NATIONAL F ISHE RIES INS TITUTE ,

INC., ET AL. ,Plaintiffs,

v. UNITED STAT ES B UREAU OF CUSTOMS AND BORDER P ROTECTIO N ,

Def endant. Slip Op. 10-120 UNITED STAT ES COURT OF INTERNATIONAL TRADE

Before: Tim othy C. Stanceu, Judge Court No. 05- 00683

OP INION [Affirming a

n amende d rema

nd rede termination by

United States Customs and Borde r Protection of limits of li ability

on bonds previously

subject to an e nhance d bonding r equire ment and enter ing a perma nent injunction to accomplish bond ca ncellation without delay]

Dated: Oc tober 21, 2010 Steptoe &Johnson LLP

( Eric C. Emerson , Gregory S. M cCue , and Michae l A. Pass ) for plaintiffs. Tony W est , Assistant Attorney

Gene ral, JeanneE. Davidson , Direc tor, Patricia M. McCarthy , Assistant Director , Commercial L itigation B ranc h, Civil Division, United St ates Depa rtment of Just ice ( Stephen C. Tosini and David F. D’ Alessandris ); Chi S. Choy , Customs and B order

Protection, United States Depa rtment of Homela

nd Security , of counse l, for defe ndant. Stanceu, Judge : Plainti ffs (the “NF IImporters” or “N FI ”) a re dome stic shrimp importers who brought this action to contest a new, mor e string ent bondingrequire ment (the “ enhanc ed bonding r equire ment,” or “ EBR” ) that United States Customs and Bor der Protec tion (“Customs,” “CBP,” or

the “Ag ency”) a

pplied to all importers of shrimp produc ts subject to antidumping duty order s. See Nat’l Fisheries I nst., Inc. v. U

.S. Bureau of Customs & Border Prot. , 34 CI T __, __,Court No. 05- 00683 P age 2

Slip Op. 10-61, at 1-2 (May 25, 2010) (“

Nat’l Fisheries IV

”). B efor e the c ourt is the amende d second r edete rmination upon remand ( “Amende d Second Remand Rede termination”), which Customs submitt ed to the cour t in response to the re mand orde r in National Fisheries IV

, 34 CI T at __, Slip Op. 10-61, at 20. The c ourt aff irms the rede termined bond amounts in t he Amende d Second Remand Rede termination. The c ourt order s permane nt injunctive relief unde r which Customs , with a limited ex ception, is requir ed to implement the Amende d Second Remand Redeter mination within s ix ty

day s of the entr

y of judg ment. I. B A C K G R O U N D Ba ckg round information, presented in National Fisheries Institute, Inc. v . U.S. Bureau of Customs & Border Protec tion , 30 CI T 1838, 1843-47, 465 F . Supp. 2d 1300, 1305-09 (2006) (“ National Fisheries I

”), National

Fisheries Institute, Inc. v . U.S. Bureau of Customs &Border Protection , 33 CI T __, __, 637 F. Supp. 2d 1270, 1274-81 ( 2009) (“ National Fisheries II

”), a nd National Fisheries IV

, 34 CI T at __, Slip Op. 10-61, at 2-10, is summarized and supplemente d here in. Early

in these proc eeding s, the court or dere d limit ed pre liminary injunctive relief

in favor of the e ight of

twenty -seve n plaintiffs who testified be fore the cour t and established, inter alia , that they would suffe r irre para

ble har m absent such r elief. Nat’l Fisheries I , 30 CI T at 1840-43, 465 F. Supp. 2d at 1303-05. Mor e re cently , in ruling on pla intiffs’ motion for judg ment upon the ag ency rec ord, the c ourt rema

nded for rede termination the bond suffic iency deter minations that Customs , in implementing the EB R, applied to all of the plaintiffs. Nat’l Fisheries II , 33 CI T at __, 637 F. Supp. 2d at 1304- 05. In National Fisheries II

, the cour t held that Customs exceede d its discretion in applying the EBR, a rbitrar ily and ca priciously imposed increa sed bondCourt No. 05- 00683 P age 3

require ments only

on importers of shrimp produc ts, and unrea sonably applied a f

ormula for deter mining bond liability

limit s that secur es potential antidumpingduties at a substantial amount over the require d cash de posit. Id. at __, 637 F. Supp. 2d at 1294. In deter mining that

rema nd proce eding s were appropr iate, the c ourt held in abe y ance plaintiffs’ re quest for perma nent injunctive re lief. Id. at __, 637 F. Supp. 2d at 1300- 01. Def endant moved f

or a clar ification of the or der the court issued in National Fisheries II

, a motion the court de nied. Nat’l Fisheries Inst., Inc. v . U.S. Bureau of Customs &Border Prot. , 33 CI T __, Slip Op. 09-104 (Sept. 25, 2009) (“

National Fisheries III

”). Concluding that the rede termined bond amounts in t he re mand re deter mination that Customs issued in response to National Fisheries II

did not address a dequate ly the re maining issues in this l itigation, the c ourt ag ain re manded the a ction to Custom s in National Fisheries IV

, 34 CI T at __, Slip Op. 10-61, at 19-20. Customs filed a sec ond rede termination on J une 23, 2010, on which plaintiffs submitted comments on J uly 21, 2010. Pls.’ Com ments in Resp. to Second Remand Results (“ Pls. C omments”). De fenda nt filed a re sponse to plaintiffs’ comments on August 20, 2010. Def.’ s Resp. to NFI ’s Remand Comments (“De f. Resp.”) . On September 2, 2010, defe ndant filed a

n unopposed motion for leave for Customs to file an a

mended se cond

rema nd rede termination. Def

.’s Consent Mot. for L eave to File Am. Remand Results. Afte r plaintiffs informed the court that they would file no fur

ther c omments, the court ac cepte d the Amended Sec ond Remand Redete rmination for filingon September 8, 2010. O rder , Sept. 8, 2010.Court No. 05- 00683 P age 4 II. D I S C U S S I O N A. Standard of

Review The c ourt revie ws the Amende d Second Remand Rede termination ac cordingto the standard of

revie w set for

th in Section 301 of the Customs C ourts Act of 1980, 28 U .S.C. § 2640(e) , under which it “shall revie w the matter as provided in se ction 706 of title 5.” 28 U.S.C. § 2640(e) (2006) . In acc ordanc e with Section 706 of the A dminist rative Proc edure Act, 5 U.S.C. § 706, the court will “c ompel ag ency action unlawf

ully withheld or unre asonably delayed,” 5 U .S.C. § 706(1), and “hold unlaw ful and set a side ag ency action, finding s, and conclusions found to be . . . a rbitrar y , capr icious, an abuse of discre tion, or otherwise not in

acc ordanc e with law,” id. § 706(2)( A).

B. The Bond A mounts in t he Second A mended Rema nd Redeter

mination In acc ordanc e with the cour t’s order in National

Fisheries IV

, 34 CI T at __, Slip Op. 10-61, at 20, Custom s rede termined the limits of liabilit y on plaintiffs’ bonds usingthe 10% bond formula of

Customs Direc tive 99-3510-004, whic h was in ef fec t prior to the adoption of the enhanc ed bondingrequire ment. Am. Second Remand Rede termination 2; see Monetary Guidelines for Setting Bond Amounts , Direc tive 99-3510-004 ( J uly 23, 1991), http:// www.c bp.g ov/linkhandler/cg ov/trade/leg al/direc tives/3510-004.ctt/3510-004.tx t (last visited Oct. 21, 2010). The court dire cted that “ [o] n rema nd, Customs must reconsider its application of the 10% for mula to amounts that include entries f or which duty

liability , as deter mined upon liquidation, is alre ady satisfied.” Nat’l Fisheries IV , 34 CI T at __, Slip Op. 10-61, at 16. The cour t rea soned thatCourt No. 05- 00683 P age 5

[a] pplication of the 10% f ormula to the entire amount of duties, taxes, and fee s for the bond per iod, including duties on e ntries for which liquidation is final and liability is satisfied, results in an ac tual level of se curity that could exceed substantially

the guideline level of

10%, as a

pplied to the actua l amount of duties at risk of nonpa

y ment. Id. at __, Slip Op. 10-61, at 15. Upon re considering the question, Customs reduced the bond amounts to adjust for entrie s on which liquidation is final. Am. Second Remand Redeter mination 2 (stating that “ the total duties, tax es, and f ees pa id duringthe bond per iod was reduc ed by

the total duties, tax es and f ees r elatingto entries that we re liquidated a nd the time to file a pr otest had expired without a protest havingbeen f iled”). I n response , plaintiffs state that they “do not contest the bond r edete rminations made by Def endant in its second r emand r esults.” Pls. C omments 1. The cour t affir ms the rede termined limits of liabili ty for the bonds at issue in this action, as set for

th in the Amended Sec ond Remand Redete rmination. In the Amende d Second Remand Rede termination, Customs s tates that it is issui ngthe rede termined bond amounts “under pr otest,” takingthe position that “once a bond is in place, its limitof liability

should not be retroa ctively rede termined.” Am. Second Remand Redeter mination 1. Cust oms states that retroa ctive re deter mination “fore g oes sec urity to which the ag ency

may otherwise be entitled,” limits t he ag ency ’s ability to ag g ressively

collect de bts, and impedes “ eff

icient administration of bonds.” Id . at 1-2. The court doe s not affirm the portion of the Amende d Second Remand Rede termination stating the Ag ency ’s position ag ainst rede termined bond amounts. This posi tion contradicts the c ourt’s holding s in this action. I t rests on the untenable premise that Customs should be free to maintain in place indef initely bonds for which the limits of liabilit y wer e dete rmined contra

ry to law. Customs cannot be said to beCourt No. 05- 00683 P age 6

fore g oing se curity

to which it “otherw ise may be entitled,” id. at 1, when it has a cted c ontrary to law in orde ringthat secur ity

.

C. Timing of the Requir ed Canc ellation of the B onds Customs will be require d to canc el all bonds at issue in this case, whether or not it chooses to re quire a

repla ceme nt (“super seding ”) bond in a n amount deter

mined without reg ard to the EBR a

nd in acc ordanc e with the Amende d Second Remand Rede termination. See Nat’l Fisheries II

, 33 CI T at __, 637 F . Supp. 2d at 1305. In their comments on the Ame nded Second Remand Redete rmination, plaintiffs advoca te that the cour

t “set a time c erta in by

which Def endant must ca

ncel a ll bonds calculate d under the enhanc ed bondingrequire ment.” Pls. Comments 1. P laintiffs arg ue that “a fix ed dea dline is nece ssary to ensure tha

t Defe ndant takes action on these illega lly

calc ulated bonds,” id. at 1-2, urg ing that the court a llow Custom s thirty day s for this purpose, id. at 3. Def endant pr oposes, instead, a judgme nt in which Customs would be re quired to take no action until thirty day s from the date on which the judg ment become s final and conc lusive, i.e. , afte r all appe als have been e x hausted. De f. Resp., Judgment 1 (proposing that the cour

t order Customs to impl ement the Ame nded Second Re mand Redete rmination “within 30 day s of any

final and c onclusive judg ment in this m atter which sustains those rema nd results”). D efe ndant objects that plaintiffs a re attempting to obtain re lief that would void the bonds such that the bonds could not be r einstated should the g overnme nt succe ssfully appea l a judgme nt entere d in this case. De f. Resp. 2. Plaintiffs’ comments seek a n order that, afte r expiration of a time per iod under whic h Customs would acc ept re place ment bonds, would compel Customs to cancel the bonds on a date

cer tain and would per

manently enjoin Customs from makingclaims or cha rg es on the orig inalCourt No. 05- 00683 P age 7

bonds. SeePls. C omments 1-4. In seekingrelief entailingbond canc ellation befor e the conclusion of a

n appea l, plaintiffs are moving f or per manent injunctive re lief and a re pur suing a

n equitable r emedy

in the nature of the re lief for which they

moved ea

rlier. See National Fisheries II

, 33 CI T at __, 637 F . Supp. 2d at 1274 (stating that plaintiffs seek a perma nent injunction to prohibitCustoms from apply ing the EBR to them). The court ha s held in abeyance any rulingon perma

nent injunctive re lief pendingthe outcome of rema nd proce eding s. Id ., 33 CI T at __, 637 F . Supp. 2d at 1300-01. A plaintiff see king a

perma nent injunction must demonstrate that it has suffe red a n irrepa rable injury , that the re medies ava ilable at law, suc h as monetar y damag es, ar e inade quate to compensate for that injury , that, consideringthe balanc e of ha rdships betwee n the plaintiff and defe ndant, a r emedy

in equity is warr anted, a

nd that the public intere st would not be disserved by a per manent injunction. Ebay Inc . v. Me rcex change, L.L.C. , 547 U.S. 388, 391 (2006). “An injunction is a matter of e quitable discre tion; itdoes not follow from suc cess on the me rits as a matter of c ourse.” W

inter v. Natural Res. Def. Council, Inc. , 129 S. Ct . 365, 381 (2008) ( citing W einberge r v. Rome ro-Barce lo , 456 U.S. 305, 313 (1982)). The c ourt finds as fa cts, based on the rec ord in this case, that eac h of the plaintiffs ha s incurre d, and will continue to incur a bsent perma

nent injunctive re lief, adve rse e ffe cts as a r esult of beingmade subjec t to the unlawful enha nced bondingrequire ment. See , e.g. , Pls.’ Subm ission of Supplemental Information Reque sted by the Ct. during In Camera Procee dings on Ma r. 28, 2008, ¶¶ 25- 42, Apr. 28, 2008; Nat’l Fisheries I , 30 CI T at 1850-51, 465 F . Supp. 2d at 1311-12; Status Report in Resp. to t he Ct.’s Inj., J an. 26, 2007, Attac h. 2-4; Status Report (Def .), De c. 4, 2006; Status R eport (Pls.), De c. 4, 2006. Those a dverse eff ects, a s shown by

uncontested f

actsCourt No. 05- 00683 P age 8

and undisputed evide nce on the rec ord, have taken va rious forms. Ge nera lly , plaintiffs have been require d to post collateral, ty pically in the form of le tters of c redit, to obtain bonds in amounts demande d by

Customs acc ordingto the EBR. Ea rlier, some pla intiffs ag ree d to cea se or r educe importing a ctivity

to avoid the costs of e nhance d bonding; other s have inc urre d costs due to the reduc ed ava ilability

of their c redit to conduc t their g ener al business ac tiviti es. See Nat’l Fisheries I

, 30 CI T at 1855-57, 465 F . Supp. 2d at 1313-15. In addition, the court finds that a ll plaintiffs are e x perie ncingcompetitive har m in continuing to be subjected to a bonding r equire ment that does not apply to parties who be g an importing a fter r epea l of the EB R. See Nat’l Fisheries I I , 33 CI T at __, 637 F . Supp. 2d at 1303 (“The continued re fusal of Customs to address the pr oblem of the pre vious bonds has resulted in inequitable tre atment of long -time importers, such a s plaintiffs, relative to new importers who

wer e neve r subject to the unlaw ful enha nced bondingrequire ment.”). The harm imposed on plaintiffs must be considere d irrepa rable beca

use plaintiffs will never

be able to rec over the costs they incurre d, or obtain re dress for harm they

have e x perie nced, in maintainingthe bonds that Customs is unlawfully

requiringof them. The a dverse eff ects stemmingfrom the EB R will continue until canc ellation of the bonds on which pla intiffs are principals. The court c oncludes, there fore , that plaintiffs will continue to incur irre para ble har m directly

cause d by

unlawful g overnme nt action if ca

ncellation of the EBR-ba sed bonds must await the de cidingof any appea l. Reg ardingthe sec ond fac tor for pe rmane nt injunctive relief, no r emedy at law is available . Plaintiffs are not e ntitled to recove r money damag es fr om the United States as compensation for the adve rse e ffe cts they have inc urre d and will incur fr om the unlawfulCourt No. 05- 00683 P age 9

bonding r equire ment. Only throug h an injunctive re medy will plaintiffs avoid incurring additional irrepa

rable harm duringan appe llate proc eeding

. Wit h respe ct to the balanc ing of the har dships, the absenc e of injunctive r elief w ill impose on plaintiffs the irre cover able c osts of maintaining, dur ing a ppeal, bondingset ac cording to the EBR, includingthe costs of maintainingcollater al and of the re duced a

vailability

of cr edit for other business activities and the irr emediable competitive har m plaintiffs are incurring relative to other importers. Alter natively , a g rant of injunctive r elief, a bsent a stay

pending appea l, will preclude de fenda nt from maintainingsecur ity at EB R-based le vels for e ntries for which liquidation is not y et final a nd for whic h potential duty liability is not y et satisfied, e ven if the g overnme nt ultim ately preva ils upon appeal. The hardship to Customs resulting fr om a perma nent injunction, however , is lim ited. Although the level of se curity available for the e ntries

now sec ured by

EBR-ba sed bonds in this case will be r educe d from the c urre nt levels, secur ity still will be available in the form of c ash deposits. Additional secur ity for amounts potentially owingthat exceed the c ash deposits will be ava ilable as a result of a

ny superse ding bonds that Customs may

require , pursuant to the cour t’s order , as a c ondition of canc ellation of the EB Rbased bonds. Customs will be authorized to secure the re maining liability that is the subject of those now-ter

minated bonds ac cordingto the standard bond f ormula that it applies to all other importers. See Monetary G uidelines for Setting Bond Amounts , Direc tive 99-3510-004 ( J uly 23, 1991), http://www.cbp.g ov/linkhandler/cg ov/trade/leg al/direc tives/3510-004.ctt/3510-004.tx t (last visited Oct. 21, 2010). The c ourt conc ludes that the bala nce of the har dships is i n favor

of plaintiffs. Due to the previous dec ision of Custom s not to apply the re peal of

the EB R to bonds for previous bondingCourt No. 05- 00683 P age 10

periods, a de cision that Custom s has maintained through two rema nd proce eding s, plaintiffs have been a dverse ly

aff ecte d, and continue to be adver sely aff ecte d, by a re gulatory

require ment that Customs never

applied to any

importers other tha

n shrimp importers and that Customs its elf ha s abandone d and thus no long er imposes on a ny importers. Whatever

interest Customs has in continuing to a

pply the EB R to plainti ffs’ now -terminate d bonds is outweighe d by the har m beingcause d to plaintiffs. That har m, absent a pe rmane nt injunction, will continue through the time that an appe llate proc eedingwill consume. The public intere st also favors the g rantingof the pe rmane nt injunction. Although maintaining a

maxi mum level of sec urity for the unliquidated e ntries would serve broadly the public interest of r evenue collection, it would do so at the cost of c ontinuing to subject plaintiffs to an unlawf

ul, and discriminatory , bonding r equire ment that Customs no longe r imposes on any importers other tha

n on a distinct class of pe rsons, i.e. , those who beg an importingshrimp subject to antidumping duty order s prior to the g overnme nt’s abandonme nt of the EB R. The public interest is not serve d by the discriminatory , arbitra ry , and ca pricious continuation of a n

onerous a nd unlawful re quirement a g ainst a sing le g roup of importer s. Def endant a rgues that “[i] n essenc e, NF Iis attempting to obtain pre mature r elief in a

manner that may , in NFI ’s view, r ender moot any appea l that the Solicitor Genera l were to elect to take fr om any

final judg ment, by

voiding the bonds in a

manner under which they

could not be reinstated w ere the Gover nment to succe ssfully

appea l.” Def

. Resp. 2. Acc ordingto defe ndant, plaintiffs err oneously

presume that the relief

soug ht would achieve the re sult plainti ffs hope to

acc omplish, which is release of the c ollatera l by the sureties pr ior to the conc lusion of appellate proce eding s. Id. Def

endant a dds that “the Gove rnment will not voluntarily waive its rig ht toCourt No. 05- 00683 P age 11

redr ess under

any bond” and that “[t] he Court ca nnot direct CB P to volunt arily elec t never

to proce ed ag ainst any

bond reg ardle ss of the outcome of a Gove rnment appe al.” Id. The c ourt conc ludes that a judg ment in the form soug ht by plaintiffs, which would impose a per

manent injunction, likely

would moot any

appea l by

the United States in the particula r circ umstances of

this case, unless de fenda nt, at a later

date, we re to qua lify

for a modification of the injunction (e ssentially , a stay of the judg ment) pendingappea l. SeeUSCI T Rule 62(c) ; F.R. App. P. 8(a) . Be cause the EB R that previously was in ef fec t has bee n repe aled, arguably the only issue on appea l that is not already mooted by

the re peal of

the EB R is whether Customs will be require d to implement the Amended Sec ond Remand Redete rmination, which aff ects only the level of

secur ity arisingout of plaintiffs’ now- terminated bonds. Plaintiffs see k equitable r elief unde r which those bonds, a fter r eplac ement with bonds in lower amounts, would be ca ncele d within a definite pe riod of time from the e ntry of judg ment. By

definition, a

canc eled bond is one on which a pr incipal and sure ty are rele ased f

rom all liability

there under, and ther efor e Customs would be unable to obtain pay ment from a sur ety

upon a dema

nd, claim or cha rg e made on a bond once that bond has bee n canc eled in ac corda nce w ith the Amended Second Remand Rede termination. The c ourt is awar e of no me ans, and the parties identify none, under which Customs could reinstate a bond a nd there by

bind the surety

once a g ain, af

ter the bond is canc eled. Ne verthe less, the cour t, exercising its discre tion to weigh the competing equitable c onsiderations, conc ludes that the bonds re maining a t issue in this litigation must be

canc eled a s soon as possible. In weig hing those considera tions, the court conc ludes that the possible mooting of de fenda nt’s appea l is not a sufficient re ason for the cour t to deny plaintiffs the equitable r elief to whic h plaintiffs are otherwise e ntitled. Defe ndant has not demonstratedCourt No. 05- 00683 P age 12

that it should be gr anted what would constitute an automatic stay of the judg ment, and a de lay in the re medy , pendinga possible appe al. Should defenda nt choose to bringan appe al, it may exercise its rig ht to seek modification through the proc edure s of USCI T Rule 62(c) and, should defe ndant not preva il, to seek a stay from the U. S. Court of Appe als for the Fe dera l Circuit pursuant to F.R. App. P. 8(a ). To bala nce the se compe ting c onsiderations, the c ourt is allowing defe ndant six ty

day s, rather

than thirty

day s, from the e ntry

of judg ment in which to implement the Amende d Second Remand Rede termination. The c ourt consider s this ti me period sufficient to allow defe ndant to pursue a stay under U SCI T Rule 62(c) and, should it not prevail, under F.R. App. P. 8(a). In summary , the cour

t concludes that plaintiffs have e stablished their entitlement to perma nent injunctive re lief as c ontemplated by the position they

took ear lier in this lit iga

tion and as spec ifically

soug ht in their comments on the Amende d Second Remand Rede termination. D. For m of Equitable Relief a ffe ctingClaims or Charg es ag ainst the Bonds Plaintiffs state that they

have “ a we ll-founded f

ear ” that the sure ties will be unwilling to rele ase c ollatera l absent ce rtainty that they will not face liability

on the ca ncele d bonds. Pls. Comments 3. “Plainti ffs a ccor dingly reque st that as part of its Orde r this Court ex plicitly direc t that all bonds canc elled by Customs are null and void, and furthe r, per manently enjoin Customs from makingany

claim or c harg e ag ainst any canc eled bond.” Id. at 4. Plaintiffs’ reque st appea

rs to presume that a ca

ncele d bond, in some respe ct, ca n be the basis for liability

of a sur ety , or at lea st for a be lief by a sure ty that liability

may exis t. As the court discussed a

bove, a c ance led bond is a bond on which Customs no longe r may demand perf ormanc e of a

ny bond condition or obligation. Theref ore, a n injunction that orders CustomsCourt No. 05- 00683 P age 13

not to make a c laim or cha rg e ag ainst a ca

ncele d bond would appea r to be re dundant and

unnece ssary . Neve rtheless, the c ourt is unable to find in the Customs R egulations a definition of

a ca ncele d bond or similar provision that unambig uously states the g ener al principle that no claim or c harg e ca

n be made upon a ca

ncele d bond. See19 C.F.R. Part 113 and Subpart F (2010). To a

void any ambiguity

that any party may discern w ith respec t to the intent of the court in orderingbond canc ellation (with or without bond repla ceme nt), the judg ment will provide that Customs is permane ntly

enjoined fr om making a

ny demand, c laim, or cha

rg e on any

bond that has under g one the c ance llation procedur e re quired ther ein. III. C O N C L U S I O N The c ourt conc ludes that the re deter mined bond liability

limit s in the Amended Sec ond Remand Redete rmination are in acc ordanc e with law a nd comply

with the rema

nd order in National Fisheries IV

, 34 CI T at __, Slip Op. 10-61, at 20. The c ourt finds as fa cts that all plaintiffs have incurre d and, abse nt permane nt injunctive relief w ill incur duringany appea l, irrepa rable harm a s a re sult of the continued unlawf ul and discriminatory

application to them of the enha nced bondingrequire ment. Ba lancingall competingequitable c onsiderations, the c ourt conclude s that permane nt injunctive relief e nsuringprompt bond canc ellation is the appropr iate

reme dy by which this liti g ation should be conc luded. Customs, ex cept in the e vent of a delay in the tender ing by

a plaintiff- importer of a

superse ding bond, must ac complish all actions

nece ssary to implement the Amended Sec ond Remand Redete rmination within six ty day s of the entry of judg ment. /s/ Timot hy C. St ance u Timothy C. St ance u J udg e Dated: October

21, 2010 New Y ork, Ne w York