VES-3-14-CO:R:IT:C 112122 GFM
CATEGORY: Carriers
Ms. April E. Richards
Business Manager
Seafloor Surveys International, Inc.
Pier 66
2201 Alaskan Way, Suite 102
Seattle, Washington 98121
RE: Applicability of the coastwise laws to the use of a non-
coastwise-qualified oceanographic research vessel used to
map ocean floor.
Dear Ms. Richards:
Reference is made to your letter of May 27, 1992, in which
you inquire as to the legality of utilizing a foreign-built
vessel in your scientific research operations.
FACTS:
You state that the M/V ASIA MARU, a survey ship of Japanese
registry owned by the Dokai Tug Boat Company, has been chartered
for the prescribed single mission of mapping the ocean floor over
the route of the planned TPC-5 telecommunications cable. The
vessel will have an operating crew composed of Japanese citizens
and will carry scientists whose sole task is to conduct survey
activities. The ship plans to call the ports of Dutch Harbor,
Alaska; Seattle, Washington; Honolulu, Hawaii; and Agana, Guam
for acquiring provisions, crew rest, and/or scientific crew
changing. You stress that neither passengers for hire nor paid
cargo will be carried aboard the vessel at any time. You request
comment as to whether these proposed operations would violate
U.S. coastwise laws.
ISSUE:
Whether a non-coastwise-qualified vessel may engage in
scientific research activities related to surveying the ocean
floor in U.S. waters.
LAW AND ANALYSIS:
The Act of June 19, 1886, as amended (24 Stat. 81; 46 U.S.C.
App. 289, sometimes called the coastwise passenger law), provides
that:
No foreign vessel shall transport passengers
between ports or places in the United States
either directly or by way of a foreign port,
under a penalty of $200 for each passenger so
transported and landed.
For your information, we have consistently interpreted this
prohibition to apply to all vessels except United States-built,
owned, and properly documented vessels (see, 46 U.S.C. 12106,
12110; 46 U.S.C. App. 883; 19 C.F.R. 4.80).
The coastwise law pertaining to the transportation of
merchandise, section 27 of the Act of June 5, 1920, as amended
(41 Stat. 999; 46 U.S.C. App. 883, often called the Jones Act),
provides that:
No merchandise shall be transported by water,
or by land and water, on a penalty of
forfeiture of the merchandise (or a monetary
amount up to the value thereof as determined
by the Secretary of the Treasury, or the
actual cost of the transportation, whichever
is greater, to be recovered from any
consignor, seller, owner, importer,
consignee, agent, or other person or persons
transporting or causing said merchandise to
be transported), between points in the United
States…embraced within the coastwise laws,
either directly or via a foreign port, or for
any part of the transportation, in any other
vessel than a vessel built in and documented
under the laws of the United States and owned
by persons who are citizens of the United
States…
Under the so-called “First Proviso” to section 883:
…[N]o vessel having at any time acquired
the lawful right to engage in the coastwise
trade, either by virtue of having been built
in, or documented under the laws of the
United States, and later sold foreign in
whole or in part, or placed under foreign
registry, shall hereafter acquire the right
to engage in the coastwise trade.
For purposes of the coastwise laws, a point in the United
States territorial waters is considered a point embraced within
the coastwise laws. The territorial waters of the United States
consist of the territorial sea, defined as the belt, three
nautical miles wide, adjacent to the coast of the United States
and seaward of the territorial sea baseline.
For purposes of section 289, “passenger” is defined in
section 4.50(b), Customs Regulations (19 C.F.R. 4.50(b)), as
“…any person carried on a vessel who is not connected with the
operation of such vessel, her navigation, ownership, or
business.” “Merchandise,” as used in section 883, includes any
article, including valueless merchandise pursuant to the
amendment of section 883 by the Act of June 7, 1988 (Public Law
100-329; 102 Stat. 588).
In its interpretation of the coastwise laws with regard to
the issue under consideration, Customs has long held that the use
of a vessel solely to engage in oceanographic research is not
considered a use in the coastwise trade (see, Headquarters Ruling
Letter 110399, August 23, 1989). We have held that the use of
non-coastwise-qualified vessels to engage in oceanographic
research, including the transportation of persons participating
in the research to, from, and between research sites in United
States territorial waters, whether or not the persons
participating in the research temporarily leave the vessels at
the research sites, would not violate the coastwise laws.
Further, we have held that the collection of marine specimens at
the research sites and the transportation of those specimens from
the research sites to points in the United States would not
violate the coastwise laws. Of course, if such a vessel
transported between coastwise points, or provided part of the
transportation between coastwise points, of any persons other
than the vessel crew and scientists and students engaged in the
oceanographic research or any merchandise other than the usual
supplies and equipment necessary for that research and/or
research specimens or samples, the coastwise laws would be
violated.
This interpretation of the coastwise laws is buttressed by
the Act of July 30, 1965 (Public Law 89-99; 79 Stat. 424; 46
U.S.C. App. 441-444, often called the Oceanographic Research
Vessel Act), as amended, section 3 (46 U.S.C. App. 443) which
provides that “[a]n oceanographic research vessel shall not be
deemed to be engaged in trade or commerce.” In defining the term
“oceanographic research vessel,” this Act defines oceanographic
research as “…including, but not limited to, such studies
pertaining to the sea as seismic, gravity meter and magnetic
exploration and other marine geophysical or geological surveys,
atmospheric research, and biological research” (46 U.S.C. App.
441(1)).
Turning to the case at hand, with regard to activities
related to surveying and mapping of the ocean floor, no violation
of the coastwise laws will occur if such activities constitute
“oceanographic research” pursuant to 46 U.S.C. App. 441(1). As
the list of activities which constitute “oceanographic research”
contained in 46 U.S.C. App. 441(1) is not a complete list, the
Customs Service is afforded qualified authority to fashion
administrative interpretations of that statute. Upon
consideration, we conclude that the above-described activities
would indeed constitute oceanographic research activities which
would not violate the coastwise laws.
HOLDING:
In accordance with the Law and Analysis section of this
ruling, the use of a non-coastwise-qualified vessel to engage in
oceanographic research, specifically, mapping and surveying of
the ocean floor, is permissible under the coastwise laws.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch