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HQ 111300

December 3, 1990

VES-13-18-CO:R:P:C 111300 GV

CATEGORY: CARRIER

Chief, Technical Branch
Commercial Operations
Pacific Region
1 World Trade Center
Long Beach, California 90831

RE: Vessel Repair; Entry No. C31-0005016-1; ARCO JUNEAU V-CF- 357; Cleaning; Coating; Modification

Dear Sir:

This is in response to your memorandum dated September 4, 1990, transmitting an application for relief from duties assessed pursuant to 19 U.S.C. 1466. You request that we review seven items contained in the above entry. Our findings are set forth below.

FACTS:

The ARCO JUNEAU is a U.S.-flag vessel owned by Arco Marine, Inc., of Long Beach, California. The subject vessel had shipyard work performed on her at the Hyundai Mipo Dockyard Co., Ltd., in Ulsan, Korea, during the period of March 19 - April 4, 1990. Subsequent to the completion of the work the vessel arrived in the United States in Valdez, Alaska, on April 17, 1990. A vessel repair entry was filed on the date of arrival.

Pursuant to an authorized extension of time, an application for relief, dated July 6, 1990, with supporting documentation was timely filed. The applicant claims that three of the items in question constitute nondutiable cleaning (Item 005), coating (Item 102) and a lifeboat inspection (Item 601), respectively, while the remainder (Items 815, 820, 821 and 904) constitute nondutiable modifications.

ISSUE:

Whether the foreign expenses for which the applicant seeks relief are dutiable under 19 U.S.C. 1466.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466, provides in pertinent part, for payment of duty in the amount of 50 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 engage in such trade.

A leading case in the interpretation and application of section 1466 is United States v. Admiral Oriental Line et al., 18 C.C.P.A. 137 (T.D. 44359 (1930)). That case distinguished between equipment and repairs on one hand and permanent additions to the hull and fittings on the other, the former being subject to duty under section 1466.

The Court in Admiral Oriental, supra., cited with approval an opinion of the Attorney General (27 Op. Atty. Gen. 288). That opinion interpreted section 17 of the Act of June 26, 1884, (23 Stat. 57, which allowed drawback on the vessels built in the U.S. for foreign account, wholly or in part of duty-paid materials. In defining equipment of a vessel, the Attorney General found that items which are not equipment are:

...those appliances which are permanently attached to the vessel, and which would remain on board were the vessel to be laid up for a long period... [and] are material[s] used in the construction of the vessel...

While the opinion of the Attorney General interpreted a provision of law other than section 1466 or a predecessor thereto, it is considered instructive and has long been cited in Customs Service rulings as defining permanent additions to the hull and fittings of a vessel.

For purposes of section 1466, dutiable equipment has been defined as:

...portable articles necessary or appropriate for the navigation, operation, or maintenance of a vessel, but not permanently incorporated in or permanently attached to its hull or propelling machinery, and not constituting consumable supplies. (T.D. 34150 (1914)).

It should be noted that the fact that a change or addition of equipment is made to conform with a new design scheme, or for the purpose of complying with the requirements of statute or code, is not a relevant consideration. Therefore, any change accomplished solely for these reasons, and which does not constitute a permanent addition to the hull and fittings to the vessel, would be dutiable under section 1466.

Upon reviewing the record with regard to the applicant's claims, we note that the following four (4) items constitute nondutiable modifications:

Item 815 - Cargo Pump Suction Strainer Drain Line Modification

Item 820 - Cargo Stripping Pump

Item 821 - Pump Room Rigging Fittings

Item 904 - Ladder To Horizontal Girder In Wing Tanks

Item 005 has the heading "Local Cleaning In Way of Hot Work in Tanks" and covers the removal of 50 tons of sludge and pumping out 30 tons of oily water in areas where "hot work" (i.e., repairs) was to be carried out. Insofar as cleaning is concerned, Customs has long held the cost of cleaning is not dutiable unless it is performed as part of, in preparation for, or in conjunction with dutiable repairs (which includes coating/painting) or is an integral part of the overall maintenance of the vessel; see C.I.E.'s 18/48, 125/48, 910/59, 820/60, 51/61, 429/61; 569/62, 698/62; C.D. 2514; T.D.'s 45001 and 49531; and numerous Customs rulings, copies enclosed). Upon reviewing the shipyard invoice covering the cleaning costs in question it is clear that the cleaning in Item 005 was performed in preparation for dutiable repairs and therefore is dutiable.

Item 102 has the heading "Surface Preparation and Hull Coating." It is the applicant's contention that the purpose of the anti-fouling coating (itemized separately from the other dutiable coating costs under this item) "...is to act against animal and plant fouling of the hull thus assisting with the speed of the vessel as well as with fuel savings." Consequently, the applicant claims that the anti-fouling coating is nondutiable since it "...is not a maintenance or repair item but is instead for the purpose of generally improving the operation of the vessel."

In regard to coatings, Customs has held that coating with substances which have protective and preservative qualities is analogous to painting and therefore is dutiable (see C.I.E.'s 1203/60, 518/63 and 2045/66). Notwithstanding the applicant's contention that these particular anti-fouling coatings (also referred to as anti-fouling paint by the applicant, Devoe and International Paint) are not preservative, they are unquestionably protective in nature. Furthermore, while such coatings may provide the benefit of fuel savings by reducing drag, they are not permanently installed so as to constitute nondutiable modifications/alterations/additions to the vessel. Accordingly, the anti-fouling coatings in question remain analogous to painting and therefore are dutiable.

Item 601 covers a biennial U.S. Coast Guard life boat inspection. The costs listed under this item include labor, material and crane service to dismantle and remove two life boats ashore to a safe location and block up on suitable chocks for inspection. There were no repairs performed as a result of this inspection.

Customs has held that where periodic surveys are undertaken to meet the specific requirements of a classification society, insurance carrier, etc., the cost of the surveys is not dutiable even when dutiable repairs are effected as a result thereof; however, in the liquidation process Customs should go beyond the mere labels of "continuous" or "ongoing" before deciding whether the item is dutiable. If an inspection or survey is conducted as a part of an ongoing maintenance and repair program labelled "continuous" or "ongoing" the cost is dutiable. Also, if the survey is to ascertain the extent of damage sustained, or to ascertain if the work is adequately completed, the costs are dutiable as part of the repairs which are accomplished pursuant to holdings in C.I.E. 429/61, C.S.D. 79-2, and C.S.D. 79-277.

Upon reviewing the invoices submitted it is apparent that the costs associated with the periodic inspection listed in Item 601 are nondutiable.

HOLDING:

The foreign work for which the applicant seeks relief is dutiable under 19 U.S.C. 1466 with the exception of those items noted above.

Sincerely,

B. James Fritz

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