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HQ 113741




November 8, 1996

VES-3-17-RR:IT:EC 113741 GEV

CATEGORY: CARRIER

Kevin J. McCaffrey
Assistant General Counsel
ASARCO Incorporated
180 Maiden Lane
New York, N.Y. 10038

RE: Coastwise Trade; Third Proviso to 46 U.S.C. App. ? 883; Customs ruling letter 113365

Dear Mr. McCaffrey:

This is in response to your letter dated October 29, 1996, on behalf of ASARCO Incorporated ("Asarco"), requesting confirmation that Asarco will not be in violation of the Jones Act when it purchases from Kennecott Holdings Corporation ("Kennecott") ore concentrates which have been transported from Hawke Inlet, Alaska, to Asarco's facility in Montana. Our ruling in this matter is set forth below.

FACTS:

By letter dated March 7, 1995, counsel to Kennecott requested a ruling on their behalf regarding the applicability of the Third Proviso to the Jones Act (46 U.S.C. App. ? 883) to a proposed transportation of merchandise. Specifically, Kennecott proposed to ship ore concentrates on non-coastwise-qualified vessels from Hawke Inlet, Alaska, to Vancouver Wharves, British Columbia, Canada, where it would be transferred onto rail cars and moved, at least in part, over Canadian rail lines en route to Kennecott's customer's facilities in Montana. Supporting documentation was submitted with counsel's ruling request. Pursuant to ruling letter 113365, dated March 10, 1995, Customs held that the proposed transportation would be in compliance with the Third Proviso to 46 U.S.C. App. ? 883.

You cite to ? 177.9(c), Customs Regulations (19 CFR ? 177.9(c)) which provides that a Customs ruling may only be relied upon by the addressee of the ruling, in this case, Kennecott. Consequently, since Asarco will be receiving these ore concentrates from Kennecott at Asarco's facility in East Helena, Montana, Asarco wishes to be certain that by accepting it, Asarco also will not be in violation of the Jones Act.

ISSUE:

Whether Customs ruling letter 113365 remains in effect thereby enabling Asarco to receive the subject ore concentrates, transported in part by non-coastwise-qualified vessels, without being in violation of 46 U.S.C. App. ? 883.

LAW AND ANALYSIS:

Section 177.9(a), Customs Regulations (19 CFR ? 177.9(a)) provides, in pertinent part, that a ruling letter issued by the Customs Service remains in effect until modified or revoked. Customs has taken no action to either modify or revoke ruling letter 113365. Furthermore, Customs has recently issued information letter 227130, dated November 6, 1996, setting forth our position that notwithstanding the abolition of the Interstate Commerce Commission pursuant to the Interstate Commerce Commission Termination Act of 1995 (Pub. L. 104-88, 109 Stat. 803, the "ICCTA"), Customs ruling letters issued prior to the effective date of that statute (January 1, 1996), authorizing the carriage of merchandise by non-coastwise-qualified vessels under authority of the Third Proviso to 46 U.S.C. App. ? 883, remain in effect unless other action to the contrary is taken by any of the authorized parties referenced therein. No such action has been taken with respect to ruling letter 113365.

Accordingly, Asarco may be assured that by receiving the ore concentrates addressed in ruling letter 113365, it will not be in contravention of the Jones Act.

HOLDING:

Customs ruling letter 113365 remains in effect thereby enabling Asarco to receive the subject ore concentrates, transported in part by non-coastwise-qualified vessels, without being in violation of 46 U.S.C. App. ? 883.

Sincerely,

Chief

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