VES-13-18-CO:R:IT:C 111821 GEV
Chief, Technical Branch
Commercial Operations Division
Pacific Region
One World Trade Center
Long Beach, California 90731
RE: Vessel Repair; Scavenger air spaces; Cleaning or
maintenance; Vessel PRESIDENT EISENHOWER V-67; Vessel repair
entry No. C27-0054178-5
Dear Sir:
Reference is made to your memorandum of July 29, 1991,
which forwards for our consideration the Application for Relief
from vessel repair duties filed by American President Lines,
Ltd., in relation to the above-captioned vessel repair entry.
FACTS:
The record reflects that the subject vessel, the M/V
PRESIDENT EISENHOWER, arrived at the port of San Pedro,
California, on June 10, 1991. Vessel repair entry, number C27-
0054178-5, was filed one day later. The entry indicates that the
vessel underwent repairs while in Japan, Hong Kong, and
Kaohsiung, ROC. Specifically, you refer for our consideration
the dutiability of the cost of removing carbon and oil deposits
from the main engine air scavenger spaces as invoiced in the Hong
Tah Marine Service & Engineering Co., Ltd., Invoice dated May 26,
1991, JCF no. EI067-127 (Item 3).
ISSUE:
Whether removing carbon and oil deposits from diesel engine
air scavenger spaces constitutes a nondutiable cleaning or a
dutiable maintenance operation under 19 U.S.C. 1466.
LAW AND ANALYSIS:
The applicant seeks relief for the cleaning of certain main
engine air scavenger spaces. The scavenging spaces of a diesel
engine are steel chambers that are permanently attached to the
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cylinders of the engine. The scavenging spaces serve two
functions. First, the scavenging spaces receive the discharge
from the turbo-chargers and deliver the charged air to each
cylinder via reed valves and intake ports. Second, air from the
piston underside is pumped into the scavenging space via reed
valves to supplement turbo-charger-delivered air. This air
enters the cylinders via inlet ports uncovered when the piston
gets to the bottom end of its stroke and serves to "scavenge" the
burnt gasses out of the cylinder. This process cleans the
cylinders of spent energy and provides a clean air discharge for
the next fuel injection. As a result of this process, some
gasses containing unburnt carbon may be left and deposited in the
scavenging spaces.
These carbon deposits and other oily deposits in the
scavenger spaces may result in fire or explosion. They also
reduce the efficient operation of the engine. Diesel engine
maintenance manuals therefore require periodic cleaning of the
scavenger spaces to permit the safe and efficient operation of
the vessel. The maintenance of a scavenger space involves
removing access plates and scraping, wire brushing, and wiping
the inside of the space. This operation is labor intensive and
would take a single worker up to two working days to clean a
single cylinder.
In analyzing the dutiability of foreign vessel work, the
Customs Service has consistently held that cleaning is not
dutiable unless it is performed as part of, in preparation for,
or in conjunction with dutiable repairs or is an integral part of
the overall maintenance of the vessel. E.g., Headquarters Ruling
Letter 110841, dated May 29, 1990 (and cases cited therein). The
Customs Service considers work performed to restore a part to
good condition following deterioration or decay to be maintenance
operations within the meaning of the term repair as used in the
vessel repair statute. See generally, Headquarters Ruling
Letter 106543, dated February 27, 1984; C.I.E. 142/61, dated
February 10, 1961.
The dutiability of maintenance operations has undergone
considerable judicial scrutiny. The United States Court of
Customs and Patent Appeals, in ruling that the term repair as
used in the vessel repair statute includes "maintenance
painting," gave seminal recognition to the dutiability of
maintenance operations. E. E. Kelly & Co. v. United States, 55
Treas. Dec. 596, T.D. 43322 (C.C.P.A. 1929). The process of
chipping, scaling, cleaning, and wire brushing to remove rust and
corrosion that results in the restoration of a deteriorated item
in preparation for painting has also been held to be dutiable
maintenance. States Steamship Co. v. United States, 60 Treas.
Dec. 30, T.D. 45001 (Cust. Ct. 1931).
Most recently, the United States Customs Court examined
whether the scraping and cleaning of Rose Boxes constituted
dutiable repairs. Northern Steamship Company v. United States,
54 Cust. Ct. 92, C.D. 1735 (1965). Rose Boxes are parts fitted
at the ends of the bilge suction to prevent the suction pipes
from being obstructed by debris. In arriving at its decision,
the court focused on whether the cleaning operation was simply
the removal of dirt and foreign matter from the boxes or whether
it resulted in the restoration of the part to good condition
after deterioration or decay. Id. at 98. The court determined
that the cleaning did not result in the restoration of the boxes
to good condition following deterioration and consequently held
that the work was not subject to vessel repair duties. Id. at
99. The Customs Service has ruled that the regular cleaning of
filters in most instances does not result in liability for duty.
See Headquarters Ruling Letter 107323, dated May 21, 1985.
From these authorities, we determine that the cost of
cleaning the air scavenger spaces is subject to duty under 19
U.S.C. 1466. The term deterioration is defined to mean
degeneration, which in turn denotes declined function from a
former or original state. See The American Heritage Dictionary
of the English Language 376, 387 (2d ed. 1985). The principal
function of the air scavenger spaces is to either deliver turbo-
charged air to the cylinders or receive spent gasses from the
cylinders. The collection of carbon and other oily deposits
poses a fire or explosion hazard and results in a diminished
engine function. The removal of the carbon deposits through
scraping, wire brushing, and wiping results in a restoration of
the scavenger spaces to good condition following a decline in
function of the scavenger spaces. Such an operation can be
distinguished from cleaning a Rose Box or other filter, for the
collection of debris by these parts results not in a diminution
of function, but alternatively demonstrates the proper function
of the part.
HOLDING:
The removal of carbon and oil deposits from the main engine
scavenger spaces is a maintenance operation the cost of which is
subject to duty under 19 U.S.C. 1466.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch