VES-3/7/10-OT:RR:BSTC:CCI H102989 WRB
Mr. Joseph Almburg
Truxor USA
P.O. Box 414
Delavan, WI 53115-0414
RE: Coastwise Transportation; Aquatic Weed Harvesting; Fisheries; Navigable Waters; Dredging; Oil Spill Response; Trash/Debris Collection; 46 U.S.C. §§108, 55102, 55109, 55113
Dear Mr. Almburg:
This letter is in response to your correspondence dated April 16, 2010, requesting a ruling regarding the use in the navigable waters of the United States of a foreign-built, multi-functional amphibious machine, designed for such activities as weed cutting and harvesting, trash and debris collection, excavation and dredging, and oil spill cleanup. Our ruling on your request follows.
FACTS
Truxor USA is the exclusive United States retail dealer and sales agent for Truxor multi-functional amphibious machines. These machines are manufactured in Dorotea, Sweden, by Dorotea Mekaniska, AM. In your letter, you request our advice regarding two models: the Truxor DM 4700 B; and the Truxor DM 5000. Both models’ dimensions are the same: Length 15' 4", Width: 6' 9", Height: 6' 9;" the DM 4700 B weighing 2,976 pounds, and the Truxor DM 5000 being slightly heavier at 3,042 pounds. On both models, an operator sits in a centrally-mounted driver’s position, controlling both the propulsion of the machine and the operation of the tools via joystick controls. Both models are diesel-powered and tread-laying, in which paddle tracks mounted on pontoons permit locomotion on both land and water. The diesel engine provides power for both propulsion and to operate the powered tools via the onboard hydraulic system. You state that both of these models are “vessels” for purposes of the administration of the coastwise and fisheries laws of the United States.
Each model achieves its multifunctional capability through the attachment of specialized tools, both powered and non-powered, permitting them to engage in such activities as aquatic weed cutting and harvesting, excavating and dredging, trash and debris collection, and oil spill recovery. A quick connection system allows for the rapid exchange of tools, permitting the Truxor vessels to be swiftly converted from one function to another. A wide variety of tools is offered for connection to the Truxor vessels including dredge pumps, vegetation cutters, rakes, strainer plates, excavators, cultivators, and an oil skimmer and tank to facilitate the various functions. We have carefully considered the proposed activities and the authorities you have cited in your letter.
ISSUES
Whether the harvesting and transportation of aquatic plants by a foreign-built vessel within the navigable waters of the United States constitutes an engagement in the fisheries within the meaning of 46 U.S.C. § 108 or in the coastwise trade within the meaning of as 46 U.S.C. § 55102?
Whether the use of a foreign-built vessel as a dredge in the navigable waters of the United States is prohibited by 46 U.S.C. § 55109.
Whether the use of a foreign-built vessel to collect trash and debris for transportation between points within the navigable waters of the United States is prohibited by 46 U.S.C. § 55102.
Whether the use of a foreign-built vessel to recover and transport oil between points within the navigable waters of the United States constitutes coastwise trade within the meaning of as 46 U.S.C. § 55102?
LAW AND ANALYSIS
The Jones Act, 46 U.S.C. § 55102, 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. See also 19 C.F.R. §§ 4.80, 4.80b. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “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.
NAVIGABLE WATERS OF THE UNITED STATES:
The question of whether or not a body of water or marine environment in which a vessel might operate is part of the navigable waters of the United States is generally not within Customs and Border Protection’s (CBP) purview. However, the navigation laws administered by CBP are applicable only to those activities which take place in the navigable waters of the United States, its territories and possessions. The United States Coast Guard determines whether a particular body of water is deemed to be navigable waters of the United States in order to ascertain its own jurisdiction to enforce the laws it administers. CBP, in ascertaining its own jurisdiction to enforce the navigation laws it administers, is strongly disposed to follow determinations of the Coast Guard in the absence of United States judicial decisions or Congressional enactments.
The test for navigability has been established by the federal courts through the years. This test consists of four essential elements that, when taken together, state that a navigable waterway of the United States must (1) be or have been (2) used or susceptible of use (3) in the customary modes of trade and travel on the water (4) as a highway for foreign or interstate commerce. See HQ 110994, dated May 24, 1990, and cases cited therein. If CBP is required to make such a determination, as a general rule, CBP follows the guidelines set forth in U.S. Coast Guard regulations as follows:
Except as provided in paragraph (b) of this section, [the terms] navigable waters of the United States, navigable waters, and territorial waters mean, except where Congress has designated them not to be navigable waters of the United States:
(1) Territorial seas of the United States;
(2) Internal waters of the United States that are subject to tidal influence; and
(3) Internal waters of the United States not subject to tidal influence that:
(i) Are or have been used, or are or have been susceptible for use, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce, notwithstanding natural or man-made obstructions that require portage, or
(ii) A governmental or non-governmental body, having expertise in waterway improvement, determines to be capable of improvement at a reasonable cost (a favorable balance between cost and need) to provide, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce.
33 C.F.R. 2.36(a)
AQUATIC WEED CUTTING AND HARVESTING:
Regarding the cutting and harvesting of aquatic weeds by the Truxor vessels, your letter stated they can cut and harvest weeds in water depths up to 4 feet 6 inches and along the banks of waterways, ponds, and lakes. This function is accomplished by means of powered and non-powered specialized tools that may be attached to the vessel.
The Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987 (“the Act,” Pub. L. 100-239; 101 Stat. 1778) amended the definition of “fisheries” to include the “processing, storing, and transporting (except in foreign commerce)” of fish and related
fishery resources in United States navigable waters and the Exclusive Economic Zone (EEZ), as well as the catching-related activities provided for in the former definition. Accordingly, the definition of fisheries currently set forth in 46 U.S.C § 108 reads as follows:
“fisheries” includes processing, storing, transporting (except in foreign
commerce), planting, cultivating, catching, taking, or harvesting fish,
shellfish, marine animals, pearls, shells, or marine vegetation in the navigable waters of the United States or in the exclusive economic zone.
[Emphasis supplied]
With regard to an aquatic plant harvesting vessel, CBP has long-held that such a vessel is engaged in the fisheries (see C.S.D. 89-85 and rulings 110104 (April 19, 1989) and 110613 (April 5,1990)).
Title 46, United States Code, §12113(b)(1) (46 U.S.C. § 12113(b)(1)) limits the employment in the fisheries to a vessel issued a certificate of documentation with a fishery endorsement, “subject to the laws of the United States regulating the fisheries” (see e.g., 16 U.S.C. § 1801, et seq., under which a foreign vessel may obtain a permit from the National Marine Fisheries Service to engage in fishing in the EEZ).
Under 46 U.S.C. § 12113(a), only a vessel eligible for documentation (i.e., at least 5 net tons and owned by a citizen) which was built in the United States may be endorsed for the fisheries. Pursuant to 46 U.S.C. § 12113(b), only a vessel so endorsed may engage in the fisheries. With regard to vessels of less than 5 net tons, CBP has long held that such vessels, if owned by United States citizens or by resident aliens and numbered pursuant to 46 U.S.C. § 12301 et seq., may engage in the fisheries even if foreign-built (see e.g., Treasury Decision (T.D.) 56382(6)). Legislative support for this provision may be found in 16 U.S.C. § 1802(43)(B).
It is apparent that the subject vessels engaged in aquatic weed cutting and harvesting would be engaged in the fisheries within the meaning of 46 U.S.C. § 108. If foreign-built, regardless of tonnage, they would not be eligible for documentation for the fisheries under 46 U.S.C. § 12113. We note, however, that if they are less than 5 net tons and numbered pursuant to 46 U.S.C. § 12301 et seq., they could be considered vessels of the United States as discussed above and may engage in the fisheries provided they are owned by United States citizens or by resident aliens.
With respect to the applicability of the “Jones Act” to these activities, we note that in your letter of April 16, 2010, you state:
It is important to note in this context that during the harvesting phase of these operations, the cut aquatic vegetation is not laden on the vessel in a manner that would implicate the coastwise laws governing the transportation of merchandise or valueless material under 46 U.S.C. §55102. Because the machines have limited buoyancy in the afloat mode, they are incapable of lifting the floating vegetation when operating in that mode. Thus, so long as the machine is operating in the afloat mode, the rake attachment used for this function only collects and pushes the floating vegetation on the surface of the water. Only once the machine is grounded and operating in the shore mode is the rake capable of lifting the cut material for deposit on the shore.
We disagree with your assertion. It is well-settled in American maritime law that cargo is laden aboard a vessel when the vessel’s tackle is hooked onto the cargo; i.e., the “tackle to tackle” rule. “When cargo is hoisted by ship’s gear and tackle, the loading on occurs when the ship’s tackle is hooked onto the draft of cargo.” (Arnold W. Knauth, The American Law of Ocean Bills of Lading, 4th Ed., 1953, p. 145.) Knauth contends that “loading on” is best understood by relating it to some physical act of possession associated with the transfer of risk from a shore interest to a vessel interest. Id. Knauth’s position has been adopted in several American maritime cases. See, Karwill Machinery Corporation vs. Robert C. Herd & Company, Inc., United States District Court, District Of Maryland, Civil No. 8117, 1956 AMC 2217 (D. Md. 1956); and Federal Pacific Electric Co., v. American Export Lines, 73 Civ. 3746 (S.D.N.Y. 1974), 1975 AMC 157. It is noteworthy, however, that Mr. Knauth’s scholarship was a restatement of a principle long-established in American maritime law. For example, the Circuit Court, Southern District of New York, stated in 1867 in The Cordillera, “…as a general rule, when the cargo is properly placed on the slings and hooked to the tackle; … the duty of the ship begins with the hoisting of it to the deck of the ship. It is then in the possession of the apparatus of the ship, or the stevedores, and under their control and direction.” The Cordillera, 6 F. Cas. 545, 546 (C.C.S.D.N.Y. 1867). We are of the opinion that there is no requirement for cargo to be physically lifted onto the vessel in order for it to be laded for the purposes of the coastwise laws. In the present matter, the vessel’s tackle include the vegetation cutter and rake attachment. The cargo would be laded onto the vessel for the purposes of the coastwise laws when the vegetation was cut and placed under the control of the rake, because at that point, the risk associated with the cargo would transfer from a shore interest to the vessel interest. Accordingly, cargo, in this case cut and harvested aquatic vegetation, would be laden on the vessel in a manner that would implicate the coastwise laws.
As stated above, the “Jones Act” (46 U.S.C. § 55102) provides, in pertinent 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). This statute applies even to the transportation of merchandise from point to point within a harbor. (See 19 CFR 4.80(a)). Pursuant to 46 U.S.C. § 55102(a)(2), the word “merchandise” includes “valueless material...”
In regard to any vessel used in U.S. territorial waters for transporting harvested vegetation to shore, it is apparent that such a vessel is engaged in the coastwise trade. Pursuant to section 4.80(a)(2), Customs Regulations (19 CFR 4.80(a)(2)), no foreign-built vessel, regardless of its tonnage, may engage in the coastwise trade.
EXCAVATING AND DREDGING:
Dredging is defined as “excavation” by any means:
...The word "excavate" is derived from the 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. The common plain and ordinary meaning of the word “dredging” is the removal of soil from the bottom waters by suction or scooping or other means. Gar-Con Development v. State, 468 So.2d 413 (Fla. App. 1 Dist. 1985).
The International Maritime Dictionary defines a dredge 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. De Kerchove, International Maritime Dictionary, Second Edition (1961), p. 241.
Your letter further states that the Truxor vessels are also capable of underwater excavation, silt removal, or suctioning of bottom materials to clear or reconfigure waterways, ponds, or other marine environments by means of an excavator, grip bucket, or suction pump.
Title 46, United States Code, § 55109 (46 U.S.C. § 55109) provides that only coastwise-qualified vessels may engage in dredging in the navigable waters of the United States. Dredging, for purposes of 46 U.S.C. § 55109, includes the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material. See HQ 111188, dated September 14, 1990, interpreting 46 U.S.C. App. 292, recodified as 46 U.S.C. § 55109. We have long held that dredging in United States territorial waters (generally defined as the belt, 3 nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline), and certain dredging on the United States Outer Continental Shelf outside territorial waters, is dredging in the United States, for purposes of this statute. Id.
Accordingly, the use of a foreign-built Truxor vessel as a dredge in the navigable waters of the United States is prohibited by 46 U.S.C. § 55109.
TRASH AND DEBRIS COLLECTION:
Your letter states that the Truxor vessels can also perform trash or debris collection functions. CBP previously has held that such activities are subject to 46 U.S.C. § 55102, even if the material transported is valueless material under 46 U.S.C. § 55102(a)(2). See H050179, dated February 11, 2009; and, Headquarters Ruling Letter 110104, dated April 19, 1989.
You argue, however, that the requirements of section 55102 are triggered only when the merchandise or valueless material in question is laden on a vessel at a coastwise point and transported by that vessel to a second coastwise point. Therefore, you argue, only trash or debris removal that involved the lifting of the floating material by the Truxor (i.e., it is laden on the vessel by lifting) would become subject to those requirements, but where the machine simply uses a rake-like attachment to push the material on the surface of the water for collection ashore would not.
We disagree with your argument. As noted above, for purposes of the Jones Act, merchandise also includes “valueless material.” See 46 U.S.C. § 55102(a)(2). CBP Regulations promulgated under the authority of 46 U.S.C. § 55102 provide that a coastwise transportation of merchandise takes place when merchandise laden at a coastwise point is unladen at another coastwise point, regardless of origin or ultimate destination. See 19 C.F.R. § 4.80b(a). These regulations further clarify the term coastwise points as “including points within a harbor.” See 19 C.F.R. § 4.80(a).
As discussed supra, the understanding of the word “lade” is central to the analysis. As we stated above, it is well-settled in American maritime law that cargo is laden aboard a vessel when the vessel’s tackle is hooked onto the cargo; the “tackle to tackle” rule. We are of the opinion that there is no requirement for cargo to be physically lifted onto the vessel in order for it to be loaded for the purposes of the coastwise laws. Regarding the collection of trash and debris, the vessel’s tackle would include the rake-like attachment to push the material on the surface of the water for collection ashore to which you allude. The trash and debris would be loaded onto the vessel for the purposes of section 55102 when it was collected and placed under the control of the rake, because at that point, the risk associated with the cargo would transfer to the vessel interest. Therefore, cargo, in this case trash and debris, would be laden on the vessel in a manner that would implicate section 55102.
Accordingly, a vessel used solely to collect floating trash and debris from the surface of the water (i.e. valueless material) constitutes an engagement in coastwise trade if such material was laden at one coastwise point and unladen at another coastwise point. For purposes of 46 U.S.C. § 55102, the point of lading is considered to be the point at which the floating trash and debris is collected. See Headquarters Ruling Letter 110104, dated April 19, 1989.
We note, however, since the subject vessels would be engaging in coastwise trade, a coastwise endorsement would be necessary. See Headquarters Ruling Letter 113846, dated May 5, 1997; and Headquarters Ruling Letter H024222, dated March 19, 2008. A coastwise endorsement may only be issued if a vessel is built in the United States, subject to certain exceptions not herein applicable. See 46 U.S.C. § 12112. It is within the purview of the USCG to determine whether the construction of a vessel 5 net tons or greater renders it U.S.-built for purposes of the navigation laws, including 46 U.S.C. § 55102. With respect to vessels less than 5 net tons, such determinations are within the jurisdiction of CBP. See Headquarters Ruling Letter 111188, dated September 14, 1990; Headquarters Ruling Letter 116373, dated February 9, 2005; Headquarters Ruling Letter 116623, dated May 3, 2006. If the vessel under consideration is 5 net tons or greater, we suggest you contact the USCG regarding this matter at:
U.S. Coast Guard
National Vessel Documentation Center
2039 Stonewall Jackson Drive
Falling Water, West Virginia 25419
(304) 271-2506
Pursuant to 46 U.S.C. § 12102(b), “[a] vessel of less than 5 net tons may engage in a trade without being documented if the vessel otherwise satisfies the requirements to engage in the particular trade.” Thus, no vessel exempt from documentation, specifically no vessel of less than 5 net tons, shall transport any passengers or merchandise between United States coastwise points unless the vessel is owned by a citizen of the United States and is entitled to or, except for its tonnage, would be entitled to be documented with a coastwise license. See 19 C.F.R. § 4.80(a)(2). Therefore, only if the subject vessel is less than 5 net tons, built in the U.S., and owned by U.S. citizens, may it engage in coastwise trade without violating 46 U.S.C. § 55102. Accordingly, the use of the foreign-built Truxor vessels to collect trash and debris in the navigable waters of the United States is prohibited by 46 U.S.C. § 55102.
OIL SPILL RECOVERY:
You further state that another function capable of being performed by the Truxor vessels under consideration is oil spill recovery. In performing this function, the vessel physically skims the oil from the surface of the water and pumps it either: (i) via hose to shore over a distance of up to 300 feet; or (ii) to an optional on-board collection tank (not installed on all models).
In regard to this activity, it is CBP’s position with respect to vessels that do not meet the requirements of 46 U.S.C. § 55113 that § 55102 prohibits the use of a non-coastwise-qualified vessel for recovery and transportation of oil in waters within the jurisdiction of the coastwise laws. See HQ 110386, dated September 29, 1989. In Customs ruling HQ 110386, we ruled that a stationary, non-coastwise-qualified vessel may engage in, among other things, using oil separation equipment to purify water and pump it into barges for disposition. We ruled in HQ 110386 that such operations would not provide transportation of merchandise between coastwise points. HQ 110386 also noted that Customs has long held that the use of a non-coastwise qualified vessel as a stationary facility, whether for lodging, processing, storage, etc., is not a transportation activity which would be prohibited under section 883 (now § 55102). However, any transportation of recovered oil at any point embraced within the coastwise laws to another such point must be done by coastwise-qualified vessels.
In regard to the use of foreign documented oil spill response vessels, 46 U.S.C. §55113 provides that:
Notwithstanding any other provision of law, an oil spill response vessel documented under the laws of a foreign country may operate in waters of the United States on an emergency and temporary basis, for the purpose of recovering, transporting, and unloading in a United States port oil discharged as a result of an oil spill in or near those waters, if –
(1) an adequate number and type of oil spill response vessels documented under the laws of the United States cannot be engaged to recover oil from an oil spill in or near those waters in a timely manner, as determined by the Federal On-Scene Coordinator for a discharge or threat of a discharge of oil; and
(2) the foreign country has by its laws accorded to vessels of the United States the same privileges accorded to vessels of the foreign country under this section.
Accordingly, foreign-flagged vessels meeting the requirements of 46 U.S.C. § 55113 may engage in oil spill response in U.S. territorial waters.
HOLDINGS
The harvesting and transportation of aquatic plants within the navigable waters of the United States by a foreign-built vessel constitutes an engagement in the fisheries within the meaning of 46 U.S.C. § 108 and the coastwise trade within the meaning of 46 U.S.C. § 55102. Such a vessel is prohibited from engaging in the fisheries pursuant to 46 U.S.C. § 12113 unless it meets the requirements of T.D. 56382(6), and is prohibited from engaging in the coastwise trade pursuant to 46 U.S.C. § 55102.
The use of a foreign-built vessel as a dredge in the navigable waters of the United States is prohibited by 46 U.S.C. § 55109.
The use of a foreign-built vessel to collect trash and debris for transportation between points within the navigable waters of the United States is prohibited by 46 U.S.C. § 55102.
The use of a foreign-built vessel to recover and transport oil between points within the navigable waters of the United States constitutes coastwise trade within the meaning of 46 U.S.C. §55102 and is prohibited unless such vessel meets the requirements of 46 U.S.C. § 55113.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch