VES-11-05 CO:R:P:C 108700/109303 PH

Russell W. MacKechnie, Jr., Esq.
Joseph F. Donohue, Esq.
Donohue & Donohue
26 Broadway
New York, New York 10004

RE: Applicability of tonnage tax to vessels arriving in the United States from a foreign port in the coastwise trade or in ballast (see also Customs Service Decision (C.S.D.) 87-16)

Dear Messrs. MacKechnie and Donohue:

This in further regard to our ruling dated May 22, 1987 (File: VES-11-05/VES-5-29/VES-3 CO:R:CD:C 108700 PH), which was published as C.S.D. 87-16. We stated in our letter to you of March 17, 1988, that we planned to review the aspects of this C.S.D. concerning the applicability of tonnage tax to the vessels under consideration. We are having this ruling published in the Customs Bulletin.

FACTS:

In C.S.D. 87-16, we ruled, among other things, that vessels considered in the C.S.D. are subject to tonnage tax when they arrive in ballast in the United States after transporting Alaska North Slope oil from Alaska to Panama and when they arrive in United States Gulf or East Coast ports with Alaska North Slope oil from Panama. The relevant facts upon which we ruled in C.S.D. 87-16 are as follows:

... [A] number of coastwise-qualified vessels are used to transport Alaska North Slope oil from Valdez, Alaska, to United States Gulf and East Coast ports. The vessels are documented with registry and coastwise license endorsements. In Valdez, the vessels load the oil and obtain clearance to the Panamanian port of Puerto Armuelles on the Pacific Ocean. There the ves- sels discharge the oil and obtain Panamanian clearance

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to Long Beach, California. At Long Beach, or occasionally at the port of San Francisco, California, the vessels make formal entry and pay tonnage duties. The vessels are replenished with bunkers and stores and change crews. They then proceed to Valdez for the next load of oil.

The oil is transferred by an 80 mile pipeline from Puerto Armuelles to the port of Chiriqui Grande, Panama, on the Caribbean Sea. There, vessels of the company represented by the inquirer load the oil and transport it to United States Gulf or East Coast ports. These vessels arrive in Chiriqui Grande in ballast from United States ports and make entry with Panamanian officials. They discharge dirty ballast at a terminal in Panama for treatment before loading the oil which came through the pipeline. After loading, the vessels obtain Panamanian clearance to a United States Gulf or East Coast port. Upon arrival at the latter port, the vessels make entry with United States Customs and pay tonnage duties.

In a ruling dated March 21, 1988 (file number 109303), to Paul G. Kirchner, Esq., of Kurrus & Kirchner, we ruled on several questions Mr. Kirchner had raised with regard to C.S.D. 87-16. At the same time, we undertook to reconsider other aspects of the C.S.D., including the applicability of tonnage taxes to the vessels under consideration.

ISSUE:

Are the vessels described in the FACTS portion of this ruling subject to tonnage tax when they arrive in ballast in the United States after transporting the oil from Alaska to Panama or when they arrive in the United States Gulf or East Coast ports with the oil from Panama?

LAW AND ANALYSIS:

Section 4219, Revised Statutes (1878 Edition), as amended (46 U.S.C. App. 121), provides, in pertinent part, that:

... A tonnage duty of 2 cents per ton, not to exceed in the aggregate 10 cents per ton in any one year, is imposed at each entry on all vessels which shall be entered in any port of the United States from any foreign port or place in North America, Central

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America, the West India Islands, the Bahama Islands, the Bermuda Islands, or the coast of South America bordering on the Caribbean Sea, or Newfoundland ... not, however, to include vessels in distress or not engaged in trade.

Section 4220, Revised Statutes (46 U.S.C. App. 122), provides that:

No vessel belonging to any citizen of the United States, trading from one port within the United States to another port within the United States, or employed in the bank, whale, or other fisheries, shall be subject to tonnage tax or duty, if such vessel be licensed, registered or enrolled.

In order to determine whether this provision exempts from the payment of tonnage tax vessels belonging to citizens of the United States engaged in transportation subject to the coastwise laws and properly documented for such transportation under those laws, we have reviewed the historical development of the laws related to tonnage taxes, the legal history of 46 U.S.C. App. 122, the historical development of the pertinent Customs Regulations, and any Court decisions or other such precedents concerning this issue.

Virtually since the founding of the Republic, laws pertaining to tonnage taxes have given favorable treatment to vessels engaged in coastwise transportation or the fisheries. Chapter 3, Act of July 20, 1789 (1 Stat. 27), and Chapter 30, Act of July 20, 1790 (1 Stat. 135), provided for a 6 cents per ton tax on any vessel having a license to trade between the different districts of the United States or to carry on the bank or whale fisheries, while employed therein, once per year for such vessels (while other vessels were charged from 6 to 50 cents per ton per entry). This yearly tonnage duty for vessels engaged in coastwise trade or the fisheries remained in effect until 1830 when all tonnage duties were abolished for United States vessels all officers and at least two-thirds of the crew of which were United States citizens and for foreign vessels on a reciprocal basis (Chapter 119, Act of May 31, 1830, 4 Stat. 425). In 1862 tonnage duties were reinstituted with favorable treatment for vessels licensed for and employed in the coastwise trade or fisheries, along with vessels arriving from Mexico, any of the West India Islands, and the British provinces of North America, which were subject to a duty of 10 cents per ton once per year (chapter 163, section 15, Act of July 14, 1862, 12 Stat. 558). This annual duty of 10 cents per ton was raised to 30 cents per ton in 1865 (chapter 80, section 4, March 3, 1865, 13 Stat. 493).

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In the Act of July 14, 1870 (chapter 255, section 25, 16 Stat. 269), the 1862 Act (see above) was amended so that:

... no ship, vessel, steamer, boat, barge, or flat belonging to any citizen of the United States, trading from one port or point within the United States, to an- other port or point within the United States, or employed in the bank, whale, or other fisheries, shall hereafter be subject to the tonnage tax or duty provid- ed for in [the 1862 Act) ....

Thus, this provision, which was enacted in the Revised Statutes as section 4220, is substantively the same as 46 U.S.C. App. 122. The 1862 Act, which this provision amended, provided that:

... upon all ships, vessels, or steamers, which ... shall be entered at any custom-house in the United States from any foreign port or place, or from any port or place in the United States, whether ships or vessels of the United States, or belonging wholly or in part to subjects of foreign powers, there shall be paid a tax or tonnage duty of ten cents per ton of the measurement of said vessel, in addition to any tonnage duty now imposed by law ....

Although at the time of the enactment of the predecessor of 46 U.S.C. App. 122, vessels entering United States ports from ports or places in the United States were subject to tonnage duty, this has not been so since 1884 (Act of June 26, 1884, chapter 121, section 14, 36 Stat. 111). Because the 1870 Act remained in effect after the 1884 removal of the provision for a tonnage duty on vessels entered in the United States from another port or place in the United States, the only possible application for that provision of the 1870 Act which exempts from tonnage tax properly documented vessels belonging to United States citizens trading from one United States port to another was, and remains under 46 U.S.C. App. 122, to exempt from tonnage tax such vessels engaging in coastwise transportation arriving from a foreign port or place.

The provision which became the tonnage tax provision in the 1870 Act was introduced as an amendment to a tax bill in the House of Representatives by Representative Schenck. This provision provided, in pertinent part, that:

... no ship, vessel, steamer, boat, barge, or flat belonging to any vessel of the United States, trading and arriving from a port of the United States, although touching or stopping at a foreign port on the voyage, or trading from one port or point within the United

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States to another port or point within the United States, or employed in the bank, whale, or other fisheries, shall hereafter be subject to the tonnage tax or duty .... [Congressional Globe 4107 (1870).] [Emphasis added.]

Thus, the amendment was in approximately the same form as that of the 1870 Act, except for the language "although touching or stopping at a foreign port on the voyage." This language was removed from the bill in the Senate by the substitution of a new amendment without the language (Congressional Globe 4997 (1870)). Senator Williams, in commenting on the stricken language, stated:

I know that [i.e., the stricken language] is stricken out, and other language has been substituted; but it is the understanding of the committee that the language of the substitute is equivalent to the language stricken out. My attention has been called to this, and several questions have been asked me about that subject, and I agreed to indicate in the Senate that that was the understanding of the committee.

Senator Edmunds asked: "Is that the fair construction of the law" and Senator Williams responded, "Yes, sir." (Congressional Globe 4997 (1870).)

The legislative history to the 1870 Act is not completely clear with regard to this issue (e.g., see the comments of Senators Corbett and Sherman indicating that they believed that the provision was intended to relieve from tonnage tax vessels in the inland and coasting trade and not "boats or vessels sailing to foreign ports"). We believe, however, that this legislative history does indicate an intent by the Congress to exempt from tonnage tax vessels engaged in the coastwise transportation, including vessels engaged in such transportation arriving from a foreign port or place.

The Customs Regulations issued after the 1870 Act through the 1923 edition of the Customs Regulations exempted from the payment of tonnage tax vessels engaged in the coastwise trade (Article 296, 1874 Customs Regulations; Article 277, 1884 Regulations; Article 183, 1892 Regulations; Article 193, 1899 Regulations; Article 176, 1908 Regulations; Article 119, 1915 Regulations; and Article 118, 1923 Regulations). In the 1931 Customs Regulations, the provisions on tonnage tax and light money (Articles 129-136) were substantially revised and the provision exempting vessels of the United States engaged in the coastwise trade from tonnage tax was omitted, without explanation. The provision exempting ves- sels engaged in the whale or other fisheries (Article 130(2)(f)),

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was included, citing 46 U.S.C. App. 122, and section 122 was cited as authority for the general provision on exemptions from tonnage tax or duty (Article 130). Since the 1923 Regulations, there has been no provision in the Customs Regulations exempting United States vessels engaged in the coastwise trade from tonnage tax.

At least one Federal Court has stated that vessels licensed to engage in the coastwise trade are exempt from tonnage tax (Pacific Shrimp Co. v. United States, 375 F. Supp. 1036, 1039 (W.D. Wash., 1974). The Attorney General of the United States has also stated that vessels documented for the coastwise trade and fisheries are exempt from tonnage duty, citing section 4220 of the Revised Statutes (46 U.S.C. App. 122) (17 Op. Att. Gen. 388, 389 (1882)). Although this court decision and the Opinion of the Attorney General may be considered as dicta, as was stated in C.S.D. 87-16, they are the only such precedent opinions of which we are aware addressing this issue.

On the basis of the foregoing (the general development of the tonnage tax laws, the evidence of Congressional intent with regard to the predecessor of 46 U.S.C. App. 122, the Customs Regulations issued under 46 U.S.C. App. 122 and its predecessors, and the only Federal Court or Attorney General opinions on the matter of which we are aware), we conclude that a United States- owned vessel documented for the coastwise trade is not subject to tonnage tax when engaged in transportation subject to the coast- wise laws. The vessels under consideration, when they arrive in a Gulf or East Coast United States port with Alaska North Slope oil, are not subject to tonnage tax.

The vessels arriving in ballast in a United States port, after delivering the Alaska North Slope oil to Panama, are subject to tonnage tax. Such vessels are not considered to be engaged in coastwise transportation subject to the coastwise laws (see our ruling of March 21, 1988, file number 109303, referred to above) and enter the United States from a foreign port or place (see 46 U.S.C. App. 121 and 19 CFR 4.20(a)). This is consistent with our previous rulings on this subject (see, e.g., ruling letter dated June 18, 1958, to the Collector of Customs, New York, New York; telex ruling dated May 18, 1979, file number 103994; and ruling dated March 5, 1984, file number 106474, copies enclosed).

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HOLDING:

The vessels described in the FACTS portion of this ruling are not subject to tonnage tax when they arrive in a Gulf or East Coast United States port with Alaska North Slope oil transported from Panama in the coastwise trade. Such vessels are subject to tonnage tax when they arrive in ballast in a United States port after delivering the Alaska North Slope oil to Panama.

EFFECT ON OTHER RULINGS:

C.S.D. 87-16 is MODIFIED in part.

Sincerely,

Edward T. Rosse
Acting Director, Regulatory
Procedures and Penalties Division
Enclosures