HQ 112407: Vessel Repair; Los Angeles Vessel Repair Entry No. C27- 0061007-7; dated August 10,1992; M/V PRESIDENT ADAMS; Voyage 29; Petition for Relief; Maintenance; Cleaning; Air Scavenger Spaces; 19 U.S.C 1446

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 112407

                        February 23, 1993

VES-13-18/13-07  CO:R:IT:C  112407 BEW

CATEGORY:  Carriers

Deputy Regional Director
Commercial Operations
Pacific Region
1 World Trade Center
Long Beach, California 90831-0700

RE:  Vessel Repair; Los Angeles Vessel Repair Entry No. C27-
     0061007-7; dated August 10,1992; M/V PRESIDENT ADAMS; Voyage
     29; Petition for Relief; Maintenance; Cleaning; Air
     Scavenger Spaces; 19 U.S.C 1446

Dear Sir:

     This is in response to a memorandum dated May 6, 1992, that
forwards a Petition for Relief from duties assessed under the
provisions of title 19, United Stated Code, Section 1466 in
vessel repair entry No. C27-0061007-7, relating to the M/V
PRESIDENT ADAMS, Voyage 29. 

FACTS:

     The M/V PRESIDENT ADAMS arrived at the port of Los Angeles,
California, on August 10, 1991, and filed a timely vessel repair
entry.  The entry indicated that the vessel underwent foreign
shipyard work to remove carbon and oil deposits from the main
engine 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 gases 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 gases 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.

     An application for relief was timely filed by the vessel
operator in which it was claimed that the cleaning of the air
scavenger spaces was not subject to duty under  1466.  This
office denied this claim (see Headquarters Ruling No. 111935 LLB,
dated February 3, 1992, and Item 4 - Cleaning of Air Scavenger
Spaces was found to be dutiable.  The petition for relief centers
primarily around Item 4.

ISSUE:

     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:

     Title 19, United States Code, section 1466, provides in
pertinent part for payment of duty in the amount 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 engage in such trade.

     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.  The court determined that the
removal of dirt and foreign matter from the boxes 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 petitioner cites this line of judicial and
administrative decisions and contends that these decisions
establish a position of the Customs Service with regard to the
dutiability of cleaning air scavenger spaces.  We do not dispute
that this line of decisions generally establishes the position of
the Customs Service on the non-dutiability of cleaning operations
unrelated to repairs or the dutiability of maintenance
operations.  However, the precise issue presented is whether the
cleaning of air scavenger spaces may be characterized as simple
cleaning or as maintenance, not whether cleaning or maintenance
operations are dutiable or non-dutiable.   

     The petitioner's conclusion that the cleaning of air
scavenger spaces is a "simple" cleaning and is a fortiori not
subject to duty based on the decisions cited is untenable.  The
petitioner attempts to characterize the cleaning of air scavenger
spaces as "simple" cleaning needed only for inspection of the
engine valves.  This characterization fails, however, to include
the threat of fire or explosion posed by the failure to properly
maintain the scavenger spaces.  It further fails to note the
decline in efficiency of the engines that results from the
collection of the carbon and oil deposits in the air scavenger
spaces.  As stated in our previous rulings, the collection of
carbon and oil deposits results in a deterioration--as manifested
in the safety and efficiency problems--of the air scavenger
spaces that may only be corrected by cleaning the air scavenger
spaces.  (See generally Headquarters Ruling Letter 111700, dated
November 19, 1991.)  We therefore reaffirm our position that
cleaning air scavenger spaces is a maintenance operation that is
subject to duty under 19 U.S.C.  1466.

     The petitioner contends that the Customs Service did not
publish its "surprise change of position" as required by the
Administrative Procedure Act and the Customs Regulations.  The
Customs Regulations require the publication in the Federal
Register with an opportunity for public comment of a ruling that
has the effect of changing a practice that results in a higher
rate of duty. 19 C.F.R.  177.10(c)(1) (1992).  The Customs
Service first addressed the issue of cleaning air scavenger
spaces in Headquarters Ruling Letter 110911 BEW, dated 
December 3, 1990.  The petitioner has failed to cite a ruling or
to demonstrate otherwise that the Customs Service had in fact
established a position on the dutiability under 19 U.S.C.  1466
of the cleaning of air scavenger spaces prior to Headquarters
Ruling Letter 110911.  Moreover, as shown in the previous
paragraph, we do not believe that the petitioner has demonstrated
that the holding in Headquarters Ruling Letter 110911 deviates
from existing judicial decisions or results in a reversal or
modification of any of the existing administrative rulings.  We
submit that the reasoning and conclusion of that letter and
subsequent rulings on the issue are consistent with the precedent
identified in those ruling letters and by the petitioner.  Thus,
publication of a change of practice was not required.

     Finally, the petitioner contends that the Customs Service
has not held the cleaning of air scavenger spaces to be dutiable
since 1982.  Headquarters Ruling Letter 110911 was issued in
response to an application for relief forwarded by the New York
Vessel Repair Liquidation Unit (VRLU) following which we learned
that from 1982 to 1990 the San Francisco VRLU had not been
assessing duty whereas the two other regional VRLU's were. 
Absent a ruling letter or a published statement of position, we
hold that the petitioner cannot rely on determinations made by
the San Francisco VRLU to establish a position of the Customs
Service.  (See Superior Wire v. United States, 7 Fed. Cir. (T)
43, 45-46, 867 F.2d. 1409, 1412-13 (1989).)

HOLDING:

     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.  The petition is therefore
 denied.  Please refer this matter immediately for liquidation,
and inform the petitioner of the right to file a protest upon the
posting of the bulletin notice of liquidation.
                         
                              Sincerely,




                              Stuart P. Seidel
                              Director, International Trade
                              Compliance Division