HQ 0109888 - Aquatic Plant Harvesting Vessels - United States International Trade Commision Rulings

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HQ 109888

December 12, 1988

VES-3/10-02-CO:R:P:C: 109888 GV

CATEGORY: CARRIER

Ms. Eileen M. Crowell
Aquarius Systems
Post Office Box 215
220 North Harrison
North Prairie, Wisconsin 53153

RE: Aquatic Plant Harvesting Vessels

Dear Ms. Crowell:

This is in reference to your letter of November 18, 1988, requesting a ruling as to whether the operation of a foreign- built harvesting vessel on the navigable waters of the United States is prohibited.

FACTS:

Your firm manufactures and sells aquatic plant harvesting equipment which, when used on a continuous basis, effectively opens up waterways for transportation and recreation. Enclosed with your letter was literature describing the subject equipment and its operation. You state that foreign competitors are importing this same equipment in substantial numbers into the United States to clean lakes and waterways of plants for ecological, recreational, and aesthetic purposes.

In addition to the above-referenced literature, you also enclosed a copy of Customs ruling VES-10-02-RRUCDC 104578 JCL, dated May 5, 1980, regarding the proposed operation of British- built dredges in the United States. You inquire as to the applicability of that ruling to the operation of the above mentioned foreign equipment.

ISSUE:

Whether the use of a foreign-built aquatic plant harvesting vessel on the navigable waters of the United States is prohibited by 46 U.S.C. App. 292.

LAW AND ANALYSIS:

Section 1 of the Act of May 28, 1906 (34 Stat. 204; 46 U.S.C. App. 292), provides that "a foreign-built dredge shall not, under penalty of forfeiture, engage in dredging in the United States unless documented as a vessel of the United States." In our interpretation of this statute, we have ruled that dredging in the United States is prohibited by any foreign-built dredging vessel except one of those named in section 2 of the 1906 Act (see Customs Service Decision (C.S.D.) 85-11).

For purposes of 46 U.S.C. App. 292, dredging in the United States includes dredging in United States territorial waters, generally defined as the belt, 3 nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline, and certain dredging on the United States outer Continental Shelf outside territorial waters (see C.S.D. 85-11).

The dredging statute (46 U.S.C. App. 292) as well as the other navigation laws administered by the Customs Service, is applicable only to those vessels engaged in activities in the navigable waters of the United States, and the navigable waters of its territories and possessions. The U.S. Coast Guard determines whether a particular body of water is deemed to be navigable waters of the United States in order to ascertain its jurisdiction to enforce the laws it administers. The U.S. Customs Service, in ascertaining its own jurisdiction to enforce the navigation laws it administers, is strongly disposed to follow determinations of the U.S. Coast Guard in the absence of Federal judicial decisions or explicit Congressional enactment, although it is not required to do so.

The threshold question to be considered in this case is whether the harvesting of aquatic plants by the subject equipment is considered dredging. While the dredging statute (46 U.S.C. App. 292) does not define dredging, other sources offer helpful guidelines. One court stated that:

Dredging is defined as "excavation" by any means ...The word "excavate" is derived from the latin word meaning to hollow-out. Its common, plain and ordinary meaning is to make a cavity or hole in, to dig out, hollow out, to remove soil by digging, scooping out or other means. The common plain and ordinary meaning of the word "dredging" is the removal of soil from the bottom of waters by suction or scooping or other means. Gar-Con Development v. State, 468 So.2d 413 (Fla. App. 1 Dist. 1985).

The International Maritime Dictionary defines a dredge as:

A vessel or floating structure equipped with excavating machinery, employed in deepening channels and harbors, and removing submarine obstructions such as shoals and bars. De
Kerchove, International Maritime Dictionary, Second Edition (1961), p. 241.

Given the foregoing definition, it is clear that the harvesting of aquatic plants by the equipment depicted in your literature is not "dredging". We note however, that the coastwise laws of the U.S. are brought into play when plant material is transported from the point it is brought aboard the harvesting vessel to a point on the shore of the waterway in which such vessel is operating.

The coastwise merchandise statute, codified at 46 U.S.C. App. 883, prohibits the transportation of merchandise by a non- coastwise-qualified vessel between points embraced within the law. This statute has been found to apply even to the transportation of merchandise from point to point within a harbor. Pursuant to 19 U.S.C. 1401(c), the word "merchandise" means goods, wares and chattels of every description and includes merchandise the importation of which is prohibited. Furthermore, Public Law 100-329 (102 Stat. 588) amended section 883 to apply to the transportation of "valueless material..."

Accordingly, the harvesting of aquatic plants by a foreign-built vessel in the manner depicted in your literature would not violate 46 U.S.C. App. 292. However, the transpor- tation of plant material by a foreign-built vessel from the point it is brought aboard the vessel to a point on the shore of the waterway in which it is operating (either by the harvesting vessel itself or a vessel akin to the transport barge in your brochure) would constitute a violation of 46 U.S.C. App. 883 with the resultant penalty of the actual cost of the transportation to be recovered from any consignor, seller, owner, importer, consignee, agent, or other person or persons so transporting or causing said merchandise to be tranported.

HOLDING:

The use of a foreign-built aquatic plant harvesting vessel on the navigable waters of the United States would not be prohibited by 46 U.S.C. App. 292. However, the transportation
of plant material by a foreign-built vessel from the point it is brought aboard the vessel to a point on the shore of a navigable waterway of the United States would constitute a violation of 46 U.S.C. App. 883.

Sincerely,

D. Lynn Gordon

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