ITA REVISITS RESELLERS
Did you know the International Trade Administration (ITA) has changed its policy regarding resellers? Traditional ITA policy was to apply the antidumping rate for the producer, even if the reseller sold the goods to the U.S. buyer. Now, ITA allows the importer to deposit the producer’s antidumping duty rate at time of entry. However, if at time of liquidation there is no reseller’s rate, then the “All Others” rate applies. The sole exception is where the producer has provided evidence to ITA that it knew or should have known its goods were destined for the U.S. Does your reseller have his own rate? If not, look out!

MORE ABOUT DUMPING BONDS
Most importers now know that to qualify to import aquaculture, a bond must be posted in the approximate amount of the dumping duties due in the 12 month period covered by the bond, plus $50,000 for the “regular” Customs bond. The bigger hurdle is the surety requirement to fully collateralized those bonds. Satisfying this requirement is especially complicated if the original bond becomes insufficient. Then a larger replacement bond must be posted, but the collateral from the first bond cannot be used as collateral for the replacement bond, simply because the first bond remains at risk until the underlying entries are liquidated. So, if the first bond was for $500,000 and the second for $1,000,000, forthat one calendar year, the importer has $1,500,000 pledged to the surety.

Now comes a lawsuit filed by the National Fisheries Institute filed in late December 2005 arguing:

1) The new bond policy violates 19 U.S.C. § 1623(a) which limits Customs’ ability to require a bond in cases where a bond or security is not otherwise required by law;

2) Customs’ bond policy violates 5 U.S.C. § 706(2) as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” and

3) There is no rational reason why this new bond requirement applies only
to importers of aquaculture products.

As this case progresses, another complication may have arisen. Many foreign suppliers of aquaculture (especially shrimp) have qualified as a foreign importer of record on a DDP term of sale. Some within Customs think that since the antidumping duty is factored into the cost at which these companies resell their products to their American buyers, perhaps reimbursement really does take place. Will twice the dumping margin at time of liquidation rear its ugly head at some time in the future? Beware!!!