VES-3-02-OT:RR:BSTC:CCR HQ H287418 SWM
Category: Carriers
Mr. Jonathan Waldron
Blank Rome, LLP
1825 Eye Street N.W.
Washington, D.C. 20006
Re: Coastwise transportation; Salvage; Vessel removal; Outer Continental Shelf; 43 U.S.C. § 1333(a); 46 U.S.C. §§ 55102(b) and 80104; 19 C.F.R. § 4.97(a); 33 C.F.R. § 2.22(a)(2).
Dear Mr. Waldron:
This is in response to your June 13, 2017 request on behalf of your client, Resolve Marine Group, Inc. (“Resolve”), to issue a ruling concerning the application of certain U.S. Customs and Border Protection (“CBP”) statutes and regulations to the operations of a foreign flag salvage barge off of the coast of Louisiana. Our decision follows.
FACTS
Resolve proposes the use of the Netherlands-flagged crane barge, the CONQUEST MB1, (the “barge”) to remove the wreckage of the CROSBY COMMANDER (the “vessel”), which is located 35 nautical miles off the coast of Louisiana. The barge would be towed from Morgan City, Louisiana by a U.S.-flagged tugboat, the CROSBY COURAGE, to the vessel wreckage site. Once the vessel has been loaded on to the barge, the barge will proceed back to Morgan City, Louisiana, or another nearby U.S. port, where the vessel will be unloaded.
ISSUE
Whether a foreign-flag barge may be used for the above-described salvage operation without violating 46 U.S.C. §§ 55102(b) or 80104.
LAW AND ANALYSIS
Pursuant to 46 U.S.C. § 55102(b), the merchandise coastwise law often called the “Jones Act,” 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, i.e. U.S.-built, owned, and documented.
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.
19 C.F.R. § 4.97(a) (footnote omitted). 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 35 nautical miles off the coast of Louisiana. 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).
However, Section 4(a) of the Outer Continental Shelf Lands Act of 1953 (OCSLA), provides in part, that the laws of the United States are extended to:
[T]he subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all 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 therefrom ... to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction within a State.
The statute was substantively amended by the Act of September 18, 1978, adding language concerning temporary attachment to the seabed. The legislative history provides, in pertinent part:
It is thus made clear that federal law is to be applicable to all activities on all structure[s] in contact with the seabed for exploration, development, and production. The committee intends that Federal law is therefore to be applicable to activities on drilling rigs, and other watercraft, when they are connected to the seabed by drill-string, pipes, or other appurtenances, on the OCS for exploration, development, or production purposes.
(emphasis added). H. Rep. No. 95-590; 1978 U.S.C.C.A.N. 1450, 1534.
CBP has long held that wreckages 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. See HQ 116586 (Dec. 29, 2005); HQ 116558 (Oct. 25, 2005); and HQ 115850 (Nov.12, 2002) (finding that a destroyed drilling rig’s severed leg remnants that were still embedded in the OCS at or near their original locations no longer constituted coastwise points, where the leg remnants themselves were “mangled pieces of debris [that] have no function”).
Based on the foregoing, the salvage operation, as described herein, may be performed by a foreign-flagged barge without violating 46 U.S.C. §§ 55102(b) or 80104 insofar as the vessel wreckage is outside the territorial waters of the U.S. Further, the vessel wreckage 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 foreign-flag barge may be used for the above-described salvage operation without violating 46 U.S.C. §§ 55102(b) or 80104.
Sincerely,
Lisa L. Burley
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Restricted Merchandise Branch
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection