Protest; Vessel Repairs; Non-compliance With Protest Requirements

HQ 111271 December 7, 1990 VES-13-18 CO:R:P:C 111271 BEW CATEGORY: Carriers Chief, Residual Liquidation Branch U.S. Customs Service 6 World Trade Center New York, New York 10048-0945 RE: Protest; Vessel Repairs; Non-compliance With Protest Requirements Dear Sir: This is in reference to a memorandum dated August 11, 1990, from your office which transmitted protest No. 1001-0-000942, relating to vessel repair entry no. 514-3003125-5, concerning the S.S. SAM HOUSTON, Voyage No. 49, which arrived at the port of New York on October 19, 1987. The entry was filed on October 21, 1987. FACTS: The above-captioned protest seeks reliquidation on the basis of foreign shipyard work having been performed on certain barges which arrived on the mother ship, the S.S. SAM HOUSTON. The vessel SAM HOUSTON is a Lighter Aboard Ship (LASH) barge mother vessel. Entry No. 514-3003125-5 was filed to cover the mother vessel. A single vessel repair entry was filed to cover repairs to numerous LASH barges, each of which should have been the subject of a separate entry with unique entry number. An application for relief was filed to cover fourteen (14) barges, with no claim for relief having been submitted for the remainder of the LASH barges. Those barges for which relief is sought are as follows: WA-1-0049 WA-1-0229 WA-1-0068 WA-2-0367 WA-1-0095 WA-1-0405 WA-1-0158 WA-1-0438 WA-1-0259 WA-1-0439 WA-1-0279 WA-2-0457 WA-1-0295 LB-810 The applicant claims that the repairs were necessitated by stress of weather or other casualty. In a decision dated July 3, 1989 (HQ 109993 GV) we ruled that with regard to the invoices submitted all charges listed thereon are dutiable with the exception of the following: Barge No. WA-1-0299 P.T. Intan Sengkunzit Invoice No. 02/INREWP/VIII/1987 (charges for towing are free as are the charges for mooring and having the barge on a slipway) Barge No. WA-1-0158 P.T. Rantai Laut Invoice No. 17/BG/RL/VIII/1987 (charges for towing/drydock are free) Barge No. WA-1-0405 Then Engineering Invoice No. TES/D/2100/87/07 SD (charges for towing/drydock are free) Barge No. WA-1-0438 Then Engineering Invoice No. TES/D/2107/87/07 SD (charges for towing/drydock are free) Barge No. LB-810 Then Engineering Invoice No. TES/D/2117/87/07 SD (charges for towing/drydock are free) Barge No. WA-1-0049 Then Engineering Invoice No. TES/D/2116/87/07 SD (charges for towing/drydock and/or cleaning-cargo are free) The entry was liquidated on October 20, 1989. The protest was filed on January 26, 1990, protesting the issue of "rub/pad modifications" and barge cleaning. ISSUE: Whether the court-established elements for filing a timely protest are present in this case, as detailed in the case of Penrod Drilling Co., v. United States, 727 F.Supp. 1463 (CIT 1989). LAW AND ANALYSIS: In the case of Penrod Drilling Co., v. United States, 727 F.Supp. 1463 (CIT 1989), the Court addressed the issue of whether a protest of duties was timely filed. The Court held that the importer was on notice of liquidation of entries, for purpose of deciding whether protest was timely filed, on the date that the notice of liquidation was posted in the customhouse, and not on the date of its receipt of notice in Customs Service Bill (19 U.S.C. 1514(c)(2)(A). The court stated that the importer bears the burden of examining all notices posted in the customhouse to determine whether its goods have been liquidated, and to protest timely. It stated the importer had an obligation to file timely protest of duties and that its obligation under the statute did not end upon delivery of the requisite documents to a mail carrier service within sufficient time to reach Customs. The Court further stated that Bulletin notice is a statutorily mandated notice, and absent evidence to the contrary there is a presumption of regularity which attaches to government acts. "It is presumed that public officials perform their duties in a manner consistent with law...." Commonwealth Oil Refining Co. v. United States, 60 CCPA 162, 167, C.A.D. 1105, 480 F.2d 1352, 1357 (1973). Following liquidation, a protest may be filed against the decision to treat an item or a repair as dutiable under 19 U.S.C. 1466(a) (19 C.F.R. 4.14). Under the provisions of title 19 United States Code, section 1514, such protest of duties shall be filed within 90 days from the notice of liquidation. In the subject case, the entry was liquidated on October 20, 1989. Customs received the protest on January 26, 1990, the ninety-eighth (98th) day after the notice of liquidation. The statute plainly requires filing within ninety days. Therefore, the protest is untimely and the relief requested is denied. HOLDING: The date of liquidation generally is the bulletin notice of liquidation, and a timely protest of duties must be filed with the Customs service within 90 days of this date. Accordingly, the protest is untimely filed. We are returning your original file for your record. Sincerely, Stuart P. Seidel Director, Regulatory Procedures and Penalties Division Enclosure