H331609

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H331609 June 7, 2024 OT:RR:BSTC:CCR H331609 JLE CATEGORY: Carriers George Keller Customs Advisory Services, Inc. 100 Hartsfield Centre Parkway Suite 350 Atlanta, GA 30354 RE: Coastwise Laws; 46 U.S.C. § 55103; 46 U.S.C. § 55102; 19 C.F.R. § 4.1. Dear Mr. Keller: This is in response to your April 25, 2023, ruling request on behalf of The Ocean Cleanup Projects. In your request you inquire whether a foreign-flagged vessel docked at the Port of Oakland, San Francisco, for a media event would violate the coastwise laws. Our ruling is set forth below. Facts The following facts are from your ruling request and supplements thereto. The Ocean Cleanup Projects B.V. (“The Ocean Cleanup”) is a non-profit organization, developing advanced technologies to rid the world’s oceans of plastic. The Ocean Cleanup currently conducts cleanup operations in the North Pacific Gyre, also known as the Great Pacific Garbage Patch. The Great Pacific Garbage Patch (“GPGP”) is located approximately 1,150 nautical miles from San Francisco Bay in international waters. The Ocean Cleanup currently operates trips to the GPGP from the port of Victoria, British Columbia, in Canada. The trips are run on six weeks’ offshore rotations. Two vessels travel to the GPGP from Victoria. One vessel is the M/V MAERSK TENDER, IMO No. 9388651, (“TENDER”), a Norwegian-built offshore supply vessel built in 2009. The TENDER is Denmark-flagged. The second vessel is the M/V MAERSK TRADER, IMO No. 9388596, (“TRADER”), a Romania-built offshore supply vessel/tug built in 2008. The TRADER is also Denmark-flagged. The TENDER and TRADER utilize a S002B system or its iterated versions S002C/ S03 (“System”) to collect plastic waste floating on the ocean surface at the GPGP. The System is carried onboard the vessels until the vessels reach the GPGP, then the System is deployed into the water. Once the System is full, the waste is emptied aboard the TENDER. The System is never used in territorial waters and is stored aboard one of the vessels when the vessels are in transit back to shore. Waste collected from the System is transported in 20-foot shipping containers and bags. On or about July 24, 2024, the TENDER and TRADER plan to depart Victoria, British Columbia, for the GPGP. The System will be loaded aboard the TENDER. The vessels will utilize the System in the GPGP to collect waste for approximately 4 to 5 weeks. The plastic waste collected at the GPGP will be stored aboard the TENDER in 20-foot shipping containers. The plastic waste will be sorted at the GPGP, and no biological material or protected species will remain onboard the TENDER. The TENDER and TRADER than plan to depart to the Port of Oakland, California, for a media event. The vessels will berth at Pier 15 or 17, Port of Oakland/San Francisco, on or about September 6-7, 2024, and then return to Victoria, British Columbia, Canada where the collected waste will be unladed. Both vessels will be operated by foreign-national marine crew. Additionally, project crew such as a protected species observer, net technician, offshore manager, and office staff will embark on the TENDER and TRADER in Victoria. The project crew are assigned with specific tasks such as monitoring clean-up operations, environmental monitoring, improvement of the System, steering strategy, operational improvements and filming the cleanup. The project crew will include the founder and CEO of The Ocean Cleanup, a Dutch citizen, and a senior video producer, a dual U.S. and Italian citizen. At the media event, which is expected to take between 3 and 6 hours upon arrival of TENDER and TRADER at the Port of Oakland, the plastic waste collected from the GPGP will be displayed to the media and public. Plastic that is retrieved from the GPGP waters will remain onboard the TENDER during the media event. Some of the collected waste will be displayed aboard the vessel. Media and guests will be invited to the event. An official presentation and program are planned. The System will also remain on the TENDER. Invited visitors will be allowed to board the TENDER to observe the plastic waste and the System. Both the CEO and the video producer will disembark the TENDER at the Port of Oakland. The marine and project crew will remain aboard the TENDER and TRADER. If they do leave the vessels, it will be only to participate in the festivities on the quayside. Upon completion of the media event, the TENDER and TRADER will depart for Victoria, Canada for a crew change, plastic waste offloading and preparation for the next trip to the GPGP including waste discharge. Issues Whether a foreign-flag vessel violates the coastwise laws when it departs from a Canadian port, collects merchandise in international waters and temporarily berths at a US port for a media event and then returns to the original Canadian port to offload the merchandise. Whether a foreign-flag vessel will be required to declare foreign merchandise that will remain on board when it docks at a U.S. port for a planned media event. Whether a foreign-flag vessel will be required to declare a plastic collection system that will remain on board when it docks at a U.S. port for a planned media event. Whether a CBP Form 7501 Entry Summary is required to be filed if merchandise is required to be declared. Whether invited members of the public are permitted to board a foreign-flag vessel while it is berthed at a U.S. port for a planned media event. If the boarding is permitted, what documentation is required for their entry? Whether a foreign-flag vessel may transport project crew from a Canadian port to a US port as part of a planned media event under the Passenger Vessels Services Act. Law and Analysis Transportation of Merchandise Generally, the coastwise laws prohibit the transportation of 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. The coastwise law applicable to the transportation of merchandise, often referred to as “the Jones Act,” is found at 46 U.S.C. § 55102, and provides in pertinent part: No vessel shall transport, either directly or by way of a foreign port, any passenger or merchandise between points in the United States embraced within the coastwise laws, including points within a harbor, or merchandise for any part of the transportation between such points, unless it is: Owned by a citizen and is so documented under the laws of the United States as to permit it to engage in the coastwise trade; (2) Owned by a citizen, is exempt from documentation, and is entitled to or, except for its tonnage, would be entitled to be documented with a coastwise endorsement. The Jones Act only partially defines the term “merchandise,” setting forth that merchandise “includes … merchandise owned by the United States Government, a State, or a subdivision of a State” and “valueless material.” See 46 U.S.C. § 55102(a). CBP utilizes the definition of “merchandise” as well in 19 U.S.C. § 1401(c): “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” Furthermore, by interpretations in its administrative letter rulings for purposes of the Jones Act, CBP has distinguished the transportation of “vessel equipment” from “merchandise.” Inasmuch as the terms of the Jones Act specifically encompass valueless material, it 

Transportation of Merchandise Generally, the coastwise laws prohibit the transportation of 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. The coastwise law applicable to the transportation of merchandise, often referred to as “the Jones Act,” is found at 46 U.S.C. § 55102, and provides in pertinent part:No vessel shall transport, either directly or by way of a foreign port, any passenger or merchandise between points in the United States embraced within the coastwise laws, including points within a harbor, or merchandise for any part of the transportation between such points, unless it is:Owned by a citizen and is so documented under the laws of the United States as to permit it to engage in the coastwise trade;(2) Owned by a citizen, is exempt from documentation, and is entitled to or, except for its tonnage, would be entitled to be documented with a coastwise endorsement.The Jones Act only partially defines the term “merchandise,” setting forth that merchandise “includes … merchandise owned by the United States Government, a State, or a subdivision of a State” and “valueless material.” See 46 U.S.C. § 55102(a). CBP utilizes the definition of “merchandise” as well in 19 U.S.C. § 1401(c): “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” Furthermore, by interpretations in its administrative letter rulings for purpose