HQ 0110955 - Protest No. 1601-8-000050; Vessel Repairs; Non-compliance With Protest Requirements - United States International Trade Commision Rulings

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HQ 110955

September 26, 1990

VES-13-18 CO:R:P:C 110955 BEW

CATEGORY: CARRIER

Deputy Assistant Regional Commissioner
Commercial Operations Division
ATTN: Vessel Repair Liquidation Unit
New Orleans, Louisiana 70130

RE: Protest No. 1601-8-000050; Vessel Repairs; Non-compliance With Protest Requirements

Dear Sir:

This is in reference to a memorandum dated March 27, 1990, from your office which transmitted protest No. 1601-8-000050, relating to vessel repair entry No. C16-0005081-4, concerning the M/V NEDLLOYD HUDSON, Voyage No. 01, which arrived at the port of Charleston, South Carolina, on April 27 1988. The entry was filed on the same day.

FACTS:

The M/V NEDLLOYD HUDSON is one of twelve econship class vessels newly acquired by Sea-Land Service, Inc., that were in long-term lay-up due to the bankruptcy of their former owners. Upon its acquisition by Sea-Land the M/V NEDLLOYD HUDSON was drydocked for extensive work performed foreign. Subsequent to the completion of the aforementioned foreign work, the subject vessel first arrived in the United States at Charleston, South Carolina, on April 27, 1988.

A vessel repair entry covering the voyage in question was timely filed on April 27, 1988. A request for an extension of time until July 26, 1988, to file an application and supporting documentation was granted. A second request for such an extension was denied. The application and supporting documentation were not submitted within the allotted time. The entry was subsequently liquidated based on Sea-Land's own estimate on the CF 226 but appropriately adjusted to protect the revenue. The invoices covering the work in question were finally submitted on September 6, 1988. A timely protest filed on November 9, 1988, protesting the liquidation of the entry which
was liquidated on September 30, 1988, in the amount of $1,000,000. The protest was partially granted and on January 5, 1990, the entry was reliquidated in the amount of $228,102.25. A second protest was filed on January 31, 1990.

ISSUE:

Whether the protest meets the statutory requirements of 19 U.S.C. 1514.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466 provides, in pertinent part, for payment of duty in the amount of 50 percent ad valorem on the cost of foreign repairs to vessels documented under the laws of the United States to engage in foreign or coastwise trade, or vessels intended to engage in such trade.

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.

Under the provisions of title 19, United States Code, section 1514(c)(1), a protest of a decision under subsection (a) of this section shall be filed in writing with the appropriate Customs officer designated in regulations prescribed by the Secretary, setting forth distinctly and specifically each decision described in subsection (a) of this section as to which protest is made; each category of merchandise affected by each such decision as to which protest is made; and the nature of each objection and reasons therefor. Only one protest may be filed for each entry of merchandise, except where the entry covers merchandise for different categories, a separate protest may be filed for each category.

Section 174.13(a)(5) of the Customs Regulations (19 CFR 174.13(a)(5)), provides that a protest shall contain a specific description of the merchandise affected by the decision as to which protest is made. Section 174.13(a)(6) of the Customs Regulations (19 CFR 174.13(a)(6)) provides that a protest shall set forth the nature of, and justification for the objection set forth distinctly and specifically with respect to each category, payment, claim, decision, or refusal.

In the subject case, the protest was granted in part and denied in part, and the entry was reliquidated on January 5, 1990. Section 1514(b)(1) limits an importer to filing one protest to contest all administrative decisions arising our an entry comprising one category of merchandise. Inasmuch as the first protest covered all categories of merchandise, the protestant's second protest is improperly filed (see Webcor Electronics v. United States, 1977, 442 F.Supp. 95, 79 Cust. Ct. C.D. 4725). Under Customs Regulations, a protest may be amended prior to final determination, however, under the provisions of section 174.31 of the Customs Regulations, any person whose protest has been denied in whole or part, may contest the denial by filing a civil action in the United Stated Court of International Trade in accordance with 28 U.S.C. 2632 within 180 days after -

(a) The date of mailing of notice of denial, in whole or in part, of a protest, or

(b) The date a protest, for which accelerated disposition was requested, is deemed to have been denied in accordance with section 174.22(d).

The statute plainly requires the filing of one protest on each category of merchandise. Inasmuch as the first protest protested each catagory of merchandise, the protestant has exhausted its administrative remedies. Accordingly, subject protest is denied on the basis that it has been improperly filed.

HOLDING:

The subject protest is denied in that it does not meet the requirements set forth in 19 U.S.C. 1514.

Sincerely,

Stuart P. Seidel
Director, Regulatory Procedures

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