                                         Slip Op. 09-104

                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
 CUSTOMS AND BORDER
 PROTECTION,

                Defendant.


                                   OPINION AND ORDER

[Denying defendant’s motion seeking clarification and modification of court’s order of remand]

                                                            Dated: September 25, 2009

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

       Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.
McCarthy, Assistant Director, Barbara S. Williams, Attorney in Charge, International Trade
Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice
(Stephen C. Tosini); Chi S. Choy, Customs and Border Protection, United States Department of
Homeland Security, of counsel, for defendant.

       Stanceu, Judge: Defendant United States moves for clarification of the court’s order

(“Opinion and Order”) in National Fisheries Institute, Inc. v. United States, 33 CIT __, Slip

Op. 09-89 (Aug. 25, 2009) (“National Fisheries”). Def.’s Mot. for Clarification 1 (“Def.’s

Mot.”). Plaintiffs oppose defendant’s motion on various grounds. Pls.’ Opp’n to Def.’s Mot. for

Clarification. The court concludes that defendant’s motion, although styled as a motion for
Court No. 05-00683                                                                     Page 2

clarification, seeks a modification of the Opinion and Order. For the reasons stated herein, the

court concludes that the modification defendant seeks is unnecessary and unwarranted.

       Defendant directs its motion to the court’s having ordered United States Customs and

Border Protection (“Customs” or the “Agency”), “during the remand period or during a

reasonable time thereafter,” to cancel each of plaintiffs’ bonds that have a liability limit

determined according to the enhanced bonding requirement that the court has held to be

unlawful. Nat’l Fisheries, 33 CIT at __, Slip Op. 09-89, at 61.1 The “remand period” is a period

of sixty days from August 25, 2009, the date of the Opinion and Order,

       during which remand period Customs shall effect, in accordance with this Opinion
       and Order, an individual redetermination of the limit of liability on each
       individual continuous entry bond at issue in this action without application of the
       enhanced bonding requirement unless it chooses to cancel all liability on a bond
       outright, as provided in this Opinion and Order.

Id. Because the court directed Customs to file the results of its redeterminations upon remand

within sixty days of the date of the Opinion and Order, the remand redeterminations are due on

October 26, 2009.

       In its motion, defendant requests that the court “make clear that United States Customs

and Border Protection (‘CBP’) need not cancel any existing continuous entry bonds until after

there is a final and conclusive judgment in this case.” Def.’s Mot. 1. Defendant expresses a


       1
         In National Fisheries Institute, Inc. v. United States, the court ordered that
       Customs, in accordance with this Opinion and Order, shall accomplish each
       individual bond redetermination under this Opinion and Order for the purpose of
       allowing a plaintiff who is a principal on a bond to replace that bond with a
       superseding bond at a limit of liability that was not determined according to the
       enhanced bonding requirement, regardless of whether such bond is a current bond
       or a bond applying to a previous time period.
Nat’l Fisheries Institute, Inc. v. United States, 33 CIT __, __, Slip Op. 09-89, at 61 (Aug. 25,
2009).
Court No. 05-00683                                                                    Page 3

concern that “cancellation of the existing bonds before issuance of any final and conclusive

judgment in this matter may render moot our right to appeal” and that “any action that the

Government takes to preserve its rights on appeal might be considered to violate the Court’s

remand order.” Id. at 5. Defendant requests specifically that the court “substitute the words,

‘during a reasonable time thereafter’” with the words “‘within 60 days of any final and

conclusive judgment in this matter.’” Id. at 7. The language proposed by defendant would make

a substantive change in the Opinion and Order. Therefore, defendant’s motion must be

considered as a motion for modification of the Opinion and Order rather than a motion for

clarification.

        Because the Opinion and Order provided that bond cancellations must be effected during

the remand period “or during a reasonable time thereafter,” there is no need for a clarification of

the Opinion and Order to communicate the essential point that Customs may cancel, but is not

required to cancel, any bond prior to filing its remand redeterminations on October 26, 2009.

Nat’l Fisheries, 33 CIT at __, Slip Op. 09-89, at 61 (emphasis added). Nothing in the Opinion

and Order precludes Customs from informing the court, in the remand redeterminations, of a

commitment on the part of the Agency to cancel a particular bond or bonds at a specific time.

When the court views the Agency’s remand redeterminations, the court will be in a position to

consider any statement that Customs chooses to make in the remand redeterminations on when

Customs intends to cancel any of plaintiffs’ bonds that may remain in effect as of the date of

filing of the remand redeterminations. Whether or not Customs provides such a statement or,

alternatively, indicates that it has no intention to cancel, prior to a final and conclusive judgment,

any bonds that remain in effect, the court will have the opportunity to take the Agency’s remand
Court No. 05-00683                                                                   Page 4

redeterminations into consideration in fashioning a judgment or otherwise resolving issues

remaining in this case. For these reasons, the court considers it premature to address at this time

the question of whether any bonds that Customs does not cancel during the remand period, or

commits to cancel within a brief and specific time period following the close of the remand

period, will be required to be canceled prior to a final and conclusive judgment in this case. The

court will consider this question promptly upon receiving the Agency’s remand redeterminations.

Additionally, because Customs was not directed to cancel any bond during the remand period,

the issue defendant raises as to possible mootness of its right to appeal is also premature.

       The subject matter of the court’s remand affects unresolved issues that should be

addressed expeditiously. Accordingly, it is important that Customs comply with the October 26,

2009 due date. In its motion, defendant does not indicate that Customs will be unable to comply

with this due date. The court does not intend to approve an extension of the due date absent a

showing of due diligence and compelling circumstances.

       The court believes it appropriate to redirect defendant’s attention to several matters

discussed in the Opinion and Order. As the court stated, “plaintiffs have been subjected to bond

sufficiency determinations that they have demonstrated in this litigation to be contrary to law”

and that “cannot be allowed to stand.” Nat’l Fisheries, 33 CIT at __, Slip Op. 09-89, at 56. The

court also concluded that “[t]he setting aside of the unlawful bond sufficiency determinations,

standing alone, is a hollow act that provides plaintiffs no remedy absent action taken on the

underlying continuous entry bonds.” Id. The court observed that “[t]hroughout this litigation,

Customs steadfastly has refused to provide any relief as to these previous bonds, even though it

has had multiple opportunities to do so during the course of this litigation and even though it now
Court No. 05-00683                                                                  Page 5

has discontinued the enhanced bonding requirement.” Id. at __, Slip Op. 09-89, at 56-57. The

court observed, further, that “[t]he continued refusal of Customs to address the problem of the

previous bonds has resulted in inequitable treatment of long-time importers, such as plaintiffs,

relative to new importers who were never subject to the unlawful enhanced bonding

requirement.” Id. at __, Slip Op. 09-89, at 58. The intention of Customs regarding the length of

time that it intends to allow the consequences of its past unlawful bond sufficiency

determinations to remain in effect in the form of un-canceled bonds is an important consideration

in this case. The court therefore must view the time frame for cancellation of existing bonds as a

factor in fashioning a judgment or other remedy.

       The court will deny defendant’s motion for the reasons stated above. In addition, the

court has not yet ruled on plaintiffs’ motion for a permanent injunction or had the opportunity to

consider whether the remand that it has ordered in this case “may obviate the need for a

permanent injunction in the future by resolving expeditiously the remaining issues in this case.”

Id. at __, Slip Op. 09-89, at 53. Thus, the pendency of plaintiffs’ motion for a permanent

injunction is an independent reason supporting the denial of defendant’s motion to modify the

Opinion and Order.

       For the reasons discussed herein, and in consideration of defendant’s motion, plaintiffs’

reply, and all proceedings herein, it is hereby

       ORDERED that Defendant’s Motion for Clarification be, and hereby is, DENIED.


                                                             /s/ Timothy C. Stanceu
                                                             Timothy C. Stanceu
                                                             Judge

Dated: September 25, 2009
       New York, New York
