United States v. Univar USA Inc. (355 F. Supp. 3d 1225, 2018)

Barnett, Judge:

In this action, the United States of America ("Plaintiff" or the "Government") seeks to recover unpaid duties and a monetary penalty pursuant to Section 592 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1592 (2012), plus interest, costs, and attorney fees, stemming from 36 entries of saccharin, allegedly transshipped from the People's Republic of China ("China") through the Republic of China ("Taiwan"), which Univar entered into the commerce of the United States between 2007 and 2012. See generally Compl., ECF. No. 2. Before the court is Defendant, Univar USA Inc.'s ("Univar" or "Defendant") motion for summary judgment. Confidential Univar's Mot. For Summ. J., ECF No. 143, and Confidential Univar USA Inc.'s Mem. of P. & A. in Supp. of its Mot. for Summ. J. ("Def.'s Mem."), ECF No. 143-2. Defendant seeks summary judgment with respect to all entries. See Def.'s Mem. at 1-2. Alternatively, Defendant seeks dismissal of Plaintiff's penalty claims, asserting that U.S. Customs and Border Protection ("Customs" or "CBP") failed to comply with the statutory obligations of Section 592(b)(2), thereby depriving this court of subject matter jurisdiction. Def.'s Mem. at 42-44; Confidential Univar USA Inc.'s Reply in Supp. of its Mot. for Summ. J. ("Def.'s Reply") at 19-21, ECF No. 161. The motion is fully briefed, and the court held oral argument on May 23, 2018. See Docket Entry, ECF No. 192; Oral Arg. Tr., ECF No. 196. For the reasons discussed below, Defendant's motion for summary judgment is denied.

BACKGROUND

I. Evidentiary Objections

Pursuant to United States Court of International Trade ("USCIT") Rule 56.3(a), a motion for summary judgment must include a separate document that contains a "short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." The movant must follow each statement with citation to evidence that would be admissible. USCIT Rule 56.3(c). Citations may be to "particular parts of materials in the record," such as "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." USCIT Rule 56(c)(1)(A). Pursuant to USCIT Rule 56(c)(2), "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."

In compliance with USCIT Rule 56.3, the parties have filed their proposed statements of facts and supported those statements with citations to evidence. See generally Confidential Univar's Rule 56.3 Statement in Supp. of its Mot. For Summ. J. ("DSOF"), ECF No. 143-3; Confidential Pl.'s Rule 56.3 Counterstatement of Fact ("PCSOF"), ECF No. 154-1; Confidential Univar USA Inc.'s Rebuttal to Pl.'s Rule 56.3 Counterstatement ("Def.'s Resp. to PCSOF"), ECF No. 161-1; Confidential Univar USA Inc.'s Suppl. Rule 56.3 Statement ("Suppl. DSOF"), ECF No. 184-1; Confidential Pl.'s Conditional Suppl. Rule 56.3 Counterstatement of Fact ("Suppl. PCSOF"), ECF No. 188-1. Plaintiff has cited numerous exhibits to support its statements of fact. See generally PCSOF. Univar objects to the admission of nearly all of Plaintiff's exhibits on the grounds of hearsay or relevance. The disputed evidence can be grouped in four general categories.

The first category of evidence to which Univar objects includes emails sent by Univar employees to Univar agents or third parties. For convenience, the exhibits, the relevant corresponding source where Univar makes the objection, and a brief description of the exhibit are set forth in the following table:

Table 1 Item Plaintiff's Exhibit Brief Description Univar's Objection No. 1 Pl.'s Attach. 1 at Univar_011207, Email from Hungyao Hearsay. Def.'s ECF No. 154-3 at p. 4 Chin ("Mr. Resp. to PCSOF Chin")5 to ¶ 206 Thomas Biggs ("Mr. Biggs")6 2 Pl.'s Attach. 1 at Univar_014737, Email from Mr. Hearsay. Def.'s ECF No. 154-3 at p. 9 Biggs to third Resp. to party PCSOF ¶ 246 3 Pl.'s Attach. 1 at Univar_066462, Email from Mr. Hearsay. Def.'s ECF No. 154-3 at p. 13 Biggs to Mr. Chin Resp. to PCSOF ¶ 205 4 Pl.'s Attach. 2 (Dep. Ex. 162), Email from a Hearsay. Def.'s ECF No. 154-4 at p. 367 Univar General Resp. to PCSOF Manager to Mr. ¶ 227 Biggs and others 5 Pl.'s Attach. 2 (Dep. Ex. 163), Email from a Hearsay. Def.'s ECF No. 154-4 at p. 371 Univar General Resp. to PCSOF Manager to Mr. ¶¶ 225-226, 260 Biggs 6 Pl.'s Attach. 2 (Dep. Ex. 288), Emails from Mr. Hearsay. Def.'s ECF No. 154-4 at pp. 144-147 Biggs and Mr. Resp. to PCSOF Chin ¶¶ 191-193 7 Pl.'s Suppl. A7 (Dep. Ex. 215), Email from a Hearsay. Def.'s ECF No. 191 at p. 9 Univar employee Resp. to PCSOF to third party ¶ 198 8 Pl.'s Attach. 2 (Dep. Ex. 311), Email from Mr. Hearsay. Def.'s ECF No. 154-4 at p. 268 Biggs to Mr. Chin Resp. to PCSOF ¶ 210 9 Pl.'s Attach. 2 (Dep. Ex. 316), Email from Mr. Hearsay. Def.'s ECF No. 154-4 at p. 285 Biggs to third Resp. to PCSOF party ¶¶ 200, 244 10 Pl.'s Attach. 2 (Dep. Ex. 312), Email from Mr. Hearsay. Def.'s ECF No. 154-4 at p. 269 Chin to Mr. Biggs Resp. to PCSOF ¶ 207 11 Pl.'s Attach. 2 (Dep. Ex. 314), Email from a Hearsay. Def.'s ECF No. 154-4 at pp. 275-282 Univar employee Resp. to PCSOF attaching an ¶¶ 203, 213, 237 Application for Kosher Certification 12 Pl.'s Attach. 2 (Dep. Ex. 318), Email from Mr. Hearsay. Def.'s ECF No. 154-4 at p. 292 Biggs to third Resp. to PCSOF party ¶ 212 13 Pl.'s Attach. 2 (Dep. Ex. 323), Email from a Hearsay. Def.'s ECF No. 154-4 at p. 337 Univar employee Resp. to PCSOF to at least one ¶ 217 other Univar employee 14 Pl.'s Attach. 2 (Dep. Ex. 327), Email thread Hearsay. Def.'s ECF No. 154-4 at p. 345 between Univar Resp. to PCSOF employees ¶ 224 15 Pl.'s Attach. 2 (Dep. Ex. 328), Univar internal Hearsay. Def.'s ECF No. 154-4 at pp. 350-351 email Resp. to PCSOF ¶ 242 16 Pl.'s Attach. 2 (Dep. Ex. 329), Email from a Hearsay. Def.'s ECF No. 154-4 at p. 353 Univar General Resp. to PCSOF Manager to at ¶ 228 least one other Univar employee

Editor's Note: The preceding image contains the reference for footnotes , The second category of evidence includes emails or other written communications sent to Univar employees or agents by third parties:

Table 2 Item Exhibit Brief Description Objection No. 1 Pl.'s Attach. 1 at UNIVAR_USCIT- Email from Hearsay. Def.'s 0531, ECF No. 154-3 at pp. 87-88 William Huang to Resp. to PCSOF Mr. Chin ¶ 186 2 Pl.'s Attach. 1 at Univar 13344-47, Email from Food Hearsay. Def.'s ECF No. 154-3 at pp. 5-8 and Drug Resp. to PCSOF Administration ¶ 198 ("FDA") to a Univar employee 3 Pl.'s Attach. 2 (Dep. Ex. 310), Email from a third Hearsay. Def.'s ECF No 154-4 at p. 266 party to a Univar Resp. to PCSOF employee ¶ 209 4 Pl.'s Attach. 2 (Dep. Ex. 313), Fax from Mr. Hearsay. Def.'s ECF No. 154-4 at pp. 271-274 Biggs to William Resp. to PCSOF Huang ¶ 211 5 Pl.'s Attach. 2 (Dep. Ex. 315), Production Hearsay. Def.'s ECF No. 154-4 at p. 283 process flow chart Resp. to PCSOF ¶¶ 186, 203, 213, 237 6 Pl.'s Attach. 2 (Dep. Ex. 317), Email from a third Hearsay. Def.'s ECF No. 154-4 at p. 290 party to a Univar Resp. to PCSOF employee ¶ 208 7 Pl.'s Attach. 2 (Dep. Ex. 322), Email to a Univar Hearsay. Def.'s ECF No. 154-4 at p. 336 employee Resp. to PCSOF ¶ 216 8 Pl.'s Attach. 2 (Dep. Ex. 325), Email from a third Hearsay. Def.'s ECF No 154-4 at p. 343 party to a Univar Resp. to PCSOF employee ¶ 218 9 Pl.'s Attach. 11 (Dep. Ex. 12), Letter from U.S. Hearsay. Def.'s ECF No. 154-13 at p. 4 Immigration and Resp. to PCSOF Customs ¶ 220 Enforcement ("ICE") to Univar

The third category of evidence includes Univar's internal documents, such as trip notes, inspection reports, letters or memoranda, and a PowerPoint presentation:

Table 3 Item Exhibit Brief Description Objection No. 1 Pl.'s Attach. 2 (Dep. Ex. 303), Mr. Biggs's "2005 Hearsay. Def.'s ECF No. 154-4 at pp. 245-250 Korea-Taiwan Resp. to PCSOF Trip Notes" ¶ 235 2 Pl.'s Attach. 2 (Dep. Ex. 306), Mr. Biggs's 2008 Hearsay. Def.'s ECF No. 154-4 at pp. 258-261 "Korea-Taiwan Resp. to PCSOF Visit notes" ¶ 236-238 3 Pl.'s Attach. 2 (Dep. Ex. 297), Inspection Report Hearsay. Def.'s ECF No. 154-4 at p. 217 Resp. to PCSOF ¶ 190 4 Pl.'s Attach. 2 (Dep. Ex. 298), Inspection Report Hearsay. Def.'s ECF No. 154-4 at p. 218 Resp. to PCSOF ¶ 190 5 Pl.'s Attach. 2 (Dep. Ex. 179), Univar Internal Hearsay. Def.'s ECF No. 154-4 at p. 387-397 Memorandum Resp. to PCSOF ¶¶ 195-196 6 Pl.'s Attach. 18 (Dep. Ex. 277), Univar Internal Hearsay. Def.'s ECF No. 154-20 Letter Resp. to PCSOF ¶ 239 7 Pl.'s Attach. 2 (Dep. Ex. 292), Univar Hearsay. Def.'s ECF No. 154-4 at p. 164 PowerPoint Resp. to PCSOF Presentation ¶ 221

The remaining evidence includes deposition testimony of two witnesses; an affidavit and an email, including exhibits, of Special Agent Wally Tsui ("Mr. Tsui"), who assisted in the investigation of the alleged transshipment; a 2017 version of the Taiwan's Customs Act; and statistical tables:

Table 4 Item Exhibit Brief Description Univar's Objection No. 1 Pl.'s Attach. 6 & Pl.'s Suppl. A3 Dep. Excerpt of Hearsay; best ("Ritell Dep.") at 56, 71-72, ECF Bruce Ritell evidence rule. Def.'s Nos. 154-8, 191 Resp. to PCSOF ¶ 190 2 Pl.'s Attach. 8 ("Talmid Dep.") at Dep. Excerpt of Hearsay. Def.'s 53-54, ECF No. 154-10 Rabbi Haim Resp. to PCSOF Talmid ¶ 219 3 Aff. of Special Agent Wally Tsui in Affidavit Hearsay. Def.'s Supp. of Pl.[']s Opp'n to Univar's Resp. to PCSOF Mot. for Partial Summ. J. ("Tsui ¶ 190 Aff.") ¶¶ 8-27, ECF No. 32-11 4 Tsui Aff., Ex. 2, ECF No. 32-13 Photographs Hearsay. Def.'s Resp. to PCSOF ¶ 204 5 Pl.'s Attach. 14 (Dep. Ex. 129), Email enclosing a Hearsay. Def.'s ECF No. 154-16 at p. 1 business card Resp. to PCSOF ¶¶ 186, 199, 204 6 Pl.'s Attach. 23, ECF No. 154-25 Taiwan Customs Relevance. Def.'s Act Reply at 9 7 Pl.'s Resp. to Def.'s Mot. in Limine Tables reflecting Hearsay; Inadmissible to Exclude Taiwan's Records imports of to Prove Habit. Def.'s Showing Transshipment from saccharin from Resp. to PCSOF China Through Taiwan to the China into Taiwan ¶ 201; Def.'s Mem. at United States, Ex. 1 ("Taiwan and exports of 7-8; 24-27; see also Customs Tables"), ECF No. 145-1 saccharin from DSOF ¶ 42; PCSOF Taiwan to the ¶ 42 United States

Hearsay is an out of court statement offered "to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). Hearsay is inadmissible at trial unless a federal statute, Federal Rule of Evidence, or other rule prescribed by the Supreme Court provides otherwise. Fed. R. Evid. 802. The court may nonetheless "consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form." United States v. Sterling Footwear, Inc. , 41 CIT ----, ----, 279 F.Supp.3d 1113, 1124-25 (2017) (quoting Jones v. UPS Ground Freight , 683 F.3d 1283, 1293-94 (11th Cir. 2012) ). Indeed, more generally, "for summary judgment purposes, the inquiry is whether the cited evidence may be reduced to admissible form, not whether it is admissible in the form submitted at the summary judgment stage." Id. at 1124 (citing USCIT Rule 56(c)(2) ).

"A common type of statement that falls outside the hearsay definition, because it is not offered for its truth, is a statement that is offered to show its effect on the recipient." Bady v. Murphy-Kjos , 628 F.3d 1000, 1003 (8th Cir. 2011) (quoting Barrett v. Acevedo , 169 F.3d 1155, 1163 (8th Cir. 1999) ). Additionally, a statement that "is offered against an opposing party and ... was made by the party's agent or employee on a matter within the scope of that relationship and while it existed" is not hearsay. Fed. R. Evid. 801(d)(2)(D). Likewise, if an opposing party creates an email incorporating content created by other individuals such that the opposing party may be said to have adopted the contents as true or believed to be true, such incorporated content is not hearsay. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. , 454 F.Supp.2d 966, 973 (C.D. Cal. 2006) ; Fed. R. Evid. 801(d)(2)(B) (a statement is not hearsay if it is "offered against an opposing party and ... is one the party manifested that it adopted or believed to be true"). The court may also consider hearsay statements that are specifically exempted from the hearsay rule. See Fed. R. Evid. 803, 804. Relevant here, any "statement[s] of the declarant's then-existing state of mind," Fed. R. Evid. 803(3), and business records, Fed. R. Evid. 803(6), are exceptions to the hearsay rule.

As to the first category of evidence (Table 1), the emails sent by Univar agents or employees are not hearsay and Univar's objection is overruled. See Fed. R. Evid. 801(d)(2)(D). To the extent other content was incorporated into those emails, and to the extent Univar's agents or employees manifested that they adopted or believed that the content was true, the incorporated content is admissible pursuant to Fed. R. Evid. 801(d)(2)(B). With respect to emails sent by Mr. Chin, to whom Univar refers as its independent contractor, see DSOF ¶ 135; Def.'s Resp. to PCSOF ¶ 191, the court finds that Mr. Chin was an agent of Univar for purposes of Fed. R. Evid. 801(d)(2)(D). First, "the precise contractual relationship between the agent and the party against whom the evidence is offered" is not determinative for purposes of Fed. R. Evid. 801(d)(2)(D). Metro-Goldwyn-Mayer Studios , 454 F.Supp.2d at 973-74. Second, notwithstanding its assertion that Mr. Chin was an independent contractor, Univar itself referred to Mr. Chin as "our representative." Def.'s Mem., Attach. 29 (Univar Fed. R. Civ. P. 30(b)(6) Dep.) 114:11-12, ECF No. 143-5. Therefore, Mr. Chin's emails are not hearsay.

Regarding emails or other written communications sent to Univar employees or agents by third parties (Table 2), Plaintiff refers to those emails and communications not to prove the matters asserted therein, i.e., that the saccharin was being transshipped from China through Taiwan, but, instead, to address Univar's level of culpability. Compare Pl.'s Opp'n at 4-6, 15-22 (discussing evidence concerning country of origin), with Pl.'s Opp'n at 23-26 (discussing evidence concerning Univar's gross negligence in ascertaining the country of origin), and Table 2. At oral argument, Plaintiff clarified that it presented certain evidence to demonstrate Univar's awareness of its supplier's asserted lack of a Taiwanese production facility and Univar's actions in the context of reasonable care. See Oral Arg. Questions (May 18, 2018) ¶ 5, ECF No. 190; Oral Arg. Tr. at 22-24 (discussing Pl.'s Attach. 2 (Dep. Exs. 310, 315, 317, 322) ). Defendant had no objection to the admissibility of those exhibits for that limited purpose. Oral Arg. Tr. at 29-30. Therefore, Univar's objection to emails or other communications sent by third parties to Univar's employees or agents is overruled to the extent that this evidence is offered for the limited purpose of showing its effect on the recipient and Univar's knowledge and state of mind with regard to saccharin production in Taiwan. See Bady , 628 F.3d at 1003 ; Metro-Goldwyn-Mayer Studios , 454 F.Supp.2d at 974.

Similarly, Univar's internal documents, such as trip notes, inspection reports, letters or memoranda, and a PowerPoint presentation (Table 3) are admissible pursuant to Fed. R. Evid. 801(d)(2)(D). The director of Univar's International Sourcing Group, Mr. Biggs, who had the "ultimate authority within Univar [ ] to approve [foreign] suppliers," took notes on his trips to Taiwan in 2005 and 2008 and authenticated those trip notes during his deposition. See Pl.'s Attach. 2 ("Biggs Dep.") 69:14-21 (discussing Mr. Biggs's authority at Univar), 128:16-18, 133:3-12 (discussing Dep. Ex. 303), 139:16-140:9 (discussing Dep. Ex. 306), ECF No. 154-4. The letter, memoranda, and PowerPoint presentation bear Univar's company name or logo and were composed and shared by its agents or employees. Metro-Goldwyn-Mayer Studios , 454 F.Supp.2d at 974. These items fall squarely within the ambit of Fed. R. Evid. 801(d)(2)(D).

As to the remaining evidence set forth in Table 4, one item is an excerpt from the deposition testimony of Rabbi Haim Talmid of the Orthodox Union, a kosher certification agency. See Talmid Dep.; Biggs Dep. 217:19-20; Table 4 Item No. 1. From 2005 to 2013, the Orthodox Union certified the subject saccharin as kosher. See DSOF ¶ 115; PCSOF ¶ 115. Rabbi Talmid testified that he flew to Taiwan three times to inspect the saccharin factory of Univar's supplier so that the Orthodox Union could continue to certify the saccharin as kosher. Talmid Dep. 53:1-68:13. On each occasion, Rabbi Talmid was told he could not inspect the plant because, respectively, the plant was shut down, there was a dangerous flood, or there was dangerous construction preventing access to the factory. Id. Univar objects to Rabbi Talmid's testimony concerning his conversations with third parties regarding the reasons for the inability to access the factory as inadmissible hearsay. Def.'s Resp. to PCSOF ¶ 219. Plaintiff is not offering the testimony to prove that the factory was, indeed, shut-down for a period of time, or the existence of a flood or construction near the factory. See PCSOF ¶ 219. Rather, the testimony is offered to prove Univar's knowledge or state of mind during this relevant time-frame with respect to the origin of its product. See id. ; Oral Arg. Tr. at 37 ("[I]t goes to Univar's understanding of where their product was coming from."). Therefore, the objection is overruled.

Plaintiff also relies on the deposition testimony of Bruce Ritell ("Mr. Ritell") of Rit-Chem, a U.S. importer who purchased saccharin from High Trans Corporation ("HTC"), a Taiwanese producer, from 2004 to 2016. See Ritell Dep. 25:14-19, 30:21-31:4, 70:8-71:6; Table 4 Item No. 2. The Government relies on Mr. Ritell's testimony that Rit-Chem was "the sole [U.S.] purchaser of saccharin from HTC during [the] relevant time period." PCSOF ¶ 190 (citing Ritell Dep. at 72-73). In the cited testimony, Mr. Ritell references an "exclusivity agreement" between HTC and Rit-Chem, and further testified as to his knowledge of HTC's production capacity and annual output. See Ritell Dep. 72:2-73:18. Univar objects to the Government's reliance on Mr. Ritell's recollection of an "exclusivity agreement" and invokes the best evidence rule. See Def.'s Resp. to PCSOF ¶ 190 (citing, inter alia , Fed. R. Evid. 1002 ); see also Oral Arg. Tr. 47-48. The Government points out that in addition to the exclusivity agreement, Mr. Ritell testified as to his personal knowledge of HTC's annual production of saccharin, and the degree to which Rit-Chem and HTC's other customers were responsible for purchasing that production amount. Oral Arg. Tr. at 86.

To the extent that the Government relies on Mr. Ritell's recollection of an exclusivity agreement, Univar's objection is sustained. Rule 1002 requires production of the original of a document, such as an exclusivity agreement, to prove its contents. See Fed. R. Evid. 1002. Rule 1004 provides circumstances in which production of an original is excused and other evidence of the content of a writing is admissible; however, Plaintiff has not asserted that those circumstances exist here. Univar did not object to the remaining portions of Mr. Ritell's testimony. See Ritell Dep. 72:1-16-73:3-18; Def.'s Resp. to PCSOF ¶ 190. Therefore, the court will consider the remaining testimony.

Concerning the affidavit of Agent Tsui, Univar objects to paragraphs 8 through 27 and exhibit 2 on hearsay grounds. See Def.'s Resp. to PCSOF ¶ 190; Table 4 Item Nos. 3-4. Pursuant to USCIT Rule 56(c)(4), "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." The court notes that the affidavit is made under "penalty of perjury" and is said to be "true and correct." Tsui Aff. at 15; 28 U.S.C. § 1746 (governing unsworn declarations made under penalty of perjury). There is no indication that Agent Tsui is not "competent" to testify; thus, the issue is whether the affidavit is based on personal knowledge and states "facts that would be admissible in evidence." USCIT Rule 56(c)(4).

The court finds that paragraphs 10, 11, and 13 through 16 are not hearsay because they convey information based on Agent Tsui's personal knowledge and observation. See Tsui Aff. ¶¶ 10-11, 13-16 (discussing Agent Tsui's visits to Taiwan in April and June 2010, the purpose of his visits, and his personal observations). In contrast, paragraphs 8, 9, 12, and 17 through 27 recount Agent Tsui's telephone and email conversations with Teddy Weng ("Mr. Weng") from HTC concerning HTC's corporate and manufacturing office locations, its corporate officers' identities, the identity of its U.S. client, and, largely, HTC's relationship with Univar's saccharin supplier. Id. ¶¶ 8-9, 12, 17-27.

The Government acknowledged during oral argument that to the extent any of those paragraphs convey information from HTC about HTC's relationship with Univar's saccharin supplier, they constitute hearsay. Oral Arg. Tr. at 24. The Government asserted that it does not intend to have a representative of HTC testify at trial. Id. Thus, those hearsay statements could not be reduced to admissible form. The Government argued, however, that this evidence is nonetheless admissible pursuant to the residual exception of Fed. R. Evid. 807. Id. at 25.

Pursuant to Rule 807, a hearsay statement not otherwise covered by a hearsay exception is admissible if:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and the interests of justice.

Fed. R. Evid. 807(a). The drafters of the rule "intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances." Fed. R. Evid. 803(24) advisory committee's note to 1974 Enactment. When admitting evidence pursuant to Rule 807, the court must make detailed findings concerning the facts and circumstances that indicate that the statement has a sufficiently high degree of trustworthiness justifying its admission. See id. ; F.T.C. v. Figgie Int'l, Inc. , 994 F.2d 595, 608 (9th Cir. 1993) ("District courts must make detailed findings when admitting evidence under Rule [807].").

The court recognizes that the Government is offering paragraphs 8, 9, 12, and 17 through 27 of Agent Tsui's affidavit as evidence of material facts, satisfying the second prong of Rule 807. See Fed. R. Evid. 807(2) ; PCSOF ¶¶ 190, 199, 202, 204. The Government suggests that the statements in those paragraphs are "more probative on the point[s] for which [they are] offered than any other evidence that the proponent can obtain through reasonable efforts" because the Government attempted to contact HTC personnel through the issuance of a letter rogatory but received an incomplete response. See Fed. R. Evid. 807(3) ; Oral Arg. Tr. at 24; Pl.'s Mot. for Leave to File A Status Report and Status Report, Ex. B, ECF Nos. 175, 175-2 (HTC's incomplete response to letter rogatory). Of concern to the court, however, is a lack of adequate explanation for why Mr. Weng's statements to Agent Tsui have "equivalent circumstantial guarantees of trustworthiness" to any of the other hearsay exceptions. See Fed. R. Evid. 807(a). The Government contends that the affidavit "recount[s] the contents of the reports of investigation, which were made contemporaneous[ly] and with his visits and his discussions with those individuals." Oral Arg. Tr. at 25. In other words, according to the Government, these statements offer "equivalent circumstantial guarantees of trustworthiness" to the hearsay exception set forth in Rule 803(8)(A)(iii). Rule 803(8)(A)(iii) exempts from the hearsay rule "[a] record or statement of a public office if [ ] it sets out ... in a civil case ..., factual findings from a legally authorized investigation." Fed. R. Evid. Rule 803(8)(A)(iii).

A review of Agent Tsui's reports of investigation ("ROI") demonstrates that the paragraphs in his affidavit merely introduce the information contained in the ROI. Compare Tsui Aff. ¶¶ 8-9, 12, 17-27, with Tsui Aff., Ex. 1 (ROI) at 63-64, ECF No. 32-12; see also Tsui Aff. ¶ 5 (stating that the ROI contains Agent Tsui's "contemporaneous recordation of events related to the Univar investigation.") The paragraphs in the affidavit and the ROI appear to be merely a transcript of Agent Tsui's interview with Mr. Weng. Without further information on the record, the court cannot make the detailed findings regarding the "special facts and circumstances which, in the court's judgment, indicate[ ]" that Mr. Weng's statements to Agent Tsui have "a sufficiently high degree of trustworthiness and necessity to justify [their] admission;" therefore, the court sustains Univar's objections with respect to those paragraphs. See Fed. R. Evid. 803(24) advisory committee's note to 1974 Enactment; F.T.C. , 994 F.2d at 608.

The court likewise sustains Univar's objection concerning the email authored by Agent Tsui and the attachment therein. See Dep. Ex. 129; Def.'s Resp. to PCSOF ¶¶ 186, 199, 204; Table 4 Item No. 5. Agent Tsui's email contains, as an attachment, a purported "business card" of William Huang ("Mr. Huang") that lists Mr. Huang as the president of Long Hwang Chemical Co. ("LH Chemical") and Lung Huang Trading Company, Ltd. ("LH Trading"). Dep. Ex. 129. The Government is offering this business card to show the truth of the matter asserted therein-that Mr. Huang was the president of both companies-and to establish the address for those companies. See PCSOF ¶¶ 186, 199, 204; Oral Arg. Tr. at 20, 21, 29. Plaintiff has offered no justification why this is not hearsay. Plaintiff argues that this document is nonetheless admissible to impeach Mr. Huang's testimony regarding the location of the saccharin production facility and his lack of affiliation with LH Chemical. See Pl.'s Resp. to Def.'s 2nd Suppl. Mem. at 4 (citing Fed. R. Evid. 613(b) ). Rule 613(b) permits introduction of "extrinsic evidence of a witness's prior inconsistent statement" under certain circumstances. Fed. R. Evid. 613(b) (emphasis added). In this email, Agent Tsui states that he received the business card from a "Taiwan source." Dep. Ex. 129. In his affidavit, he explains that the Taiwan source was Mr. Weng. See Tsui Aff. ¶ 8, 27. Therefore, the Government has not shown that this exhibit contains a statement by Mr. Huang, such that it would be admissible for impeachment purposes pursuant to Rule 613(b).

With respect to Exhibit 2 to Agent Tsui's affidavit, the court, pursuant to its discretion, may admit photographs as substantive or illustrative evidence, provided that the proponent lays a proper foundation for the photographs. See United States v. May , 622 F.2d 1000, 1007 (9th Cir. 1980) ; Fed. R. Evid. 901(a). Mr. Tsui's affidavit states that Exhibit 2 includes "true and correct photographs of the site that [he] visited [in June 2010] from Google maps." Tsui Aff. ¶ 15. Thus, the photographs are illustrative of his visit, properly authenticated, and therefore admissible.

The remaining evidentiary objections of Univar are based on relevance. See Table 4 Item Nos. 6-7. The Government relies on certain provisions of the Taiwan Customs Act, as amended on January 18, 2017, to establish import and export declaration requirements in Taiwan as they pertain to the 2009-2012 saccharin entries. See PCSOF ¶ 58, 62-63; Pl.'s Attach. 23; Table 4 Item No. 6; see also Pl.'s Opp'n at 16 (citing Taiwan Customs Act, arts. 10, 16, 18, 44). Univar objects to the relevance of Taiwan Customs Act, as amended on January 18, 2017, to establish the status of Taiwanese law during the 2009 to 2012 time period. Def.'s Reply at 9. During oral argument, the Government provided a print-out from the Global Legal Information Network displaying a history of the revisions to this Act, but asserted it had difficulty obtaining the English translation of the language of the amendments. See Oral Arg. Tr. at 10-11; Pl.'s OA Ex. 1. The Government's new exhibit shows, and both Univar and the Government acknowledge, that only Article 10 of this Act has been amended since 2012. See Pl.'s OA Ex. 1; Def.'s 2nd Suppl. Mem. at 2; Oral Arg. Tr. at 10-11.

Relevant evidence is that which "has any tendency to make a fact more or less probable than it would be without the evidence; and ... the fact is of consequence in determining the action." Fed. R. Evid. 401. Because the court cannot ascertain whether the current language of Article 10 is substantively the same as the language of Article 10 as it existed in the relevant period, the current version is irrelevant and, therefore, inadmissible. The court overrules Univar's objection with respect to the remaining provisions of the Taiwan Customs Act.

During the course of discovery, Plaintiff procured four versions of tables from the Department of Investigation, Customs Administration, Ministry of Finance, Republic of China ("Taiwan Customs") that purport to reflect imports of saccharin from China into Taiwan by LH Chemical and exports of saccharin from Taiwan to the United States made by LH Trading during the period 2009 to 2012. DSOF ¶ 42; PCSOF ¶ 42; Taiwan Customs Tables; Table 4 Item No. 7. While these Taiwan Customs Tables concern only imports and exports to and from Taiwan from 2009 to 2012, Plaintiff seeks to rely on this evidence as relevant to the shipments in 2007 and 2008, asserting they prove a habit of transshipment by Mr. Huang. See Pl.'s Opp'n at 17-19. Univar objects to the admissibility of the Taiwan Customs Tables for this purpose. See Def.'s Mem. at 24-27; Def.'s Reply at 5-8.

Rule 406 provides that

[e]vidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Fed. R. Evid. 406. "[B]efore a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere 'tendency' to act in a given manner, but rather, conduct that is 'semi-automatic' in nature." Simplex, Inc. v. Diversified Energy Sys., Inc. , 847 F.2d 1290, 1293 (7th Cir. 1988) ; see also Fed. R. Evid. 406 advisory committee's note to the 1972 proposed rules ("The doing of the habitual acts may become semi-automatic in nature").

The Government has failed to establish that the Taiwan Customs Tables demonstrate conduct by Mr. Huang or his purported companies that is " 'semi-automatic' in nature." The Taiwan Customs Tables indicate that between 2009 and 2011, LH Chemical imported from China 20 shipments of sodium saccharin into Taiwan from five different sellers at two different ports of entry. See Taiwan Customs Tables at ECF p. 5. The mesh sizes (reflecting the particle size), quantities, and weight of these imports vary. See id. The Taiwan Customs Tables also indicate that between 2009 and 2012, LH Trading exported 16 shipments of sodium saccharin to the United States, and Univar was the importer. Taiwan Customs Tales at ECF p. 6. The Government argues that these tables, which represent "the evidence of transshipment between 2009 and 2012" are "relevant regarding the alleged transshipment of pre-2009 entries." Pl.'s Opp'n at 17. The activities of LH Chemical and LH Trading, during the 2009-2012 period, do not reflect the type of uniform conduct that would suggest a habit or routine practice for purposes of Rule 406. Notwithstanding the fact that LH Chemical imported from China and LH Trading exported to the United States, differences in the shipments-including different suppliers and different ports-make the Taiwan Customs Tables insufficiently probative with respect to the 2007 and 2008 entries. Therefore, the court sustains Univar's objection to the use of these tables to establish a habit of Mr. Huang or routine practice of his purported companies relative to the earlier time period.

Lastly, the Government objects to the admissibility of an affidavit upon which Univar relies in support of its summary judgment motion. See DSOF ¶ 60; PCSOF ¶ 60; Def.'s Mem., Attach. 38 (Aff. of Sun, Chia Ling) ("Sun Aff."), ECF No. 143-5. Univar relies on the affidavit of Chia Ling Sun ("Ms. Sun"), a branch manager at ECI Taiwan Co. Ltd., which is a subsidiary of Expeditors International, a global "logistics and freight forwarding company." Sun. Aff. ¶ 1. Univar relies on Ms. Sun's affidavit to establish a definition of the "import declaration date" as reflected in the Taiwan Customs Tables and the length of time it typically takes for goods to clear customs in Taiwan. See Def.'s Mem. at 9-12.

Ms. Sun opines that "to the best of [her] knowledge, the import declaration date is the date on which the customs documentation (the 'declaration') is submitted to the Taiwanese customs authority with respect to a particular shipment of imported goods." Sun Aff. ¶ 3. According to Ms. Sun, "[t]hese documents are normally submitted when the shipment arrives in Taiwan," and "[o]nce goods arrive in Taiwan by ship, it typically takes four to five working days for those goods to clear customs and an additional one working day for those cleared goods to be delivered to a local consignee." Id. ¶ 3-4. Ms. Sun concluded that "to the best of [her] knowledge, it typically takes six working days for goods to clear customs and be delivered locally after arrival in Taiwan by ship." Id. ¶ 4.

Plaintiff objects to Univar proffering Ms. Sun's "undisclosed expert report in conjunction with its motion for summary judgment," but has no objection to Univar bringing Ms. Sun "to the United States for deposition and trial." PCSOF ¶ 60; Pl.'s Opp'n at 3 n.1. At oral argument, Univar maintained that Ms. Sun is a lay witness, within the ambit of Rule 701, who may permissibly opine upon matters within her personal knowledge. Oral Arg. Tr. at 6-7. The Government countered that Ms. Sun is an expert, within the ambit of Rule 702, whose testimony is purely based on her experience at Expeditors International. Oral Arg. Tr. at 8-9.

Rule 701 permits a lay witness to testify on matters "rationally based on the witness's perception," helpful to a clear understanding of the determination of a fact in issue, and "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701. The rule was amended in 2000 to add the latter portion "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing."

Fed. R. Evid. 701 advisory committee's note to 2000 amendments. Nevertheless, "the line between expert testimony under [Rule] 702 ... and lay opinion testimony under [ Rule] 701... is not easy to draw." Kahrs Int'l, Inc. v. United States , 33 CIT 1297, 1302 (2009) (quoting United States v. Ayala-Pizarro , 407 F.3d 25, 28 (1st Cir. 2005) ).

Many courts, including the U.S. Court of International Trade, "have permitted specialized opinion testimony, without first qualifying the witness as an expert, because 'the particularized knowledge that the witness has [is derived] by virtue of his or her position in the business.' " Kahrs Int'l , 33 CIT at 1302 (alteration in original) (citations omitted) (quoting Fed. R. Evid. 701 advisory committee's note to 2000 amendments); see also Lerner New York, Inc. v. United States , Slip-Op. 11-149, 2011 WL 6019334 (C.I.T. Dec. 5, 2011) (citing Fed. R. Evid. 701 advisory committee's note to 2000 amendments). Pursuant to this standard, the court finds that Ms. Sun's affidavit is not admissible as opinion testimony by a lay witness.

Based on her 10-year employment with Expeditors International, Ms. Sun states that she has "developed a deep familiarity with Expeditors' day-to-day customs operations in Taiwan by assisting importers and exporters through processing documentation, calculating duties, arranging for inspections, [and] arranging for delivery." Sun Aff. ¶ 1. Ms. Sun, however, indicates that her experience is limited to the Taipei location and she does not provide any indication of having personal knowledge relevant to food additive or chemical import/export practices. While Ms. Sun provides her opinion on questions posed by Univar's counsel, she provides no linkage between those opinions and her personal knowledge for the court to consider. Thus, Ms. Sun's affidavit does not constitute lay witness testimony admissible pursuant to Rule 701. See Fed. R. Evid. 701(a) (lay witness's testimony must be "rationally based on the witness's perception"). Moreover, Ms. Sun's affidavit may not be considered as expert testimony because Univar has neither sought to qualify it as such and has not disclosed it in accordance with the court's scheduling order. See Order (Nov. 25, 2015), ECF No. 16. Accordingly, the court will not consider Ms. Sun's affidavit for purposes of ruling on Univar's summary judgment motion.

To the extent the parties' remaining evidentiary objections concerned issues already addressed in the court's order resolving previously filed motions in limine , that order remains undisturbed and the court need not re-address those objections here. See Order on Mots. In Limine (addressing admissibility of Taiwan Customs Tables concerning the 2009 to 2012 entries and expert reports).

II. Facts Not Genuinely in Dispute

Upon review of the parties' facts (and supporting exhibits) and taking into account the above evidentiary rulings, the court finds there is no genuine dispute with the following material facts.

A. Saccharin and the Antidumping Duty Order

Saccharin is a non-nutritive sweetener generally used in beverages and foods, personal care products, table top sweeteners, and animal feeds. Saccharin from the People's Republic of China , 68 Fed. Reg. 40,906, 40,907 (Dep't Commerce July 9, 2003) (notice of antidumping duty order) ("AD Order "). There are four primary chemical compositions of saccharin: (1) sodium saccharin; (2) calcium saccharin; (3) acid or insoluble saccharin; and (4) research grade saccharin. Id. Acid saccharin may refer "to a crude form of the product that is ... further processed to make sodium saccharin." Pl.'s Attach. 20 (Expert Report of Henry B. McFarland, Ph.D.) ("McFarland Report") at 2, ECF No. 154-22; see also Chyall Report ¶ 38 (stating that a chemical process to prepare sodium saccharin may use acid saccharin as the starting point).

The "mesh size" of saccharin refers to the particle size of the product. Def.'s Mem., Attach. 36 (Expert Report of Michael Coffield) ¶ 7, ECF No. 143-5. "A common method used to characterize the particle size ... is to pass the material through a standard wire mesh screen." DSOF ¶ 83; PCSOF ¶ 83. "[M]esh screen openings ... are classified according to the number of openings along a linear inch of the mesh"; "the larger the numerical value of the mesh size, the smaller the opening." DSOF ¶¶ 83, 85; PCSOF ¶¶ 83, 85. Thus, a high numerical value of the mesh size corresponds with small physical particles of the material. DSOF ¶ 86; PCSOF ¶ 86.

In July 2003, the U.S Department of Commerce ("Commerce") issued an antidumping duty order covering saccharin from China. PCSOF ¶ 179; Def's Resp. to PCSOF ¶ 179; see also AD Order . At all times relevant to this action, the China-wide antidumping duty rate for imported saccharin was 329.33 percent or 329.94 percent. PCSOF ¶ 180; Def.'s Resp. to PCSOF ¶ 180.

B. Univar and the Subject Entries

Univar "is the leading chemical distributor in the United States, providing more chemical products and related services than any other company in the marketplace." PCSOF ¶ 178; Def.'s Resp. to PCSOF ¶ 178. Prior to 2003, Univar imported saccharin from China. PCSOF ¶ 184; Def.'s Resp. to PCSOF ¶ 184. After Commerce issued the antidumping duty order, Univar internally declared itself "temporarily out of the sodium saccharin business" while it considered other sources for its saccharin imports. DSOF ¶ 153; Def.'s Mem., Attach. 51 (Univar internal email), ECF No. 143-5; PCSOF ¶ 184; Def.'s Resp. to PCSOF ¶ 184.

Mr. Biggs is the director of Univar's International Sourcing Group, PCSOF

¶ 185; Def.'s Resp. to PCSOF ¶ 185, and had the "ultimate authority within Univar [ ] to approve [foreign] suppliers, Biggs Dep. 69:14-21. After Commerce issued the antidumping duty order, Mr. Biggs consulted the World Wide Directory of Chemical Producers to search "for non-Chinese manufacturers [of saccharin]." DSOF ¶ 139; PCSOF ¶ 139; Def.'s Mem. at 18. He sent a list from that database to Mr. Chin, who then informed Mr. Biggs that Mr. Huang was "the only viable manufacturer in Taiwan." DSOF ¶ 140; PCSOF ¶ 140.

In October 2003, Mr. Chin obtained prices from Mr. Huang "of [LH] Chemical" and reported those prices to Mr. Biggs. PCSOF ¶ 191; Dep. Ex. 288 at UNIVAR_013664-013665. Mr. Huang quoted a price of $3,850 per metric ton ("MT") for 20-40 mesh size saccharin delivered freight on board in Taiwan. See PCSOF ¶ 192; Dep. Ex. 288 at UNIVAR_013664-013665. Univar was informed that the quoted price was higher than the price for saccharin from China but lower than the price for saccharin from Japan. See Dep. Ex. 288 at UNIVAR_013664; see also PCSOF ¶ 194; Def.'s Resp. to PCSOF ¶ 194 (Mr. Biggs "understood that [in October 2003], Japanese product was more expensive than $3,850" per MT).

"Univar began the process of approving LH Trading/LH Chemical as a supplier in late 2003, early 2004." PCSOF ¶ 195; Dep. Ex. 179. At that time, LH Trading/LH Chemical were not registered with the FDA. See Dep. Ex. 179 at Univar_069041 ("FDA Registration NO: will advies [sic] !!!!!!"); Biggs. Dep. 79:22-23, 81:15-20. As of January 8, 2004, Univar completed the FDA registration for these companies, and listed LH Trading as the supplier and LH Chemical as the manufacturer in the registration documents. Dep. Ex. 215 (Univar email containing FDA registration number); Pl.'s Attach. 3 (Dep. of Annie Chang) ("Chang Dep.") 58:3-59:12 (discussing email). The final registration listed the address for both companies as: 19 Lane 142 Wen Chu Road 4FL Tso Ying Dist. Kaohsiung, Taiwan. Dep. Ex. 215; see also Chang Dep. 59:6-9.

In April 2004, Mr. Biggs visited Taiwan and met with Mr. Huang, the president of LH Trading. DSOF ¶ 124; PCSOF ¶¶ 124, 185; Def.'s Resp. to PCSOF ¶ 185. The purpose of this visit was to conduct "an inspection for ... a new supplier." DSOF ¶ 124; PCSOF ¶ 124. Mr. Huang informed Mr. Biggs that he owned a factory in Taiwan that manufactured saccharin. PCSOF ¶ 187; Def.'s Resp. to PCSOF

¶ 187. During this visit, Mr. Biggs and Mr. Huang toured a factory in Taiwan. See PCSOF ¶ 189; Def.'s Resp. to PCSOF ¶ 189. However, the factory that they toured was owned by HTC. PCSOF ¶ 190; Def.'s Resp. to PCSOF ¶ 190. HTC's factory is located at 115 Qinan Road, Dashe District, Kaohsiung City 815. DSOF ¶ 17; PCSOF ¶ 17.

By May 2004, Univar had begun importing saccharin from Taiwan. See PCSOF ¶ 200; Dep. Ex. 316 at Univar_066465; Biggs Dep. 167:21-23. On August 30, 2004, Univar submitted an application for kosher certification to the Orthodox Union, indicating it promotes its "artificial sweetener" as a "food additive." See Dep. Ex. 314 at Univar_065703. Univar listed LH Chemical-located at 4 Fl. Number 19, Lane 142, Wen Chu Road, Tso Ying District, in Kaohsiung, Taiwan-as the manufacturer, and Mr. Huang as LH Chemical's president. Id. at Univar_065704.

On or around March 10, 2005, Rabbi Grunberg from the Orthodox Union visited the plant owned by "[LH] Chemical," located in "Tso Ying Dist, Kaohsiung, Taiwan" to inspect the facility for purposes of certifying the plant as kosher. Def.'s Mem., Attach. 1 (Rabbi Grunberg Inspection Report), ECF No. 143-5; DSOF ¶¶ 144-45; PCSOF ¶¶ 144-45. That year, the Orthodox Union certified the plant as kosher. DSOF ¶ 145; PCSOF ¶ 145. Subsequent to Rabbi Grunberg's visit, Rabbi Talmid flew to Taiwan three times to inspect the saccharin factory so that the Orthodox Union could continue to certify it as kosher. Talmid Dep. 53:1-68:13. On each occasion, Rabbi Talmid was told that he could not inspect the plant because, respectively, the plant was shut down, there was a dangerous flood, or there was dangerous construction preventing access to the factory. Id. Between 2007 and 2012, the Orthodox Union was unable to inspect Mr. Huang's factory. Biggs Dep. 218:6-9, 219:12-220:4. Nonetheless, from 2005 to 2013, the Orthodox Union continuously certified the saccharin that Univar purchased from Mr. Huang as kosher. DSOF ¶ 145; PCSOF ¶ 145.

Between July 9, 2007, and April 3, 2012, Univar made 36 entries of saccharin into the United States. PCSOF ¶¶ 181, 183; Def.'s Resp. to PCSOF ¶¶ 181, 183; see also DSOF ¶¶ 2, 13; PCSOF ¶¶ 2, 13. Specifically, Univar made 20 entries in 2007 and 2008, and 16 entries between 2009 and 2012. DSOF ¶¶ 13, 48; PCSOF ¶¶ 13. 48. Univar declared Taiwan as the country of origin for all entries of subject merchandise. See DSOF ¶ 3 ("The '36 entries of saccharin' identified by the government in its [p]re-[p]enalty [n]otice form the basis of this action); PCSOF ¶ 3; PCSOF ¶ 183; ("Univar entered, introduced, or caused to be entered or introduced, merchandise consisting of 'saccharin and its salts' under the entry numbers, entered values, and duties paid listed in the [p]re-[p]enalty [n]otice"); Def.'s Resp. to PCSOF ¶ 183; Univar's Resp. to Pl.'s First Set of Disc. Req. at 16 ("Univar admits that it asserted at the time of entry that the country of origin was Taiwan for all entries of [s]ubject [m]erchandise identified in the [p]re-[p]enalty [n]otice").

Univar received a certificate of origin issued by the Kaohsiung Yuan City Chamber of Commerce for each of the 36 entries.

DSOF ¶ 133; PCSOF ¶ 133. "The Kaohsiung Yuan City Chamber of Commerce is authorized by the Taiwan Board of Foreign Trade to issue certificates of origin." DSOF ¶ 131; PCSOF ¶ 131. Issuance of the certificates "is a routine business activity," DSOF ¶ 132; PCSOF ¶ 132, and occurs upon receipt of an application by an exporter and "on the basis that the customs declaration information is verified to be correct," Chamber of Commerce Test. ¶ 5.

In December 2008, Univar participated in a "[c]ustoms mock-audit" conducted by DHL Global Forwarding ("DHL"). See Def.'s Mem., Attach. 2 (Letter from DHL to Univar) at Univar_DHS-003553, ECF No. 143-5; Pl.'s Attach. 10 (Dep. Ex. 11), ECF No. 154-12. DHL is a licensed corporate U.S. Customs broker that helps importers with "the preparation and submission of the entry and entry summary documentation of Customs in association with their importations." Def.'s Mem., Attach. 15 (DHL Fed. R. Civ. P. 30(b)(6) Dep.) 17:16-18:2. DHL concluded that Univar is a "good importer," with a "culture of compliance." DSOF ¶ 160; PCSOF ¶ 160 (initial capitalization omitted). According to DHL's corporate representative, "[d]uring [the] approximately 18-year period" that DHL has conducted these audits, no company "received a perfect score," but Univar "received a score of 90 to 92 percent," which "is probably at or a little above the normal average." DSOF ¶ 161; PCSOF ¶ 161. Moreover, this representative believed that "a good importer" need not "actually visit the factory located in a foreign country before purchasing from that factory." DSOF ¶ 127; PCSOF ¶ 127.

C. Third Party Communications to Univar and Univar's Reactions

In August 2004, shortly after Univar began importing the saccharin it purchased from Mr. Huang, Univar received notice from a U.S. Producer-PMC Specialties Group, Inc. ("PMC")-that it believed Mr. Huang was not producing saccharin, but importing Chinese product and relabeling it. PCSOF ¶ 205; Pl.'s Attach. 1 at Univar_066462. Mr. Biggs relayed PMC's beliefs to Mr. Chin in an email, and asked Mr. Chin if there was "any proof that [Mr. Huang] can provide that [Univar] can use to kill this question." PCSOF ¶ 205; Pl.'s Attach. 1 at Univar_066462. In response, Mr. Chin stated that, according to Mr. Huang, Mr. Biggs's visit to the factory in 2004 was "good proof." PCSOF ¶ 206; Pl.'s Attach. 1 at Univar_011207.

A September 15, 2004 email indicates that Univar provided a sample of the saccharin it purchased from Mr. Huang to PMC for testing. PCSOF ¶ 209; Dep. Ex. 310; see also DSOF ¶ 158; Biggs. Dep. 150:3-23. After conducting the lab tests, PMC informed Mr. Biggs that it was "99.99 [percent] convinced" that the saccharin originated in China, not Taiwan, due to the method used to produce it, which was the Maumee process. PCSOF ¶ 209; Dep. Ex. 310 at Univar_011211; see also Def.'s Resp. to PCSOF ¶ 209 ("Univar does not dispute that this is what PMC 'contended' in September 2004 ...."). PMC explained that it "very much doubt[ed]" that the Maumee process "exists anywhere else in the world except in the USA ... and the PRC." Dep. Ex. 310 at Univar_011211. Mr. Biggs "distrusted PMC's claim" because Univar commonly encountered U.S.-based companies that had a "false" "understanding of what was going on in China." DSOF ¶ 98; PCSOF

¶ 98.

Also in September 2004, Robert Spear, of PepsiCo, Inc. ("Pepsi"), a Univar customer, wrote an email to Mr. Biggs inquiring: "The Taiwan plant doesn't make the base saccharin molecule does it? I thought I heard the plant receives the base product from China." Dep. Ex. 317 at Univar_066447; PCSOF ¶ 208Def.'s Mem., Attach. 26 (Decl. of Robert Spear) ("Spear Decl."), ECF No. 143-5 (expressing lack of recollection regarding the email, but otherwise not disputing that he sent it); see also Compl. ¶ 16; Answer of Def. Univar USA Inc. to Pl.'s Compl. ("Answer") ¶ 16, ECF No. 8 (establishing that Pepsi is a Univar customer).

On April 7, 2006, Mr. Biggs received an email from a Univar colleague that relayed some information she heard during a meeting with one of Univar's customers. Dep. Ex. 322; Biggs. Dep. 182:9-16. She stated, "rumor has it that Mr. Biggs from Univar has already been buying Chinese material. Yes you were mentioned by name." PCSOF ¶ 216; Dep. Ex. 322; Biggs Dep. 182:9-16, 183:6-12. Mr. Biggs's reaction to this email was to "chuckl[e]"; he believed "there was a history of bad-unreliable information from this buyer." Biggs Dep. 183:14-22.

In January 2007, an account executive at Univar sent an email to the company's International Sourcing Group stating the following:

I had one of my customers tell me that one of our competitors told her that we were getting product that is actually manufactured in China then shipped to Taiwan and then repackaged and marked as manufactured in Taiwan. She wanted me to look into this. We just secured this business at this account so it may be just a competitor who is upset over losing the business. Can you let me know about this. [sic]

PCSOF ¶ 217; Dep. Ex. 323 at Univar_012851.

John Lombard is the president of Lomco, Inc., a company that "assist[s] companies in managing inventories, by buy[ing] and sell[ing] some of their surplus and obsolescent chemicals and sell[ing] them into the secondary markets." DSOF ¶¶ 107-108; PCSOF ¶¶ 107-108 (second and third alteration in original) (internal quotation marks omitted). In or around October 2008, Lomco, Inc. attempted to sell Univar's saccharin and eventually identified PMC as a potential buyer of this material. DSOF ¶ 109; PCSOF ¶ 109. During the course of his attempts to sell this saccharin to PMC, a PMC employee told Mr. Lombard "that there was no factory, no production [of saccharin] in Taiwan," although this employee did not elaborate why she believed there were no such manufacturers. DSOF ¶ 110; PCSOF ¶ 110.

In November 2008, Mr. Lombard informed Univar:

Our major hurdle with assisting you is the following: Regardless of what they say, Lung Huang Trading are not manufacturers of Sodium Saccharin. They are buying material from mainland China and repackaging the material. As you probably know, several years ago dumping duites [sic] were implemented against Chinese producers of Sodium Saccharin.... I can't imagine that Univar didn't dot all the I's [sic] and cross all the Ts before beginning to import Sodium Saccharin.

PCOF ¶ 218; Dep. Ex. 259 at Univar_014646 (email from Mr. Lombard to Mr. Biggs), ECF No. 154-4. Mr. Lombard did not make those statements on personal knowledge, but rather based on "information supplied by ... PMC as well as information that [he] could or could not find on the internet about manufacturing of [s]odium [s]accharin in Taiwan." DSOF ¶¶ 111, 113; PCSOF ¶¶ 111, 113. As he recalled during his deposition in this case, "[he] was seeking information on Taiwanese manufacturers of [s]odium [s]accharin" on the internet and he didn't "believe [he] was able to find any." DSOF ¶ 112; PCSOF ¶ 112 (alteration in original).

D. Customs' Investigation of Univar's Entries

On February 20, 2010, ICE informed Univar's Chief Executive Officer that the company was under investigation for "possible transshipment of saccharin manufactured in [China] in order to avoid payment/deposit of anti-dumping duties associated with the commodity." PCSOF ¶ 220; Dep. Ex. 12 at Univar_065600. At the time it issued this letter, the Government "had suspicions transshipment was occurring," but "[a]t that point[,] there was nothing confirmed." DSOF ¶ 118; PCSOF ¶ 118.

In April 2010, two Government employees, chemist Yogendra Raval and Agent Tsui, went to Taiwan. DSOF ¶ 25; PCSOF ¶ 25. They toured HTC's factory to determine the type of manufacturing process that HTC was using to produce saccharin. DSOF ¶¶ 25, 26; PCSOF ¶ 25, 26; see also Tsui Aff. ¶ 10 ("The purpose of the visit to HTC was to verify that HTC in fact manufactured the saccharin that it exported to the United States.") During this visit, Mr. Raval reviewed a "process flow chart," "[p]urchase documents for raw materials,"

and "took a sample for [his] lab" to ensure that the product was saccharin; he ultimately concluded that "saccharin [wa]s being manufactured according to the Maumee process" at HTC. DSOF ¶ 27; PCSOF ¶ 27 (alteration in original).

Agent Tsui also testified that he saw raw materials, equipment, and employees at the HTC facility during this visit. DSOF ¶ 29; PCSOF ¶ 29. He testified he smelled a "sweet smell in the air," which the HTC officials described to be the saccharin smell, and tasted sweetness on his tongue. Def.'s Mem., Attach. 24 ("Tsui Dep.") 65:1-14, ECF No. 143-5. Based on the taste, HTC's statements to him, and the consistency of the end product, which he witnessed to be a "white powdery substance," Agent Tsui "believed it was saccharin" that was being produced at the [HTC] factory in Kaohsiung City." DSOF ¶ 30; PCSOF ¶ 30; Tsui Dep. 65:17-22, 66:5-9. During this visit, the "plant manager admitted" to Agent Tsui that HTC was "in violation of local fire and environmental regulations" but that it was "still successfully producing saccharin." DSOF ¶ 39; PCSOF ¶ 39.

On June 10, 2010, Agent Tsui determined that both LH Trading and LH Chemical were located at the following address: "Section 19, Lane 142, Wun Cih Road, Kaohsiung City, Taiwan." Tsui Aff. ¶¶ 13, 14. A week later, on June 17, 2010, Agent Tsui conducted a site visit to this address and observed that the building located at this address was "a 12-story residential apartment building located in a dense residential neighborhood." Id. ¶ 15. He "did not observe any manufacturing, industrial activity, or distribution at this location or its vicinity." Id. ¶ 16. Agent Tsui provided photographs of "Google maps" images depicting "the site that [he] visited" on this date. Id. , Ex. 2 (referencing screenshots showing "Lane 142, WénCí Road, Zuoying District, Taiwan").

E. Taiwan's Economy and Regulation of Saccharin Production

"[I]n Taiwan, sodium saccharin is not a controlled item." DSOF ¶ 33; PCSOF ¶ 33. Taiwan requires a saccharin manufacturing license only if the sodium saccharin "is used [as a] food additive." DSOF ¶ 33; PCSOF ¶ 33. Single food additive production is regulated and managed by the Ministry of Health and Welfare. Def.'s Mem., Attach. 31 (Jyh-Quan Pan Aff.) ("Pan Aff."), ECF No. 143-5; Def.'s Mem., Attach. 10 at US007941 (email from Lisa Yang to Eben Roberts), ECF No. 143-5. Between 2004 and 2012, the Ministry of Health and Welfare did not issue any licenses for the manufacture of sodium saccharin. DSOF ¶ 34; Pan Aff.

According to Professor Jane Winn, Univar's proposed expert witness, the term informal economy "refers to economic activities that take place outside of government regulation." DSOF ¶ 37; PCSOF ¶ 37. Professor Winn's "primary focus in [her] analysis is on activities that would otherwise be legitimate economic activities if they had been undertaken in compliance with all relevant laws and regulations." DSOF ¶ 37; PCSOF ¶ 37 (alteration in original). According to Professor Winn, Taiwan's informal economy "remain[s] significant" and "the facts associated with [HTC] are consistent with companies in Taiwan that operate without a manufacturing license because they are facts that suggest that a company is operating partly or wholly in the informal economy." DSOF

¶ 38; PCSOF ¶ 38 (first alteration in original).

F. Administrative Proceedings

"In July 2014, CBP issued a pre-penalty notice to Univar," claiming a penalty of approximately $47.9 million and lost duties of $36.1 million. DSOF ¶ 165; PCSOF ¶ 165. On July 29, 2014, Univar requested that CBP identify the material facts supporting its pre-penalty notice. DSOF ¶ 166; PCSOF ¶ 166. In response, CBP directed Univar to submit a Freedom of Information Act request to obtain the requested information. DSOF ¶ 167; PCSOF ¶ 167. Univar complied with this directive "and subsequently responded to the pre-penalty notice." DSOF ¶ 168; PCSOF ¶ 168.

On October 1, 2014, CBP issued its penalty notice, which contained allegations identical to the pre-penalty notice. DSOF ¶¶ 169-170; PCSOF ¶¶ 169-170. "On October 31, 2014, Univar submitted a petition for relief." DSOF ¶ 171; PCSOF ¶ 171. In response, CBP's Office of International Trade - Regulations and Rulings ("CBP Headquarters") "provided a 'partial decision' to Univar's petition for relief." DSOF ¶ 172; PCSOF ¶ 172. In relevant part, this partial decision stated that the CBP Headquarters' "review of the case file revealed that the penalty notice does not include the material facts supporting CBP's allegation that the saccharin was of Chinese origin and supporting a degree of culpability of gross negligence." DSOF ¶ 173; PCSOF ¶ 173. Thus, CBP Headquarters denied without prejudice Univar's petition for relief and remanded the case back to the CBP office "to issue an amended penalty notice that includes the material facts supporting CBP's allegation that the saccharin was of Chinese origin and supporting a degree of culpability of gross negligence." DSOF ¶ 174; PCSOF ¶ 174. "On February 10, 2015, CBP issued a 'revised penalty notice' to Univar." DSOF ¶ 175; PCSOF ¶ 175.

III. Procedural History

Plaintiff commenced this action on August 6, 2015. See Summons, ECF No. 1; Compl. On October 6, 2015, Defendant filed an answer to the complaint. Answer.

Defendant previously moved for partial summary judgment in its favor with respect to 23 entries that occurred prior to Ma