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HQ H021555

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January 16, 2008

VES-3-01-OT:RR:BSTC:CCI H021555 JLB

CATEGORY: CARRIER

Mr. Glen Miller
President
Miller’s Launch
Pier 7 ½
Staten Island, New York 10301

RE: Coastwise Transportation; 46 U.S.C. § 55102

Dear Mr. Miller:

This letter is in response to your correspondence dated December 21, 2007, in which you request a ruling on whether the coastwise transportation of dredge spoils constitutes a violation of the Jones Act, 46 U.S.C. § 55102. Our ruling on your request follows.

FACTS

Miller’s Launch, Inc. will be performing an environmental dredging project in the inland waters of the Hudson River north of Troy, New York. The company plans to use up to twenty foreign-built Lighter Aboard Ship (“LASH”) barges for the project. These barges are made of steel and are sixty feet by thirty feet. They shall be used to transport approximately three hundred yards of dredge material at one time.

The barges will transport contaminated dredge spoils removed from designated areas by Fort Edwards, New York, to the discharge location, located nearby between Champlain Canal locks #7 and #8. Additionally, a number of barges will be used in the backfill and capping operations. They will transport the dredge material from a point in upstate New York just north of lock #9 to the areas near Fort Edwards where the dredge spoils have been removed.

ISSUE

Whether the use of a foreign-built vessel as described above constitutes a violation of 46 U.S.C. § 55102?

LAW AND ANALYSIS

The Jones Act, former 46 U.S.C. App. § 883 recodified as 46 U.S.C. § 55102, pursuant to P.L. 109-304 (October 6, 2006), states that “a vessel may not provide any part of the transportation of merchandise by water, or by land and water, between points in the United States to which the coastwise laws apply, either directly or via a foreign port” unless the vessel was built in and documented under the laws of the United States and owned by persons who are citizens of the United States (i.e., “coastwise-qualified”). The coastwise laws generally apply to points in the territorial sea, which is 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.

Pursuant to 19 U.S.C. §1401(c), the word "merchandise" is defined as "goods, wares and chattels of every description, and includes merchandise the importation of which is prohibited." The dredge material under consideration falls within that definition. In addition, it should also be noted that although the dredging project described above will take place within internal waters, the so-called “twelfth proviso” of the former 46 U.S.C. App. § 883 (now codified at 46 U.S.C. § 55110) provides that the restrictions set forth therein apply to "valueless material or any dredged material, regardless of whether it has commercial value, from a point on the high seas within the exclusive economic zone in the United States or to another point in the United States or on the high seas within the exclusive economic zone..." (emphasis added). See Headquarters Decision 113927, dated May 9, 1997. The Exclusive Economic Zone 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.

The dredge material to be transported during this project constitutes “merchandise” for purposes of 46 U.S.C. § 55102. Under the facts presented, the merchandise will be transported on foreign-built LASH barges between two coastwise points. Consequently, such coastwise transportation on non-coastwise-qualified vessels is in violation of 46 U.S.C. § 55102.

HOLDING

The use of a foreign-built vessel as described above constitutes a violation of 46 U.S.C. § 55102.

Sincerely,

Glen E. Vereb, Chief

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