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HQ 227126

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September 21, 1996

VES-3-02-RR:IT:EC 227126 GEV

CATEGORY: CARRIER

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.

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

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
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

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