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HQ 967027




July 1, 2005

CLA-2: RR:CR:TE 967027 BtB

CATEGORY: CLASSIFICATION

TARIFF NO.: 4407.10.0015

Port Director
U.S. Customs and Border Protection
111 West Huron Street
Room 603
Buffalo, NY 14202
Attention: Sharon M. Swiatek

RE: Application for Further Review of Protest 0901-03-100165

Dear Port Director:

This is in reply to your correspondence forwarding the application for further review (AFR) of Protest No. 0901-03-100165, filed by Grove, Jaskiewicz and Cobert, on behalf of Promobois GDS, Inc.

Protest No. 0901-03-100165 was filed on May 23, 2003 and is against U.S. Customs and Border Protection’s classification of lumber on twenty-seven entries from March 19, 1999 through July 3, 2000. The protest was timely filed for twenty-six of the entries (4 of which liquidated on February 28, 2003 and 22 of which liquidated on March 21, 2003), but not for one entry which liquidated on April 26, 2002.

FACTS:

Protestant entered the merchandise subject to this protest under subheading 4407.99.0047, HTSUS, as rough aspen, with a country of origin designation as “CA” (Canada) at a free rate of duty. CBP issued a notice of rate advance on the entries on January 27, 2003, notifying the protestant that the merchandise was properly classified under subheading 4407.10.0015, HTSUS, as not treated mixtures of spruce, pine, and fir, with a country of origin designation as “CA” (Canada) at a free rate of duty and subject to the U.S./Canadian Softwood Lumber Agreement. The entries liquidated, with the merchandise classified under subheading 4407.10.0015, HTSUS, on February 28, 2003 or March 21, 2003. Protestant filed a protest with an application for further review on May 23, 2003, challenging CBP’s classification of the merchandise.

On August 20, 2004, Promobois submitted an offer in compromise in which Promobois agreed, among other terms, to withdraw Protest No. 0901-03-100165 in exchange for full and complete settlement of all U.S. Customs and Border Protection (CBP) civil and potential civil claims against it in connection with all of the entries and issues relating to lumber made by Promobois during the period from April 1, 1996 through March 31, 2001, through the ports of Highgate Springs, Vermont, Buffalo, New York and Champlain, New York. CBP accepted this offer in compromise on June 21, 2005.

ISSUE:

What is the disposition of a protest that has been withdrawn?

LAW AND ANALYSIS:

The Customs Regulations provide that “[i]n determining whether to allow or deny a protest filed within the time allowed, a reviewing officer may consider . . . additional grounds or arguments submitted in writing by the protesting party . . . ." (19 C.F.R. § 174.28). In this case, Promobois submitted an offer in compromise, which was accepted by CBP. Pursuant to the terms of this offer in compromise, Promobois has agreed to withdraw Protest No. 0901-03-100165.

However, the Customs Regulations do not provide for the withdrawal of protests. See generally Headquarters Ruling (HQ) 544878 and HQ 545549, both dated June 1, 1994. When a protest is withdrawn, it results in a denial of the protest.

HOLDING:

The Protest should be DENIED.

In accordance with Section IV of the Customs Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision.

No later than 60 days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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