Transportation of Waste Water; 46 U.S.C. § 12101(a)(1); 46 U.S.C. App. § 883

HQ 116596 January 10, 2006 VES-3/7-RR:IT:EC 116596 GOB CATEGORY: Carriers RE: Transportation of Waste Water; 46 U.S.C. § 12101(a)(1); 46 U.S.C. App. § 883 Robert P. Laramee, Esq. Sandler & Laramee 28 Dale Avenue Gloucester, MA 01930-5986 Dear Mr. Laramee: This letter is in reply to your letter of January 6, 2006, requesting a ruling on behalf of Cape Seafoods, Inc. Our ruling follows. FACTS: You describe the essential facts as follows: Client fishes 3 U.S. documented vessels. The fish are brought into the port of Gloucester, Massachusetts where they are frozen. The frozen fish are then exported for sale overseas. The client wishes to process (fillet) the fish and pump the waste water therefrom into a specially designed vessel with holding tanks and transport the waste water for dumping, out into the ocean. It is intended that the water would be pumped out in an area located 4-7 miles from shore. The entrails, etc. would remain at the plant. The client has a market to dispose of the same. The waste water has no value. You inquire with respect to whether fisheries and/or coastwise endorsements are required for the vessels engaging in the proposed transportation of the waste water. ISSUES: Whether the above-described transportation of waste water constitutes an engagement in the fisheries within the meaning of 46 U.S.C. § 12101(a)(1)? Whether the above-described transportation of waste water constitutes the coastwise transportation of merchandise pursuant to 46 U.S.C. App. 883? LAW AND ANALYSIS: Title 46, United States Code, § 12101(a)(1) (46 U.S.C. § 12101(a)(1)) provides: In this chapter- “fisheries” includes processing, storing, transporting (except in foreign commerce), planting, cultivating, catching, taking, or harvesting fish, shellfish, marine animals, pearls, shells, or marine vegetation in the navigable waters of the United States or in the exclusive economic zone. Title 46, United States Code Appendix, §883 (46 U.S.C. App. § 883), the coastwise merchandise statute often called the “Jones Act”, provides in part that no merchandise shall 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 vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States (i.e., a coastwise-qualified vessel). Title 19, United States Code, §1401(c) (19 U.S.C. § 1401(c)) defines “merchandise,” in pertinent part, as follows: “goods, wares, and chattels of every description...” 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 twelfth proviso to 46 U.S.C. App. § 883 provides as follows: Provided further, That this section applies to the transportation of valueless material or any dredged material regardless of whether it has commercial value, from a point or place in the United States or a point or place on the high seas within the Exclusive Economic Zone as defined in the Presidential Proclamation of March 10, 1983, to another point or place in the United States or a point or place on the high seas within that Exclusive Economic Zone[.] [Emphasis added.] The Exclusive Economic Zone (“EEZ”) is defined in Presidential Proclamation 5030 of March 10, 1983 (48 FR 10605) as extending outward for 200 nautical miles from the baseline from which the territorial sea is measured. Based upon an application of the facts to the above-cited authorities, we make the following determinations. The transportation of the waste water from the port of Gloucester to an area located 4-7 miles from shore is not an engagement in the fisheries, as such activity is not described in 46 U.S.C. § 12101(a)(1). The transportation of the waste water from the port of Gloucester to an area located 4-7 miles from shore constitutes the coastwise transportation of merchandise, pursuant to the twelfth proviso of 46 U.S.C. App. § 883. Accordingly, vessels engaging in the transportation of waste water as proposed need only have a coastwise endorsement on their certificate of documentation. HOLDINGS: The transportation of the waste water from the port of Gloucester to an area located 4-7 miles from shore is not an engagement in the fisheries, as such activity is not described in 46 U.S.C. § 12101(a)(1). The transportation of the waste water from the port of Gloucester to an area located 4-7 miles from shore constitutes the coastwise transportation of merchandise, pursuant to the twelfth proviso of 46 U.S.C. App. § 883. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch