VES-3-14-CO:R:IT:C 112316 GFM
CATEGORY: Carriers
Mr. Wade R. Loofbourrow
Region I Vessel Supervisor
State of Alaska, Department of Fish & Game
P.O. Box 240020
Douglas, Alaska 99824-0020
RE: Applicability of the coastwise laws to the use of a non-
coastwise-qualified oceanographic research vessel in the
collection of scientific samples.
Dear Mr. Loofbourrow:
Reference is made to your letter of June 9, 1992, in which
you inquire as to the legality of employing foreign-built vessels
in your scientific research operations.
FACTS:
You state that your agency is responsible for resource
management within the State of Alaska. As part of its resource
management program, your agency is charged with collecting
information for scientific analysis in both State and Federal
waters, employing vessels to transport personnel and supplies
relative to scientific research, conducting fishing operations
for stock assessment, enforcing laws pertaining to resource
management, and performing occasional oceanographic research for
other state and federal agencies. Additionally, you state that
your agency sells samples of fish caught during “test fishing”
operations in order to “defray the costs of scientific
operations.” Finally, you state that your agency is
contemplating the deployment of a foreign-built vessel for these
activities and you request advice on the legality of such a
proposal.
ISSUE:
Whether a non-coastwise-qualified vessel may engage in
scientific research activities in U.S. waters which include the
sale of fish samples collected during such activities.
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 the transport of
personnel and supplies relative to scientific research, the
conducting of fishing operations for stock assessment, the
enforcement of fish and game laws, and the occasional
performance of oceanographic research for other state and federal
agencies, 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.
However, in arriving at this conclusion, we stress that the
proposed activities must involve no commercial activity
whatsoever, and that any combination of commercial activity with
the proposed oceanographic research activities presented here
would transform otherwise permissible activities into prohibited
coastwise violations.
Accordingly, your plan to transport collected samples of
fish aboard a foreign-built vessel for later sale would change
the nature of the activity such that transportation of those
samples would constitute transportation of “merchandise other
than the usual supplies and equipment necessary for
(oceanographic) research and/or research specimens or samples,”
pursuant to Headquarters Ruling Letter 110399. As a result, such
activity would constitute a violation of U.S. coastwise laws.
HOLDING:
In accordance with the Law and Analysis section of this
ruling, with the exception of the commercial sale of collected
fish samples, the proposed activities are permissible under the
coastwise laws.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch