46 U.S.C. § 55102; 19 C.F.R. §4.80b; Coastwise Transportation; Continuity of Transportation; Oceanographic Research; Limnological Research.

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection H325088 July 5, 2022  OT:RR:BSTC:CCR H325088 AFM CATEGORY: Carriers Dr. Elizabeth Hinchey Malloy U.S. EPA Great Lakes National Program Office 77 W. Jackson Blvd. G-9J Chicago, IL 60604 RE: 46 U.S.C. § 55102; 19 C.F.R. §4.80b; Coastwise Transportation; Continuity of Transportation; Oceanographic Research; Limnological Research. Dear Dr. Hinchey Malloy: This is in response to your correspondence of May 9, 2022, in which you requested a ruling determining whether a foreign-flagged, non-coastwise qualified oceanographic research vessel may be used to collect water samples in United States waters that are then mailed to the United States from Canada without violating 46 U.S.C. §§ 55102. Our decision follows. FACTS: The U.S. Environmental Protection Agency (“EPA”) vessel, the R/V LAKE GUARDIAN, is typically used to collect samples of Great Lakes water at EPA’s open-water monitoring stations in U.S. and Canadian waters. However, the R/V LAKE GUARDIAN is currently inoperable and awaiting repairs. While the R/V LAKE GUARDIAN awaits repair, the EPA proposes that Canadian Coast Guard Ship (“CCGS”) LIMNOS be used to collect the necessary samples in U.S. waters on a survey at Lake Huron planned for July 15, 2022, until July 30, 2022, with an EPA scientist aboard. The CCGS LIMNOS is a publicly owned oceanographic research vessel, as documented in a letter from the Canadian government’s Director of Fisheries and Oceans Canada and on the Canadian Coast Guard website. The Canadian Coast Guard (“CCG”) has offered to assist the EPA free of charge while the R/V LAKE GUARDIAN is undergoing repairs. Some of the water samples collected during this survey would then be shipped by the Department of Fisheries and Oceans Canada from Burlington, Ontario, Canada, to the EPA Region 5 Laboratory in Chicago, Illinois, as well as EPA-funded grant recipient laboratories at the University of Minnesota Duluth, Buffalo State College, and Cornell University. Water samples collected aboard the CCGS LIMNOS will also be offloaded and taken to the above laboratories by the EPA scientist when the CCGS LIMNOS docks. The samples collected aboard the CCGS LIMNOS would not be sold upon receipt in the United States. ISSUE: Whether the proposed operation constitutes an engagement in coastwise trade for purposes of 46 U.S.C. §§ 55102. 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. 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.” 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. (Citations omitted) 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. 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.” Accordingly, it has been the longstanding position of CBP, and its’ predecessor agency, the Customs Service, that the coastwise laws were also applicable to the waters of the Great Lakes. 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 Oceanographic Research Vessel Act, as amended, and codified at 46 U.S.C. § 2101 in conjunction with 46 U.S.C. § 50503, makes an exception to allow non-coastwise qualified vessels to engage in certain activities as an “oceanographic research vessel.” Specifically, 46 U.S.C. § 2101, 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. Moreover, 46 U.S.C. § 50503, provides “[a]n oceanographic research vessel (as defined in section 2101 of this title) is deemed not to be engaged in trade or commerce.” Thus, if the proposed vessel is employed solely for oceanographic research, it is CBP’s position that such use would not violate the coastwise laws found at 46 U.S.C. §§ 55102 and 55103. The EPA explains that the CCG will use the CCGS LIMNOS to collect water samples for the EPA in U.S. waters while carrying an EPA scientist aboard. CBP has long held that transportation of scientists aboard non-coastwise qualified oceanographic research vessels for sample collection in United States territorial waters does not violate the coastwise laws. In Headquarters Ruling (“HQ”) H010661 (May 4, 2007), a requester asked whether it would be permissible under the coastwise laws to transport an individual engaged in the oceanographic research of “deploying ocean floats and NOAA surface drifters” from Honolulu, Hawaii to San Diego, California aboard a non-coastwise qualified vessel. In evaluating this inquiry, CBP stated: We have held that the use of non-coastwise-qualified vessels to engage in oceanographic research, including the transportation of persons participating in such research to, from, 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. Furthermore, 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. Previously, in HQ H110399 (Aug. 23, 1989), a requester sought to transport biologists and chemists on a non-coastwise qualified oceanographic research vessel to collect algae, seaweed, other marine organisms and marine life, and water and sediment samples from the “Alaskan coast to, from, and between collection sites in United States territorial waters” to “assess the environmental impact of the Exxon Valdez oil spill.” The samples collected would be retrieved periodically from the vessel by helicopter, which would take the samples to on-shore laboratories for further study. We held that these uses of a vessel and transportation of samples would not be prohibited by the coastwise laws. In contrast, in HQ H112316 (July 22, 1992), a requester sought to collect scientific samples with a non-coastwise-qualified oceanographic research vessel and sell fish samples collected during scientific research activities. We held that transportation of fish for commercial sale would constitute a transportation of merchandise in violation of U.S. coastwise laws. The above cases demonstrate that CBP has long held that samples collected at research sites in the course of oceanographic research are not considered merchandise, unless used for commercial sale, and the transportation of samples to their ultimate destination in the United States is not violative of the coastwise laws. Similar to HQ H110399, the samples in this case would require an intermediary method of transportation to arrive at their ultimate destination. Therefore, the proposed collection of water samples and their subsequent transportation would not constitute transportation of merchandise and would not violate the coastwise laws. HOLDING: Under the facts presented above, the proposed collection of water samples from points in U.S. territorial waters during the course of oceanographic or limnological research, with an EPA scientist aboard the vessel for the purpose of collecting such samples, and subsequent transportation of the water samples to a United States destination would not constitute coastwise transportation of merchandise as contemplated by 46 U.S.C. § 55102. Also, transportation of an individual solely engaged in oceanographic research aboard the vessel would not constitute coastwise transportation of passengers as contemplated by 46 U.S.C. § 55103. Therefore, a foreign-flagged, or other non-coastwise-qualified, vessel employed solely in conducting oceanographic or limnological research and transporting samples collected during the course of such research would not be considered to violate the coastwise laws. Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a CBP field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.” If the terms of the import or export contracts vary from the facts stipulated to herein, this decision shall not be binding on CBP as provided for in 19 C.F.R. § 177(b)(1), (2) and (4), and § 177.9(b)(1) and (2). Sincerely, W. Richmond Beevers Chief, Cargo Security, Carriers and Restricted Merchandise Branch Office of Trade, Regulations and Rulings U.S. Customs and Border Protection