HQ 115138 - 46 U.S.C. App. §883; 46 U.S.C. App. §292; Foreign Vessel; Towing; Coastwise Trade; Coastwise Qualified; Dredging - United States International Trade Commision Rulings

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HQ 115138

December 7, 2000

VES-10-03:RR:IT:EC 115138 LLO

CATEGORY: VESSELS

Mr. Marcus D. Faust
Faust Corporation
P.O. Box 36598
Grosse Points Farms, Michigan 48236

RE: 46 U.S.C. App. §883; 46 U.S.C. App. §292; Foreign Vessel; Towing; Coastwise Trade; Coastwise Qualified; Dredging

Dear Mr. Faust:

This is in response to your letters dated August 8, 2000 and August 22, 2000 regarding the use of foreign vessels for a towing and dredging operation your firm has been retained to do for Reynolds Metals. Our ruling on this matter is set forth below.

FACTS:

The Faust Corporation in cooperation with Bechtel Environmental, Inc. has been retained by Reynolds Metals to complete a dredging and towing project in Messena, N.Y. The project requires the mobilization of marine equipment to the site and the use of tug, barges and derrick (dredge) barges to remove contaminated soils from the river bottom. Towing operations will begin in United States ports on the Great Lakes and end at Massena, New York. Dredge materials will be unloaded at the Reynolds Metals plant property in Messena, New York. Dredging will take place in United States waters in front of the Reynolds Metals plant on the St. Lawrence River, Massena, New York. The co-coordinator of the project, Bechtel Environmental, Inc. has suggested the use of Canadian equipment and towing vessels to accomplish the project.

ISSUE:

Whether foreign vessels are permitted to participate in towing and dredging operations within the United States under title 46 U.S.C. App. §292, 316(a), and 883.

LAW & ANALYSIS:

46 U.S.C. App. §292, prohibits the use of a non-coastwise qualified vessel to engage in dredging in the navigable waters of the United States.

To be considered coastwise qualified, a vessel must meet the following prerequisites:

-must be a U.S. built vessel
-must be documented under the laws of the U.S. -must be owned by U.S. citizen (s)
-must obtain coastwise endorsement from the U.S. Coast Guard.

Additionally, coastwise laws generally apply to points in 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 the coastline differ.

The dredging portion of the project that Faust Corporation and Bechtel Environmental have been retained to do, will require the use of a coastwise qualified vessel, since 46 U.S.C. App. §292 prohibits dredging by non-coastwise qualified vessels within the United States or coastwise points. (HQ 114713)

Title 46 U.S.C. § 883, provides in part that no merchandise shall be transported between points in the United States that are subject to 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, documented under the laws of, and owned by citizens of the United States.

Title 46 U.S.C. App. §883 is pertinent to this Reynolds Metals project since Faust and Bechtel Environmental have been retained to do a towing operation starting on the Great Lakes and ending in Massena, New York. The towing prohibitions regarding vessels that are discussed in 46 U.S.C. App. §316(a) are interpreted in concert with the “Jones Act," 46 U.S.C. App. §883. A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise laden at a point embraced within the coastwise laws (“coastwise point”) is unladen at another point, regardless of the origin or ultimate destination of the merchandise. 19 C.F.R. §4.80b(a).

HOLDING:

Any towing that takes place between coastwise points which originates in the territorial waters of the United States, must be done by a coastwise qualified vessel in accordance with 46 U.S.C. App. §883. Additionally, the dredging portion of the project that Faust Corporation and Bechtel Environmental, Inc. have been retained to do, will require the use of a coastwise qualified vessel, since 46 U.S.C. §292 prohibits dredging by non-coastwise qualified vessels within the United States.

Sincerely,

Larry L. Burton
Chief

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