Erroneous 'Deemed Liquidated' Posting Does Not Actually Liquidate Entries, Importer Argues

The Court of International Trade should not dismiss a case based on the underlying entries' liquidation because the entries were liquidated erroneously, importer Fraserview argued in a Jan. 12 brief (Fraserview Remanufacturing v. United States, CIT # 22-00244).

The 80 entries of Canadian softwood lumber were liquidated in September 20202 "in an apparent error" by CBP. The government's position, according to a Dec. 8 motion to dismiss, is that Fraserview should have availed itself of the protest process but missed its window, even if the underlying decision by CBP was erroneous. DOJ also said that the U.S. Court of Appeals for the Federal Circuit has ruled that "lack of diligence [by an importer] in monitoring liquidation of its entries" is not sufficient to claim inadequate remedy (see 2212090033).

Fraserview argues that the entries were never liquidated and therefore no clock for protest ever began. CBP posted the electronic notice that the entries were "deemed liquidated" in error and never affirmatively liquidated those entries, Fraserview said. Entries are be treated as having been liquidated only when three conditions are met: suspension of liquidation required by statute or court order has been lifted; CBP has received notice of the lifting of suspension; and CBP did not liquidate the entry within six months after receiving such notice, Fraserview said.

"[N]o action on the part of CBP can cause [liquidation] to occur in the absence of those conditions," and "the posting of notice of deemed liquidation does not [on its own] and cannot cause liquidation to occur," Fraserview said.

Fraserview said that it does not contest any unlawful liquidation, because no liquidation actually occurred. DOJ's argument that Fraserview missed its protest window is incorrect because deemed liquidation is not a "decision" protestable at all, Fraserview said. The importer also pointed to a CIT decision that "expressly ruled ... that erroneous notices of deemed liquidation, if issued while a Commerce order of suspension is in effect, are not protestable under 19 U.S.C. § 1514(a) and that jurisdiction is therefore available under 28 U.S.C. § 1581(i)."