Protest No. 2002-08-100215; Vessel Repair Entry No. NF4-2371116-9; M/V COURAGE; 19 U.S.C. § 1466; Modification; 19 U.S.C. §§ 1466(d)(2), (h)(2), and (h)(3)

HQ H051395 May 20, 2009 VES-13-18-OT:RR:BSTC:CCI H051395 JLB CATEGORY: Carriers Supervisory Import Specialist Vessel Repair Unit U.S. Customs and Border Protection 1515 Poydras Street, Suite 1700 New Orleans, Louisiana 70112 RE: Protest No. 2002-08-100215; Vessel Repair Entry No. NF4-2371116-9; M/V COURAGE; 19 U.S.C. § 1466; Modification; 19 U.S.C. §§ 1466(d)(2), (h)(2), and (h)(3) Dear Sir: This is in response to your memorandum of January 14, 2009, forwarding the above-referenced application for further review. We have reviewed the arguments set forth by your office and by counsel on behalf of the protestant. Our decision follows. FACTS The subject protest involves shipyard work undergone by the M/V COURAGE. On September 22, 2006, the vessel arrived at the Remontowa Shipyard in Gdansk, Poland for various shipyard work and returned to the United States at the port of Newark, New Jersey on November 16, 2006. A vessel repair entry was timely filed. Interocean American Shipping Corporation (“Interocean”) filed an application for relief of the vessel repair duties assessed on the costs covered in the subject vessel entry. In response thereto, your office issued a decision on April 11, 2008, which denied in part, and granted in part, the application for relief. Accordingly, your office assessed vessel repair duties in the amount of $1,110,726.84. A timely protest was filed thereto for the duties assessed for numerous items. ISSUE Whether the costs for which the protestant seeks relief are subject to duty under 19 U.S.C. § 1466? LAW AND ANALYSIS Pursuant to 19 U.S.C. § 1466(a), there must be a 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 trades. Remontowa Shipyard Invoice: Items 2.03, 2.09, 2.14, 2.15, 3.00, 3.04, 4.03, 5.01 U.S. Customs and Border Protection (“CBP”) has held that where periodic surveys are undertaken to meet the specific requirements of, for example, a classification society or insurance carrier, the cost of the surveys is not dutiable even when dutiable repairs are effected as a result thereof. See Customs Service Decision (C.S.D.) 79-277. 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. Moreover, we note that C.S.D. 79-277 does not exempt repair work done by a shipyard in preparation of a required survey from duty. See C.S.D. 79-277, 13 Cust. Bull. and Dec. 1395, 1396 (1979). The protestant asserts all these items were work performed by the shipyard due to a classification survey; therefore, the costs should be non-dutiable. See Protest at 2; Exhibit A. The burden rests on the protestant to establish, by adequate, clear, and satisfactory documentary evidence, that an item is non-dutiable under 19 U.S.C. § 1466. See Headquarters Ruling Letter 116462, dated May 16, 2005. Our review depends to a great extent on the invoice descriptions of the actual work performed by the shipyard and an unbiased description is required. See Headquarters Ruling Letter 112128, dated June 29, 1992; Headquarters Ruling Letter 111554, dated October 11, 1991; Headquarters Ruling Letter 113233, dated February 23, 1996. The protestant has not met this burden of proof as the shipyard invoice does not provide sufficient descriptions of each item to determine the scope of the work performed. The protestant also provides a certificate from its own port engineer and an accompanying Exhibit A which contains descriptions of the shipyard work that was performed on each item. It is CBP’s position that internally-generated documents, without more, do not constitute sufficient evidence that the item is non-dutiable. See Headquarters Ruling Letter 111942, dated March 15, 1995 (an internal memorandum is not sufficient evidence and thus, the work in question was held to be dutiable); Headquarters Ruling Letter 110717, dated June 28, 1990 (when the submission contains no statement by the shipyard as to the condition of the vessel prior to the commencement of the work or exact nature of the work performed and the only proof offered is a set of barely-intelligible, hand- drawn sketches and a self-serving statement as to the nature of the work signed by an employee of the petitioner, this is not sufficient evidence of non-dutiability). Both the certificate from the port engineer and the accompanying Exhibit A are documents which appear to be prepared by the protestant. Considering that there is no third-party corroborating evidence, the documentation provided is insufficient to support non-dutiability. Accordingly, these items are held dutiable. Section 2—U.S. vendors Title 19, United States Code, Section 1466(h)(2) (19 U.S.C. § 1466(h)(2)), provides, in pertinent part, that the duty imposed by subsection (a) shall not apply to "…the cost of spare repair parts or materials (other than nets or netting) which the owner or master of the vessel certifies are intended for use aboard a cargo vessel, documented under the laws of the United States and engaged in the foreign or coasting trade, for installation or use on such vessel, as needed, in the United States, at sea, or in a foreign country, but only if duty is paid under appropriate commodity classifications of the Harmonized Tariff Schedule of the United States upon first entry into the United States of each such spare part purchased in, or imported from a foreign country…" The plain language of 19 U.S.C. § 1466(h)(2) states that it applies only to parts or materials and does not allow for duty-free treatment of equipment. See Headquarters Ruling Letter 113700, dated March 26, 1998. A part under 19 U.S.C. § 1466 is determined to be something that does not lose its essential character or its identity as a distinct entity, but which, like materials, is incorporated into a larger whole. It would be possible to disassemble an apparatus and still be able to readily identify a part. The term part does not mean part of a vessel, which would essentially encompass all elements necessary for a vessel to operate in its trade. Examples of parts as defined are seen in such items as piston rings and preformed gaskets.For purposes of 19 U.S.C. § 1466, the term materials is determined to mean something which is consumed in the course of its use, and or loses its identity as a distinct entity when incorporated into the larger whole. Some examples of materials as defined are seen in such items as a container of paint which is applied to vessel surfaces, and sheets of steel which are incorporated into the hull and superstructure of a vessel. The term equipment is defined as something that constitutes an operating entity unto itself. Equipment retains at least the potential for portability. Equipment may be affixed to a vessel in a non-permanent fashion, such as by means of bolts or other temporary methods, which is a feature distinguishing it from being considered an integrated portion of the hull and superstructure of a vessel. Examples of equipment as defined are seen in such items as winches and generators. Pursuant to 19 U.S.C. § 1466(d)(2), a duty may be remitted if good and sufficient evidence is provided establishing “such equipments…were manufactured or produced in the United States, and the labor necessary to install such equipments or to make such repairs was performed by residents of the United States, or by members of the regular crew of such vessel.” Therefore, a two-prong test must be met with respect to granting duty-free treatment to the installation of equipment: (1) U.S. manufacture or production must be established, and (2) the labor must have been performed by U.S. residents or members of the regular crew of the vessel. 06R0366 Invoice 06R0366 applies to batteries, which were purchased from a company based in Jacksonville, Florida but who, if the certificate is to be believed, imported the batteries. CBP has held batteries to be equipment, rather than parts and materials. See Headquarters Ruling Letter 111654, dated December 24, 1991; Headquarters Ruling Letter H008155, dated April 16, 2008. Consequently, we find that these items are equipment, and, thus, are not eligible for duty-free treatment pursuant to 19 U.S.C. § 1466(h)(2). Since the batteries are equipment, 19 U.S.C. § 1466(d)(2) is to be considered. In the aforementioned certificate, the protestant admits that the item was not “made in the United States,” thus, 19 U.S.C. § 1466(d)(2) is not applicable in this instance. 06R5066 This invoice is for the simplified voyage data recorder (“SVDR”) installation. See Invoice 06R5066. The item in question is stated to be a voyage data recorder, allegedly similar to the “black box” used by an aircraft, installed with the same purpose of improving safety by determining the cause of any incidents or casualties that occur on the vessel. The protestant provides that the installation involves installing electronic sensors in various parts of the vessel including several microphones for the bridge audio and radio communications, GPS data for the date time and position, ship’s heading from the gyro, speed from the log, radar pictures at all time, depth, engine demand and response, main alarms, rudder order and response, etc. This is stated to require running wires and installing sensors to record the status of machinery onboard, interfacing and recording this data as well as providing emergency battery backup for the system. See Protest at 5-6. The protestant asserts two independent arguments as to why the S-VDR System is non-dutiable. The first is that the SVDR equipment was sold to Interocean by an unaffiliated U.S. vendor who imported it duty-paid into the United States. The protestant asserts that the dutiability of this item should be based on whether the U.S. invoice and other documentation constitute sufficient evidence that the product was entered in the U.S. duty-paid. See Protest at 4-5. The protestant provides a certificate declaring that the SVDR was imported by Sea Coast Electronics into the United States, duty-paid, and then sold to Interocean and shipped to Poland as such proof. See Protest at Tab D. It is the Vessel Repair Unit (“the VRU”)’s position that the system constitutes “equipment” and should be held dutiable. As stated above, the plain language of 19 U.S.C. § 1466(h)(2) states that it applies only to parts or materials and does not allow for duty-free treatment of equipment. See Headquarters Ruling Letter 113700, dated March 26, 1998; Headquarters Ruling Letter 116061, dated November 17, 2003. Since a SVDR is very similar to a vessel’s radar system and satellite communication system, which have both been found to be dutiable equipment (see Headquarters Ruling Letter 114092, dated September 12, 1997), we determine that a SVDR is also dutiable equipment. The protest contains a reference to the term ‘equipment’ when it refers to the SVDR. The accompanying certificate by the vendor that this item was imported into the United States, not manufactured domestically means that relief under 19 U.S.C. § 1466(d)(2) is not granted. The second argument asserted by the protestant is that the installation of the SVDR System is a modification. In its application of the vessel repair statute, CBP has held that modifications, alterations, or additions to the hull and fittings of a vessel are not subject to vessel repair duties. The factors considered in identifying work constituting modifications, vis-à-vis work constituting repairs, have evolved from judicial and administrative precedent. See Otte v. United States, 7 Ct. Cust. Appls. 166, Treasury Decision (T.D.) 36489 (1916); United States v. Admiral Oriental Line et al., 18 C.C.P.A. 137, Treasury Decision (T.D.) 44359 (1930); see also Cust. Bull. and Dec., Vol. 31, No. 40 (Oct. 1, 1997). These factors include: 1. Whether there is a permanent incorporation into the hull or superstructure of a vessel. 2. Whether in all likelihood an item under consideration would remain aboard a vessel during an extended lay-up.3. Whether, if not a first time installation, an item under consideration replaces a current part, fitting or structure which is not in good working order. 4. Whether an item under consideration provides an improvement or enhancement in operation or efficiency of the vessel. These factors are not by themselves necessarily determinative, nor are they the only factors which may be relevant in a given case. However, in a given case, these factors may be illustrative, illuminating, or relevant with respect to the issue of whether certain work may be a modification of a vessel which is non-dutiable under 19 U.S.C. § 1466. The protestant claims that the SVDR installation is a permanent incorporation into the hull or superstructure of the vessel that “is required by Annexes 26 and 27 to the International Convention for the Safety of Life at Sea” for all cargo ships and that “it also provides an improvement or enhancement in operation or efficiency of the vessel, for it is a required installation.” See Protest at 6-7. It is important to note, however, that even if the installation of the SVDR was such a requirement, this alone is not dispositive of a modification claim. In fact, CBP’s position has been consistently set forth as follows: It should be noted that the fact that a change or addition of equipment is made to conform with a new design scheme, or for the purpose of complying with the requirements of statute or code, is not a relevant consideration. Therefore, any change accomplished solely for these reasons, and which does not constitute a permanent addition to the hull and fittings to the vessel, would be dutiable under section 1466. See, e.g., Headquarters Ruling Letter 114092, dated September 12, 1997; Headquarters Ruling Letter 111230, dated November 8, 1990; Headquarters Ruling Letter 111272, dated November 2, 1990. Given that we have already determined that the SVDR is vessel equipment and thus not a permanent addition to the hull and fitting to the vessel, this item is held dutiable. See Headquarters Ruling Letter H052778, dated May 7, 2009; Headquarters Ruling Letter H047587, dated May 11, 2009. 06R5166 The protestant makes reference to invoice 06R5166 in the protest (see Protest at 4) yet there is no invoice or purchase order with that number included in the entry. Thus, we believe that the correct invoice number is 06R5516, which is for the work performed to “provide and install Furano FAR2827 radar, 6.6 antenna, pedestal, GC10 Gyro converter”. See Invoice 06R5516. The protestant asserts non-dutiability under 19 U.S.C. § 1466(h)(2). However, as stated above a vessel’s radar system constitutes equipment, thus 19 U.S.C. § 1466(h)(2) is inapplicable. See Headquarters Ruling Letter 114092, dated September 12, 1997; Headquarters Ruling Letter 113700, dated March 26, 1998; Headquarters Ruling Letter 113798, dated January 9, 1997. The accompanying certificate by the vendor that this item was imported into the United States, not manufactured domestically, means that relief under 19 U.S.C. § 1466(d)(2) is not granted. See Protest at Tab D. This item is held dutiable. 06R5456 This item concerns two invoices for paint. See Invoices 73797 (06R5456) and 75128. The protestant provided a certificate from the vendor that states that the paint in invoice 73797 (06R5456) was manufactured in the United States and in accordance with 19 U.S.C. § 1466(d)(2), the VRU granted this invoice fully non-dutiable at the time of the determination of duty. With respect to invoice 75128, the protestant provides a certificate that stated that the paint was not produced in the United States and attached a CBP Form 7501 continuation sheet to demonstrate that the paint was imported into the United States, duty-paid. See Protest at Tab I. Thus, the protestant asserts that relief should be granted under 19 U.S.C. § 1466(h)(2) and cites Headquarters Ruling Letter 114686, dated September 7, 1999. In that case, CBP expanded 19 U.S.C. § 1466(h)(2) from applying only to foreign-made imported parts or materials to U.S.-made parts or materials so as not to discourage the use of U.S.-made parts and materials in foreign repairs. Thus, it was determined that paint manufactured in the United States and delivered to the foreign shipyard was non-dutiable under 19 U.S.C. § 1466(h)(2). That case is irrelevant in this instance since the protestant provided a certificate stating that the paint was not manufactured in the United States. If an article is claimed to have been previously entered for consumption, duty paid by the vessel operator, there must be proof of this fact in the form of a reference to the consumption entry number for that previous importation, as well as to the U.S. port of importation. See Headquarters Ruling Letter 114686, dated September 7, 1999. The protestant did not provide sufficient evidence to support such a claim. See Protest at I. Thus, this item is held dutiable. 06R0124 This invoice covers D-rings for carlashing and holders for the D-rings. See Invoice 06R0124. The VRU denied relief at the application stage on the basis that although these items were purchased from a U.S. vendor, there was no certification of U.S. manufacture as required by 19 U.S.C. § 1466(d)(2). In the protest, however, the protestant provides a certificate that the goods were either made in the United States or imported into the United States and asserts non-dutiability under 19 U.S.C. § 1466(h)(2). See Protest at Tab J. The plain language of 19 U.S.C. § 1466(h)(2) states that it applies only to parts or materials and does not allow for duty-free treatment of equipment. See Headquarters Ruling Letter 113700, dated March 26, 1998. The term equipment is defined as something that constitutes an operating entity unto itself. Equipment retains at least the potential for portability. Equipment may be affixed to a vessel in a non-permanent fashion, such as by means of bolts or other temporary methods, which is a feature distinguishing it from being considered an integrated portion of the hull and superstructure of a vessel. Examples of equipment as defined are seen in such items as winches and generators. D-rings for carlashing and the holders for the D-rings are metal rings used as a means of securing cars to the vessel and would be affixed to the vessel in a non-permanent fashion. Thus, the D-rings and holders constitute equipment and 19 U.S.C. § 1466(h)(2) is inapplicable. Considering that the certificate does not specify whether the goods were made in or imported into the United States, no relief is available under 19 U.S.C. § 1466(d)(2). Accordingly, this item is held dutiable. 06R0374 This invoice is for lifejackets, lights and whistles. See Invoice 06R0374. The VRU initially denied relief on the basis that no certificate of U.S. manufacture was provided to prove that these items were purchased in the United States. The protestant contends that 19 U.S.C. § 1466 only applies to purchases made abroad, not to purchases made in the United States and then shipped abroad to the vessel. As a result, the protest offers proof that the lifejackets were purchased in the United States and then shipped from Houston to Poland. “Dutiable equipment" has been defined to include: “...portable articles necessary or appropriate for the navigation, operation, or maintenance of a vessel, but not permanently incorporated in or permanently attached to its hull or propelling machinery, and not constituting consumable supplies.” See United States v. Admiral Oriental Line et al., 18 C.C