HQ 111604: Vessel Repair; Protest; 19 U.S.C. 1514; 19 C.F.R. 174; 19 C.F.R. 177; DOCK EXPRESS TEXAS.

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 111604

                        December 30, 1991

VES-13-18   CO:R:IT:C  111604  JBW

CATEGORY:   Carriers

Sharon Steele Doyle, Esquire
Givens and Kelly
950 Echo Lane, Suite 360
Houston, Texas 77024-2788

RE:  Vessel Repair; Protest; 19 U.S.C. 1514; 19 C.F.R. 174; 19
     C.F.R. 177; DOCK EXPRESS TEXAS.

Dear Ms. Doyle:

     This letter is in response to your request that this office
reconsider a final protest decision issued by the Regulatory
Procedures and Penalties Division.

FACTS:

     The DOCK EXPRESS TEXAS is a United States-flag vessel that
arrived in the port of Norfolk, Virginia, on June 5, 1987.  Upon
arrival, the master filed a vessel repair entry that indicated
repairs were made to the vessel while in a foreign shipyard.  The
application for relief filed in conjunction with this entry
indicated that the vessel, while en route from Houston to
Alexandria, Egypt, encountered a length of mooring line that
became entangled and wrapped around the port tail shaft and
strut.  As a result, the incident caused damage to the vessel.
The vessel operator claimed that the event was a casualty and
that repairs were required to secure the safety and seaworthiness
of the vessel to enable it to reach its port of destination.  19
U.S.C. 1466(d)(1).  The cost of repair, the vessel operator
argued, was therefore subject to remission.

     The Carrier Rulings Branch denied the application in
Headquarters Ruling Memorandum 109202, dated April 14, 1988.  The
Carrier Rulings Branch again considered and denied the casualty
claim in the vessel operator's petition for review.  Headquarters
Ruling Memorandum 109625, dated August 15, 1988.  The vessel
operator filed a protest, supplemental petition for review, and a
supplemental protest in response to the ruling by the Customs
Service on the petition for review.  These documents were
considered twice by the Carrier Rulings Branch:  First, the
Chief, Carrier Rulings Branch issued an undated letter addressed
to the Deputy Assistant Regional Commissioner, Commercial
Operations Division, South Central Region that granted remission
on the casualty.  Headquarters Ruling Letter
110027/110130/110138.  This letter was published in the
microfiche of the Customs Service on December 15, 1989, but was
never forwarded to the vessel operator.  Prior to remitting the
duties, the Deputy Assistant Regional Commissioner required
further clarification on this issue and forwarded a memorandum
back to Customs Headquarters.  The supplemental petition
procedure was eliminated during this period, see Penrod Drilling
Co. v. United States, 13 C.I.T. ___, 727 F. Supp. 1463 (1989),
and the supplemental petition was thereafter considered as a
protest.  This office, operating then as the Regulatory
Procedures and Penalties Division, issued its response to the
request for clarification on the casualty issue in Headquarters
Ruling Letter 110879, dated January 25, 1991.  This second letter
denied remission on the casualty.

ISSUES:

     (1)  Whether the Customs Service may reconsider a final
protest decision.

     (2)  Whether the Customs Service has failed to follow its
administrative procedures if a field office does not notify an
importer or other interested person when requesting that Customs
Headquarters reconsider a ruling on a protest.

LAW AND ANALYSIS:

     Procedures for protests of decisions by the United States
Customs Service have been established through statute and
regulations.  Section 514, Tariff Act of 1930, as amended,
provides that decisions of appropriate customs officers relating
to, inter alia, the liquidation of an entry are final and
conclusive unless a protest is properly filed or a civil action
contesting the denial of a protest is commenced in the Court of
International Trade.  19 U.S.C.A. 1514(a) (West Supp. 1991).
The Customs Regulations state that a person whose protest has
been denied in whole or in part may contest the denial by filing
a civil action in the Court of International Trade.  19 C.F.R.
174.31 (1991).  Moreover, the Court of International Trade has
itself held that initiation of an action in the Court of
International Trade is the only recourse available following the
denial of a protest by the Customs Service.  San Francisco
Newspaper Priting Co., v. United States, 9 C.I.T. 517, 518-19,
620 F. Supp. 738, 740 (1985).  The Customs Service has authority
under specifically limited circumstance to review transactions to
reliquidate voluntarily an entry within ninety days of
liquidation (19 U.S.C. 1501), to consider petitions by domestic
interested parties (19 U.S.C. 1516), to correct clerical error,
mistake of fact, or inadvertence not amounting to an error in the
construction of the law (19 U.S.C. 1520), or to reliquidate on
account of fraud (19 U.S.C. 1521).  However, neither the statute
nor the regulations otherwise permit reconsideration of a final
protest determination.

     Counsel for the vessel operator urges this office to
reconsider on the merits its final protest decision.   The
request by counsel, however, does not fall within any of the
above-delineated statutory exceptions to the finality of a
protest denial.  The proper forum for such review is the Court of
International Trade.  We therefore decline to review on the
merits the request by counsel for reconsideration of the denial
of the protest.

     Counsel argues further that the Customs Service failed to
follow its own regulatory procedure when the Deputy Assistant
Regional Commissioner failed to notify the vessel operator that
it requested reconsideration of Headquarters Ruling Letter
110027/110130/110138.  Counsel cites section 177.11 of the
Customs Regulations in support of its argument that the vessel
operator should have been notified.  Procedures established under
Part 177 of the Customs Regulations, however, apply only to
administrative rulings relating to current or prospective
transactions.  The regulations state explicitly that rulings
under Part 177 should be distinguished from the administrative
rulings, determinations, or decisions that may be requested
under, among other specifically listed parts, the protest
procedures.  19 C.F.R. 177.0.  We therefore conclude that the
section 177.11 of the Customs Regulations did not apply to the
request by the Vessel Repair Liquidation Unit that we reconsider
Headquarters Ruling Letter 110027/110130/110138.

HOLDINGS:

     (1)  This office declines to review on the merits the
request by counsel for reconsideration of the denial of the
protest.  The request by counsel does not fall within any of the
above-delineated statutory exceptions to the finality of a
protest denial.  Furthermore, neither the statute nor the
regulations otherwise permit reconsideration of a final protest
determination.

     (2)  The Deputy Assistant Regional Commissioner was not
under an obligation to notify the vessel operator that it was
seeking a reconsideration of a Headquarters ruling on a protest.
The Customs Service acted in accordance with its regulations.


                              Sincerely,




                              Stuart P. Seidel
                              Director, International
                              Trade Compliance Division