VES-5-07-RR:BSTC:CCI H021763 CK
Lorraine Henderson
Area Port Director
U.S. Customs and Border Protection
10 Causeway Street, Room 603
Boston, MA 02222
RE: Internal Advice; Deepwater Port Act of 1974; Vessel Entry and Clearance
Dear Ms. Henderson:
This is in response to your request for internal advice dated January 9, 2008. You seek our advice as to whether supply vessels that travel between the new Northeast Gateway Energy Bridge Deepwater Port and U.S. Customs and Border Protection (CBP) ports of entry are required to enter and clear with CBP. Our reply follows.
FACTS:
The Maritime Administrator of the U.S. Maritime Administration, pursuant to authority delegated by the Secretary of Transportation of the United States of America under the Deepwater Port Act of 1974, issued to the Northeast Gateway Energy Bridge L.L.C., an Oklahoma limited liability company, a license to own, construct and operate the deepwater port (DWP) known as the Northeast Gateway Energy Bridge, located eighteen (18) miles off the coast of Massachusetts. This DWP consists of offshore structures and related facilities. When activated and operational, the DWP facility will be used to receive imported liquid natural gas (LNG) discharged from a vessel, and will be capable of operating 24/7.
The DWP consists of mooring for certain types of LNG tankers, known as Energy Bridge Regasification Vessels or EBRV’s, and a submerged turret buoy system for the discharge of LNG. The LNG will travel via a pipeline into the port of Boston as well as into the port of Beverly/Salem. Supply boats will transport spare parts and crew between the ports of Boston and Beverly/Salem and the tankers moored at the DWP.
ISSUE:
Whether supply boats transporting spare parts and crew between a US port of entry and a vessel moored at the Northeast Gateway Energy Bridge DWP are required to enter and clear with CBP?
LAW AND ANALYSIS:
The Deepwater Port Act of 1974 (the “Act”; 33 U.S.C. §§ 1501 et seq.) provides that the laws of the United States, generally, are made applicable to DWPs (as defined in § 1502(9)(a) of the Act) pursuant to § 1518(a)(1) of the Act and only the “Customs laws” (see Title 19, United States Code) are specifically made inapplicable under § 1518(d). The merchandise coastwise restrictions which are set forth in 46 U.S.C. § 55102 (commonly known as the “Jones Act”) (former 46 U.S.C. App. § 883 recodified as 46 U.S.C. § 55102, pursuant to P.L. 109-304 (October 6, 2006)) are contained within the navigation laws of the United States (not the “Customs laws”) and are, therefore, specifically applicable to DWPs such as the Northeast Gateway Energy Bridge. Dispositive of this point is the language of § 1644(b) of Title 19, United States Code (19 U.S.C. § 1644(b)), wherein it is stated:
For purposes of section 1518(d) of Title 33, the term “customs laws administered by the Secretary of the Treasury” shall mean this [Chapter 4 of Title 19, United States Code] and any other provision of law classified to [Title 19, United States Code].
Accordingly, the coastwise laws are applicable to DWPs as discussed above and the supply boats must be coastwise-qualified (i.e., U.S.-built, owned, and documented).
As to whether these vessels are required to make formal entry with CBP while engaged in the aforementioned activities, we note that the vessel entry statute is found at Title 19, United States Code, §1434. As noted above, any provision of Title 19, United States Code, is inapplicable to DWPs.
However, Title 19 is applicable to the ports of Boston and Beverly/Salem. The vessel entry statute and regulation administered by CBP require any vessel which has visited a hovering vessel or has delivered or received merchandise or passengers while outside the territorial sea to make entry. See 19 U.S.C. § 1434(a)(4) and 19 C.F.R. § 4.3(a)(4).
With respect to the requirement to obtain clearance, we note that, U.S.-flagged vessels must obtain clearance from CBP before proceeding from a port or place in the United States to a location outside the territorial sea to visit a hovering vessel or to receive merchandise or passengers while outside the territorial sea. See former 46 U.S.C. App. § 91(a)(3) recodified as 46 U.S.C. § 60105(a)(3), pursuant to P.L. 109-304 (October 6, 2006). (It is noteworthy that this statutory requirement is found in Title 46 of the United States Code, not Title 19). The applicable regulations is found at 19 CFR 4.60(a)(4).
The U.S. 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. The Northwest Gateway Energy Bridge is located 18 miles off the coast of Massachusetts. It is therefore outside the territorial sea.
Merchandise for purposes of these statutory and requirements “means goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” 19 U.S.C. § 1401(c). However, merchandise does not include the equipment of a vessel which will be used by that vessel. Such articles have been defined as those which are "...necessary and appropriate for the navigation, operation or maintenance of the vessel and for the comfort and safety of the persons on board." See HQ 114298, dated July 7, 1998 quoting Treasury Decision (“T.D.”) 49815(4), March 13, 1939. CBP has held that in some circumstances fenders utilized to provide a buffer during lightering operations are vessel equipment as they are used in furtherance of the operation of the vessel as well as for the safety of the crew. See HQ 111892, dated September 16, 1991.
In the case put forward to this office, the internal advice request states that spare parts and crew will be transported aboard the supply boats. We assume the spare parts are for the vessels moored at the DWP or the DWP itself, and not vessel equipment of the supply boats. Whether the crewmembers carried on the supply boats are destined for the DWP or a moored vessel is irrelevant to the question. We also assume that some crew members who are replaced will be transported back to either Boston or Beverly/Salem. With those assumptions in place, it is clear that the DWP is outside the U.S. territorial waters and the supply boats will travel between U.S. ports of entry and the DWP to either deliver crew (passengers) and spare parts (merchandise) to the DWP or receive them from the DWP. The supply vessels will therefore need to clear upon departing the U.S. ports of entry and make entry upon arrival in those ports of entry.
HOLDING:
Supply boats transporting spare parts and crew between a US port of entry and a vessel moored at the Northeast Gateway Energy Bridge DWP are required to enter and clear with CBP, since they are delivering or receiving merchandise or passengers at a location outside the territorial sea of the United States.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch