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Importer Files Supreme Court Appeal on CAFC Opinion Requiring Protest Within 180 Days of Liquidation

Importer Acquisition 362, d/b/a Strategic Import Supply (SIS), filed a petition for writ of certiorari at the U.S. Supreme Court of a U.S. Court of Appeals for the Federal Circuit opinion requiring protests to be filed within 180 days of liquidation and not the date the Commerce Department issues antidumping and countervailing duty instructions to CBP. SIS said that by establishing this requirement, the appellate court eliminated one statutory mechanism under which importers can file protests and encourages "premature, incomplete, sham protest filings" (Acquisition 362 v. U.S., U.S. # 22-1102).

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The importer said it did not file a protest with CBP within the 180-day window following liquidation since there was no reason to at that time. Only after this window closed did Commerce halve the relevant countervailing duty rate, prompting SIS to file protests seeking the lower rate. The Court of International Trade and the Federal Circuit each sustained CBP's denial of the protests, finding the protest was required within the 180 days after liquidation (see 2302060029).

In its SCOTUS petition, SIS said the strict deadline would encourage, "perhaps even require," companies to file premature protests, which established case law has shown to be an improper basis for CIT jurisdiction. If the courts require importers to file a protest within 180 days of liquidation, this would "invalidate explicit portions of the governing statutes that provide for alternative avenues of relief separate and apart from liquidation protests" and "require every recipient of a potential refund to have to file a protest based solely on the possibility that CBP may not act in compliance with directives."

The appeals court's holding would establish an "illogical" system, the importer argued. SIS claimed it would require an importer subject to an annual duty review to file a protest before the new rate exists any time a liquidated rate might be lowered at some unknown future point to preserve its rights. "In practice, these requirements would result in a significant surge of protests that is not in line with how the system, when properly construed under the statutory mechanisms, is intended to function," the petition said.

SIS also argued the Federal Circuit's decision eliminates one mechanism under the law by which importers can file protests. 19 U.S.C. Section 1514(c)(3) says a protest shall be filed within 180 days after the date of liquidation or, where this is not applicable, "the date of the decision as to which protest is made."

The importer claimed the courts collapsed these two avenues for filing protests into one by eliminating the ability to file a protest based on the date of a decision involving neither a liquidation nor reliquidation by forcing the importer to instead protest solely based on the date of liquidation. "If allowed to stand, the Federal Circuit's interpretation causes disruption of the proper implementation of customs regulations," the petition said.

SIS, an importer of passenger vehicle and light truck tires from China, originally filed the lawsuit seeking a lower CVD rate on its entries. In the relevant CVD review, Commerce set a 30.61% duty rate for the subject entries. After uncovering errors in the case, Commerce amended the final results and dropped the rate to 15.56%, instructing CBP to liquidate entries at the new rate. Some relevant entries that had been liquidated more than 180 days prior to Commerce's instructions didn't benefit from the change. The importer filed a protest with CBP, arguing its protest was valid because it was filed within 180 days of the instructions.

CIT, and later the Federal Circuit disagreed, finding a protest was not timely filed because the 180-day deadline runs from the liquidation date. However, the appellate court noted Commerce's failure to clearly set out the provision covering the suspension of liquidation created confusion, adding that it expects Commerce to be more specific and complete than it was initially about the actions leading to the present challenge. In its SCOTUS petition, SIS said the questions in this case "are of critical importance to the customs and import industry."