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HQ 112031

February 7, 1992

VES-13-18-CO:R:IT:C 112031 LLB

CATEGORY: CARRIER

Deputy Assistant Regional Commissioner
Classification and Value Division
ATTN: Regional Vessel Repair Liquidation Unit 6 World Trade Center
New York, New York 10048

RE: Vessel repair; Supplemental Petition for Review; Pre- liquidation filing; Protest procedures; Vessel EXPORT FREEDOM; Vessel repair entry number 514-3003356-6

Dear Sir:

This is in response to your memorandum of December 9, 1991, which forwards for our review and decision a letter from Farrell Lines, Inc., which is submitted as a Supplemental Petition for Review in order to appeal an earlier decision issued by Headquarters in regard to the above-captioned entry.

FACTS:

Customs Headquarters had occasion to review documentation with regard to this vessel repair entry when it was submitted as an Application for Relief (Ruling Letter 110741, December 3, 1990), and later as a Petition for Review (Ruling Letter 111494, September 24, 1991). Based upon the findings issued in the second letter, the entry was liquidated on November 22, 1991 and reliquidated on December 13, 1991. The document which is the subject of the present appeal is dated November 14, 1991, eight days prior to the initial liquidation. Three items are appealed, but no specific justification or evidence of any kind is provided. Instead, we are presented with unsupported "proposals" as to the amount which should be dutiable.

ISSUE:

Whether the vessel operator has presented an appeal which is reviewable, both in terms of format and sufficiency of evidence.

LAW AND ANALYSIS:

The Customs Regulations provide specific administrative review and liquidation procedures. Interested parties are offered the opportunity to submit an Application for Relief from vessel repair duties, followed by a petition for review from an adverse initial ruling (19 CFR 4.14 (d)(1) and (2), respectively). The regulations further provide that once the petitioning party is informed of the decision on the petition, the liquidation of the entry shall be promptly initiated (19 CFR

Any appeal remaining to a vessel operator after the first two reviews detailed above is a post-liquidation process. Customs formerly implemented a bifurcated appeal process for post-liquidation matters, depending upon whether an appeal related to a classification matter, or whether it involved remission issues arising under subsection (d) of the vessel repair statute (19 U.S.C. 1466(d)). The need for any such distinctions was ended, however, by the decision of the Court of International Trade in the case of Penrod Drilling Co. v. United States, 727 F. Supp. 1463 (C.I.T. 1989). In that decision it was made clear that all post-liquidation appeals of vessel repair issues should be made by following the protest procedures set forth in section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514).

In practice, since the Customs Regulations still provide for the now superfluous Supplemental Petition procedures, Customs has been treating such timely-filed appeals as protests. This is not possible in the present matter for the reason that the operator has already utilized the only two pre-liquidation procedures available (Application and Petition). The present document was filed prior to liquidation of the entry in question, a practice outside the allowable limits as established under regulation.

HOLDING:

For the reasons stated in the Law and Analysis portion of this ruling, the matter under review may not be decided on the merits. This decision should be immediately communicated to the vessel operator, and that party should be informed of the right to file a protest under 19 U.S.C. 1514. Since the entry in question was reliquidated on December 13, 1991, the operator has until March 12, 1992, to file. Any protest must be received by Customs on or before that date.

Sincerely,

B. James Fritz
Chief

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