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HQ 116347

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November 18, 2004

VES-3-18-RR:IT:EC 116347 GOB

CATEGORY: CARRIER

Chief, Vessel Repair Unit
U.S. Customs and Border Protection
423 Canal Street
New Orleans, LA 70130

RE: 19 U.S.C. 1466; Vessel Repair Entry MX9-0140010-2; Protest 2002-04-101143; M/V SEA-LAND MOTIVATOR, V-404

Dear Sir:

This is in response to your memorandum of October 22, 2004, forwarding for our review the protest filed by U.S. Ship Management with respect to Vessel Repair Entry MX9-0140010-2. Our ruling follows.

FACTS:

The M/V SEA-LAND MOTIVATOR (the “vessel”) is a U.S.-flag vessel which incurred foreign shipyard costs in Amsterdam. The vessel arrived in Charleston, South Carolina on May 15, 2004. A vessel repair entry was timely filed.

You request our review with respect to the item discussed in the LAW AND ANALYSIS section of this ruling.

ISSUE:

Whether the costs for which the protestant seeks relief are dutiable under 19 U.S.C. § 1466.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466 (19 U.S.C. 1466) provides for the payment of duty at a rate of fifty 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 be employed in such trade.

The item at issue is for the ABS surveyor/auditor to assess the vessel security program. The protestant states in pertinent part:

The disputed issue is not whether the subject costs were for work performed to comply with USCG and ABS requirements (see HQ 107096 and C.S.D. 80-195) as this was clearly identified in our original applications, but rather, why these applications for review failed to include the ABS survey report that traditionally accompanies its invoice when relief is sought.

In this unique circumstance the ABS report was the VSA. There was no additional ABS “report.” The VSA is a record containing Sensitive Security Information that is controlled under 49 CFR Part 1520 which states that no part of this record may be disclosed to persons without a “need to know,” as defined in 49 CFR 1520.5, except with the written permission of the Secretary of Homeland Security . . .

We have carefully and thoroughly considered the protestant’s claim and have requested and received additional documentation from the protestant in support of its claim. We conclude that the protestant has not submitted documentation which is sufficient to support and establish its claim for relief. In our view, the protestant has not established a basis upon which to withhold the documentation, i.e., the Vessel Security Assessment (“VSA”) or the ABS Report. The mere statement or assertion of the protestant is not sufficient. The protestant has not established a regulatory framework for withholding the documentation, i.e., it has not clearly established the applicability of the cited regulation, nor has it satisfied Customs and Border Protection (“CBP”) that there are valid legal and regulatory reasons for withholding the documentation from CBP. The protestant has provided no documentation from an objective third party in support of its claim.

Accordingly, we find that the costs of this item are dutiable.

HOLDING:

The costs for which the protestant seeks relief are dutiable under 19 U.S.C. § 1466 as discussed in the Law and Analysis section of this ruling.

You are instructed to DENY the protest with respect to this issue.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Glen E. Vereb
Chief

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