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HQ 115811

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April 22, 2003

ENT-1-RR:IT:EC 115811 GG

CATEGORY: ENTRY

Port Director
Bureau of Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230

RE: Protest No. 3004402100111; Application for Further Review; Time of Release; Timeliness of Protest

Dear Sir:

This is in response to the application for further review of the protest referenced above.

FACTS:

The protestant, Skana Forest Products Limited (“Skana”), entered a shipment of softwood lumber products from Canada through Oroville, Washington. The shipment, which allegedly arrived at the border just before 9:00 p.m., Pacific Daylight Time (PDT), was processed through BRASS/line release. The processing date and time, as evidenced by the date/time stamp on the invoice and manifest, was May 22, 2002, at 12:03 a.m. Eastern Daylight Time (EDT). The reason for the discrepancy between the arrival and processing times is that the Automated Commercial System, through which the BRASS releases were routed, is set to EDT.

Skana usually elects to have similar shipments released under the special permit for immediate delivery procedures (“I.D.”). However, in anticipation of antidumping (ADD) and countervailing duty (CVD) orders A-122-838 and C-122-839, which imposed ADD and CVD on certain softwood lumber products from Canada entered on or after May 22, 2002, Skana had requested that its qualifying shipments arriving prior to May 22 be entered instead of released under I.D. Skana, through its broker, had made the request in a letter to the Bureau of Customs and Border Protection (“CBP”) dated April 19, 2002, invoking its authority under § 142.51 of the Customs Regulations (19 CFR § 142.51) to change, for a specified period of time, its BRASS transactions from release under I.D. to entry. Skana took this action to ensure that its pre-May 22nd shipments would have a time of entry at release rather than entry summary, in accordance with 19 CFR §§ 141.68(a)(1) and (c). Since duty rates are in most cases pegged to the rate of duty in effect at the time of entry (see 19 CFR § 141.69), successful execution of this plan would result in this shipment being exempt from the imposition of ADD and CVD.

Skana’s efforts to avoid the payment of ADD and CVD were thwarted when its May 21st shipment was recorded as having been entered the following day. Skana is protesting CBP’s decision on May 21, 2002, to designate the entry as having been entered on May 22, 2002. It also protests CBP’s subsequent decision on June 5, 2002, to require ADD and CVD deposits to be filed with the entry summary.

ISSUE:

Whether the issues presented herein are protestable?

LAW AND ANALYSIS:

Section 514(a) of the Tariff Act of 1930, as amended (19 U.S.C. § 1514(a)), allows protests to be filed against decisions by CBP as to:

The appraised value of merchandise;
The classification and rate and amount of duties chargeable; All charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; The exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under section 1337 of this title; The liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; The refusal to pay a claim for drawback; or The refusal to reliquidate an entry under section 1520(c);

The first decision that Skana protests is the designation of the entry as having occurred on May 22, 2002, instead of on the preceding day. In reviewing the list of protestable decisions noted above, it is evident that this decision is not a matter that is subject to protest under 19 U.S.C.

Skana next protests CBP’s decision to require that ADD and CVD cash deposits be made with the entry summary. The assessment of duties by CBP at the time of entry is not a “decision” within the meaning of 19 U.S.C. § 1514(a), because such decisions are final and conclusive after 90 days, and the government would be deprived of its right to liquidate the entry at a subsequent date. See Dart Export Corp. v. Unitd States, 43 CCPA 64, C.A.D. 610 (1956), cert. denied, 352 U.S. 824, 77 S. Ct. 33, 1 L.Ed. 2d 48 (1956). It is the liquidation which is final and subject to protest, not the preliminary findings or decisions of CBP officers. See Commonwealth Oil Refining Co., Inc. v. United States, 67 Cust. Ct. 155, 332 F. Supp. 203, C.D. 4267 (1971); and Dart Export Corp., supra. In accordance with 19 U.S.C. § 1514(c)(3)(A), decisions may be protested within ninety days after but not before notice of liquidation or reliquidation. The entry underlying this protest has not yet been liquidated. The protest was thus premature. As a result, it was untimely and must be DENIED. The protestant may file again when the entry has been liquidated.

Sincerely,

Glen E. Vereb
Chief

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