VES-13-18-CO:R:IT:C 112604 DEC

Deputy Regional Director
Commercial Operations
Pacific Region
One World Trade Center
Long Beach, California 90831

RE: Vessel Repair; 19 U.S.C. 1466; Application; Modification; Alteration; Inspection; Transportation; Cleaning Vessel Repair Entry No. 718-0000421-1 Date of Entry: November 12, 1992 Date of Arrival: November 6, 1992 Port of Arrival: Portland, Oregon Vessel: ULTRASEA V-I

Dear Sir:

This letter is in response to your memorandum dated February 17, 1993, which forwards for our consideration an application for relief from vessel repair duties filed in connection with the above- referenced vessel.

FACTS: The ULTRASEA V-I, an American-flag vessel, underwent foreign shipyard operations while in Singapore at the Keppel Shipyards. Subsequent to the completion of the work performed in Singapore, the vessel arrived in the United States at Portland, Oregon on November 6, 1992. A vessel repair entry covering the foreign shipyard work was filed on November 12, 1992. An application for relief from vessel repair duties was timely filed. The following items have been submitted to this office for review.

Item Spreadsheet Description

130 Page 1 inspection and repair record 404 Page 4 fresh water evaporator #119 forepeak tank repair

-2-

341 Page 4 portable water tank #122 aft peak tank modification #171 bilge suction lines 223 Page 2 anchor chain marks 343 Page 3 life rafts 507 Page 3 economizer renewal 510 Page 3 main condenser 517 Page 4 boiler forced draft fans

Our ruling on the above-mentioned matters is set out below.

ISSUE:

Whether the cost of foreign shipyard work completed aboard the above-referenced vessel is dutiable pursuant to 19 U.S.C. 1466.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466, provides, in pertinent part, for payment of an ad valorem duty of 50 percent on the cost of foreign repairs to a vessel documented under the laws of the United States to engage in the foreign or coasting trade, or a vessel intended to be employed in such trade.

Transportation Charges

Transportation costs are ordinarily accorded duty-free treatment provided that the costs are properly documented in the invoice. A blanket entry in the invoice does not provide Customs sufficient information to make a determination with respect to dutiability. Absent a documented presentation to Customs detailing what or who was transported and the costs associated with the transport, these items shall remain dutiable.

Overhead Charges

In addition, Customs has had occasion to consider the dutiability of so-called "overhead" charges. In Customs Ruling 111170, February 21, 1991, which cited published Treasury Decision 55005(3) (T.D. 55005(3), Dec. 21, 1959) 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,

-3-

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 and unspecified "overhead" charges such as those included in the entry under consideration must be considered dutiable.

Inspection and Repair Record....$ 1600

This invoice refers to the cost associated with furnishing "draftsmen and equipment to make necessary sketch and reading report for all machinery and equipment overhauled and inspected in the shipyard period." Customs has held that a survey undertaken to meet 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 or whether repairs are deemed necessary, the costs are dutiable as part of the repairs which are accomplished. Since these items apparently relate to dutiable repairs and no mention of an entity requiring this work, relief with respect to this item is denied.

Fresh Water Evaporator $ 66,922 Transportation $ 9,650 Cleaning $ 2,420 Overhead $ 34,400

Customs has held that for an item to be characterized as a non- dutiable modification, it must encompass the installation of an item as a new design feature, not as a replacement for, or a restoration of, parts now performing a similar function (Customs Memorandum 108871 (Apr. 16, 1987)). Even if an article is considered to be part of the hull and fittings of a vessel, the repair of that article, or the replacement of a worn part of the hull and fittings, is subject to vessel repair duties (see C.I.E. 233/60). Installations made to a vessel for the purpose of replacing malfunctioning parts currently performing the same or similar function cannot be characterized as a non-dutiable modification and are held to be dutiable (Customs Ruling 111042 (Oct. 11, 1990)).

The evidence before us indicates that the original fresh water evaporator was replaced without any indication of whether it was worn and needed replacement. The invoice expressly refers to parts

-4-

of the existing evaporator that were repaired and reused (see Invoice, at p. 76). These items are unequivocally repairs and are dutiable pursuant to 14 U.S.C. 1466. In light of these facts, we are unable to conclude that the installation of the fresh water evaporator aboard the subject vessel was a new design feature and not a replacement for, or restoration of, parts currently performing the same or similar function. Accordingly, we find the cost of the installation to be dutiable.

Whether the cleaning was performed before, during or after dutiable repair work is irrelevant as to the question of dutiability of the cleaning. Customs has long held that cleaning performed in preparation of, or in conjunction with dutiable repairs is dutiable (Customs Memorandum 109789 (Nov. 4, 1988)). Since the item that the cleaning is associated with is deemed dutiable, the cleaning costs are dutiable as well.

The transportation and overhead charges associated with this item are deemed dutiable pursuant to the analysis previously provided. Relief is, accordingly, denied.

Forepeak Tank Repair $ 101,322 Transportation $ 18,200 Overhead $ 60,600 Stages $ 12,706

Portable Water Tank $ 20,125 Transportation $ 7,690 Overhead $ 9,200 Stages $ 1,435

Aft Peak Tank Modification $ 41,620 Transportation $ 15,000 Overhead $ 25,400 Stages $ 4,050

These invoices indicate that these various tanks underwent a "modification/strengthening" operation. The decision in each case as to whether an installation constitutes a non-dutiable addition to the hull and fittings of the vessel depends to a great extent on the detail and accuracy of the drawings and invoice descriptions of the actual work performed. Even if an article is considered to be part of the hull and fittings of a vessel, the repair of that article, or the replacement of a worn part of the hull and fittings, is subject to vessel repair duties. The description provided in each of these items is insufficient to determine how the various tanks were "modified" and no drawings were provided to enhance our understanding of what the operation entailed. Consequently, absent more detailed and independently authenticated evidence, these items shall remain dutiable.

-5-

Reasonable staging costs have been consistently held to be non- dutiable. Relief with respect to these staging costs is granted.

The transportation and overhead charges associated with these items are deemed dutiable pursuant to the analysis provided above. Relief is, accordingly, denied.

Bilge Suction Lines $ 5,520 Transportation $ 720 Overhead $ 2,640

Based on the invoice describing the new bilge suction lines, Customs is satisfied that the requirements of a modification established in United States v. Admiral Oriental Line et al., T.D. 44359 (1930) have been met. Accordingly, duty with respect to this item shall be remitted.

Anchor Chain Marks $ 16,770 Transportation $ 1,900 Cranage $ 1,600 Overhead $ 2,500 Other Charges $ 5,373

This invoice represents work performed on the anchor chains in preparation for an ABS survey. While the applicant claims that no repairs were associated with this item, various cables were rewelded and cleaned. This work is in the nature of a dutiable repair. The applicant claims that this item should not be dutiable because this work was carried out in anticipation of inspection. Customs has held that the mere fact that repairs are required by the American Bureau of Shipping, United States Coast Guard, or any other governmental entity does not in and of itself necessitate a finding that the repairs are non-dutiable. Customs Letter Ruling 108456 (Nov. 14, 1986). Consequently, all the costs associated with this item are dutiable.

The transportation/cranage and overhead charges associated with this item are deemed dutiable pursuant to the analysis provided above. Relief is, accordingly, denied.

Life Rafts Transportation $ 810 Cleaning $ 7,400 Overhead $ 8,710 Replacement Parts $ 4,050

The preceding item addresses exactly the same issues and, accordingly, our conclusion is identical. As noted above, the fact

-6-

that a survey is required is not determinative of its dutiability. The present item concerns operations described in the submitted invoice which are in the nature of repairs. Additionally, the segregated amount for replacement parts, absent any evidence to the contrary, is presumed to be for items which are worn and in need of repair. Consequently, this item is dutiable.

Whether the cleaning was performed before, during or after dutiable repair work is irrelevant as to the question of dutiability of the cleaning. Customs has long held that cleaning performed in preparation of, or in conjunction with dutiable repairs is dutiable (Customs Memorandum 109789 (Nov. 4, 1988)). Since the item that the cleaning is associated with is deemed dutiable, the cleaning costs are dutiable as well.

The transportation and overhead charges associated with this item are deemed dutiable pursuant to the analysis provided above. Relief is, accordingly, denied.

Economizer Renewal $ 209,567 Transportation $ 18,000 Cleaning $ 41,000 Overhead $ 110,900 Stages $ 8,200

This eight-page section of the invoice refers to a litany of operations performed relating to the renewal of various economizer elements of the port and starboard boilers. These items are dutiable repairs pursuant to 19 U.S.C. 1466. Customs has held that for an item to be characterized as a non-dutiable modification, it must encompass the installation of an item as a new design feature, not as a replacement for, or a restoration of, parts now performing a similar function (Customs Memorandum 108871 (Apr. 16, 1987)). Even if an article is considered to be part of the hull and fittings of a vessel, the repair of that article, or the replacement of a worn part of the hull and fittings, is subject to vessel repair duties (see C.I.E. 233/60). Installations made to a vessel for the purpose of replacing malfunctioning parts currently performing the same or similar function cannot be characterized as a non-dutiable modification and are held to be dutiable (Customs Ruling 111042, Oct. 11, 1990). The invoice makes repeated reference to the renewal of various steel plates, the repairs of cracks and corrosion, and related cleaning operations. Consequently, this invoice represents repairs and is, accordingly, deemed dutiable. Relief with respect to this item is denied.

Whether the cleaning was performed before, during or after dutiable repair work is irrelevant as to the question of dutiability of the cleaning. Customs has long held that cleaning performed in preparation of, or in conjunction with dutiable repairs is dutiable

-7-

(Customs Memorandum 109789 (Nov. 4, 1988)). Since the item that the cleaning is associated with is deemed dutiable (see analysis above), the cleaning costs are dutiable as well. Reasonable staging costs have been consistently held to be non- dutiable. Relief with respect to these staging costs is granted.

The transportation and overhead charges associated with this item are deemed dutiable pursuant to the analysis provided above. Relief is, accordingly, denied.

Main Condenser Cleaning $ 18,700 Testing $ 4,200 Overhead $ 1,500

Customs has determined that whether cleaning was performed before, during or after dutiable repair work is irrelevant as to the question of dutiability of the cleaning. Customs has long held that cleaning performed in preparation of, or in conjunction with dutiable repairs is dutiable (Customs Memorandum 109789 (Nov. 4, 1988)). Consequently, our focus turns to the testing element of this invoice to determine whether any dutiable repairs were affected. Included in this invoice is the renewal of zinc anodes and the replacement of broken studs with new stainless steel studs. These items are deemed to be dutiable repairs under 19 U.S.C. 1466. Since the item that the cleaning is associated with is deemed dutiable, the cleaning costs are dutiable as well.

The transportation and overhead charges associated with this item are deemed dutiable pursuant to the analysis provided above. Relief is, accordingly, denied.

Boiler Forced Draft Fans $ 13,370 Transportation $ 2,050 Cleaning $ 2,800 Overhead $ 7,500

This invoice represents the charges associated with the inspection of the forced draft fans. More specifically, the invoice involved the cleaning and maintenance of various parts of the boiler forced draft fans. Customs has held that general cleaning that is not associated with repairs is not dutiable. Traders Steamship Corp. v. United States, C.D. 1827 (Customs Ct.). In other words, cleaning which is not followed by dutiable repairs is not dutiable as a repair under the vessel repair statute. Northern Steamship Co., Inc. v. United States, 54 Cust. Ct. 92, C.D. 2514 (1965). Since we find that no repair was carried out, the operations described in this invoice are not dutiable under 19 U.S.C. 1466. Accordingly, relief with respect to this item is granted.

-8-

HOLDING:

After thorough review of the record 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,

Acting Chief