VES-3-14-CO:R:IT:C 112316 GFM

Mr. Wade R. Loofbourrow
Region I Vessel Supervisor
State of Alaska, Department of Fish & Game
P.O. Box 240020
Douglas, Alaska 99824-0020

RE: Applicability of the coastwise laws to the use of a non- coastwise-qualified oceanographic research vessel in the collection of scientific samples.

Dear Mr. Loofbourrow:

Reference is made to your letter of June 9, 1992, in which you inquire as to the legality of employing foreign-built vessels in your scientific research operations.

FACTS:

You state that your agency is responsible for resource management within the State of Alaska. As part of its resource management program, your agency is charged with collecting information for scientific analysis in both State and Federal waters, employing vessels to transport personnel and supplies relative to scientific research, conducting fishing operations for stock assessment, enforcing laws pertaining to resource management, and performing occasional oceanographic research for other state and federal agencies. Additionally, you state that your agency sells samples of fish caught during "test fishing" operations in order to "defray the costs of scientific operations." Finally, you state that your agency is contemplating the deployment of a foreign-built vessel for these activities and you request advice on the legality of such a proposal.

ISSUE:

Whether a non-coastwise-qualified vessel may engage in scientific research activities in U.S. waters which include the sale of fish samples collected during such activities. LAW AND ANALYSIS:

The Act of June 19, 1886, as amended (24 Stat. 81; 46 U.S.C. App. 289, sometimes called the coastwise passenger law), provides that:

No foreign vessel shall transport passengers between ports or places in the United States either directly or by way of a foreign port, under a penalty of $200 for each passenger so transported and landed.

For your information, we have consistently interpreted this prohibition to apply to all vessels except United States-built, owned, and properly documented vessels (see, 46 U.S.C. 12106, 12110; 46 U.S.C. App. 883; 19 C.F.R. 4.80).

The coastwise law pertaining to the transportation of merchandise, 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 that:

No merchandise shall be transported by water, or by land and water, on a 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 or persons 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...

Under the so-called "First Proviso" to section 883:

...[N]o vessel having at any time acquired the lawful right to engage in the coastwise trade, either by virtue of having been built in, or documented under the laws of the United States, and later sold foreign in whole or in part, or placed under foreign registry, shall hereafter acquire the right to engage in the coastwise trade. For purposes of the coastwise laws, a point in the United States territorial waters is considered a point embraced within the coastwise laws. The territorial waters of the United States consist of the territorial sea, defined as the belt, three nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline.

For purposes of section 289, "passenger" is defined in section 4.50(b), Customs Regulations (19 C.F.R. 4.50(b)), as "...any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business." "Merchandise," as used in section 883, includes any article, including valueless merchandise pursuant to the amendment of section 883 by the Act of June 7, 1988 (Public Law 100-329; 102 Stat. 588).

In its interpretation of the coastwise laws with regard to the issue under consideration, Customs has long held that the use of a vessel solely to engage in oceanographic research is not considered a use in the coastwise trade (see, Headquarters Ruling Letter 110399, August 23, 1989). 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 to, from, 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. Further, 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. 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 and students 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.

This interpretation of the coastwise laws is buttressed by the Act of July 30, 1965 (Public Law 89-99; 79 Stat. 424; 46 U.S.C. App. 441-444, often called the Oceanographic Research Vessel Act), as amended, section 3 (46 U.S.C. App. 443) which provides that "[a]n oceanographic research vessel shall not be deemed to be engaged in trade or commerce." In defining the term "oceanographic research vessel," this Act defines oceanographic research as "...including, but not limited to, such studies pertaining to the sea as seismic, gravity meter and magnetic exploration and other marine geophysical or geological surveys, atmospheric research, and biological research" (46 U.S.C. App. 441(1)). Turning to the case at hand, with regard to the transport of personnel and supplies relative to scientific research, the conducting of fishing operations for stock assessment, the enforcement of fish and game laws, and the occasional performance of oceanographic research for other state and federal agencies, no violation of the coastwise laws will occur if such activities constitute "oceanographic research" pursuant to 46 U.S.C. App. 441(1). As the list of activities which constitute "oceanographic research" contained in 46 U.S.C. App. 441(1) is not a complete list, the Customs Service is afforded qualified authority to fashion administrative interpretations of that statute. Upon consideration, we conclude that the above- described activities would indeed constitute oceanographic research activities which would not violate the coastwise laws. However, in arriving at this conclusion, we stress that the proposed activities must involve no commercial activity whatsoever, and that any combination of commercial activity with the proposed oceanographic research activities presented here would transform otherwise permissible activities into prohibited coastwise violations.

Accordingly, your plan to transport collected samples of fish aboard a foreign-built vessel for later sale would change the nature of the activity such that transportation of those samples would constitute transportation of "merchandise other than the usual supplies and equipment necessary for (oceanographic) research and/or research specimens or samples," pursuant to Headquarters Ruling Letter 110399. As a result, such activity would constitute a violation of U.S. coastwise laws.

HOLDING:

In accordance with the Law and Analysis section of this ruling, with the exception of the commercial sale of collected fish samples, the proposed activities are permissible under the coastwise laws.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch