VES-13-18-RR:IT:EC 114111 GOB

Port Director of Customs
Attn.: Vessel Repair Liquidation Unit, Room 415
P.O. Box 2450
San Francisco, CA 94126

RE: Vessel Repair Entry No. 110-6461867-8; PRESIDENT KENNEDY, V-78; 19 U.S.C. 1466; Petition

Dear Madam:

This is in response to your memorandum of September 16, 1997, which forwarded the petition submitted on behalf of American President Lines, Ltd. ("petitioner") with respect to the above-referenced vessel repair entry.

FACTS:

The evidence of record indicates the following. The PRESIDENT KENNEDY ("vessel"), a U.S.-flag vessel owned and operated by the petitioner, arrived at the port of Seattle, Washington on February 16, 1996. The subject vessel repair entry was subsequently filed. The vessel underwent certain foreign shipyard work in numerous locations in Asia.

In Ruling 113680 dated July 17, 1997, which contained our determinations on the application for relief with respect to the above-referenced entry, we found certain items dutiable and certain items nondutiable.

ISSUE:

Whether the costs of the certain items are dutiable pursuant to 19 U.S.C. 1466(a). Whether the costs of certain items are subject to remission under 19 U.S.C. 1466(d)(1).

LAW AND ANALYSIS:

19 U.S.C. 1466 provides for the payment of duty at a rate of fifty percent ad valorem on the cost of foreign repairs to vessels documented under the laws of the United States to engage in foreign or coastwise trade, or vessels intended to be employed in such trade.

19 U.S.C. 1466(d)(1) provides that the Secretary of the Treasury is authorized to remit or refund such duties if the owner or master of the vessel furnishes good and sufficient evidence that the vessel was compelled by stress of weather or other casualty to put into a foreign port and make repairs to secure the safety and seaworthiness of the vessel to enable her to reach her port of destination.

Items For Which Relief Is Requested

Items 101-111;113-115 - General Services Items. The petitioner asserts that the proration of these costs is contrary to the statute and case law. We disagree. Our position with respect to the proration of general services and/or drydock costs, which was first enunciated in Ruling 113474 dated October 24, 1995 (and which has been reiterated in many subsequent rulings), was undertaken after considerable analysis and thought with respect to the most equitable manner consistent with the statute in which to administer these costs. Our determination that these costs should be prorated is affirmed. We note additionally that the petitioner states that proration is "unworkable administratively." It asks: "How can the charges be apportioned? Should the charges of dry-docking, etc. be included in the determination of charges which are dutiable or non-dutiable? What would charges which are dutiable at a lesser rated [sic] than 50% because of the operations of 19 U.S.C. 1466(h)(2) and (3)? How does the apportionment formula work in this case?"

In Ruling 226873 dated October 29, 1996, we stated:

In accordance with Ruling 113474 and Memorandum 113350, and as your forwarding memorandum states, the drydocking charges should be prorated between the dutiable and nondutiable costs associated with the drydocking. The method of prorating was described in Ruling 113474, supra: the drydocking costs "should be apportioned to reflect the dutiable and non-dutiable foreign costs in this entry." For example, if, aside from the subject "drydocking costs," as described supra, fifty percent of the costs of that particular drydocking were dutiable and fifty percent were nondutiable, then fifty percent of the subject "drydocking costs," as described supra, would be dutiable and fifty percent would be nondutiable.

The costs of general services and/or drydock costs to be prorated are not involved in the calculation of what portion of the costs is dutiable and what portion is nondutiable.

With respect to the inclusion of 19 U.S.C. 1466(h)(3) duties in the proration calculation, in Ruling 226873 we stated:

Duty assessed under 19 U.S.C. 1466(h)(3) is vessel repair duty (i.e., 19 U.S.C. 1466 duty), albeit assessed at a rate of duty different from the fifty percent rate of 19 U.S.C. 1466(a). As such, the dutiable amount with respect to duty assessed under 19 U.S.C. 1466(h)(3) is to be included in the dutiable component for the purpose of the proration calculation which is described supra on pages four through six of this ruling.

Item 117 - Drydock of Vessel. These costs should be prorated in the same manner as the above costs.

Item 117.1 - Drydock - 3 Lay Days, Tail Shaft Casualty and Item 129 - Dock Trial. The petitioner states that these items are directly related to item 324, with respect to which duty has previously been found to be subject to remission pursuant to 19 U.S.C. 1466(d)(1) based on casualty. The petitioner has submitted a memorandum dated June 6, 1996 from the attending port engineer of the vessel to the fleet manager with respect to the casualty. The memorandum states, in pertinent part:

In addition to the cost of Item #324 is the associated and related costs of Item #117.1 for three additional days drydocking to accomplish Item #324 and the cost of Item 129 for dock trial to prove the satisfaction of the stern bearing renewal.

We find that the duty on the costs of item 117.1 and item 129 is subject to remission pursuant to 19 U.S.C. 1466(d)(1).

Item 208 and Item 208.1 - Shell Connection Pipe Gauging. The invoice for item 208 states: "Only as required for ABS & USCG Inspection, No Repairs[.]" The invoice for item 208.1 provides: "...as required by ABS...Add gaugings required by ABS..." We find that these items are nondutiable because they are items incident to a nondutiable ABS inspection.

Item 209 - Anchor Chain Inspection. The invoice states: "ABS & USCG Inspection, No Repairs ... Rouse and range P/S Anchor Chains in dry-dock ... NOTE: Any coating or repairs of chain will be on a separate item. Marking and seizing shots to be done as a separate item." We find that this item is nondutiable as an item incident to a nondutiable ABS inspection.

Item 502 - No. 3 Cargo Hold Structural Modifications. The invoice states, in pertinent part: "Crop-out and insert ... near the aft edge in way of the fractures at both Port and Stbd locations for Web Frame 236 in Hold No. 3." This item is dutiable. Work performed to remedy fractures is dutiable.

Item 504 - Hatch Coaming Stays Modification. The invoice states, in pertinent part: "Several of these stays have suffered fractures at the connection weld to the Upper Deck or above the connection weld." This item is dutiable. Work performed to remedy fractures is dutiable.

Item 509 - Renewal Swash Bulkheads Fr. 296, 300 and 304 and Item 509.1 - No. 1 Deep Tank Swash Bulkheads A/C Increase Wt. The petitioner claims that these items are dutiable under 19 U.S.C. 1466(h)(2) and/or (h)(3). We disagree. We find that these costs are dutiable under 19 U.S.C. 1466(a). It is our position, as stated in Ruling 113673 dated July 7, 1997, that 19 U.S.C. 1466(h)(2) contemplates entry of the pertinent part or material, and the payment of duty under the appropriate commodity classification of the HTSUS, prior to the use of the pertinent part or material in the foreign shipyard. The petitioner has not established this. 19 U.S.C. 1466(h)(3) applies to "spare parts ..." It does not apply to materials. We have held previously that prefabricated steel is a material and is not within the scope of 19 U.S.C. 1466(h)(3). See, for example, Ruling 113883 dated April 1, 1997, Ruling 113673 dated July 7, 1997, and Ruling 113938 dated August 22, 1997. Accordingly, this item is not eligible for treatment under 19 U.S.C. 1466(h)(2) or (h)(3). It is dutiable under 19 U.S.C. 1466(a).

CF 226 Item 11 - International Paint Representative. The petitioner states that the International Paint representative is a U.S. citizen and U.S. resident. It has submitted a memorandum from International Paint which states that the representative provided technical service and further states that the representative is a U.S. resident, residing at 2131 N.W. Pacific Elm Drive, Issaquah, Washington. We find that this item is nondutiable.

HOLDING:

As detailed above, the petition is granted in part and denied in part.


Sincerely,


Jerry Laderberg
Chief,
Entry Procedures and Carriers
Branch