OT:RR:BSTC:CCR H337692 HKC
Mr. Ethan Benson
Rockfish, Inc.
1900 W Nickerson St.
Suite 116-211
Seattle, WA 98119
RE: Salvage; 46 U.S.C. 80104; Coastwise Transportation; 46 U.S.C. 55102.
Dear Mr. Benson,
This is in response to your correspondence, dated March 2, 2024, requesting a ruling as to whether the use of a foreign-flagged vessel to salvage a wreck located approximately 24 nautical miles off the coast of Washington state, and transport recovered merchandise from the salvage location to a port in Washington state, would violate the coastwise laws of the United States. Our decision follows.
FACTS:
The following facts are from your ruling request, dated March 2, 2024.[1] Your company, Rockfish, Inc., has been awarded exclusive salvage rights by the U.S. District Court for the Western District of Washington over a wreck located approximately 24 miles off the coast of Washington state.[2] Your client seeks to conduct the salvage utilizing the [
] ("the vessel"), a Norwegian-flagged offshore support vessel built in Norway.
Your client proposes deploying Remotely Operated Vehicles ("ROVs") from the vessel to recover cargo from the wreck. The cargo will then be laded aboard the vessel and carried onboard the vessel to a U.S. port located in the state of Washington where it will be unladed.
ISSUES:
Whether the use of a foreign-flagged vessel to conduct salvage operations at a wreck located approximately 24 nautical miles off the coast of Washington state would violate the Salvage Statute, 46 U.S.C. 80104.
Whether the use of a foreign-flagged vessel to transport salvaged cargo from a wreck located approximately 24 nautical miles off the coast of Washington state to a U.S. port in Washington state would violate the Jones Act, 46 U.S.C. 55102.
LAW AND ANALYSIS:
The salvage statute, 46 U.S.C. 80104(a), provides in relevant part that:
Except as provided in this section or section 80105 of this title, a foreign vessel may not, under penalty of forfeiture, engage in salvaging operations on the Atlantic or Pacific coast of the United States, in any portion of the Great Lakes or their connecting or tributary waters, including any portion of the Saint Lawrence River through which the international boundary line extends, or in territorial waters of the United States on the Gulf of Mexico.
The CBP Regulations promulgated under the authority of 46 U.S.C. 80104, 19 C.F.R. 4.97(a), provides in pertinent part:
Only a vessel of the United States . . . shall engage in any salvage operation in territorial waters of the United States unless an application addressed to the Commissioner of Customs to use another specified vessel in a completely described operation has been granted.
Pursuant to 46 U.S.C. 55102, which 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.
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.[3] In addition, Section 4(a)(1) of the Outer Continental Shelf Lands Act of 1953 ("OCSLA") (as amended) provides that the Constitution and laws and civil and political jurisdiction of the United States are extended to:
i) the subsoil and seabed of the outer Continental Shelf;
ii) all artificial islands on the outer Continental Shelf;
iii) installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources, including non-mineral energy resources; or
iv) any such installation or other device (other than a ship or vessel) for the purpose of transporting or transmitting such resources.[4]
Accordingly, the OCSLA also extends U.S. jurisdiction to devices attached to the seabed of the OCS for the purpose of producing non-mineral energy resources such as wind energy.
Pursuant to 46 U.S.C. 55102(a), "merchandise, 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 purposes of 46 U.S.C. 55102. The 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.[5]
Here, the salvage statute does not apply. Pursuant to the implementing regulation at 19 C.F.R. 4.97(a), the salvage statute applies in "the territorial waters of the United States". The territorial sea is defined as the "waters, three nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline." 33 C.F.R. 2.22(a)(2). You state that the vessel is located approximately 24 nautical miles off the coast of Washington. As such, the salvage operation would not take place in "territorial waters" as it is defined by 33 C.F.R. 2.22(a)(2). Therefore, the use of a foreign-flagged vessel to salvage the wreck would not violate 46 U.S.C. 80104.
Similarly, the transportation of cargo from the wreck site to a U.S. port in Washington would not violate the Jones Act. 46 U.S.C. 55102 applies to the transportation of merchandise between coastwise points. With regard to the OCS, CBP has long held that wreckage or debris, while attached to the seafloor, are not affixed to the seafloor for exploration, development, or production purposes and therefore do not constitute coastwise points as contemplated by OCSLA.[6] Therefore, the location of the wreck approximately 24 miles offshore would not constitute a coastwise point as contemplated by OCSLA.
Based on the foregoing, the salvage operation may be performed by the foreign-flagged vessel without violating 46 U.S.C. 55102 or 46 U.S.C. 80104 insofar as the wreck is outside the territorial waters of the U.S. Further, the wreck is not a coastwise point under the OCSLA because the wreckage is not affixed to the seafloor for exploration, development, or production purposes.
HOLDING:
The use of a foreign-flagged vessel to conduct salvage operations at a wreck located approximately 24 nautical miles off the coast of Washington state would not violate the Salvage Statute, 46 U.S.C. 80104.
The use of a foreign-flagged vessel to transport salvaged cargo from a wreck located approximately 24 nautical miles off the coast of Washington state to a U.S. port in Washington state would not violate the Jones Act, 46 U.S.C. 55102.
Sincerely,
W. Richmond Beevers
Chief, Cargo Security, Carriers and Restricted Merchandise Branch
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection
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[1] Request for Ruling, dated (Mar. 2, 2024).
[2] Order Directing Issuance of Warrant of Arrest Pursuant to Supplemental Rule C, Enjoining Competing Salvage Operations, and Appointing Plaintiff as Substitute Custodian, Rockfish, Inc., v. Unidentified Wrecked and abandoned Vessel, her engines, boilers, apparel, tackle, equipment, appurtenances and cargo, in rem, W.D. Wash. Case #22-1659-JLR extended by Case #22-cv-1659-JLR, (Nov. 22, 2022).
[3] 33 C.F.R. 2.22(a)(2).
[4] 43 U.S.C. 1333(a)(1).
[5] See 19 C.F.R. 4.80b(a).
[6] See HQ H287418 (June 19, 2017); HQ 116586 (Dec. 29, 2005); HQ 116558 (Oct. 25, 2005); and HQ 115850 (Nov.12, 2002); see also Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978) (holding that the United States did not have jurisdiction under OCSLA over a wreck on the outer continental shelf located more than 3 nautical miles offshore).
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Washington, DC 20229