VES-13-18 CO:R:P:C 110911 BEW

Deputy Assistant Regional Commissioner
Commercial Operations
ATTN: Regional Vessel Repair Liquidation Unit
New York, New York 10048-0945

RE: Philadelphia Vessel Repair Entry No. C11-008616-9 dated November 16, 1989, M/V SEA LION, Voyage No. 23. Application; maintenance repairs; inspection and cleaning; cleaning scavenger air boxes; warranty; owner-supplied spare parts; Customs and Trade Act of 1990; P.L. 101-382; 19 U.S.C. 1466; 19 U.S.C. 1466(h); 19 CFR 4.14

Dear Sir:

This is in reference to a memorandum dated March 5, 1990, from your office which transmitted an application for relief from duties filed by Crowley Maritime Corporation relating to vessel repair entry No. C11-0008616-9, concerning foreign repairs performed on the M/V SEA LION, voyage 23.

This document contains information relating to owner- supplied spare parts which should not be released to the public or other offices at this time. Please do not distribute this document to the public or such offices.

FACTS:

The record shows that the shipyard work in question was performed on the subject vessel in Brazil during the month of October 1989. The subject vessel arrived in the United States at the port of Philadelphia, Pennsylvania, on November 12, 1989.

The entire vessel repair entry involves a potential duty of $2,145.

The applicant claims that relief for the subject items should be granted because the items should be classified as nondutiable items covered under title 19, United States Code, section 1466 and section 4.14 of the Customs Regulations.

You have requested our advice concerning repairs listed on the following invoices:

Imperio Servico Maritimos Invoice No.

Sulzer do Brasil S.A. Invoice No.

Sulzer do Brasil S.A. Invoice

Oficina Romana Ltda. Invoice

ISSUE:

Whether the foreign work performed on the subject vessel is dutiable under 19 U.S.C. 1466.

LAW AND ANALYSIS:

Section 466, Tariff Act of 1930, as amended (19 U.S.C. 1466) 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 foreign or coastwise trade, or vessels intended to engage in such trade.

With regard to the invoice from Imperio Servico Maritimos relating to the cleaning of engine scavenger air boxes, the scavenger air spaces on Sulzer Diesel Engines are subject to an accumulation of carbon deposits. This is a potential fire hazard and should be maintained according to the Sulzer maintenance manual specifications.

In T.D. 43322 which discussed the dutiability of maintenance painting, the court stated:

It is a matter of common knowledge that the words "maintain" and "maintenance" are frequently used in the sense of keeping a thing in good condition by means of "repairs". For example, to maintain a highway, ordinarily, means to keep it in a proper state of repair. Obviously, "maintenance," whether used in connection with a ship or other thing, means to keep or preserve in a good condition. This may, and frequently does, involve the making of repairs.

Cleaning operations which remove rust and deterioration or worn parts, and which are a necessary factor in the effective restoration of a vessel to its former state of preservation, constitute vessel repairs (See C.I.E. 429/61). Insofar as the cleaning of the scavenger air boxes is concerned, Customs has long held the cost of cleaning is not dutiable unless it is performed as part of, in preparation for, or in conjunction with dutiable repairs or is an integral part of the overall maintenance of the vessel; see C.I.E.'s 18/48, 125/48, 910/59, 820/60, 51/61, 429/61; 569/62, 698/62; C.D. 2514; T.D.'s 45001 and 49531. Pursuant to C.I.E. 919/60 remission of duty assessed on the cost or repairs is not warranted under section 1466 where the repairs are maintenance in nature. Accordingly, we find that the cleaning of scavenger air boxes constitutes maintenance and therefore is dutiable.

The Customs and Trade Act of 1990 (Pub. L. 101-382) which amends 19 U.S.C. 1466, exempts from duty under the statute, the cost of spare repair parts or materials which have been previously imported into the United States as commodities with applicable duty paid under the Harmonized Tariff Schedule of the United States. The amendment specifies that the owner or master must provide a certification that the materials were imported with the intent that they be installed on a cargo vessel documented for and engaged in the foreign or coasting trade. Customs also requires that the certification include the statement that the importation be intended for installation aboard the vessel of the certifying company. Further, proof of tariff duty payment upon importation must be supplied by law. Customs permits proof of this element by the recordation on the vessel repair entry (CF 226) of the consumption entry number and the name of the U.S. port of importation.

With regard to the remaining three invoices, the applicant claims that the costs were for labor performed by representatives from Sulzer on the Engine Bridge Control and the changing of a No. 7 cylinder liner. It further claims that the subject items were warranty repairs and the costs will be charged to Sulzer, Savannah, Georgia.

Section 1466 assesses liability for duty on the cost of repairs made in a foreign country. There is no proviso excepting that cost when it is either prepaid or paid in the United States. Customs has long held that repairs covered by a service agreement contract are dutiable under section 1466 even though the vessel owner was not charged for the repairs. We note however, that in the case of Sea-Land Service, Inc. v. United States, 683 F. Supp. 1404 (1988), the Court addressed whether repair work performed on a newly constructed vessel subsequent to its delivery to the owner might be considered to be part of the new construction contract. Simply put, the Court considered whether "completion of construction" is a viable concept so as to render the duty provisions of 19 U.S.C. 1466(a) inapplicable if proven. The Court found completion of new construction to be a valid concept, subject to specific conditions, which are:

1. "All work done and equipment added [must be] pursuant to the original specifications of the contract for the construction of the vessel ...."

2. "This basic standard is limited to work and equipment provided within a reasonable period of time after delivery of the vessel."

Absent evidence indicating that the warranty repairs are considered to be part of the new construction contract, work done under a warranty agreement is considered repairs under the vessel repair statute and the cost thereof is dutiable. (See also C.S.D. 81-50). Accordingly, we find that the costs associated with the labor and repairs listed on the following invoices to be dutiable:

Sulzer do Brasil S.A. Invoice

Sulzer do Brasil S.A. Invoice

Oficina Romana Ltda. Invoice

With regard to the owner-supplied No. 7 cylinder liner, there is no certification and documentation submitted with this entry to substantiate the fact of payment of duty under the Harmonized Tariff Schedules of the United States (HTSUS) for foreign parts imported into the United States for consumption and then installed abroad or evidence that the subject item is a U.S. part produced or manufactured in the U.S. Accordingly, the cost of the No. 7 cylinder liner is also dutiable.

HOLDING:

1. The cleaning of scavenger air boxes of carbon deposits constitutes maintenance and therefore is a dutiable repair under 19 U.S.C. 1466.

2. Absent evidence indicating that the warranty repairs are considered to be part of the new construction contract, work done under a warranty agreement is considered repairs under the vessel repair statute and the cost thereof is dutiable. The work performed under the Sulzer do Brasil S.A. invoices and the Oficina Romana Ltda. invoice is dutiable.

3. The cost of foreign-labor required for the installation of all parts that are installed abroad, irrespective of origin, is dutiable. The cost of the materials is duty exempt where the evidence is sufficient to substantiate the fact of payment of duty under the HTSUS for foreign parts imported into the United States for consumption and then installed abroad, or that the subject item is a U.S. part produced or manufactured in the U.S. Since the applicant has not submitted the above stated evidence to sustain that either duty has been paid on or the No. 7 cylinder liner is of U.S. origin, the cost of the No. 7 cylinder liner is dutiable.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch