HQ 0111486 - Vessel Repair; Entry Number C15-0008525-8; Protest Number 1501-90-000062; Date of Liquidation; Supplemental Petition; LASH Barges; Mother Vessel; S/S GREEN VALLEY, V-33 - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1992 HQ Rulings > HQ 0111336 - HQ 0111554 > HQ 0111486

HQ 111486

October 23, 1991

VES-13-18-CO:R:IT:C 111486 LLB

CATEGORY: CARRIER

Deputy Assistant Regional Commissioner
Commercial Operations Division
423 Canal Street
New Orleans, Louisiana 70130-2341

RE: Vessel Repair; Entry Number C15-0008525-8; Protest Number 1501-90-000062; Date of Liquidation; Supplemental Petition; LASH Barges; Mother Vessel; S/S GREEN VALLEY, V-33

Dear Madam:

Reference is made to your memorandum of January 15, 1991, forwarding a protest, executed on Customs Form 19, from the operators of the above-named vessel (Protest No. 1501-90-000062).

FACTS:

In August, 1984, the Central Gulf Lines LASH vessel, the SS GREEN VALLEY, and its complement of LASH barges were chartered by the Navy's Military Sealift Command (MSC) for a period of two to four years of continuous military service at Diego Garcia in the Indian Ocean. Under the charter, all of the vessels were to be delivered at Subic Bay in the Philippines, with laydays for the barges specified as September 10-15, 1984, and for the GREEN VALLEY as September 24-October 1, 1984.

At the time the charter was awarded by MSC in August, 1984, the GREEN VALLEY was in Egypt, having just completed a commercial voyage from the United States. All of the LASH barges required by the charter were likewise located aboard the GREEN VALLEY overseas. Under the terms of the charter, the GREEN VALLEY and each barge were subject to inspection upon delivery, and each had to be in condition to "remain on station for four years", and to be able "to operate without further inspection for at least two years from delivery".

Since the GREEN VALLEY and all of the required LASH barges were overseas and located far from the United States when the charter was awarded by MSC in August, 1984, it was impossible for Central Gulf to return them to this country to obtain the services and equipment required by the charter and still arrive at Subic Bay in the Philippines by the September/October 1 delivery dates mandated by the charter. Consequently, Central Gulf had to comply with the Charter's requirements by procuring all of the prescribed services, alterations, refittings and equipment in foreign countries while the vessels were en route from their overseas locations in mid-August, 1984, to the Navy's designated delivery station in the Philippines.

Central Gulf was thus able to meet all of the charter requirements and still deliver the GREEN VALLEY and its 73 LASH barges to the Navy at Subic Bay on time in 1984. There, the vessels were accepted by the Navy and they continuously operated under the MSC charter at Diego Garcia in the Indian Ocean for a period of four (4) years. During that entire period, none of the vessels returned to the United States. However, the MSC charter terminated, and on October 24, 1988, the GREEN VALLEY and its barges reentered this country at Sunny Point, North Carolina.

The operations connected with this vessel repair entry have twice been before Headquarters. The Application for Relief was considered in case number 110184 (August 10, 1989), and the Petition for Review was decided in case number 110799 (June 21, 1990). The matters now before Customs Headquarters on Protest concern broad categories of dutiability rather than questions regarding particular repair operations.

ISSUE:

The specific issues presented for resolution are:

1. Whether the posting of the bulletin notice of liquidation equates with the entry being "finally liquidated" within the contemplation of the newly amended vessel repair statute (19 U.S.C. 1466(h)), as expressed in the legislative history.

2. Whether an exemption from duty is justified in the case of foreign shipyard operations being performed pursuant to the orders and specifications of the Military Sealift Command.

3. Whether the filing of a Supplemental Petition for Review covering issues other than remission of duty is problematic.

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 documented under the laws of the United States to engage in the foreign or coastwise trade, or vessels intended to be employed in such trade.

On August 20, 1990, the President signed into law the Customs and Trade Act of 1990 (Pub. L. 101-382), section 484E of which amends the vessel repair statute by adding a new subsection (h). Subsection (h) has two elements, which are as follows:

(h) The duty imposed by subsection (a) of this section shall not apply to--

(1) the cost of any equipment, or any part of equipment, purchased for, or the repair parts or materials to be used, or the expense of repairs made in a foreign country with respect to, LASH (Lighter Aboard Ship) barges documented under the laws of the United
States and utilized as cargo containers, or

(2) the cost of spare repair parts or materials (other than nets or nettings) which the owner or master of the vessel certifies are intended for use aboard a cargo vessel, documented under the laws of the United
States and engaged in the foreign or coasting trade, for installation or use on such vessel, as needed, in the United States, at sea, or in a foreign country, but only if duty is paid under appropriate commodity classifications of the Harmonized Tariff
Schedule of the United States upon first entry into the United States of each such spare part purchased in, or imported from, a foreign country.

The effective date of the amendment is stated as follows:

Effective Date.--The amendment made by this section shall apply to--

(1) any entry made before the date of enactment of this Act that is not liquidated on the date of enactment of this Act, and (2) any entry made--
(A) on or after the date of enactment of this Act, and
(B) on or before December 31, 1992.

In a ruling dated March 6, 1991 (Ruling Letter 111474, addressed to this same protestant), the issue of the finality of liquidation under the newly-amended vessel repair statute was addressed. The ruling considered the retroactive impact of 19 U.S.C. 1466(h) on Customs cases involving entries made before the August 20, 1990, date of enactment. The Headquarters decision found that the term "liquidated" as used in 19 U.S.C. 1466(h) is intended to mean "finally liquidated" and that an entry is not "finally liquidated" if it is still the subject of administrative or judicial proceedings. Support for this position is found in the following: a statement from Senator Breaux concerning the amended statute (Congressional Record, April 20, 1990, p. S4715); section 514(a) of the Tariff Act of 1930 (19 U.S.C. 1514(a)) which provides, in part, that the liquidation of an entry shall be final unless a protest is timely filed, or if a court action is filed to contest denial of a protest; and Hambro Automotive Corp. v. United States, 603 F.2d 850, 853 (CCPA, 1979); United States v. Desiree Intern USA Ltd., 497 F.Supp. 264, 265 (D.C. N.Y., 1980); and Computime, Inc. v. United States, 622 F.Supp. 1083 (CIT 1985).

Upon full review of the matter we note the position stated by Senator Breaux, that being that the amendments to section 1466 "...are intended to apply to any entry made prior to the date of enactment of [the Act] which is not finally liquidated when the bill becomes law." Accordingly, for purposes of the retroactive impact of the new section 1466(h), the benefits of the legislation are extended to those entries which were not finally liquidated (i.e., for which administrative or court action was on-going) on or before August 20, 1990. Such is the case with the present matter.

With regard to the issue of the dutiability of operations required to be performed by the Military Sealift Command, Customs has long held that expenses incurred as the result of requirements imposed by a governmental entity are not remissible for that reason alone. Absent some independent grounds justifying remission, agency-ordered operations are dutiable under the statute. (See Customs Service Decision 79-272, ruling letter 103712 dated December 27, 1978). Accordingly, the claim of MSC-ordered operations advanced in this matter does not justify a finding of non-dutiability.

With regard to the final issue, that concerning the filing of a Supplemental Petition for Review, it was the position of Customs as articulated in Customs Ruling Letters 110027 of September 29, 1989, and 109671 of September 18, 1988, that a bifurcated procedure existed for final administrative appeals of vessel repair decisions, depending upon whether a particular appeal involved classification issues (expenses incurred were not for repairs or equipment purchases under section 1466(a)), or whether remission issues were the subject of appeal (those matters arising under section 1466(d)). It was our position that classification issues were subject to Protest, and that the proper filing for the appeal of remission issues was a Supplemental Petition for Review. The Court in Penrod Drilling Company v. United States, 727 F. Supp. 1463 (1989), ended distinctions between the issues of classification and remission so far as the question of appeal format is concerned by holding that all matters arising under section 1466 may be protested. In the present matter, the issues raised in the Supplemental Petition for Review may merely be made a part of the Protest under consideration.

HOLDING:

Following careful review, we have determined that the Protest is allowed in part and denied in part, and will be reliquidated in accord with the findings specified in the Law and Analysis section of this decision.

Sincerely,

Stuart P. Seidel

Previous Ruling Next Ruling