Importer Can't File Suit Until Protest on Erroneous 'Deemed Liquidations' Concludes, DOJ Argues

CBP’s determination that the entries of softwood lumber imported by Fraserview Remanufacturing had been deemed liquidated and the agency's posting of liquidation notices can't be challenged at the Court of International Trade because a protest contesting that determination is currently being adjudicated by CBP, DOJ said in a July 11 dismissal motion (Fraserview Remanufacturing v. U.S., CIT # 23-00063).

Once CBP reaches a determination concerning that protest and if it is denied, Fraserview will have an opportunity to commence a civil action under 28 U.S.C. § 1581(a), DOJ said. However, Fraserview "cannot prematurely seek relief from this Court by filing a jurisdictionally deficient action," DOJ argued.

The case involves 830 entries during the second administrative review of the antidumping and countervailing duty orders on certain softwood lumber from Canada entered by Fraserview between January and December 2019. At the time of entry, CBP initially suspended liquidation of these entries due to suspension of liquidation instructions issued by Commerce.

In March 2021, CBP personnel incorrectly determined that the entries at issue had been liquidated by operation of law and posted corresponding notices of liquidation. Fraserview's counsel contacted CBP seeking help in removing the "deemed liquidation" designations. CBP advised the company that the agency lacked the authority to make changes to these entries and that a protest would be required. Fraserview then filed that protest in July 2021.

The government asked to dismiss a similar case filed by Fraserview in December (see 2212090033), and has opposed Fraserview's request to designate the earlier case a test and suspend the current one. Suspension of the current case beneath a test case "cannot cure the defect in Fraserview’s jurisdictionally invalid complaints," DOJ argued. The facts of both cases are distinct enough so that one cannot not serve as a test for the right of recovery, DOJ said.

Though both cases involve erroneous "deemed liquidation" designations, the earlier case involves 80 separate items that were entered in 2017 during the first administrative review of the AD and CVD orders. In that case, Fraserview failed to file an administrative protest within 180 days of the date on which CBP posted official notices of liquidation.