H325990

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection H325990 August 30, 2023 OT:RR:BSTC:CCR H325990 DMK CATEGORY: Carriers Jorge Romero, Esq. K&L Gates 1601 K Street, NW Washington, DC 20006 RE: 46 U.S.C. §§ 55102, 55103; 19 C.F.R. §§ 4.80a, 4.80b; Coastwise Transportation; Merchandise; Passengers; Small Craft; Oceanographic Research; Limnological Research; Tendering. Dear Mr. Romero: This is in response to your correspondence of June 30, 2022, in which you requested a ruling determining whether certain oceanographic research activities proposed to be conducted from onboard small craft launched from a foreign-flagged, non-coastwise-qualified cruise vessel would violate 46 U.S.C. §§ 55102 and 55103.0F Our decision follows. FACTS: [ ] (“the Company”) operates two non-coastwise qualified expedition-type passenger vessels, [ ] (the “Expedition Vessel” or “Expedition Vessels”), which are equipped with research facilities, in addition to the normal amenities of a cruise vessel. The Company has entered into an agreement with the National Oceanographic and Atmospheric Administration (“NOAA”) to conduct research as part of NOAA’s International Great Lakes Opportunistic Observations project, as well as similar arrangements with other federal and state governmental agencies and academic institutions. These research projects will be conducted at the same time as the Expedition Vessels are used to carry traditional cruise passengers. Accordingly, the Expedition Vessels’ proposed itineraries take the Expedition Vessels to various points within the Great Lakes, including multiple points within U.S. territorial waters. You have provided us with the proposed itineraries and stopping points. In addition to the research facilities onboard the Expedition Vessels, each Expedition Vessel is equipped with [ ] (“Small Craft”) which are carried aboard the Expedition Vessels in a marina hangar. The Company intends to use the Small Craft to allow the Company’s scientists and visiting scientists to embark from the Expedition Vessel on excursions for the purpose of oceanographic or limnological research. You have provided a list of contemplated research projects, and research activities to be performed onboard the Small Craft. The Small Craft will be laden with research materials from the Expedition Vessel’s laboratory while onboard the Expedition Vessel and will launch with the equipment as well as able-bodied seamen to operate the Small Craft and the scientists who will be doing the research. No cruise passengers will board the Small Craft during these research excursions. The research conducted aboard the Small Craft is contemplated to consist of observing small organisms, microplastics, algae, etc., as well as collecting water samples. Collected samples will be destroyed aboard the Expedition Vessel in a zero-emissions incinerator. This may produce pellets of dry compressed waste which the Company intends to dispose of when the Expedition Vessels call at ports throughout their journey. Company has expressed no intent to collect samples from the lake bottom or engage in dredging activities. The Small Craft will not come to shore to unlade the research materials, and the able-bodied seamen and scientists will not disembark the Small Craft during these excursions. At the end of the excursion the Small Craft will return to the Expedition Vessel, where the individuals onboard will disembark and the research materials unladed. Between excursion sites, the scientists will conduct research in the Expedition Vessel’s laboratory, including continuous monitoring and analysis of samples and observations from Small Craft excursions. The scientists may also give lectures about their research, including to cruise passengers. You have expressed that the Small Craft may be used for occasional tendering duties, during which time there will not be scientific research conducted aboard the Small Craft. The Company expects the scientists on board the Expedition Vessels to be certified to the Standards of Training and Certification of Watchkeeping as determined by the International Maritime Organization, as well as a valid seafarer’s medical certificate. The scientists will be manifested on the crew list and sign on like other crew members. The Expedition Vessels will additionally carry traditional cruise passengers who may at times observe scientific research or attend lectures given by scientists onboard the Expedition Vessels, but will not actively engage in scientific research. ISSUES: Whether the Expedition Vessels carrying the Small Craft from one research location to another in the Great Lakes constitutes coastwise transportation of merchandise, in violation of 46 U.S.C § 55102? Whether the oceanographic research activities proposed to be conducted from the Small Craft violates the coastwise laws, including 46 U.S.C. §§ 55102 and 55103? Whether using the Small Craft as tenders in addition to their oceanographic research uses violates the coastwise laws, including 46 U.S.C. §§ 55102 and 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.” Specifically, pursuant to 46 U.S.C. § 55102 (“the Jones Act”), 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 a foreign port, unless the vessel has a coastwise endorsement.1F The CBP regulations promulgated under the authority of 46 U.S.C. § 55102(a), provide that “[a] coastwise transportation of merchandise takes place. . . 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.”2F 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. The Supreme Court discussed the nature of the United States’ jurisdiction over internal waters in United States v. Louisiana, saying, in pertinent part: Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. Nearest to the nation’s shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea. Within it, the coastal nation may exercise extensive control, but cannot deny the right of innocent passage to foreign nations.3F The coastwise laws apply to the United States, including the island territories and possessions of the United States, with the exception of American Samoa, the Northern Mariana Islands, and the Virgin Islands.4F By statute, the United States extends its territorial jurisdiction in Great Lakes waters all the way to the international boundary between the United States and Canada, holding that Great Lakes waters are coastal waters “within the territorial jurisdiction of the United States.”5F U.S. Customs and Border Protection, and its predecessor, the U.S. Customs Service (hereinafter collectively “CBP”), have previously determined that, as they pertain to the Great Lakes, the territori

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.” Specifically, pursuant to 46 U.S.C. § 55102 (“the Jones Act”), 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 a foreign port, unless the vessel has a coastwise endorsement.1F The CBP regulations promulgated under the authority of 46 U.S.C. § 55102(a), provide that “[a] coastwise transportation of merchandise takes place. . . 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.”2F 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. The Supreme Court discussed the nature of the United States’ jurisdiction over internal waters in United States v. Louisiana, saying, in pertinent part:Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. Nearest to the nation’s shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their