CIT Denies CBP Request for Stay of Judgment in Enhanced Bond Case

The Court of International Trade has denied a request by U.S. Customs and Border Protection for a stay of its judgment in National Fisheries Institute Inc. v. U.S. V, stating that CBP had not made a strong showing that it is likely to succeed on the merits should it bring an appeal.

(In 2005 CBP applied enhanced bonding requirements (EBR) to frozen warm water shrimp from Thailand and India subject to antidumping (AD) and/or countervailing (CV) duties that it subsequently terminated in April 2009 to comply with an adverse World Trade Organization ruling. The WTO ruling was specific to the EBR applied to shrimp from India and Thailand, but CBP stated it would end the requirement for all affected countries which include: Thailand, India, Brazil, China, Vietnam, and Ecuador. See ITT’s Online Archives or 04/01/09 news, 09040130, for BP summary.)

CBP Says EBR Should Continue, Also Larger Issue of CBP’s Statutory Discretion

CBP filed a motion to stay the judgment from National Fisheries V that requires CBP to cancel, and, if necessary, allow replacements for, plaintiffs’ bonds affected by the amended second remand redetermination. CBP argued that there is a serious question concerning whether bond determinations are committed to CBP’s discretion by statute and if so, the ‘arbitrary and capricious’ standard of review should not have applied.

CIT States Stay Would Allow Discriminatory and Unlawful EBRs to Continue

CIT states that the effect of its judgment is to extend the same regulatory treatment that CBP accords to continuous bonds of other importers to the duty liability secured by plaintiffs’ terminated and unlawful EBRs. CIT adds that allowing the discriminatory and unlawful treatment to continue throughout a possible appellate process would be contrary to fair and equitable administration of the law.

CIT Concludes CBP’s Possible Appeal is Insufficient to Stay the Judgment

CIT states that CBP has not made a strong showing that it is likely to succeed on the merits should it bring an appeal, and if it were to grant the stay, it would not serve the public interest and plaintiffs would suffer irredressable harm. Therefore, CIT denies CBP’s motion for a stay of the judgment.

(In National Fisheries II, CIT ruled that CBP’s EBR was unreasonable and capricious and ordered CBP to redetermine the limit of liability on each individual continuous entry bond, without application of the EBR. In National Fisheries III and IV, CIT ordered CBP to again reconsider and recalculate the bonding requirement. See ITT’s Online Archives or 08/31/09 news, 09083135, and 05/28/10 news, 10052836, for BP summaries.

In National Fisheries V in October 2010, CIT allowed CBP sixty days from the date that the judgment was entered or five days after a plaintiff tendered a replacement bond, whichever occurred later, to comply with the judgment effectuating the amended remand determination. See ITT’s Online Archives or 10/25/10 news, 10102520, for BP summary.)