VES-13-18-CO:R:IT:C 112779 DEC

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

RE: Vessel Repair; Application for Relief; Modification; Vessel Repair Entry: C27-0082357-1 Date of Arrival: February 9, 1993 Date of Entry: February 12, 1993 Port of Arrival: Long Beach, California Vessel: SEA-LAND INDEPENDENCE V-142-165

Dear Sir:

This is in response to your memorandum dated June 10, 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 INDEPENDENCE is owned by the Connecticut National Bank and operated by Sea-Land Service, Inc. The items that are the subject of this application for relief from the assessment of vessel repair duties were performed while the vessel was abroad. The following items have been submitted for our review.

ITEM WORKSHEET DESCRIPTION 110 Page 7 Sea temperature readout A19 Page 8 Satcom, radar, VHF A27 Page 8 Forward foam station B2 Page 9 Drip troughs 131 Page 11 Hatch covers 132 Page 11 20'/40' loading 132 Page 11 Vent System 132 Page 11 Loadline marks 132 Page 11 Workscope 134 Page 11 ISO sockets 135 Page 11 Lashing gear 137 Page 11 Lashing gear 138 Page 11 Explosion proof 139 Page 11 Relay 140 Page 11 Seaclean 141 Page 11 3 Hawke 1"NP

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156 Page 12 Smoke system 197 Page 14 Hatch sockets 199 Page 14 Hatches 1,2,4,5,7B,8,9,10 203 Page 14 Hatch covers

Additional items submitted for review are considered following the itemized list above.

ISSUE:

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

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.

Item 110 and Item B2

Item 110 represents the installation of a sea temperature readout on the bridge console. The applicant contends that this item is a non-dutiable modification because it is a first-time installation and a permanent addition to the vessel. The installation of this item was needed because the engine room has been converted to operate fully unmanned making a call to the engine room to report on the sea water temperature impossible.

Item B2 is the invoice for the installation of drip troughs. The drip troughs were a first-time installation which was necessary to avoid problems of rusting from water running down the vents and sides of the aft house.

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.

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(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).

The Customs Service is satisfied that the installation of the sea temperature readout is a modification. In addition, the installation of the drip troughs is also deemed to be a modification. Accordingly, no duty is owed with respect to these items.

Item A19 and Item A27

Item A19 represents the work performed to redesign and raise the vessel's radar/Satcom/VHF antennas. Item A27 represents the work performed to improve the operation of the foam monitor station. This work was needed because the vessel was modified to carry one higher tier of containers on deck. The appropriate inquiry to determine whether a particular replacement operation is a modification as opposed to a repair 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). Customs is satisfied that these operations were modifications since no repairs to existing equipment were carried out. Consequently, these items are not subject to duty.

Items 131

Item 131 represents the cost of work performed on the vessel's hatch covers. The documents submitted in relation to this item are an ABS survey invoice with a line entry for hatch cover modifications, a very vague ABS-provided description of the work -4-

performed, and drawings that reflect the work to be performed on the hatch covers. In order to be classified as a modification, the applicant must submit a more detailed description of the operations that were performed. Unless and until such evidence is presented, this item is dutiable. While this item may be related to the work that is the subject of Headquarters Ruling 111849 (Feb. 3, 1992), the Customs Service's ultimate decision on whether a particular item is a modification or a repair is contingent upon a review of the submitted evidence describing the work performed.

Item 132

Item 132 has four components (20'/40' loading, vent system, loadline marks, workscope). The evidence submitted for review of Item 132 includes an invoice stating that the container fittings and hatch covers were installed as per the contract specification, that the primsol marks and the vent system were modified, and that the work scope has been amended in accordance with the agreement. Given the frequency with which work orders are changed, we cannot assume that the work actually performed was identical the work proposed. Without further description of the actual installation process, we are unable to conclude that these items constitute a modification to the vessel. For this reason, the application for relief is denied and these items will remain dutiable unless a detailed invoice describing the work performed is submitted.

Customs has consistently stated that advisory rulings are merely advisory and do not eliminate the requirement to declare work done abroad at the subject vessel's first United States port of arrival, nor does it eliminate the requirement of filing the entry showing this work (19 C.F.R. 4.14(b)(1)(2)). Furthermore, any final ruling is contingent on Customs review of the evidence submitted pursuant to 19 C.F.R. 4.14(d)(1). The advisory ruling stressed that any final determination would be contingent on review of the evidence submitted as part of the entry and procedure for review. Item 134, Item 138, and Item 141

Item 134 represents the acquisition of ISO sockets. Item 138 is for the acquisition of brass adapters. Item 141 is for the acquisition of explosion proof cable. Since these items arrived on a vessel from a foreign port, the applicant has included proof that the merchandise was of U.S. origin.

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

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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. Since the applicant has provided a U.S. bill of sale indicating that these parts were U.S.-manufactured, relief with respect to these items is granted.

Item 135 and Item 137

The applicant contends that these invoices are for the acquisition of various lashing gear for the vessel. Since there is a lack of independently-generated documentation establishing whether these items are instruments of international traffic or part of a modification, Customs finds this item dutiable. Unless and until satisfactory documentation is submitted establishing these items as instruments of international traffic, these items shall be deemed to constitute dutiable vessel equipment.

Item 139

Item 139 represents the cost of various parts used to prepare the vessel for handling hazardous cargo. The applicant must submit the documentary evidence that the regulations require (19 C.F.R. 4.14) before a determination that a particular operation is a modification rather than a repair. The burden of proof rests squarely on the applicant to overcome the presumption that an operation is a repair. The parts that this invoice refers to are, allegedly, related to improving the hazardous cargo handling -6-

capabilities of the vessel. Unless an invoice depicting the work performed as a modification is presented to Customs, this item will remain dutiable.

Item 140

Item 140 represents a cleaning operation performed in connection with the work performed to convert the vessel's container capacity. Customs has held that cleaning performed in preparation of or in conjunction with dutiable repairs is dutiable (Customs Memorandum 109789 (Nov. 4, 1988)). As was stated previously (see Item 132), Customs advisory rulings are merely advisory. Customs reserves the right to make a determination of dutiability after a review of the submitted evidence. The submission of the contract specifications absent an invoice depicting the work actually performed is insufficient given the frequency with which work orders are changed. Therefore, this item representing a cleaning operation carried out in conjunction with the container-capacity conversion remains dutiable unless a detailed invoice describing the work actually performed is submitted and determined to be a modification.

Item 156

This item depicts the operations carried out to modify a supply fan to an exhaust fan. Customs is satisfied that the operation described in the invoice submitted is a modification. Accordingly, no duty is assessed with respect to this invoice.

Item 197, Item 199, and Item 203

These items all refer to operations performed to install container stools. Customs is satisfied that these operations constitute a permanent incorporation into the vessel's superstructure. Accordingly, these items are found to be modifications and not subject to the assessment of vessel repair duty.

Item 10 and Item 126

The applicant's claim for relief with respect to these items (Item 110 - bridge fitting, cone plate, and quick release shackles and Item 126 - steel shackles) is based upon the premise that these items are instruments of international traffic. To qualify as an IIT within the meaning of 19 U.S.C. 1322(a) and the regulations issued thereunder (19 C.F.R. 10.41a et. seq.), an article must be used as a container or holder. Additionally, the article must be substantial, suitable for and capable of repeated use, and used in significant numbers in international traffic.

An application for relief from vessel repair duties is not the appropriate forum for an IIT determination. Since the applicant's chief concern is liability for vessel repair duties, a thoughtful evidentiary presentation concerning the key attributes of an IIT is -7-

typically overlooked. The present case is no exception. The applicant claims that the bridge fitting, cone plate, quick release shackles, and steel shackles are IITs without providing any supporting analysis. These items may or may not be granted IIT status depending on how they are used. Absent any supporting documentation specifically depicting their use, we are compelled to conclude that these items are dutiable pursuant to 19 U.S.C. 1466.

Item 114 and Item 131

The applicant contends that the cost of the Marues Submerge Industries, Ltd. (Item 114) inspection is not subject to duty. 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 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.

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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). 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 an invoice for an underwater inspection of the vessel's hull. There is no evidence suggesting that this inspection was required or scheduled. Following the rules set forth above, the Customs Service finds that this item is dutiable.

Item 131 is an invoice from an ABS survey which the applicant contends should not be subject to vessel repair duty. The standards used to determine dutiability of inspection costs articulated above indicate that the cost of the required survey not be subject to duty, however, the repair carried out as a result of the survey are dutiable pursuant to 19 U.S.C. 1466. The invoice submitted indicates that certain repairs (fractured butt weld on portside and heading edge erosion repaired) were performed, but the costs associated with these repairs was not segregated from the cost of the inspection. Unless and until sufficient evidence can be produced itemizing the costs attributable to the surveys and repairs respectively, this item remains dutiable.

Item C16

This item represents the expense associated with cleaning the engine room spaces. 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 this cleaning has been associated with have been deemed dutiable, these cleaning costs are dutiable as well.

Item 128

This item represents the costs associated with supervising for the vessel's stern tube seal inspection. The applicant claims that duty with respect to this item should be remitted because the seals must be replaced when an ABS-required tailshaft inspection is -9-

conducted. No evidence indicating that the ABS required the survey that Universal Pros Marine Co., Ltd conducted was submitted. Unless and until such evidence is provided, the cost of the survey remains dutiable. Additionally, the entry on the invoice for accommodations, provisions, and other expenses remains dutiable absent a sufficient segregation of costs is submitted for review. No duty is assessed on the costs associated with the entry for travelling time.

Item 143, Item 144, and Item 167

The applicant has submitted this Fuji Trading (America) Inc. (Item 143) invoice in support of its claim that the items contained in the invoice are not subject to duty. Customs is satisfied that the turnbuckles and lashing rods (short and long) were removed from the vessel prior to entering the United States. Accordingly, duty is not assessed on these items. With respect to the twistlocks, Customs has determined that they are instruments of international traffic. Consequently, they are to be entered free of duty. Since the spinners and single stackers have not been determined to be instruments of international traffic and the applicant has not provided any proof to establish these articles as such, they are subject to duty pursuant to 19 U.S.C. 1466.

Item 144 is an invoice for shackles which were removed from the vessel prior to entering the U.S. Accordingly, duty with respect to these items is not assessed.

Item 167 is an invoice for the acquisition of twistlock assemblies. As was stated previously, Customs has determined that these items are IITs. Consequently, no duty is assessed with respect to this item.

Item 145, Item 146, and Item 147

Item 145 is an invoice for 195 galvanised cone bases. Customs has consistently held that segregated transportation costs are not subject to duty. Accordingly, these charges ($162.93 and $1189.03, respectively) are not subject to duty. The remaining invoice entry for the cone bases is subject to duty until the applicant has established, to the satisfaction of Customs, that these items should be given instrument of international traffic status.

Similar treatment is to be accorded to Item 146 and Item 147. The transportation charge is not subject to duty while the stacking cones entry is dutiable. The applicant must submit a detailed description of these items and an explanation of how the item is used before Customs can grant IIT status.

Item 148, Item 149, Item 166, Item 182, Item 194, Item 205, and Item 207

Items 148, 149, and 166 are invoices for double and single -10-

stackers. Item 182, Item 194, Item 205, and Item 207 are invoices for terminal stackers. As stated in the preceding item, unless and until the applicant submits a detailed description of these items as well as an explanation of how the items are used, Customs will treat these items as dutiable equipment.

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