VES-3-CO:R:P:C 110386
John F. Meadows, Esq.
Meadows, Smith, Lenker, Sterling & Davis
425 California Street
San Francisco, California 94194-2294
Re: Use of non-coastwise qualified vessels in certain oil
recovery/clean-up operations
Dear Mr. Meadows:
This is in response to your letter of July 18, 1989, in
which you seek a ruling regarding the use of a small fleet of
"yard oiler" vessels for certain clean-up and/or support
operations in the event of oil spills in coastal waters.
FACTS:
An American operator currently owns a U.S.-flag "yard oiler"
vessel, a small shallow draft vessel which, it is perceived,
would be perfectly suited for oil spill clean-up operations.
This type of vessel is self-propelled and can heat its own cargo
tanks with steam, or can pump steam ashore for cleaning oil from
beaches, docks, etc. The purchase of three additional vessels of
this type is being considered, all three currently located and
documented in Mexico.
Four possible uses for the vessels are specified, these
being:
1. Generating steam for pumping ashore to clean
beaches, rocks and other areas fouled by oil;
2. Acting as storage in place for oil-contaminated
water recovered by skimmers and other recovery
vessels, then pumping off the contaminated water
into barges coming alongside;
3. In addition to acting as a storage vessel, using
oil separation equipment installed aboard, such as
centrifuges, to purify the water and pump it off
into the harbor, then pumping the recovered oil
into barges for disposition elsewhere;
2
4. Acting as a recovery vessel herself, as by
steaming through the spill and pumping aboard the
contaminated water for later discharge into barges
or collection tanks ashore.
ISSUE:
Whether non-coastwise qualified vessels may engage in any or
all of the above-enumerated operations without consequence under
the coastwise laws.
LAW AND ANALYSIS:
Section 27 of the Act of June 5, 1920, as amended (41 Stat.
999; 46 U.S.C. App. 883, often called the Jones Act), provides in
pertinent part, that:
No merchandise shall be transported by water, or by
land and water, on penalty of forfeiture of the
merchandise (or a monetary amount up to the value
thereof as determined by the Secretary of the Treasury,
or the actual cost of the transportation, whichever is
greater, to be recovered from any consignor, seller,
owner, importer, consignee, agent, or other person so
transporting or causing said merchandise to 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 other vessel than a vessel built
in and documented under the laws of the United States
and owned by persons who are citizens of the United
States...
Section 883 was recently amended by the Act of June 7, 1988
(Public Law 100-329: 102 Stat). Among other things, Public Law
100-329 added the so-called valueless materials amendment. Under
this provision, the section 883 restriction:
...applies to the transportation of valueless material
or any dredged material regardless of whether it has
commercial value, from a point or place in the United
States or a point or place on the high seas within the
Exclusive Economic Zone... to another point or place in
the United States or a point or place on the high seas
within that Exclusive Economic Zone...
3
By engaging in any of the first three of the previously
listed operations, the yard oiler vessels would not be providing
any part of a transportation of materials between coastwise
points. Customs has long held that the use of a non-coastwise
qualified vessel as a stationary facility, whether for lodging,
processing, storage, etc., is not a "transportation" activity
which would be prohibited under section 883. Further, if such a
vessel is being loaded or unloaded and must be moved to another
location temporarily due to stress of weather or other reason
involving the safety of the vessel, the coastwise laws are not
violated so long as no loading or unloading occurs at any other
coastwise point and the vessel is subsequently returned to its
original location once the danger has passed. Any other vessels
involved in actual transport must, of course, be coastwise
qualified.
The operation outlined in the fourth proposed use would,
however, constitute a prohibited activity under section 883. As
a non-qualified vessel, it would not be possible for the vessel
to legally act as a mobil recovery and transport vessel at any
point within the jurisdiction of section 883.
HOLDING:
Non-coastwise-qualified vessels may act as stationary
generating, storage, or processing facilities without
consequences under section 883. Such vessels may not, however,
act as mobil oil spill recovery and/or transport vessels under
the statute.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch