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HQ 115812





April 28, 2003

ENT-1-RR:IT:EC 115812 GG

CATEGORY: ENTRY

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

RE: Protest No. 300402100113; 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, Apex Forest Products, Inc. (“Apex”), entered several shipments of softwood lumber products from Canada through the ports of Sumas and Blaine, Washington. Both shipments, which were processed through BRASS/line release, arrived at the border prior to midnight Pacific Daylight Time (PDT). However, the Customs and Border Protection (“CBP”) date/time stamps on the invoices and manifests indicate that the merchandise was imported on May 22, 2002. 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 Eastern Daylight Time (EDT), not PDT. The three-hour difference between these two time zones resulted in the dates of importation being reflected as having occurred on May 22, 2002.

Apex 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, Apex’s broker had requested in writing that its qualifying shipments released between May 6, 2002 and June 29, 2002, be entered instead of released under I.D. Such a request is authorized by section 142.51 of the Customs Regulations (19 CFR § 142.51), which allows importers to change, for a specified period of time, their BRASS transactions from release under I.D. to entry, or vice versa. Apex’s broker 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 in most cases are 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 these shipments being exempt from the imposition of ADD and CVD.

Apex’s efforts to avoid the payment of ADD and CVD were thwarted when its May 21st shipments were recorded as having been entered the following day. Apex is protesting CBP’s decision to designate the entries as having been imported 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 decisions?

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 Customs 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 is being protested is the designation of the entries 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.

Apex next protests Customs 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 customs 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. 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 filed prematurely and, as a result, is untimely. It must be DENIED. The protestant may file again when the entry has been liquidated.

HOLDING:

The protest must be DENIED because the protestant has not at this time presented a protestable decision.

Sincerely,

Glen E. Vereb
Chief

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