VES-13-18-CO:R:IT:C 112211 GFM

Deputy Director
Commercial Operations
Pacific Region
One World Trade Center
Long Beach CA 90731

RE: Cleaning; Computer services; Consulting services; Consumable items; Emoluments; Foreign labor; Gas-free certificate; Inspection; Lubricants; Marine chemist; Modification; Survey; Transportation; U.S. Parts; Vessel repair

Vessel: SEA-LAND DISCOVERY V-41 Vessel Repair Entry No. 110-0104186-9 Date of Arrival: August 19, 1991 Port of Arrival: Tacoma, WA

Dear Sir:

This is in response to your memorandum of April 9, 1992, which forwards for our review an application for relief filed in connection with the above captioned vessel. Our findings are set forth below.

FACTS:

The record reflects that the above-captioned vessel, the SEA-LAND DISCOVERY, underwent foreign shipyard operations at Jurong, Singapore, from March 13, 1991 to August 2, 1991. After receiving an extension, vessel operator timely filed an application for relief on November 18, 1991.

ISSUE:

Whether the cost of foreign shipyard work completed aboard the subject vessel is dutiable pursuant to 19 U.S.C. 1466. LAW AND ANALYSIS:

Title 19, United States Code, section 1466(a) provides, in pertinent part, for payment of duty in the amount of 50 per cent 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.

Item 100 MARINE WAREHOUSE REMOVAL....................$ 10,414.00

This item represents charges for valves and bolts in connection with one warehouse removal notice. 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 and duty paid under the Harmonized Tariff Schedule of the United States (HTSUS). 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.

The certification required by 19 U.S.C. 1466(h)(2) as to the vessel's documentation (foreign or coasting trades) and service will be made by the master on the vessel repair entry (CF 226) at the time of arrival. The fact of duty under the HTSUS for a particular part must be evidenced as follows: In cases in which the vessel operator or a related party has acted as the importer of foreign materials, or where materials were imported at the request of the vessel operator for later use by the operator, the vessel entry will identify the port of entry and the consumption entry number for each part installed on the ship which has not previously been entered on a CF 226. In cases in which the vessel operator has purchased imported materials from a third party in the United States, a bill of sale for the materials shall constitute sufficient proof of prior importation and HTSUS duty payment. This evidence of proof of importation and payment of duty must be presented to escape duty and any other applicable consequences.

In addition, we require certification on the CF 226 or accompanying documents by a person with direct knowledge of the fact that an article was imported for the purpose of either then- existing or intended future installation on a company's vessels.

In regard to this item, no bill of sale or other document evidencing prior importation and duty payment is presented. The record contains only a marine warehouse removal notice which does not indicate country of origin. Accordingly, the cost of this item ($10,414.00) is dutiable.

Item 105 SPREADSHEETS FOR SHIPYARD REPAIRS...........$ 1,200.00

Customs has had occasion to consider the dutiability of such 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 (see Customs Ruling 112091, May 20, 1991). Item 105 represents charges for computer services incurred during the repair process. Such services are clear examples of "emoluments" and are, as such, dutiable.

Item 140 CONSULTING ON AUTOMATION....................$ 3,627.00 Item 161 PROFESSIONAL CONSULTING SERVICES............$ 22,522.00

With regard to professional services rendered by American labor at a foreign shipyard on behalf of an American shipping company, the relevant statute, 19 U.S.C. 1466(h), indicates that remission will lie in cases where American-manufactured equipment is utilized or where goods were previously imported and duty-paid. The Customs Service has determined that section (h) specifically provides that foreign vessel repair duties will be remissible if "the owner or master of such vessel furnishes good and sufficient evidence that such equipments or parts thereof or repair parts or materials, were manufactured or produced in the United States, and the labor necessary to install such equipments or to make such repairs was performed by residents of the United States, or by members of the regular crew of such vessel."

In Customs Ruling Letter 112069 (May 21, 1992), the Customs Service ruled that the statute's language contains a conjunctive which mandates the fulfillment of two requirements before duties will be remitted. First, the repair parts utilized must be of U.S.-origin; and second, the repairs must be effected by U.S.- labor.

Item 140 represents charges for professional consulting services provided by an American consultant at a foreign shipyard. Regarding this item, the invoice indicates that spare parts were shipped contemporaneously with the consultant to the foreign shipyard. However, although it is clear that equipment was utilized by an American laborer, no evidence is presented concerning the origin of that equipment. As previously stated, such purchases require evidence of U.S. manufacture or previous importation and duty payment. As no such evidence is presented, we hold the cost of the entire item ($3,627.40) dutiable.

Item 161 also represents charges for professional consulting services provided by an American consultant at a foreign shipyard. Regarding this item, the invoice indicates that spare parts were shipped contemporaneously with the consultant to the foreign shipyard. However, no equipment was utilized during the course of these activities. Again, based on the holding in Customs Ruling 112069, such charges for services which lack the contemporaneous use of American-manufactured or duty-paid parts are held to be dutiable. Accordingly, with the exception of the charges which relate exclusively to travel, the cost of the item ($15,925.00) is dutiable.

Item 162 SUPERVISION OF TURBINE REPAIRS..............$ 19,249.00

This item represents additional charges for repairs conducted by an American technician sent foreign. In this case, the invoice clearly states that a "solenoid part repair kit" was transshipped with the technician. The invoice further delineates the repairs undertaken and provides a connection between the repairs made and the equipment sent. Accordingly, as sufficient evidence was provided to show that these repairs were effected by an American laborer using equipment of American origin, the entire cost of the item ($19,249.00) is non-dutiable.

Item 171 LUBRICANTS..................................$ 4,025.00

This item represents charges for main engine oil which applicant contends was consumed during the return trip to the United States and not used in the course of foreign repairs. Applicant seeks to have this item declared classifiably free from duty as a consumable supply. "Consumable supplies" are generally defined as "supplies for the consumption, sustenance, and medical needs of the crew and passengers during the voyage" H.E. Warner, Trustee v. United States, 28 CCPA 143, at 150, C.A.D. 136 (1940), quoting Southwestern Shipbuilding Co. v. United States, 13 Ct. Cust. App. 74, T.D. 40934 (1925). Consumable supplies are not generally subject to vessel repair duties unless used in effecting dutiable repairs (C.I.E. 196/60). In C.I.E. 18/49, it

was determined that oil such as that in question constitutes a consumable supply that is classifiably free from duty. On this authority, we hold the entire cost of this item ($4,025.00) to be non-dutiable.

Item 180 HIGH & LOW PRESSURE TURBINE COUPLING Sub-item 4.1006..................................$ 1,260.00 Sub-item 4.1007..................................$ 1,260.00

In reviewing these items, we note that the shipyard invoice states that, in addition to preparing these items for inspection, "new neoprene rubber (was) installed of proper size to fit for oil leak free gland ends of covers" of both the high and low pressure couplings. The Customs Service has held that when costs of various items are not segregated or separately shown, but are consolidated, duty will be assessed on the entire cost even though certain items may be non-dutiable (see C.I.E. 565/55, C.I.E. 1325/58 and C.D. 1836). Here, the cost of dutiable repairs is incorporated into the cost of preparing for inspection. Accordingly, we find the amount listed for these items ($2,520.00) to be dutiable.

Item 180 PORT AND STARBOARD BOILER MOUNTING INSPECTION Sub-item 4.1019..................................$ 13,506.00

Regarding this item, we note that the shipyard invoice indicates that, after completion of a required inspection, "(the bonnets were) closed in good working order with new gasketing and owner-furnished bonnet seal rings." In addition, an extensive list of spare parts is included in this item with no explanation regarding their deployment. The Customs Service has held that when costs of various items are not segregated or separately shown but are consolidated, duty will be assessed on the entire cost even though certain items may be non-dutiable (see C.I.E. 565/55, C.I.E. 1325/58 and C.D. 1836). Here, the cost of dutiable repairs is incorporated with the cost of a required inspection, an item which we have held to be non-dutiable. Accordingly, in the absence of a segregated cleaning charge, the entire inspection charge ($13,506.00) is dutiable.

Item 180 RECEIVING, TRANSPORTING, AND RIGGING OF MATERIAL Sub-item 5.10181.................................$ 5,250.00 Sub-item 5.10182.................................$ 2,250.00

These items represent charges for transportation, rigging, and cleaning of operation tubes, refractory items, and other material. As previously stated, when remission is sought for transportation or cleaning, such charges must be clearly segregated on the invoice. Applicant seeks to have these items considered non-dutiable on the basis that they constitute transportation costs. According to C.I.E. 1325/58, charges for transportation of parts and materials between a vessel and a workshop are not dutiable if itemized separately. Moreover, it is the position of the Customs Service that "transportation" does not include operations relative to preparing the item for shipping. Thus, labor for such services as removing a part from its housing or mounting, or disconnecting an item, etc., does not constitute transportation and are thus, dutiable. With respect to the case at hand, the invoice contains consolidated transportation charges and includes charges for services which may not be included in transportation costs. Accordingly, the entire cost of the items ($7,500.00) is dutiable.

Item 180 REFRACTORY REMOVAL AND DISPOSAL Sub-item 5.10191.................................$ 5,100.00

This item represents charges for "removal of all boiler refractory material" pursuant to "extensive port boiler renewals" which were performed in preparation for repairs. The Customs Service has long held that cleaning operations performed in preparation for, or as an integral part of, repair work are dutiable (see C.I.E. 51/61). As a result, the entire charge for this item ($5,100.00) is dutiable.

Item 180 GENERATOR STOP VALVE GRATING Sub-item 5.1033..................................$ 1,125.00

This item represents charges for installation of a "readily removable (metal) grate...to prevent walking on insulation." The applicant contends this charge should be non-dutiable as a modification. Over the years, the definition of what constitutes a modification has evolved from judicial and administrative precedents. In considering whether an operation is a modification 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 Unites States v. Admiral Oriental

Line et al., T.D. 44359 (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. This element should not be given undue weight in view of the fact that vessel components must be welded or otherwise "permanently attached" to the ship as a result of constant pitching and rolling. It follows that a "permanent attachment" takes place that does not necessarily involve a modification to the hull and fittings.

2. Whether, in all likelihood, an item under consideration would remain aboard a vessel during an extended layup.

3. Whether, if not a first time installation, an item under consideration replaces a current part, fitting or structure which is not in good working order.

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

Regarding this item, we are convinced that it is designed to be utilized as a permanent part of the vessel. The fact that it may be removed to provide access will not, in this case, detract from its nature as a permanent fixture. As a result, the entire cost of the item ($1,125.00) is non-dutiable.

Item 180 AIR EJECTOR CONDENSER COOLING Sub-item 5.1036..................................$ 1,396.00

Applicant also seeks to have this item considered duty-free on the basis that it constitutes a modification. Applicant claims that this activity involves the addition of a main air ejector recirculation line that will improve the operation of the condensate recirculation system. Applicant claims this to be a permanent vessel addition which does not replace any piping. We find that this item does constitute a modification which enhances the operation and efficiency of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($1,396.00) is non-dutiable.

Item 180 BILGE PUMP DISCHARGE CONNECTION Sub-item 5.1051..................................$ 8,686.00

Applicant seeks to have this item considered duty-free on the basis that it constitutes a modification. Applicant claims that this activity involved the installation of a new slop discharge connection on the main deck and piping from the bilge pump discharge line to allow discharge ashore in compliance with new U.S. Coast Guard regulations. We find that this item constitutes a modification which enhances the operation and efficiency of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($8,686.00) is non-dutiable.

Item 180 OILY BALLAST DISCHARGE VALVES Sub-item 5.1052..................................$ 2,250.00

Applicant seeks to have this item considered duty-free on the basis that it constitutes a modification. Applicant claims that this activity involves the permanent addition of blanks in three overhead discharge lines to satisfy U.S. Coast Guard regulations and to protect against inadvertent overboard discharge of oil. We find that this item constitutes a

modification which enhances the operation of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($2,250.00) is non- dutiable.

Item 180 #1 and #2 FUEL OIL HEATERS Sub-item 5.2009..................................$ 3,918.00

Applicant seeks to have this item considered duty-free on the basis that it constitutes inspection and cleaning charges undertaken pursuant to an inspection required by a regulatory body. The record states that labor and materials were provided to remove the heaters from the vessel, transport them to the shop, clean them and test them. As previously indicated, C.I.E. 429/61 states, "expenses which are incurred in conducting inspections made subsequent to the repairs, so as to ascertain whether the work has been properly performed, are dutiable as integral parts of the expenses of repairs although separately itemized." In the case of this item, no segregation of testing costs exists and as a result, the entire cost of the item ($3,918.00) is dutiable.

Item 180 SSTG EXHAUST EQUALIZER LINES Sub-item 5.2012..................................$ 520.00

Applicant seeks to have this item considered duty-free on the basis that it constitutes a modification. This activity involves the installation of additional piping surrounding each of the 24-inch exhaust valves to allow for pressure equalization. We find that this item constitutes a modification which enhances the operation of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($520.00) is non-dutiable.

Item 180 DECK BITTS MODIFICATION Sub-item 5.2022..................................$ 6,252.00

Applicant seeks to have this item considered duty-free on the basis that it constitutes a modification. This activity involves the fabrication and installation of deck bitts in a different location than the existing ones. Applicant contends that installation of bitts at a different point on the vessel qualifies as a modification since it is an addition to the vessel. Applicant argues further that such action does not constitute a replacement of wasted or defective parts as the removed cleats were in good condition. As this item was not performed to replace equipment in poor working order but was performed to enhance the operation of the vessel, we find that, in accordance with the previously enumerated guidelines, it constitutes a modification. Accordingly, the entire cost of the item ($6,252.00) is non-dutiable. Item 180 RADAR MAST ACCESS WALKWAY Sub-item 5.2031..................................$ 4,742.00

Applicant seeks to have this item considered duty-free on the basis that it constitutes a modification. This activity involves the permanent installation of a steel walkway to improve safety in accessing the radar mast. We find that this item constitutes a modification which enhances the operation of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($4,742.00) is non- dutiable.

Item 180 HATCH COVER UPGRADE Sub-item 5.2053..................................$ 71,666.00

Applicant seeks to have this item considered duty-free on the basis that it constitutes a modification. This activity involves the upgrade of hatch covers to increase their weight capacity. We find that this item constitutes a modification which enhances the operation of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($71,666.00) is non-dutiable.

Item 180 X-RAY CHARGES Sub-item 5.2155..................................$ 2,650.00

Applicant seeks to have this item considered non-dutiable on the basis that such charges were incurred pursuant to an inspection required by a regulatory body. The activity in question involved charges for x-rays allegedly required as part of an ABS hull inspection. C.D. 79-277 states that "[where a] survey was undertaken to meet the specific requirements of a governmental entity, classification society, insurance carrier, etc., the cost is not dutiable even if dutiable repairs were effected as a result of the survey." Further, C.D. 79-277 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).

Regarding this item, although the shipyard invoice indicates that x-rays were taken, there is no mention of such x-rays in the ABS survey documentation. Moreover, it is not clear from the shipyard invoice whether the x-rays were necessitated by the ABS inspection or whether they were performed in order to discover defects as a prelude to repairs. If the applicant wishes to submit additional documentation in a petition clarifying the nature of these x-rays, we will reconsider our position on this item. In the interim, however, we find the entire cost of this item ($2,650.00) to be dutiable.

Item 180 ELECTRICAL AND PIPING MODIFICATIONS Sub-item 904.1...................................$ 2,250.00 Sub-item 904.2...................................$ 11,000.00

Applicant seeks to have these items considered duty-free on the basis that they constitute modifications. These activities involve the installation of an oily slops handling system to comply with U.S. Coast Guard safety regulations. We find that these items constitute modifications which enhance the operation of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire combined cost of the items ($13,250.00) is non-dutiable.

Item 180 SIDE PORT DOOR MODIFICATION Sub-item 910.....................................$ 12,300.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This activity involves the installation of inward-opening side port doors which will replace existing outward-opening doors. We find that this item constitutes a modification which enhances the operation of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($12,300.00) is non-dutiable.

Item 180 SALT WATER SERVICE PIPING REGULATING LINE Sub-item 911.....................................$ 15,338.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This activity involves the installation of a system designed to regulate salt water service pump pressure. We find that this item constitutes a modification which enhances the operation of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($15,338.00) is non- dutiable.

Item 180 TANK COMBINATION MODIFICATIONS/NEW COFFERDAM Sub-item Deep 5..................................$ 52,350.00 Sub-item CD New..................................$ 21,720.00

Although these items are claimed to be duty-free modifications, the applicant has submitted no evidence indicating that the work was part of a new design feature, and not as a replacement or restoration of parts now performing a similar function. The only evidence indicating the nature of the work performed is contained on the shipyard invoice. Item "Deep 5" involves combining the No. 5 D.B. tank with the No. 5 deep tank

according to shipyard drawings. Item "CD New" involves the installation of new cofferdams between frames 156 and 157 of the double bottom hull. In light of the brief descriptions provided by the invoice, and in the absence of such drawings in the record, we are unable to conclude that the work performed constituted modifications to the hull and tanks of the vessel. Accordingly, the entire combined cost of both items ($74,070.00) is dutiable.

Item 180 STACKING PEDESTALS Sub-item HC & CM.................................$ 16,800.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This activity involves the installation of hatch cover stacking pedestals to permit stacking hatch covers on top of the other. Applicant claims that such modifications began in the United States, but were completed in Singapore. We find that this item constitutes a modification which enhances the operation of the vessel in accordance with the above enumerated guidelines. Accordingly, the entire cost of the item ($16,800.00) is non-dutiable.

Item CLEANING OF FUEL OIL TANKS Sub-item 181 DI-0113.............................$ 63,205.00 Sub-item 188 DI-0131.............................$139,170.00 Sub-item 193 DI-0156.............................$ 37,230.00 Sub-item 198 DI-0164.............................$256,530.00 Sub-item 224 DI-0211.............................$ 22,043.00 Sub-item 236 DI-0226.............................$ 10,660.00 Sub-item 256 DI-6833.............................$ 22,000.00

Applicant asserts that the cost of these items should not be dutiable as they were unrelated to any repairs. The Customs Service held in C.I.E. 51/61 that cleaning operations are not subject to duty unless performed in preparation for, or as an integral part of repairs. The relevant shipyard invoices state that each of the above items involves a cleaning operation which was conducted pursuant to a required inspection by regulatory bodies. Accordingly, such items would normally be non-dutiable. Here, however, close examination of the shipyard invoices indicates that several entries were submitted concerning fuel oil tank cleaning. Each of the above items represents "cleaning of fuel oil tanks" but the invoices fail to indicate with a satisfactory degree of specificity the exact tanks cleaned and which inspections they were cleaned pursuant thereto. Accordingly, due to the lack of adequate indicia of segregation, each of the items enumerated above is fully dutiable.

Item 192 CLERICAL ASSISTANCE Sub-item DI-0154.................................$ 5,600.00

As previously stated in this ruling, in accordance with Customs Ruling 111170, the Customs Service maintains that certain overhead charges constitute "emoluments" which are dutiable. In that ruling, we relied on T.D. 55005(3) (December 21, 1959) in holding that "emoluments" include items such as wages, taxes, accounting fees, office space charges, inventory or mark-up costs, purchasing costs, and management fees (see Customs Ruling 112091, May 20, 1991). Item 192 represents charges for a computer operator's services for the months of April, May, and June, 1991. It is clear that such charges are "emoluments received by third parties for services rendered" as part of the contract for foreign shipyard services. Accordingly, the entire cost of the item ($5,600.00) is dutiable.

Item 194 BURNER REGISTER MODIFICATION Sub-item DI-0159.................................$ 5,970.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This activity involves the installation of a Worcester actuator system. We find that this item constitutes a modification which enhances the operation of the vessel in accordance with the previously enumerated guidelines. Accordingly, the entire cost of the item ($5,970.00) is non-dutiable.

Item 202 SURVEYS Sub-item DI-6903.................................$ 1,360.00 Sub-item DI-6902.................................$ 1,472.00 Sub-item DI-0176.................................$ 1,227.00 Sub-item DI-0176.................................$ 1,398.00 Sub-item DI-0176.................................$ 1,710.00 Sub-item DI-6903.................................$ 16,112.00 Sub-item DI-0176.................................$ 2,007.00 Sub-item DI-0176.................................$ 4,369.00

Applicant asserts that these items should be non-dutiable as required inspections or surveys. C.S.D. 79-277 stated, "[i]f the survey was undertaken to meet the specific requirements of a governmental entity, classification society, insurance carrier, etc., the cost is not dutiable even if dutiable repairs were effected as a result of the survey."

With increasing frequency, this ruling and subsequent rulings citing it, have been utilized by vessel owners seeking relief not only from charges appearing on an ABS or 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, 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 are necessary. Although the invoice indicates 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 (ABS). 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 from duty the cost of maintenance or repair work done by a shipyard in preparation of a required survey. Nor does it exempt from duty the cost of any testing by the shipyard to check the effectiveness of repairs completed previous to, or found to be necessary by reason of, the required survey.

Looking to the items in question, it is urged that they be considered non-dutiable as required surveys. Each is followed on the invoice by a long list of both dutiable and non-dutiable transactions. In addition to survey entries indicating that repairs were made, an addendum consisting of three pages of transactions entitled "structural repairs" is attached to the survey report. From the documents submitted, it is impossible to ascertain whether the repairs in question were made in anticipation of the surveys, made in order to test repairs made as a result of inspections, or made as a result of the survey's recommendation. As the determination as to the dutiability of each survey cannot be made without additional information, each of the above surveys must be held dutiable.

Item 222 CLERICAL AND COMPUTER SERVICES Sub-item DI-0208.................................$ 2,855.00

As previously stated in this ruling, pursuant to Customs Ruling 111170, the Customs Service maintains that certain overhead charges constitute "emoluments" which are dutiable. Item 222 represents charges for computer and clerical services for the months of July, 1991. It is clear that such charges are "emoluments received by third parties for services rendered" as part of the contract for foreign shipyard services. Accordingly, the entire cost of the item ($2,855.00) is dutiable.

Item 232 AIR CONDITIONING Sub-item DI-0222.................................$ 7,125.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This activity involves the installation of an air conditioner on the bridge where one had not been before. We find that this item constitutes a modification which enhances the operation of the vessel in accordance with the above enumerated guidelines. Accordingly, the entire cost of the item ($7,125.00) is non- dutiable.

Item 245 MAINTENANCE AND REPAIRS/ABS SURVEY Sub-item DI-0237.................................$ 9,045.00

Applicant asserts that these items should be considered non- dutiable inspections or surveys within the meaning of Customs Letter Ruling 105047 (June 10, 1981). Specifically, that ruling stated, "[i]f the survey was undertaken to meet the specific requirements of a governmental entity, classification society, insurance carrier, etc., the cost is not dutiable even if dutiable repairs were effected as a result of the survey."

In so holding, the ruling exempts from duty the cost of a required inspection by a qualifying entity (such as the U.S. Coast Guard or the American Bureau of Shipping). The ruling does not include repair work done by a shipyard in preparation for a required survey. Nor does it include any testing by the shipyard to check the effectiveness of repairs found to be necessary by reason of the required survey. Moreover, in C.I.E. 429/61 we held that when inspections in the nature of surveys disclose items which result in non-dutiable repairs, the charges are dutiable.

Turning to the case before us, we note the invoice indicates that, in addition to the inspection performed, systems engineers and instrument mechanics supplied labor for maintenance and repairs which included "[taking valves back to a workshop for overhaul]." Additionally, the valves were "reassembled and tested...in the workshop." Accordingly, the cost of the item ($13,162.55) less the stated cost for transportation ($120.00) equals the amount of ($13,042.55) which is fully dutiable.

Item 247 DE-IONIZED WATER Sub-item DI-0239.................................$ 34,400.00

This item represents charges for de-ionized water utilized during boiler repair and welding operations. Applicant seeks duty-free status for this item on the ground that the water is a consumable item. As stated previously in this ruling, "consumable supplies" are generally defined as "supplies for the consumption, sustenance, and medical needs of the crew and passengers during the voyage" H.E. Warner, Trustee v. United States, 28 CCPA 143, at 150, C.A.D. 136 (1940), quoting Southwestern Shipbuilding Co. v. United States, 13 Ct. Cust. App. 74, T.D. 40934 (1925). Consumable supplies are not generally subject to vessel repair duties, unless used in effecting dutiable repairs (C.I.E. 196/60). From the documentation submitted, it is unclear whether the de-ionized water was a consumable item or merely a necessary appurtenance to said boiler repairs. In the face of such equivocal documentation, we must hold the entire cost of the item ($34,400.00) dutiable.

Item 254 MARINE CHEMIST SERVICES Sub-item 1.10022.................................$ 9,952.00 Item 256 MARINE CHEMIST SERVICES Sub-item 2.10022.................................$ 1,187.00 Item 274 MARINE CHEMIST Sub-item 1.002...................................$ 12,561.00

Each of these items represents charges for the services of a certified marine chemist incurred in acquisition of a gas-free certificate. Applicant seeks duty-free status for these items on the ground that they constitute a charge normally associated with the cost of drydocking. According to C.I.E. 1188/60, charges for drydocking, for furnishing electricity and air and water to the vessel, and fees paid for the use of tugs and pilots in drydocking and undocking are not subject to duty. However, C.I.E. 1188/60 further states that "the cost of obtaining a gas- free certificate constitutes an ordinary and necessary expense incident to repair operations and is accordingly dutiable. In liquidation, this charge should be apportioned between the costs which are to be remitted and those for which relief is not warranted, and duty [should attach] to that portion of the charge applicable to items which are not being remitted." Accordingly, the combined cost of each of these items ($23,700.00) should be reliquidated in accordance with those guidelines.

Item 254 FUEL OIL TANK VENTS Sub-item 3.1050..................................$ 1,904.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This activity involves the installation of a section of pipe to allow installation of fuel oil containments. Applicant claims that this action will improve safety and enhance the operation of the vessel in accordance with the above enumerated guidelines. We believe this to be the case and hold the entire cost of the item ($1,904.00) to be non-dutiable.

Item 254 HATCH COVER STOOL FABRICATION Sub-item 3.1059..................................$ 31,200.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This item involves the fabrication of hatch cover stacking pedestals which permit the stacking hatch covers on top of the other. We find that this item constitutes a modification which enhances the operation of the vessel and find accordingly that the entire cost of the item ($32,200.00) is non-dutiable.

Item 254 SPECIAL PURPOSE NAVIGATION LIGHTS Sub-item 3.1072..................................$ 9,682.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This item involves the fabrication of a mount for the flying bridge navigation lights which were previously run up the halyard line. We find that this item constitutes a modification which enhances the operation of the vessel and find accordingly that the entire cost of the item ($9,682.00) is non-dutiable.

Item 254 LONGITUDINAL HATCH COAMING VOIDS Sub-item 3.1085..................................$ 28,050.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a modification. This item involves the installation of hatch plates over void tops to help prevent corrosion in voids. We find that this item constitutes a modification which enhances the operation of the vessel and find accordingly that the entire cost of the item ($28,050.00) is non- dutiable.

Item 256 REFIT AND REPAIR OF SERVICE PROPELLER Sub-item 2.1015..................................$ 7,050.00

Applicant seeks to have this item considered non-dutiable on the basis that it constitutes a transportation cost. The shipyard invoice states that this item involves the removal of the in-service propeller, its rigging to the pier, its loading out for repairs, and upon completion of repairs, its rigging to the dock and fitting into position. As previously stated, when remission is sought for transportation or cleaning, such charges must be clearly segregated on the invoice. Additionally, prepatory costs in anticipation of transportation are not includible in transportation costs. With respect to the case at hand, no separate itemization of the transportation charges exists; they are lumped together with the charges for repair functions. Moreover, the item contains charges for work impermissibly categorized as transportation costs. Accordingly, the entire cost of the item ($7,050.00) is dutiable.

Item 273 SEAL SERVICING Sub-item DI-6905.................................$ 4,135.00

Applicant seeks to have this item considered duty-free on the basis that it constitutes a repair performed pursuant to a required inspection by regulatory bodies. The item represents labor charges for technical services allegedly made pursuant to an ABS inspection. No supporting documentation is supplied which supports this representation. As a result, the entire cost of the item ($4,135.00) is dutiable. HOLDING:

After thorough review of the evidence presented, and as detailed in the Law and Analysis portion of this ruling, the application for relief is granted in part and denied in part.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch