CBP Ruling H025902

HQ H025902 November 21, 2012 VES-13-18 OT:RR:BSTC:CCR H025902 DAC CATEGORY: Carriers CBP Supervisory Import Specialist c/o Vessel Repair Unit U.S. Customs and Border Protection 423 Canal Street, Suite 246 New Orleans, LA 70130 RE: Court of Appeals for the Federal Circuit Judgment and Decision, 2012-1163; Court of International Trade Slip Op. 11-141, 08-cv-00009; Vessel Repair Entry No. 410-0077010-1; HORIZON CRUSADER; V-213; Protest No. 2002-2007-100858; Revocation of CBP Ruling H015615, Oct. 23, 2007; 19 CFR § 177.12(d)(1)(iv). Dear Sir: FACTS: This letter is in response to the publication of the final decision and judgment of the Court of Appeals for the Federal Circuit ("CAFC") regarding Horizon Lines, LLC v. United States, (docket no. 2012-1163), affirming the Court of International Trade ("CIT") decision regarding Horizon Lines, LLC v. United States, (docket no. 08-cv-00009), concerning the M/V HORIZON CRUSADER and vessel repair entry no. 410-0077010-1. ISSUE: Whether in accordance with the Court judgments, CBP Ruling H015615, dated October 23, 2007 is revoked and all of the subject duties must be refunded. LAW AND ANALYSIS: In accordance with CBP Regulations at 19 CFR § 177.12(d)(1)(iv), which provides, in pertinent part: (d) Exceptions to notice requirements -(1) Publication and issuance not required. The publication and issuance requirements set forth in paragraphs (b) and (c) of this section are inapplicable in circumstances in which a Customs position is modified, revoked or otherwise materially affected by operation of law or by publication pursuant to other legal authority or by other appropriate action taken by Customs in furtherance of an order, instruction or other policy decision of another governmental agency or entity pursuant to statutory or delegated authority. Such circumstances include, but are not limited to, the following: * * * (ii) Promulgation of a treaty or other international agreement under the foreign affairs function of the United States; * * * (iv) Subject to the provisions of § 152.16 of this chapter, the rendering of a judicial decision which has the effect of overturning the Customs position; 19 CFR § 177.12(d)(1)(ii),(iv). (emphasis added.) CBP determined in HQ Ruling H015615, dated October 23, 2007, that some of the services performed on the HORIZON CRUSADER were dutiable repairs and not modifications. However, the Court of International Trade held that all the services performed were modifications, stating the following: The work performed on the Horizon Crusader was solely undertaken to comply with the Convention, and as a matter of law, any repairs effected were incidental and irrelevant to the nature of the work. Horizon Lines, LLC v. United States, (Ct. Int'l Trade), Slip Op. 11-141, 08-cv-00009, p. 5, November 18, 2011. Additionally, the Court of International Trade entered judgments including the following: ORDERED, ADJUDGED and DECREED... ...that judgment be, and hereby is, entered in favor of the Plaintiff [Horizon Lines, LLC]; ...that the vessel expenses at issue in this case are non-dutiable; ...that the appropriate United States Customs and Border Protection officials shall reassess the duties at issue in accordance with the judgment of the court; ...that the appropriate United States Customs and Border Protection officials shall refund to Plaintiff all excess duties together with interest as provided by law. Horizon Lines, LLC v. United States, (Ct. Int'l Trade), Slip Op. 11-141, 08-cv-00009, pp. 5-6, November 18, 2011. Subsequently, the Court of Appeals for the Federal Circuit affirmed the judgment of the CIT. See Horizon Lines, LLC v. United States, (Fed. Cir.) 2012-1163, November 9, 2012. Therefore, in accordance with the decisions and judgments of the Courts, by operation of law, CBP Ruling H015615, dated October 23, 2007, is revoked. See 19 CFR § 177.12. Additionally, any other decisions or rulings inconsistent with Horizon Lines are revoked by operation of law. See Horizon Lines, LLC v. United States, (Ct. Int'l Trade) Slip Op. 11-141, 08-cv-00009, November 18, 2011. Horizon Lines, LLC v. United States, (Fed. Cir.) 2012-1163, November 9, 2012. Accordingly, we determine that Customs and Border Protection officials shall expedite compliance with the aforementioned published decisions and judgments of the Courts. HOLDING: In conclusion, in accordance with 19 CFR § 177.12, the decisions and judgments of the Courts, and by operation of law, CBP Ruling H015615, dated October 23, 2007, is revoked. See 19 CFR § 177.12. Additionally, any other decisions or rulings inconsistent with Horizon Lines are revoked by operation of law. Horizon Lines, LLC v. United States, (Ct. Int'l Trade) Slip Op. 11-141, 08-cv-00009, November 18, 2011. Horizon Lines, LLC v. United States, (Fed. Cir.) 2012-1163, November 9, 2012. Finally, CBP shall expedite complete compliance with the aforementioned published decisions and judgments of the Courts. Sincerely, George Frederick McCray Supervisory Attorney-Advisor/Chief Cargo Security, Carriers and Restricted Merchandise Branch Office of International Trade, Regulations & Rulings U.S. Customs and Border Protection 1 4