth at bay.
First, the Government has the burden of proving that Wanxiang’s classifications were
actually false; put simply, that another HTSUS subheading must apply. See 19 U.S.C. 1592(e)(3)–
(4) (“the United States shall have the burden of proof to establish all the elements of the alleged
violation” in gross negligence cases, and to establish only “the act or omission constituting the
violation” in negligence cases); see also, e.g., Sterling Footwear, 279 F. Supp. 3d at 1135–37 (false
because of statements from Customs that the article was misclassified, the court’s conclusion that
one subheading clearly applied to the physical samples, and the determination that none of the
defendant’s proffered evidence raised a genuine issue of material fact); Int’l Trading Servs., 222
F. Supp. 3d at 1332 (false because the evidence established that the entries were not covered by
the provisions of an HTSUS general note); Optrex Am., 560 F. Supp. 2d at 1337 (false because a
Federal Circuit case had “defined the proper classification scheme for the company’s LCDs”).
Wanxiang’s analogies to the doctrines of perjury, misrepresentation, and fraud, see Def.’s Br. at
42–44, are also inapplicable because those doctrines expressly require misstatements of fact. See
United States v. Debrow, 346 U.S. 374, 376 (1953) (requiring “a false statement willfully made as
to facts material to the hearing” under 18 U.S.C. § 1621); Restatement (Second) of Conts. § 159
(Am. L. Inst. 1981) (“A misrepresentation is an assertion that is not in accord with the facts.”); id.
§§ 161–162 (relying on that definition of misrepresentation to define fraudulent conduct). The
more persuasive analogy is the False Claims Act, see infra note 6.
Court No. 22-00205 Page 21
Second, the culpability element ensures that Wanxiang will not be liable for classifications
based on reasonable differences in opinion. In this case, the Government has charged either
negligence, see Compl. ¶¶ 64, 67, 73, 79, 82, for which Wanxiang must show that the material
false statement did not “result[] from . . . the failure to exercise the degree of reasonable care and
competence expected from a person in the same circumstances,” 19 C.F.R. pt. 171, app. B(C)(1);
or gross negligence, see Compl. ¶¶ 70, 76, for which the Government must show that the material
false statement “result[ed] from an act or acts . . . done with actual knowledge of or wanton
disregard for the relevant facts and with indifference to or disregard for the offender's obligations
under the statute,” 19 C.F.R. pt. 171, app. B(C)(2). And as Customs’s own regulations make clear,
an “unreasonable classification will be considered a lack of reasonable care (e.g., imported snow
skis are classified as water skis),” which “may result in imposition of a section 592 penalty for
fraud, gross negligence or negligence.” Id. pt. 171, app. B(D)(6) (emphasis added).
That leads us to the broader point. Wanxiang’s arguments about reasonable disagreement
are actually not falsity arguments at all; they are better understood as defenses to the Government’s
allegations of its culpability. As discussed above, Customs regulations frame the question of
reasonable versus unreasonable classification in terms of an importer’s failure to exercise
reasonable care. See id. pt. 171, app. B(D)(6). So, too, did a congressional report in even greater
detail. A joint Senate committee report on the North American Free Trade Agreement
Implementation Act, which revised provisions of § 1592, states that “the failure to follow a binding
ruling is a lack of reasonable care,” but that “an honest, good faith professional disagreement as to
the correct classification of a technical matter shall not be considered to be lack of reasonable care
unless such disagreement has no reasonable basis (e.g., snow skis are entered as water skis).” S.
Court No. 22-00205 Page 22
Rep. No. 103-189, at 73 (1993) (emphasis added). And notably, courts interpreting the False
Claims Act—a statute analogous to § 1592 because it authorizes civil penalties for false statements
made to the Government—have slotted similar arguments regarding reasonable disagreement over
legal ambiguity into the falsity, not culpability, element. 6 Any potential determination that
Wanxiang is culpable for its alleged false statements will require a degree of culpability that
exceeds reasonable disagreement between Wanxiang and Customs about which HTSUS
subheading applies; but that has little to do with whether the classification that Wanxiang chose
was indeed false.
In the factual allegations relevant to each of Counts 3 through 9, the Complaint pleads the
HTSUS subheadings under which Wanxiang classified the automotive parts and accessories that
it entered into the United States. See Compl. ¶¶ 30, 35, 37, 42, 47. And for each count,
Government further pleads either the alternative classification that it alleges would have been
proper (and, therefore, that it intends to prove must apply), see id. ¶¶ 31, 36, 48, or a more specific
reason as to why Wanxiang’s proposed classification does not apply, see id. ¶¶ 42–43. Those same
facts and legal conclusions substantiate the Government’s allegations that Wanxiang either failed
to exercise reasonable care, see id. ¶¶ 64, 67, 73, 79, 82, or acted with actual knowledge of or in
wanton disregard of the applicable laws, see id. ¶¶ 70, 76. Those allegations establish falsity and
6
See 31 U.S.C. § 3729. The FCA states, in the part most analogous to § 1592, that “any person
who . . . knowingly makes, uses, or causes to be made or used, a false record or statement material
to a false or fraudulent claim . . . is liable to the United States Government for a civil penalty.” Id.
§ 3729(a)(1). But the argument “that a defendant cannot be held liable for failing to comply with
an ambiguous term[] go[es] to whether the government proved knowledge,” not whether the
statement was false. United States ex rel. Purcell v. MWI Corp., 807 F.3d 281, 287 (D.C. Cir.
2015); see also United States ex rel. Drakeford v. Tuomey, 792 F.3d 364, 384 (4th Cir. 2015);
United States v. Bourseau, 531 F.3d 1159, 1164 n.2 (9th Cir. 2008). So, too, here. Wanxiang’s
core argument about the reasonableness of its classifications goes to culpability, not falsity.
Court No. 22-00205 Page 23
culpability “above the speculative level on the assumption that all the [factual] allegations in the
complaint are true.” Twombly, 550 U.S. at 555 (citation and footnote omitted). The Complaint
adequately pleads § 1592 claims for the automotive parts, and Wanxiang’s arguments about
reasonable disagreement are unpersuasive at this stage and better suited for later in the litigation.
B. Counts 4 Through 6 State a Claim Because Wanxiang Cannot Establish
That Its Misclassification for Universal Joints Was Not False as a Matter
of Law.
Wanxiang also argues that the Complaint failed to state a claim for Counts 4 through 6
because the universal joints imported by Wanxiang are not properly classified as “Parts of
Universal Joints” under HTSUS heading 8483, as claimed by Customs, but rather under HTSUS
heading 8708. See Def.’s Br. at 45–48. Reframing the argument in terms of the § 1592’s elements,
Wanxiang effectively contends that the classifications alleged in Counts 4–6 was not false as a
matter of law because HTSUS heading 8483 does not apply. Id. This challenge, too, is premature.
Even if the court were to accept Wanxiang’s legal reasoning, 7 its proposed classification
requires the court to draw factual inferences in its favor. Wanxiang argues that Note 2(e) to
HTSUS Section XVII provides that “the expressions ‘parts’ and ‘parts and accessories’ do not
apply to . . . articles of heading 84.81 or 84.82 or, provided they constitute integral parts of engines
or motors, articles of heading 84.83,” Def.’s Br. at 46 (quoting HTSUS Section XVII, Note 2),
and further cites to Customs decisions making the distinction on the basis of whether the parts
“constitute integral parts of engines or motors,” id. at 46–47 (citing NY N198080 (Jan. 13, 2012)
7
The court expresses no view on the legal merits at this stage. The Government counters that
Wanxiang ignored the CIT’s decision in Mitsubishi Elecs. Am., Inc. v. United States, 19 CIT 378,
882 F. Supp. 171 (1995), Customs’s rulings and informed compliance publications, and the
relevant terms of the HTSUS, when it allegedly misclassified its parts and accessories of universal
joints. See Pl.’s Br. at 33–34.
Court No. 22-00205 Page 24
(clutch release bearings); NY F81211 (Jan. 6, 2000) (suspension strut bearings); NY C82026 (Jan.
29, 1998) (strut component)). But nowhere does the Complaint allege that the universal joints are
exclusively automotive parts or not part of an engine or motor. Compare Def.’s Br. at 47 (“The
universal joints . . . at issue in this case are designed and used exclusively as parts of automobiles—
an undisputed fact in this case.” (emphasis added)), with Compl. ¶ 8 (“This action involves
Wanxiang’s importation of universal joints and parts thereof . . . , wheel hub assemblies . . . ,
tapered roller bearings, and other parts and accessories of automobiles . . . into the United States.”).
Wanxiang’s own legal theory relies on the premature factual finding that its universal joints
are “clearly not a part of an engine or a motor.” Def.’s Br. at 47 (emphasis omitted). But the court
declines to do so where, in considering a motion to dismiss, it must draw plausible inferences in
favor of the Government. Wanxiang’s argument is unsuccessful at this stage.
C. Counts 5 and 6 State a Claim Because Failure to Follow a Notice of
Action from Customs Plausibly Establishes Gross Negligence and
Negligence.
Wanxiang further argues that the Complaint fails to state claims for gross negligence and
negligence in Counts 5 and 6 because Customs’s Notice of Action “does not establish a legal
requirement that an importer must follow for future entries.” Def.’s Br. at 49. The court
nonetheless concludes that the Complaint states a claim for Counts 5 and 6.
The Notice of Action goes to show breach, not duty. The allegation that Wanxiang
continued to misclassify entries after receiving a Notice of Action regarding universal joints and
parts of universal joints gives rise to a plausible conclusion that Wanxiang’s subsequent
misclassifications “result[ed] from an act or acts . . . done with actual knowledge of or wanton
disregard for the relevant facts and with indifference to or disregard for the offender’s obligations
Court No. 22-00205 Page 25
under the statute.” 19 C.F.R. pt. 171, app. B(C)(2); see also Sterling Footwear, 279 F. Supp. 3d at
1139 (concluding that the Government demonstrated gross negligence in showing, by a
preponderance of the evidence, that “Sterling failed to correct its errors when pointed out by CBP
and, instead, continued to make entries using the incorrect classification”). And if the Notice of
Action plausibly establishes grossly negligent conduct, it also plausibly establishes negligent
conduct, which is a lower level of culpability.
Wanxiang’s argument that the Notice of Action is entry-specific and does not create a
prospectively binding obligation is beside the point. Generally, “notices of action are intended to
serve as entry-specific notifications.” Int’l Custom Prods., Inc. v. United States, 748 F.3d 1182,
1187 (Fed. Cir. 2014). The duty underlying the Government’s gross negligence and negligence
claims, however, is not rooted in the Notice of Action, but in § 1484, which requires importers use
“reasonable care” in filing with CBP “the declared value, classification and rate of duty applicable
to the merchandise,” and “such other information as is necessary to enable the Customs Service to
. . . properly assess duties on the merchandise.” 19 U.S.C. § 1484. There is therefore no need for
“a legal duty to consult with Customs regarding the classification of the universal joint parts in
this case” to find that there was breach under § 1592. Def.’s Br. at 50.
Insofar as Wanxiang also contends that an alleged misclassification following a Notice of
Action cannot establish breach under 19 U.S.C. § 1592, that argument, too, is unsupported. To
dismiss Counts 5 and 6 would effectively foreclose the Government’s ability to use relevant yet
nonbinding statements by Customs to allege and eventually prove gross negligence or negligence.
That overbroad result is not only devoid of any support in the statutory or regulatory text but also
inconsistent with this court’s prior case law. See Sterling Footwear, 279 F. Supp. 3d at 1138–39
Court No. 22-00205 Page 26
& n.36 (finding that the defendant’s instruction to its broker to enter the same classification after
Customs had issued two notices of action established, in part, the defendant’s “indifference to or
disregard for its statutory obligations” on motion for summary judgment); cf. Optrex Am., 560 F.
Supp. 2d at 1337 (reasoning that even though certain entries before the court were not at issue in
a relevant classification judgment by the Federal Circuit, those entries had “the same technical
characteristics as those covered by the judgment” and were therefore subject to the Federal
Circuit’s holding).
Questions about the Notice of Action’s entry-specific nature is likely relevant for a
factfinder when evaluating whether Wanxiang breached its legal duty as an importer in a grossly
negligent or negligent manner. See 19 C.F.R. pt. 171, app. B(C)(1)–(2). But, tasked here with
evaluating the sufficiency of the Complaint, the court concludes that the Government has
adequately pleaded gross negligence and negligence in Counts 5 and 6.
II. The Complaint States a Claim That Wanxiang Negligently Violated § 1592 with
Respect to Its Entries of WHAs
Wanxiang also raises a fair notice defense to Customs’s initiation of § 1592 administrative
proceedings and this lawsuit that followed with regards to the WHA entries. Defendant argues
that “the Commerce Department did not publish its decision that WHAs were considered to be
within the scope of the antidumping duty order on TRBs until December 6, 2011,” which date was
after all of Wanxiang’s WHA entries for which the Government seeks to collect antidumping
duties and penalties. Def.’s Br. at 2 (emphasis omitted); Compl. attach. A at 1–3, July 13, 2022,
ECF No. 2-1 (showing entries from June 24, 2011, to November 30, 2011); see also Tapered Roller
Bearings and Parts Thereof, Finished and Unfinished, From the People’s Republic of China: Final
Results of the Expedited Third Sunset Review of the Antidumping Duty Order, 76 Fed. Reg.
Court No. 22-00205 Page 27
76143, 76143 (Dep’t Com. Dec. 6, 2011) (“On April 18, 2011, in response to an inquiry from New
Trend Engineering Limited (‘New Trend’), the Department ruled that . . . New Trend’s splined
and non-splined wheel hub assemblies without antilock braking system (‘ABS’) elements are
included in the scope of the order.”). Grounding its argument in principles of fair notice in
administrative law, Wanxiang argues that the Complaint fails to state a claim (1) “because the legal
obligation to enter WHAs as subject to the TRB [O]rder did not exist until December 6, 2011,”
and (2) because Wanxiang “should not be penalized for failing to exercise reasonable care in
meeting a legal responsibility that was not communicated to the trade community at the time these
entries were filed.” Def.’s Br. at 4 (emphasis omitted).
Fair notice is an essential safeguard against overbroad administrative action. “It is well
established that ‘[i]n the absence of notice—for example, where the regulation is not sufficiently
clear to warn a party about what is expected of it—an agency may not [impose] civil or criminal
liability.’” Fuji Photo Film Co. v. Int’l Trade Comm’n, 474 F.3d 1281, 1292 (Fed. Cir. 2007)
(alteration in original) (quoting Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1328–29 (D.C. Cir. 1995),
as corrected (June 19, 1995)). “The requirement therefore reflects the broader due-process
principle that before an agency may enforce an order or regulation by means of a penalty or
monetary sanction, it must ‘provide regulated parties fair warning of the conduct [the order or
regulation] prohibits or requires.’” Mid Continent Nail Corp. v. United States, 725 F.3d 1295,
1300–01 (Fed. Cir. 2013) (alteration in original) (quoting Christopher v. SmithKline Beecham
Corp., 567 U.S. 142, 156 (2012)); see also Tai-Ao Aluminum (Taishan) Co. v. United States, 983
F.3d 487, 494–95 (Fed. Cir. 2020) (holding that Commerce could not suspend liquidation of entries
before adequate notice was given that importers’ products would be subject to an anti-
Court No. 22-00205 Page 28
circumvention inquiry); United Steel & Fasteners, Inc. v. United States, 947 F.3d 794, 801 (Fed.
Cir. 2020) (holding that Commerce exceeded its regulatory authority in retroactively suspending
liquidation on entries dated before a scope inquiry is initiated); Sunpreme Inc. v. United States,
946 F.3d 1300, 1319 (Fed. Cir. 2020) (“When Commerce rules that a product falls within the scope
of an order, but ‘there has been no [previous] suspension of liquidation,’ a new suspension must
be ordered beginning only ‘on or after the date of initiation of the scope inquiry.’” (quoting 19
C.F.R. § 351.225(l)(3))); Trans Tex. Tire, LLC v. United States, 45 CIT __, __, 519 F. Supp. 3d
1289, 1304 (2021) (“[A]dequate notice is essential where Commerce attempts to apply retroactive
duties.”).
Unlike those fair notice cases, however, the fair notice argument here is one degree
removed from the law being applied. Wanxiang does not dispute that it had fair notice of the
relevant provisions of 19 U.S.C. § 1592; it insists instead that a lack of fair notice regarding the
TRB Order’s applicability prevents any finding of negligence—that Wanxiang’s conduct related
to the WHAs cannot have been a failure to exercise reasonable care. 8 See Def.’s Br. at 4. But the
negligence inquiry of § 1592 sweeps broader than only whether an antidumping order was clear.
In Star Pipe Products v. United States, Commerce instructed Customs to “continue to suspend
liquidation” after it had found that importer Star Pipe’s Joint Restraint Kits were within the scope
of an antidumping order; Star Pipe challenged Commerce’s instruction as improperly assessing
8
Wanxiang also appears to frame the question of fair notice as one of “legal obligation” or duty
under § 1592. See Def.’s Br. at 4. But that argument, once again eliding the difference between
duty and breach, is summarily disposed for the same reasons as in subsection I.C. The potential
ambiguity of whether the TRB Order covered Wanxiang’s WHAs before December 6, 2011—a
factual question better reserved for later stages of litigation, as discussed below—does not
somehow vitiate an importer’s duty of reasonable care under § 1592, which is rooted in § 1484.
See supra pp. 24–25.
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duties on imports before the initiation of the scope proceedings. 981 F.3d 1067, 1078 (Fed. Cir.
2020). In holding Star Pipe’s challenge moot because the pre-initiation entries were liquidated
with no duties, the Federal Circuit reasoned that:
Even if, as Star Pipe demands, Commerce’s liquidation instruction were clarified
to state that it did not extend to pre-initiation entries, that would not impact or
prevent CBP from pursuing an enforcement action under § 1592. 19 C.F.R. §
351.225(l)(3) only limits Commerce’s authority to assess duties in the context of a
scope inquiry; that regulation does not restrict CBP’s authority under § 1592 to
assess penalties for fraudulent or negligent violations. Regardless of Commerce’s
instruction to CBP to suspend and assess liquidation in connection with Star Pipe's
scope inquiry, CBP may independently determine that Star Pipe was negligent or
fraudulent in its failure to pay duties on its Joint Restraint Kits, even if those Joint
Restraint Kits were imported prior to the initiation of the scope inquiry.
Id. at 1079 (emphasis added).
Put simply, Customs may still assess that Wanxiang failed to exercise reasonable care in
navigating regulatory uncertainty. Star Pipe coheres with the other case law; none of the cases
that Wanxiang cites apply a statute like § 1592, which, in its inquiry about whether an importer
exercised reasonable care, considers a scope of conduct broader than the conduct which is being
allegedly retroactively targeted. Without reaching a particular outcome at this preliminary stage
where only the Complaint is before the court, the court notes that Wanxiang, confronted with
regulatory uncertainty, could have: requested a public version of Commerce’s preliminary
determination in the New Trend scope ruling, see 19 C.F.R. § 351.104(b); sought a pre-importation
classification ruling or a binding ruling letter from CBP headquarters to ascertain the correct
classification of the WHAs; sought its own scope ruling from Commerce to determine whether its
WHAs were covered by the TRB Order; or consulted a customs expert to whom it had provided
complete and accurate information. See 19 C.F.R. pt. 171, app. B(D)(6) (defining “reasonable
care” to include responsibilities such as “taking measures that will lead to and assure the
Court No. 22-00205 Page 30
preparation of accurate documentation, and determining whether any applicable requirements of
law with respect to these issues are met” (emphasis added)); S. Rep. No. 103-189, at 73 (using the
same language and indicating the Senate Committee’s belief that “seeking guidance from the
Customs Service” or “consulting with a customs broker” are “aids for proper compliance”). In
listing these possible actions, the court does not intimate a view as to whether they occurred or
whether the failure to take those steps is justified. But to hold for Wanxiang now would bar the
Government from enforcing § 1592 against importers that negligently fail to correctly identify
their entries, so long as those importers show that there was some uncertainty in the applicable
classification. That result could encourage gamesmanship in classifying entries and absolve
importers from exercising reasonable care in taking the appropriate actions with Customs and
Commerce to clarify the classification applicable to their entries.
The path to negligence in this case, therefore, must be particular to the regulatory
environment at the time of Wanxiang’s entries. Determining negligence here would require a
factfinder to consider, among other potential evidence, information describing the WHAs that
Wanxiang entered into the United States, 9 statements by Customs and Commerce about the TRB
Order’s applicability to WHAs that Wanxiang was actually or constructively aware of, 10 and
9
Wanxiang explains the differences between WHAs and TRBs in its briefing. See Def.’s Br. at
6–9; see also supra note 1.
10
Wanxiang has identified the following public statements by Commerce and Customs that, in its
view, support its claim that alternative classification of WHAs as not included by the TRB Order
was reasonable before December 6, 2011.
x Notice of Scope Rulings, 76 Fed. Reg. 31301, 31302 (Dep’t Com. May 31, 2011)
(noting that New Trend had filed a scope request on “whether certain wheel hub
units are within the scope of the antidumping duty order” and that there was a
“preliminary ruling [on] December 13, 2010,” without noting its outcome).
Court No. 22-00205 Page 31
efforts by Wanxiang to understand and apply the law at the time. 11 And, of particular importance
considering the due process concerns in this case, Wanxiang’s contentions about Commerce’s
x Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, from the
People’s Republic of China, 76 Fed. Reg. 3086, 3087 (Dep’t Com. Jan. 19, 2011)
(covering “shipments of tapered roller bearings and parts thereof, finished and
unfinished, from the PRC; flange, take up cartridge, and hanger units incorporating
tapered roller bearings; and tapered roller housings (except pillow blocks)
incorporating tapered rollers, with or without spindles, whether or not for
automotive use”).
x Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the
People’s Republic of China: Preliminary Results of the 2008–2009 Administrative
Review of the Antidumping Duty Order, 75 Fed. Reg. 41148, 41149 (Dep’t Com.
July 15, 2010) (“For the purposes of these preliminary results, because the
Department has not yet determined whether wheel hub assemblies are covered by
the scope of the order on TRBs, the Department will continue to base its
antidumping margin calculation on New Torch’s original U.S. sales database,
which does not include wheel hub assemblies.”).
x Letter from E. Begnal, Dep’t of Com., re: Scope Inquiry (Tapered Roller Bearings)
at 1 (June 15, 2010) (“The Department finds that it cannot determine whether New
Trend’s wheel hub assemblies should be excluded from the scope of the Order
based solely upon New Trend’s application for a scope clarification and the
descriptions of the merchandise referred to in 19 CFR § 351.225(k)(1).”).
x N.Y. Ruling Letter 818084 (Feb. 7, 1996) (“It is the opinion of this office that the
subject wheel hub assemblies would not be subject to antidumping duties under the
current Department of Commerce investigation on tapered roller bearings from
China, as published in the Federal Register on June 15, 1987.”); see also N.Y.
Ruling Letter N137737 (Jan. 6, 2011); Customs HQ Ruling Letter H013123 (Apr.
14, 2008); N.Y. Ruling Letter N022275 (Feb. 6, 2008); N.Y. Ruling Letter
N018286 (Nov. 2, 2007); N.Y. Ruling Letter M87799 (Nov. 15, 2006); N.Y. Ruling
Letter I85202 (Aug. 20, 2002); N.Y. Ruling Letter G82534 (Oct. 10, 2000); N.Y.
Ruling Letter 855471 (Sept. 10, 1990).
11
In addition to the actions listed above, see supra pp. 29–30, Wanxiang could have requested
from Commerce a paper copy of the actual public version of the preliminary scope ruling. See 19
C.F.R. § 351.104(b). Moreover, it is possible that a request for public records of the preliminary
ruling in May 2011 would have revealed Commerce’s final ruling, dated April 18, 2011, which
definitively stated that WHAs are within the scope of the TRB Order. See Final Results of the
Court No. 22-00205 Page 32
procedural deficiencies are also relevant to the determination of whether Wanxiang exercised
reasonable care. 12
At the motion to dismiss stage, the court concludes that the Complaint sufficiently pleads
a negligent violation of § 1592 in Count 2. The Government specifies the entries at issue by
referencing an attachment, see Compl. ¶ 20 & attach. A at 1–3, and alleges three material false
statements or omissions: Wanxiang’s identification of the entries as “01” consumption entries
rather than “03” antidumping entries, see id. ¶ 23; Wanxiang’s omission of the antidumping case
number, see id. ¶ 24; and Wanxiang’s classification of the entries under HTSUS heading 8708, see
id. ¶ 26. The Complaint further pleads that those material false statements and omissions amounted
Expedited Third Sunset Review of the Antidumping Duty Order, 76 Fed. Reg. at 76143. The
court, once again, does not express a view at the pleadings stage as to whether Wanxiang took or
should have taken these steps.
12
First, Wanxiang states that it should have been included on the “scope service list”—a list of
entities that Commerce is required by regulation to notify—of the New Trend scope request
proceedings. See Def.’s Br. at 23 & ex. 2 (citing 19 C.F.R. § 351.225(e)–(f), (n)). Had Wanxiang
been on the scope service list, it would likely have received actual notice of Commerce’s final
determinations in April 2011 that WHAs were covered by the TRB Order. See 19 C.F.R. §
351.225(e) (2011) (requiring notice to the “scope service list of the initiation of a scope inquiry”
that cannot be resolved solely on the (k)(1) factors); id. § 351.225(f)(3) (requiring notice to the
“scope service list . . . of the preliminary scope ruling”); id. § 351.225(f)(4) (requiring notice to
the “scope service list . . . of the final scope ruling”). The C.F.R. defines “scope service list” to
“include all persons that have participated in any segment of the [antidumping or countervailing
duty] proceeding.” Id. § 351.225(n).
Second, Wanxiang argues that Commerce’s delayed Federal Register notice in May 2011 merely
stated that a preliminary determination had been reached without expressly mentioning the
outcome. See Def.’s Reply at 17–20. Wanxiang could have taken action to retrieve the publicly
available copy of that preliminary determination. See supra note 11. But if Wanxiang can factually
establish that it was entitled to actual notice via the scope service list, notice via the Federal
Register would possibly be “insufficient in law,” Camp v. U.S. Bureau of Land Mgmt., 183 F.3d
1141, 1144 (9th Cir. 1999) (applying 44 U.S.C. § 1507), though likely still relevant to a factfinder’s
overall assessment.
Court No. 22-00205 Page 33
to a failure to “exercise reasonable care,” see id. ¶ 61, and that Wanxiang is liable to the United
States for penalties representing two times the total loss of antidumping duties for the WHAs, see
id. ¶¶ 25, 28, 62.
Accepting the Complaint’s factual assertions as true and construing any reasonable
inferences in Plaintiff’s favor, the court concludes that the Complaint adequately states a § 1592
claim with regards to Wanxiang’s WHA entries. Because § 1592 assesses whether Wanxiang
exercised reasonable care in navigating the regulatory environment at the time of its entries, the
potential fair notice issues with the TRB Order do not categorically preclude § 1592 liability. But
because Wanxiang’s fair notice argument is one that may negate the Government’s allegation that
Wanxiang “did not exercise reasonable care” in entering WHAs, see Compl. ¶ 61, it may be
pleaded as a negative defense in the Answer, see USCIT R. 12(h)(2).
CONCLUSION
For the foregoing reasons, the court concludes that the Complaint states a claim for Counts
1 through 9. 13 Wanxiang’s Motion to Dismiss is denied. Per USCIT Rule 12(a)(2)(A), Wanxiang
must serve an answer within fourteen days after notice of this opinion.
SO ORDERED.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: August 16, 2023
New York, New York
13
Because the court holds that the Complaint states a claim for Counts 2 through 9, which means
that each of those Counts is premised on a plausible violation of § 1592(a), Count 1 is also
sufficiently pleaded for its full amount demanded. See 19 U.S.C. § 1592(d) (requiring only “a
violation of subsection (a) . . . whether or not a monetary penalty is assessed”).