46 U.S.C. App. 883; Third proviso; Coastwise transportation

HQ 114825 October 14, 1999 VES-3-17-RR:IT:EC 114825 GOB CATEGORY: Carriers Dennis L. Bryant, Esq. Haight Gardner Holland & Knight 2100 Pennsylvania Avenue, N.W. Suite 400 Washington, D.C. 20037-3202 RE: 46 U.S.C. App. 883; Third proviso; Coastwise transportation Dear Mr. Bryant: This ruling is in response to your letter of September 27, 1999 on behalf of Alcoa Inc. FACTS: You describe the facts as follows: Our client, Alcoa Inc., proposes to transport alumina from the Alcoa facility at Point Comfort, Texas, to the Alcoa facility at Massena, New York. Under this proposal a non-coastwise-qualified vessel would be utilized to transport the alumina from Point Comfort to a port in Canada. The alumina would then be loaded onto railcars that would carry the alumina on a route that is in part over Canadian rail lines before being offloaded at the Massena facility. ISSUE: The application of 46 U.S.C. App. 883 to the proposed activity. LAW AND ANALYSIS: 46 U.S.C. App. 883, the coastwise merchandise statute often referred to as the "Jones Act", provides in part:  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 transportation, 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 ... 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 third proviso to 46 U.S.C. App. 883 provides that: this section shall not apply to merchandise transported between points within the continental United States, including Alaska, over through routes heretofore or hereafter recognized by the Surface Transportation Board for which routes rate tariffs have been or shall hereafter be filed with the Board when such routes are in part over Canadian rail lines and their own or other connecting water facilities ... In your request, you state that the Surface Transportation Board “has deleted, without replacement, the regulations under which such rate tariffs were previously filed.” On December 29, 1995, Congress passed the Interstate Commerce Commission Termination Act (“ICCTA”), which abolished the Interstate Commerce Commission (“ICC”) and established the Surface Transportation Board (“the Board”). Pursuant to section 204(a)(2) of ICCTA, the Board published a final rule in the Federal Register on June 7, 1996 (61 FR 29036), which removed from the Code of Federal Regulations obsolete ICC regulations, including the rail tariff filing requirement. On July 5, 1996, the Board published its new regulations (49 CFR Part 1300, effective August 4, 1996; 61 FR 35139) which require rail carriers to merely disclose their rates and service terms to any person upon formal request, as well as provide advance notice of increases in such rates or a change in such service terms. It is our position that the cumulative effect of the ICCTA mandates that the third proviso to 46 U.S.C. App. 883 remain in force subject to compliance with the requirements of the Board. Ruling 114507 dated October 26, 1998 and Ruling 114407 dated July 23, 1998. Accordingly, based upon the facts submitted, we determine that the proposed transportation falls within the scope of the third proviso and thus is not prohibited by 46 U.S.C. App. 883. HOLDING: The proposed transportation is not prohibited by 46 U.S.C. App. 883 by virtue of the third proviso to 46 U.S.C. App. 883. Sincerely, Jerry Laderberg Chief, Entry Procedures and Carriers Branch