National Fisheries Institute, Inc. v. United States Bureau of Customs & Border Protection

Slip Op. 06-166

UNITED STATES COURT OF INTERNATIONAL TRADE

NATIONAL FISHERIES INSTITUTE,

INC., ET AL.,

Plaintiffs, Before: Timothy C. Stanceu, Judge

v. Court No. 05-00683

UNITED STATES BUREAU OF PUBLIC

CUSTOMS AND BORDER

PROTECTION,

Defendant.

OPINION

[Granting in part and denying in part plaintiffs’ motion for preliminary injunction relief]

Dated: November 13, 2006

Steptoe & Johnson LLP (Eric C. Emerson, Gregory S. McCue and Michael A. Pass) for

plaintiffs.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Patricia M.

McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice (Stephen C. Tosini); Chi S. Choy, Bureau of Customs and Border

Protection, United States Department of Homeland Security, of counsel, for defendant.

Stanceu, Judge: Plaintiffs National Fisheries Institute, Inc. (“NFI”), a non-profit trade

association, and 27 of its members move, pursuant to USCIT Rules 7 and 65, for an order

entering a preliminary injunction against United States Customs and Border Protection

(“Customs” or the “Agency”). Pls.’ Mot. for Prelim. Inj., attached Order at 1; First Am. Compl.

Attach. 1. Plaintiffs are commercial importers of seafood products, including shrimp products

that are subject to six antidumping duty orders issued by the International Trade Administration,

United States Department of Commerce (“Commerce”). First Am. Compl. at 1, 19-22. Plaintiffs

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seek a preliminary injunction essentially to preclude Customs, during the pendency of this case,

from applying a particular Customs directive, as amended in 2004 and clarified in 2005, when

determining the sufficiency of each plaintiff’s basic importation and entry bond. See Pls.’ Mot.

for Prelim. Inj. at 2-3. Plaintiffs, who challenge on the merits the individual bond sufficiency

determinations by Customs, also request in their preliminary injunction motion that the court

enjoin Customs from considering potential antidumping and countervailing duty liability in

determining bond sufficiency and that Customs be directed by the court to allow replacement of

any bond used to enter merchandise on or after the date of filing of Plaintiffs’ Motion for

Preliminary Injunction with a superseding bond calculated without regard to antidumping or

countervailing duty liabilities. Id. at 1; Mot. to Amend Injunctive Relief Requested at 2-3.

As required by the customs laws and regulations, a basic importation and entry bond

allows Customs to make a monetary demand on the surety that issued the bond should the

importer of record (i.e., the “principal” on the bond) fail to meet its legal obligation to “pay

duties, taxes, and charges” or fail to comply with another obligation (i.e., a “bond condition”)

guaranteed by the bond. See 19 C.F.R. § 113.62 (2005). An importer breaching a bond

condition typically will incur contractual liability to Customs in the form of liquidated damages

that may not exceed the limit of liability of the bond, and also will incur contractual liability to

indemnify the surety. See id. Commercial importers, such as the plaintiffs in this case, typically

obtain “continuous” bonds (also referred to as “term” bonds), which cover liabilities resulting

from multiple import transactions over a period of time, such as one year. See id. § 113.12(b).

For commercial importers who conduct frequent import transactions, continuous bonds typically

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are more practical and economical than “single entry” bonds, which cover the obligations arising

from one entry. See id. § 113.12(a).

To date, Customs has applied the amendment and the clarification of its bond directive

only to importers of shrimp products covered by the six antidumping duty orders. The

amendment and the clarification of the bond directive have had the effect of increasing

substantially the limits of liability for the continuous bonds that Customs has demanded of the

individual plaintiffs. See Pls.’ Mot. for Prelim. Inj. at 2-3. The member-importers seeking

injunctive relief are Admiralty Island Fisheries, Inc., d.b.a. “Aqua Star” (“Aqua Star”); Berdex

Seafood, Inc. (“Berdex Seafood”); Censea Inc.; Crystal Cove Seafood Corp.; Eastern Fish

Company, Inc. (“Eastern Fish”); Harbor Seafood, Inc.; Icicle Seafoods, Inc.; International

Gourmet Fisheries, Inc., d.b.a. “Mid Pacific Seafoods” (“IGF”); Interocean Inc.; L.N. White &

Co., Inc.; Mazzetta Company, LLC; McRoberts Sales Co., Inc.; Mseafood Corporation; Newport

International; Ocean Cuisine International; Ocean to Ocean Seafood, LLC; Ore-Cal Corp. (“Ore-

Cal”); Oriental Foods, Inc. (“Oriental Foods”); Pacific Seafood Group; Red Chamber Co. (“Red

Chamber”); Sea Port Products Corporation; Sea Snack Foods Inc.; Southwind Foods LLC, d.b.a.

“Great American Seafood Imports Co.”; Tampa Bay Fisheries, Inc. (“Tampa Bay”); Thai Royal

Frozen Foods Co., Inc.; The Seafood Exchange of Florida; and The Talon Group LLC. See First

Am. Compl. Attach. 1.

Plaintiffs claim that the application of the amendment and the clarification of the bond

directive are causing and will continue to cause them substantial economic harm because of the

obligation to post large amounts of collateral with the surety to satisfy the current and impending

bond sufficiency determinations by Customs, which plaintiffs consider to be excessive. See Pls.’

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Mot. for Prelim. Inj. at 2-5; Mem. of P. & A. in Supp. of Pls.’ Mot. for Prelim. Inj. at 15 (“Pls.’

Mem.”). Plaintiffs argue that the decision of Customs to require continuous bonds sufficient to

cover potential antidumping or countervailing duty liability exceeds the Agency’s authority under

19 U.S.C. § 1623(a) (2000). See Pls.’ Mot. for Prelim. Inj. at 5-6; Pls.’ Mem. at 40-44. They

further claim that the selective application of the amendment and the clarification by Customs to

shrimp importers is arbitrary and capricious. See Pls.’ Mot. for Prelim. Inj. at 6; Pls.’ Mem. at

39-40, 47-50. Plaintiffs maintain that in weighing whether or not to grant the requested

injunctive relief, the balance of the hardships and the public interest favor NFI and its members.

See Pls.’ Mem at 50-52.

Defendant contends that plaintiffs’ alleged economic hardships “do not rise to the severe

level necessary to establish immediate irreparable harm” sufficient to warrant a preliminary

injunction. Def.’s Opp’n to NFI’s Mot. For Prelim. Inj. at 7 (“Def.’s Opp’n”). Defendant argues

that a preliminary injunction should not be ordered because, in its view, plaintiffs have not

established a likelihood of success on the merits. See id. at 7-8, 12-23. Defendant submits that

because 19 U.S.C. § 1623 grants the Agency “broad authority to protect the revenue by requiring

bonds or other security as Customs ‘may deem necessary,’” Customs acted reasonably and within

its statutory authority when it increased the continuous bond requirements for importers of

shrimp. Id. at 15 (quoting 19 U.S.C. § 1623(a)). Defendant further submits that “the specter of

harm faced by the Government is very real and acute” if Customs is not allowed to protect the

revenue of the United States through increased bonding, and that this potential harm outweighs

the hardships alleged by the plaintiffs. Id. at 24-25. Defendant also argues that the public

interest favors the protection of the revenue through resort to continuous bonds of the size

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Customs determines to be necessary under the amendment and the clarification of the bond

directive. See id.

During a hearing held at the United States Court of International Trade on March 30 and

March 31, 2006, representatives of eight plaintiffs, specifically, Eastern Fish, Ore-Cal, Red

Chamber and affiliates IGF and Tampa Bay, Oriental Foods, Berdex Seafood, and Aqua Star,

testified in support of the claim that plaintiffs will suffer immediate, irreparable harm absent

injunctive relief. On April 5, 2006, a representative from Customs testified to the hardship that

Customs will suffer in protecting the potential revenue and in collecting outstanding antidumping

duties from shrimp importers if Customs is prevented from applying the new bond formulas.

The court’s decision on plaintiffs’ motion for preliminary injunctive relief is based on a

review of the evidence introduced at the hearing; the transcripts of the oral argument held on

April 7, 2006; plaintiffs’ motion to amend its request for preliminary injunction relief filed on

April 14, 2006; post-hearing briefs submitted by the parties on May 5, 2006; plaintiffs’

unopposed motions to amend the de novo hearing record to admit limited additional evidence,

filed on May 5, 2006 and July 31, 2006; and other relevant papers and proceedings in this case.

The court concludes that plaintiffs have not established their entitlement to the particular

injunctive relief sought in their amended motion. The court, however, further concludes that

limited injunctive relief is appropriate.

The court held an in-chambers conference on July 19, 2006, during which the court

discussed with the parties the reasons that the court would not grant the specific preliminary

injunction sought by plaintiffs, the court’s conclusion that only the eight plaintiffs that presented

evidence at the hearing could satisfy the requirement of showing irreparable harm, and the

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court’s view that plaintiffs’ showing of likelihood of success on the merits does not support

plaintiffs’ request to permit plaintiffs “to replace any bond used to enter merchandise on or after

February 23, 2006, with a bond calculated without regard to potential antidumping or

countervailing duties.” Mot. to Amend Injunctive Relief Requested, attached Order at 3. As

discussed in Section II.A.3 of this opinion, such relief is more akin to the restoration of a form of

status quo ante, rather than a preliminary injunction to preserve the status quo, because it would

require the court to order the cancellation of bonds, thereby extinguishing all obligations under

such bonds, and would require Customs to approve the replacement of such bonds with

superseding bonds with lower limits of liability. During the July 19, 2006 conference, the court

attempted to facilitate an amicable resolution of the preliminary injunction issue by informing the

parties of the court’s preliminary conclusions, by reviewing the language of a limited draft

injunction prepared by the court, and by soliciting from the parties suggested modifications to the

draft that could achieve an administrable preliminary injunction. At that conference, the parties

requested a period of time to consult and to seek agreement on language for a preliminary

injunction to which all parties could consent. The court initially granted the parties a period of

one week to consult. The plaintiffs subsequently requested, and the court granted, additional

time for plaintiffs to continue their consultations with defendant.

In response to a USCIT R. 16 letter from the court dated August 17, 2006, defendant filed

status reports on August 17 and September 1, 2006, and plaintiffs filed a status report on

August 21, 2006, each advising the court of various matters. Of particular importance was that

the communications in the status reports indicated to the court that the parties had reached an

impasse in their negotiations concerning the preliminary injunction. Plaintiffs’ August 21, 2006

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status report conveyed plaintiffs’ desire to continue negotiations, but interpreted defendant’s

August 17, 2006 status report as signaling that negotiations were at an end. Believing that

negotiations had concluded, plaintiffs’ August 21, 2006 status report requested that the court

issue a preliminary injunction. Plaintiffs proposed a substantial change to the draft order

prepared by the court, requesting that the injunction require Customs to permit any plaintiff “who

obtained a new continuous entry bond on or after February 23, 2006 . . . to change the limit of

liability in the new bond” without applying the amendment or the clarification of the bond

directive. Pls.’ Status Report at 2. Defendant’s status reports informed the court that defendant

continued to oppose any preliminary injunction but also informed the court that Customs

currently did not plan to alter the bond requirements for any of the eight plaintiffs that attempted

to demonstrate immediate irreparable harm. Def.’s Status Report at 1, Aug. 17, 2006; Def.’s

Status Report at 1-2, Sept. 1, 2006.

Defendant submitted another status report on October 25, 2006, informing the court that

Customs had published the previous day a Federal Register notice concerning bond requirements

for importers of certain merchandise subject to antidumping and countervailing duty orders. The

notice, described later in this opinion, announced changes to the process used to determine bond

amounts for importers of Special Category merchandise. Because the notice addressed matters

relevant to the situations of the individual plaintiffs, the court held two status conferences with

the parties, on October 26 and November 3, 2006. In the second status conference, counsel for

defendant informed the court that Customs did not intend to use the process announced in the

notice to replace with superseding bonds any of the bonds already required pursuant to the

amendment and the clarification, including those bonds under which plaintiffs currently are

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importing merchandise. The court held another status conference on November 13, 2006, before

issuing this opinion.

Based on all proceedings held to date, the court will enter a limited preliminary injunction

that generally will preserve the status quo with respect to the bond status of the eight plaintiffs

identified above. Each of those eight plaintiffs established that it will suffer immediate,

irreparable harm, including a serious impairment of its ability to conduct its shrimp importing

business, absent a preservation of the status quo during the pendency of this case. Plaintiffs

demonstrated that they likely will succeed, partially, on the merits in establishing that the balance

of the hardships on all parties in this action tips in favor of plaintiffs and that the public interest

would be better served if the court grants injunctive relief. The court concludes that the showing

made on behalf of the remaining 19 plaintiffs is insufficient to establish that those plaintiffs will

suffer immediate, irreparable harm absent a preliminary injunction.

I. Background

Bond Directive 99-3510-004 (the “Bond Directive”), originally issued by Customs on

July 23, 1991, established guidelines under which port directors are to assess the adequacy of an

importer’s continuous bond. See Monetary Guidelines for Setting Bond Amounts, Customs

Directive 99-3510-004 (July 23, 1991), available at

http://cbp.gov/linkhandler/cgov/toolbox/legal/directives/3510-004.ctt/3510-004.txt. Prior to the

amendment by Customs in 2004, the Bond Directive set a non-discretionary, minimum

continuous bond amount at $50,000 and established a formula by which “the bond limit of

liability amount shall be fixed in multiples of $10,000 [or $100,000] nearest to 10 percent of

duties, taxes and fees paid by the importer or broker acting as importer of record during the

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calender year preceding the date of the [bond] application.” Id. (setting forth formulas under

“Activity 1 - Importer or Broker - Continuous”). Whether the bond limit was fixed in multiples

of $10,000 or $100,000 depended upon whether the total duty and tax liability for an importer

during the calender year preceding its bond application exceeded $1,000,000. Id.

Customs, on July 9, 2004, posted on its website the amendment to the Bond Directive at

issue in this case (the “Amendment”), which set forth new formulas for calculating minimum

continuous bond amounts for importers of agricultural/aquacultural merchandise that is subject to

antidumping or countervailing duty orders. See Amendment to Bond Directive 99-3510-004 for

Certain Merchandise Subject to Antidumping/Countervailing Duty Cases (July 9, 2004),

available at http://www.cbp.gov/xp/cgov/import/add_cvd/bonds/07082004.xml (“Amendment”).

Customs cited an “increasing concern regarding the collection of antidumping and countervailing

duties, the impact of these collections on the amount of disbursements pursuant to the Continued

Dumping and Subsidy Offset Act [of 2000, Pub. L. 106-387 (“Byrd Amendment”)] . . . , and

continued vigilance by [Customs] to ensure collection of all appropriate antidumping and

countervailing duties.” Id. Customs listed under-collections of antidumping duty liabilities for

imports of fresh garlic and crawfish from China as examples of why it deemed it necessary to

change the formula for determining minimum bond requirements. Id. The Amendment was

neither published in the Federal Register nor subjected to the established notice and comment

procedures provided for under the Administrative Procedure Act (“APA”), 5 U.S.C. § 553

(2000). Customs did not publish the Amendment in the Customs Bulletin.

The Amendment requires all Customs port directors “to review continuous bonds for

importers who import agriculture/aquaculture merchandise subject to antidumping/

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countervailing duty cases and obtain larger bonds where necessary.” Id. A formula contained in

the Amendment directs that “in fixing the limit of liability amount,” port directors will calculate

the product of an importer’s antidumping or countervailing duty rate and the value of

merchandise subject to antidumping or countervailing duties imported by that importer during

the previous year. Id. (setting forth the formula as the “[Commerce] rate at Order [multiplied by

the] value of imports of merchandise subject to the case by the importer during the previous

year”). The Amendment also applies to provisional measures by providing that “[i]f, at any time

after [Commerce] issues a preliminary affirmative determination in an agriculture/aquaculture

case, [Customs] detects sudden changes in declared values, claimed country of origin, or declared

classification, etc., [Customs] will consider such changes to reflect an increased risk.” Id. The

Amendment, in that event, requires port directors to determine the amount of a continuous bond

by calculating the product of the importer’s deposit rate in effect on the date of entry and the

value of merchandise imported during the previous year. See Amendment (setting forth the

formula as the “[Commerce] deposit rate in effect on date of entry [multiplied by the] value of

imports of merchandise subject to the case by the importer during the previous year”). For

importers with no prior history of importing agricultural/aquacultural merchandise, the

Amendment directs that a sufficient bond amount will be determined by calculating the product

of the importer’s cash deposit rate in effect on the date of entry and the “estimated annual import

value” of the subject imports. Id. (setting forth the formula as the “[Commerce] deposit rate in

effect on date of entry [multiplied by the] estimated annual import value of the goods subject to

the case”).

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On January 24, 2005, Customs posted on its website a document entitled “Current Bond

Formulas,” which contained, inter alia, the formulas described in the Amendment. Current

Bond Formulas (Jan. 24, 2005), available at

http://www.cbp.gov/xp/cgov/import/communications_to_trade/pilot_program/ (“Current Bond

Formulas”). The document, which was not published in the Federal Register or Customs

Bulletin, also states that a “new comprehensive [Customs] Directive will be issued at a later

date.” Id.

On August 10, 2005, Customs posted on its website a clarification to the Amendment of

the Bond Directive (the “Clarification”), which established two classes of merchandise, “Special

Categories” and “Covered Cases.” See Clarification to July 9, 2004 Amended Monetary

Guidelines for Setting Bond Amounts for Special Categories of Merchandise Subject to

Antidumping and/or Countervailing Duty Cases (Aug. 10, 2005), available at

http://www.cbp.gov/xp/cgov/import/add_cvd/bonds/07082004.xml (“Clarification”). The

Clarification was not published in the Federal Register or the Customs Bulletin and was not the

subject of a notice and comment proceeding. According to the Clarification, “Special Categories

of merchandise can be designated where additional bond requirements in the form of greater

continuous entry bonds or other security, may be required.” Id. The Clarification designates

only agricultural/aquacultural merchandise as a Special Category. Id. The Clarification explains

that “[t]he term Covered Cases refers to merchandise within a previously designated Special

Category where different standards or formulas for determining the bond amount will be

applied.” Id. Antidumping and countervailing duty investigations and orders pertaining to

shrimp are the only Covered Cases that Customs has designated as falling within the

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agriculture/aquaculture Special Category. See id. The Clarification sets forth criteria that

Customs is to consider in determining whether imports designated as Special Categories or

Covered Cases should be subject to increased bond requirements. See id.1 The Clarification also

establishes the procedure for “notice, timing and appeal” of increased bond demands made by

Customs for importers of Special Category and Covered Cases merchandise. See Clarification.

Because Customs confined its “Covered Cases” designation to shrimp subject to

antidumping or countervailing duty proceedings, only importers of certain frozen warmwater

shrimp from Brazil, China, Ecuador, India, Thailand and Vietnam, as specified in the scope of

the six antidumping duty orders (“subject shrimp”), are subject to the new bond requirements set

forth by Customs in the Amendment and the Clarification. Commerce issued amended

antidumping duty orders on certain frozen warmwater shrimp from those six countries on

February 1, 2005. See Pls.’ Mem. Ex. 4. Subsequently, Customs issued to all 27 plaintiffs letters

advising, pursuant to 19 C.F.R. Part 113, that their continuous bonds have been deemed

“insufficient to protect the revenue and insure compliance with [Customs] laws and regulations.”

See Pls.’ Mem. Ex. 5 Attach. B, Ex. 6 Attach. B, Ex. 7 Attach. A, Ex. 8 Attach. B, Ex. 9

Attach. C, Ex. 10 Attach. B. The notices of insufficiency established, for each importer, new

continuous bond limits of liability and stated that in determining such limits, Customs applied

1

The Clarification lists the following criteria: “1. Previous collection problems

concerning a specific case or industry involved; 2. The similarity to previous cases or industries

experiencing uncollected revenue problems; 3. Whether the merchandise in question had very

low duty rates or was duty-free prior to initiation of an antidumping or countervailing duty case;

4. The projected ability of the industry to pay future duty liabilities; 5. Low capitalization of the

industry involved such that new or increased duty liabilities create increased risk; 6. Whether the

industry involved is highly leveraged such that new or increased duty liabilities create increased

risk; [and] 7. Any other factors that are deemed relevant.”

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the formula described as “AD/CVD Order (3),” i.e., the “[Commerce] Order rate [multiplied by

the] value of imports of merchandise subject to the case by the importer” during the previous

year. See id.; Current Bond Formulas (setting forth the formula under “AD/CVD Order (3)”).

On October 24, 2006, Customs published a Federal Register notice (the “Notice”) “to

provide additional information on the process used to determine bond amounts for importations

involving elevated collection risks and to seek public comment on that process.” Monetary

Guidelines for Setting Bond Amounts for Importations Subject to Enhanced Bonding

Requirements, 71 Fed. Reg. 62,276, 62,276 (Oct. 24, 2006) (“Notice”). The Notice announces

changes to the process discussed in the Amendment and the Clarification and, although inviting

public comment, makes the changes in the process effective upon publication. Id. (stating that

“[t]he process published in this Notice is in effect.”). The Notice retains the same basic formulas

for calculating limits of liability for the continuous bonds required of importers of merchandise

in Special Categories. Id. at 62,277. The Notice announces, however, that Customs will provide

for public notice and comment on the designation of new Special Categories, which it announces

will occur according to specified criteria, and also will provide for public notice of the removal

of a designation. Id.

The Notice does not announce that Customs is changing the current designation of

aquaculture merchandise as a Special Category or the current designation of the shrimp

antidumping orders as Covered Cases, but it indicates that Customs no longer will designate

Covered Cases. “[Customs] will continue to evaluate on an industry wide basis those types of

merchandise where additional bond requirements may be needed.” Id. “However, because

importers are only affected when merchandise is subject to different bond requirements,

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[Customs] will only designate Special Categories, that is, merchandise for which an enhanced

bond amount may be required.” Id. The Notice states, further, that importers of Special

Category merchandise “will be offered the opportunity to submit information on their financial

condition related to the risk of non-collection for that importer and [Customs] will determine

bond amounts based on that information, the importer’s compliance history and other relevant

information available to [Customs].” Id. The Notice indicates, however, that absent exceptional

circumstances, Customs will apply the formulas to determine the bond amounts where a

submission has not been made by a principal in response to a notice from Customs of a new bond

requirement. Id.

The Notice announces a new procedure that will apply when an importer of Special

Category merchandise makes a submission in response to a notice from Customs of a new bond

requirement. The new procedure provides the principal with 30 days to respond and to provide

evidence supporting a lower bond amount, including financial information relevant to the

importer’s ability to pay, such as financial statements and tax returns. Id. at 62,278. The Notice

provides that Customs will consider this information along with the factors identified in the

applicable Customs regulation, 19 C.F.R. § 113.13(b), in determining a new bond requirement.

Id. This new bond requirement “will not take effect with respect to a principal until 14 days after

the date of [Customs’] reply to the principal’s response.” Id. The Notice indicates that Customs

intends to exercise discretion in setting new bond amounts. “If [Customs] determines that the

principal has a record of compliance with customs laws and regulations and that the principal has

demonstrated an ability to pay, [Customs] may decide not to require an increased bond amount

even though the principal imports Special Category merchandise.” Id. The Notice, however,

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also states that “[a]t any time after [Customs] determines a bond amount for a principal below

that provided by the formula, if the principal fails to remain compliant with customs laws and

regulations, [Customs] will recalculate the principal’s bond amount in accordance with the

formulas outlined in this notice.” Id.

After the issuance of the six antidumping duty orders on subject shrimp, plaintiffs were

required to obtain new continuous bonds that secured the amount of liability demanded by

Customs. Some of the 27 plaintiffs were unable to secure continuous bonds in the amounts

requested by Customs, and as a result these plaintiffs ceased their importation of some or all

types of subject shrimp. See Pls.’ Mem. at 7. Other plaintiffs were able to secure continuous

bonds acceptable to Customs to cover their 2005-2006 imports of subject shrimp. The eight

plaintiffs that introduced evidence, in addition to the remaining 19 NFI importers, seek injunctive

relief to, inter alia, restrict Customs from applying the Amendment or the Clarification, or from

considering any potential antidumping duty liability, in determining the sufficiency of future

continuous bonds.

II. Discussion

The court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1581(i). See First

Am. Compl. ¶¶ 2-4 (asserting jurisdiction under 28 U.S.C. § 1581(i)). That provision provides

the Court of International Trade with exclusive jurisdiction over any civil action commenced

against the United States that arises out of any law providing for revenue for imports

(subsection (i)(1)), tariffs or duties on the importation of merchandise for reasons other than the

raising of revenue (subsection (i)(2)), and administration and enforcement with respect to matters

referred to in subsections (i)(1) and (i)(2) (subsection (i)(4)). 28 U.S.C. §§ 1581(i)(1), (2) & (4).

Court No. 05-00683 PUBLIC Page 16

“The burden is always on the movant to show entitlement to a preliminary injunction.”

Reebok Int’l Ltd. v. J. Baker., Inc., 32 F.3d 1552, 1555 (Fed. Cir. 1994). In determining whether

the court should employ the extraordinary remedy of a preliminary injunction, a court of equity

will consider the following four factors: (1) whether the moving party will suffer immediate and

irreparable injury absent relief, (2) whether there exists a likelihood of success on the merits,

(3) whether the balance of hardship on all the parties favors the moving party, and (4) whether

the public interest would be better served by the requested relief. Zenith Radio Corp. v. United

States, 710 F.2d 806, 809 (Fed. Cir. 1983). The court, in its analysis of these factors, may

“weigh the factors together in a sliding scale manner.” See Chilean Nitrate Corp. v. United

States, 11 CIT 538, 539 (1987). No one factor is dispositive. FMC Corp. v. United States,

3 F.3d 424, 427 (Fed. Cir. 1993). “[T]he weakness of the showing regarding one factor may be

overborne by the strength of the others.” Id. Consequently, the court need not assign equal

weight to each factor. See id.; see also Corus Group PLC v. Bush, 26 CIT 937, 942, 217 F.

Supp. 2d 1347, 1354 (2002), aff’d on other grounds, 352 F.3d 1351 (Fed. Cir. 2003).

The court, having considered the evidence put forth by the parties and the arguments

addressing the four factors that the parties made in their briefs and during oral argument,

concludes that only eight of the plaintiffs - specifically, Eastern Fish, Ore-Cal, Red Chamber,

IGF, Tampa Bay, Oriental Foods, Berdex Seafood, and Aqua Star - have established their

entitlement to a preliminary injunction. The showings by these eight plaintiffs as to irreparable

harm and the likelihood of success on the merits, however, justifies a more limited preliminary

injunction than that sought by plaintiffs. Plaintiffs’ motion and draft order for a preliminary

injunction, as amended on April 14, 2006, seek to prohibit Customs from “relying upon or

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otherwise considering” the Amendment, the Clarification, or “any potential antidumping or

countervailing duty liability on any imported product, when determining the sufficiency of the

continuous entry bond for any entry made on or after February 23, 2006,” for the 27 plaintiff-

importers. Mot. to Amend Injunctive Relief Requested, attached Order at 1-2. The motion and

draft order also seek an order directing Customs to “permit any of the foregoing named

companies to replace any bond used to enter merchandise on or after February 23, 2006, with a

bond calculated without regard to potential antidumping or countervailing duties.” Id. at 3. As

discussed in this opinion, the court declines to impose the specific remedy sought by plaintiffs.

The court, however, will order a limited preliminary injunction that preserves generally the status

quo with respect to the bond status of these eight plaintiffs during the pendency of these

proceedings.

A. Immediate and Irreparable Harm

To meet their burden of establishing immediate and irreparable harm, “plaintiff[s] must

prove that unless the injunction is awarded, some harm will result to [them] that cannot be

reasonably redressed in a court of law.” Am. Customs Brokers Co. v. U.S. Customs Service,

10 CIT 385, 386, 637 F. Supp. 218, 220 (1986). “Only a viable threat of serious harm which

cannot be undone authorizes exercise of a court’s equitable power to enjoin before the merits are

fully determined.” Zenith Radio Corp., 710 F.2d at 809 (citation and internal quotation marks

omitted).

To prevail on a motion for preliminary injunction, plaintiffs have the burden of producing

“probative evidence” to demonstrate a threat of immediate, irreparable harm. See Nat’l Hand

Tool Corp. v. United States, 14 CIT 61, 66 (1990). “Failure of [a plaintiff] to bear its burden of

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persuasion on irreparable harm is ground to deny a preliminary injunction.” Bomont Indus. v.

United States, 10 CIT 431, 437, 638 F. Supp. 1334, 1340 (1986). However, there is no bright

line test for determining whether a plaintiff will suffer irreparable harm. Corus Group PLC,

26 CIT at 943, 217 F. Supp. 2d at 1354. A plaintiff can satisfy its burden by showing that it will

be forced into bankruptcy absent an injunction. See Queen’s Flowers de Columbia v. United

States, 20 CIT 1122, 1125, 947 F. Supp. 503, 506 (1996). Less drastic harm, however, also can

satisfy the burden. See, e.g., Nat’l Juice Prods. Ass’n v. United States, 10 CIT 48, 54, 628 F.

Supp. 978, 984 (1986) (finding that severe disruption to a company’s business operations is

sufficient to establish irreparable injury); 718 Fifth Ave. Corp. v. United States, 7 CIT 195, 198

(1984) (stating that “[b]usiness disruption resulting from administrative delay could be sufficient

to demonstrate irreparable harm”); Lois Jeans & Jackets, U.S.A., Inc. v. United States, 5 CIT 238,

242, 566 F. Supp. 1523, 1527 (1983) (finding that “the real prospect for lost future orders, the

lost benefits from its past advertising, substantial expenditures for marketing and promotional

efforts, and the loss of plaintiff’s reputation in the trade and with the consuming public are

significant actual and potential injuries which warrant the extraordinary relief of a preliminary

injunction”).

1. Contentions of the Parties on Immediate and Irreparable Harm

Plaintiffs allege that absent the requested preliminary injunctive relief, they will continue

to suffer immediate, irreparable harm that includes alteration of their buying activities, damage to

their long-standing relationships with their customers and suppliers, and loss of sales and

business opportunities. See Post-Hearing Br. in Supp. of Pls.’ Mot. for Prelim. Inj. at 19-28

(“Pls.’ Post-Hearing Br.”). According to plaintiffs, such harm results from the need to obtain

Court No. 05-00683 PUBLIC Page 19

continuous bonds, pursuant to insufficiency notices issued by Customs to plaintiffs, in the

excessive amounts calculated by Customs using the bond formulas indicated by the Amendment

and the Clarification. See id. at 16-17. The excessive bond amounts, plaintiffs contend, are

causing sureties to require, as a condition of issuing a bond, a letter of credit in the amount of the

bond. Id. at 31-32. Plaintiffs further contend that obtaining these letters of credit hinders

plaintiffs’ ability to finance their businesses efficiently. In this regard, plaintiffs describe a

scenario they refer to as “stacking,” arguing that, absent preliminary injunctive relief, their credit

will remain encumbered until final liquidation of all entries covered by the new continuous

bonds, and that, as time goes on, plaintiffs will remain liable under multiple bonds at the same

time. See id. at 16-17. Plaintiffs contend that the continuous and increasing burdens on their

credit availability will impede severely the operation of their businesses and ultimately will force

them out of the business of importing shrimp. See id. at 17-18. Although plaintiffs presented

testimony from representatives of, and documentary evidence concerning, only eight of the 27

importers who filed jointly the Complaint and Amended Complaint in this action, plaintiffs argue

that the court “should make reasonable inferences as to the irreparable harm that will befall the

entire group of NFI [i]mporters” if the requested relief is not granted. Id. at 35.

Defendant argues that none of the plaintiffs has met its burden of establishing the level of

economic harm necessary to warrant the extraordinary remedy of injunctive relief. See Def.’s

Opp’n 9-12; Def.’s Post-Hearing Br. in Opp’n to NFI’s Mot. for Prelim. Inj. 10-15 (“Def.’s Post

Hearing Br.”). Defendant contends specifically that audited financial records, which were

provided by two plaintiffs, fail to establish adequate irreparable harm as to those two plaintiffs,

and that any findings of fact drawn from those financial statements for purposes of inferring

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irreparable harm cannot be extrapolated to the remaining plaintiffs. Tr. 851-868; see Def.’s Post-

Hearing Br. at 12. Further, defendant claims that plaintiffs’ arguments relating to lost business

opportunities are speculative and indicate only that “the losing bidder was in a weaker financial

position than its competitor.” Def.’s Opp’n at 12. Defendant also maintains that the

administrative record establishes that the overall volume of shrimp imports has declined by only

2.6 percent since importers, including plaintiffs, were required to obtain larger bonds and that,

despite the testimony of plaintiffs, the shrimp importing industry as a whole is not suffering

extraordinary harm. See id. at 10; Def.’s Post-Hearing Br. at 5; Def.’s Opp’n at Decl. of Bruce

W. Ingalls Attach. B. According to defendant, “one plaintiff’s lost business probably ended up in

the hands of a different importer of the same product – like in any low margin, commodity

industry with a large number of competitors.” Def.’s Opp’n at 10. Finally, defendant maintains

that plaintiffs’ “stacking” argument is also mere speculation because “plaintiffs have provided no

evidence that insurers intend to require additional collateral for future years.” Id. at 5; see Def.’s

Post-Hearing Br. at 4-5.

2. Findings of Fact on Immediate and Irreparable Harm

To establish that NFI and its members will suffer immediate, irreparable harm absent

injunctive relief, eight plaintiffs - Eastern Fish, Ore-Cal, Red Chamber, IGF, Tampa Bay,

Oriental Foods, Berdex Seafood, and Aqua Star - submitted testimonial and documentary

evidence. Through such evidence, plaintiffs sought to demonstrate that all 27 plaintiffs will incur

harm if Customs is not preliminarily enjoined from applying the Amendment in determining the

sufficiency of plaintiffs’ continuous bonds. Based on a preponderance of the evidence presented

at trial, the court finds as facts that each of the above-named eight plaintiffs will incur serious,

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immediate and irreparable harm absent some form of preliminary injunctive relief. Specifically,

this harm is the foreseeable result of the cumulative effects of obtaining the additional

collateralized letters of credit necessary to secure future continuous bonds in amounts determined

pursuant to the new bond requirements of the Amendment and the Clarification. At this time, the

court lacks sufficient evidence to make factual findings that would justify preliminary injunctive

relief on the basis of immediate and irreparable harm to the remaining 19 plaintiffs. The

evidence supporting the findings of fact relevant to whether the eight plaintiffs will suffer

immediate and irreparable harm absent injunctive relief is summarized below.

a. Company-Specific Findings of Fact

i. Eastern Fish

Plaintiffs introduced at trial the testimony of Mr. Eric Howard Bloom, President of

Eastern Fish. The court found his testimony credible based on his demeanor, demonstrated

knowledge of Eastern Fish’s business activities, and general knowledge of the business of

importing shrimp. His testimony established, by a preponderance of the evidence, the following

facts:

1. Eastern Fish, established in 1972, is engaged in the business of importing seafood

products, [

]

2. [

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]

3. [

]

4. [

]

5. [

]

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6. [

]

7. [

]

ii. Ore-Cal

Plaintiffs introduced at trial the testimony of Mr. Mark Daniel Shinbane, Vice-President

of Ore-Cal. The court found his testimony credible based on his demeanor, demonstrated

knowledge of Ore-Cal’s business activities, and general knowledge of the business of importing

shrimp. His testimony established, by a preponderance of the evidence, the following facts:

8. Ore-Cal, for the last 45 years, has engaged in the business of importing shrimp into the

United States. Tr. 193. [

]

9. [

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]

10. [

]

11. [

]

12. [

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]

13. [

]

iii. Red Chamber, IGF, and Tampa Bay

Plaintiffs introduced at trial the testimony of Mr. Richard V. Martin, General Manager of

IGF and Executive Consultant to Red Chamber, a company that is affiliated through common

ownership with plaintiffs IGF and Tampa Bay. The court found his testimony credible based on

his demeanor, demonstrated knowledge of Red Chamber’s, IGF’s and Tampa Bay’s business

activities, and general knowledge of the business of importing shrimp. His testimony

established, by a preponderance of the evidence, the following facts:

14. Red Chamber, IGF, and Tampa Bay are affiliated through common ownership. Tr. 267.

[

]

15. [

]

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16. [

]

17. [

]

18. [

]

19. [

]

20. [

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]

21. [

]

iv. Berdex Seafood

Plaintiffs introduced at trial the testimony of Mr. Donelson S. Berger, President of Berdex

Seafood. The court found his testimony credible based on his demeanor, demonstrated

knowledge of Berdex Seafood’s business activities, and general knowledge of the business of

importing shrimp. His testimony established, by a preponderance of the evidence, the following

facts:

22. Berdex Seafood is engaged in the business of importing seafood into the United States

[

]

23. [

]

24. [

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]

25. [

]

26. [

]

v. Oriental Foods

Plaintiffs introduced at trial the testimony of Dr. G.V. Reddy, President of Oriental

Foods. The court found his testimony credible based on his demeanor, demonstrated knowledge

of Oriental Foods’ business activities, and general knowledge of the business of importing

shrimp. His testimony established, by a preponderance of the evidence, the following facts:

Court No. 05-00683 PUBLIC Page 29

27. Since 1979, Oriental Foods has engaged in the business of importing seafood products.

Tr. 486. [

]

28. [

]

29. [

]

30. [

]

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vi. Aqua Star

Plaintiffs introduced at trial the testimony of Mr. Robert Hooey, Senior Executive Vice

President of Aqua Star. The court found his testimony credible based on his demeanor,

demonstrated knowledge of Aqua Star’s business activities, and general knowledge of the

business of importing shrimp. His testimony established, by a preponderance of the evidence,

the following facts:

31. Aqua Star is engaged in the business of importing seafood, [

]

32. [

]

33. [

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]

34. [

]

b. Summary of Findings of Fact

Through testimony, Eastern Fish, Ore-Cal, Red Chamber, IGF, Tampa Bay, Oriental

Foods, Berdex Seafood, and Aqua Star have established that they encountered difficulties in

obtaining new bonds in the increased amounts demanded by Customs. See Findings of Fact

¶¶ 3-5, 7, 9-10, 13, 15-18, 23-25, 28-29, 32. The difficulties resulted from the need to provide

their financial institutions with collateralized letters of credit in amounts that, in most instances,

significantly burden plaintiffs’ asset-based credit lines. See Findings of Fact ¶¶ 1, 4, 8, 10, 14,

17-18, 22, 24, 29, 32, 34; see also Pls.’ Mem. at 15; Pls.’ Post-Hearing Br. at 8-9. Because

plaintiffs “rely heavily on their lines of credit to conduct their business[es],” Eastern Fish, Ore-

Cal, Red Chamber, IGF, Tampa Bay, Oriental Foods, Berdex Seafood, and Aqua Star all reduced

their on-hand inventories and declined to pursue tangible business opportunities. Pls.’ Post-

Hearing Br. at 8. In some instances, plaintiffs dropped product lines or scaled back existing or

planned product lines. See Findings of Fact ¶¶ 5, 13, 16-17, 20-21, 25-26, 30, 33; Pls.’ Post-

Hearing Br. at 4-5. Effects on cash flow resulting from posting collateral to secure irrevocable

letters of credit led some plaintiffs to forgo opportunities to supply, develop, and market new

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products. See Findings of Fact ¶¶ 5, 13, 20-21, 25-26, 30, 33. In several instances, some

plaintiffs lost spot sales and declined to bid on major orders from supermarket chains and major

retail customers because of the restrictions associated with the new bond requirements. See

Findings of Fact ¶¶ 5, 25, 30, 34. In other instances, some plaintiffs were forced to import

shrimp on a delivered duty-paid basis, which reduces profit margins. See Findings of Fact ¶¶ 4,

30, 32-33. For a period spanning 2005 and 2006, one of the plaintiffs was unable to secure a

sufficient bond and temporarily was forced out of the importing business. See Findings of Fact

¶ 32.

The difficulties associated with obtaining sufficient continuous bonds also affect

customer and supplier relationships of the eight plaintiffs. The evidence demonstrates that these

plaintiffs declined opportunities to pursue business with existing companies and suppliers.

Impediments to the ability to import shrimp on a continuous basis and the transition to importing

on a delivered duty-paid basis affect plaintiffs’ long-standing relationships with customers, who

depend upon plaintiffs for supply, and with suppliers, who dedicate a portion of their production

for purchase by plaintiffs. See Findings of Fact ¶¶ 6, 13, 20, 24-25, 30, 33-34. Some plaintiffs,

in order to fulfill certain contracts with customers, must import shrimp from certain countries

that are subject to the antidumping duty orders on shrimp, namely India, Thailand, and Vietnam.

See Findings of Fact ¶¶ 2, 11-12, 20, 26, 33. These plaintiffs considered shrimp products from

certain other countries to be unsuitable substitutes for shrimp from India, Thailand, and Vietnam

because suppliers in those other countries, according to these plaintiffs, do not have the

infrastructure or sanitary standards necessary to become reliable alternative suppliers. See

Findings of Fact ¶¶ 2, 11, 20, 33.

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The liabilities that are secured by plaintiffs’ current bonds will extend until liquidation of

all entries is final. The date on which final liquidation of those entries will occur is not known.

The letters of credit supporting plaintiffs’ current bonds will not be extinguished until after final

liquidation. If Customs continues to apply the new bond formulas in calculating future bond

demands, plaintiffs likely will suffer an additional reduction to their borrowing capacities as a

result of securing new letters of credit. Two of the eight plaintiffs that introduced evidence have

already suffered such an additional reduction in their borrowing capacities in order to secure new

bonds that were issued in the spring of 2006. Such new letters of credit, the liability of which

will not be extinguished until some future date, will further deplete plaintiffs’ credit and cause

plaintiffs significant economic harm. The court finds as a fact that another round of bond

demands likely will cause plaintiffs severe irreparable harm, especially in view of the

requirement on an importer, imposed by 19 C.F.R. § 113.12(b)(1), to notify Customs of any

material changes in importing activities. The court further observes that bond determinations

affecting the eight plaintiffs will occur as bonds expire over the next several months, some as

early as December 2006. See Findings of Fact. Some plaintiffs have testified that such a burden

on available credit may lead to additional drastic changes in business operations, including the

importation of shrimp and other products on a delivered duty-paid basis. Such changes will lead

to additional inefficiencies and, ultimately, reduced profit margins, lost sales, and severed

relationships with customers and suppliers. Others have testified that additional reductions in

borrowing capacity may restrict them from operating their businesses altogether.

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3. Conclusions of Law on Immediate and Irreparable Harm Applicable to the Eight Plaintiffs

Eastern Fish, Ore-Cal, Red Chamber, IGF, Tampa Bay, Oriental Foods, Berdex Seafood,

and Aqua Star have established, through probative testimony of their representatives and other

probative documentary evidence that, absent a preliminary injunction that preserves generally the

status quo, they will suffer the type of extraordinary harm that seriously threatens the continued

operation of their shrimp importing businesses. Their respective showings satisfy the

requirements for preliminary injunctive relief. With respect to all eight of these plaintiffs, the

harm that will occur absent a status quo preliminary injunction includes severe disruption of the

plaintiffs’ business activities, damage to the plaintiffs’ long-standing relationships with their

customers and suppliers, lost sales, diminished profits, and foregoing of business opportunities.

See Am. Customs Brokers Co., 10 CIT at 387, 637 F. Supp. 2d at 221 (finding irreparable injury

where plaintiff provided “evidence of substantial harm to business good will, business reputation

and a significant loss of new business.”). The court concludes that some form of a preliminary

injunction is the only way to protect the plaintiffs from future irreparable injury during the

pendency of this case. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).

The situation of three of the eight plaintiff-importers differs from that of the other five

plaintiff-importers in a significant respect. These three plaintiffs are constrained, in whole or in

part, from importing shrimp subject to the antidumping duty orders pursuant to side agreements

that they entered into with Customs in order to obtain affordable continuous bonds. They are, in

this respect, suffering a different type of harm than that afflicting the other five plaintiff-

importers who introduced evidence of harm. As a direct result of the side agreements, these

three importers are experiencing a substantial interference with or preclusion of their ability to

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conduct their shrimp importing businesses. For these three plaintiffs, a preservation of the status

quo through a preliminary injunction would allow these conditions to remain in place despite the

demonstrated harm that the conditions imposed in the side agreements are causing. Moreover, as

discussed later in this opinion with respect to the showing of likelihood of success on the merits,

these three importers are likely to be able to show that the imposition of the conditions was

contrary to the Customs regulations. For this reason, the preliminary injunctive relief that the

court will order prohibits the enforcement of the side agreements and the associated restraints on

importation of subject merchandise during the pendency of this proceeding.

The harm being suffered by the other five plaintiff-importers that introduced evidence

results from the high limits of liability associated with their basic importer’s bonds. The court

concludes, based on the evidence these five plaintiffs have introduced, that the impending harm

will be a direct result of the cumulative burdens occurring as a result of the application of the

bond formulas set forth in the Amendment, the Current Bond Formulas, and the Clarification to

the next determinations of bond sufficiency. Each of these five plaintiffs will suffer adverse

effects from the encumbering of additional credit when they are required to obtain future

continuous bonds in amounts calculated pursuant to the new bond formulas required under the

Amendment and the Clarification while they remain under the obligations of the continuous

bonds Customs already assessed pursuant to those formulas. Two of these five plaintiff-

importers received from Customs a second round of insufficiency notices in the spring of 2006

and have been required to encumber additional credit in order to obtain the new bonds, a

development the court has considered in reaching its conclusions concerning irreparable harm.

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The court concludes that while a limited preliminary injunction that generally preserves

the status quo is appropriate at this time, the evidence introduced thus far does not establish that

the current level of harm being experienced by these five plaintiffs is so disruptive as to qualify

them for a preliminary injunction that restores a form of status quo ante, i.e., a preliminary

injunction that directs Customs to replace the current bonds with bonds based on the same limits

of liability as those in place prior to the application of the Amendment and the Clarification. The

court recognizes, additionally, that the situations of one or more of these five plaintiffs, or one or

more of the other testifying plaintiffs, may change, and may change rapidly, in a way that could

necessitate a modification of the preliminary injunction. The court, therefore, will consider

motions to modify the preliminary injunction and may order expedited hearings, if necessary.

The court notes the cumulative effects of two successive rounds of bond determinations

based on the rigid application of the formulas, and the upcoming third round of bond

determinations that will occur over the next several months. The burden imposed by an

importer’s outstanding letters of credit, which resulted from the application of the formula with

little or no adjustment during the previous rounds of bond determinations, affects negatively the

financial condition of that importer. The adverse effects will continue and are all but certain to

become exacerbated upon the next round of bond determinations, during which the effect of the

letters of credit, by weakening the plaintiff-importer’s financial condition, may compromise the

ability of that plaintiff-importer to qualify for a lower bond determination. The court, for these

reasons, is ordering defendant to begin, immediately, a review of the five continuous bonds that

have a limit of liability at or above $1.5 million under which these five plaintiffs currently are

importing. The court is ordering Customs to review these five continuous bonds so that Customs

Court No. 05-00683 PUBLIC Page 37

determines expeditiously, on its own, whether those bonds should be canceled in favor of

superseding bonds with lower limits of liability, and so that Customs reports to the court, within

60 days from the date of the Order imposing the preliminary injunction, its conclusions and

explains to the court the reasons for those conclusions.

Defendant argues that plaintiffs have not been able to show sufficient injury to their

current respective financial conditions to warrant a preliminary injunction. Although plaintiffs

have not shown irreparable harm sufficient to qualify for a preliminary injunction restoring a

form of status quo ante, they have shown sufficient irreparable harm to justify relief that

generally preserves the status quo. See Tr. 749-751, 896-898 (discussing plaintiffs’ request for

the status quo). Defendant’s arguments that relate to whether or not the lost business

opportunities, declining profit margins, and decreases in volume of shrimp imports are sufficient

to establish irreparable harm that already has occurred, are therefore not on point. To establish

irreparable harm, plaintiffs “must show a presently existing threat and not just the mere

possibility of injury.” NSK Ltd. v. United States, 28 CIT ___, ___, 350 F. Supp. 2d 1128, 1132

(2004) (emphasis added); see Zenith Radio Corp., 710 F.2d at 809; Elkem Metals Co. v. United

States, 25 CIT 186, 192, 135 F. Supp. 2d 1324, 1331 (2001). Irreparable harm constitutes

potential harm that cannot be redressed by a legal or an equitable remedy at the conclusion of the

proceedings, so that a preliminary injunction is the only way of protecting the plaintiffs. See

Weinberger, 456 U.S. at 312-318.

Defendant urges the court to conclude that plaintiffs’ argument that the “insurers intend to

require additional collateral for future years” is pure speculation. Def.’s Opp’n at 5. Based on

the facts established by the administrative record, i.e., that each surety required an irrevocable

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letter of credit from plaintiffs who obtained new continuous bonds in 2005 and 2006, the court

infers that there is a strong likelihood that sureties similarly will require additional collateral in

the future. The facts established on the de novo record also support the inference that sureties

will require up to 100 percent security for any new or extended continuous bonds, as they have to

date. Specifically, the testimony of witnesses for two plaintiffs relating to the requirements

imposed on plaintiffs seeking new term bonds corroborates the finding that sureties typically

require 100 percent collateral in the situations occasioned by the new bonding requirements. The

record also establishes that lending institutions typically reduce credit limits by amounts equal to,

or nearly equal to, the amount of a letter of credit used to secure a bond. See Findings of Fact

¶¶ 3, 7, 9-10, 18, 24. Moreover, the requirement that plaintiffs must inform Customs of any

material changes in the bond applications, such as whether “the value or nature of the

merchandise to be imported will change in any material respect during the next year,” further

supports the inference that if plaintiffs exceed the import capacities on their existing term bonds,

Customs, absent a preliminary injunction, will require additional bonding pursuant to the

formulas set forth in the Amendment and the Clarification. 19 C.F.R. § 113.12(b)(1)(ii).

Plaintiffs have demonstrated that to secure such additional bonding, plaintiffs’ sureties are

requiring that the bonds be fully collateralized, which in turn requires plaintiffs to further

encumber the credit available from their lending institutions. In view of these demonstrated facts

and the strong likelihood of cumulating harm, the court considers the review of current bond

limits that it is ordering Customs to conduct to be necessary and appropriate.

In its status reports to the court, filed on August 17 and September 1, 2006, defendant

informed the court that “Customs and Border Protection (“CBP”) currently does not plan to alter

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the bond requirements for any of the eight plaintiffs that attempted to demonstrate immediate

irreparable harm” and that “CBP does not currently intend to render insufficient the bonds of the

three of those eight importers whose current bonds are subject to restrictions upon subject

shrimp, should those plaintiffs import subject shrimp.” Def.’s Status Report at 1-2, Aug. 17,

2006; Def.’s Status Report at 1, Sept. 1, 2006. Because of this lack of current intention, among

other reasons, defendant submits that a preliminary injunction is not warranted. Def.’s Status

Report at 1-2, Aug. 17, 2006; Def.’s Status Report at 2, Sept. 1, 2006. The court does not agree

that this representation by defendant is sufficient to preclude the need for a preliminary

injunction at this time. The current intention of Customs, absent a preliminary injunction, can

change at any time and, without notice to plaintiffs or the court, result immediately in additional

burden and disruption to one or more of the eight plaintiffs who presented evidence of irreparable

harm. In addition, the aforementioned expiration of term bonds, some of which bonds will

expire as early as December 2006, makes the future serious harm even more imminent. The

assurance from defendant that Customs does not intend to render insufficient any current bonds

of the eight plaintiffs does not address this imminent harm. The court can prevent that harm

during the pendency of this proceeding only by enjoining Customs from applying the

Amendment, the Current Bond Formulas, and the Clarification to the next determinations of

limits of liability, which will occur upon the expiration of the current term bonds of the eight

plaintiffs.

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4. The Court Will Not Infer that the Remaining 19 Plaintiffs Have Met Their Burden of

Establishing Immediate, Irreparable Harm

The court will not infer that the remaining 19 plaintiffs will suffer the same type of harm

established by Eastern Fish, Ore-Cal, Red Chamber, IGF, Tampa Bay, Oriental Foods, Berdex

Seafood, and Aqua Star. The only facts that the court can infer with respect to the remaining

plaintiffs are listed in the Joint Stipulation of Undisputed Facts filed on March 30, 2006, which

are insufficient to establish that those plaintiffs’ current financial conditions, lending

relationships, or business operations are threatened with irreparable harm. However, the court

will consider another motion by any of these remaining plaintiffs for a preliminary injunction or

for a hearing at which evidence of immediate, irreparable harm could be introduced.

B. Likelihood of Success on the Merits

To prevail on a motion for injunctive relief, plaintiffs carry the burden of establishing a

likelihood of success on the merits. FMC Corp., 3 F.3d at 427; Zenith Radio Corp., 710 F.2d

at 809. Plaintiffs have demonstrated a strong likelihood that they will succeed, in part, on the

merits of this action.

Plaintiffs brought this action under 28 U.S.C. § 1581(i) to challenge the application of the

Amendment and the Clarification in determinations by Customs of the sufficiency of continuous

bonds covering plaintiffs’ liabilities for import transactions, particularly those transactions

involving subject shrimp. See First Am. Compl. ¶ 2. In support of their challenge, plaintiffs

make several arguments. Plaintiffs primarily argue that the interplay of 19 U.S.C. § 1623,

providing for the setting of bond conditions by Customs, and of 19 U.S.C. §§ 1671, 1673,

providing for the assessment of antidumping and countervailing duties by Commerce, precludes

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Customs from considering potential antidumping and countervailing duty liability in determining

the sufficiency of a continuous bond. See id. ¶¶ 24-28. Plaintiffs’ second general argument is

that the application of the Amendment and the Clarification to shrimp importers generally and to

plaintiffs was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law, and was unsupported by substantial evidence. See id. ¶¶ 29-31.

1. Plaintiffs Failed to Show a Likelihood of Success for their Arguments that the Statute

Precludes Customs From Considering Potential Antidumping Duty Liability in Determining the

Sufficiency of a Continuous Bond

Plaintiffs’ primary argument is that Customs is precluded by law from considering

potential antidumping and countervailing duty liability in determining the sufficiency of a

continuous bond. See id. ¶¶ 24-28. Plaintiffs argue, specifically, that 19 U.S.C. § 1623(a) “limits

[Customs’] authority to require importers to post a bond to ‘case[s] in which bond or other

security is not specifically required by law.’” Pls.’ Post-Hearing Br. at 39 (quoting 19 U.S.C.

§ 1623(a)). According to plaintiffs, cash deposits collected in antidumping and countervailing

cases, which are provided for by statute in 19 U.S.C. §§ 1671e(a)(3), 1673e(a)(3), provide “other

security” within the meaning of § 1623(a), thereby precluding Customs from requiring additional

security for that purpose. See Pls.’ Mem. at 41. Plaintiffs cite to the legislative history of

§ 1623(a) in support of their contention that the plain meaning of § 1623(a) confers on Customs

authority to impose a bond or other security only in situations where such measures are not

provided for by law. See id. at 41-42.

Defendant counters that Customs has full statutory authority to consider antidumping or

countervailing duty liability in setting the amount of a continuous bond. See Def.’s Post-Hearing

Br. at 16-19. Rather than limiting the authority of Customs to establish the amount of a term

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bond, according to defendant, § 1623(a) confers authority upon Customs to impose bond

requirements to protect the revenue, including the authority to set a continuous bond amount in

the circumstances at issue in this case. See id. Defendant further argues that other subsections of

§ 1623 “demonstrate that [Customs] possesses discretionary authority to protect the revenue by

requiring the posting of a bond.” Id. at 20. Defendant specifically points to § 1623(b), stating

that “‘[w]henever a bond is required or authorized by a law, regulation, or instruction which . . .

[Customs] is authorized to enforce, the Secretary of the Treasury may – (1) Except as otherwise

specifically provided by law, prescribe the conditions and form of such bond . . . and fix the

amount of penalty thereof.’” Id. (quoting 19 U.S.C. § 1623(b)).

The court concludes that plaintiffs have not met their burden of establishing a likelihood

of success on the issue of whether Customs is precluded by law from considering potential

antidumping or countervailing duty liability in setting the limit of liability for a continuous bond.

Subsection (a) of 19 U.S.C. § 1623 provides that

the Secretary of the Treasury may by regulation or specific instruction require, or

authorize customs officers to require, such bonds or other security as he, or they,

may deem necessary for the protection of the revenue or to assure compliance

with any provision of law, regulation, or instruction which the Secretary of the

Treasury or the Customs Service may be authorized to enforce.

19 U.S.C. § 1623(a). The subsection conditions the authority accorded to the Secretary or to

Customs with the introductory phrase, “[i]n any case in which bond or other security is not

specifically required by law.” Id. Read according to its plain meaning, subsection (a) addresses

the matter of when a bond or other security may be required. Plaintiffs would have the court

construe the introductory phrase as a limitation on the authority of the Secretary and Customs to

set the limit of liability of a term bond. The only language in subsection (a) that specifically

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relates to the limit of liability of a term bond allows for bonds “necessary for the protection of the

revenue.” Subsection (b) of § 1623 applies to various matters pertaining to bonds, regardless of

whether the bond is required by statute, regulation, or instruction. It provides that “[w]henever a

bond is required or authorized by a law, regulation, or instruction which the Secretary of the

Treasury or the Customs Service is authorized to enforce, the Secretary of the Treasury may–

(1) Except as otherwise specifically provided by law . . . fix the amount of penalty thereof,

whether for the payment of liquidated damages or of a penal sum.” Id. § 1623(b)(1). The statute

further allows the Secretary to “[a]uthorize the execution of a term bond the conditions of which

shall extend to and cover similar cases of importations over such period of time, not to exceed

one year, or such longer period as he may fix when in his opinion special circumstances existing

in a particular instance require such longer period.” Id. § 1623(b)(3). When read together, the

two subsections appear to provide Customs considerable discretion in setting the requirements

for term bonds so as to protect the revenue.

In support of their argument, plaintiffs also refer to the legislative history of Section 623

of the 1930 Tariff Act (19 U.S.C. § 1623). Plaintiffs quote a House Report that explains that

[i]n order to provide for more uniformity in these matters [i.e., matters in the tariff

laws pertaining to bonds] and for more elasticity in the requirement for bonds,

there is included in the bill as section 623 a provision authorizing the Secretary of

the Treasury by regulations to require or to authorize collectors to require such

bonds or other security as he or they [may] deem necessary for the protection of

the revenue and to assure compliance with the customs laws and regulations. A

number of specific provisions of Titles III and IV requiring bonds in particular

cases have been eliminated to correspond with this amendment. The new

provision will authorize the requirement of a bond wherever not specifically

required by the law, but will not permit of the waiving of a bond where an express

requirement occurs.

Court No. 05-00683 PUBLIC Page 44

Pls.’ Mem. at 42 (quoting H.R. Rep. No. 71-7, at 186 (1929)) (emphasis added in Pls.’ Mem.).

The legislative history relied upon by plaintiffs does not support an inference that Congress

intended to limit the authority of Customs in the way that plaintiffs advocate. To the contrary, in

enacting Section 623, Congress appears to have endeavored to expand, not limit, the authority of

Customs to provide Customs with sufficient authority to protect the revenue and to ensure

compliance with the customs laws and regulations.

Plaintiffs further cite to 19 U.S.C. § 1673d(c)(1)(B)(ii) to support their argument that

Congress intended to preclude Customs from considering antidumping duty liability in setting

the amount of a continuous bond. Pls.’ Mem. at 44. That statutory provision directs Commerce

to “order the posting of a cash deposit, bond, or other security, as the administering authority

deems appropriate, for each entry of the subject merchandise in an amount based on the

estimated weighted average dumping margin or the estimated all-others rate, whichever is

applicable.” 19 U.S.C. § 1673d(c)(1)(B)(ii) (2000). The provision is directed at Commerce.

The provision is silent on the question of whether Customs, under other Tariff Act provisions,

specifically, under 19 U.S.C. § 1623, may require security in addition to the cash deposit if it

deems such security necessary to protect the revenue. Plaintiffs, as of yet, have not pointed to a

provision of the antidumping laws indicating congressional intent that cash deposits be the

exclusive security available to guarantee antidumping and countervailing duty liabilities. Nor

have plaintiffs put forth a convincing argument that 19 U.S.C. § 1673d(c)(1)(B)(ii) and 19 U.S.C.

§ 1623, when read together, preclude Customs from requiring bonding as security for any

potential amount by which liquidated duties may exceed the cash deposit.

Court No. 05-00683 PUBLIC Page 45

2. Plaintiffs Established a Likelihood of Success for their Arguments Alleging That Customs’

Actions were Arbitrary, Capricious, or an Abuse of Discretion

Although plaintiffs’ showing of likelihood of success on the merits falls short in some

respects, the court concludes that plaintiffs have shown that they are likely to prevail on their

argument that the actions taken by Customs in imposing on plaintiffs increased bond

requirements pursuant to the Amendment and the Clarification are arbitrary, capricious, or an

abuse of discretion and, therefore, must be set aside pursuant to what they contend is the

applicable standard of review, as provided in 5 U.S.C. § 706.2 Plaintiffs contend, inter alia, that

2

Claims brought under 28 U.S.C. § 1581(i) are reviewed pursuant to § 706 of the APA,

which provides for judicial review of agency action alleged to be, inter alia, arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law. Specifically, 5 U.S.C. § 706

provides that

[t]o the extent necessary to decision and when presented, the reviewing court

shall decide all relevant questions of law, interpret constitutional and statutory

provisions, and determine the meaning of applicability of the terms of an agency

action. The reviewing court shall–

(1) compel agency action unlawfully withheld or unreasonable delayed;

and

(2) hold unlawful and set aside agency action, findings, and conclusions

found to be–

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short

of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to [5 U.S.C.

§§ 556 and 557] or otherwise reviewed on the record of an agency hearing

provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to

trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or

those parts of it cited by a party, and due account shall be taken of the rule of

prejudicial error.

Court No. 05-00683 PUBLIC Page 46

the administrative record does not support Customs’ application of the new bond requirements to

shrimp importers. See Pls.’ Post-Hearing Br. at 47-51. In response to questions of the court

during the hearing on the preliminary injunction motion, plaintiffs indicated that the action by

Customs constitutes a legislative rule that was adopted without appropriate notice and comment

procedures. See id. at 45-46. Plaintiffs further argued that application of the new formulas solely

to importers of shrimp “is not a reasonable response to the problem identified by [Customs]” in

the Amendment or the Clarification. Id. at 43. Defendant argues that the actions of Customs in

setting the amounts of continuous bonds are committed to agency discretion by law and therefore

are not subject to the “arbitrary, capricious, or abuse of discretion” standard of review. See

Def.’s Post-Hearing Br. at 23-26.

The court is not persuaded by defendant’s argument regarding the applicability of the

standard of review under the APA. Further, the court finds that plaintiffs have established a

likelihood of demonstrating that Customs’ selective application of the new bond formulas solely

to shrimp importers and the stringent manner in which Customs applied the bond formulas to

each of the eight shrimp importers who made an evidentiary showing of irreparable harm are

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

a. The “Arbitrary, Capricious” Standard of Review Applies in this Case

Defendant argues that the actions of Customs in setting the amounts of continuous bonds

are committed to agency discretion by law and therefore are not subject to the “arbitrary,

capricious, or abuse of discretion” standard of review. Def.’s Post-Hearing Br. at 23-26.

Defendant’s post-hearing brief posits that 5 U.S.C. § 701(a)(2), the APA provision precluding

review of agency action that is committed to agency discretion, applies “‘if the statute is drawn

Court No. 05-00683 PUBLIC Page 47

so that a court would have no meaningful standard against which to judge the agency’s exercise

of discretion.’” Id. at 24 (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). Defendant

submits that 19 U.S.C. § 1623 provides no such meaningful standard. See id. at 23. In further

reliance on Heckler v. Chaney, defendant maintains that judicial review of the Customs bond

decisions “is limited to whether: (1) [Customs] exceeded its statutory authority; (2) there was a

constitutional violation; or (3) [Customs] violated its own regulation.” Id. Defendant asserts that

none of these three factors is present here. Id.

The court rejects defendant’s arguments on the standard of review. Plaintiffs challenge

the application of the Amendment and the Clarification to shrimp importers and specifically to

the individual bond determinations. As part of their showing of a likelihood of success on the

merits, plaintiffs have shown a likelihood of establishing that the bond determinations at issue

properly are subjected to judicial review under an “arbitrary, capricious, or abuse of discretion”

standard. They assert that the court is granted jurisdiction over this action by 28 U.S.C.

§ 1581(i). First Am. Compl. ¶¶ 2-4. In a challenge to agency action brought under 28 U.S.C.

§ 1581(i), the court is directed by statute to “review the matter as provided in section 706 of

title 5.” 28 U.S.C § 2640(e) (2000). In pertinent part, section 706 of title 5 directs a court to

“hold unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2000). Defendant

would have the court decline to apply this standard of review, despite the statutory directive in

28 U.S.C. § 2640(e), based on what defendant considers to be the holding in Heckler v. Chaney.

Defendant’s argument fails because the Supreme Court’s holding in Heckler v. Chaney is

inapplicable to the facts of this case. Heckler v. Chaney presented the question of whether, under

Court No. 05-00683 PUBLIC Page 48

the APA and the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (“FDCA”), the

Food and Drug Administration’s (“FDA”) refusal to exercise its enforcement authority –

specifically, in that case, the FDA’s decision not to exercise authority to prohibit the use by

States of drugs to carry out capital sentences by lethal injection – may be judicially reviewed.

See Heckler, 470 U.S. at 828 (explaining that “th[e] case turns on the important question of the

extent to which determinations by the FDA not to exercise its enforcement authority over the use

of drugs in interstate commerce may be judicially reviewed. That decision in turn involves the

construction of two separate but necessarily interrelated statutes, the APA and the FDCA.”). The

holding, and the reasoning, of Heckler v. Chaney stem from the longstanding recognition by the

Supreme Court that an agency decision not to exercise enforcement authority is generally

unsuitable for judicial review because “an agency decision not to enforce often involves a

complicated balancing of a number of factors which are peculiarly within its expertise,”

including “whether agency resources are best spent on this violation or another, whether the

agency is likely to succeed if it acts, whether the particular enforcement action requested best fits

the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake

the action at all.” Id. at 831. The Supreme Court based its holding in Heckler v. Chaney in part

on 5 U.S.C. § 701(a)(2), which disallows review of agency actions “committed to agency

discretion by law.” See id. at 828-33. But the Supreme Court’s analysis, and its holding in the

case, is confined to the question of whether and how a court should review an agency’s refusal to

exercise its enforcement authority. Plaintiffs’ claims do not challenge any determination by

Customs not to exercise enforcement authority but involve, instead, the manner in which

Court No. 05-00683 PUBLIC Page 49

Customs exercised its discretion to set the limits of liability for plaintiffs’ continuous bonds

under 19 U.S.C. § 1623. Defendant’s argument glosses over this critical distinction.

The Supreme Court cautioned in Heckler v. Chaney, as it had in its earlier decision in

Citizens to Preserve Overton Park v. Volpe, that the exception to agency review created by

5 U.S.C. § 701(a)(2) is “‘a very narrow exception.’” Id. at 830 (quoting Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 410 (1971)). “The legislative history of the Administrative

Procedure Act indicates that [the exception] is applicable in those rare instances where ‘statutes

are drawn in such broad terms that in a given case there is no law to apply.’” Id. (quoting S. Rep.

No. 79-752, at 26 (1945)).

The court is unable to agree with defendant that there is no law to apply in this case.

Under 19 U.S.C. § 1623(b)(3), Customs may authorize a term bond for a period of one year or

longer. Customs has general authority under § 1623(b) to prescribe the conditions and form of a

bond, including a term bond, and to “fix the amount of penalty thereof, whether for the payment

of liquidated damages or of a penal sum.” 19 U.S.C. § 1623(b)(1). Read as a whole, § 1623

clarifies that Customs is to exercise its discretion in setting the amounts and conditions of bonds

to further the general purpose of ensuring compliance with law and regulation. That general

purpose encompasses the more specific purpose of imposing such bond requirements as are

necessary to protect the revenue.

Defendant further asserts that Customs did not violate 19 C.F.R. § 113.13, which

regulation, in defendant’s view, “does not tie the agency’s hands in any way beyond the statute.”

Def.’s Post-Hearing Br. at 29. According to defendant, 19 C.F.R. § 113.13 is a “broadly worded

regulation” that “only provides guidelines to use in setting bond amounts,” and “in no way

Court No. 05-00683 PUBLIC Page 50

constricts [Customs’] authority to identify a risk to the revenue and act accordingly.” Id.

at 29-30. Defendant also argues that the Court of Appeals for the Federal Circuit, in Carolina

Tobacco Co. v. Bureau of Customs and Border Protection, 402 F.3d 1345, 1349-50 (Fed. Cir.

2005), has rejected the notion that an importer is “entitled to an individualized bond

determination based upon each prong of section 113.13(b).” Id.

In its regulations, Customs implemented 19 U.S.C. § 1623 to require port directors to

make individual determinations on bonds, including continuous bonds, and to do so by applying

certain guidelines. See Carolina Tobacco Co., 402 F.3d at 1349 (stating that the guidelines in

§ 113.13(b) “provide suggested standards for government officials to use in performing their

duties.”). Under 19 C.F.R. § 113.13(b), the port director

should at least consider: (1) The prior record of the principal in timely payment of

duties, taxes, and charges with respect to the transaction(s) involving such

payments; (2) The prior record of the principal in complying with Customs

demands for redelivery, the obligation to hold unexamined merchandise intact,

and other requirements relating to enforcement and administration of Customs and

other laws and regulations; (3) The value and nature of the merchandise involved

in the transaction(s) to be secured; (4) The degree and type of supervision that

Customs will exercise over the transaction(s); (5) The prior record of the principal

in honoring bond commitments, including the payment of liquidated damages;

and (6) Any additional information contained in any application for a bond.

19 C.F.R. § 113.13(b). In Carolina Tobacco Co., the Court of Appeals approved of Customs’

“regular practice . . . to set the bond at 10 percent of the importer’s prior year’s activity, and then

use the factors in the regulation to determine whether a higher bond is required for a particular

importer in order to protect the revenue.” 402 F.3d at 1349. The Court of Appeals stated, in

dicta, that “[e]ven if the Section 113.13(b) regulation required some individualized consideration

by Customs of the six factors before setting the amount of the bond, Carolina has not shown that

Court No. 05-00683 PUBLIC Page 51

Customs failed to give such consideration in this case.” Id. at 1350. The Court of Appeals

rejected the notion that a port director must consider each of the six factors in determining the

limit of liability for a continuous bond. “In considering the factors, the port director may give

[the six factors] whatever weight he deems appropriate; he may conclude that particular factors

should be given no weight whatsover.” Id. (citing Sec’y of Agric. v. Cent. Roig Ref. Co., 338

U.S. 604, 613 (1950)).

The court does not construe 19 C.F.R. § 113.13(b) or the holding in Carolina Tobacco

Co. to support the proposition that an importer is not entitled to an individualized bond

determination by the Customs port director that would be upheld under an “arbitrary, capricious,

or an abuse of discretion” standard of review. Under 19 U.S.C. § 1623(b) and Customs’ own

regulations, the Agency is to employ discretion, but that discretion is to be exercised according to

statutory purpose and regulatory criteria. The discretion, therefore, is not unlimited. See

Beardmore v. Dep’t of Agric., 761 F.2d 677, 679 (Fed. Cir. 1985) (stating that “an agency’s

discretion is not unlimited, and ‘reasonableness’ cannot cover for arbitrary or capricious

action.”). Yet, the implication of defendant’s argument is that Customs in its broad discretion

may set a bond amount that is unreasonable or that would not be sustained under an “arbitrary,

capricious, or an abuse of discretion” standard of review. In view of the congressional directive

that the court apply that standard in reviewing the agency actions plaintiffs have challenged, the

court cannot accept defendant’s constrained conception of the judicial review available to

importers in the situation in which plaintiffs have brought this case.

Relying on Article III of the Constitution, defendant also contends that “[b]ecause NFI

has not alleged that the bonding policy constitutes a ‘legislative rule’ subject to APA notice and

Court No. 05-00683 PUBLIC Page 52

comment procedures, there is no case or controversy concerning this issue.” Def.’s Post-Hearing

Br. at 30. Finally, defendant maintains that the Amendment and the Clarification are akin to

“general statements of policy” and, therefore, exempt from the APA notice and comment

procedures pursuant to 5 U.S.C. § 553(b)(A). See id. at 32-34.

Because plaintiffs have shown a likelihood of establishing that the individual bond

determinations will not survive review under an arbitrary and capricious standard, the court need

not reach these issues. The court, however, doubts that the requirements of Article III could

preclude plaintiffs from challenging the new bond requirements on the ground that they

constitute a “legislative rule” that should have been subjected to notice and comment. Defendant

contends that because the issue was not raised by plaintiffs, but rather raised by the court during

oral argument, the issue is not properly before the court. See id. at 30. The court reads nothing

in Article III or in precedent that limits a court’s ability to consider arguments pertaining to the

legality of agency action, in addition to those raised by the parties in their pleadings and their

initial papers, so long as the court exercises proper jurisdiction over the matter challenged.

Plaintiffs challenge the new bond requirements on the basis that they are “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” First Am. Compl.

¶ 31. Whether the Amendment or the Clarification constitute a “legislative rule” that should

have been subjected to notice and comment procedures is an issue that the court, in later ruling

on the merits, could address in deciding whether the Customs action satisfies the “in accordance

with law” element of the arbitrary and capricious standard of review. At that time, the court may

consider evidence introduced by the testifying plaintiffs demonstrating that only those of the

eight importers who promised not to import subject shrimp, or to limit such imports, were able to

Court No. 05-00683 PUBLIC Page 53

negotiate a lower minimum bond amount than the bond formulas required. Findings of Fact

¶¶ 16-17, 24, 32. Such onerous and rigid application of the new bond formulas indicates that

Customs may have applied a quasi-legislative rule, which was not subject to the prescriptions of

the APA, 5 U.S.C. § 553, rather than afford the eight plaintiffs a case-by-case administrative

determination as contemplated by 19 C.F.R. § 113.13. See New Jersey v. Dep’t of Health &

Human Servs., 670 F.2d 1262, 1281 (3d Cir. 1981) (“The APA notice and comment procedures

exist for good reason: to ensure that unelected administrators, who are not directly accountable to

the populace, are forced to justify their quasi-legislative rulemaking before an informed and

skeptical public.”); Citizens to Save Spencer County v. U.S. EPA, 600 F.2d 844, 876 (D.C. Cir.

1979) (noting that quasi-legislative rules are subject to 5 U.S.C. § 553). Because the bond

demands appear not to have been based on such individual case-by-case determinations,

plaintiffs have established that their exists a strong likelihood that Customs’ determinations of

continuous bond requirements for Eastern Fish, Ore-Cal, Red Chamber, IGF, Tampa Bay,

Oriental Foods, Berdex Seafood, and Aqua Star were arbitrary and capricious.

The court need not decide at this time the merits of defendant’s argument characterizing

the Amendment and the Clarification as “general statements of policy” exempt from APA notice

and comment procedures. The court nonetheless observes that the Amendment and the

Clarification possibly can be read to modify the subject matter of 19 C.F.R. § 113.13. The

Amendment and the Clarification establish new bonding requirements that affect the substantive

rights of an entire group consisting of all or nearly all U.S. importers of shrimp.

Court No. 05-00683 PUBLIC Page 54

b. Plaintiffs Established a Likelihood of Success for their Arguments that in the Clarification,

Customs Arbitrarily and Capriciously Designated the Shrimp Antidumping Duty Orders as the

Only “Covered Cases”

The administrative record supports a conclusion that plaintiffs are likely to demonstrate

that Customs arbitrarily and capriciously selected the antidumping duty orders on shrimp as the

only “Covered Cases.” The Amendment stated three reasons why Customs must reevaluate the

way it determines sufficient bond amounts: a heightened concern regarding the under-collection

of antidumping and countervailing duties, the effect of such under-collection on the ability of

Customs to disburse duties to the domestic industry pursuant to the Byrd Amendment, and the

continued vigilance by Customs to collect all appropriate antidumping and countervailing duties

from importers. See Amendment. Customs, however, did not articulate in the Amendment or the

Clarification a reason why antidumping duties on shrimp imports are especially susceptible to

under-collection, as opposed to duties on imports of other agricultural or aquacultural products

subject to antidumping duty orders, or as opposed to all products subject to such orders. See

Pls.’ Mem. at 47. Due to the unliquidated status of entries subject to the antidumping duty orders

on subject shrimp, no record exists demonstrating that significant numbers of shrimp importers

are defaulting or have defaulted on any obligation to pay antidumping duties on their imports of

shrimp. See id. Even were there a record of under-collection of antidumping duties on shrimp

imports, such a record would not serve as an explanation of why Customs has not subjected

importers in the industries Customs cited in the Amendment as having established histories of

under-collection, i.e., importers of crawfish tail meat and garlic from China, to the bonding

Court No. 05-00683 PUBLIC Page 55

formulas in the Amendment and the Clarification.3 When asked at oral argument to explain this

paradox, counsel for defendant responded, even more paradoxically, that the new bond formulas

were not applied to importers in other agricultural or aquacultural industries because of “legal

challenges.” See Tr. 1059-61.

Although Customs infers that there exists a risk that the duty liability on certain shrimp

imports may be subject to “large fluctuations in the dumping margins, and importers who enter

and exit the importing business quickly,” the administrative record does not appear to support

such a finding. Admin. R. Ex. 1 at 2. The record does not identify evidence that the initial cash

deposits of plaintiffs will be insufficient to cover the final rates of liquidation. Nor does the

record identify evidence that importers of shrimp are particularly susceptible to bankruptcy,

likely to go out of business, or operating as “sham” or “alter ego successor companies.”

Admin. R. Ex. 7 & Ex. 8 at 1.4

Other documents in the administrative record appear to lend further support to plaintiffs’

future endeavor to show that the Amendment and the Clarification were imposed arbitrarily or

capriciously on shrimp importers. As one example, the administrative record appears to indicate

that political considerations influenced the decision by Customs to apply the new bond formulas

3

According to Customs, the amounts of uncollected duties for crawfish tail meat from

China for fiscal years 2003, 2004 and 2005 were $85,397,347.58, $170,053,407.56 and

$32,370,446.32, respectively. The amount of uncollected duties for garlic from China for fiscal

year 2004 was stated to be $24,581,557.26. See Pls.’ Mem. at 48 & Ex. 12.

4

The administrative record establishes that 25 current shrimp importers were

participating in the Customs-Trade Partnership Against Terrorism (“C-TPAT”), which evidences

a cooperative relationship between those importers and Customs in the war against terror.

Admin. R. Ex. 6 at 3. Although participation in C-TPAT does not lend support to any finding

relating to these importers’ financial stability, such participation is relevant to a finding that these

importers are not “fly-by-night” operations.

Court No. 05-00683 PUBLIC Page 56

only to the shrimp importing industry. The document entitled “Periodic Risk Assessment of

Material Risks in the Revenue Process” explains that “the uncollected antidumping duties are

under the watchful eye and close scrutiny of the domestic industry. With a large amount of funds

unavailable for disbursement [under the Byrd Amendment] because of unpaid duty bills, the

issue also garners Congressional and media interest.” Admin. R. Ex. 1 at 2. All of the

“uncollected duties” to which Customs refers in the administrative record, however, pertain to

imports of agricultural and aquacultural products other than shrimp.

The record shows that Customs explained why it singled out the entries subject to the

antidumping duty order on shrimp during an internal power point presentation on May 27, 2004:

We are proposing a proactive and prospective approach for the purpose of

reducing the potential revenue write-off exposure [( i.e., uncollected duties),] that

we have experienced in other cases recently. We have chosen shrimp as a first

shot at this because we feel we have built a strong risk based case that provides a

strong, defensible position for why we are taking these actions. We can can [sic]

be sure that we will hear complaints about these actions from importers but in this

case, for once, we can also count on support for our actions from the very parties

that have been complaining recently, congress and domestic industry.

Admin. R. Ex. 8 at 8. Customs noted that the Ad Hoc Shrimp Action Committee, which is the

petitioner in the shrimp antidumping investigations and represents the interests of the domestic

industry, is comprised of shrimp producers located mainly in Alabama, Florida, Louisiana,

Mississippi, North Carolina, South Carolina and Texas. See id.

In a memorandum by the Deputy Commissioner of Customs entitled “Proposed Bonding

Guidelines for Agriculture/Aquaculture Antidumping and Countervailing Duty Cases,” Customs

stated that

[p]olitical and domestic interest and scrutiny of [Customs] actions in

[antidumping and countervailing duty] collections is intense as a result of the

Court No. 05-00683 PUBLIC Page 57

Byrd Amendment which makes [antidumping and countervailing] duty collections

available to domestic petitioners. The domestic petitioners in this case are from

south and southeastern states that have congressional representation on

committees that include the Subcommittee on Homeland Security, International

Trade, House Ways & Means, Appropriations, Small Business Affairs, and the

Senate Finance Committee. Concern has been raised about [Customs] efforts in

the area of collecting [antidumping and countervailing] dut[ies], particularly from

Southeast Asia, and this proposal would provide an example of our proactive

efforts to address these concerns.

The impact on importers may also generate inquiries and interest from their

congressional representatives. The importers are not as geographically

concentrated as the domestic industry but are represented on all of the same

committees. In fact, three states that account for over 50 percent of the imports of

shrimp are also the home to domestic petitioners for the case.

Admin. R. Ex. 14 at 3-4. These statements appear to be relevant to a finding that Customs, rather

than basing its determination to apply the new bond formulas only to importers of shrimp on

facts in the administrative record demonstrating risk to the revenue particular to shrimp imports,

was motivated, at least in part, by domestic political pressures to take action directed against the

shrimp importing industry. Even if such considerations were not dispositive in the decision by

Customs to confine the action to shrimp importers, plaintiffs may well be able to establish on the

merits that the political considerations help support a conclusion of arbitrariness and

capriciousness and that “the appearance and integrity of the [agency] decision-making process

would have benefited from a more formal procedure.” Sequoia Orange Co. v. Yeutter, 973 F.2d

752, 758 (9th Cir. 1992), reh’g denied and amended by, 985 F.2d 1419 (9th Cir. 1993) (finding

invalid an order of the Secretary of Agriculture for failure to comply with the APA).

Court No. 05-00683 PUBLIC Page 58

c. Plaintiffs Established a Likelihood of Success for their Argument that the Application of the

Amendment and the Clarification to Eight Individual Plaintiffs Was Arbitrary and Capricious

Based on a review of the administrative record, the court concludes that plaintiffs are

likely to succeed in showing that Customs applied the Amendment and the Clarification to

Eastern Fish, Ore-Cal, Red Chamber, IGF, Tampa Bay, Oriental Foods, Berdex Seafood, and

Aqua Star in an arbitrary and capricious manner. Despite the flexibility granted to port directors

by 19 C.F.R. § 113.13 in determining the minimum amount of a bond, the evidence put forth by

these plaintiffs demonstrates that Customs, in applying the new bond requirements, did not allow

for any meaningful deviation from the formulas set forth in the Amendment and maintained in

the Clarification. Rather, Customs strictly applied the formulas, apparently despite the criteria in

19 C.F.R. § 113.13. The administrative record indicates that plaintiffs are likely to succeed in

showing that the bond formulas were applied to these plaintiffs for the sole reason that these

plaintiffs were importers of shrimp subject to antidumping duty orders.

The obligation to pay antidumping duties that would be secured by a continuous bond is

limited to the amount by which the liquidated antidumping duties may exceed the cash deposits.

The formulas, however, do not appear to include a factor to adjust for the required cash deposits

unless it is assumed that the cash deposits represent only about half of the eventual antidumping

duty liability. In response to plaintiffs’ arguments, defendant has not advanced a convincing

reason why the formulas do not directly take into consideration the cash deposits, which in the

ordinary instance would be made by the importer of record and would reduce the amount of

unsecured potential antidumping duty liability.5

5

In the closing sentence of the Notice, Customs appears to acknowledge that the

continuous bond ordinarily would serve as security only for amounts by which the cash deposit is

Court No. 05-00683 PUBLIC Page 59

Each notice of bond insufficiency issued to the eight plaintiffs by Customs cites, as

authority, Part 113 of the Customs regulations. See, e.g., Pls.’ Mem. Ex. 5 Attach. B, Ex. 6

Attach. B, Ex. 7 Attach. A, Ex. 8 Attach. B, Ex. 9 Attach. C, Ex. 10 Attach. B; Joint Stipulation

of Undisputed Facts ¶¶ 8-31. As discussed above, § 113.13(b) of the Customs regulations sets

forth guidelines for determining the amount of a bond. “In determining whether the amount of a

bond is sufficient, the port director . . . should at least consider” factors including an importer’s

prior record of paying outstanding duty liabilities, an importer’s prior record of complying with

Customs’ demands for redelivery, the degree of supervision that Customs will exercise over the

subject transactions, and an importer’s prior record of honoring bond commitments. 19 C.F.R.

§ 113.13(b). As also discussed above, the Court of Appeals for the Federal Circuit in Carolina

Tobacco Co. stated that a port director, in reviewing the factors listed in § 113.13(b), may accord

those factors “whatever weight he deems appropriate” but did not state that Customs may deny

an importer an individualized bond determination or imply that Customs need not act reasonably.

402 F.3d at 1350. In determining the minimum bond amounts for Eastern Fish, Ore-Cal, Red

Chamber, IGF, Tampa Bay, Oriental Foods, Berdex Seafood, and Aqua Star, the evidence

supports a finding that Customs applied the formula AD/CVD Order (3) – i.e., the Commerce

Order rate multiplied by the value of imports of merchandise subject to the case by the importer

during the previous year – without regard to each importer’s individual compliance record. See

Pls.’ Mem. Ex. 5 Attach. B, Ex. 6 Attach. B, Ex. 7 Attach. A, Ex. 8 Attach. B, Ex. 9 Attach. C,

exceeded. See Notice, 71 Fed. Reg. at 62,278 (“Congress has provided CBP authority to require

security in order to ensure the payment of all duties determined to be due to the United States,

including any revenue collection gaps between estimated duty deposits and final assessed duties

that the importer fails to satisfy.”). The Notice, nevertheless, maintains the basic formulas

announced in the Amendment and the Clarification.

Court No. 05-00683 PUBLIC Page 60

Ex. 10 Attach. B; Joint Stipulation of Undisputed Facts ¶¶ 8-31; Findings of Fact ¶¶ 1, 4, 9, 15,

19, 23, 28, 31-32. Moreover, it appears that Customs did not consider each individual importer’s

financial condition or ability to pay prospective antidumping duty liabilities, but rather appeared

to base the application of the formulas on one critical factor – that the importer engages in the

importation of subject shrimp. Findings of Fact ¶¶ 1, 4, 9, 15, 19, 23, 28, 32.

Three plaintiff-importers have established a likelihood of success of prevailing in a

challenge to their respective bond determinations in yet another respect. As noted above, each of

these importers has been required by Customs to accept a limitation on the importation of subject

shrimp, in whole or in part, as a condition of obtaining a bond allowing them to continue to

import merchandise. With respect to each of the three importers, the limitation is not set forth as

a bond condition but is established only in a series of e-mail communications between the

plaintiff-importer and the Customs port director. See Pls.’ Mem. Ex. 7 Attachs. B, C, & E

(e-mails from Customs to each of two plaintiffs, including e-mails from Casey Horn of Customs

to these importers stating that bonds will be rendered insufficient “immediately” if the importer

attempts to import certain aquacultural products covered by antidumping or countervailing duty

orders), Ex. 9 Attach. C (e-mails between an importer and Customs, including an e-mail from

Casey Horn of Customs to the importer stating that bonds will be rendered insufficient

“immediately” if the importer attempts to import certain aquacultural products covered by

antidumping or countervailing duty orders). Those communications reveal a likelihood that each

of the three importers were, or are likely to be, denied the benefit of the notice procedure required

by 19 C.F.R. § 113.13(c), under which an importer must be provided 30 days to obtain a new

continuous bond following notice by the port director that the port director has determined a

Court No. 05-00683 PUBLIC Page 61

continuous bond to be inadequate “to protect the revenue and insure compliance with the law and

regulations.” 19 C.F.R. § 113.13(c). Moreover, the conditions were, according to the record

evidence, imposed under a degree of duress and without citation to any statutory or regulatory

authority.6

C. Balance of the Hardships

In evaluating whether to grant a motion for injunctive relief, the court must “determine

which party will suffer the greatest adverse effects as a result of the grant or denial of the

preliminary injunction.” Ugine-Savoie Imphy v. United States, 24 CIT 1246, 1250, 121 F. Supp.

2d 684, 688 (2000). Plaintiffs and defendant each contend that the balance of hardships militates

in its respective favor.

Plaintiffs allege that “[i]f no injunctive relief is granted, and if [Customs] continues to

require bonds to cover potential antidumping duty liability on frozen shrimp, and if sureties

continue their collateral demands to issue these bonds, NFI [i]mporters will suffer grievous

6

The court raised this issue during the July 19, 2006 conference. In response, Customs

represented that “the Government will provide notice to the relevant party pursuant to 19 C.F.R.

§ 113.13(c), should [Customs] find it necessary to render insufficient any bond issued to any of

the eight plaintiffs that attempted to demonstrate immediate irreparable harm.” Def.’s Status

Report at 2, Aug. 17, 2006. While committing Customs to providing notice, defendant

simultaneously asserts that “pursuant to 19 C.F.R. § 113.13(d), no notice to the principal is

required for additional security if the agency believes there [sic] the revenue is in jeopardy.” Id.

at 3. Subsection (d) of § 113.13, however, does not allow Customs to dispense with the 30-day

notice when rendering a continuous bond insufficient. The regulations state that

“[n]otwithstanding the provisions of this section or any other provision of this chapter, if a port

director or drawback office believes that acceptance of a transaction secured by a continuous

bond would place the revenue in jeopardy or otherwise hamper the enforcement of Customs laws

or regulations, he shall require additional security.” 19 C.F.R. § 113.13(d) (emphasis added).

Section 113.13(d) grants to port directors the discretion to review an individual transaction to

determine whether that transaction poses a risk to the revenue, i.e., a port director must make the

determination on an entry-by-entry basis. Nothing in 19 C.F.R. § 113.13(d) authorizes Customs

to eliminate the 30-day notice requirement of § 113.13(c).

Court No. 05-00683 PUBLIC Page 62

irreparable harm. By contrast, if the injunction is granted, [Customs] will suffer none.” Pls.’

Mem. at 50-51. According to plaintiffs, Customs will not suffer harm because plaintiffs are

required to post cash deposits when entering subject shrimp into the United States for

consumption. Pls.’ Mem. at 51; see Pls.’ Post-Hearing Br. at 54-56. These cash deposits

provide Customs with the type of security “that Congress intended for imports under

antidumping and countervailing duty orders.” Pls.’ Mem. at 51. Plaintiffs argue that they are

entitled to preliminary equitable relief to “place NFI [i]mporters in exactly the same position as

every other importer of every other product subject to antidumping and countervailing duty

orders – no better, no worse.” Pls.’ Post-Hearing Br. at 54.

Defendant argues that the balance of hardship favors the protection of the revenue of the

United States. According to Customs, “the cash deposit requirement does not, and was never

intended to, provide protection for all antidumping and countervailing duties.” Def.’s Opp’n

at 24.

The balance of hardships favors the grant of a limited preliminary injunction. If the

Amendment and the Clarification remain in effect and continue to be applied by Customs during

the pendency of this litigation in the manner in which Customs has applied them thus far, the

eight plaintiffs are likely again to be confronted with the obligation to obtain term bonds of

substantial size while their obligations under past term bonds continue. Two plaintiffs already

have secured additional bonds to secure their 2006-2007 importations and, not surprisingly, both

of these plaintiff-importers were required by their sureties to obtain letters of credit from

financial institutions collateralizing the full amount of the bonds. There is little doubt that

sureties will require that the eight plaintiffs obtain additional letters of credit from their lenders to

Court No. 05-00683 PUBLIC Page 63

post as security for any future term bonds. Defendant does not assert, and cannot credibly assert,

that the obligations under the bonds will not continue until all entries thereunder are liquidated –

an event which is not imminent. Defendant raises only the unconvincing argument that

plaintiffs’ assertion that sureties will continue to require collateralization for new bonds is

“speculative.” The current level of financial pressures on the eight plaintiffs, as established by

the evidence submitted and those plaintiffs’ testimony before the court, can only increase absent

a preliminary injunction directed to preserving generally the status quo during the pendency of

this litigation.

Defendant raises an additional argument concerning alleged transhipment of shrimp,

pointing to a “possibility” that certain entries will be assessed antidumping duties at the

countrywide rate for China of 112.8 percent.7 See Def.’s Post-Hearing Br. at 37. As to the

alleged transhipment, Bruce W. Ingalls, Chief of the Debt Management Branch in the Revenue

Division of the Office of Finance, testified during the hearing on April 5, 2006, declaring that

[a]fter initiation of the antidumping cases, [Customs] noted substantial shifts in

import patterns that suggest transhipment of shrimp to circumvent the high tariffs

on shrimp. [Customs] and U.S. Immigration and Customs Enforcement

representative [sic] (ICE) from the Singapore Attaché office visited shrimp

producers in Indonesia (a country not subjected to antidumping) that appeared to

be of high-risk for transhipment.

[Customs] confirmed that three producers commingled Chinese shrimp and

exported the merchandise claimed as Indonesian to circumvent the payment of

antidumping duties. Fifty-four importers were sourcing shrimp from the three

Indonesian producers during the time when Chinese shrimp was commingled.

7

The countrywide rate for China is the rate assessed to those Chinese exporters who were

unable to establish freedom from government control. It is also, ultimately, the highest rate

assessed during the investigation.

Court No. 05-00683 PUBLIC Page 64

NFI importers represent approximately 50% of the imported volume. . . .

[Customs] has issued CF 29 (Notice of Action) [to notify each importer that

Customs is investigating subject imports pursuant to 19 U.S.C. § 1592 and] to

demand that antidumping deposits be made for these imports. . . .

Def.’s Opp’n at Decl. of Bruce W. Ingalls ¶¶ 18-20. Defendant maintains that the new bonds “are

thus the only security that the Government possesses with respect to these entries.” Id. at 24

(citing Decl. of Bruce W. Ingalls ¶ 21). According to defendant, this prospective harm outweighs

plaintiffs’ “hardship,” which defendant characterizes as “bear[ing] the risk of their own

nonpayment of duties.” Id. at 25. Defendant also argues that because plaintiffs failed to inform

the court of the proceedings initiated by Customs with respect to such alleged transhipments,

plaintiffs’ “claims should be barred by the doctrine of unclean hands.” Id. at 27.

The court finds defendant’s arguments concerning the alleged transhipment, including the

“unclean hands” argument, unconvincing. The court cannot draw conclusions relevant to a

preliminary injunction from the investigation under 19 U.S.C. § 1592 to which defendant alludes.

Any such investigation has yet to be completed. The facts that eventually may emerge from such

an investigation have not yet been found. In any event, the relevant facts are not before the court.

Defendant has not introduced evidence in this proceeding that would enable the court to make

findings concerning the alleged transhipment and any eventual antidumping duty liability that

could be associated with such findings. Any inference drawn with respect to an investigation

under 19 U.S.C. § 1592, therefore, would be unsupported by evidence and premature.

Defendant’s “unclean hands” argument is unavailing for this same reason. Moreover, defendant

did not introduce evidence at the court’s hearing from which the court could conclude that any of

the eight plaintiffs engaged in wrongdoing.

Court No. 05-00683 PUBLIC Page 65

Customs has failed to establish to any degree of certainty that the future entries of Eastern

Fish, Ore-Cal, Red Chamber, IGF, Tampa Bay, Oriental Foods, Berdex Seafood, and Aqua Star

will be assessed upon liquidation any antidumping duties above the cash deposits, or that these

plaintiffs are prone to default on future obligations to pay such duties. The United States,

through the testimony of Mr. Ingalls and the submission of attachments A through E regarding

the possibility of substantially higher final antidumping duty liability, sought to demonstrate the

potential loss of revenue if the injunctive relief is granted. See Def.’s Opp’n at Decl. of Bruce W.

Ingalls ¶¶ 10-15 & Attachs. A-E. Mr. Ingalls, however, conceded that the scenarios presented in

attachment A are hypothetical.8 Tr. 652. Moreover, the court does not view as probative

Mr. Ingalls’s general assertion that the final antidumping duty rates on shrimp are likely to be

higher rather than lower because this conclusory statement was not supported by any record

evidence. Tr. 653-655, 678-680. Therefore, the arguments raised by Customs regarding

potential antidumping duty liabilities and “possible” transhipments of Indonesian and Chinese

shrimp are, necessarily, speculative.

Attachment A indicates that the bonds issued to importers of shrimp prior to the six

subject antidumping duty orders would cover the liabilities arising from a 28 percent increase in

the final antidumping duty rate over the cash deposit rate. See Def.’s Opp’n at Decl. of Bruce W.

8

Attachment A presents five scenarios by which defendant quantifies the amount of

antidumping duties that Customs would be required to collect if it were instructed to liquidate

subject entries at a rate 10, 25, 50, 75, or 100 percent higher than the rate at which the cash

deposits were collected. See Def.’s Opp’n at Decl. of Bruce W. Ingalls Attach. A. For example,

if $1 million worth of entries were subject to a 10 percent duty rate, the cash deposits would be

$100,000. Assuming that those entries were liquidated at a rate that is 50 percent higher than the

10 percent duty rate, Customs, in this example, would be required to collect an additional

$50,000 from subject importers. See id.; Tr. 626-627.

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Ingalls ¶ 15 & Attach. A. The bonds required by Customs after the implementation of the new

bond formulas ensured that Customs would recover the liabilities arising from an 85 percent

increase in the final antidumping duty rate. See id. ¶ 14 & Attach. A. During his testimony,

Mr. Ingalls was asked to identify a situation where every importer, at the end of an administrative

review, defaulted on its obligations to pay antidumping duties. Mr. Ingalls could not identify

such a situation and testified that he “would find it hard to believe that there is any industry or

any sector where you could say for certain that 100 percent don’t pay their bills.” Tr. 693.

Attachment C also establishes that only five of the eight plaintiffs were consignees of

imports from Indonesian shrimp producers that allegedly engaged in the transhipment of Chinese

shrimp. See Def.’s Opp’n at Decl. of Bruce W. Ingalls Attach. C. Although the possibility of

circumvention was a critical factor in defendant’s balance of the hardship argument – i.e., “the

specter of harm faced by the Government is very real and acute” – defendant did not distinguish

between the three plaintiffs that did not purchase shrimp from subject Indonesian producers and

the five that did. Def.’s Opp’n at 24. A review of Attachment C also reveals that the values of

imports for three of the five plaintiffs that purchased shrimp from subject Indonesian producers

were grossly disproportionate to the levels of security demanded by Customs in the original

notices of insufficiency and in subsequent demands.9 Even assuming that all subject entries of

9

[

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Indonesian shrimp are assessed the China-wide rate, the bond requirements of Customs far

exceed the security necessary to cover a 112.8 percent final liquidation rate. Customs has already

collected nearly 100 percent security from Eastern Fish, Ore-Cal, Red Chamber, IGF, Tampa

Bay, Oriental Foods, Berdex Seafood, and Aqua Star for subject entries made in 2005 through

2006. An agency’s action must be reasonable in light of the harm it seeks to redress. See

5 U.S.C. § 706(2)(A) (setting forth the “arbitrary, capricious” standard of review that the court is

to apply when reviewing certain agency actions); cf. Pope v. U.S. Postal Serv., 114 F.3d. 1144,

1148 (Fed. Cir. 1997) (stating that an “agency’s action should be sustained as long as the penalty

imposed is reasonable”). These facts lend strong support to a finding that Customs did not

evaluate each importer’s risk on a case-by-case basis in assessing the amount of additional

security needed to cover the “alleged,” yet undetermined, risk posed by the possibility of

transhipments or increased final dumping margins. Plaintiffs have shown, therefore, that the

bond sufficiency determinations likely were not reasonable in light of the situation Customs

sought to redress. When balancing the hardships of the parties, the court finds that plaintiffs will

suffer greater adverse effects than defendant during the pendency of this litigation if Customs is

not enjoined from making additional bond demands according to the Current Bond Formulas,

which will necessitate the further serious depletion of plaintiffs’ credit. Moreover, because the

court will fashion the injunctive relief in a manner that will allow defendant to move for a

modification of the injunction to “establish a change in circumstances that would make the

]

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original preliminary injunction inequitable,” any prospective harm to defendant that later

materializes may be remedied. Favia v. Ind. Univ. of Pa., 7 F.3d 332, 340 (3d Cir. 1993); see

Aimcor, Ala. Silicon, Inc. v. United States, 23 CIT 932, 938, 83 F. Supp. 2d 1293, 1299 (1999)

(stating that “courts have inherent power and the discretion to modify injunctions for changed

circumstances” (citing Sys. Fed’n No. 91 v. Wright, 364 U.S. 642, 647 (1961))).

D. Public Interest

Even when plaintiffs have “overcome the burden of showing the probability of irreparable

harm and the likelihood of success on the merits, or alternatively, that the parties have presented

serious questions of law and that the balance of the hardships tips in favor of the plaintiff[s], the

court must still protect the public interest.” Associated Dry Goods Corp. v. United States, 1 CIT

306, 310-11, 515 F. Supp. 775, 779 (1981). For several reasons, the public interest would be best

served by the issuance of a preliminary injunction that preserves generally the status quo with

respect to the bond status of each of the eight plaintiffs that made adequate factual showings of

irreparable harm and precludes enforcement of the “agreements” not to import certain subject

shrimp.

The public interest is not served by administration of a bond policy that plaintiffs likely

will demonstrate to be arbitrary and capricious and, specifically, to be discriminatory with respect

to the shrimp importing industry. Nor is the public interest served by the continued application

of a regulatory action that plaintiffs are likely to demonstrate is unreasonable and more onerous

than necessary to achieve the statutory purposes of 19 U.S.C. § 1623 and the regulatory

objectives of 19 C.F.R. § 113. The court recognizes, however, that the public interest is served

by ensuring that any equitable remedy adopted for the pendency of the proceedings allows

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Customs to protect the revenue. Therefore, any injunctive relief must be fashioned in a manner

that would allow for modifications under the appropriate circumstances.

E. Scope and Nature of Preliminary Injunctive Relief

Based on plaintiffs’ showings of irreparable harm and likelihood of success on the merits,

the court concludes that plaintiffs’ amended motion for a preliminary injunction seeks relief that

is overly broad. As discussed previously, only eight of the 27 plaintiffs have established that,

absent a preliminary injunction, they will suffer irreparable harm. Accordingly, the court is

ordering preliminary injunctive relief that, at this time, is confined to the bond status of the eight

plaintiffs that made a showing of irreparable harm at the court’s hearing.

With respect to the eight plaintiffs, the court’s preliminary injunction order is narrower in

scope than that sought by plaintiffs. Plaintiffs seek an order requiring Customs to allow any

plaintiff to replace any continuous basic importer’s bond that was used to enter merchandise on

or after February 23, 2006. Under plaintiffs’ draft order, Customs would be required to allow a

plaintiff to replace such a bond “with a bond calculated without regard to antidumping or

countervailing duties.” Mot. to Amend Injunctive Relief Requested, attached Order at 3. Were

the court to include such a provision in its preliminary injunction order, that order would restore,

for most plaintiffs, the status quo ante rather than maintain the status quo. Such an order would

be broader than the showing of irreparable harm that any plaintiff has made. Although the eight

plaintiffs have shown that further application of the formulas in the Amendment, the Current

Bond Formulas, and the Clarification will cause them irreparable harm, they have not shown that

the demonstrated irreparable harm is preventable only through a new bond with a limit of liability

that is calculated entirely without regard to antidumping duties. Seeking such broad relief

Court No. 05-00683 PUBLIC Page 70

without a demonstrated factual basis presumes that no other limit of liability would suffice to

preclude additional irreparable harm during the pendency of this case.

Plaintiffs’ proposed order also exceeds plaintiffs’ showing of likelihood of success on the

merits. As discussed previously in this opinion, plaintiffs have shown a likelihood of success of

demonstrating that the individual bond determinations for the eight plaintiffs were made in a way

that was arbitrary and capricious. Plaintiffs attempted to, but did not, establish a likelihood of

success for their argument that Customs is precluded by 19 U.S.C. § 1623 from any consideration

of antidumping duties when setting limits of liability for term bonds. This is not to suggest that

the court rejects plaintiffs’ argument, only that the showing they have made to date falls short of

a showing of likelihood of success on the merits with respect to that particular issue. Moreover,

an appropriate preliminary injunction considers the balance of hardships and the public interest.

The court considers these two factors to be best satisfied by preliminary injunctive relief that is

sufficient to avoid the demonstrated irreparable harm during the pendency of the proceeding but

that balances the scope of the relief with the government’s interest in setting bond limits of

liability that are adequate to protect the revenue.

As noted previously, counsel for plaintiffs, in the status report of August 21, 2006, sought

a modification to the draft preliminary injunction that the court discussed with the parties at the

conference of July 19, 2006. That modification would direct Customs to permit the parties to

obtain a change in the limit of liability in any continuous bond obtained on or after February 23,

2006, to a limit of liability that is not determined according to the Amendment or the

Clarification, using the procedures of 19 C.F.R. § 113.23(a)(1) and (d), under which Customs

may approve a superseding bond. Counsel for plaintiffs informed the court in the August 21,

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2006 status report that this superseding bond procedure would be intended for only two of the

eight plaintiffs who introduced evidence. The evidence introduced by those two plaintiffs thus

far, however, does not establish that the limits of liability in the current bonds, even when

considered with the continuing liability under previous bonds, are causing the extraordinary level

of harm that would require the court to order Customs to approve superseding bonds at this time.

However, the preliminary injunction that the court is ordering will permit Eastern Fish and Ore-

Cal, and any other plaintiff, to seek a modification of the preliminary injunction based on a

demonstration of changed circumstances.

The preliminary injunction that the court will order is necessary to prevent the imminent

harm that will result when the current one-year term bonds expire and must be replaced with new

term bonds. As noted previously, that process will begin in December 2006 and continue over

the next several months. Application of the Current Bond Formulas will add to the cumulative

burden on the credit availability of the eight testifying plaintiffs. The letters of credit resulting

from the first two rounds of bond sufficiency determinations already burden plaintiff-importers’

credit availability, adversely affect their ability to pay, and therefore impede their ability to

qualify for what otherwise would be lower bond limits. Some of the bonds issued during the

second round of bond determinations contained limits of liability of $1.5 million or higher, and

certain of those bonds were for amounts substantially higher than $1.5 million.

As discussed previously, counsel for defendant indicated in a status conference that the

bond sufficiency reviews contemplated under the Notice are prospective only, and that Customs

did not intend to review bonds currently in use by the eight plaintiffs to determine whether it is

appropriate to cancel and replace the current bonds with superseding bonds with lower limits of

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liability. Customs stated in the Notice that “[i]f [Customs] determines that the principal has a

record of compliance with customs laws and regulations and that the principal has demonstrated

an ability to pay, [Customs] may decide not to require an increased bond amount even though the

principal imports Special Category merchandise.” Notice, 71 Fed. Reg. at 62,278. The court

notes that the revised position by Customs as announced in the Notice is likely to prejudice some

shrimp importers, including certain of the testifying plaintiffs, relative to other shrimp importers.

The high limits of liability on bonds currently in place, which resulted from the application of the

Current Bond Formulas with little or no discretionary relief from such application, required

plaintiffs to incur substantial liability under letters of credit to secure those bonds and thereby

adversely affect the plaintiffs’ future ability to pay by burdening plaintiffs’ credit lines.

Consequently, by refusing to reconsider the damaging effects of its previous bond

determinations, Customs is perpetuating the harm caused to the affected importers, which harm

is likely to become more acute as a result of the impending next round of bond determinations.

The court considers the threat of future harm sufficiently serious as to require the court to address

it in the preliminary injunction.

The court will order Customs to begin immediately a review of each of the bonds

containing limits of liability of $1.5 million or more that currently are in use by any of the eight

plaintiffs that testified before the court. Five current bonds fall into this category. The court

directs that the review be focused on the question of whether those bonds should be replaced

with superseding bonds with lower limits of liability based on the prior record of the principal

and on the other factors identified in 19 C.F.R. § 113.13(b). The review must be completed

within 60 days of the date of the Order imposing the preliminary injunction, during which period

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Customs must report to the court its conclusions and the reasons for its conclusions. Thus, the

review must occur concurrently with the earliest of the bond sufficiency determinations that will

take place upon the expiration of the term bonds currently in place for the eight testifying

plaintiffs. The court requires that Customs allow the affected plaintiffs the opportunity to submit

relevant information and to comment during the reviews. The court is limiting the required

reviews to the five current bonds with limits of $1.5 million or above because of the exigent

circumstances and the need of the court to obtain additional information concerning those five

bonds.10 However, nothing in the preliminary injunction precludes Customs from similarly

reviewing other bonds of the testifying plaintiffs or any other plaintiffs, including bonds for

which the term has expired or that have been terminated but otherwise remain in effect.

Future bond determinations also have a significant effect on the status of this case.

Continuous bonds of two of the eight testifying plaintiffs will expire in December 2006. The

court, therefore, is directing counsel for the parties to inform the court of the status of their

negotiations on the limits of liability in the two continuous bonds that will be in place following

the December 2006 expirations.

Finally, the appropriate preliminary injunctive relief must address the special situation

presented by the current bond status of three of the testifying plaintiffs. Each is subject to an

agreement not to import shrimp, or certain shrimp, that are subject to antidumping duties. One

10

The statute, under 28 U.S.C. § 2643, provides the court with broad discretion to fashion

the appropriate relief. “[T]he court . . . may order such further administrative or adjudicative

procedures as the court considers necessary to enable it to reach the correct decision” in cases

where “the [court] is unable to determine the correct decision on the basis of the evidence

presented.” 28 U.S.C. § 2643(b). “[T]he [court] may, in addition to the orders specified in

[§§ 2643(a) and (b)], order any other form of relief that is appropriate in a civil action, including,

but not limited to, . . . injunctions . . . .” 28 U.S.C. § 2643(c)(1).

Court No. 05-00683 PUBLIC Page 74

plaintiff is subject to an agreement not to import any aquaculture product subject to antidumping

duties. The record reveals that plaintiffs are likely to be able to show that these conditions,

which are not bond conditions but the result of side agreements in e-mail correspondence, violate

the Customs regulations, including, in particular, the 30-day notice requirement of 19 C.F.R.

§ 113.13(c). Because these agreements appear to have been imposed contrary to the regulation

and under a degree of duress, and because the conditions are causing irreparable harm to each of

these three plaintiff-importers, as discussed previously, the court considers it inappropriate to

allow these conditions to be enforced during the pendency of this proceeding. However, the

limits of bond liability for each of these three plaintiffs may or may not be sufficient to allow

Customs to protect the revenue should imports of the subject merchandise resume. The

preliminary injunction order, therefore, allows Customs to seek a modification of the injunction

for changed circumstances. Any change in a limit of liability must be reasonable in view of the

circumstances and consistent with the purposes of 19 U.S.C. § 1623 and the guidelines of

19 C.F.R. § 113.13.

III. Other Motions

During the cross-examination of Mr. Ingalls, plaintiffs moved to strike two statements.

Plaintiffs moved to strike the record of testimony proffered with respect to certain additional

Customs notices of action (i.e., “Customs Form 29s” or “CF 29s”) that had not been included in

the administrative record or submitted to the court by defendant. Plaintiffs argued that any such

testimony would be hearsay because Mr. Ingalls testified that he had neither seen nor could

confirm the actual existence of additional notices of action. See Tr. 638, 697. Plaintiffs further

moved to strike, on the basis of hearsay, the portions of testimony proffered by Mr. Ingalls that

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relate to the three Indonesian shrimp producers who are said to have admitted to commingling

Chinese shrimp. See Tr. 635, 708. The court reserved decision on both rulings.

The testimony elicited from Mr. Ingalls relating to the notices of action contained in

Attachment D indicates that Mr. Ingalls has personal knowledge that additional notices of action

had been issued. See Def.’s Opp’n at Decl. of Bruce W. Ingalls Attach. D. When asked on direct

examination whether Attachment D contained “all of the CF29s that were sent to the various NFI

importers,” Mr. Ingalls testified “[n]o, [it] is not an exhaustive list.” Tr. 638. Upon cross-

examination, when asked how he knew that other CF 29s exist, Mr. Ingalls responded “[w]hen

we contacted the ports to get copies [of the CF 29s], some of the ports produced them

immediately and other ports didn’t, so that led me to believe that there are other CF29s out there

having been issued. We just didn’t get copies [of the other CF 29s].” Tr. 697. Based on Mr.

Ingalls’s testimony, his statement appears to be based on personal knowledge. Despite plaintiffs’

assertion that someone at Customs told Mr. Ingalls that other CF 29s existed, plaintiffs never so

established upon the cross-examination of Mr. Ingalls. See Tr. 696-705. Rather, Mr. Ingalls’s

testimony indicates that he believes that other CF 29s exist based on the fact that Customs

requested copies of the CF 29s, some of the ports immediately produced copies, and some of the

ports did not. Mr. Ingalls could reach such a conclusion based on his personal knowledge of the

case. Plaintiffs did not elicit testimony to the contrary. Plaintiffs’ objection and motion to strike

the testimony as hearsay are overruled.

Mr. Ingalls’s statement that three Indonesian shrimp producers admitted to commingling

shrimp, however, is an out-of-court statement offered for the truth of the matter asserted. See

Tr. 635, 708. Upon cross-examination, plaintiffs asked Mr. Ingalls whether he was “directly told

Court No. 05-00683 PUBLIC Page 76

by the Indonesian shrimp producers” as to the information concerning the admissions of

commingling. Mr. Ingalls replied, “[d]irectly from the Indonesian – no.” Tr. 708. Plaintiffs then

asked “[w]as it something you were told by someone else at Customs,” to which Mr. Ingalls

replied “[y]es.” Id. The statement is therefore double hearsay: hearsay as stated by the Customs

official to Mr. Ingalls and hearsay as stated by Mr. Ingalls before the court. The court is not

aware of, and defendant did not point to, an applicable exception that would allow the admission

of this hearsay evidence. Defendant’s assertion that the admissions by the Indonesian shrimp

producers are statements against interest perhaps accounts for the statement by the Indonesian

shrimp producers to the Customs official, but it does not allow for the admission of the statement

by the Customs official to Mr. Ingalls, as recalled by Mr. Ingalls before the court. See Tr. 709.

Plaintiff’s objection is sustained, and the statement in question is stricken from the record of the

hearing transcript.

Finally, the court grants the four additional unopposed motions that remain outstanding:

plaintiffs’ Motion to Amend Injunctive Relief Requested, filed on April 14, 2006 and consented to

on May 3, 2006; plaintiffs’ Motion to Re-Open Record of Plaintiffs’ Motion for Preliminary

Injunction, filed on May 5, 2006 and consented to on May 31, 2006; defendant’s Consent Motion

for an Extension of Time Out of Time to Respond to Plaintiffs’ Motion to Supplement the Factual

Record, filed on May 31, 2006 and unopposed by plaintiff; and plaintiffs’ Motion to Re-Open the

Record for Plaintiffs’ Motion for Preliminary Injunction, filed on July 31, 2006 and unopposed

by defendant.

Court No. 05-00683 PUBLIC Page 77

IV. Conclusion

Upon application of the four factors that the court must consider when determining

whether to order a preliminary injunction, the court concludes that the factual assertions and

arguments advanced by plaintiffs establish that Eastern Fish, Ore-Cal, Red Chamber, IGF,

Tampa Bay, Oriental Foods, Berdex Seafood, and Aqua Star have shown that they are entitled to

preliminary injunctive relief. Plaintiffs merit preliminary injunctive relief that imposes restraints

and obligations on Customs, but only to the extent required to prevent irreparable harm during

the pendency of this proceeding. These eight plaintiffs have not established their entitlement to a

preliminary injunction restoring a form of status quo ante, which would require Customs to

replace current continuous bonds with new continuous bonds for which liability limits are set

without regard to antidumping duty liability. The remaining 19 NFI importers have failed to

establish that they will suffer immediate, irreparable harm absent injunctive relief. The court will

order preliminary injunctive relief accordingly.

/s/ Timothy C. Stanceu

Timothy C. Stanceu

Judge

Dated: November 13, 2006

New York, New York