HQ 112768: Vessel Repair; 19 U.S.C. 1466; Protest No. 2704-93-101645; Scavenger Cleaning; Vessel Repair Entry No. C27-0082341-5 Date of Entry: January 5, 1993 Date of Arrival: January 3, 1993 Port of Arrival: San Pedro, California Vessel: PRESIDENT EISENHOWER V-83

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 112768

                            July 8, 1993

VES-13-18-CO:R:IT:C  112768 DEC

CATEGORY:  Carriers

Deputy Regional Director
Commercial Operations
Pacific Region
One World Trade Center
Long Beach, California  90831

RE:  Vessel Repair; 19 U.S.C.  1466; Protest No. 2704-93-101645;
     Scavenger Cleaning;
     Vessel Repair Entry No. C27-0082341-5
     Date of Entry:  January 5, 1993
     Date of Arrival:  January 3, 1993
     Port of Arrival:  San Pedro, California
     Vessel:  PRESIDENT EISENHOWER V-83

Dear Sir:

     This letter is in response to your memorandum dated June 8,
1993, which forwards for our consideration a protest of the
assessment of vessel repair duties filed in connection with the
above-referenced vessel.


FACTS:
 
     The record reflects that the PRESIDENT EISENHOWER, an American-
flag vessel, arrived at San Pedro, California, on January 3, 1993.
Vessel repair entry, number C27-0082341-5 was filed on January 5,
1993, indicating that work was performed on the vessel while in
Kaohsiung.  A protest challenging the assessment of vessel repair
duties was timely filed.  The protestant's request for remission
from vessel repair duties with respect to scavenger cleaning is
based on the protestant's contention that scavenger cleaning is a
necessary operation for routine inspections.

     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
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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.


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 110841
(May 29, 1990).  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 106543 (Feb. 27, 1984); C.I.E. 142/61 (Feb. 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).

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     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 protestant 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 protestant'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 protestant 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 111700
(Nov. 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 protestant 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
110911 (Dec. 3, 1990).  The protestant 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
110911.  Moreover, as shown in the previous paragraph, we do not-4-
                                 -4-


believe that the protestant 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 protestant.  Thus, publication of a change of practice was
not required.

     Finally, the protestant contends that the Customs Service has
not held the cleaning of air scavenger spaces to be dutiable since
1982.  Headquarters Ruling 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 protestant 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 protest is therefore
denied.

                                Sincerely,



                                Acting Chief