VES-13-18-CO:R:P:C 111272 GV

Deputy Assistant Regional Commissioner
Classification and Value Division
ATTN: Regional Vessel Repair Liquidation Unit
6 World Trade Center
New York, New York 10048-002980

RE: Protest No. 1001-0-201026; S.S. MORMACSTAR V-138C

Dear Sir:

This is in reference to your memorandum dated August 15, 1990, forwarding a protest regarding vessel repair entry no. C01- 0015421-7. Our findings are set forth below.

FACTS:

The S.S. MORMACSTAR is a U.S.-flag vessel owned by Wilmington Trust Company of Wilmington, Delaware. The vessel had foreign shipyard work performed during June 14-18, 1990, in Bilbao, Spain. Subsequent to the completion of the work the subject vessel arrived in the United States at Portland, Maine, on June 29, 1989.

A vessel repair entry covering the work in question was filed on the date of arrival. Several documents relating to this entry were filed with the New York Vessel Repair Liquidation Unit (VRLU) with the intention that they collectively constituted an application for relief. Upon a review of these documents by the Carrier Rulings Branch it was determined that the requirements for an application for relief as set forth in section 4.14(d)(1), Customs Regulations (19 CFR 4.14(d)(1)) were not met and that the entry should be liquidated without regard to any claim for relief (see Headquarters Ruling 110739 KVS, dated March 21, 1990).

The entry was liquidated on June 1, 1990. On June 26, 1990, a timely protest was filed claiming the following: (1) the costs of U.S.-manufactured materials are nondutiable (see Parts III.A. and III.B. of the protest); (2) the installation of a pump room bilge alarm constitutes a nondutiable modification (see Part III.C. of the protest); (3) travel expenses associated with an - 2 -

ABS survey are nondutiable (see Part III.D. of the protest); and (4) various costs incident to repairs are classifiably free under the vessel repair statute (see Part III.E. of the protest).

ISSUES:

1. Whether evidence is presented sufficient to prove that the parts and materials for which the protestant seeks relief were U.S.-manufactured and therefore nondutiable under 19 U.S.C. 1466.

2. Whether evidence is presented sufficient to prove that the installation of a bilge room pump alarm constitutes a modification so as to render the cost thereof nondutiable under 19 U.S.C. 1466.

3. Whether the remaining costs for which the protestant seeks relief are nondutiable under 19 U.S.C. 1466.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466, provides in pertinent part for the 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.

In regard to the applicant's first claim for relief, we note that the Customs and Trade Act of 1990, section 484(2), Pub. L. No. 101-382 (to be codified at 19 U.S.C. 1466(h)(2)), amended the vessel repair statute to except from duty spare repair parts or materials that have entered the United States duty-paid and are used aboard a cargo vessel engaged in foreign or coastwise trade. This amendment is inapplicable to the case under consideration in view of the fact that the applicant claims the parts in question are U.S.-manufactured and purchased.

In response to requests for advice regarding the dutiability under section of 1466 of equipments, parts, repair materials, etc., which have been manufactured and purchased in the United States for installation abroad on U.S.-documented vessels, Customs, by memorandum dated April 19, 1989, and published in the Customs Bulletin of May 10, 1989, held that the use of foreign labor to install U.S. parts subjects both the parts and labor to duty. The memorandum further held that the installation of such parts by U.S. residents or regular crew labor warrants remission pursuant to section 1466(d)(2).

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Upon further review of this matter, however, it appears that the implementation of Customs policy as set forth in the May 10, 1989, Customs Bulletin should have been preceded by the publication of a notice in the Federal Register soliciting comments from interested parties. Accordingly, until such time as said notice is published, Customs will uphold its position as delineated in T.D. 75-257, which held that where equipment, parts, repair materials, etc., which have been manufactured and purchased in the United States are installed abroad on U.S.- documented vessels by other than U.S. residents or regular crew, only the labor alone is dutiable. If the installation of such articles is performed by U.S. residents or the regular crew, remission is warranted pursuant to section 1466(d)(2).

In our adherence to the policy set forth in T.D. 75-257, however, it has come to our attention that affidavits and/or other documentation have been submitted which misrepresent the place of manufacture of the articles in question. Inasmuch as we have come to learn of this misrepresentation, it is our policy to require evidence beyond an affidavit from an interested party to establish U.S. manufacture and U.S. purchase. Therefore, we require direct evidence of U.S. manufacture (e.g., an affidavit by the equipment manufacturer) as well as U.S. purchase for relief to be granted.

In the protest currently under consideration, the protestant has submitted invoices and purchase orders. While it is apparent that this documentation is sufficient proof of U.S. purchase, it is insufficient for purposes of proving U.S. manufacture. Accordingly, absent the requisite evidence the protestant's claim with respect to these parts and materials (see Parts III.A. and III.B. of the protest) is denied. However, we will delay the final consideration of this protest for a period of 60 days from the date the protestant is notified of our decision by the New York VRLU so that direct evidence of U.S. manufacture may be submitted.

In regard to the protestant's claim that the installation of a new pump room bilge alarm (see Part III.C. of the protest) constitutes a nondutiable modification, we note the following.

A leading case in the interpretation and application of section 1466 is United States v. Admiral Oriental Line et al., 18 C.C.P.A. 137 (T.D. 44359 (1930)). That case distinguished between equipment and repairs on one hand and permanent additions to the hull and fittings on the other, the former being subject to duty under section 1466.

The Court in Admiral Oriental, supra., cited with approval an opinion of the Attorney General (27 Op. Atty. Gen. 288). That opinion interpreted section 17 of the Act of June 26, 1884, (23 Stat. 57, which allowed drawback on the vessels built in the U.S. - 4 -

for foreign account, wholly or in part of duty-paid materials. In defining equipment of a vessel, the Attorney General found that items which are not equipment are:

...those appliances which are permanently attached to the vessel, and which would remain on board were the vessel to be laid up for a long period... [and] are material[s] used in the construction of the vessel...

While the opinion of the Attorney General interpreted a provision of law other than section 1466 or a predecessor thereto, it is considered instructive and has long been cited in Customs Service rulings as defining permanent additions to the hull and fittings of a vessel.

For purposes of section 1466, dutiable equipment has been defined as:

...portable articles necessary or appropriate for the navigation, operation, or maintenance of a vessel, but not permanently incorporated in or permanently attached to its hull or propelling machinery, and not constituting consumable supplies. (T.D. 34150 (1914)).

It should be noted that the fact that a change or addition of equipment is made to conform with a new design scheme, or for the purpose of complying with the requirements of statute or code, is not a relevant consideration. Therefore, any change accomplished solely for these reasons, and which does not constitute a permanent addition to the hull and fittings to the vessel, would be dutiable under section 1466.

Accordingly, upon reviewing the record we conclude that the installation of the pump room bilge alarm constitutes a nondutiable modification.

In regard to the protestant's claim that travel expenses incurred in conjunction with an ABS survey are nondutiable (see Part III.D. of the protest), we note that while we agree with this general premise, the record does not support such a finding in this case. Specifically, the amount in question ($103.80) is not listed on the ABS survey report, and is merely listed on the ABS invoice as "EXPENSE". While there is a code number next to this listing, there is no reference table in the record to confirm that these expenses were in fact used for travel. Accordingly, the protestant's claim with respect to these alleged travel expenses is denied.

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In regard to the protestant's claims that various costs on Astilleros Espanoles, S.A. invoice no. 175/89 are classifiably free (see Part III.E. of the protest), upon reviewing this invoice we are in accord with this assessment for the following items: (1) launch service (see C.D. 1836); (2) temporary lighting; (3) air service; (4) telecommunication; and; (5) transportation. As for the gas free certificate including the itemized delay time and inspections listed separately but as a part of this item, the costs thereof shall be apportioned between dutiable and nondutiable costs pursuant to C.I.E. 1188/60 and 429/61. The remainder of the costs listed on this invoice, including the costs of cleaning, are dutiable notwithstanding the fact that the issue of dutiability of cleaning costs is currently pending before the U.S. Court of International Trade (see Texaco Marine Services, Inc. and Texaco Refining and Marketing, Inc., v. United States, Court No. 89-12-0062).

We note that the protestant has included Astilleros Espanoles, S.A. invoice no. 174/89 in the record (see Part III.F. of the protest). The entire cost of the work listed on this invoice is dutiable.

HOLDINGS:

1. The evidence presented is insufficient to prove that the parts and materials for which the protestant seeks relief were U.S.-manufactured and therefore nondutiable under 19 U.S.C. 1466. However, we will delay final liquidation of this entry for a period of 60 days from the date of notification by the New York VRLU to the protestant so that direct evidence of U.S. manufacture may be provided.

2. The evidence presented is sufficient to prove that the installation of a pump room bilge alarm constitutes a modification and therefore is nondutiable under 19 U.S.C. 1466.

3. The remaining costs for which the protestant seeks relief are dutiable under 19 U.S.C. 1466 with the exception of those items noted above.

Accordingly, the protest is granted in part and denied in part.

Sincerely,

Stuart P. Seidel
Director, Regulatory Procedures
and Penalties Division