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HQ 115065

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July 3, 2000

VES-5-RR:IT:EC 115065 GEV

CATEGORY: CARRIER

Allan J. Martocci
Acting Port Director
U.S. Customs Service
2d and Chestnut Streets
Philadelphia, PA 19106

RE: Tug and Barge; Entry and Clearance; 19 U.S.C. § 1434; 46 U.S.C. App. § 91

Dear Mr. Martocci:

This is in response to your letter dated May 31, 2000, requesting a ruling regarding a tug and barge situation that occurs on a frequent basis at the Port of Philadelphia. The ruling you seek is set forth below.

FACTS:

The Port of Philadelphia has encountered numerous instances where a U.S.-documented tug towing a U.S.-documented barge departs for a Very Large Crude Carrier (VLCC) located on the high seas outside United States territorial waters. The tug does not deliver or receive merchandise, however, the barge does receive merchandise. Subsequent to the barge’s receipt of merchandise, the tug tows the barge back to the Port of Philadelphia.

ISSUE:

Whether, under the facts as described above, a U.S.-documented tug and/or barge are subject to Customs vessel entry and clearance requirements pursuant to 19 U.S.C. § 1434 and 46 U.S.C. App. § 91, respectively.

LAW AND ANALYSIS:

Title 19, United States Code, § 1434(a)(4), provides in part, that formal entry of any vessel arriving at any port or place in the United States must be made for:
any vessel which has visited a hovering vessel or has delivered or received merchandise while outside the territorial sea; (emphasis added)

Title 46, United States Code Appendix, § 91(a)(3), provides that any vessel of the United States shall obtain clearance from the Customs Service before proceeding from a port or place in the United States—
outside the territorial sea to visit a hovering vessel or to receive merchandise while outside the territorial sea. (emphasis added)

With respect to the factual scenario posed above, only the barge is subject to the statutory requirements to enter and clear by virtue of its having received merchandise from a location outside the U.S. territorial sea. The mere towing by the tug, without it actually delivering and/or receiving merchandise, does not bring the tug within the purview of these statutes.

Parenthetically, we note that title 19, United States Code, § 1441(6), exempts from the above-referenced vessel entry and clearance requirements, “Tugs which are documented under chapter 121 of Title 46 [46 U.S.C.A. § 12101 et seq.], with a Great Lakes endorsement when towing vessels which are required by law to enter and clear.” In this regard we note that 46 U.S.C. § 12107, the statutory provision providing for the aforementioned Great Lakes endorsement, was repealed pursuant to Pub. L. 104-324, effective October 19, 1996. Consequently, we have determined that in the absence of further clarification by Congress in this matter, Pub. L. 104-324 is tantamount to a de facto repeal of the exemption provided in 19 U.S.C. § 1441(6).

HOLDING:

Under the facts as described above, only the U.S.-documented barge is subject to Customs vessel entry and clearance requirements pursuant to 19 U.S.C. § 1434 and 46 U.S.C. App. § 91, respectively.

Sincerely,

Acting Chief

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