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HQ 113559





September 14, 1995

VES-10-03-R:IT:C 113559 GEV

CATEGORY: CARRIER

Kenneth E. Gray
Manager, Inland Operations
Coastal Tug & Barge, Inc.
Post Office Box 025500
Miami, Florida 33102-5500

RE: Towing; Tug; Dredged Material; 46 U.S.C. ? 316(a)

Dear Mr. Gray:

This is in response to your letter of September 1, 1995, requesting a ruling regarding the use of your Panamanian-flag tug. Our ruling on this matter is set forth below.

FACTS:

A dredge company is currently engaged in a dredging operation in the Port of Miami, Florida. The operation calls for the dredge spoils to be barged 3.5 miles offshore and dumped on the high seas at a permitted dump site. At the present time, the dredge company is using its own equipment for the operation. However, the dredge company has approached Coastal Tug & Barge, Inc. (Coastal) to provide a tug to move their barges from the port to the dump site and return them to port.

Coastal currently owns a Panamanian-flag tug working in Aruba and is currently considering reflagging the vessel in the United States and using it to tow the spoil barges as outlined above. Coastal understands that the tug cannot be granted coastwise privileges.

ISSUE:

Whether the use of foreign-flag tug, reflagged in the United States, to tow barges loaded with dredge spoil from the Port of Miami to a site 3.5 miles offshore where the spoil is dumped, and then return them to the Port of Miami is prohibited by 46 U.S.C. App. ? 316(a).

LAW AND ANALYSIS:

Title 46, United States Code Appendix, ? 316(a) (46 U.S.C. App. ? 316(a), the coastwise towing statute) prohibits the use of any vessel not having in force a certificate of documentation endorsed for the coastwise or Great Lakes trades (46 U.S.C. 12106, 12107, respectively) to tow any vessel other than a vessel in distress, from any point or place embraced within the coastwise laws of the United States to another such port or place, either directly or by way of a foreign port or place, or for any part of such towing.

In addition, the Act of June 7, 1988 (Pub.L. 100-329, ? 2, 102 Stat. 589), amended 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 above-referenced 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.

In regard to the tug in question, in view of the fact that it was at one time registered under the Panamanian flag, it cannot be issued a certificate of documentation with a coastwise endorsement (a fact recognized by Coastal; see the first proviso to 46 U.S.C. App. ? 883). Furthermore, since its proposed use in the dredge operation is clearly the towing of a vessel transporting dredge material from a place in the United States (Port of Miami) to a point on the high seas within the EEZ (3.5 miles offshore), such use would constitute a violation of 46 U.S.C. App. ? 316(a).

HOLDING:

The use of a foreign-flag tug, reflagged in the United States, to tow barges loaded with dredge spoil from the Port of Miami, to a site located 3.5 miles offshore where the spoil is dumped, and then return them to the Port of Miami is prohibited by 46 U.S.C. App. ? 316(a).

Sincerely,

Arthur P. Schifflin

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