VES-3-02-RR:IT:EC 227126 GEV
CATEGORY: Carriers
Robert W. Shavelson
Cook Inlet Keeper
Post Office Box 3269
Homer, Alaska 99603
RE: Coastwise Trade; Water Quality Education; Data Collection; 46
U.S.C. App. 289, 883
Dear Mr. Shavelson:
This is in response to your letter dated July 10, 1996, to
Mr. Daniel C. Holland, Area Port Director, U.S. Customs Service,
Anchorage, Alaska, regarding your organization’s proposed use of
a foreign-built vessel. Your letter was forwarded to this office
for review. Our ruling on this matter is set forth below.
FACTS:
Cook Inlet Keeper is a nonprofit organization located in
Homer, Alaska, whose mission is to help protect water quality in
the Cook Inlet watershed. To fulfill this mission the
organization is considering the purchase of a foreign-built
vessel to be used to take sediment and water samples, and to
educate citizens about water quality issues. In regard to the
sampling efforts, the vessel would typically have on board a crew
of two with 2-4 volunteer members of the organization who will
assist with data collection. For educational purposes, those
persons on board would be taken to various sites around Cook
Inlet to teach them about the ecology and hydrology of Cook
Inlet. In all cases, the vessel would not be used to engage in
commerce or to raise revenue for the organization. Furthermore,
those being transported on the subject vessel would be members of
the organization and would not pay for such transportation.
ISSUE:
Whether the use of a foreign-built vessel by Cook Inlet
Keeper as described above is violative of 46 U.S.C. App. 289
and/or 883.
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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.
Customs has consistently interpreted the above 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 CFR 4.80). Furthermore, for purposes of
the above statute a “passenger” is defined as “…any person
carried on a vessel who is not connected with the operation of
such vessel, her navigation, ownership, or business.” (See 19
CFR 4.50(b))
The coastwise law pertaining to the transportation of
merchandise, 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, in pertinent part, that:
No merchandise,… shall be transported by water, or by
land and
water, on 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 so
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…
The coastwise laws generally apply to points in the
territorial sea, defined as the belt, three nautical miles wide,
seaward of the territorial sea baseline, and to points located in
internal waters, landward of the territorial sea baseline, in
cases where the baseline and the coastline differ. The term
“merchandise” as used in 883, includes any article, including
valueless materials (see amendment to 883 by the Act of June 7,
1988, Pub.L. 100-329; 102 Stat. 588).
In its interpretation of the coastwise laws 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
Customs ruling letters 109344, dated July 6, 1988, and 110399,
dated 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 such
research to, from, and between
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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. Furthermore, 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 any part of such transportation, of any persons other
than the vessel crew, persons engaging in oceanographic research
and students receiving instruction in such research, or any
merchandise other than the usual supplies and equipment necessary
for the 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 (Pub.L. 89-99; 79 Stat. 424; 46 U.S.C.
App. 441-444, often called the Oceanographic Research Vessel
Act), as amended, 3 (46 U.S.C. App. 443) of which provides
that, “An oceanographic research vessel shall not be deemed to be
engaged in trade or commerce.” This Act, in defining the term
“oceanographic research vessel,” 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))
In regard to your inquiry concerning the legal ramifications
of your organization’s proposed use of a foreign-built vessel, we
note at the outset that the transportation of the two crew
members involved would not give rise to any coastwise violation
inasmuch as they are not passengers as defined in 4.50(b),
Customs Regulations. We further note that the transportation of
your organization’s members without remuneration in and of itself
is of no consequence in determining potential coastwise
violations. However, upon reviewing this matter in light of the
above-discussed authority, as well as Customs ruling letter
113277, dated November 23, 1994 (which held the use of a foreign-built vessel for sail training and ecology education not to be a
use in the coastwise trade), we have determined that the data
collection and educational activities to be engaged in by members
of your organization while on board a foreign-built vessel do not
constitute an engagement in the coastwise trade.
HOLDING:
The use of a foreign-built vessel by Cook Inlet Keeper as
described above is not violative of 46 U.S.C. App. 289 and/or
883.
Sincerely,
Chief
Entry and Carrier Rulings Branch