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HQ 113451

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June 7, 1995

VES-13-18-R:IT:C 113451 GEV

CATEGORY: CARRIER

Chief, Residual Liquidation and Protest Branch Commercial Operations
U.S. Customs Service
6 World Trade Center
New York, N.Y. 10048-002980

RE: Vessel Repair Entry No. C04-0031554-2; TILLIE LYKES; V-41; Consumables; Repairs; 19 U.S.C. ? 1466

Dear Sir:

This is in response to your memorandum dated May 26, 1995, forwarding for our review a petition for review. Our findings in this matter are set forth below.

FACTS:

The TILLIE LYKES is a U.S.-flag vessel owned by Shawmut Bank Connecticut and operated by Lykes Bros. The vessel incurred foreign expenses in Bremerhaven, Germany, in February of 1995. The vessel subsequently arrived in the United States at Boston, Massachusetts, on February 20, 1995. A vessel repair entry was timely filed.

An application for relief, dated March 28, 1995, was received by the New York Vessel Repair Liquidation Unit (VRLU). By letter dated April 14, 1995, the VRLU granted in part and denied in part the application for relief. Subsequently, a petition for review, dated May 3, 1995, was received by the VRLU on May 12, 1995. The petitioner requests that paint brushes and rollers listed on Kss-Odin invoice # 49 be considered non-dutiable as consumables.

ISSUE:

Whether the costs for which the petitioner seeks relief are dutiable under 19 U.S.C. ? 1466.

LAW AND ANALYSIS:

Title 19, United States Code, ? 1466 (19 U.S.C. ? 1466), provides in pertinent part for payment of duty in the amount of 50 percent ad valorem on the cost of equipment, or any part thereof, purchased for, or the repair parts or materials to be used, or the expenses of repairs made in a foreign country upon a vessel documented under the laws of the United States to engage in foreign or coastwise trade, or vessels intended to engage in such trade.

With respect to consumables, Customs has long-held that such items are duty-free when not used in connection with dutiable repairs (see C.I.E. 196/60). In regard to whether a particular article is considered to be a non-dutiable consumable as opposed to dutiable equipment for purposes of administering 19 U.S.C. ? 1466, the courts have held that "consumable supplies" are "supplies for the consumption, sustenance, and medical needs of the crew and passengers during the voyage." H.E. Warner, Trustee, American Mail Line, Ltd. v. United States, 28 CCPA 143, at 150, quoting from Southwestern Shipbuilding Co. v. United States, 13 Ct. Cust. App. 74, T.D. 40934 (1925).

Based on the above definition, the paint brushes and rollers for which the petitioner seeks relief are not considered to be consumables but rather are equipment and therefore are dutiable under the vessel repair statute. This determination is further bolstered by the fact that paint brushes were specifically included in a list of articles that the court in Southwestern Equipment Co. considered to be equipment.

HOLDING:

The costs for which the petitioner seeks relief are dutiable under 19 U.S.C. ? 1466.

Accordingly, the petition is denied.

Sincerely,

Arthur P. Schifflin

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