VES- 3-RR:BSTC:CCI H077022 GOB
C. Kent Roberts, Esq.
Schwabe, Williamson & Wyatt
1211 SW 5th Avenue, Suite 1900
Portland, OR 97204
RE: 46 U.S.C. §§ 55102, 55103, 55109, 55111; Coastwise Transportation; Towing; Dredging
Dear Mr. Roberts:
This letter is in reply to your submission of September 18, 2009 on behalf of J.E. McAmis, Inc. (the “requester”). Our ruling on this matter is set forth below.
FACTS:
The requester owns and operates the deck barge MACY-RENEE, a non-self-propelled, U.S.-built, U.S.-documented, steel deck barge. The MACY-RENEE is not coastwise-qualified as it was previously placed under Mexican registry. The MACY-RENEE is fitted with two steel pilings that can be raised and lowered to the river bottom so that the barge is anchored in place. It can be used as a fixed work platform. It is also fitted with a computer/joystick-controlled winch and anchoring system (also referred to as the “winch and anchoring system”) that allows the barge to be positioned and “spudded” down at a precise location. Once anchored, the winches permit the barge to be repositioned by pulling in or letting go on the anchor lines when the spuds are in a raised position. Once in position, the spuds are dropped and the vessel is held in place.
The requester proposes using the MACY-RENEE in connection with a major waterway project involving rock removal on the Columbia River. The requester has bareboat-chartered a second barge, the KRS200-6, which is coastwise-qualified. The requester will place all of the drilling and blasting equipment necessary for the project on the KRS200-6. The KRS200-6 will also carry the materials and consumables necessary for the project.
Under one scenario, the MACY-RENEE and the KRS200-6 would be separately towed to the worksite by a coastwise-qualified tug. Under a second scenario, the MACY-RENEE would be pushed by a coastwise-qualified tug, the KRS200-6 would be lashed alongside the MACY-RENEE, and both vessels would be pushed to the worksite by the same coastwise-qualified tug.
Once at the worksite, the requester proposes lashing the KRS200-6 to the MACY-RENEE, which would be used exclusively to position both vessels via the MACY-RENEE’s computer/joystick-controlled winch and anchoring system. The MACY-RENEE’s four anchors and control wires would be drawn out. Once it is in the correct position, the MACY-RENEE would drop its two spuds and remain in place. All of the drilling and blasting would take place from the KRS200-6. No drilling, blasting, or dredging equipment would be affixed to the MACY-RENEE and no drilling, blasting, or dredging activity would take place from the MACY-RENEE. As may be necessary, the MACY-RENEE would move along by the manipulation of its anchor lines and winches; the KRS200-6 would move in unison with the MACY-RENEE. If the MACY-RENEE needed to move so far that its anchors needed to be reset, its movement would be accomplished by a coastwise-qualified tug. The MACY-RENEE would be used exclusively in this manner throughout the project. When the project is complete, both barges would be towed back to Astoria, Oregon by a coastwise-qualified tug.
The winch and anchoring system is permanently incorporated into the MACY-RENEE. It will not be unladen from the vessel either during or after the project.
You state that the activities of the MACY-RENEE would be conducted under the following restrictions:
No drilling, blasting, or dredging material would be carried onboard the MACY-RENEE while it is traveling to the worksites, nor would any such material be carried onboard while it is working at the site and using its anchoring systems.
The only work the MACY-RENEE would engage in would be the use of its winch and anchoring system for positioning and the use of its anchors to fix the position of the MACY-RENEE and the KRS200-6.
No work will be performed on the MACY-RENEE while it is using its winch and anchoring system other than the work of operating that system. At other times it may be used as a fixed platform. No drilling, dredging, or blasting activity will be conducted from the MACY-RENEE.
All dredging, blasting, or drilling will occur only from a coastwise-qualified barge or dredge.
All drilling and blasting equipment will be fitted to the KRS200-6 or another coastwise-qualified barge. No drilling or blasting equipment will be affixed to the MACY-RENEE.
The only work of the MACY-RENEE will be for positioning.
No blasting or drilling will occur while the MACY-RENEE and the KRS200-6 are moved via the MACY-RENEE’s winch and anchoring system.
Drilling and blasting will occur only from the KRS200-6 and only after the MACY-RENEE is anchored, held in place on its spuds, and both vessels are held fast.
The MACY-RENEE, with the KRS200-6 attached, will be positioned using the anchoring system of the MACY-RENEE. The anchors of the MACY-RENEE will be picked up by coastwise-qualified anchor boats or tugs, or by the MACY-RENEE itself.
When the MACY-RENEE and the KRS200-6 are moved by means other than the MACY-RENEE’s winch and anchoring system, only a coastwise-qualified tug will perform that work.
The only persons onboard the MACY-RENEE when it travels to and from the worksite will be the crew of the MACY-RENEE.
The only persons onboard the MACY-RENEE or the KRS200-6 when those vessels are repositioned using the MACY-RENEE’s winch and anchoring system will be the persons connected with the operation of those vessels.
All materials, supplies, and consumables used in the drilling or blasting work of the drilling barge will be loaded onto and carried on the KRS200-6 or another coastwise-qualified vessel. None of these materials or supplies will be loaded onto or carried on the MACY-RENEE. No merchandise within the meaning of the coastwise laws will be laden and unladen from the MACY-RENEE at different places within the meaning of the coastwise laws.
ISSUE:
Whether the proposed activities involve a violation of 46 U.S.C. §§ 55102, 55103, 55109, and/or 55111?
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. 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. In this letter, we will use the term “territorial waters” to include internal waters and navigable waters of the U.S.
Title 46, United States Code, § 55102 (46 U.S.C. § 55102), the coastwise merchandise statute often called the “Jones Act,” provides in 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 is wholly owned by citizens of the U.S. for purposes of engaging in the coastwise trade and 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.
Title 19, United States Code, § 1401(c) (19 U.S.C. § 1401(c)) defines “merchandise,” in pertinent part, as follows: “goods, wares, and chattels of every description...” Title 46, United States Code, § 55102 provides that “the term ‘merchandise’ includes valueless material.”
The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 and provides that:
(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel-
is wholly owned by citizens of the United States for purposes of engaging in the coastwise traffic; and
has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.
(b) Penalty. The penalty for violating subsection (a) is $300 for each
passenger transported and landed.
Section 4.50(b), Customs and Border Protection (“CBP”) Regulations (19 CFR 4.50(b)) provides 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.
Title 46, United States Code, § 55109 (46 U.S.C. § 55109) provides that only coastwise-qualified vessels may engage in dredging in the navigable waters of the United States.
Title 46, United States Code, § 55111 (46 U.S.C. § 55111) prohibits the use of a non-coastwise-qualified vessel to tow any vessel, other than a vessel in distress, between ports or places in the United States embraced within the coastwise laws, either directly or by way of a foreign port, or to do any part of such towing, or to tow any such vessel between points in a harbor to which the coastwise laws apply.
46 U.S.C. § 55102
Title 46, United States Code, § 55102 provides that a vessel must be coastwise-qualified in order to transport merchandise between U.S., or coastwise, points. You state that the only work the MACY-RENEE would engage in would be the use of its winch and anchoring system for positioning the MACY-RENEE and the KRS200-6; no work would be performed on the MACY-RENEE while it is using its winch and anchoring system other than the work of operating that system; and at other times the MACY-RENEE may be used as a fixed platform. Based upon the facts presented, the MACY-RENEE will not be transporting merchandise between U.S., or coastwise, points. Therefore, the proposed activities will not constitute a violation of 46 U.S.C. § 55102.
46 U.S.C. § 55103
Title 46, United States Code, § 55103 provides that only coastwise-qualified vessels may transport passengers between ports or places in the United
States. Under the facts presented, the only persons onboard the MACY-RENEE when it travels to and from the worksite will be the crew of the MACY-RENEE. The only persons onboard the MACY-RENEE when it is repositioned will be the persons connected with the operation of the MACY-RENEE. Based on the facts presented, we find that the MACY-RENEE will not be transporting passengers (i.e., individuals not connected with the operation of such vessel, her navigation, ownership, or business). Therefore, the proposed activities will not constitute a violation of 46 U.S.C. § 55103.
46 U.S.C. § 55109
Title 46, United States Code, § 55109 provides that only coastwise-qualified vessels may engage in dredging in the navigable waters of the United States.
Under the facts presented, all dredging will be accomplished only by a coastwise-qualified vessel. Therefore, the proposed activities will not constitute a violation of 46 U.S.C. § 55109.
46 U.S.C. § 55111
Title 46, United States Code, § 55111 prohibits the use of a non-coastwise-qualified vessel to tow any vessel, other than a vessel in distress, between ports or places in the United States embraced within the coastwise laws. You state that the towing operations performed in the proposed activities will be accomplished by coastwise-qualified tugs. In addition to being towed by a coastwise-qualified tug, the MACY-RENEE will be moved by means of its winch and anchoring system; the KRS200-6 will move in unison with the MACY-RENEE. In HQ 112541, dated December 3, 1992, CBP stated that the movement of a crane barge in unison with a work barge from point to point by means of anchor adjustments would not constitute activity within the meaning of the coastwise towing statute. CBP reiterated this position in HQ 116111, dated January 30, 2004. Based upon the facts presented, we find that the proposed activities will not constitute a violation of 46 U.S.C. § 55111.
HOLDING:
The coastwise laws apply to the proposed activity as described in the Law and Analysis section of this ruling. Based upon the facts presented, the proposed activities will not involve a violation of 46 U.S.C. §§ 55102, 55103, 55109, or 55111.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch