HQ 112454

March 31, 1993

VES-13-18 CO:R:IT:C 112454 GFM

CATEGORY: Carriers

Chief, Technical Branch

Commercial Operations

Pacific Region

1 World Trade Center

Long Beach, CA 90831

RE: Vessel Repair; Modification; Application; Segregation of

Costs; Inspection; Testing; Anchor Chains; Propeller;

Overhead; Survey; Scavenger Air Spaces; 19 U.S.C. 1466;

M/V PRESIDENT MONROE; V-85; Entry No. C27-0061064-8.

Dear Sir:

This letter is in response to your memorandum dated

September 9, 1992, which forwards for our review the application

for relief filed in conjunction with the above-referenced vessel

repair entry.

FACTS:

The vessel PRESIDENT MONROE arrived at the port of Los

Angeles, California, on December 10, 1991, and filed a timely

vessel repair entry. The entry indicates that the vessel

underwent foreign shipyard work at Kaohsiung, Taiwan, Kobe, Japan

and Yokohama, Japan during November of 1991. This application

seeks relief from duty for various inspection, cleaning, repair,

and modification charges incurred during vessel\'s dockage at said

foreign shipyards.

ISSUE:

Whether the cost of foreign shipyard work completed aboard

the subject vessel is dutiable pursuant to 19 U.S.C. 1466.

LAW AND ANALYSIS:

Title 19, United States Code, section 1466(a), 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 be employed in such

trade.

ITEM 509 BOW THRUSTER SURVEY\...\...\...\...\...\...\...\$ 5,662.00

ITEM 509.1 BOW THRUSTER REPAIRS\...\...\...\...\...\.....\$ 850.00

ITEM 509.2 BOW THRUSTER TUNNEL ANODES\...\...\...\.....\$ 1,794.00

ITEM 509.3 BOW THRUSTER TUNNEL BAR REMOVAL\...\...\...\$ 1,450.00

These items represent charges for repairs made to the bow

thrusters. Item 509 contains charges for \"opening and closing

the hatch for inspection, refilling of oil, and renewing shaft

seal.\" Item 509.1 contains charges for \"grit blasting and

coating (sic), and painting\" of the bow thruster. Item 509.2

contains charges for \"renew\[ing\] anodes on bow thruster tunnel.\"

Item 509.3 contains charges for \"remov\[ing\] bow thruster tunnel

bars from tunnel entrances, grind\[ing\] surfaces, welding, and

building-up corroded areas by welding.\"

It is clear from the descriptions contained in the shipyard

invoice that these bow thruster operations are associated with

dutiable repairs.

With regard to Item 509.3, the applicant claims that this

item constitutes a modification as it is a mere removal which

will enhance the vessel\'s operation. We disagree. The item

includes charges for the testing of a repair as well as repairs

of areas not associated with the tunnel bars.

With regard to Item 509.2, the replacement of zinc anodes,

it is also well settled that such operations constitute dutiable

repairs pursuant to Bureau Letter DB 212.6 (July 23, 1958) and

Headquarters Ruling Letters 103327, 111883, 112128, and 112180.

Consequently, as the above items clearly constitute dutiable

transactions, we must assume, absent evidence to the contrary,

that the grit blasting in Item 509.1 and the inspections

undertaken in Item 509 were integral parts of the repairs

undertaken and in accordance with long-standing authority they

must be considered dutiable as well.

ITEM 514 PAD EYE INSTALLATION\...\...\...\...\...\...\....\$ 68,925.00

This item involves the installation of lashing pad eyes.

The invoice indicates that the existing lashing padeyes were

modified and reinforced. Petitioner alleges that this operation

constitutes a modification in that the vessel\'s operating

efficiency was enhanced and the need for maintenance was reduced.

It is the position of the Customs Service that neither

modifications, alterations, or additions to the hull and fittings

of a vessel are subject to vessel repair duties. Over the course

of years, the identification of modification processes has

evolved from judicial and administrative precedent. In

considering whether an operation has resulted in a modification

which is not subject to duty, the following elements may be

considered.

1\. Whether there is a permanent incorporation into the hull or

superstructure of a vessel {see United States v. Admiral Oriental

Line et al., T.D. 44359 (1930)}, either in a structural sense or

as demonstrated by the means of attachment so as to be indicative

of the intent to be permanently incorporated. This element

should not be given undue weight in view of the fact that vessel

components must be welded or otherwise \"permanently attached\" to

the ship as a result of constant pitching and rolling. In

addition, some items, the cost of which is clearly dutiable,

interact with other vessel components resulting in the need,

possibly for that purpose alone, for a fixed and stable

juxtaposition of vessel parts. It follows that a \"permanent

attachment\" takes place that does not necessarily involve a

modification to the hull and fittings.

2\. Whether in all likelihood, an item under consideration would

remain aboard a vessel during an extended layup.

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.

We have held that the removal of an existing, operational

system for the purpose of improving the efficient performance of

the vessel is not dutiable provided that the work was not

performed in conjunction with dutiable repairs. Customs Ruling

108871\. Even if an article is considered to be part of the hull

and fittings of a vessel, the repair of that article, or the

replacement of a worn part of the hull and fittings, is subject

to vessel repair duties.

With regard to this item, we are satisfied that it

constitutes a modification. Accordingly, the cost of this item

(\$ 68,925.00) is non-dutiable.

ITEM 515 HATCH COVERS\...\...\...\...\...\...\...\...\...\...\$
35,000.00

This item involves charges for \"providing labor, material

and shore-crane to (sic) shifting all hatch covers ashore (or on

the bottom of the dock) and replace upon completion of the

inspection.\" Applicant seeks to have these items considered non-

dutiable on the basis that they constitute transportation costs.

According to C.I.E. 1325/58, charges for transportation of parts

and materials between a vessel and a workshop are not dutiable if

itemized separately. Moreover, it is the position of the Customs

Service that \"transportation\" does not include operations

relative to preparing the item for shipping. Thus, labor for

such services as removing a part from its housing or mounting, or

disconnecting an item, etc., does not constitute transportation

and are thus dutiable. See Headquarters Ruling Letter 112211,

dated June 30, 1992. With respect to the case at hand, the

invoice contains consolidated transportation charges and includes

charges for services which may not be included in transportation

costs. Accordingly, the entire cost of the item (\$ 35,000.00) is

dutiable.

ITEM 515.1 HATCH COAMING

Sub-item (a) Repairs\...\...\...\...\...\...\...\...\...\$ 60,215.00

Sub-item (b) Staging\...\...\...\...\...\...\...\...\...\$ 2,000.00

Sub-item (c) Modifications\...\...\...\...\...\...\...\$ 19,900.00

This item consists of three separate elements: Repairs,

staging, and modifications.

Sub-item (a) contains charges for repair operations coupled

with charges for \"administrative overhead\" which is assessed as

an hourly charge by the shipyard intended to cover general

expenses involved in maintaining the shipyard facility during the

repair operations. Applicant acknowledges that the repairs in

sub-item (a) are dutiable, but claims that the administrative

overhead charges are non-dutiable.

Customs has had occasion to consider the dutiability of so-

called \"overhead\" charges (see Customs Ruling 111170, February

21, 1991). In that ruling, we cited a published Treasury

Decision of long standing wherein it was determined that:

Taxes paid on emoluments received by third

parties for services rendered\...and premiums

paid on workmen\'s compensation insurance, are

not charges or fees within the contemplation

of the decision of the Customs Court,

International Navigation Company v. United

States, 38 USCR 5, CD 1836, and are therefore

subject to duty as components of the cost of

repairs under \[section 1466\].

\"Emoluments\" as used in the cited decision would include all

wages, taxes, accounting fees, office space charges, inventory or

mark-up costs, purchasing costs, and management fees.

Accordingly, the general and unspecified \"overhead\" charges

associated with this item, as well as with all the items

contained in this invoice, are considered dutiable. As a result,

the cost of sub-item (a) (\$ 60,215.00) is fully dutiable.

Sub-item (b) contains charges for \"furnish\[ing\] labor,

equipment (sic) and materials to modified (sic) the transverse

box girder inside stifference\" and \"erect\[ing\] \[and removing\]

staging.\" As the repair costs in this sub-item have not been

segregated from the staging costs, the entire cost of the sub-

item (\$ 2,000.00) is dutiable.

Sub-item (c) contains charges for operations which applicant

contends should be considered non-dutiable modifications. After

evaluation of the shipyard invoice and technical drawings, we are

convinced that these operations were modifications. Accordingly,

the cost of this sub-item (\$ 19,900.00) is non-dutiable.

ITEM 515.2 HATCH COVERS

Sub-item (a) Repairs\...\...\...\...\...\...\...\...\...\$ 42,600.00

Sub-item (b) Bearing Pad Modification\...\...\....\$ 200,160.00

Sub-item (c) Hatch Cover Top Repairs\...\...\.....\$ 9,540.00

Sub-item (d) Staging\...\...\...\...\...\...\...\...\...\$ 600.00

This item involves various operations performed relative to

the vessel\'s hatch covers.

Sub-item (a) also contains charges for repair operations

coupled with charges for \"administrative overhead\" which is

assessed as an hourly charge by the shipyard intended to cover

general expenses involved in maintaining the shipyard facility

during the repair operations. Again, applicant acknowledges that

the repairs in sub-item (a) are dutiable, but claims that the

administrative overhead charges are non-dutiable.

Pursuant to previously cited authority, the overhead charges

associated with this item are fully dutiable. Thus, the entire

cost of the sub-item (\$ 42,600.00) is dutiable.

Sub-item (b) contains charges for operations which applicant

contends should be considered non-dutiable modifications. After

evaluation of the shipyard invoice and technical drawings, we are

convinced that these operations were modifications. Accordingly,

the cost of this sub-item (\$ 19,900.00) is non-dutiable.

Sub-item (c) also contains charges for repair operations

coupled with charges for \"administrative overhead\" which is

assessed as an hourly charge by the shipyard intended to cover

general expenses involved in maintaining the shipyard facility

during the repair operations. Again, applicant acknowledges that

the repairs in sub-item (c) are dutiable, but claims that the

administrative overhead charges are non-dutiable. Pursuant to

previously cited authority, the overhead charges associated with

this sub-item are fully dutiable. Thus, the entire cost of the

item (\$ 9,540.00) is dutiable.

Sub-item (d) contains segregated staging costs and is non-

dutiable.

ITEM 516 TAILSHAFT SURVEY

Sub-item (a) Staging\...\...\...\...\...\...\...\...\...\$ 950.00

Sub-item (b) Inspection\...\...\...\...\...\...\...\...\$ 10,883.00

Sub-item (c) Repairs\...\...\...\...\...\...\...\...\...\$ 6,780.00

This item involves operations performed pursuant to repairs

and inspection of the tailshaft.

Sub-item (a) contains segregated staging costs and is non-

dutiable.

Sub-items (b) and (c) contain charges related to preparing

for an inspection of the vessel\'s tailshaft. Applicant asserts

that the charges included in this item should be classified as

non-dutiable incidents to a required inspection.

Customs Service Decision 79-277 stated, \"\[i\]f the survey was

undertaken to meet the specific requirements of a governmental

entity, classification society, insurance carrier, etc., the cost

is not dutiable even if dutiable repairs were effected as a

result of the survey.\"

With increasing frequency, this ruling and subsequent

rulings citing it, have been utilized by vessel owners seeking

relief not only from charges appearing on an ABS or Coast Guard

invoice (the actual cost of the inspection), but also as a

rationale for granting non-dutiability to a host of inspection-

related charges appearing on a shipyard invoice. In light of

this continuing trend, we offer the following clarification.

C.S.D. 79-277 discussed the dutiability of certain charges

incurred while the vessel underwent biennial U.S. Coast Guard and

ABS surveys. That case involved the following charges:

ITEM 29

\(a\) Crane open for inspection.

\(b\) Crane removed and taken to shop. Crane hob

and hydraulic unit dismantled and cleaned.

\(c\) Hydraulic unit checked for defects, OK.

Sundry jointings of a vessel\'s spare renewed.

\(d\) Parts for job repaired or renewed.

\(e\) Parts reassembled, taken back aboard ship

and installed and tested.

In conjunction with the items listed above, we held that a

survey undertaken to meet the specific requirements of a

governmental entity, classification society, insurance carrier is

not dutiable even when dutiable repairs are effected as a result

of the survey. We also held that 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 (emphasis added).

It is important to note that only the cost of opening the

crane was exempted from duty by reason of the specific

requirements of the U.S. Coast Guard and the ABS. The

dismantling and cleaning of the crane hob and hydraulic unit was

held dutiable as a necessary prelude to repairs. Moreover, the

testing of the hydraulic unit for defects was also found dutiable

as a survey conducted to ascertain whether repairs are necessary.

Although the invoice indicates that the hydraulic unit was \"OK,\"

certain related parts and jointings were either repaired or

renewed. Therefore, the cost of the testing was dutiable.

We emphasize that the holding exempts from duty only the

cost of a required scheduled inspection by a qualifying entity

(such as the U.S. Coast Guard or the American Bureau of Shipping

(ABS). In the liquidation process, Customs should go beyond the

mere labels of \"continuous\" or \"ongoing\" before deciding whether

a part of an ongoing maintenance and repair program labelled

\"continuous\" or \"ongoing\" is dutiable.

Moreover, we note that C.S.D. 79-277 does not exempt from

duty the cost of maintenance or repair work done by a shipyard in

preparation of a required survey. Nor does it exempt from duty

the cost of any testing by the shipyard to check the

effectiveness of repairs completed previous to, or found to be

necessary by reason of, the required survey.

The exact nature of the item in question and the

circumstances surrounding it are unclear from the evidence

submitted. It is clear from the invoice, however, that at least

some repairs to the propeller and stern tube did occur. In light

of this, it is not clear whether the inspection was accomplished

to ascertain the effectiveness of repairs or whether the repairs

were a result of the inspection. In any event, in accordance

with C.S.D. 79-277, we hold these items to be dutiable incidents

to repair absent credible evidence to the contrary. Accordingly,

the cost of the item (\$ 17,663.00) is dutiable.

ITEM 519.1 LONGITUDINAL STRUCTURE FR 59-61\...\...\...\$ 39,300.00

ITEM 521 RELOCATE AFT HOSE MACHINERY\...\...\...\...\...\$ 18,562.00

ITEM 522 STORE & HOSE CRANE HYDRAULICS\...\...\...\....\$ 24,900.00

ITEM 530 BOW THRUSTER PIPING\...\...\...\...\...\...\.....\$ 6,773.00

In a supplemental explanatory letter dated April 2, 1992,

the applicant stated that item 519.1 involved the \"crop\[ping\]

back and renew\[ing\] the basic longitudinal structure.\" Applicant

further stated that this operation was necessitated by a \"design

defect\" which, coupled with \"lack of exact fit, (lack of) good

welding, and (lack of) structural continuity\" had led, over the

years, to \"numerous fractures and repairs at the details of

welded connections.\" Items 521, 522, and 530 involved equipment

changes and repairs alleged to constitute modifications.

In C.I.E. 410/52, the Customs Service considered the issue

of design defects. In that case, a casualty occurrence led to an

ABS survey which required the vessel to undertake \"slotting and

strapping of T-2 type tankers\" in order to satisfy inspection

requirements. Relying on a letter from the American Bureau of

Shipping mandating the repairs, the Customs Service held that,

under such circumstances, any resulting work would be considered

non-dutiable modifications.

With regard to these items, the attached American Bureau of

Shipping documentation contains no mention of either the FR 59-

61 BHD structures, the aft crane hose machinery, or the stores

and hose crane hydraulic fitting. Accordingly, the work detailed

in the invoice cannot be considered non-dutiable modifications

and must be held dutiable unless and until evidence is presented

which clearly shows that such work was the result of a design

defect and that the operations undertaken were required by the

inspecting authority.

ITEM 520 FUEL OIL TANK CLEANING\...\...\...\...\...\.....\$ 44,500.00

This item contains charges related to the cleaning of the

fuel oil tank pursuant to fuel oil tank inspections. As it has

long been recognized that general cleaning that is not an

integral part of repairs is not dutiable. See, Traders Steamship

v\. United States, C.D. 1827 (Customs Ct., 1946).

ITEM 525 BALLAST TANK INSPECTIONS\...\...\...\...\...\...\$ 11,859.00

This item involves charges for inspections and surveys of

the ballast tank and associated repair operations. Upon

examining the invoice entry for this item, the exact nature of

the circumstances surrounding it is unclear according to the

evidence submitted. It is clear from the invoice, however, that

at least some repairs to the ballast tanks did occur. In light

of this, it is not clear whether the inspection was accomplished

to ascertain the effectiveness of repairs or whether the repairs

were a result of the inspection. In any event, in accordance

with C.S.D. 79-277, we hold these items to be dutiable incidents

to repair absent credible evidence to the contrary. Accordingly,

the cost of the item (\$ 11,859.00) is dutiable.

ITEM 531 ANCHOR CHAIN & CHAIN LOCKER

Sub-item (a) Range Chains\...\...\...\...\...\...\....\$ 5,418.00

Sub-item (b) Chain Repairs\...\...\...\...\...\...\...\$ 3,260.00

Sub-item (c) Chain Locker\...\...\...\...\...\...\....\$ 3,090.00

This item involves operations undertaken pursuant to anchor

chain repairs and inspections.

It is well settled that cleaning operations which remove

rust and deterioration or worn parts, and which are a necessary

factor in the effective restoration of a vessel to its former

state of preservation, constitute vessel repairs. See C.I.E.

429/61. Customs has long held the cost of cleaning is non-

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. See C.I.E.s 18/48,

820/60, 51/61, 429/61; C.S.D. 2514 and T.D.s 45001 and 49531.

With regard to sub-item (a), although an inspection did take

place, it is clear that the ranging of the anchors was performed

in preparation for the admittedly dutiable repairs in sub-item

(b). Accordingly the charge for this sub-item (\$ 5,418.00) is

dutiable.

Applicant concedes that sub-item (b) (\$ 3,260.00) is

dutiable as a repair.

With regard to sub-item (c), the invoice states that new

gaskets were provided after the job\'s completion. As this

indicates the existence of a non-segregated repair element, the

entire cost of sub-item (c) (\$ 3,090.00) is dutiable.

ITEM 532 MAIN ENGINE SUMP PUMP\...\...\...\...\...\...\...\$ 3,500.00

This item contains charges related to the cleaning of the

main engine sump pump pursuant to inspections. As it has long

been recognized that general cleaning that is not an integral

part of repairs is not dutiable. See, Traders Steamship v.

United States, C.D. 1827 (Customs Ct., 1946).

ITEM 577 HARBOR SALT WATER SERVICE PUMP\...\...\...\...\$ 8,050.00

This item involves charges for cleaning, transporting and

repairing the salt water pump. In accordance with previously

cited authority, the opening of the pump constitutes a dutiable

prelude to repairs, the transportation charge contains

unsegregated disassembly charges, and the \"renewal\" of the

impeller each constitute a dutiable transaction under 19 U.S.C.

1466\. Accordingly, the cost of the item (\$ 8,050.00) is

dutiable.

CF 226 ITEM 20 SCAVENGER AIR SPACES

Entry item #20 indicates 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 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. 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 applicant 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 applicant\'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

applicant 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 applicant 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, dated December 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 Letter 110911. Moreover, as shown in the previous

paragraph, we do not 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 applicant 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 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).

In accordance with the foregoing, the charges for cleaning

of scavenger air spaces are fully dutiable.

ITEM 22 ME/FLAP REED VALVE CHANGE

ITEM 23 DECK DEPARTMENT CLEANING

These items constitute charges on the CF 226 which are

unsupported by additional documentation. As such is the case, we

must hold such items dutiable until evidence detailing their

character is submitted.

HOLDING:

Following a thorough review of the evidence submitted as

well as analysis of the applicable law and precedents, we have

determined that the Application for Review should be allowed in

part and denied in part as set forth in the Law and Analysis

portion of this ruling.

Sincerely,

Acting Chief