VES-3-12-RR:IT:EC 114461 GOB
Derrick Briggs
Manager, Environmental Protection & Regulation
Northern Transportation Company Limited
42003 Mackenzie Highway
Hay River, NWT
X0E 0R9
RE: Coastwise transportation of passengers and merchandise; Oil
spill response;
46 U.S.C. App. 289, 883
Dear Mr. Briggs:
This is in response to your letter of August 27, 1998.
FACTS:
You describe the pertinent facts as follows:
Northern Transportation Company Limited presently
provides marine related services in the Canadian Arctic
region as well as the North Slope region of Alaska.
Our fleet consists of numerous tugs and barges, all of
which are of Canadian registry.
There is a prospective business opportunity to provide
marine related oil spill response services in the North
Slope Region of Alaska. Suitable ice class and non ice
class marine equipment (response tugs and barges) will
be required to provide effective response capabilities
to support oil production from offshore, manmade
islands in the North Slope area.
The operational scope that would relate to a response
to oil spill occurrence would require that marine
equipment allocated to the oil spill contingency
program be capable to move oil spill related equipment,
recovered oils etc., from point to point within US
territorial waters without regulatory restriction.
Oil spill response exercises would also be undertaken
frequently that would require the movement of oil spill
related equipment which would not [be] part of the
responding vessels equipment, as well as oil spill
response manpower resources which would be
supernumerary to the response vessels crew. Most of
this movement would be from point to point within US
territorial waters as well.
ISSUE:
The applicability of the coastwise laws to the above-stated
facts.
LAW AND ANALYSIS:
Statutory and Regulatory Framework of the Coastwise Laws
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. A vessel that is built in,
documented under the laws of, and owned by citizens of the United
States, and which obtains a coastwise endorsement from the U.S.
Coast Guard, is referred to as "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.
46 U.S.C. App. 883, the coastwise merchandise statute often
called the "Jones Act," provides in part that 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 a
vessel built in, documented under the laws of, and owned by
citizens of the United States. Equipment and supplies of the
transporting vessel are not considered "merchandise" for this
purpose. Equipment and supplies which are not equipment and
supplies of the transporting vessel are "merchandise" for this
purpose.
The coastwise law applicable to the carriage of passengers
is found in 46 U.S.C. App. 289 (sometimes called the "Passenger
Vessel Act" and the "coastwise passenger statute") and provides
that:
No foreign vessel shall transport passengers between
ports or places in the United States, either directly
or by way of a foreign port, under a penalty of $200
for each passenger so transported and landed.
Section 4.50(b), Customs Regulations (19 CFR 4.50(b)) states
as follows:
A passenger within the meaning of this part is any
person carried on a vessel who is not connected with
the operation of such vessel, her navigation,
ownership, or business.
Applicability of the Coastwise Laws to Facts
The activity which you propose involves the coastwise
transportation of merchandise (i.e., oil spill related equipment
which is not equipment of the transporting vessel) and the
coastwise transportation of passengers (i.e., individuals other
than the crew of the transporting vessel).
Pursuant to 46 U.S.C. App. 289 and 883, such transportation
may only be accomplished by coastwise-qualified vessels. Your
Canadian-registry vessels are not coastwise-qualified.
Accordingly, your non-coastwise-qualified vessels may not
engage in the proposed transportation.
We call to your attention 46 U.S.C. 12106(d)(1), which
provides:
(d)(1) A vessel may be issued a certificate of
documentation with a coastwise endorsement if-
(A) the vessel is owned by a not-for-profit oil
spill response cooperative or by members of such a
cooperative who dedicate the vessel to use by the
cooperative;
(B) the vessel is at least 50 percent owned by
persons or entities described in section 12102(a)
of this title;
(C) the vessel otherwise qualifies under section
12106 to be employed in the coastwise trade; and
(D) use of the vessel is restricted to-
(i) the deployment of equipment, supplies,
and personnel to recover, contain, or
transport oil discharged into the navigable
waters of the United States, or within the
Exclusive Economic Zone, or
(ii) for training exercises to prepare to
respond to such a discharge.
In the event that you wish to pursue U.S. documentation
under 46 U.S.C. 12106(d)(1), you should contact:
The U.S. Coast Guard
National Vessel Documentation Center
2039 Stonewall Jackson Drive
Falling Water, West Virginia 25419
1-800-799-8362.
HOLDING:
The proposed activity constitutes the transportation of
passengers and merchandise within the meaning of 46 U.S.C. App.
289 and 883. Such transportation may not be accomplished by non-coastwise-qualified vessels.
Sincerely,
Jerry Laderberg
Chief,
Entry Procedures and Carriers
Branch