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HQ 111654


December 24, 1991

VES-13-18-CO:R:IT:C 111654 LLB

CATEGORY: CARRIER

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

RE: Vessel repair; Vessel conversion; Modification; Fish processor; Vessel ALASKA OCEAN, V-1; Entry No. 779-1514901-5

Dear Sir:

Reference is made to your memorandum of April 25, 1991, which forwards for our consideration the Application for Relief from the assessment of vessel repair duties associated with the above-captioned vessel repair entry.

FACTS:

The vessel ALASKA OCEAN underwent a total conversion from an oil supply vessel to a trawler/processor vessel suitable for use in Alaskan fisheries operations. The vessel was in a shipyard in Norway from January 1989 until June 1990, undergoing operations valued at nearly $53,000,000.00. The vessel was increased in length, breadth, and depth, with a new mid-body of 104 feet being added.

ISSUE:

Whether foreign shipyard operations undergone by the vessel ALASKA OCEAN may be considered non-dutiable modifications under the vessel repair statute.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466(a), 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 the foreign or coastwise trade, or intended to be employed in such trade.

Over the course of years, the identification of modification processes has evolved from judicial and administrative precedent. 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. This element should not be given undue weight in view of the fact that vessel components must be welded or otherwise "permanently attached" to the ship as a result of constant pitching and rolling. In addition, some items, the cost of which is clearly dutiable, interact with other vessel components resulting in the need, possibly for that purpose alone, for a fixed and stable juxtaposition of vessel parts. It follows that a "permanent attachment" takes place that does not necessarily involve a modification to the hull and fittings.

2. Whether in all likelihood, an 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.

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

...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. Admiral Oriental, supra., (quoting T.D. 34150, (1914)).

Pursuant to published Customs Service rulings (C.I.E. 1325/58 and C.I.E. 565/55), duties may not be remitted in circumstances in which invoices fail to segregate dutiable from non-dutiable expenditures. In the present matter, care has been taken to segregate various elements of the costs, such as any transportation cost elements involved in the overall operation, as well as work involving the old portion of the vessel as opposed to the new areas.

In the case of United States v. George Hall Coal Co., 134 F. 1003 (1905), it was held that any of various types of expenses associated with foreign shipyard operations are classifiably free from the assessment of duty, regardless of the character of the overall shipyard work (repair vs. modification). The case found that the expense of drydocking a vessel is not a repair cost. Drydocking is not an isolated expense, and is commonly associated with numerous others. These may include, but are not limited to, sea water supply (for firefighting capability), fresh water supply, hose hook-up and disconnection, fire watch services, shore power hook-up, etc.

We have thoroughly reviewed the voluminous entry documentation submitted in this matter. It is our conclusion that the entered costs are clearly for non-dutiable modifications or classifiably free items, with the following exceptions, as noted from the Ulstein Hatloe invoice documents:

No. 2.1.2 Det Norske Veritas inspection of the old hull section, which "led to repairs". (Repair-associated expense).

No. 9.1 Mooring lines. (Equipment).

No. 9.2 Halyards. (Equipment).

No. 10.2 Anchors and chains. (Equipment).

No. 13.2 Portable fire extinguishers. (Equipment).

No. 13.3 Fire suits. (Equipment).

No. 13.4 Fire Axes. (Equipment).

No. 14 Blasting/masking/painting old portion of vessel. (Repair).

No. 15 All navigational electronics. (Sensitive equipment, likely to be removed during long lay-up).

No. 16 Life saving equipment/boats (except boat cradles). (Equipment).

No. 17(05) Silverware dispensers. (Equipment).

No. 17(07) Napkin dispensers. (Equipment).

No. 17(11) Electric rice cookers. (Equipment).

No. 17(14) Soup well inserts. (Equipment).

No. 17(18) Milk dispenser cans. (Equipment).

No. 17(19) Beverage dispenser. (Equipment).

No. 17(26) Microwave ovens. (Equipment).

No. 17(28) Deep-fat fryer baskets. (Equipment).

No. 17(38) Mobile food cart. (Equipment).

No. 17(39) Portable cooking oil filter. (Equipment).

No. 17(40) Portable waste-oil filter. (Equipment).

No. 17(47) Meat slicer. (Equipment).

No. 17(51) Can opener. (Equipment).

No. 17(56) Trash receptacle. (Equipment).

No. 17(60) Container and dolly. (Equipment).

No. 17(66) Dish washer rack transporter. (Equipment).

No. 17(67) Food cart. (Equipment).

No. 17(70) Counter-top refrigerator. (Equipment).

No. 17(72) Mobile food cart. (Equipment).

No. 19.2 Loose furniture and furnishings. (Equipment).

No. 19.4 Curtains and blinds. (Equipment).

No. 22.1 Protective boat covers. (Equipment).

No. 23.9 Extruded aluminum bin boards. (Equipment).

No. 66.2 Shelves and gratings. (Equipment).

No. 72.2 Arctic air horn. (Equipment).

No. 79.1 Removable floor plates. (Equipment).

No. 80.1 Bench-mount grinders, and vises. (Equipment).

No. 80.3 Torch assembly, electric welders, insulation resistance measuring equipment, welder with 50 foot cord, and acetylene/oxygen bottles. (Equipment).

No. 81.1 Fishing gear purchased in Japan, delivered to Norway and not previously entered in the U.S. for consumption, duty paid. (Equipment).

No. 90.5 Light bulbs. (Equipment).

No. 95.4 Removable/portable communications equipment. (Equipment).

No. 96.1 Batteries and chargers. (Equipment).

No. 101.3 Tests to old portion of the hull/structure/tanks. (Repairs, not classifiably free).

HOLDING:

Following a thorough review of the evidence as well as well as an analysis of the law and applicable precedents, we have determined that the Application for relief should be allowed in part and denied in part, as specified in the Law and Analysis portion of this ruling.

Sincerely,

B. James Fritz

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