VES-13-18-CO:R:IT:C 112091 LLB

Chief, Technical Branch
Commercial Operations
Pacific Region
1 World Trade Center
Long Beach, California 90831

RE: Vessel repair; Repairs; Modifications; Survey; Overhead charges; Application for Relief; Vessel OVERSEAS VIVIAN; Entry number T99-0045985-8

Dear Sir:

Reference is made to your memorandum of February 11, 1992, which forwards for our consideration the Application for Relief from the assessment of vessel repair duties filed by counsel on behalf of the operators of the vessel OVERSEAS VIVIAN. Duties were assessed in connection with the above-referenced vessel repair entry.

FACTS:

The record reflects that the OVERSEAS VIVIAN arrived in the port of San Francisco, California, on July 25, 1991, filed a timely vessel repair entry, and supplemented that entry as required by the Customs Regulations. While in Singapore the vessel underwent drydocking, repair, survey, and modification operations. Headquarters recommendations have been sought on a total of six (6) invoice items, which are:

Worksheet page 4 - Item 147 - Lube oil purifier

Worksheet page 4 - Item 176 - Anchor windlass

Worksheet page 7 - Item 5 - Underwater survey

Worksheet page 7 - Item 19 - Diesel generator

Worksheet page 8 - Item 40 - Administrative services

Worksheet page 20 - Item 68 - Salvage Association survey

Additionally, beyond the items regarding which we were requested to provide advice, we reviewed all invoiced purchases and are in agreement with your proposed liquidation as reflected on the 20- page worksheet which you prepared.

ISSUE:

Whether the items under review constitute non-dutiable operations due to association with modification or inspectional operations rather than repair services.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466, provides in pertinent part for payment of duty in the amount 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 engage in such trade.

In its application of the vessel repair statute, the Customs Service has held that modifications, alterations, or additions to the hull and fittings of a vessel are not subject to vessel repair duties. Over the course of years, the identification of work constituting modifications on the one hand and repairs on the other has evolved from judicial and administrative precedent. In considering whether an operation has resulted in a modification that is not subject to duty, the following elements may be considered:

1. Whether there is a permanent incorporation into the hull or superstructure of a vessel (see United States v. Admiral Oriental Line, 18 C.C.P.A. 137 (1930)), either in a structural sense or as demonstrated by the means of attachment so as to be indicative of the intent to be permanently incorporated.

2. Whether in all likelihood an item under consideration would remain aboard a vessel during an extended lay-up.

3. Whether, if not a first time installation, an item under consideration constitutes a new design feature and does not merely replace a part, fitting, or structure that is performing a similar function.

4. Whether an item under consideration provides an improvement or enhancement in operation or efficiency of the vessel.

With specific reference to the items presently under consideration, we find that invoice items 147 and 176 represent charges for modification procedures. In the case of item 147 (lube oil purifier), the charges are for the installation of a second purifier where only one such purifier had been in operation previously. In the case of item 176 (anchor windlass), the charges are for the welding in place of doubler plates to provide additional strength to the area. No repair element is present. Given these circumstances, these items are considered duty-free modifications.

Customs has had occasion to consider the dutiability of so- called "overhead" charges (see Customs Ruling 111170, February 21, 1991). In that ruling, we cited a published Treasury Decision of long standing (T.D. 55005(3), December 21, 1959), wherein it was determined that:

Taxes paid on emoluments received by third parties for services rendered...and premiums paid on workmen's compensation insurance, are not charges or fees within the contemplation of the decision of the Customs Court, International Navigation Company v. United States, 38 USCR 5, CD 1836, and are therefore subject to duty as components of the cost of repairs under [section 1466].

"Emoluments" as used in the cited decision would include all wages, taxes, accounting fees, office space charges, inventory or mark-up costs, purchasing costs, and management fees. Certainly, general "administrative services" charges such as are included in the entry under consideration (invoice item 40), are considered dutiable.

Two of the items under review, while not themselves repair operations, are directly linked with dutiable procedures and are therefore subject to duty. These operations are reflected in invoice item numbers 5 and 68. Item 5, listed as an underwater survey item, involves the grit blasting of the hull. This was done in preparation for the painting of the hull as reflected in item number 6 of bill number 91/G/4/001C. Being an operation done in preparation for the dutiable painting procedure, the cost of item 5 is also considered dutiable. Item 68 represents the cost of a survey by the Salvage Association. A review of the survey report reveals that its purpose was to assess the extent or repairs necessary to the main engine, turbo alternator, and cargo pump. The recommended repairs which were carried out are dutiable, and so is the cost of the survey which preceded them.

The last item under review concerns the "diesel generator". Review of the cost at issue (invoice item 19) reveals that the charges are actually for oil and marine diesel fuel for running the generator. No repair elements are involved and thus no duty consequences attach to this item.

HOLDING:

Following a thorough review of the evidence as well as analysis of the applicable law and precedents, we have determined that of the six named items reviewed, items 5, 40, and 68 are subject to duty, and items 19, 147, and 176 are not subject to duty. For the reasons set forth in the Law and Analysis portion of this ruling, the Application for Relief is allowed in part and denied in part.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch