HQ 111271: Protest; Vessel Repairs; Non-compliance With Protest Requirements

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 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