VES-13-18-CO:R:IT:C 111310 KVS
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
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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
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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
Chief
Carrier Rulings Branch