Myhra

ORDER

The opinion filed July 31, 1995, and published at 61 F.3d 731 (9th Cir.1995), is amended as follows:

1. At slip op. page 9246, ( 61 F.3d 731 , 734), just before part “IV. CONCLUSION,” the following two paragraphs are inserted:

2. At slip op. page 9246, 61 F.3d at 734, the paragraph under part “IV. CONCLUSION” is deleted and there is inserted in its place the following:

AFFIRMED and REMANDED.

With the foregoing amendment, the petition for rehearing is DENIED.

I. OVERVIEW

Pentax Corporation (Pentax) imported mismarked goods. Pentax admitted its error by letter to the United States Customs Service (Customs), seeking to limit its potential liability by qualifying for “prior disclosure” status under 19 U.S.C. § 1592 (c)(4). That statute requires the violator to tender any unpaid duties. Customs demanded that Pentax tender a ten percent marking duty required for mismarked goods. 19 U.S.C. § 1304 (f). Pentax refused to tender any money claiming that no duty was unpaid.

Pentax brought this action in Montana District Court seeking judicial review of Customs’ determination that Pentax must prepay $5.2 million by a certain date to qualify for prior disclosure status. The…