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HQ H014893

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August 2, 2007

VES-10-01-OT:RR:BSTC:CCI H014893 LLB

Category: CARRIER

Mr. Mauricio Garrido
Titan Salvage
410 SW 4th Terrace
Dania, FL 33004

RE: Coastwise transportation; Salvage; vessel removal; Outer Continental Shelf; 43 U.S.C. 1333(a); 46 U.S.C. 55102, 55103, 80104

Dear Mr. Garrido:

This is in response to your July 23, 2007, request to issue a ruling concerning the application of certain Customs and Border Protection (CBP) statutes and regulations to the operations of a foreign-flag salvage barge off of the coast of Washington. Our decision follows.

FACTS

Titan Salvage (Titan) has been contracted to provide salvage services to remove the wreckage of the F/V MILKY WAY. The MILKY WAY (the vessel) is a fishing vessel located at coordinates 47 51.9’N and 124 86.4’W, which is off the coast of La Push, Washington in the Olympic Coast National Marine Sanctuary. According to the U.S. Coast Guard’s incident report, which includes a map where the wreckage is located; the wreckage is four nautical miles from La Push. The vessel has 2,500 gallons of fuel aboard which has the possibility of leaking.

In order to salvage the wreckage, Titan proposes the using the Canadian-flag barge, the ARCTIC TUK, (the barge). The barge would be towed from Vancouver, Canada by a U.S. flagged tugboat to the vessel wreckage site where it would moor to the seafloor on a four to six point arrangement. The vessel would be lifted from the sea floor to the water’s surface by the barge’s crane using two slings at which time the barge’s trash pumps will dewater the vessel. Subsequently, depending on site conditions at the time of the foregoing, the vessel will be either be lifted onto the barge or stabilized and hipped up to the barge.

Once the vessel has been dewatered and loaded onto or hipped up to the barge, the barge will proceed to Neah Bay, Washington or Port Angeles, Washington where the vessel will be unloaded. The barge will then be towed back to Vancouver.

Issue

Whether a foreign-flag barge may be used for the above-described salvage operation without violating 46 U.S.C. §§ 55102(b), 55103(a), and 80104.

Law and Analysis

Pursuant to 46 U.S.C. § 55102(b), the merchandise coastwise law often called the “Jones Act”, 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 one that is coastwise-qualified, i.e. U.S.-built, owned and documented. Likewise, 46 U.S.C. § 55103(a) prohibits the transportation of passengers between points in the United States embraced within the coastwise laws, either directly or by way of a foreign port, in a non-coastwise-qualified vessel.

Pursuant to 46 U.S.C. § 80104(a), sometimes referred to as the salvage statute, in pertinent part:

Except as provided in this section or section 80105 of this title, a foreign vessel may not, under penalty of forfeiture, engage in salvaging operations on the Atlantic or Pacific coast of the United States, in any portion of the Great Lakes or their connecting or tributary waters, including any portion of the Saint Lawrence River through which the international boundary line extends, or in territorial waters of the United States on the Gulf of Mexico.

Pursuant to the Customs and Border Protection Regulations promulgated under the authority of 46 U.S.C. § 80104, in pertinent part:

Only a vessel of the United States . . . shall engage in any salvage operation in territorial waters of the United States unless an application addressed to the Commissioner of Customs to use another specified vessel in a completely described operation has been granted.

19 C.F.R. § 4.97(a)(footnote omitted). The territorial sea, 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, in cases where the baseline and the coastline differ. See 33 C.F.R. § 2.22(a)(2).

According to the Coast Guard’s incident report, the vessel is located 4 nautical miles from James Island, which is off the coast of La Push, Washington. The NOAA map attached to the incident report shows the Three Mile nautical marker and locates the vessel wreckage outside of that marker. As such, the salvage operation would not be taking place in “territorial waters” as it is defined by 33 C.F.R. § 2.22(a)(2).

However, Section 4(a) of the Outer Continental Shelf Lands Act of 1953 (OCSLA),

67 Stat. 462; 43 U.S.C. § 1333(a). provides, in part, that the laws of the United States are extended to:

... the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom ... to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction within a State.

(emphasis added). The statute was substantively amended by the Act of September 18, 1978, adding, inter alia, language concerning temporary attachment to the seabed. The legislative history provides, in pertinent part:

...It is thus clear that Federal law is to be applicable to all activities or all devices in contact with the seabed for exploration, development, and production. The committee intends that Federal law is, therefore, to be applicable to activities on drilling rigs, and other watercraft, when they are connected to the seabed by drillstring, pipes, or other appurtenances, on the OCS for exploration, development, or production purposes.

(emphasis added). H. Rep. No. 95-590; 1978 U.S.C.C.A.N. 1450, 1534.

CBP has long held wreckage or debris, albeit, attached to the seafloor, can in no way be legally perceived as being affixed to the seafloor for exploration, development, or production, purposes as required by the OCSLA. See HQ 116586 (Dec. 29, 2005); HQ 116558 (Oct. 25, 2005); and HQ 115850 (Nov.12, 2002)(finding that a destroyed drilling rig’s severed leg remnants that were still embedded in the OCS at or near their original locations no longer constituted coastwise points, where the leg remnants themselves were “mangled pieces of debris [that] have no function”). Further, although the barge will be attached to the seafloor, it too, cannot be legally perceived as being affixed to the seafloor for exploration, development, or production purposes.

Based on the foregoing, the salvage operation, as described herein, may be performed by a foreign-flagged barge without violating 46 U.S.C. §§ 55102(b), 55103(a), and 80104 insofar as the vessel wreckage is outside the territorial waters of the U.S. We note that the facts of this case are similar to those set forth in HQ 116694 (Jul. 26, 2006) insofar as they involve a salvage proposal for the F/V Milky Way. HQ 116694 is distinguishable from the present case insofar as the vessel was alleged as being “within U.S. territorial waters.” Further, the vessel wreckage and the barge’s attachment to the seafloor does not fall under the OCSLA because the wreckage and the barge are not affixed to the seafloor for exploration, development, or production, purposes.

HOLDING

The foreign-flag barge may be used for the above-described salvage operation without violating 46 U.S.C. §§ 55102(b), 55103(a), and 80104.

Sincerely,

Glen E. Vereb
Chief

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