VES-3-OT:RR:BSTC:CCI H038355 GG
Mr. David N. Bellemore
CMTi Constellation Project Manager
P.O. Box 21233, Mail Code 721S-S295
Kennedy Space Center, FL 32899
RE: Coastwise Trade; 46 U.S.C. § 55102; 19 CFR § 4.80
Dear Mr. Bellemore:
This is in response to your correspondence of September 8, 2008, in which you request a ruling on whether the process scenario for the launch, landing, and recovery of a new space exploration vehicle constitutes a violation of the Jones Act, 46 U.S.C. § 55102. Our ruling is set forth below.
FACTS
Creative Management Technology Inc. (CMTi) is presently on contract to support the National Aeronautics and Space Administration (NASA) Constellation Program at the Kennedy Space Center (KSC). A new space exploration vehicle, the Orion Crew Module (ORION), which is processed at the KSC, would be launched from the KSC aboard the ARES ROCKET. Once launched, the ORION separates from the ARES ROCKET and proceeds to the International Space Station, or, in the future, to the Moon and/or Mars. The ORION would then return from space under its own power, to the nominal landing site in the Pacific Ocean, 200 miles off of San Clemente Island, California. The ORION module and crew would be recovered by a non-coastwise-qualified commercial vessel, which would return the module to a port in the San Diego area. The module would then be transferred to a commercial truck for over the road transport back to the KSC.
ISSUE
Whether the proposed launch, landing, and recovery of the Orion Crew Module described above constitutes an engagement in coastwise trade for purposes of 46 U.S.C. § 55102.
LAW AND ANALYSIS
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. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.”
The coastwise law applicable to the transportation of merchandise, the Jones Act, is found in 46 U.S.C. § 55102 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides in pertinent part that “a vessel may not provide any part of the transportation of merchandise by water, or by land and water, between points in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel—(1) is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and (2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 of Title 46 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.” See also U.S. Customs and Border Protection (CBP) Regulations, 19 CFR §§ 4.80, 4.80b.
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.
Pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “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.” For purposes of the Jones Act, merchandise also includes "valueless material." See 46 U.S.C. § 55102(a)(2). The CBP regulations promulgated under the authority of 46 U.S.C. § 55102 provide that a coastwise transportation of merchandise takes place when merchandise laden at a coastwise point is unladen at another coastwise point, regardless of origin or ultimate destination. See 19 CFR 4.80b(a).
In the present case, we are informed that the ORION will be launched from the KSC into orbit via a rocket, and will subsequently return to Earth under its own power at a point outside of the U.S. territorial waters.
As stated above, the Jones Act prohibits “any part of the transportation of merchandise by water, or by land and water.” 46 U.S.C. § 55102 (emphasis added). Based on the plain meaning of the statute, this prohibition would not extend to air, space or the earth’s orbit. Therefore, the subject launch into space is beyond the scope of the prohibitions of the statute.
It is proposed that a commercial, non-coastwise-qualified vessel would recover the ORION module from the landing site in the Pacific Ocean 200 miles off San Clemente Island, California, and transport it to San Diego, where it would then be transferred to a commercial truck for over the road transport back to the KSC in Florida.
As defined above, the coastwise laws, in pertinent part, apply to any point in the territorial waters of the United States. Thus, a point beyond the territorial waters, such as the landing site in question, does not constitute a coastwise point. Moreover, it is CBP’s long standing position that the transportation of merchandise from a point outside of the U.S. territorial waters to a coastwise point does not constitute coastwise trade. See HQ 116586 (December 29, 2005) (recovery of articles from locations beyond U.S. territorial waters does not implicate coastwise laws such that they may be laden and transported aboard a non-coastwise-qualified vessel to a U.S. port without violating coastwise laws).
Consequently, the transportation of the ORION module by a non-coastwise-qualified vessel from its landing site in the Pacific Ocean to San Diego, would not be in violation of 46 U.S.C. § 55102.
Accordingly, we find that the proposed transportation of the ORION—after its launch into orbit and upon its return to Earth—from a point 200 miles outside the territorial waters of the United States to San Diego and back to the KSC in Florida, does not constitute coastwise trade within the meaning of 46 U.S.C. § 55102 and 19 CFR § 4.80.
HOLDING
The proposed launch, landing, and recovery of the Orion Crew Module described above would not constitute an engagement in coastwise trade in violation of 46 U.S.C. § 55102.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch