CIT Finds Listing Entries in Attachment a Valid Protest, Government Position to Contrary 'Unreasonable'

The Court of International Trade on June 21 denied a government motion to dismiss an importer’s denied protest challenge, finding “unreasonable” the government’s position that because some entries were listed in an attachment, rather than in the narrative portion of the protest, the protests of those entries were invalid.

Aspects Furniture International had protested CBP’s liquidation of nine entries of wooden bedroom furniture from China at the 216.01% China-wide rate. It argued that its goods were not covered by the AD duty order, and that the six-month liquidation clock had in any case run out days before liquidation, so the entries should have been deemed liquidated.

In its protest, Aspects laid out its case for one of the entries in the narrative portion, then used the “Add Additional Entry Numbers” feature in ACE to identify the eight additional entries with the same fact pattern. CBP denied the protest, finding there was insufficient information about whether Aspects’ furniture was in-scope. CBP did not address the importer’s deemed liquidated argument.

At CIT, the government argued that Aspects’ subsequent court challenge should be dismissed with respect to the eight entries Aspects had listed only in the ACE attachment. It said listing the eight entry numbers in ACE is insufficient to properly protest them, because while one protest can be filed for multiple entries, 19 USC 1514 requires that the protest must “specifically” describe the reason for protesting each entry. The protest narrative only specified one entry, and did not indicate that entry was representative of the other eight, the government said.

In other words, 19 USC 1514 “requires protestants to discuss each protested entry in the narrative portion of the protest or otherwise indicate that the cited entry is ‘representative of all the entries,’” the government argued, according to CIT. The trade court can only hear challenges of valid protests, the government said.

CIT found that interpretation clashes with the relevant regulations, and falls short of the principle that customs protests should be “construed generously’ and deemed ‘defective' only when they afford ‘no indication’ of the basis for the protest."

First, the government says CIT should “disregard the attached list of entry numbers, entry dates, and liquidation dates and consider only the entry number identified in the narrative” as meeting specificity requirements, the trade court said. But if CBP’s regulations required that every entry number, entry date and liquidation date be described in the narrative portion of the protest, then other provisions of the protest regulation allowing that information to be submitted in an attachment “would be superfluous,” it said.

And though Aspects did not include a statement linking the eight entries in its attachment to the arguments in the narrative, “such an express statement is not required by the regulations and the linkage is adequately inferred by the inclusion of the entries in the attachment,” CIT said. “Moreover, any differences in the enumerated criteria between the lead entry and those entries identified in the attachment would provide CBP a basis for denying the protest as to such entries. Thus, the court rejects the Government’s interpretation of the regulation as unreasonable.”

(Aspects Furniture Int’l v U.S., Slip Op. 19-78, CIT # 18-00222, dated 06/21/19, Judge Barnett)

(Attorneys: Robert Snyder for plaintiff Aspects Furniture International; Marcella Powell for defendant U.S. government)