VES-13-18 CO:R:IT:C 112045

Deputy Assistant Regional Commissioner
Classification and Value Division
ATTN: Regional Vessel Repair Liquidation Unit
New York, New York 10048-0945

RE: Vessel Repair; 19 U.S.C. 1466; Application for Relief; Vessel Repair Entry No. 514-3004541-2; S/S RESOLUTE V-43

Dear Sir:

This letter is in response to your memorandum of December 13, 1991, which forwards for our consideration the above- referenced Application for Relief from the assessment of vessel repair duties submitted by Farrell Lines Inc.

FACTS:

The record reflects that the subject vessel, the S/S RESOLUTE, arrived at Elizabeth, New Jersey, on July 30, 1991. Vessel repair entry, number 514-3004541-2, was filed on August 1, 1991, indicating work performed on the vessel at Valletta, Malta. The vessel owner was granted a 30 day extension to file an application for relief, which was subsequently filed on October 8, 1991. We are asked to review the dutiability of the following items:

Part I Drydocking and General Services

Part II Tests, Inspections, and Surveys: Items 3, 13, and 18. We also review the dutiability of items 4, and 12.

Part III Repairs: Items 26, 29, 49, 50, 107, 115, and 118.

ABS Surveys: (a) Drydocking Survey, (c) Port Boiler Survey, and (d) Starboard Boiler Survey

ISSUE:

Whether the foreign work performed on the subject vessel for which the applicant seeks relief is dutiable under 19 U.S.C. 1466.

LAW AND ANALYSIS:

Title 19, United States Code, section 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.

Part I Drydocking and General Services

In the case of United States v. George Hall Coal Co., 134 F. 1003 (1905), it was held that any of various types of expenses associated with foreign shipyard operations are classifiably free from the assessment of duty, regardless of the character of the overall shipyard work (repair vs. modification). The case found that the expense of drydocking a vessel is not a repair cost. Drydocking is not an isolated expense, and is commonly associated with numerous others. These may include, but are not limited to, sea water supply (for firefighting capability), fresh water supply, hose hook-up and disconnection, fire watch services, shore power hook-up, etc.

Further, pursuant to CD 1836 charges for drydocking, for furnishing electricity, air and water, fees paid for the use of tugs and pilots in drydocking and undocking a vessel, and crane expenses are not dutiable repairs if segregated on the invoice. The various drydocking and general services costs of items 1 and 2(a) - (v), in the amount of $87,798, are therefore not dutiable. However, the cost of obtaining a gas free certificate constitutes an ordinary and necessary expense incident to repair operations and is accordingly dutiable. C.I.E. 1188/60. The charge, though, should be apportioned between the costs which are to be remitted and those for which relief is not warranted, and duty assessed on that portion of the charge applicable to items which are not being remitted.

Part II (tests, inspections, and surveys) and the ABS Surveys {(a) Drydocking Survey, (c) Port Boiler Survey, (d) Starboard Boiler Survey} involve similar issues and will be discussed together.

Certain vessel inspection operations are generally considered non-dutiable. Where periodic surveys are undertaken to meet the specific requirements of, for example, a classification society or insurance carrier, the cost of the surveys is not dutiable even when dutiable repairs are effected as a result thereof. C.S.D. 79-277. With increasing frequency, this ruling has been utilized by vessel owners seeking relief not only from charges appearing on an ABS or U.S. Coast Guard invoice (the actual cost of the inspection), but also as a rationale for granting non-dutiability to a host of inspection-related charges appearing on a shipyard invoice. In light of this continuing trend, we offer the following clarification.

C.S.D. 79-277 discussed the dutiability of certain charges incurred while the vessel underwent biennial U.S. Coast Guard and ABS surveys. That case involved the following charges:

ITEM 29 (a) Crane open for inspection. (b) Crane removed and taken to shop. Crane hob and hydraulic unit dismantled and cleaned. (c) Hydraulic unit checked for defects, OK. Sundry jointings of a vessel's spare renewed. (d) Parts for job repaired or renewed. (e) Parts reassembled, taken back aboard ship and installed and tested.

In conjunction with the items listed above, we held that a survey undertaken to meet the specific requirements of a governmental entity, classification society, or insurance carrier is not dutiable even when dutiable repairs are effected as a result of the survey. We also held that where an inspection or survey is conducted merely to ascertain the extent of damages sustained or whether repairs are deemed necessary, the costs are dutiable as part of the repairs which are accomplished (emphasis added).

It is important to note that only the cost of opening the crane was exempted from duty by reason of the specific requirements of the U.S. Coast Guard and the ABS. The dismantling and cleaning of the crane hob and hydraulic unit was held dutiable as a necessary prelude to repairs. Moreover, the testing of the hydraulic unit for defects was also found dutiable as a survey conducted to ascertain whether repairs were necessary. Although the invoice indicated that the hydraulic unit was "OK," certain related parts and jointings were either repaired or renewed. Therefore, the cost of the testing was dutiable.

We emphasize that the holding exempts from duty only the cost of a required scheduled inspection by a qualifying entity (such as the U.S. Coast Guard or the American Bureau of Shipping). In the liquidation process, Customs should go beyond the mere labels of "continuous" or "ongoing" before deciding whether a part of an ongoing maintenance and repair program labelled "continuous" or "ongoing" is dutiable.

Moreover, we note that C.S.D. 79-277 does not exempt repair work done by a shipyard in preparation of a required survey from duty. Nor does it exempt from duty the cost of any testing by the shipyard to check the effectiveness of repairs found to be necessary by reason of the required survey.

Turning to the case before us, upon careful review of the ABS surveys, particularly the drydock, port boiler, and starboard boiler surveys, it appears that the surveys are periodic surveys undertaken to meet the specific requirements of the classification society. The costs associated with item 3 (rudder pintle and stock) and item 18 (boiler examination) involve opening these areas for inspection purposes. We find that although repair work to these areas was performed, the repair and inspection costs of the repairs are properly segregated from the periodic inspection costs; therefore, item 3, item 18, and the drydock, port boiler, and starboard boiler surveys are non-dutiable. (The ABS surveys of the "repair to port and starboard boilers" and "repair to H.P. turbine steam nozzle chest" are dutiable).

The applicant contends that item 4 ("tailshaft examination"), and item 12 (propeller polishing), constitute costs associated with a nondutiable periodic survey pursuant to ABS requirements. 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). 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.

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.

Accordingly, we find that the work performed in item 4 and item 12 goes beyond mere cleaning operations, and constitutes maintenance; therefore, items 4 and 12 are dutiable. Item 13 (boiler cleaning) is also dutiable. By the fact that dutiable repairs to the boiler occurred, the cleaning done beforehand was clearly in preparation of, and an integral part of the repairs that followed.

Part III Repairs

Pursuant to C.D. 1830 examinations, inspections and cleaning which involve no dutiable elements, to include repair or maintenance, are not dutiable. Accordingly, we agree with the applicant that items 49, 50, 107, 115, and 118 listed on Malta invoice No. 003354, which solely involved cleaning operations not performed in conjunction with dutiable repairs, are non-dutiable.

Customs has consistently held that transportation charges of parts, equipment, or machinery to and from the job are not dutiable as expenses of repairs, if properly segregated from the repair charges. C.D. 1836; C.I.E. 204/60; C.I.E. 518/63; C.I.E. 1325/58. Further, as a general rule, the cost of erecting and removing staging is not subject to duty. Headquarters Ruling Letter 106827, dated July 19, 1984. Because the cost for the transport of parts and staging is segregated from the repairs conducted, all such costs, with the exception of items 26 and 29, are not dutiable.

Pursuant to C.I.E. 1325/58 and C.I.E. 565/55, duties may not be remitted where the invoice does not segregate the dutiable costs. Because items 26 and 29 only list costs for transportation and staging, and not for the repairs performed, we find that these costs are not properly segregated, and therefore the entire item is dutiable.

HOLDING:

The costs for drydocking and general services under Part I are non-dutiable. Under Part II and the ABS Surveys, the costs of item 3, item 18, and the drydocking, port boiler, and starboard boiler surveys are non-dutiable because the repair and inspection costs of the repairs relating to these areas are properly segregated. Item 13 is dutiable as cleaning done integral to repairs. Items 4 and 12 are dutiable because the operations conducted constitute maintenance. Under Part III, items 49, 50, 107, 115, and 118 are non-dutiable as cleaning operations not involving repairs. Staging and transportation costs are non-dutiable, except where not properly segregated (items 26 and 29).

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch