HQ 111938: Vessel Repair; Maintenance; Cleaning; Air Scavenger Spaces; 19 U.S.C. 1466; Entry No. C27-0054195-9; SEA-LAND LIBERATOR.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 111938

                        December 17, 1991



VES-13-07/13-18 CO:R:IT:C 111938 MLR

CATEGORY:   Carriers

Deputy Regional Director
Commercial Operations
Pacific Region
1 World Trade Center
Long Beach, CA 90831

RE:  Vessel Repair; Maintenance; Cleaning; Air Scavenger Spaces;
     19 U.S.C. 1466; Entry No. C27-0054195-9; SEA-LAND
     LIBERATOR.

Dear Sir:

     This letter is in reference to your memorandum dated
October 2, 1991, which forwards for our review the application
filed for the above-referenced vessel repair entry.


FACTS:

     The record reflects that the subject vessel, the M/V SEA-
LAND LIBERATOR, arrived at the port of Long Beach, California, on
July 14, 1991.  Vessel repair entry, number C27-0054195-9, was
filed on July 15, 1991.  The entry indicates that the vessel
underwent repairs while in Japan, Hong Kong, Korea, and Taiwan.
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 Sampson Marine Invoice Item
800626.  We will also consider the dutiability of repairing
various handrails and catwalks as invoiced in Hongkong United
Dockyards Invoice Item H014/08--91.

ISSUES:

     I. Whether renewing and rewelding various hand rails and
catwalks constitute dutiable foreign repairs under 19 U.S.C
1466, absent a showing that such repairs were compelled by a
casualty occurrence or stevedore negligence, and were necessary
for the safety and seaworthiness of the vessel to enable her to
reach her port of destination.

     II. 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:

     I. Title 19, United States Code, section 1466, provides in
part for payment of an ad valorem duty of 50 percent of the cost
of foreign repairs to vessels documented under the laws of the
United States to engage in the foreign or coastwise trade, or
vessels intended to engage in such trade.  Section 1466(d)(1)
provides that the Secretary of the Treasury is authorized to
remit or refund such duties if the owner or master of the vessel
was compelled by stress of weather or other casualty to put into
such foreign port to make repairs to secure the safety and
seaworthiness of the vessel to enable her to reach her port of
destination.

     It is noted that section 4.14(c)(3)(i), Customs Regulations
[19 CFR 4.14(c)(3)(i)], provides that "port of destination" means
such port in the United States.  This point is not in dispute,
however, it is an embellishment upon section 1466(d)(1) which
sets forth the following three-part test which must be met in
order to qualify for remission:

     1.  The establishment of a casualty occurrence.

     2.  The establishment of unsafe and unseaworthy conditions.

     3.  The inability to reach the port of destination without
         obtaining foreign repairs.

In addition, if the above requirements are satisfied by
evidence, the remission is restricted to the cost of the minimal
repairs necessary to enable the vessel to reach her port of
destination.  Repair costs beyond that minimal amount are not
subject to remission.

     In the case under consideration, the evidence submitted
(Sea-Land Service Vessel Repair Request) is not adequate to
conform with 19 CFR 4.14(d)(1)(C-F) and does not support the
claim that the subject vessel suffered a marine casualty that
required the vessel to undergo repairs to secure her safety and
seaworthiness to enable her to reach her port of destination.
Rather, the record reflects that the damage to (1) the hand rail
(No. 105408), and (2) the hand hold on top of the buttress
between hatch 1 and 2 (No. 105409) occurred on June 18, 1991, and
June 19, 1991, respectively.  Further, the record reflects that
the vessel underwent repairs, unrelated to the incidents which
caused the damage, in Japan on June 20, 1991.  However, the
repairs to the hand rail and hand hold were not done until the
vessel reached Taiwan on July 1, 1991; therefore, it is not clear
from the evidence that the vessel was in need of repairs to
secure her safety and seaworthiness to enable her to reach her
port of destination from the damage incurred.


     II. 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 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:

     I. The evidence presented is not sufficient to prove that
the foreign repairs performed on the subject vessel were
necessary for her safety and seaworthiness; therefore, the
repairs should be liquidated accordingly.

     II. 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