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HQ 115814





April 28, 2003

ENT-1-RR:IT:EC 115814 GG

CATEGORY: ENTRY

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

RE: Protest No. 300402100125; Application for Further Review; 19 U.S.C. § 1514; Decision Subject to Protest.

Dear Sir:

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

FACTS:

On May 15, 2002, the protestant, Riverside Forest Products Ltd., of Kelowna, British Columbia (“Riverside”), dispatched a shipment of SPF lumber to a customer located in the United States. According to the protestant, the lumber was properly classifiable in subheading 4407.10 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Riverside prepared an invoice (“Invoice A”) that properly described the merchandise and reflected the correct HTSUS tariff number.

The carrier presented the wrong invoice (“Invoice B”) upon arrival at the port of Oroville, Washington. Instead of pertaining to Riverside’s lumber shipment, it related to a shipment of wood veneer from a different seller to a different buyer. Copies of both invoices were submitted with the protest.

The shipment was released under BRASS/line release pursuant to a special permit for immediate delivery. Seven days later, on May 22, 2002, the International Trade Administration, U.S. Department of Commerce, instructed the Bureau of Customs and Border Protection (“CBP”) to suspend liquidation of various softwood lumber products from Canada, and to collect cash antidumping duty (“ADD”) and countervailing duty (“CVD”) deposits for merchandise covered by the scope of the case orders (A-122-838 and C-122-839). The scope included lumber classified under subheading 4407.10, HTSUS.

Riverside’s broker filed the entry summary for the lumber shipment on May 29, 2002, reflecting a classification for wood veneer, not softwood lumber. This incorrect classification was derived from the information that was on Invoice B. The entry summary also reflected the importer and ultimate consignee information as it appeared on that invoice. The error was discovered when the party who had issued Invoice B reported a “double billing” by its broker, presumably for the filing of two separate entries for the same shipment of veneer.

The protestant, through its broker, filed a corrected entry summary on July 22, 2002, as well as a letter of explanation. Accurate importer of record, ultimate consignee, and manufacturer identification information, as well as a product description and tariff number for softwood lumber, were now on the corrected CF 7501. Also reflected was an amended entry date of May 15, 2002.

On August 2, 2002, CBP signaled its intent to reject the entry summary, indicating on an Entry/Summary Rejection Sheet that the merchandise was subject to ADD and CVD under cases A-122-838 and C-122-839. The protestant was instructed to correct the CF 7501 and to pay applicable dumping duties. CBP noted that the merchandise had been released under immediate delivery procedures, and as such, had an entry date pegged to the time of summary filing. The entry summary was in fact rejected on September 3, 2002.

The protestant filed the subject protest on September 17, 2002. It challenges CBP’s decision to reject the entry summary on September 3, 2002.

The protestant makes two arguments in its protest. First, that the incorrect invoice was provided to CBP inadvertently by a third party (the carrier) over whom Riverside had no control. Second, that had the third party provided the correct invoice to CBP as Riverside expected, the shipment would have been treated as an entry, rather than as a release under immediate delivery procedures, and as a result would not have been subject to ADD and CVD. In support of its second argument, the protestant draws attention to the fact that its broker had, by letter dated April 19, 2002, notified CBP of its intent to elect entry rather than immediate delivery procedures for all shipments released on or after May 6, 2002 up until June 30, 2002, which contained merchandise covered by the scope of A-122-838 and C-122-839. Such advance notification of a change in election of entry or immediate delivery for BRASS/line release shipments is permitted under 19 CFR § 142.51.

The protestant further states that the carrier’s submission of Invoice B was nothing more than a simple clerical error or mistake of fact. It points to the fact that, during the period of May 10th through the 22nd, 2002, Riverside imported over 150 shipments of lumber, all of which were released under entry as opposed to immediate delivery procedures. The protestant also objects to the fact that while CBP is requiring Riverside to change some of the information on the entry, such as merchandise description and classification, CBP refuses to accept an amended entry date. Riverside asks CBP to withdraw its rejection of the amended entry summary and to accept the merchandise as having been entered on May 15, 2002, with neither ADD nor CVD requirements attaching to the merchandise in question.

An inquiry on January 14, 2003, to the import specialist who processed this entry revealed that the entry which is the subject of this protest was accepted by Customs subsequent to the initial rejection, although estimated ADD and CVD have not been deposited. The entry has not been liquidated.

ISSUE:

Whether CBP’s rejection of an entry summary, which was subsequently accepted, is a protestable decision?

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); In the case at hand, Riverside is protesting CBP’s decision to reject the corrected entry summary. This decision is not a protestable matter, because notwithstanding the initial rejection of the entry summary, the entry is currently in accepted status. A claim that the merchandise was excluded from entry thus cannot be sustained. The protestant’s failure to present a protestable issue must result in the protest being DENIED. This decision would not preclude the filing of another protest at such time that a decision subject to protest is made by CBP.

HOLDING:

A decision by Customs to reject an entry summary that was subsequently accepted does not give rise to a protestable decision. Consequently, the protest is DENIED.

Sincerely,

Glen E. Vereb
Chief

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