VES-3-15-RR:IT:EC 113812 GEV
Richard H. Hanner
3604 Biltmore Drive
Panama City, Florida 32408
RE: Coastwise Trade; Artificial Reef Building; Canadian-built
Vessel;
46 U.S.C. App. 289, 883
Dear Mr. Hanner:
This is in response to your letter dated January 7, 1997,
regarding your proposed purchase of a Canadian-built vessel for
use in artificial reef building. Our position in this matter is
set forth below.
FACTS:
You are considering the purchase of a Canadian-built vessel
for the purpose of artificial reef building. The reefs are
poured concrete structures of approximately 8' x 8' at the base,
pyramid shaped and approximately 8' high. You state that they
will be deployed seaward of U.S. boundaries of three or twelve
miles, whichever is necessary for a registry endorsement, if an
endorsement is possible for a Canadian-built vessel.
The structures will be placed on a pristine bottom and not
on any existing reefs or manmade structures. Most often they
will be deployed one or two at a time in various locations of the
Gulf Coast around the Panama City, Florida, area and within a 200
mile radius thereof.
Further in regard to your proposal, you would like to know
if it would be possible to carry divers to the same deployed
structures on the same vessel.
ISSUE:
Whether the use of a Canadian-built vessel in artificial
reef building and the transportation of divers as described above
constitutes a violation of 46 U.S.C. App. 289 and/or 883.
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LAW AND ANALYSIS:
The U.S. Customs Service enforces various navigation laws
which deal with the use of vessels in what is recognized as the
coastwise trade. Title 46, United States Code Appendix,
289 (46 U.S.C. App. 289, the passenger coastwise law),
prohibits the transportation of passengers between points in the
United States embraced within the coastwise laws, either directly
or by way of a foreign port, in a non-coastwise-qualified vessel
(i.e., a vessel that is not U.S.-built, owned and documented).
For purposes of 289, "passenger" is defined as "... any person
carried on a vessel who is not connected with the operation of
such vessel, her navigation, ownership, or business." (see
4.50(b), Customs Regulations, (19 CFR 4.50(b))
Title 46, United States Code Appendix, 883 (46 U.S.C. App.
883), the merchandise coastwise law often called the "Jones
Act"), provides in part, that no merchandise shall 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 vessel other than one that is
coastwise-qualified. Pursuant to title 19, United States Code,
1401(c) (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."
The U.S. Customs Service has promulgated regulations
pursuant to the coastwise laws referenced above. These
regulations can be found in title 19, Code of Federal
Regulations,
4.80, 4.80a and 4.80b (19 CFR 4.80, 4.80a, 4.80b).
The coastwise laws generally apply to points in the U.S.
territorial sea, defined as the belt, three nautical miles wide,
seaward of the U.S. territorial sea baseline, and to points
located in internal waters, landward of the U.S. territorial sea
baseline, in cases where the baseline and the coastline differ.
(We note that although Presidential Proclamation 5928 of December
27, 1988, extended the U.S. territorial sea to 12 miles, this
extension is only for international purposes. Thus, U.S.
Customs and U.S. Coast Guard law enforcement activities are not
altered as a result of the proclamation.)
In regard to the artificial reef building activities in
question, the use of a Canadian-built vessel to transport the
poured concrete structures described in your letter from the U.S.
mainland to a location(s) beyond the three-mile U.S. territorial
sea does not constitute coastwise trade in view of the fact that
although these structures will be loaded at one or more coastwise
points (the U.S. mainland), they will be unloaded at points not
embraced within the coastwise laws (i.e., beyond the three-mile
U.S. territorial sea). Accordingly, no violation of 46 U.S.C.
App. 883 would be incurred by engaging in this activity.
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With respect to the transportation of divers to the same
deployed structures on the same vessel, we note that they would
be considered "passengers" within the meaning of 4.50(b),
Customs Regulations, discussed above. However, such
transportation would be in compliance with 46 U.S.C. App. 289
provided the divers do not leave the vessel, even temporarily, at
any coastwise point other than their point of original
embarkation.
Parenthetically, we note that although a Canadian-built
vessel is prohibited from obtaining a coastwise endorsement on a
U.S. certificate of documentation, such a proscription does not
exist with respect to a registry endorsement so long as the
requisite citizenship requirements are met. In view of the fact
that vessel documentation is a matter within the jurisdiction of
the U.S. Coast Guard, we suggest that you contact that agency
regarding your proposal. Should you obtain a registry
endorsement for the vessel in question, you should know that no
law administered by the U.S. Customs Service would preclude you
from using the vessel as discussed in this letter.
HOLDING:
The use of a Canadian-built vessel in artificial reef
building as described above (i.e., transporting poured concrete
structures from coastwise points of loading to locations beyond
the three-mile U.S. territorial sea where they are unloaded) does
not constitute a violation of 46 U.S.C. App. 883. The
transportation of divers to the same deployed structures on the
same vessel does not constitute a violation of 46 U.S.C. App.
289 provided they do not leave the vessel, even temporarily, at
any coastwise point other than their point of original
embarkation.
Sincerely,
Jerry Laderberg
Acting Chief
Entry and Carrier Rulings Branch