VES-3-01-OT:RR:BSTC:CCI H216579 WRB
David B. Sharpe, Esq.
Lugenbuhl, Wheaton, Peck, Rankin & Hubbard
27th Floor, Pan-American Life Center
601 Poydras Street
New Orleans, LA 70130
RE: Coastwise Transportation; Research; 46 U.S.C. § 55102; 46 U.S.C. § 55103
Dear Mr. Sharpe:
This letter is in response to your correspondence dated April 26, 2012, in which you inquire on behalf of your client, Gardline Geosciences, Ltd., (hereinafter Petitioner), about whether a non-coastwise-qualified Oceanographic Research Vessel (ORV) may be used to conduct geotechnical science investigations, including the retrieval, analysis, and transportation of seabed samples, without violating 46 U.S.C. § 55102, or 46 U.S.C. § 55103. Our ruling on your request follows.
FACTS
Gardline Geosciences is an English company with its corporate headquarters in the
United Kingdom. Gardline Geosciences is a member of the Gardline Group of companies, and supplies its customers with a wide range of geophysical, hydrographic, geotechnical, environmental, and positioning data collection services. Gardline Geosciences proposes to bring the United Kingdom-flagged oceanographic research vessel OCEAN DISCOVERY to the United States to engage in geotechnical science including the retrieval, analysis, and transportation of seabed samples acquired by the vessel in U.S. territorial waters. The vessel was originally built in Norway in 1981 and was converted in the U.K. in 2010 to its current service.
The Ocean Discovery will have an operating crew composed of no more than 18 persons, and the vessel will carry approximately 20 scientific personnel, as defined by 46 U.S.C.
§ 2101(31), whose sole task will be to conduct geotechnical and related activities. The
crew and scientific personnel will be foreign citizens. The needs of Gardline Geosciences’ customers will dictate which U.S. ports the vessel will call upon for acquiring provisions, crew rest, and scientific-personnel changes. The vessel will carry only those supplies and equipment necessary in its operations as an oceanographic and scientific research and survey vessel. Neither passengers for hire nor paid cargo will be carried aboard the vessel at any time. Ordinarily, those on board the vessel will be employees of Gardline Geosciences or its customers. Occasionally, other scientific personnel and technicians may come on board to operate technical equipment used in the surveys. Scientific personnel may disembark at points other than their place of embarkation after a tour of duty on the vessel.
ISSUE
Whether the proposed operation constitutes an engagement in coastwise trade for purposes of 46 U.S.C. § 55102 and/or 46 U.S.C. § 55103?
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 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. Title 46 United States Code § 55102, provides, in pertinent part:
Except as otherwise provided in this chapter or chapter 121 of this title, 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 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 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.
Pursuant to 46 U.S.C. § 55102(a), “[m]erchandise, includes (1) merchandise owned by the United States Government, a State, or a subdivision of a State; and (2) valueless material.” As such, any cargo, regardless of its value or ownership, would be considered merchandise for the purpose of 46 U.S.C. § 55102. The U.S. Customs and Border Protection (CBP) regulations promulgated under the authority of 46 U.S.C. § 55102(a), provide in pertinent part:
A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise laden at a point embraced within the coastwise laws (“coastwise point”) is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise.
19 C.F.R. § 4.80b(a).
Similarly, the coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 which provides:
(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 trade; 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.
The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provide:
A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business. 19 C.F.R. § 4.50(b).
In this context, and in accordance with previous Headquarters rulings, United States Customs and Border Protection, and its predecessor agency, the Customs Service, has long held that the use of a vessel to engage in oceanographic research is not a use in the coastwise trade. We have held that the use of non-coastwise-qualified vessels to engage in oceanographic research, including the transportation of persons participating in the research from, to, and between research sites in United States territorial waters, whether or not the persons participating in the research temporarily leave the vessels at the research sites, would not violate the coastwise laws. We have held that the collection of marine specimens at the research sites and the transportation of those specimens from the research sites to points in the United States would not violate the coastwise laws. See HQ H008902 (May 17, 2007) (scientists transported aboard scientific research vessel to gather data from rocks in seafloor); HQ 113461 (June 8, 1995)(scientific personnel transported by oceanographic research vessel to conduct seismic surveys); HQ 112122 (July 22, 1992)(scientists transported by survey ship to map the ocean floor); HQ 110399 (Aug. 23, 1989) (biologists and chemists transported aboard an oceanographic research vessel to collect algae and water samples). Of course, if such a vessel transported between coastwise points, or provided part of the transportation between coastwise points
of, any persons other than the vessel crew and scientists engaged in the oceanographic research or any merchandise other than the usual supplies and equipment necessary for that research and/or research specimens or samples, the coastwise laws would be violated. See Headquarters rulings 110399, dated August 23, 1989, and 112992, dated January 12, 1994)
U.S. Customs and Border Protection’s interpretation of the coastwise laws as it relates to oceanographic research, in part, has been in concert with the Oceanographic Research Vessel Act, as amended, and codified at 46 U.S.C. § 2101(18); which defines an “oceanographic research vessel” as:
. . . a vessel that the Secretary finds is being employed only in instruction in oceanography or limnology, or both, or only in oceanographic or limnological research, including studies about the sea such as seismic, gravity meter, and magnetic exploration and other marine geophysical or geological surveys, atmospheric research, and biological research. (Emphasis Supplied)
See also 46 U.S.C. § 50503 (“An oceanographic research vessel (as defined in section 2101 of this title) is deemed not to be engaged in trade or commerce”). We note that although the above-cited CBP rulings do not determine whether the vessels themselves are oceanographic research vessels under 46 U.S.C. § 2101(18), the use of the vessel or the type of vessel has been a considering factor as to whether the activities aboard those vessels constituted oceanographic research. In addition, these rulings consider the activities of the individuals transported aboard a vessel alleged to be engaged in oceanographic research.
United States Customs and Border Protection has previously examined the question of taking and transporting samples in the context of oceanographic research. In Headquarters Ruling HQ H008902, dated, May 17, 2007, we examined the use of a foreign-flagged vessel in an ocean drilling program to explore the history and structure of the earth as recorded in sediments and rocks beneath the seafloor through ocean basin exploration. In that matter we concluded that the use of a non-coastwise-qualified vessel for exploration of the history and structure of the earth as recorded in sediments and rocks beneath the seafloor was considered oceanographic research, not coastwise trade. Also, we determined that the transportation of the scientists who worked on the vessel to,
from, and between the research sites in United States territorial waters aboard the non-coastwise-qualified vessel did not violate the coastwise laws. We further noted that the transportation of the equipment and supplies necessary for the research, from where they were loaded onto the vessel to the points where they were unloaded from the vessel, would not violate the coastwise merchandise law, 46 U.S.C. § 55102.
Similarly, in Headquarters Ruling HQ H009541, dated April 17, 2007, we examined the use of a non-coastwise qualified vessel for sampling ballast water sources for chemical signatures. In that matter, we concluded that the use of the vessel to collect ballast water samples from coastwise, mid-ocean and port waters in order to assess chemical signatures to protect the marine environment from invasive species was considered oceanographic research. We further determined that the transportation of the scientists who collected and worked on the data and samples to, from, and between collection sites in United States territorial waters in the vessel would not violate the coastwise laws. We also held that the transportation of samples collected from coastwise, mid-ocean and port waters to the points where they were removed from the vessel would not violate the coastwise merchandise law, 46 U.S.C. § 55102. Accordingly, we determined that the individuals were not “passengers” and that the coastwise transportation of such individuals was not in violation of 46 U.S.C. § 55103 and 19 CFR § 4.50(b).
As regards the instant case, the activities described in the FACTS section supra constitute the type of marine geophysical or geological surveys contemplated in the Oceanographic Research Vessel Act and are of the sort of activities which we have previously determined to be oceanographic research of the type in which a non-coastwise-qualified vessel may engage.
HOLDING:
Under the facts herein presented, and for the reasons explained above, the proposed geotechnical science investigations, including the retrieval, analysis, and transportation of seabed samples, constitute oceanographic research, and would not involve either the coastwise transportation of passengers or merchandise under 46 U.S.C. § 55102, or 46 U.S.C. § 55103. As such, a foreign-flagged, or other non-coastwise-qualified, vessel may be employed in conducting the proposed geotechnical science investigations.
Sincerely,
George Frederick McCray
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Immigration Branch
Office of International Trade, Regulations & Rulings
U.S. Customs and Border Protection