HQ 224000: Application for further review of Protest No. 4909-92- 100015; Harbor Maintenance Fee; Exempt Ports; 26 U.S.C. 4462; 19 U.S.C. 1514(a)(5)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 224000

                          June 26, 1992

ENT-1-03-CO:R:C:E 224000 CB

CATEGORY:  Entry

District Director
U.S. Customs Service
La Puntilla #1
Old San Juan, PR 00903

RE:  Application for further review of Protest No. 4909-92-
     100015; Harbor Maintenance Fee; Exempt Ports; 
     26 U.S.C. 4462; 19 U.S.C. 1514(a)(5)

Dear Sir/Madam:

     The above-referenced protest was forwarded to this office
for further review.  We have considered the points raised by your
office and the protestant.  Our decision follows.

FACTS:

     According to the file, the subject entry was liquidated on
November 22, 1991, with a change to include a harbor maintenance
fee assessment of $7, 385.86.  According to protestant the HMF
has not been paid to date.  Subsequent to the liquidation of the
subject entry, by way of a Federal Register Notice dated January
22, 1992, Customs clarified the list of ports subject to the HMF. 
Guayanilla is among those ports listed in the clarification as an
exempt port.  (See 59 Fed. Reg. 2456 (1992)).   

     The subject protest was filed on February 10, 1992. 
Protestant is requesting that the HMF assessment be rescinded on
the grounds that Customs lacked statutory authority to assess a
fee because there had been no expenditure of federal funds at
this port.

ISSUE:

     May the protest against the liquidation of the subject entry
which included an assessment of harbor maintenance fees on the
unloading of merchandise at the port of Guayanilla, Puerto Rico,
be granted in this case?

LAW AND ANALYSIS:

     Initially, we note that the protest, with application for
further review, was timely filed under the statutory and
regulatory provisions for protests (see 19 U.S.C. 1514 and  -2-


19 CFR Part 174) and that the decision protested, the liquidation
of the subject entry which included the assessment of harbor
maintenance fees, is a protestable decision (see 19 U.S.C. 1514
(a)(5) and 26 U.S.C. 4462(f)).

     The subject entry was liquidated on November 22, 1991, and
included an assessed harbor maintenance fee of $7,385.86.  The
fee has not been paid to date.  Protestant contends that Customs
lacked authority to assess the fee under the terms of the statute
because Guayanilla had not received any federal funds since 1977
and that the inclusion of Guayanilla on the subject ports was
beyond the scope of the statute.  By T.D. 92-7 the Customs
Service corrected 19 CFR 24.24.  The statutory authority for the
harbor maintenance fee is found in the Water Resources
Development Act of 1986 (Public Law 99-662; 100 Stat. 4082, 4266;
26 U.S.C. 4461 et seq.).  Under this statute, a fee is imposed
for the use of a port, defined as any channel or harbor or
component thereof in the United States which is not an inland
waterway, is open to public navigation, and at which Federal
funds have been used since 1977 for construction, maintenance, or
operation.  Consequently, the regulation was beyond the limits
set by 26 U.S.C. 4462(a)(2)(B).

     Under 19 U.S.C. 1514(a)(5), a protest may be filed as to the
liquidation or reliquidation of an entry, or any modification
thereof.  The subject entry was liquidated on November 22, 1991
and this protest was filed within 90 days of the notice of
liquidation (as required under 19 U.S.C. 1514(c)(2)(A)).  There
is no statutory requirement that  any additional duties
determined to be due at the time of liquidation must be paid
prior to filing a protest contesting such liquidation.  Under 26
U.S.C. 4462(f) (cited above), except as otherwise provided in
regulations, all administrative and enforcement provisions of the
Customs laws and regulations apply in respect to the harbor
maintenance fee as if it were a duty.  (Note: We emphasize that
although this provision makes all administrative and enforcement
provisions of the Customs laws and regulations applicable to the
HMF, it does not transform the HMF into a Customs duty (see, in
this regard, S. Rept. 99-126 (August 1, 1985) page 7, reprinted
at U.S.C.C.A.N. 6644 (1986), and H. Rept. 99-228 (January 8,
1986), pp. 3 and 10, reprinted at U.S.C.C.A.N. 6707 and 6714-
6715 (1986)).  Therefore, there is no requirement that an
importer pay any amount of a fee, treated in this limited
situation as a duty, and determined to be due on liquidation
prior to filing a protest.  

HOLDING:

     The protest against the liquidation of the subject entry,
which determined an amount of harbor maintenance fees to be due  -3-


on the unloading of merchandise at the Port of Guayanilla, is
granted.

     A copy of this decision should be attached to the Customs
Form 19 and provided to the protestant as part of the notice of
action on the protest.

                              Sincerely,




                              John Durant, Director
                              Commercial Rulings Division