HQ 0111310 - Vessel repair; untimely petition; absence of evidence Vessel: NEWARK BAY V-14 - United States International Trade Commision Rulings

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HQ 111310

February 19, 1991

VES-13-18-CO:R:IT:C 111310 KVS

CATEGORY: CARRIER

Chief
Residual Liquidation and Protest Branch
6 World Trade Center
New York, NY 10048-0954

RE: Vessel repair; untimely petition; absence of evidence Vessel: NEWARK BAY V-14
Vessel Repair Entry No. 559-1236859-8
Date of Arrival: April 26, 1989
Port of Arrival: Boston, Massachusetts

Dear Sir:

This is in response to your memorandum of September 17, 1990, which transmits for our review a petition filed in connection with the NEWARK BAY, vessel repair entry no. 559- 1236859-8. Our findings are set forth below.

FACTS:

The NEWARK BAY, an American-flag vessel, underwent certain foreign shipyard operations in Rotterdam, Holland on April 16, 1989. Shortly therafter, the vessel arrived in the United States at Boston, Massachusetts on April 26, 1989 and made entry.

An application for relief was filed and forwarded to Headquarters for review and advice. The applicant was notified of our decision denying relief in part (HQ 110763) in a letter dated July 24, 1990. The petition for review currently under consideration was received by the New York Vessel Repair Liquidation Unit on August 24, 1990.

ISSUE:

Whether a petition for review filed 31 days after the date of notification of a decision by the Customs Service on an application may be considered by Customs on its merits.

LAW AND ANALYSIS:

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

The Customs Regulations provide specific time limitations addressing the submission of a petition for review seeking relief from vessel repair duties. This time period is contained in 19 CFR 4.14(d)(2)(ii), which states:

The petition for review shall be addressed to the Commissioner of Customs and shall be filed with the appropriate vessel repair liquidation unit within 30 days after the date of the written notice to the party of the decision on the application for relief, as provided in paragraph (d)(1)(v) of this section. However, if good cause is shown, the appropriate vessel repair liquidation unit may authorize one additional 30-day extension of time.

Strict adherence to filing deadlines has been upheld by the Court of International Trade. In Penrod Drilling Co. v. United States, 727 F.Supp. 1463 (CIT 1989), the Court of International Trade considered the time limits pertaining to vessel repair protests. The Court ruled that a protest filed 8 days after the 90-day statutory period and a protest sent by overnight express on the 89th day of the statutory period but received by Customs on the 91st day were properly denied as untimely filed.

In the case under consideration, although the petition for review appears to be timely by reason of the date placed upon it by the petitioner, we are informed by the regional Vessel Repair Liquidation Unit that the petition was not actually received by Customs until the following day. Although the regulations provide for the granting of a 30-day extension of time to file a petition upon application to the appropriate vessel repair liquidation unit, we find no record that an extension was either requested or granted.

We note that untimely submissions have been a recurring problem in our dealings with this vessel owner. The applicant's history of late submissions has been the topic of numerous personal meetings and we have made every attempt to put the owner on notice that conformity with the time deadlines set forth in the Customs regulations is essential.

Furthermore, we note that the petition submitted adds nothing to the application for relief, which denied relief to the item in question (inspection/consultation). The application for relief held that as no casualty had been shown to exist, the
repairs to the cylinder head were dutiable. This being the case, it would be contrary to established precedents for us to hold, as the petitioner suggests, that the inspection is non- dutiable. Alternatively, the petitioner asserts that the inspection should be non-dutiable because the repairs were ineffective. No evidence has been submitted in support of this claim and it cannot be accepted.

Parenthetically, we note that section 4.14(d)(2)(ii), Customs Regulations (19 CFR 4.14(d)(2)(ii)) requires that a petition for review filed by a corporation be signed by a duly authorized corporate officer. Here, the petition for review was signed by an employee of the petitioner whose status as a corporate officer is unclear. We trust that future submissions by the petitioner will correct this oversight.

HOLDING:

As detailed in the Law and Analysis section of this ruling, the petition for relief is denied.

Sincerely,

B. James Fritz

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