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U.S. Customs and Border Protection RECEIPT OF APPLICATION FOR “LEVER-RULE” PROTECTION AGENCY: U.S. Customs and Border Protection (CBP), Department of Homeland Security. ACTION: Notice of receipt of application for “Lever-Rule” protection. SUMMARY: Pursuant to 19 CFR 133.2(f), this notice advises inter- ested parties that CBP has received an application from JUMEX S.A. de C.V. and its subsidiary, COMERCIALIZADORA ELERO, S.A. (“JUMEX”) seeking “Lever-Rule” protection for the federally regis- tered and recorded “JUMEX” trademark. FOR FURTHER INFORMATION CONTACT: Nerissa Hamilton- vom Baur, Intellectual Property Rights Branch, Regulations and Rul- ings, at [email protected], or (202) 325-0204. SUPPLEMENTARY INFORMATION: BACKGROUND Pursuant to 19 CFR 133.2(f), this notice advises interested parties that CBP has received an application from JUMEX seeking “Lever- Rule” protection against the importation of five JUMEX juice prod- ucts (Mango Nectar; Pineapple-Coconut Nectar; Guava Nectar; Apple Nectar; and Peach Nectar) made in Mexico and intended for sale outside the United States, that bear the “JUMEX” trademark (U.S. Trademark Registration No. 973,533/CBP Recordation No. TMK 17- 00228). In the event that CBP determines that the JUMEX juice products intended for sale outside the United States are physically and materially different from the juice products authorized for sale in the United States, CBP will publish a notice in the Customs Bulletin, pursuant 19 CFR 133.2(f), indicating that the above-referenced trade- mark is entitled to “Lever-Rule” protection with respect to the physi- cally and materially different juice products. Dated: October 15, 2019 CHARLES R. STEUART Chief, Intellectual Property Rights Branch Regulations and Rulings, Office of Trade 1

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  • U.S. Customs and Border Protection◆

    RECEIPT OF APPLICATION FOR “LEVER-RULE”PROTECTION

    AGENCY: U.S. Customs and Border Protection (CBP), Departmentof Homeland Security.

    ACTION: Notice of receipt of application for “Lever-Rule” protection.

    SUMMARY: Pursuant to 19 CFR 133.2(f), this notice advises inter-ested parties that CBP has received an application from JUMEX S.A.de C.V. and its subsidiary, COMERCIALIZADORA ELERO, S.A.(“JUMEX”) seeking “Lever-Rule” protection for the federally regis-tered and recorded “JUMEX” trademark.

    FOR FURTHER INFORMATION CONTACT: Nerissa Hamilton-vom Baur, Intellectual Property Rights Branch, Regulations and Rul-ings, at [email protected], or (202) 325-0204.

    SUPPLEMENTARY INFORMATION:

    BACKGROUND

    Pursuant to 19 CFR 133.2(f), this notice advises interested partiesthat CBP has received an application from JUMEX seeking “Lever-Rule” protection against the importation of five JUMEX juice prod-ucts (Mango Nectar; Pineapple-Coconut Nectar; Guava Nectar; AppleNectar; and Peach Nectar) made in Mexico and intended for saleoutside the United States, that bear the “JUMEX” trademark (U.S.Trademark Registration No. 973,533/CBP Recordation No. TMK 17-00228). In the event that CBP determines that the JUMEX juiceproducts intended for sale outside the United States are physicallyand materially different from the juice products authorized for sale inthe United States, CBP will publish a notice in the Customs Bulletin,pursuant 19 CFR 133.2(f), indicating that the above-referenced trade-mark is entitled to “Lever-Rule” protection with respect to the physi-cally and materially different juice products.Dated: October 15, 2019

    CHARLES R. STEUARTChief,

    Intellectual Property Rights BranchRegulations and Rulings, Office of Trade

    1

  • COPYRIGHT, TRADEMARK, AND TRADE NAMERECORDATIONS

    (NO. 9 2019)

    AGENCY: U.S. Customs and Border Protection, Department ofHomeland Security.

    SUMMARY: The following copyrights, trademarks, and trade nameswere recorded with U.S. Customs and Border Protection in Septem-ber 2019. A total of 151 recordation applications were approved,consisting of 6 copyrights and 145 trademarks. The last notice waspublished in the Customs Bulletin Vol. 53, No. 34, September 25,2019.

    Corrections or updates may be sent to: Intellectual Property RightsBranch, Regulations and Rulings, Office of Trade, U.S. Customs andBorder Protection, 90 K Street, NE., 10th Floor, Washington, D.C.20229–1177, or via email at [email protected]

    FOR FURTHER INFORMATION CONTACT: LaVerne Watkins,Paralegal Specialist, Intellectual Property Rights Branch, Regula-tions and Rulings, Office of Trade at (202) 325–0095.Dated: October 2, 2019

    CHARLES R. STEUARTChief,

    Intellectual Property Rights BranchRegulations and Rulings, Office of Trade

    2 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

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    9 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019C

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    10 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019C

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    11 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019C

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  • 19 CFR PART 177

    PROPOSED MODIFICATION AND REVOCATION OFRULING LETTERS RELATING TO CBP’S APPLICATION OFTHE JONES ACT TO THE TRANSPORTATION OF CERTAINMERCHANDISE AND EQUIPMENT BETWEEN COASTWISE

    POINTS

    AGENCY: U.S. Customs and Border Protection, Department ofHomeland Security.

    ACTION: Notice of proposed modification and revocation of head-quarters’ ruling letters relating to U.S. Customs and Border Protec-tion’s (“CBP”) application of the coastwise laws to certain merchan-dise and vessel equipment that are transported between coastwisepoints.

    SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.§ 1625(c)), as amended by section 623 of Title VI (Customs Modern-ization) of the North American Free Trade Agreement Implementa-tion Act (Pub. L. 103–182,107 Stat. 2057), this notice advises inter-ested parties that CBP proposes to modify or revoke severaladministrative rulings in which it has determined that certain ar-ticles transported between coastwise points are vessel equipmentpursuant to Treasury Decision (“T.D.”) 49815(4). In addition, CBPproposes to modify HQ 101925 (Oct. 7, 1976) to make that ruling moreconsistent with federal statutes and regulations that were amendedor promulgated after HQ 101925 was issued, and to clarify the properreasoning underlying the conclusions reached regarding the subjectscovered in the ruling. CBP also proposes to revoke its rulings thathave determined that a non-coastwise-qualified vessel engaging inoffshore lifting operations would violate the Jones Act, 46 U.S.C. §55102, when it moves a short distance to avoid collision with a surfaceor subsea structure when installing an offshore platform’s topside.

    CBP also intends to revoke or modify all prior rulings that areinconsistent with the proposed modifications and revocations. Com-ments on the proposed actions are invited.

    DATE: Comments must be received on or before November 22,2019.

    ADDRESS: Written comments are to be addressed to U.S.Customs and Border Protection, Office of Trade, Regulations andRulings, attention: Cargo Security, Carriers and RestrictedMerchandise Branch, 90 K St., NE, 10th Floor, Washington, DC20229–1177. Submitted comments may be inspected at the addressstated above during regular business hours. Arrangements to

    12 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • inspect submitted comments should be made in advance by callingMr. Joseph Clark at (202) 325–0118.

    FOR FURTHER INFORMATION CONTACT: Chief, CargoSecurity, Carriers, and Restricted Merchandise Branch, at (202)325–0030.

    SUPPLEMENTARY INFORMATION:

    BACKGROUND

    Current customs law includes two key concepts: informed compli-ance and shared responsibility. Accordingly, the law imposes an obli-gation on CBP to provide the public with information concerning thetrade community’s responsibilities and rights under the customs andrelated laws. In addition, both the public and CBP share responsibil-ity in carrying out import requirements. For example, under section484 of the Tariff Act of 1930, as amended (19 U.S.C. § 1484), theimporter of record is responsible for using reasonable care to enter,classify and value imported merchandise, and to provide any otherinformation necessary to enable CBP to properly assess duties, collectaccurate statistics, and determine whether any other applicable legalrequirement is met.

    Although CBP has previously proposed revoking or modifying sev-eral of the letter rulings discussed in this notice, we note that thescope of the instant notice differs from the prior notices. Most re-cently, CBP proposed in the Customs Bulletin, Vol. 51, No. 3, January18, 2017, to modify HQ 101925 (Oct. 7, 1976) to make it more consis-tent with certain federal statutes amended after it was issued, and torevoke or modify several rulings determining that certain articlestransported between coastwise points are “vessel equipment” pursu-ant to T.D. 49815(4) (the “2017 Notice”). Subsequently, in the CustomsBulletin, Vol. 51, No. 19, May 10, 2017, based on many substantivecomments supporting and opposing the proposed action, CBP with-drew the 2017 Notice to reconsider the proposed action. Specifically,the 2017 Notice proposed to revoke or modify the following rulingletters that are not covered by the instant notice, and thereforeremain in force: HQ 105644 (June 7, 1982); HQ 108223 (Mar. 13,1986); HQ 110402 (Aug. 18, 1989); HQ 111889 (Feb. 11, 1992); HQ111892 (Sept. 16, 1991); HQ 112218 (July 22, 1992); HQ 113838 (Feb.25, 1997); HQ 114305 (Mar. 31, 1998); HQ 115218 (Nov. 30, 2000); HQ115333 (Apr. 27, 2001); HQ 115381 (June 15, 2001); HQ 115938 (Apr.1, 2003); HQ 115771 (Aug. 19, 2002); HQ H029417 (June 5, 2008); andHQ H032757 (July 28, 2008). Of note, ruling letters HQ 112218 (July22, 1992) and HQ 113137 (June 27, 1994), cited in the 2017 Notice,pertain to cement, chemicals, and other consumable materials, and

    13 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • remain in force. Furthermore, unlike in the 2017 Notice, CBP nowproposes to revoke three letter rulings interpreting the extent towhich incidental movements constitute “transportation” with respectto offshore lifting operations.

    More specifically, pursuant to 19 U.S.C. § 1625(c)(1), this noticeadvises interested parties that CBP proposes to modify HQ 101925(Oct. 7, 1976) to make that ruling more consistent with federal stat-utes that were amended after HQ 101925 was issued, and to modifyor revoke certain rulings that have determined articles transportedbetween coastwise points are vessel equipment pursuant to TreasuryDecision (“T.D.”) 49815(4).1 In addition, this notice advises interestedparties that CBP proposes to revoke three rulings analyzing whethera non-coastwise-qualified lifting vessel would violate the Jones Act,46 U.S.C. § 55102, when it moves a short distance to avoid collisionwith a surface or subsea structure when installing an offshore plat-form’s topside.

    Although in this notice CBP specifically refers to the revocation andmodification of the ruling letters listed below, this notice covers anyrulings raising the subject issues that may exist but have not beenspecifically identified. CBP has undertaken reasonable efforts tosearch existing databases for rulings in addition to those identified.No further rulings have been found. Pursuant to 19 CFR §177.12(b)(1), CBP invites any member of the public who has receivedan interpretive ruling or decision (i.e., ruling letter, internal advicememorandum or decision, or protest review decision) subject to thisnotice that has not been identified to advise CBP during this commentperiod.

    Similarly, pursuant to 19 U.S.C. § 1625(c)(2), CBP proposes tomodify or revoke any treatment previously accorded by CBP to sub-stantially identical transactions. Pursuant to 19 CFR § 177.12(c), anyperson involved in substantially similar transactions should adviseCBP during this comment period. A party’s failure to advise CBP ofsubstantially identical transactions or of a specific ruling not identi-fied in this notice may raise issues of reasonable care on the part ofthe party or its agents for coastwise transportation of merchandisesubsequent to the effective date of the final decision on this notice.

    In light of the current regulations on general ruling practice set

    1 The terms “revocation” and “modification” reference related, but distinct, concepts. Asoutlined in 19 U.S.C. § 1625(c)(2) and 19 CFR 177.12, both revocation and modification havethe effect of altering the treatment previously accorded by CBP. In revoking a ruling, CBPwithdraws the entirety of a ruling based on the rationale outlined in the requisite noticeand comment process. In modifying a ruling, CBP leaves the ruling in place but revisesspecific aspects of the ruling, with the changes outlined in the requisite notice and commentprocess.

    14 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • forth in 19 CFR § 177, et seq., “[i]t is in the interest of the soundadministration of the Customs and related laws that persons engag-ing in any transaction affected by those laws fully understand theconsequences of the transaction prior to its consummation.” See 19CFR § 177.1(a)(1). Notably, rulings issued by CBP are not regulations,but rather are written statements that interpret and apply the pro-visions of the Customs and related laws to the specific set of factspresented by the ruling requester. See 19 CFR § 177.1(d)(1). Not onlyare rulings instructive for the ruling requesters engaging in theirspecific transactions, but they also provide guidance for CBP fieldoffices relating to these ruling requesters’ specific transactions. See 19CFR § 177.11. Therefore, it is in the interest of CBP to issue rulingsthat will provide guidance not only to the ruling requesters regardingtheir specific transactions, but also to the individuals in the field thathave to enforce these rulings. However, “no other person should relyon the ruling letter[s] or assume that the principles of [those] rul-ing[s] will be applied in connection with any transactions other thanthe one[s] described in [those] letter[s].” See 19 CFR § 177.9(c). In-deed, subsequent CBP rulings may vary as technological changes orother factors alter CBP’s analysis of a given scenario. Thus, if a partyseeks clarity regarding a prospective transaction, a ruling requestmay be submitted for consideration following the instructions foundin 19 CFR § 177.2. Requests must “contain a complete statement of allrelevant facts relating to the transaction.” 19 CFR § 177.2(b)(1).

    Importantly, none of the interpretations set forth herein, or in anyother administrative ruling or decision, may be used to circumventthe lawful application of the Jones Act. The requirements and restric-tions of the Jones Act may no more “be escaped by resort to disguiseor artifice” than any other area of Customs law.2 Accordingly, wherethe transported materials genuinely qualify as vessel equipment, orwhere the activity is genuinely a lifting operation, none of theseinterpretive doctrines may be employed to curtail the scope of theJones Act simply by artificially structuring or describing such activi-ties in such terms, solely in order to escape the Jones Act’s lawfulrestrictions and without any independent commercial or safety pur-pose or justification.

    Vessel Equipment

    Based on our research, the definition of “vessel equipment” thatCBP has used in its coastwise trade rulings, has been based, in part,on T.D. 49815(4) (Mar. 13, 1939), which interprets § 309 of the Tariff

    2 See United States v. Citroen, 223 U.S. 407, 415 (1912); Heartland By-Products, Inc. v.United States, 264 F.3d 1126, 1138–39 (Fed. Cir. 2001) (Friedman, J., concurring).

    15 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • Act of 1930, codified at 19 U.S.C. § 1309. Section 309 provides for theduty-free withdrawal of supplies and equipment for certain vesselsand aircraft.

    The term “equipment”, as used in section 309, as amended,includes portable articles necessary and appropriate for the navi-gation, operation or maintenance of the vessel and for the comfortand safety of the persons on board. It does not comprehendconsumable supplies either for the vessel and its appurtenancesor for the passengers and the crew. The following articles, forexample, have been held to constitute equipment: rope, sail,table linens, bedding, china, table silverware, cutlery, bolts andnuts.

    T.D. 49815(4) (Mar. 13, 1939) (emphasis added).

    Beginning with HQ 101925 (Oct. 7, 1976) (Attachment A), severalCBP rulings analyzing the status of various items as “vessel equip-ment” departed from the language in T.D. 49815(4) in such a mannerthat the original meaning was expanded and, thus, used out of con-text. Although periodically citing the above italicized language in itsrulings, CBP also analyzed whether the use of the item in questionpossessed a nexus to the “mission of the vessel.” See, e.g., HQ 101925(Oct. 7, 1976) (“necessary for the accomplishment of the mission of thevessel”); HQ 113841 (Feb. 28, 1997) (“essential to the mission of thevessel”); HQ 114435 (Aug. 6, 1998) (“necessary for the accomplish-ment of the mission of the vessel”); HQ H004242 (Dec. 22, 2006)(“necessary for the accomplishment of the vessel’s mission”); HQ115487 (Nov. 20, 2001) (“necessary to the accomplishment of themission of the vessel”); HQ 115938 (Apr. 1, 2003) (“fundamental to thevessel’s operation”); and HQ 116078 (Feb. 11, 2004) (“used by a vesselin the course of its business”). In addition, several rulings furtherexpanded the analysis of what constitutes “vessel equipment” to ana-lyze whether an item is used “on or from” the transporting vessel asa determinative factor. See, e.g., HQ 108442 (Aug. 13, 1986).

    In applying T.D. 49815(4) to 46 U.S.C. § 55102 in these rulings,CBP reasoned that if the article was used in the activity in which thevessel was about to engage, e.g., “in furtherance of the mission,”“fundamental to the operation of the vessel,” etc., the article would beconsidered vessel equipment. As such, although T.D. 49815(4) formedthe underlying criteria, its original meaning was expanded by thephrases quoted above and, thus, used out of context, with the ex-panded reading applied as the rule of law in these cases. Such anapplication, however, is less consistent with the more narrow mean-ing of “vessel equipment” contemplated by T.D. 49815(4).

    16 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • CBP therefore proposes to modify the line of rulings beginning withHQ 101925 to limit the concepts that contributed to the overbroadinterpretation of what constitutes “vessel equipment.” Specifically,CBP proposes to amend HQ 101925 to interpret “vessel equipment” toinclude all articles or physical resources serving to equip the vessel,including the implements used in the vessel’s operation or activity.3

    As specified in T.D. 49815(4), the scope of vessel equipment includesitems which are “necessary and appropriate for the navigation, op-eration or maintenance of a vessel and for the comfort and safety ofthe persons on board.” Items considered “necessary and appropriatefor the operation of the vessel” are those items that are integral to thefunction of the vessel and are carried by the vessel. These functionsinclude, inter alia, those items that aid in the installation, inspection,repair, maintenance, surveying, positioning, modification, construc-tion, decommissioning, drilling, completion, workover, abandonmentor other similar activities or operations of wells, seafloor or subseainfrastructure, flowlines, and surface production facilities. CBP alsoemphasizes that the fact that an item is returned to and departs withthe vessel after an operation is completed, and is not left behind onthe seabed, is a factor that weighs in favor of an item being classifiedas vessel equipment, but is not a determinative factor.

    Accordingly, CBP proposes to modify the following rulings to theextent they are contrary to the guidance set forth in this notice. Inaddition, attached to this notice are original and “red line” versions ofthe modified rulings, which illustrate CBP’s proposed modificationsand rationale.

    Ruling Number Summary of ProposedModification

    CorrespondingAttachments

    HQ 101925 (Oct.7, 1976)

    Limit the concepts that contributedto the overbroad definition of “vesselequipment” and the inappropriateconjoining of coastwise-trade-coveredactivity with non-coastwise-trade-covered activity.

    Original (Attach-ment A) Red Line(Attachment B)

    HQ 108442 (Aug.13, 1986)

    Remove analysis of whether workperformed on or from a vessel as de-terminative of whether an item ismerchandise or vessel equipment.

    Original (Attach-ment C) Red Line(Attachment D)

    HQ 113841 (Feb.28, 1997)

    Remove the analysis of “mission ofthe vessel” to determine whether anitem constitutes merchandise or ves-sel equipment.

    Original (Attach-ment E) Red Line(Attachment F)

    3 See “equipment,” in Merriam-Webster.com. Retrieved Oct. 1, 2019, from https://www.merriam-webster.com/dictionary/equipment.

    17 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • Ruling Number Summary of ProposedModification

    CorrespondingAttachments

    HQ 114435 (Aug.6, 1998)

    Remove analysis of whether certainobjects are “necessary for the accom-plishment of the mission of the ves-sel” or “essential to the completion ofthe mission of the vessel.”

    Original (Attach-ment G) Red Line(Attachment H)

    HQ 115185 (Nov.20, 2000)

    Remove the analysis of whether thesubject items would be used to per-form work from the vessel.

    Original (Attach-ment I) Red Line(Attachment J)

    HQ 115487 (Nov.20, 2001)

    Remove analysis of whether it is the“mission of the vessel” to install thesubject items.

    Original (Attach-ment K) Red Line(Attachment L)

    HQ 115771 (Aug19, 2002)

    Remove analysis of whether the sub-ject items are “necessary for the ac-complishment of the mission of thevessel, and usually carried on boardas a matter of course....”

    Original (Attach-ment M) Red Line(Attachment N)

    HQ 116078 (Feb.11, 2004)

    Remove references to other rulingsimproperly applying the “mission ofthe vessel” rationale.

    Original (Attach-ment O) Red Line(Attachment P)

    In addition, CBP proposes to revoke the following rulings becausethey are contrary to the guidance set forth in this notice:HQ 115218 (Nov. 30, 2000) (Attachment Q)HQ 115311 (May 10, 2001) (Attachment R)HQ 115522 (Dec. 3, 2001) (Attachment S)HQ 115938 (Apr. 1, 2003) (Attachment T)HQ H004242 (Dec. 22, 2006) (Attachment U)

    Additional Modifications Arising from HQ 101925 (Oct. 7, 1976)

    Headquarters ruling letter 101925 (Attachment A) was issued to aTexas marine construction company and was based on facts providedby the company regarding its proposed use of a foreign-built barge. Inaddition to the ruling’s overbroad approach to vessel equipment de-scribed above, several of the holdings in HQ 101925 are no longerapplicable due to amendments made to 46 U.S.C. § 55102 (formerly46 U.S.C. App. 883), the Outer Continental Shelf Lands Act,4 and 19CFR § 4.80b(a). Accordingly, we are resolving these issues by propos-ing to modify HQ 101925 as outlined in the “red line” version of theruling (Attachment B); the modification does not have retroactiveapplicability to any transactions already completed by the rulingrequestor.

    First, CBP ruled that the use of a work barge in repairing pipe isnot a use in coastwise trade because there is “no distinction betweenrepairing pipe and the laying of new pipe.” CBP proposes to modify

    4 Pub. L. 95–372, Title II, sec. 203 (Sept. 19, 1978) codified at 43 U.S.C. § 1333.

    18 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • this holding as overbroad. Although it is possible that the subject piperepair operations could violate the Jones Act, no violation would occurif the materials used are “paid out, not unladen” or if the materialsinvolved qualify as “vessel equipment” under the analysis providedabove.

    Second, CBP considered whether the installation of an item was“foreseeable” in determining whether the transportation of the itemwas in violation of the Jones Act. CBP proposes to remove the refer-ence to foreseeability because the analysis of whether the use of anitem is foreseeable or unforeseeable is irrelevant under the Jones Act.

    Third, CBP considered whether a transportation was “incidental” tothe activity in which the vessel ultimately would engage (i.e., piperepair), to determine whether the transportation of the item to beinstalled at a coastwise point was covered by the Jones Act. CBPproposes to remove the concept of whether the transportation is“incidental” because the inquiry into whether the transportation isincidental to the vessel’s subsequent activity of using the item in aninstallation or repair is irrelevant.

    Fourth, CBP ruled that a non-Jones-Act-qualified vessel couldtransport and subsequently unlade at a coastwise point items of “deminimis” value normally carried aboard the vessel as supplies. How-ever, Public Law 100–329 (100 Stat. 508; effective June 7, 1988)amended the Jones Act to make clear that the term “merchandise”includes “valueless material.” See 46 U.S.C. § 55102(a)(2). As such,CBP proposes to amend HQ 101925 to clarify that there is no basis fora de minimis value rule in determining whether an item is merchan-dise under the Jones Act.

    Fifth, CBP ruled that a non-Jones-Act-qualified vessel could carryitems normally carried onboard a vessel as supplies to conduct “un-foreseen” repairs to offshore or subsea structures. Once again, CBPproposes to remove the reference to foreseeability because the analy-sis of whether the use of an item is foreseeable or unforeseeable isirrelevant under the Jones Act.

    Sixth, and finally, CBP ruled that a non-Jones-Act-qualified vesselcould transport damaged or replaced pipe if the transportation was“incidental” to a pipeline repair operation. Once again, CBP proposesto remove the reference to this concept because the inquiry intowhether the transportation is incidental to the vessel’s subsequentactivity is irrelevant.

    Further, pursuant to 19 U.S.C. § 1625(c)(2), CBP intends by thisnotice to revoke or modify any treatment previously accorded by CBPto substantially identical transactions.

    19 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • Lifting Operations

    CBP has previously held that the movement by lifting of a topsideby a dynamically-positioned, non-coastwise-qualified vessel to acoastwise point, subsequent to receiving the topside from a coastwise-qualified vessel that previously laded the topside at a coastwise point,constitutes a violation of the Jones Act. Specifically, HQ H225102(Sept. 21, 2012) and HQ H235242 (Nov. 15, 2012) (reconsidering HQH225102) found that a company’s proposal to use a dynamically-positioned, non-coastwise-qualified vessel to lift and reposition a top-side to a single point anchor reservoir (“SPAR”) would violate 46U.S.C. § 55102 when, after receiving the topside, the non-coastwise-qualified vessel would move a short distance away under its ownpower to avoid coming into contact with the SPAR before returning toits pivot point to complete the topside installation. See also, HQH242466 (July 3, 2013) (involving the same proposed topside instal-lation and incorporating the same analysis but finding no violationwhere the vessel pivots on its central axis while lifting merchandise).

    In finding a violation of 46 U.S.C. § 55102, CBP relied on severalprior rulings in which it has held that the use of a non-coastwise-qualified crane vessel to load and unload cargo or construct or dis-mantle a marine structure is not coastwise trade and does not violatethe coastwise laws, provided that any movement of merchandise iseffected exclusively by the crane and not by any movement of thevessel, except for necessary movement which is incidental to a liftingoperation while it is taking place. See, e.g., HQ 116111 (Jan. 30, 2004);HQ 116680 (June 29, 2006) (involving incidental “jostling movementsthat may occur due to wave action, the movement of the arm of thecrane, or the like”). In this vein, CBP has held that a pivoting motionby a non-coastwise-qualified vessel on its central axis does not con-stitute transportation of merchandise within the meaning of 46U.S.C. § 55102. See, e.g., HQ 115985 (May 21, 2003) (analyzing thestationary movement of foreign-flagged vessel on its central axis) andHQ 111684 (June 26, 1991) (analyzing the 90 degree rotation of anon-coastwise-qualified barge on its axis). CBP has also held, how-ever, that rotation on a fulcrum (i.e., a swinging motion in which thecenter of the vessel shifts) by a non-coastwise-qualified crane vesselto create a more “favorable angle” would not be necessary or inciden-tal to the lifting operation, and would therefore constitute transpor-tation of merchandise in violation of 46 U.S.C. § 55102. HQ 116191(Apr. 15, 2004). CBP has further held that the lateral movement of anon-coastwise-qualified floating crane/barge that is necessary for the

    20 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • vessel to lift and place its load would similarly constitute coastwisetrade within the definition of 46 U.S.C. § 55102. HQ 115630 (Mar. 25,2002).

    In applying these rulings to the proposed movement of the topsideby the non-coastwise-qualified lift vessel in HQ H225102 and HQH235242, CBP analogized the purposeful movement of the lift vesselto that of a crane vessel moving on a fulcrum to create a more“favorable angle” for its operation. It was on this basis that CBPfound that the proposed lateral movement of the vessel would violate46 U.S.C. § 55102 because such movement would not be incidental.See HQ 116191 (Apr. 15, 2004). CBP now believes that such aninterpretation is overly restrictive and does not accurately reflect theconcept of coastwise transportation under the Jones Act.

    As such, CBP proposes to adopt a revised interpretation for offshore“lifting operations” to clarify that certain lateral movements do notconstitute transportation under the Jones Act. The term offshore“lifting operations” includes the lifting by cranes, winches, liftingbeams, or other similar activities or operations, from the time thatthe lifting activity begins when unlading from a vessel or removingoffshore facilities or subsea infrastructure until the time that thelifting activities can be safely terminated in relation to the unlading,installation, or removal of offshore facilities or subsea infrastructure.Lifting operations encompass the initial vertical movement of an itemfrom a lower position to a higher position,5 and any additional verti-cal or lateral movement necessary (including incidental movementwhile lifted items are temporarily placed on the deck of the liftingvessel as necessary for the safety of certain lifted items, as well assurface and subsea infrastructure, and the vessels and marinersinvolved) to safely place into position or remove an item from thevicinity of an existing structure, facility or installation. Offshore lift-ing operations are distinct from transportation subject to the JonesAct in that any lateral movement of the vessel or the item in thevicinity of the structure or facility where the item is being positionedor removed is merely subordinate to and a direct consequence of thelifting operations. Safety and practical concerns, including the physi-cal demands of the lifting operations, the mitigation of risk to humanlife and health, and the avoidance of damage to the surface andsubsea infrastructure in the lift operations area,6 allow for necessary

    5 See “lift,” in Merriam-Webster.com. Retrieved Oct.1, 2019, from https://www.merriam-webster.com/dictionary/lift.6 See 30 CFR § 250.714. To illustrate the need to address these safety and practicalconcerns, a party might point to a dropped objects plan required by the Bureau of Safety

    21 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • lateral movement in the lift operations area, which does not consti-tute transportation. The term “transportation” for purposes of JonesAct enforcement is the conveyance of merchandise between points inthe United States to which the coastwise laws apply.7 Thus, themovement of component parts or materials to and from the point orplace at which the lifting operations are conducted constitutes trans-portation and therefore is subject to the Jones Act and must beconducted by a coastwise-qualified vessel.

    Accordingly, CBP proposes to revoke the following rulings to theextent that they are contrary to the guidance set forth in this noticeand to the extent that the transactions are past and concluded:HQ H225102 (Sept. 24, 2012) (Attachment V)HQ H235242 (Nov. 15, 2012) (Attachment W)HQ H242466 (July 3, 2013) (Attachment X)

    CBP does not intend, however, to revoke or modify its previousrulings upon which these three rulings relied where it was held thatthe use of a non-coastwise-qualified crane vessel to load and unloadcargo or construct or dismantle a marine structure is not coastwisetrade and does not violate the coastwise laws, provided that anymovement of merchandise is effected exclusively by the crane and notby any movement of the vessel, except for necessary movement whichis incidental to a lifting operation while it is taking place. See, e.g.,HQ 116111 (Jan. 30, 2004); HQ 116680 (June 29, 2006) (involvingincidental “jostling movements that may occur due to wave action,the movement of the arm of the crane, or the like”).

    Based on the foregoing, pursuant to 19 U.S.C. § 1625(c)(1), CBPproposes to modify or revoke the above-mentioned rulings to clarifywhat constitutes vessel equipment pursuant to the Jones Act, 46U.S.C. § 55102. CBP also proposes to revoke the three rulings relatedto offshore lifting operations as described above. Additionally, pursu-ant to 19 U.S.C. § 1625(c)(2), CBP proposes to revoke any treatmentpreviously accorded by CBP to substantially identical transactions.

    Before taking this action, consideration will be given to any writtencomments timely received.Dated: October 11, 2019

    KEVIN K. MCALEENANActing Secretary

    U.S. Department of Homeland Security

    Attachmentsand Environmental Enforcement for oil and gas operations in the Outer Continental Shelfas a benchmark that demonstrates its compliance with federal safety regulations andindustry best practices.7 See 46 U.S.C. § 55102(b).

    22 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • ATTACHMENT A

    Oct. 7, 1976VES-3–06-R:CD:C

    101925 NLMR. J. R. SELLERSVICE PRESIDENT – MARINE CONSTRUCTIONOCEANEERING INTERNATIONAL, INC.9219 KATY FREEWAYHOUSTON, TEXAS 77024

    DEAR MR. SELLERS:In your letter of December 2, 1975, you request advice concerning the

    proposed operation of a diving support work barge in United States waters.You state that the barge will be constructed in a foreign shipyard, towed tothe United States and then used primarily in support of Oceaneering Inter-national’s diving operations in the construction, maintenance, repair andinspection of offshore petroleum-related facilities.

    While there is no requirement in the laws administered by the CustomsService to the effect that such vessel need obtain American registry in orderto operate in United States waters, whether or not such registry can beobtained is a question which should be addressed to the Merchant VesselDocumentation Division, United States Coast Guard. It is clear, though, thata foreign-built vessel may not engage in the coastwise trade of the UnitedStates. Generally speaking, coastwise trade involves the transportation ofpassengers or merchandise between points in the United States embracedwithin the coastwise laws. All points within and the territorial waters sur-rounding the United States and nearly all the territories and possessionsthereof are embraced within those laws.

    Title 46, United States Code, section 883, prohibits (with certain exceptionsnot relevant here) the transportation of merchandise between points in theUnited States in a foreign-flag vessel, a foreign-built vessel, or a vessel whichat one time has been under foreign flag or ownership. Section 289 of title 46prohibits the transportation of passengers between points in the UnitedStates on a foreign vessel.

    However, not every movement between points in the United States isdeemed to be a transportation within the meaning of the coastwise laws. Wewill advise you of the permissibility of the proposed operations in UnitedStates waters by this foreign-built diving support work barge in the order inwhich you presented them. It is suggested, though, that the appropriate officeof the Coast Guard be contacted in order to ascertain whether any laws orregulations administered by that agency, other than those relating to vesseldocumentation, would be applicable in this matter.

    (1) The Customs Service has held that the sole use of a vessel in layingpipe is not a use in the coastwise trade of the United States, even whenthe pipe is laid between two points in the United States embraced withinthe coastwise laws. Further, since the use of a vessel in pipelaying is nota use in the coastwise trade, a foreign-built vessel may carry the pipewhich it is to lay between such points. It is the fact that the pipe is notlanded but only paid out in the course of the pipelaying operation whichmakes such operation permissible.

    23 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • However, the transportation of pipe by any vessel other than a pipelayingvessel to a pipelaying location at a point within United States territorialwaters would be considered coastwise trade and would therefore have tobe accomplished by a vessel meeting the statutory requirements entitlingit to engage in such trade.

    (2) Similarly, the Customs Service is of the opinion that for the purposeof the coastwise laws there is no distinction to be made between repairingpipe and the laying of new pipe. Therefore, the sole use of the work bargein repairing pipe is not a use in the coastwise trade, and in view of theunique characteristics of pipelaying operations which take them out ofthe purview of the coastwise laws, the transportation of pipe and repairmaterials by the work barge, to be used by the crew of the work barge inthe repair of the pipeline, is also an activity that is not prohibited by thecoastwise laws.

    (3) Although the installation of anodes on a subsea pipeline or offshoredrilling platform may have more of a preventative than restorative effect,such installation is considered to be in the nature of a repair and thus nota use of the vessel in the coastwise trade. However, since the installationof a preventative substance is an intrinsically foreseeable operation, thetransportation of anodes to the operational location within United Stateswaters must be accomplished by a vessel entitled to engage in the coast-wise trade.

    (4) The transportation of pipeline burial tools by the work barge for useby the crew of the work barge to accomplish the pipelaying operations isnot an activity prohibited by the coastwise laws since such tools areconsidered to be part of the legitimate equipment of that vessel.

    (5) Since a foreign-built work barge may engage in the laying andrepairing of pipe in territorial waters, in our opinion, the use of the vesselin the installation of pipeline connectors to offshore drilling platforms andsubsea wellheads is likewise not a use in the coastwise trade. In addition,the transportation of pipeline connectors to be installed by the crew of thework barge incidental to the pipelaying operations of the work barge isnot an activity prohibited by the coastwise laws.

    (6) The Customs Service is of the opinion that the sole use of a vessel ineffecting underwater repairs to offshore or subsea structures is not con-sidered a use in coastwise trade. Further, the transportation by the vesselof such materials and tools as are necessary for the accomplishment of themission of the vessel (i.e., materials to be expended during the course ofthe underwater inspection and repair operations and tools necessary insuch operations) for use by the crew of the vessel is not, generally speak-ing, an activity prohibited by the coastwise laws since such transporta-tion is incidental to the vessel’s operations.

    However, while materials and tools, as described above, which are nec-essary for the accomplishment of the mission of the vessel are not con-sidered merchandise within the meaning of section 883, any article whichis to be installed and therefore, in effect, landed at an offshore drillingplatform is normally considered merchandise. We are of the opinion thatif the necessity for the repair of, or the installation of repair materials onto, the underwater portions of the drilling platform is foreseen and re-

    24 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • quires a repair material or component of more than de minimis value(such as a structural member), the transportation to the repair site mustbe effected by a vessel entitled to engage in the coastwise trade. Never-theless, in view of the nature of these underwater operations, a vesselengaging in the inspection and repair of offshore or subsea structures maycarry with it repair materials of de minimis value or materials necessaryto accomplish unforeseen repairs, provided that such materials are usu-ally carried aboard the vessel as supplies.

    In summary, none of the aforementioned operations of the diving supportwork barge in United States waters, as proposed, would be considered ause in the coastwise trade provided such barge does not take on boardpassengers or merchandise at one point within these waters and dis-charge the passengers or merchandise at another such point. Crewmem-bers, including technicians and divers, necessary in the vessel’s inspec-tion, installation, and repair operations, are not considered passengers,nor are construction personnel who are on the barge in connection with itsbusiness. However, persons transported on the barge between pointsembraced within the coastwise laws who are not connected with theoperation, navigation, ownership, or business of the barge are consideredpassengers within the meaning of the coastwise laws. Legitimate equip-ment and stores of the barge for its use are not considered merchandisewithin the meaning of section 883. However, articles transported on thebarge between points embraced within the coastwise laws which are notlegitimate stores and equipment of the barge, other than pipe laden onboard to be paid out in the course of operations, pipeline connectors,pipeline repair materials, and the other repair materials specified above,are subject to forfeiture under section 883.

    It should be emphasized that the transportation of persons or materialsas described above takes on a wholly different character if it results in thedelivery of such persons or materials to a subsea or offshore structure,such as a drilling platform, for use by such structure. For example, whilethe transportation of repair materials by the work barge for use by itscrew in effecting repairs on or from the barge, or in its service capacityunderwater, is not prohibited by the coastwise laws, the delivery of suchmaterials or persons to an offshore drilling platform to effect repairsthereon would be a transportation of something other than the legitimateequipment or crew of the work barge, and as such, would have to beaccomplished by a vessel entitled to engage in the coastwise trade.

    (7) The use of a vessel in the transportation of “salvaged” materials fromoffshore drilling platforms or pipelines in United States waters, otherthan pipe being retrieved incidental to a pipeline repair operation, wouldbe deemed a use in the coastwise trade, and would therefore have to beaccomplished by a vessel entitled to engage in the coastwise trade.

    (8) The use of a vessel in the transportation of machinery or productionequipment to an offshore production platform would be deemed a use inthe coastwise trade, and would therefore have to be accomplished by avessel entitled to engage in the coastwise trade. However, the sole use ofthe diving support work barge in lifting and depositing heavy loads at afixed site in the territorial waters of the United States is not consideredcoastwise trade and such activity would not be prohibited by the coast-

    25 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • wise laws. Further, the mere movement of the work barge incidental tothe lifting and depositing of heavy loads at the site of the lifting would notbe deemed coastwise trade.

    (9) As was just stated, with regard to the transportation of machinery orproduction equipment to an offshore production platform, the movementof workover rigs from one production platform to another would be con-sidered to be coastwise transportation, but the mere lifting and depositingof such rigs by the crane of the work barge, for transportation on a vesselentitled to engage in the coastwise trade, would not of itself be considereda use in the coastwise trade.

    (10) The use of a vessel in the transportation of a wellhead assembly toa location on the seabed within United States waters would be deemed ause in the coastwise trade. At the same time, though, the sole use of avessel in the installation of a wellhead assembly at a location withinUnited States waters, after transportation of such assembly by a vesselentitled to engage in the coastwise trade, is not considered a use incoastwise trade, nor is the sole use of a vessel in servicing wellheads. Thetransportation of wellhead equipment, valves and valve guards to beinstalled on an already existing wellhead assembly in the servicing ca-pacity of the work barge by the crew of the work barge is not an activityprohibited by the coastwise laws, provided that such materials are of deminimis value or necessary to accomplish unforeseen repairs or adjust-ments and are usually carried aboard the work barge as supplies. On theother hand, if the necessity for specific wellhead equipment or othermaterials of more than de minimis value is foreseen, such transportationto the diving site must be effected by a vessel entitled to engage in thecoastwise trade.

    The laws on entrance and clearance of vessels are applicable to movementsof the diving support work barge to, from and between points in UnitedStates waters, with specific requirements depending on whether the vessel isunder United States or foreign flag. We will be happy to discuss such require-ments when we are made aware of the intended flag of registry of the workbarge.

    You state that the work barge will be supplied by crewboat or helicopter.Further information about the helicopters, especially their registry, is re-quired before we can rule on the applicability of the air cabotage law (49U.S.C. 1508(b)). The navigation laws, on the other hand, are fully applicableto supply vessels operating within United States territorial waters. Accord-ingly, a supply vessel which transports supplies, equipment, etc., or crew-members between points embraced within the coastwise laws of the UnitedStates (including the work barge when located at a point within UnitedStates waters) would be considered as operating in the coastwise trade andwould have to meet the statutory requirements entitling it to engage in suchtrade.

    Finally, General Headnote 5 of the Tariff Schedules of the United Statesprovides that:

    For the purpose of headnote 1-***(e) vessels which are not “yachts orpleasure boats” within the purview of subpart D, part 6, Schedule 6, “arenot articles subject to the provisions of these schedules.”

    26 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • As the vessel in question is not a yacht or pleasure boat, it would not betreated as an article subject to the provisions of the Tariff Schedules andwould not, therefore, be subject to duty.

    This decision is being circulated to all Customs officers to ensure unifor-mity in the administration of the customs and navigation laws.

    Sincerely yours,(SIGNED) J. P. TEBEAU

    J. P. TEBEAUDirector

    Carriers, Drawback and Bonds DivisionCc: R.C., Houston

    New Orleans

    MLublinski/mjn:10/6/76

    27 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • ATTACHMENT B

    28 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • 29 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • 30 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • 31 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

  • 32 CUSTOMS BULLETIN AND DECISIONS, VOL. 53, NO. 38, OCTOBER 23, 2019

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  • ATTACHMENT C

    Aug. 13, 1986VES-3–1