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HQ 115667

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July 15, 2002

VES-10-02-RR:IT:EC 115667 GEV

CATEGORY: CARRIER

William N. Myhre, Esq.
Preston Gates Ellis & Rouvelas Meeds LLP
1735 New York Avenue, NW
Suite 500
Washington, D.C. 20006-5209

RE: Auxiliary Plant Vessels; Dredging; 46 U.S.C. App. § 292

Dear Mr. Myhre:

This is in response to your letter dated April 25, 2002, on behalf of your client, Great Lakes Dredge & Dock Company (“Great Lakes”), requesting a ruling that certain types of auxiliary vessels that perform specialized functions as an integral part of a dredging operation, in particular hydraulic boosters and spider barges, are engaged in dredging for purposes of 46 U.S.C. App. § 292 when so employed.

FACTS:

When engaged in dredging operations, contractors typically utilize a variety of vessels in order to address the many variables present on a project site. These variables include: the nature of the seabed; the distance between the point at which the excavation occurs and the site at which the dredged material is to be deposited; and the nature of the intervening waters. Each, in turn, produces several options as to the particular mix of vessels that will be necessary to complete the dredging operation.

Although in some situations the entire dredging process can be performed by a single vessel (e.g., a mechanical bucket dredge that simply uses its boom reach to deposit the material on shore), it is more often the case that multiple vessels will be required to accomplish the dredging activity.

The presence of these variables, and practical considerations such as vessel availability, mean that multiple vessels are frequently incorporated into the dredging process, including many special-purpose vessels. These specialized vessels are often referred to as “auxiliary plant” vessels even though the individual function each performs may be identical to that performed by unitized dredges (e.g., pumping excavated materials in slurry form). The types of auxiliary plant vessels commonly employed in dredging operations include: (1) Drill/Blasting Barges which drill holes in the seabed for blasting and place and then detonate explosives for that purpose; (2) Hydraulic Boosters which supply additional pumping capacity to enable the excavated material (in slurry form) to be transported over longer distances; and (3) Spider Barges which transfer the excavated material in slurry form from a discharge pipeline to a material transport barge.2 2 That drill/blasting barges are engaged in dredging for purposes of 46 U.S.C. App. § 292 was decided in Customs ruling letters 111833 and 114743 and is not at issue here. Numerous other types of support vessels also may potentially be required for a dredging project – e.g.. other barges, tugs, workboats, utility vessels, or survey vessels – and subject to various of the coastwise laws. The status of those latter types of vessels under the coastwise laws similarly is not at issue here. Illustrations of typical Hydraulic Boosters and Spider Barges were attached to your letter as Exhibits A and B, respectively. As depicted therein, they are physically connected to a dredge by means of a discharge pipe for the purpose of performing the aforementioned specific functions, e.g., pumping and the transfer of material by means other than the movement of the vessel.

ISSUE:

Whether “auxiliary plant” vessels as described above, employed as part of a dredging operation, are engaged in “dredging” within the meaning of 46 U.S.C. App. § 292.

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 dredge in the navigable waters of the United States only if they meet the requirements of 46 U.S.C. App. § 883 (i.e., 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)).

With respect to whether a particular craft is considered to be a “vessel” for purposes of the above statute, we are guided by title 19, United States Code, § 1401(a) (19 U.S.C. § 1401(a)), which provides as follows:

The word “vessel” includes every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft.

As to whether a vessel is engaging in a particular activity that constitutes “dredging” for purposes of 46 U.S.C. App. § 292, Customs has long-held that this term means “the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material.” (Customs ruling letters 103692, dated December 28, 1978 (published as Customs Service Decision (C.S.D.) 79-331); 109108, dated November 13, 1987; and 109910, dated January 26, 1989 (published as C.S.D. 89-64))

Further in this regard, we note the oft-cited case in numerous Customs ruling letters pertaining to dredging, Gar-Con Development v. State, 468 So.2d 413 (Fla. App. 1 Dist. 1985), which provides that:

Dredging is defined as “excavation” by any means The word “excavate” is derived from a 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. Id. at 414-415.

The court went on to state that:

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. 468 So.2d at 414-415

It is also noteworthy that the term “dredge” is defined in The International Maritime Dictionary (De Kerchove, 2nd ed., 1961) 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.

With respect to the “auxiliary plant” vessels in question, we agree with your position that such craft constitute “vessels” for purposes of 46 U.S.C. App. § 292. However, notwithstanding their participation in a legitimate dredging operation, it is our position that they are not “dredges” as that term is defined above, nor do the activities in which they engage constitute “dredging” as that term is recognized by Customs.

We note the Customs ruling letters (111833, dated November 26, 1991, and 114743, June 29, 1999) you cite in support of your position and believe them to be distinguishable from the issue currently under consideration. The former addressed a vessel which “drills as a secondary, ancillary activity to its primary purpose, which is dislodging and removal, as part of a dredging operation, of the sea bottom from one site to another.” The latter addressed a vessel engaged in an activity “which includes the detonation with explosives and the fracturing of the seabed and underlying rock” While the activities engaged in by both of these vessels as well as the “auxiliary plant” vessels in question are indisputably accomplished pursuant to bona fide dredging operations, we believe those of the “auxiliary plant” vessels, which are essentially those of a conduit/pumping station for material that has already been dredged by other vessels, do not fall within the definition of “dredging” for purposes of 46 U.S.C. App.

HOLDING:

“Auxiliary plant” vessels as described above, employed as part of a dredging operation, are not engaged in “dredging” within the meaning of 46 U.S.C. App. § 292.

Sincerely,

Jeremy Baskin

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