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HQ 111617

March 15, 1995

VES-13-18-CO:R:IT:C 111617 GEV


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

RE: Protest No. 2002-90-001679; Vessel Repair Entry No. VR-C20-0006274-8; S/S ULTRASEA; Cleaning; 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.


The record reflects that the S/S ULTRASEA is a U.S.-flag vessel which had foreign shipyard work performed on her in Lisbon, Portugal, during October and November of 1987. The vessel arrived in the port of New Orleans, Louisiana, on November 19, 1987. A vessel repair entry covering the work was timely filed on November 20, 1987.

An application for relief, dated April 14, 1988, was filed. In response to this application, Customs issued Headquarters ruling letter 109569, dated December 12, 1989. A petition for review of the aforementioned ruling letter was subsequently filed. Customs issued Headquarters ruling letter 110841, dated May 29, 1990, granting in part and denying in part the petition for review. The subject entry was subsequently liquidated on July 20, 1990. A protest with supplemental materials was filed with Customs on October 18, 1990, challenging Customs position that certain cleaning and inspection costs under the following items are subject to duty: Items H-61-A; H-69; H-96; H-99; and E-2.


Whether the costs for which the protestant seeks relief are dutiable under 19 U.S.C. ? 1466.


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)), the cleaning costs which are the subject of this protest (Items H-61-A, H-69, H-96 and E-2) are dutiable under 19 U.S.C. ? 1466.

In regard to the dutiability of Item H-99 (the only item under protest that does not involve cleaning), to support a claim for relief the protestant has submitted a copy of a U.S. Coast Guard regulation pertaining to a weight test of a lifeboat installation (Exhibit 7). This documentation, without more, does not alter our position as to the dutiability of this item.


The costs for which the protestant seeks relief are 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 the decision must be accompanied prior to mailing of the decision. Sixty days from the date of the
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.


Arthur P. Schifflin

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