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HQ 227063

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October 31, 1996

VES-13-18-RR:IT:EC 227063 GOB

CATEGORY: CARRIER

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

RE: Vessel Repair Entry No. C31-0015281-9; 19 U.S.C. 1466; ARCO INDEPENDENCE, V-152; Petition; Drydocking charges; Maintenance

Dear Sir or Madam:

This is in response to your memorandum dated March 12, 1996, which forwarded the petition for relief submitted by ARCO Marine, Inc. ("petitioner") with respect to the above-referenced vessel repair entry.

FACTS:

The ARCO INDEPENDENCE ("the vessel") is a U.S.-flag vessel owned and operated by the petitioner. Certain foreign shipyard work was performed on the vessel in 1995. The vessel arrived at the port of Valdez, Alaska on October 18, 1995. The subject entry was subsequently filed.

In Ruling 226826 dated May 2, 1996, the application for relief was granted in part and denied in part.

The petitioner asks for relief with respect to the following items:
drydock charges
ABS Alteration/Modification survey
Item 408 (408.3, 408.4) - mooring line
Item 424 - IGS deck isolation and mast riser valve Item 433 - IGS scrubber
Item 450 - power/water line maintenance

ISSUE:

Whether the subject items are dutiable pursuant to 19 U.S.C. 1466.

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.

In its application of the vessel repair statute, the Customs Service has held that modifications, alterations, or additions to the hull and fittings of a vessel are not subject to vessel repair duties. The identification of work constituting modifications vis-a-vis work constituting repairs has evolved from judicial and administrative precedent. In considering whether an operation has resulted in a nondutiable modification, the following factors have been considered:

1. Whether there is a permanent incorporation into the hull or superstructure of a vessel, either in a structural sense or as demonstrated by means of attachment so as to be indicative of a permanent incorporation. See United States v. Admiral Oriental Line, 18 CCPA 137 (1930). However, we note that a permanent incorporation or attachment does not necessarily involve a modification; it may involve a dutiable repair.

2. Whether in all likelihood an item would remain aboard a vessel during an extended lay-up.

3. Whether an item constitutes a new design feature and does not merely replace a part, fitting, or structure that is performing a similar function.

4. Whether an item provides an improvement or enhancement in operation or efficiency of the vessel.

Our analysis in this matter is based primarily on the pertinent invoices. The assertions of the petition are not considered to be documentary evidence. In this regard, we note the statement of the court in Bar Bea Truck Leasing Co., Inc. v. United States, 5 CIT 124, 126 (1983):

Again, plaintiff has presented no affidavit or other evidence in support of its counsel's bald assertion...

If we are unable to determine the precise nature of certain work because of the lack of clear and probative documentary evidence, and are thus unable to determine that it is nondutiable, such work will be found dutiable. In this regard, we note the statement of the Customs Court in Admiral Oriental Line v. United States, T.D. 43585 (1929):

The evidence is conflicting upon that point, and the plaintiff has not proved the collector's classification to be wrong. The burden is upon the plaintiff to show not only that the collector was wrong in his classification but that the plaintiff was right.

In Sturm, A Manual of Customs Law (1974 ed.), p. 173-174, the author states, in pertinent part:

Where Congress has carved out special privileges or exemptions from the general provisions levying duties upon imported articles, the courts have strictly construed such exceptions and have resolved any doubt in favor of the government. Swan & Finch Company v. United States, 190 U.S. 143, 23 SCR 702, 47 L. Ed. 984 (1903); Pelz-Greenstein Co. v. United States, 17 CCPA 305, T.D. 43718 (1929)... ...
An exception which carves out something which would otherwise be included must be strictly construed. Goat & Sheepskin Import Co., et al. v. United States, 5 Ct. Cust. Appls. 178, T.D. 34254 (1914); [et al.]

The petitioner takes issue with the statement of Ruling 226826 that the vessel repair entry "was untimely by one day in that it was filed on the sixth business day (October 26, 1995) after arrival of the vessel (October 18, 1995)." The petitioner states that the entry was received by Customs on October 20, 1995. We note initially that no sanction has been imposed in this case for untimely finding, nor did that statement of Ruling 226826 have any effect upon any finding of that ruling with respect to the dutiability or nondutiability of any items. We note additionally that the CF 226 (the vessel repair entry) has the date "10-26-95" handwritten just under the box in the upper right-hand corner of the CF 226; such box is to contain the entry number and date. We take this to indicate that the vessel repair entry was received by Customs on October 26, 1995, and was therefore untimely. There is no indication on the CF 226 that the entry was filed on October 20, 1995, or on any date other than October 26, 1995. As stated supra, the apparent untimely filing of the entry has no effect on Ruling 226826, nor will it have any effect on this ruling.

After a consideration of the documentation of record we make the following determinations.

Proration Issue. In Texaco Marine Services, Inc. and Texaco Refining and Marketing, Inc. v. United States, 815 F.Supp. 1484 (CIT 1993), 44 F.3d. 1539, 1544 (CAFC 1994), the Court of Appeals for the Federal Circuit stated in pertinent part:

Texaco urges us to reject the Court of International Trade's "but for" approach and to interpret "expenses of repairs" so as to exclude those expenses (e.g., expenses for clean-up and protective covering work) not incurred for work directly involved in the actual making of repairs. Such a reading has no basis in the plain language of the statute, however. Aside from the inapplicable statutory exceptions, the language "expenses of repairs" is broad and unqualified. As such, we interpret "expenses of repairs" as covering all expenses (not specifically exempted in the statute) which, but for dutiable repair work, would not have been incurred. (Emphasis supplied.)

The subject vessel repair entry was filed after the CAFC decision in Texaco. In Memorandum 113350 dated March 3, 1995, published in the Customs Bulletin and Decisions on April 5, 1995 (Vol. 29, No. 14, p. 24), we stated in pertinent part:

All vessel repair entries filed with Customs on or after the date of that decision [the CAFC decision in Texaco, December 29, 1994] are to be liquidated in accordance with the full weight and effect of the decision (i.e., costs of post-repair cleaning and protective coverings incurred pursuant to dutiable repairs are dutiable and all other foreign expenses contained within such entries are subject to the "but for" test).

Memorandum 113350 was preceded by Memorandum 113308 dated January 18, 1995. Memoranda 113350 and 113308 were both published in the Customs Bulletin.

In Ruling 113474 dated October 24, 1995, we stated:

... the applicant contends that the CAFC decision in Texaco, supra, should not be applicable to the subject vessel repair entry and by doing so Customs has violated 19 U.S.C. ? 1315(d). Title 19, United States Code, ? 1315(d) provides, in pertinent part, as follows:

No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the Federal Register of notice of such ruling... (emphasis added)

The applicable Customs Regulations governing this matter are found at 19 CFR Part 177 (entitled "Administrative Rulings"). With respect to the applicability of 19 CFR Part 177, we note that neither of the two Headquarters memoranda published in the Customs Bulletin are "rulings" within the meaning of that part. Pursuant to ? 177.1(d)(1), Customs Regulations, a "ruling" is defined as a "...written statement issued by the Headquarters Office or the appropriate office of Customs as provided in this part that interprets and applies the provisions of the Customs and related laws to a specific set of facts." (Emphasis added) Neither memorandum applied 19 U.S.C. ? 1466 or 19 CFR ? 4.14 (the applicable Customs regulations promulgated pursuant to ? 1466) to a specific set of facts (i.e., no single vessel repair entry containing foreign expenses was discussed). Rather, they provided notice to the public that Customs will administer 19 U.S.C. ? 1466 in accordance with the explicit guidelines set by the CAFC in interpreting the term "expenses of repairs" within the meaning of the statute as determined by the "but for" test. Such guidelines, prior to the date of that decision, were non-existent. Accordingly, 19 U.S.C. ? 1315(d) is inapplicable in these circumstances.

In Ruling 113500 dated October 24, 1995, we stated:

Specifically, the applicant contends that the publication in the Customs Bulletin of memorandum 113308, subsequently clarified by memorandum 113350, without the solicitation of public comments, constitutes a violation of 19 U.S.C. ? 1625(c).
...
... the aforementioned memoranda did not modify or revoke any prior interpretive ruling or decision or have the effect of modifying the treatment Customs previously accorded certain foreign expenses under 19 U.S.C. ? 1466. Rather, the memoranda, in conjunction with the publication of the CAFC decision in the Customs Bulletin, merely provided notice to the public that the impetus behind any change in Customs interpretation of the term "expenses of repairs" within the meaning of the vessel repair statute is the CAFC itself, not Customs.
...
With respect to the applicability of 19 CFR Part 177, we note that neither of the two Headquarters memoranda published in the Customs Bulletin are "rulings" within the meaning of that part. Pursuant to ? 177.1(d)(1), Customs Regulations, a "ruling" is defined as a "...written statement issued by the Headquarters Office or the appropriate office of Customs as provided in this part that interprets and applies the provisions of the Customs and related laws to a specific set of facts." (Emphasis added) Neither memorandum applied 19 U.S.C. ? 1466 or 19 CFR ? 4.14 (the applicable Customs regulations promulgated pursuant to ? 1466) to a specific set of facts (i.e., no single vessel repair entry containing foreign expenses was discussed). Rather, they provided notice to the public that Customs will administer 19 U.S.C. ? 1466 in accordance with the explicit guidelines set by the CAFC in interpreting the term "expenses of repairs" within the meaning of the statute as determined by the "but for" test. Such guidelines, prior to the date of that decision, were non-existent.

Further in regard to the applicability of 19 CFR Part 177, it is noteworthy that since neither memorandum was a "ruling" as defined in 19 CFR ? 177.1(d), the mere fact that they were published in the Customs Bulletin does not, as the protestant suggests, render either a "published ruling" within the meaning of 19 CFR ? 177.1(d). Furthermore, in view of the fact that 19 CFR ? 177.1(d) also defines a "ruling letter" as "a ruling issued in response to a written request therefor and set forth in a letter addressed to the person making the request or his designee", neither memoranda, which were issued at the behest of the Assistant Commissioner, Office of Regulations and Rulings to the Regional Director, Commercial Operations Division, New Orleans, constituted a "ruling letter" for purposes of 19 CFR Part 177. The delayed effective date provisions of 19 CFR ? 177.9(d)(3), applicable to a "ruling letter" are therefore of no consequence.

Accordingly, the provisions of 19 U.S.C. ? 1625 and 19 CFR Part 177 are inapplicable to the subject application. [End of excerpt from Ruling 113500.]

In Ruling 113474, we stated in pertinent part:

A "but for" test was utilized by the court in the Texaco [case], supra, which test bases dutiability under the vessel repair statute upon findings that but for dutiable repair operations, an associated expense would not have been incurred. To be sure, in a great many vessel repair cases which include dry dock expenses there is at least some non-dutiable element which could justify placing a vessel in dry dock. We understand from the decision of the CAFC in Texaco, supra, that dock charges are non-dutiable if the underlying reason for dry-docking is not subject to duty, and that such charges are dutiable if dutiable operations underlie the docking. Proper implementation of the decision of the court requires that we consider the duty consequences in circumstances in which a mixed justification for dry-docking is present.

Customs has experience in duty determinations in another area involving a mixed-purpose vessel repair expense. Under the rationale provided by a long-standing published ruling (C.I.E. 1188/60) the cost of obtaining a gas-free certification, a necessary precursor to the initiation of any hotwork (welding) which may be necessary, constitutes an expense which is associated with shipyard operations. Since the expense is incurred without respect to whether the hot work to follow might constitute dutiable repair work, or is in connection with duty-free modification work, it is the practice of Customs in liquidating such expenses to apportion the gas-freeing charges between the cost of items which are remissible and those which are subject to duty. We are guided by the determination of the court in Texaco, supra, to apply the same formula to mixed-purpose dry-dock expenses. Accordingly, the cost associated with item 14 should be apportioned to reflect the dutiable and non-dutiable foreign costs in this entry.

The vessel repair entry at issue here was filed after the CAFC decision in Texaco. As stated supra, in Memorandum 113350 dated March 3, 1995, we stated in pertinent part:

All vessel repair entries filed with Customs on or after the date of that decision [the CAFC decision in Texaco, December 29, 1994] are to be liquidated in accordance with the full weight and effect of the decision (i.e., costs of post-repair cleaning and protective coverings incurred pursuant to dutiable repairs are dutiable and all other foreign expenses contained within such entries are subject to the "but for" test).

In accordance with Ruling 113474 and Memorandum 113350, 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.

ABS alteration/modification survey. The petitioner asserts that this item "covers non-dutiable modifications." The pertinent invoice (Report UL5627-G) reflects various testing, including testing of the following items: rudder, rudder modification insert, emergency towing arrangement insert, and dye penetrant. Also, the vessel's semi-balanced rudder was cropped and inserted in accordance with an ABS drawing and the clearances of the rudder bearing were measured.

We find this item to be nondutiable. There is no evidence of a repair or of any repair-related items on the invoice. An ABS survey is typically nondutiable if it does not include repairs and if it is not related to repairs.

In Ruling 226486 dated November 29, 1995, in which we found certain surveys to be nondutiable, we cited the following authorities:

...C.S.D. 79-277, which states in pertinent part:

Where a survey is undertaken to meet the specific requirements of a governmental entity, classification society, insurance carrier, etc., the cost is not dutiable even when dutiable repairs are effected as a result thereof. Where an inspection or survey is conducted merely to ascertain the extent of damages sustained or whether repairs are deemed necessary, the costs are dutiable as part of the repairs which are accomplished per the holding in CIE 429/61.

C.S.D. 89-94 stated in pertinent part:

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 the holdings in C.I.E. 429/61, C.S.D. 79-2, and C.S.D. 79-277.

In C.I.E. 429/61 dated April 28, 1961 stated in pertinent part:

In this regard, we concur in your opinion that the cost of inspections which are in the nature of surveys are not dutiable incidents coming within the thrust of section 3114, Revised Statutes. However, expenses which are incurred in conducting inspections made subsequent to the repairs, so as to ascertain whether the work has been properly performed, are dutiable as integral parts of the expenses of repairs although separately itemized. Moreover, testing which is effected for the purpose of ascertaining whether repairs to certain machinery or parts of the vessel are required, or are performed in order to ascertain if the work is adequately completed, are also integral parts of the repairs and are accordingly dutiable.

Item 408 (sub-items 408.3 and 408.04) - mooring line. After a lengthy analysis, Ruling 226826 stated, in pertinent part:

... the separately itemized charges for removal of the old wire (item 408.1 as amended by item 408.50), connecting the new line to the winches (item 408.20, the addition of the stern line rub bar (additional item 408.01), the addition of greasing tubes (additional item 408.02) and the enlargement of the holes in the winch drums to accept the new lines (additional item 408-3) should be allowed.

The work described as repair in item 408.3 and the repair work in additional item 408.04 is dutiable as a repair based on the foregoing analysis.

Thus, what is at issue here is the work in item 408.3 and in additional item 408.04.

The petitioner states:

The synthetic lines are susceptible to cutting and/or abrasion by sharp metal objects. Therefore it was necessary to grind down and/or build up rough spots that would have sharp or uneven edges and would cut into the synthetic lines. Similarly, rust or corrosion had to be removed, as loose pieces would also work into synthetic line, and have the abrasive or cutting effect, deleterious to the life of the synthetic line.

The petitioner has submitted a letter dated May 22, 1996 from the vessel master, which states:

The wire mooring ropes were replaced with a synthetic spectra line. When modifying the mooring system from wire rope to a synthetic line, all the associate equipment must also be modified to accommodate the spectra line. The roller chocks and fairleads were in acceptable condition for continued wire rope service but required modification for spectra line service. Wire rope will place small grooves on roller chocks and fairleads and strip away coating or even rust on the landing surfaces. These small grooves and a lack of coating will in no way harm the wire rope. This is not the case with synthetic mooring lines. In preparation for the new lines, it is operationally necessary to eliminate or minimize the potential for rusty, uneven, steel bearing surfaces which would adversely effect the life of the spectra lines. The modifications to the roller chocks and fairleads would not have been done if these surfaces had remained in the wire rope service.

After a consideration of the evidence of record, including the documentation submitted by the petitioner, we find sub-item 408.3 and additional item 408.4 to be nondutiable.

Item 424 - IGS deck isolation and mast riser valve. In Ruling 226826, we stated:
There is insufficient evidence to support the allegation of the application that this item is nondutiable. We note that there is no statement or affidavit of the master with respect to this item. The work described appears to be within the scope of dutiable repairs and support for a contrary determination has not been documented. See the excerpts on page three of this ruling from Bar Bea Truck Leasing Co., Inc. v. U.S. and Admiral Oriental Line v. U.S. Therefore, we find that it is dutiable. The case of Admiral Oriental Line v. U.S., T.D. 45453 (Cust. Ct. 1932) does not support the applicant's position in that, in Admiral Oriental, there was undisputed testimony to the effect that there was no existing defect to the generator house. Here, there is no undisputed testimony. U.S. v. Admiral Oriental Line, 18 CCPA 137 (1930) and C.S.D. 79-278 do not appear to be directly on point except for the general proposition that work performed to modify a vessel is not within the scope of 19 U.S.C. 1466.

The petitioner has submitted a letter dated May 22, 1996 from the vessel master, which states:

During this yard period the Deck Isolation valve and the Mast Riser valve on the Inert Gas System were modified from manual to remote operated valves. Prior to the modification the valves were in good working order but required personnel to go on deck and manually operate the valves. These valves were modified and fitted with hydraulic actuators to permit the Officer in Charge of Cargo transfer to remotely operate the valves from the cargo room.

This statement is consistent with the explanation in the body of the petition. Based on the evidence submitted, we now find that this item is nondutiable. The letter of the vessel master is sufficient to support the petitioner's claim.

Item 433 - IGS Scrubber. In Ruling 226826, we found this item to be dutiable for the same reason as item 424. See the excerpt from Ruling 226826, supra, under item 424. With respect to the various invoices which comprise this item, we note (as we noted in Ruling 226826):

The first two sheets of the invoices for this item clearly reflect repairs ("IGS Scrubber Repairs" is the heading for these sheets and the work described reflects repairs); these items are dutiable and are so reflected on the applicant's spreadsheet. The next two sheets (pp. 484-485) contain the heading "IGS Scrubber Modification." These sheets are superseded by the following two sheets (pp. 486-487), which are headed "CHG' 433A. 01 I.G. Scrubber Mod. (W/A 150)," and which indicate that the work on pp. 484-485 is cancelled and that the item is revised. The revised item includes removing and disposing of filter beds, spray pipes, and water supply lines; installing a sheet liner; fabricating a quenching spool; bending a pipe; welding; cleaning; installing grating and packing; fabricating new spray manifolds; and connecting the sea water supply. The final sheet of this invoice, which is headed "433B IGS Recirc, Modification" (p. 488), includes removing the recirculating piping from the circulation valve to the scrubber; installing a blank flange; and prefabricating new piping.

Thus, the invoice pages of item 433 which are at issue here are pages 486-488.

The petitioner describes this item as "a modification utilizing improved design [which] meets the criteria for modification..."

The petitioner has submitted a letter to it dated May 9, 1996 from Charles M. McGinley, which states:

Confirming our phone conversation, the specifications and resulting work on the Fredrikstad Inert Gas Scrubber (IGS) System successfully improved performance by modifying the adsorber trays to packed beds.

MASPAC FN90 tower packing provides the full advantages of packed bed tower packings over the older tray type internals, including operational advantages of lower pressure drop and minimization of liquid foaming.

Upon a review of the documentary evidence, we conclude that the costs of this item reflected on pages 486-488 are nondutiable. No repairs are noted on these invoices, and the work described appears to be consistent with the assertions of the petition that these invoices reflect a nondutiable modification.

Item 450 - Power/Water line maintenance. In Ruling 226826, we stated as follows with respect to this item:

The invoice, as well as the applicant's statement, reflects that this item is a maintenance item. Maintenance items are dutiable pursuant to 19 U.S.C. 1466. In Ruling 111571 dated March 4, 1992, we stated, in pertinent part:

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).

Accordingly, this item is dutiable. [End of excerpt from Ruling 226826.]

The petitioner states:

We suggest that "maintenance" as used on the invoice is misleading...The 180 degree roll over of the line, was not a repair, in that it was not a replacement, reconditioning, etc. of worn materials or parts. It was an action to extend the life of the piping. See Headquarters Memorandum 108365 PH dated 12 Feb. 1987 reading in part "105(c) This item, rotation of an inert gas pipe, about which you request our advice, should not be dutiable because it is not a repair"

As the excerpt from Ruling 226826 states, supra, it is Customs' position that maintenance operations are dutiable pursuant to 19 U.S.C. 1466. Customs' position is based on judicial guidance. See E.E. Kelly & Co., supra. The fact that Memorandum 108365 found that the rotation of inert gas pipe should not be dutiable because it is not a repair does not persuade us that the subject item is not dutiable. We note that Memorandum 226826 was not a Customs ruling, nor was it in ruling format.

In Ruling 226737 dated March 12, 1996, where we found that hull cleaning (including power washing and hand scraping marine growth) was dutiable pursuant to 19 U.S.C. 1466, we thoroughly discussed the dutiability of maintenance operations.

The petitioner states that this item "was an action to extend the life of the piping." As such, it is a maintenance, or preventive maintenance.

Item 450 is a maintenance item which is dutiable.

HOLDING:

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

Sincerely,

Chief,
Entry and Carrier Rulings Branch

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