VES-13-18-CO:R:IT:C 112731 DEC

Deputy Assistant Regional Commissioner
Classification and Value Division
Attention: Residual Liquidation and Protest Branch
New York, New York 10048-0945

RE: Vessel Repair; Application for Relief; Modification; Inspection; Cleaning; Spare Parts Vessel Repair Entry: 514-3004561-0 Date of Arrival: August 29, 1991 Port of Arrival: Elizabeth, New Jersey Vessel: SEA-LAND INTEGRITY V-42

Dear Sir:

This is in response to your memorandum dated May 14, 1993, which forwards the application for relief from vessel repair duties filed in connection with the above-referenced vessel for our review.

FACTS:

The SEA-LAND INTEGRITY is owned by the Connecticut National Bank and operated by Sea-Land Service, Inc. It is an American-flag vessel. While abroad, the SEA-LAND INTEGRITY stopped in Rotterdam where it underwent various operations. The following items have been submitted for our review.

Wilton Fijenoord Invoice W.B. Arnold Co., Inc. (Invoice No. 6954/10790 (8/23/91) Invoice No. Item No. 119 21016 (9/3/91) 119A 19600 (4/10/90) 59e 60g 61g 65b 116c An application for relief from vessel repair duties dated October 28, 1991, was timely filed.

ISSUE:

Whether the cost of foreign shipyard work completed aboard the subject vessel is dutiable pursuant to Title 19, United States Code, section 1466. -2-

LAW AND ANALYSIS:

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

Items 119 and 119A

The applicant contends that the costs of the operations performed under these two items are not subject to duty because they are modifications and represent permanent incorporations into the vessel. The applicant received an advisory ruling from Customs holding that the upgrade of the existing seven Bar service compressor to a thirty Bar topping-up air compressor would constitute a modification. In its advisory ruling letter, Customs did note that "any final ruling on this matter is contingent on Custom's review of the evidence submitted pursuant to section 4.14(d)(1), Customs Regulations (19 CFR 4.14(d)(1)." Headquarters Ruling 110993 (May 2, 1990).

Over the course of years, the identification of modification processes has evolved from judicial and administrative precedents. In considering whether an operation has resulted in a modification, which 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 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.

(2) Whether the 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.

Before an item is to be construed as a part of the vessel, it must be (1) a permanent attachment and (2) essential to the successful operation of the vessel. Otte v. United States, 7 C.C.P.A. 166, 169 (1916). -3-

Item 119 details operations performed upon the vessel's air compressor. While the applicant contends that this item represents a modification, the Customs Service finds that this item contains, in part, repair operations as evidenced in the invoice description indicating that various items were being renewed or overhauled. Customs has consistently held that where the charges for dutiable and non-dutiable items are not segregated within an invoice item, all of the charges in that invoice item must be deemed dutiable. Customs Memorandum 108567 (Sept. 10, 1986). Absent authenticated evidence segregating the various costs associated with this item, the $11,392 remains dutiable.

Item 119A describes an expense associated with the removal of electric cables and the installation of new cables. To determine whether a particular replacement operation is a modification as opposed to a repair, the appropriate inquiry is to analyze the condition of the structure(s) prior to being replaced. Customs has determined that even though an operation might, under normal circumstances, be considered a permanent duty-free modification, the benefit of such a finding is not extended to operations which encompass the replacement of existing structure(s) that are in need of repair at that time. If a permanent addition is a first-time installation, or if it replaces an existing structure that is in good working order at the time of its replacement and an enhancement in operating efficiency is provided, the operation may be considered a duty-free modification. Headquarters Ruling 111224 (Feb. 19, 1991).

The Customs Service is not satisfied that the replacement of these electric cables is a modification. The evidence submitted does not address the condition of the cables at the time they were replaced. Consequently, the Customs Service has no way of evaluating whether this item is a repair or a modification. Unless and until such authenticated evidence attesting to the condition of the cables at the time of their replacement is submitted, relief with respect to this item is denied.

W.B. Arnold Co., Inc., Invoice No. 21016

This invoice is for work performed on the vessel's air compressors. While the general concept of upgrading the air compressor would be considered a modification, as indicated to the applicant in Headquarters Ruling 110993 (May 2, 1990), the actual description of the work associated with this concept included repair work to various items as described in items 119 and 119A. Since invoice 21016 is for work performed on the vessel's air compressor, which has been ruled dutiable (see items 119 and 119A above), the labor charge included in this invoice is dutiable as well.

Transportation and lodging costs are ordinarily accorded duty- free treatment provided that the costs are properly segregated in the invoice. Consequently, the costs of items one, three, and four which are for traveling, air fare, and various expenses, respectively, are not subject to duty. -4-

W.B. Arnold Co., Inc., Invoice No. 19600

This invoice represents the acquisition of various kits containing items to be used for the upgrading of the vessel's air compressors. Since the items are of foreign origin, Sea-Land has included proof that the merchandise entered the United States, duty- paid.

On August 20, 1990, the President signed into law Pub. L. 101- 382, section 484E of which amends section 466, Tariff Act of 1930, as amended (19 U.S.C. 1466), by adding a new paragraph (h) to the statute 19 U.S.C. 1466(h).

Section 1466(h) provides in pertinent part that:

(h) The duty imposed by subsection (a) of this section shall not apply to--

(2) the cost of spare repair parts or materials (other than nets or nettings) which the owner or master of the vessel certifies are intended for use aboard a cargo vessel, documented under the laws of the United States and engaged in the foreign or coasting trade, for installation or use on such vessel, as needed, in the United States, at sea, or in a foreign country, but only if duty is paid under appropriate commodity classifications of the Harmonized Tariff Schedule of the United States upon first entry into the United States of each such spare part purchased in, or imported from, a foreign country.

While section 1466(h) applies by its terms only to foreign- made imported parts, there is ample reason to extend its effect to U.S.-made materials as well. To fail to do so would act to discourage the use of U.S.-made materials in effecting foreign repairs since continued linkage of remission provisions of subsection (d)(2) with the assessment provisions of subsection (a) of section 1466 would obligate operators to pay duty on such materials unless they were installed by crew or resident labor.

If an article is claimed to be of U.S. manufacture, there must be proof of its origin in the form of a bill of sale or domestic invoice. If a foreign manufactured article is claimed to have been previously entered for consumption, duty paid by the vessel operator, there must be proof of this fact in the form of a reference to the consumption entry number for that previous importation, as well as to the U.S. port of importation. If imported articles are purchased in the United States from a party unrelated to the vessel operator, a domestic bill of sale to the vessel operator must be presented.

Further, with regard to imported articles, there must be presented a certification on the CF 226 or an accompanying document -5-

by a person with direct knowledge of the fact that an article was imported or purchased for the purpose of either then-existing or intended future installation on a company vessel. Ordinarily, the vessel's master would not have direct knowledge of that fact, and an agent may also be without such knowledge. The second certification required by 19 U.S.C. 1466(h)(2) as to the vessel's documentation (foreign or coasting trades) and service (cargo vessel), will be made by the master on the vessel repair entry (CF 226) at the time of arrival.

If the elements stated above are proven to the satisfaction of the Customs Service, the cost of foreign labor utilized for the installation of U.S.-made or previously imported articles will be subject to duty under section 1466 in matters concerning repairs, and only the cost of qualifying materials used in repairs will be free of duty.

This section (19 U.S.C. 1466(h)) applies to entries that were made before the date of enactment (August 20, 1990)) that have not been liquidated. Consequently, the petitioner's claim for relief from vessel repair duties is, appropriately, considered in light of the provisions contained within 19 U.S.C. 1466(h).

Since the applicant has provided a consumption entry evidencing payment of duty, relief with respect to this item is granted.

Item 59e

This item represents the expense for providing the vessel with lighting and ventilation. The applicant correctly cites C.I.E. 1188/60 (Sept. 8, 1960) for the proposition that the furnishing of electricity (lighting) and ventilation (air) to the vessel is not dutiable. Relief from duty with respect to this item is granted.

Item 60g and Item 61g

These invoices are for the cost of cleaning associated with the steel repairs in the starboard number two lower wingtank (Item 60g) and steel repairs in the starboard number nine A void tank (Item 61g). 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 items that the cleaning is associated with have been deemed dutiable, these cleaning costs are dutiable as well.

Item 65b and Item 116c

The applicant contends that the duty on the cost of opening and closing the shaft bearing and the opening of the governor for inspection should be remitted. In C.S.D. 79-277, the Customs Service addressed the dutiability of surveys/inspections stating that "[i]f the survey was undertaken to meet the specific

-6-

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 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. 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 ABS). In the liquidation process, Customs should go beyond the mere labels of "continuous" or ongoing

-7-

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. The applicant has submitted a copy of the ABS survey. Following the rules set forth above, the Customs Service finds that the opening and closing of the shaft bearing for inspection and the costs associated with the inspection of the governor are not subject to duty.

HOLDING:

After a thorough review of the submitted evidence, this application for relief is granted, in part, and denied, in part, for the reasons detailed in the Law and Analysis section of this ruling.

Sincerely,

Acting Chief
Carrier Rulings Branch