VES-3-02-OT:RR:BSTC:CCR H287538 ASZ
Douglas G. Russell
School of Oceanography
University of Washington
Box 357940
Seattle, Washington 98195-7940
RE: Coastwise Transportation; Research; 46 U.S.C. § 55102; 46 U.S.C. § 55103
Dear Mr. Russell:
This letter is in response to your correspondence dated May 10, 2017, in which you inquire on behalf of the University of Washington, about whether a non-coastwise qualified vessel may be used to conduct certain oceanographic research expeditions and interdisciplinary ocean-based research projects without violating 46 U.S.C. § 55102 or 46 U.S.C. § 55103. Our decision follows.
FACTS
The University of Washington’s School of Oceanography intends to purchase the R/V AORA (“the vessel”) to replace one of the vessels it currently operates. The vessel was built in Scotland and is currently documented under the laws of the United Kingdom.
The vessel will be used to conduct biological, physical, chemical, and marine geophysical oceanographic research expeditions and interdisciplinary ocean-based research projects in the Puget Sound region. Specific examples of the research, sampling, and data collection that will be conducted from the vessel include the following: sampling of water to determine chemical properties (e.g., temperature, salinity, oxygen, chlorophyll levels, trace metal, CO2, methane), collect biological samples (e.g., phytoplankton), and track the presence of plastics in the water column; performing net tows (e.g., plankton); collecting rock samples, sediments, and biological samples from the sea floor; measuring the water current; mapping the seafloor; collecting weather data; deploying remotely operated vehicles (ROV) to collect samples, provide live video of the underwater habitat, and view geophysical properties of the seafloor; operating autonomously operated vehicles (AUV) to sample and analyze water chemical properties and conduct seafloor mapping; deploying and recovering instruments that assist with weather data collection, wave height measurement, current measurement, sediment deposit/transfer, chemical properties, and seafloor movement; measuring the magnetic field; carrying out seismic processes to identify and detect earthquake faults and their changes; and taking acoustic measurements.
The activities listed above are carried out to support ongoing research by the University of Washington and outside scientists to address issues that affect society. Such issues include how ocean acidification affects the food sources in Puget Sound and how the rise and fall of the ocean’s floor serves as an early indicator of possible earthquake activity.
You state that students from the University of Washington’s School of Oceanography and scientists from the University of Washington and outside institutions will be transported onboard the vessel. The students will learn and practice instrument deployment, sampling, and data collection processes onboard the vessel. They will also aid University of Washington researchers and faculty with their research. Scientists from the University of Washington and other institutions will lead scientific expeditions onboard the vessel. You anticipate that the vessel will become part of the University National Oceanographic Laboratory System (UNOLS) research vessel fleet, allowing scientists from different institutions to request funding from the National Science Foundation to support their oceanographic research onboard the vessel. The students and scientists will usually embark and disembark in Seattle, Washington, but it is likely they will embark and disembark in other points in Washington and Oregon depending on the particular voyage.
You state that the only items the vessel will transport are oceanographic instrumentation and science support systems. Examples of such instrumentation include: box cores, multi-corers, CTD (continuity, temperature, depth) carousels, temporary winches for deploying/recovering instruments and equipment, ROV systems, AUVs, plankton nets, bongo nets, noise sources, and seismic streamers. The researchers will typically lade and unlade the aforementioned instrumentation in Seattle, Washington, but they may lade and unlade the items at other points in Washington and Oregon depending on the particular voyage.
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.
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 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.”
In this context, and in accordance with previous Headquarters rulings, CBP, 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 a scientific research vessel to gather data from rocks in seafloor); 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 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. HQ 112316 (July 22, 1992).
CBP’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.
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.
In the present case, you state that the vessel will be used for biological, physical, chemical, and marine geophysical oceanographic research expeditions and interdisciplinary ocean-based research projects. The proposed research will include, inter alia, water sampling, net tows, collection of biological samples from the seafloor, and the taking of various measurements. The vessel will be used to transport faculty, researchers, and students from the University of Washington’s School of Oceanography, as well as scientists and researchers from other institutions, to conduct the various research, data collection, and sampling activities described in the FACTS section.
In HQ H216579 (May 15, 2012), CBP held that the retrieval, analysis, and transportation of seabed samples as part of geotechnical science investigations constitute oceanographic research. In HQ H008902 (May 17, 2007), we concluded that the use of the vessel for a scientific ocean-drilling initiative in an international research program that explores the history and structure of the earth as recorded in sediments and rocks beneath the seafloor is considered oceanographic research. We also 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 merchandise coastwise law (46 U.S.C. § 55102).
In the present case, we conclude that the use of the vessel in the proposed research expeditions and interdisciplinary ocean-based research projects described in the FACTS section 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 biological, physical, chemical, and marine geophysical oceanographic research expeditions and interdisciplinary ocean-based research projects, 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 research expeditions and projects.
Sincerely,
Lisa L. Burley
Chief/Supervisory Attorney-Advisor
Cargo Security, Carriers and Restricted Merchandise Branch
Office of International Trade, Regulations and Rulings
U.S. Customs and Border Protection