[Federal Register Volume 74, Number 7 (Monday, January 12, 2009)]
[Notices]
[Pages 1224-1225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-343]


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DEPARTMENT OF HOMELAND SECURITY

Customs and Border Protection

[Docket No. USCBP-2008-0112]


Enhanced Bonding Requirement for Certain Shrimp Importers

AGENCY: U.S. Customs and Border Protection, Department of Homeland 
Security.

ACTION: Notice of proposed modification; request for comments.

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SUMMARY: This notice proposes to end the designation of shrimp subject 
to antidumping or countervailing duty orders as a special category or 
covered case subject to an enhanced bonding requirement (EBR). A recent 
World Trade Organization (WTO) Appellate Body Report has found that 
CBP's application of this requirement to shrimp from Thailand and India 
is inconsistent with U.S. WTO obligations. In response to this report, 
CBP proposes to end the designation of shrimp subject to antidumping or 
countervailing duty orders as a special category or covered case 
subject to the EBR. CBP proposes that shrimp importers affected by this 
requirement may request termination of any existing continuous bonds 
pursuant to 19 CFR 113.27(a) and submit a new bond application pursuant 
to 19 CFR 113.12(b). CBP seeks comment on this proposal.

DATES: Comments must be received on or before February 11, 2009.

ADDRESSES: Commenters may submit comments, identified by docket number, 
by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number 
USCBP-2008-0112.
     Mail: Trade and Commercial Regulations Branch, U.S. 
Customs and Border Protection, Regulations and Rulings, Office of 
International Trade, 799 9th Street, NW., (Mint Annex), Washington, DC 
20229.
    Instructions: All submissions received must include the agency name 
and docket number for this document. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov. Submitted comments 
may also be inspected on regular business days between the hours of 9 
a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch, 
Regulations and Rulings, Office of International Trade, U.S. Customs 
and Border Protection, 799 9th Street, NW., (5th Floor), Washington, 
DC. Arrangements to inspect submitted comments should be made in 
advance by calling Mr. Joseph Clark at (202) 325-0118.

FOR FURTHER INFORMATION CONTACT: David Genovese, ADCVD/Revenue Policy & 
Programs Division, Trade Policy and Programs, Office of International 
Trade, [email protected], (202) 863-6092.

SUPPLEMENTARY INFORMATION:

Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of the 
proposed rule. Customs and Border Protection (CBP) also invites 
comments that relate to the economic, environmental, or federalism 
effects that might result from this proposal. Comments that will 
provide the most assistance will reference a specific portion of the 
proposal, explain the reason for any recommended change, and include 
data, information, or authority that support such recommended change.

Background

    A key CBP mission is to collect all import duties determined to be 
due to the United States. Under CBP statutes and regulations, release 
of merchandise prior to the determination of all duties that may be 
owed is ordinarily permitted, provided the importer posts a bond or 
other security to insure payment of duties and compliance with other 
applicable laws and regulations. The final assessment of duties occurs 
at liquidation of the entry.
    In the case of goods subject to antidumping (AD) or countervailing 
(CV) duties, CBP follows instructions from the Department of Commerce 
(DOC) (which administers the AD/CV duty laws in conjunction with the 
U.S. International Trade Commission) regarding the applicable AD/CV 
duty rate, and collects any additional duties owed upon liquidation. 
However, CBP has found that many importers subject to AD/CV duties fail 
to pay the additional duties determined to be due at liquidation. As a 
result, since defaults for AD/CV duty supplemental bills have increased 
drastically, CBP conducted an internal policy review of revenue 
protection strategies at CBP.

Issuance of CBP's Enhanced Bonding Requirement (EBR)

    In response to importers' increasing failure to pay additional 
duties determined to be due at liquidation, CBP reconsidered the 
general bond formula which provides that the minimum continuous bond 
may be in an amount equal to the greater of $50,000 or ten percent of 
the amount of the previous year's duties, taxes and fees. In order to 
address the growing collection problem, CBP announced an enhanced 
customs bonding requirement (EBR) for those continuous bonds that 
secure the importer's promise to pay all duties finally determined to 
be due on certain merchandise subject to an AD/CV duty order. See 
``Monetary Guidelines for Setting Bond Amounts for Importations Subject 
to Enhanced Bonding Requirements'', 71 FR 62276 (October 24, 2006).

Application of CBP EBR

    Application of the EBR has been limited to merchandise subject to 
the first antidumping orders involving agriculture and aquaculture 
merchandise imposed after the issuance of the July 2004 Amendment to 
the Bond Guidelines.\1\ CBP required that continuous bond amounts for 
importers of shrimp subject to AD or CV duty orders be increased to the 
rate established in the final AD or CV duty

[[Page 1225]]

order, multiplied by the value of the importer's entries of the subject 
merchandise in the previous 12-month period.
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    \1\ Notice of Amended Final Determination of Sales at Less Than 
Fair Value and Antidumping Duty Order: Certain Frozen Warmwater 
Shrimp from Brazil, 70 FR 5143 (Feb. 1, 2005); Notice of Amended 
Final Determination of Sales at Less Than Fair Value and Antidumping 
Duty Order: Certain Frozen Warmwater Shrimp from Thailand, 70 FR 
5145 (Feb. 1, 2005); Notice of Amended Final Determination of Sales 
at Less Than Fair Value and Antidumping Duty Order: Certain Frozen 
Warmwater Shrimp from India, 70 FR 5147 (Feb. 1, 2005); Notice of 
Amended Final Determination of Sales at Less Than Fair Value and 
Antidumping Duty Order: Certain Frozen Warmwater Shrimp from 
People's Republic of China, 70 FR 5149 (Feb. 1, 2005); Notice of 
Amended Final Determination of Sales at Less Than Fair Value and 
Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam, 70 FR 5152 (Feb. 1, 2005); and Notice 
of Amended Final Determination of Sales at Less Than Fair Value and 
Antidumping Duty Order: Certain Frozen Warmwater Shrimp from 
Ecuador, 70 FR 5156 (Feb. 1, 2005).
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World Trade Organization Disputes Regarding EBR

    On April 24, 2006, Thailand requested consultations with respect to 
certain issues relating to the imposition of antidumping measures on 
shrimp from Thailand, including the application of the EBR to importers 
of shrimp from Thailand. Thailand requested the establishment of a 
panel on September 15, 2006, and the World Trade Organization (WTO) 
Dispute Settlement Body (DSB) established a panel on October 26, 2006.
    On June 6, 2006, India requested consultations with respect to 
certain issues relating to Customs Bond Directive 99-3510-004, as 
amended by the Amendment to Bond Directive 99-3510-004 for Certain 
Merchandise Subject to Antidumping Countervailing Duty Cases (July 9, 
2004) and clarifications and amendments thereof. India alleged that the 
United States has imposed on importers a requirement to maintain a 
continuous entry bond in the amount of the anti-dumping duty margin 
multiplied by the value of imports of subject shrimp imported by the 
importer in the preceding year, and that this action breached several 
provisions of the General Agreement on Tariffs and Trade 1994 (GATT 
1994), the WTO Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 (AD Agreement), and the Agreement 
on Subsidies and Countervailing Measures. India requested the 
establishment of a panel on October 13, 2006, and the DSB established a 
panel on November 21, 2006.
    The panels circulated the reports in both cases on February 29, 
2008. Among other things, the panels found that the additional bond 
requirement as applied to importers of shrimp from Thailand and India 
was a ``specific action against dumping'' inconsistent with Article 
18.1 of the AD Agreement and was inconsistent with the Ad Note to 
paragraphs 2 and 3 of GATT 1994 Article VI because it did not 
constitute ``reasonable'' security.\2\ On April 17, 2008, Thailand and 
India appealed the findings of the panels with respect to the 
additional bond requirement. The United States cross-appealed one 
aspect of those findings on April 29, 2008.
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    \2\ Panel Report, United States--Measures Relating to Shrimp 
from Thailand, WT/DS343/R, adopted August 1, 2008.
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    The Appellate Body report was issued on July 16, 2008.\3\ The 
Appellate Body found that the panels properly concluded that the 
additional bond requirement as applied to importers of shrimp from 
Thailand and India did not constitute reasonable security. It rejected 
Thailand and India's other claims regarding the panels' interpretation 
of the Ad Note. The Panel and Appellate Body reports were adopted by 
the DSB on August 1, 2008. On August 29, 2008, the United States 
indicated that it intended to comply with the recommendations and 
rulings of the DSB.
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    \3\ WTO Appellate Body Report, ``United States--Measures 
Relating to Shrimp from Thailand'' and ``United States--Customs Bond 
Directive for Merchandise Subject to Anti-Dumping/Countervailing 
Duties, WT/DS343/AB/R and WT/DS345/AB/R, adopted August 1, 2008.
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Proposed Modification

    CBP proposes to comply with the recommendations and rulings of the 
DSB by ending the designation of shrimp covered by antidumping or 
countervailing duty orders as a special category or covered case 
subject to the requirement of additional bond amounts. Furthermore, 
shrimp importers may request termination of existing continuous bonds 
pursuant to 19 CFR 113.27(a) and submit a new continuous bond 
application pursuant to 19 CFR 113.12(b). The requirements for 
submitting a new bond application pursuant to 19 CFR 113.12 are 
available on the CBP Web site at http://www.cbp.gov/xp/cgov/trade/priority_trade/revenue/bonds/pilot_program/news_develop/ under the 
``Policy and Procedures'' section.
    After public comments are received, reviewed, and considered, CBP 
will publish in the Customs Bulletin and in the Federal Register a 
final notice regarding the designation of shrimp covered by antidumping 
or countervailing duty orders as a special category or covered case 
subject to the requirement of additional bond amounts. Any change to 
the designation of this merchandise and the bond amounts required of 
importers of this merchandise will be effective for entries made on or 
after the date of publication of the final notice.

    Dated: January 7, 2009.
W. Ralph Basham,
Commissioner, Customs and Border Protection.
 [FR Doc. E9-343 Filed 1-9-09; 8:45 am]
BILLING CODE 9111-14-P