HQ 111618: Protest No. 2002-91-000157; Vessel Repair Entry No. VR-C20-0006468-6; S/S ULTRAMAR; Removal of Debris; 19 U.S.C. 1466

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 111618

                          March 15, 1995

VES-13-18-CO:R:IT:C 111618 GEV

CATEGORY:  Carriers

Port Director
U.S. Customs Service
Vessel Repair Liquidation Unit, Room 303
423 Canal Street
New Orleans, Louisiana 70130-2341

RE:       Protest No. 2002-91-000157; Vessel Repair Entry No. VR-C20-0006468-6; 
     S/S ULTRAMAR;  Removal of Debris; 19 U.S.C.  1466

Dear Sir:

     This is in response to a memorandum from the DARC, Commercial Operations Division,
dated March 28, 1991, forwarding for our review, the above-reference protest.  Our ruling on this
matter is set forth below.

FACTS:

     The record reflects that the S/S ULTRAMAR is a U.S.-flag vessel which had foreign
shipyard work performed on her in Livorno, Italy during the period of  November 1 - 25, 1988. 
The vessel arrived in the port of New Orleans, Louisiana, on December 9, 1988.  A vessel repair
entry covering the work was timely filed on December 13, 1988.

     An application for relief was filed on February 8, 1989.  In response to this application,
Customs issued Headquarters ruling letter 110250, dated May 24, 1990.  A petition for review of
the aforementioned ruling letter was subsequently filed.  Customs issued Headquarters ruling
letter 111204, dated December 7, 1990, denying the petition in full.  The subject entry was
subsequently liquidated on January 18, 1991.

     A protest was filed with Customs on February 19, 1991 challenging Customs position that
the removal of debris following dutiable repairs is subject to duty.  The following supplemental
materials were submitted with the protest:  (1) counsel's letter dated February 18, 1991 (Exhibit
A);  Fincantier Shipyard Invoice No. 15050878 (Exhibit 1); a copy of American Viking Corp. v. 

                              - 2 -

United States, 150 F.Supp. 746, 37 Cust. Ct. 237, C.D. 1830 (1956) (Exhibit 2); a copy of
International Navigation Co., Inc. v. United States, 148 F.Supp. 448, 38 Cust. Ct. 5, C.D. 1836
(1957) (Exhibit 3); a copy of Customs Headquarters Letter 107829 (Exhibit 4); and copies of
invoices pertaining to the aforementioned letter (Exhibits 4(a), 4(b) and 4(c)).

ISSUE:

     Whether the cost of removing debris following dutiable repairs is dutiable under 19 U.S.C.
 1466.

LAW AND ANALYSIS:

     Title 19, United States Code,  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 the foreign or coastwise trade, or vessels intended to
engage in such trade.

     Pursuant to the "but for" test enunciated by the U.S. Court of Appeals for the Federal
Circuit in Texaco Marine Services, Inc. and Texaco Refining and Marketing, Inc. v. United
States, Docket No. 93-1354, decided December 29, 1994 (affirming the decision of the U.S.
Court of International Trade at 815 F.Supp. 1484 (1993)), post-repair cleaning is dutiable under
19 U.S.C.  1466.  Accordingly, the costs for removal of debris following dutiable repairs which
are the subject of this protest are dutiable.

HOLDING:

     The cost of removing debris following dutiable repairs is dutiable under 19 U.S.C.  1466.

     Accordingly, the protest is denied in its entirety.

     In accordance with  3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject:  Revised Protest Directive, this decision should be mailed by your office no later
than 60 days from the date of this letter.  Any reliquidation of the entry in accordance with this
decision must be accomplished prior to mailing the decision.  Sixty days from the date of the                              - 3 -

decision the Office of Regulations and Rulings will take steps to make the decision available to
customs personnel via the Customs Ruling Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public access channels.  

                              Sincerely,




                              Arthur P. Schifflin
                              Chief
                              Carrier Rulings Branch