HQ H010661 - Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b) - United States International Trade Commision Rulings

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HQ H010661

May 4, 2007

VES-3-OT:RR:BSTC:CCI H010661 LLB

CATEGORY: CARRIER

Mr. Micah Kiaha
Inchcape Shipping Services
521 Ala Moana Boulevard, Suite 256
Honolulu, Hawaii 96813

RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b)

Dear Mr. Kiaha:

This is in response to your correspondence of May 1, 2007, requesting in which you inquire about the coastwise transportation of the individual mentioned therein aboard the M/V EXPLORER. Our decision follows.

FACTS

The voyage in question involves the transportation of the subject individual aboard the non-coastwise-qualified M/V EXPLORER (the “vessel”) from Honolulu, Hawaii to San Diego, California. The individual is scheduled to embark in Honolulu on May 7, 2007, and disembark in San Diego on May 14, 2007. The subject individual will deploy ocean floats and National Oceanic and Atmospheric Association (NOAA) surface drifters in international waters.

ISSUE

Whether the use of a non-coastwise-qualified vessel to transport the subject individual, who will be engaged in oceanographic research, specifically, deploying ocean floats and NOAA surface drifters, is permissible under the coastwise laws.

LAW and ANALYSIS

Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.”

The coastwise laws generally apply to points in the territorial sea, which is 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. The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103

Recodified by Pub. L. 109-304, enacted on October 6, 2006. which provides:

(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. (b)Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.

The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide:

A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business.

19 C.F.R. § 4.50(b).

CBP has long held that the use of a vessel solely to engage in oceanographic research is not coastwise trade. HQ 110399 (Aug. 23, 1989); HQ 109815 (Dec. 5, 1988); and HQ 109344 (July 6, 1988). 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. HQ 113461 (June 8, 1995); HQ 112122 (July 22, 1992). 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, also known as the “Oceanographic Research Vessel Act,” Pub.L. 89-99; 79 Stat. 424; 46 U.S.C. § 2101(18). 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. § 2101(18).

Accordingly, the use of a non-coastwise-qualified vessel for the purpose of conducting oceanographic research in the form of deploying ocean floats and NOAA surface drifters, including the transportation of the subject and equipment/materials necessary to complete that mission, is not violative of the coastwise laws.

HOLDING

In accordance with the Law and Analysis section of this ruling, the use of a non-coastwise-qualified vessel to transport the subject individual, who will be engaged in oceanographic research, specifically, deploying ocean floats and NOAA surface drifters, is permissible under the coastwise laws.

Sincerely,

Glen E. Vereb
Chief

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