Anti-pollution vessels; Coastwise merchandise statute; Trash collection; foreign-built vessels; valueless materials amendment; Merchandise; Transportation; 46 U.S.C. App. 883

HQ 112390 February 8, 1993 VES-3-CO:R:IT:C 112390 LLB CATEGORY: Carriers Mr. Edward G. Schreiber, Jr. Marubeni America Corporation 200 Park Avenue New York, New York 10166-0199 RE: Anti-pollution vessels; Coastwise merchandise statute; Trash collection; foreign-built vessels; valueless materials amendment; Merchandise; Transportation; 46 U.S.C. App. 883 Dear Mr. Schreiber: Reference is made to your letter of July 17, 1992, which requests a binding Customs ruling regarding the use of certain foreign-built vessels to remove water-borne garbage and trash from harbors and ports in the United States. FACTS: It is proposed that certain refuse collection vessels which were constructed in Japan be sold to United States interests and be used to assist in cleaning harbors and post areas in the United States of water-borne trash and garbage. The vessels would collect refuse in the course of cruising harbor and port areas. ISSUE: Whether foreign-built vessels may be utilized to retrieve trash from ports and harbors located within the territorial waters of the United States without legal consequence under the merchandise transportation statute, popularly known as the Jones Act. LAW AND ANALYSIS: Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and 883, and 46 U.S.C. 12106 and 12110) prohibit the transportation of merchandise or passengers between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in and documented under the laws of the United - 2 - States, and owned by persons who are citizens of the United States. The coastwise law pertaining to the transportation of merchandise, section 27 of the Act of June 5, 1920, as amended (41 Stat. 999; 46 U.S.C. App. 883, often called the Jones Act), provides that: No merchandise shall be transported by water, or by land and water, on penalty of forfeiture of the merchandise (or a monetary amount up to the value thereof as determined by the Secretary of the Treasury, or the actual cost of the trans- portation, whichever is greater, to be recovered from any consignor, seller, owner, importer, consignee, agent, or other person or persons so transporting or causing said merchandise to 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 other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States... The coastwise laws generally apply to points in the territorial sea, defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in the internal waters, landward of the territorial sea baseline, in cases where the baseline and the coastline differ. These laws have also been interpreted to apply to transportation between points within a single harbor. "Merchandise", as used in section 883, includes any article, including even materials of no value (see the amendment to section 883 by the Act of June 7, 1988, Pub. L. 100-329; 102 Stat. 588). It is the position of the Customs Service that the retrieval of discarded materials from different points within the territorial waters constitutes the lading of merchandise at those different sites. The subsequent unlading of those materials at another such location would trigger a violation of the statute. - 3 - HOLDING: A non-coastwise-qualified vessel may not be used to gather trash and garbage from waters within the jurisdiction of the United States and unlade it at a different such place, whether ashore or to another vessel, without violating the proscriptions of the merchandise transportation statute, codified at 46 U.S.C. App. 883. Sincerely, Acting Chief