HQ 0112436 - Coastwise Trade; Waste Disposal; 46 U.S.C. App. 883 - United States International Trade Commision Rulings

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HQ 112436

September 16, 1992

VES-3-06/07/12-CO:R:IT:C 112436 GEV

CATEGORY: CARRIER

Ferguson Finlay
Vice President
The Frenzinger-Finlay Group
5520 Starboard Court
Fairfax, Virginia 22032

RE: Coastwise Trade; Waste Disposal; 46 U.S.C. App. 883

Dear Mr. Finlay:

This is in response to your letter dated August 28, 1992, requesting a ruling regarding the applicability of 46 U.S.C. App. 883 to your proposed waste disposal operation. Our ruling on this matter is set forth below.

FACTS:

A Canadian shipbuilder has been given the opportunity to participate in an international (United States, Canada and Mexico) program to build ships for the conveyance of waste to an ocean disposal site beyond the United States 200 mile Exclusive Economic Zone (EEZ). The concept of disposal is called "Deep Ocean Isolation" (DOI) which would be carried out in the abyssal plains of the world's oceans without contamination to the water column. Because much of the waste emanates in the United States, it is conceivable that a Canadian-built vessel engaged in this international endeavor could be employed in transporting waste from a United States port to the DOI site.

ISSUE:

Whether the transportation of waste by a Canadian-built vessel from a United States port to a point beyond the 200 mile United States EEZ for disposal constitutes a violation of 46 U.S.C. App. 883.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, section 883 (46 U.S.C. App. 883), the coastwise merchandise statute often called the "Jones Act", provides, in part, that no merchandise shall 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 vessel other 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 (i.e., a coastwise-qualified vessel). This statute has been found to apply even to the transportation of merchandise from point to point within a harbor.

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. (It should be noted that although Presidential Proclamation 5928 of December 27, 1988, extended the U.S. territorial sea to 12 miles, this extension is only for international purposes. Thus, Customs enforcement activities are not altered as a result of the proclamation.)

The term "merchandise" is defined in 46 U.S.C. App. 883 as including valueless material. Consequently, waste is merchandise for purposes of the statute. In addition, the statute further provides that the prohibitions set forth therein are applicable to the transportation of valueless material "...from a point or place in the United States or a point or place on the high seas within the Exclusive Economic Zone as defined in the Presidential Proclamation of March 10, 1983, to another point or place in the United States or a point or place on the high seas within that Exclusive Economic Zone."

The EEZ is defined in Presidential Proclamation 5030 of March 10, 1983 (48 FR 10605), as extending outward for 200 nautical miles from the baseline from which the territorial sea is measured.

Accordingly, the transportation of waste by a Canadian- built vessel from a United States port to a point beyond the 200 mile United States EEZ for disposal does not constitute a violation of 46 U.S.C. App. 883.

HOLDING:

The transportation of waste by a Canadian-built vessel from a United States port to a point beyond the 200 mile United States EEZ for disposal does not constitute a violation of 46 U.S.C. App. 883.

Sincerely,

B. James Fritz

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