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HQ 115488




September 24, 2001

VES-10-02-RR:IT:EC 115488 GEV

CATEGORY: CARRIER

Robert Belanger, Eng.
Advisor to the President
Normrock Industries Inc.
3360 boul. dus Entreprises
Terrabonne, Quebec, Canada J6X 4J8

RE: Coastwise Trade; Dredging; 46 U.S.C. App. §§ 292, 883

Dear Mr. Belanger:

This is in response to your fax of September 7, 2001, referencing telephone conversations occurring on August 29 and 30, 2001, between your consultant, Mrs. Therese Vanasse, and Mr. Glen Vereb of my staff. These conversations concerned the use of your equipment, the “Amphibex”, in the United States. You request a ruling pertaining to such use.

FACTS:

The Amphibex is described in your fax is an amphibious excavator produced by Normrock Industries Inc., in Canada. Upon reviewing your company’s website at www.normrock.ca, which depicts the various uses of this equipment, it is readily apparent that it is a vessel used for a variety of dredging and transportation activities.

Currently, Foster Wheeler Environmental Group, under contract with the U.S. Army Corps of Engineers, New England District, is seriously considering the Amphibex to perform remediation services as part of the New Bedford Harbour Superfund Site clean-up. Your company has already met with this group several times to plan for the field-testing, performance and environmental monitoring.

ISSUE:

Whether the use of a Canadian-built vessel in the United States for dredging and/or transportation activities violates 46 U.S.C. App. §§ 292 and/or 883.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, § 292 (46 U.S.C. App. § 292, the coastwise dredging statute), provides that with one exception not herein applicable, vessels may not dredge in the navigable waters of the United States unless they meet the requirements of 46 U.S.C. App. § 883, as discussed below.

Title 46, United States Code Appendix, § 883 (46 U.S.C. App. § 883, the coastwise merchandise statute known as 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 and documented under the laws of the United States and owned by persons who are citizens of the United States (i.e., a coastwise-qualified vessel). The so-called “twelfth proviso” to this statute renders it applicable to the transportation of dredged material regardless of whether it has commercial value.

Points embraced within the coastwise laws include all points within the territorial waters of the United States, including points within a harbor. The territorial waters of the United States consist of the territorial sea, 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, in cases where the baseline and coastline differ.

At the outset we note that due to the fact that the Amphibex is not built in the United States, it is prohibited from engaging in dredging or the coastwise transportation of merchandise pursuant to the above-cited statutes. In Mrs. Vanasse’s conversations with Mr. Vereb, it was her contention that while the Amphibex is a dredge, it is not a vessel. We disagree. A vessel is defined as including, “every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water” (19 U.S.C. § 1401(a); see also 1 U.S.C. § 3 and 46 U.S.C. § 2101(45)) Furthermore, amphibious dredges have been judicially recognized as vessels. (See Ellis v.

United States, 206 U.S. 246 (1907); and Senko v. La Crosse Dredging Corp., 352 U.S. 370 (1957) Accordingly, Customs has followed the Court’s position in this matter. (See Customs ruling letters 107052, dated November 7, 1984, and 110442, dated March 4, 1991)

With respect to your inquiry concerning a waiver of the above-referenced laws, you should know that the navigation laws (including 46 U.S.C. App. §§ 292 and 883) can only be waived under the authority provided by the Act of December 27, 1950 (64 Stat. 1120; note preceding 46 U.S.C. App. § 1). This statute provides that “[t]he head of each department or agency responsible for the administration of the navigation and vessel inspection laws is directed to waive compliance with such laws upon the request of the Secretary of Defense [and] [t]he head of such department or agency is authorized to waive compliance with such lawseither upon his own initiative or upon the written recommendation of the head of any government agency whenever he deems that such action is in the interest of national defense.” Your inquiry is devoid of the necessary national defense nexus for obtaining a waiver of the navigation laws in question.

HOLDING:

The use of a Canadian-built vessel in the United States for dredging and transportation activities violates 46 U.S.C. App. §§ 292 and 883.

Sincerely,

Larry L. Burton
Chief
Entry Procedures and Carriers Branch

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