[Federal Register Volume 77, Number 105 (Thursday, May 31, 2012)]
[Notices]
[Pages 32128-32129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13179]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
Cancellation of Bond Subject to Enhanced Bonding Requirements
Upon CBP's Acceptance of Qualified Superseding Bond Application
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: General notice.
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SUMMARY: This notice announces that U.S. Customs and Border Protection
(CBP) will cancel a continuous bond where the liability amount was
calculated pursuant to enhanced bonding requirements (EBR bond) upon
the agency's acceptance of a qualified superseding bond application.
CBP will accept a qualified superseding bond application pursuant to
this notice only if posted by an importer who was not a litigant in any
of the National Fisheries Institute, Inc. v. United States Bureau of
Customs & Border Protection (NFI v. CBP) court cases and who
establishes, to CBP's satisfaction, that no contingent liability
remains secured by the predecessor EBR bond and that the EBR bond does
not cover entries that are subject to a pending protest. The
superseding bond must also feature a limit of liability that is
calculated using CBP's current bond formula and must be for the same
time period covered by the EBR bond. Nothing in this Notice should be
construed as applying to importers represented by the plaintiffs in the
NFI litigation noted above, as their relief was granted by the Court.
DATES: A superseding bond application, including supporting
documentation, must be received by CBP within 90 calendar days from the
date the related preceding EBR bond becomes eligible under the
conditions set forth in this Notice.
ADDRESSES: Superseding bond applications, including supporting
documentation, must be sent either via mail to U.S. Customs and Border
Protection, Office of Administration, Revenue Division, ATTN: Bond Team
Intech 1, 6650 Telecom Drive, Indianapolis, IN 46278 or via email to
[email protected] with a subject line of ``Superseding Bond
IR.''
FOR FURTHER INFORMATION CONTACT: Kara Welty, Revenue Division, Office
of Administration, Customs and Border Protection, [email protected],
Tel. (317) 614-4614.
SUPPLEMENTARY INFORMATION:
Background
I. Enhanced Bonding Requirements
In 2004, U.S. Customs and Border Protection (CBP) instituted a
policy of reviewing the sufficiency of continuous bonds where the
importer's importing activities involved merchandise subject to
antidumping or countervailing duties (AD/CVD). CBP's review resulted in
the imposition of enhanced bonding requirements (EBR) on importers of
shrimp subject to AD/CVD. See 71 FR 62276, dated October 24, 2006.
II. Judicial Review
The legality of the enhanced bonding formula was challenged in the
NFI v. CBP cases. See Nat'l Fisheries Inst., Inc. v. CBP, 465 F.
Supp.2d 1300 (Ct. Int'l Trade 2006); Nat'l Fisheries Inst., Inc. v.
CBP, 637 F. Supp.2d 1270 (Ct. Int'l Trade 2009); Nat'l Fisheries Inst.,
Inc. v. CBP, 714 F. Supp.2d 1231 (Ct. Int'l Trade 2010); and Nat'l
Fisheries Inst., Inc. v. CBP, 751 F. Supp.2d 1318 (Ct. Int'l Trade
2010). See http://www.cit.uscourts.gov/slip_op/Slip_op10/10-120.pdf.
In Slip Opinion 10-120, the Court granted equitable relief to
importers who were represented by the plaintiffs in NFI v. CBP (NFI
Importers) and who had posted bonds calculated using the enhanced
bonding formula (EBR bond). As a consequence of the court's decision,
CBP cancelled NFI-Importers' EBR bonds upon their submission of
replacement superseding bonds.
III. CBP Policy To Permit Cancellation of EBR Bond Upon Acceptance of
Qualified Superseding Bond
CBP has now decided to implement a policy whereby the agency will
accept a qualified superseding bond application that meets the
conditions described in Section V of this Notice (``superseding'' as
used in the sense it is used in Slip Op. 10-120, page 6) from any
importer who posted an EBR bond but who was not an NFI Importer (non-
NFI importer). This policy will be in effect for a period of 90
calendar days from the date that the related preceding EBR bond no
longer secures any remaining sum certain or contingent debt (including,
but not limited to, unliquidated entries (see 19 U.S.C. 1500) and
matters subject to 19 U.S.C. 1592 involving actual or potential loss of
revenue. This policy is not applicable to NFI importers whose relief
was granted by the Court.
A Non-NFI importer wishing to take advantage of this policy must
ensure that CBP's Bond Team Intech 1, within the Office of
Administration's Revenue Division, receives a qualified superseding
bond application and supporting documentation within this 90 day
period. The superseding bond application must be accompanied by
supporting documentation that includes a statement as to the date the
EBR no longer secured contingent liability, as well as a statement that
the EBR does not cover entries that are subject to a pending protest
pursuant to 19 U.S.C. 1514 or related regulations.
If CBP accepts a qualified superseding bond, CBP will notify the
non-NFI importer by providing a copy of the
[[Page 32129]]
superseding CBP Form 301 and will cancel (``cancel'' as used in the
sense it is used in Slip Op. 10-120, at pages 11-13) the related
preceding EBR bond. The superseding bond will be clearly annotated to
distinguish it from the preceding EBR bond. An EBR bond is not
cancelled unless CBP notifies the non-NFI importer that the superseding
bond has been approved. CBP will return untimely submissions as well as
those that are incomplete or rejected for any other reason, promptly.
CBP is not responsible for delays in a non-NFI importer's receipt of a
returned application.
As CBP is not a legal party to the contractual relationship between
a surety and a principal, it is noted that the agency cannot assist in
matters relating to obtaining a superseding bond.
IV. EBR Bond Conditions
To qualify for cancellation and replacement by a superseding bond
pursuant to this policy, an EBR bond:
Must not secure any remaining sum certain or contingent
debt (including, but not limited to, unliquidated entries (see 19
U.S.C. 1500) and matters subject to 19 U.S.C. 1592 involving actual or
potential loss of revenue); and
Must not cover entries that are subject to a pending
protest pursuant to 19 U.S.C. 1514 or related regulations.
V. Superseding Bond Conditions
Pursuant to this policy, a qualified superseding bond posted by a
non-NFI importer must meet the following conditions:
A superseding bond must feature a limit of liability in an
amount no less than the dollar amount of the continuous importer bond
that CBP would have accepted had the EBR requirement not existed on the
bond effective date of the EBR bond. For example, if an EBR bond
features a face amount of $500,000 but would have featured a face
amount of $70,000 but for the EBR requirement, then the superseding
bond must feature a face amount of at least $70,000. A non-NFI importer
can determine the correct amount of a superseding bond by multiplying
the total of duties, taxes, and fees paid to CBP, for the twelve-month
period immediately preceding the effective date of the original EBR, by
ten (10) percent and rounding up as appropriate.
A superseding bond must be for the same time period for
which the related preceding EBR bond was in place. For example, if an
EBR bond was in effect for a period from March 15, 2004, through April
1, 2005, then the superseding bond, despite its execution date in 2011,
must secure entries for March 15, 2004, through April 1, 2005.
A superseding bond posted pursuant to 19 CFR 113.40 must
include the posting of cash or other security for each annual period
that the related EBR bond was in effect.
A superseding bond application, including supporting
documentation, must be received by CBP within 90 calendar days from the
date that the related preceding EBR bond no longer secures any
remaining sum certain or contingent debt (including, but not limited
to, unliquidated entries (see 19 U.S.C. 1500) and matters subject to 19
U.S.C. 1592 involving actual or potential loss of revenue).
A superseding bond application, and supporting
documentation, must be sent either via mail to U.S. Customs and Border
Protection, Office of Administration, Revenue Division, ATTN: Bond Team
Intech 1, 6650 Telecom Drive, Indianapolis, IN 46278 or via email to
[email protected] with a subject line of ``Superseding Bond
IR.''
Dated: May 25, 2012.
David V. Aguilar,
Acting Commissioner, U.S. Customs and Border Protection.
[FR Doc. 2012-13179 Filed 5-30-12; 8:45 am]
BILLING CODE 9111-14-P