VES 3-13/10-02 OT:RR:BSTC:CCI H103995 LLB
Bruce A. King, Esquire
Garvey Schubert Barer
Eighteenth Floor
1191 Second Avenue
Seattle, Washington 98101-2939
Re: 46 U.S.C. §§ 55102, 55109, and 55110; suction dredging; vessels; pipeline transportation of dredged material; navigable waters of the U.S.; HQ 103692 (Dec. 28, 1978); HQ 112074 (May 14, 1992).
Dear Mr. King:
This letter is in reference to your May 2, 2010, ruling request on behalf of your client, Graham Construction Services, Inc. (GCSI). You request that this office determine whether the project described below implicates the coastwise laws, specifically, 46 U.S.C. § 55109. Our decision follows.
FACTS
GCSI, a subsidiary of a Canadian-owned company, was recently awarded a contract by the U.S. Army Corps of Engineers (USACE) to move 643,500 cubic yards of stockpiled dredge material from Fisher Island which is located on the Mississippi River (the Mississippi) in Wabasha County, Minnesota, to a placement site four miles from the dredge site. The dredge site is a 35-foot mound of dredge material surrounded by a berm made up of dredge material that is 40 feet higher than water level at the Mississippi.
To implement the project, GCSI will moisten the material so that it can be pumped from Fisher Island through a four-mile pipeline to the placement site using a tracked excavator, bulldozer, and a “IMS Model 7012 HP Versi-Dredge” (dredge) which is being manufactured in the U.S. Further details and specifications of the dredge will be discussed in the Law and Analysis section below. In order to get the dredge to the dredging site on the island, the tracked excavator will dig a wide trench into the island from the Mississippi and the tracked excavator or bulldozer will use cables to pull the dredge. The trench will be filled in creating a berm behind it where the pipeline will be connected to the dredge and laid along the trench. After the trench is made, there will be a pool of water between the 35-foot mound of dredge material and the dredge. The tracked excavator will then push the dredge material into the pool which will emulsify it. The dredge will then use its suction head to pump and suction the material into the pipeline. The tracked excavator will also push the berm and part of the island soil into the pool for emulsification for the dredge to suction and pump through the pipeline.
As a result of the foregoing process, a man-made pond of about 20 feet below the water table will be created within the berm surrounding the mound. The berm will be about 10 feet high and the pond will be 600 feet long and 200 feet wide. The dredge will continue to remove the dredged material that is pushed into the dredge pond by lowering its suction head 10 feet into the 20-foot pond and pumping it through the pipeline. It is expected that the water table of the pond may not supply enough water to float the dredge or for its emulsification and pumping operation, so a corrugated, round steel culvert of about thirty-six inches in diameter will be laid through the berm to supply the necessary water flow from the Mississippi. Once the operation is complete, using cables, the dredge will be pulled through the trench by the tracked excavator or bulldozer to the edge of the island where it will be towed by a coastwise-qualified tow or push boat.
With regard to the pipeline, it will be moved in sections to its location and removed from its location at the end of the operation using coastwise-qualified vessels. Booster pumps will be located at intervals on the pipeline. The booster pumps will be laden at the West Newton Chute on non-coastwise qualified barges which will anchor in the Mississippi next to the pipeline. When the operation is complete, the booster pumps will be unladen at the West Newton Chute.
ISSUES
1. Whether the subject corporation may engage in dredging on an island in the Mississippi River as proposed without violating 46 U.S.C. § 55109.
2. Whether the transportation of the dredged material by pipeline would violate 46 U.S.C. §§ 55102 and 55110.
3. Whether the transportation of the booster pumps by a non-coastwise qualified vessel would violate 46 U.S.C. § 55102.
LAW and ANALYSIS
Issue 1
Title 46, United States Code, section 55109(a) (46 U.S.C. § 55109(a)) provides, with certain exceptions herein not applicable, that a vessel may engage in dredging in the navigable waters of the United States only if:
(1) the vessel is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade;
(2) the charterer, if any, is a citizen of the United States for purposes of engaging in the coastwise trade; and
(3) the vessel has been issued a certificate of documentation with a coastwise endorsement under chapter 121 of this title or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.
Although the subject dredge is U.S. built, it is owned by a U.S. subsidiary of a Canadian company and would therefore, not be eligible for coastwise endorsement. Consequently, our analysis must determine whether the dredge in question is a vessel engaged in dredging in the navigable waters.
A. Whether the Dredge is a Vessel
The term “vessel” is one of the few terms included in the general federal statutory definitions applicable to all federal laws:
The word “vessel” includes every description of watercraft
or other artificial contrivance used, or capable of being
used, as a means of transportation on water.
1 U.S.C. § 3. The general provisions of the shipping laws incorporate the foregoing definition. See 46 U.S.C. § 115 (Stating that “the term ‘vessel’ has the meaning given to that term in section 3 of title 1.”). The courts have determined that “[a]s a general principle, where the vessel status of an unconventional craft is unsettled, it is necessary to focus upon the ‘purpose for which the craft is constructed and the business in which it is engaged.’” Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir. 1990), citing Blanchard v. Engine & Gas Compressor Servs., Inc., 575 F.2d 1140, 1142 (5th Cir. 1978), and The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48, 48 L.Ed. 73 (1903). In order to be deemed a “vessel” for general maritime jurisdiction, a craft must be “designed for navigation and commerce …and retain such status even while moored, dry-docked, or otherwise immobilized and secured to land.” Cook v. Belden Concrete Products, Inc., 472 F.2d 999, 1001 (5th Cir. 1973), citing Cope v. Vallette Dry Dock, 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501 (1887). In determining vessel status, the court in Gremillion stated: “The caselaw is heavily skewed in favor of conferring such status upon craft whose primary mission is the transportation of cargo, equipment, or passengers over navigable waters.” Gremillion at p. 293. The court further provided that, “The greater the structure’s resemblance to conventional seafaring craft, the greater the odds of securing vessel status.” Id. However, as noted in Estate of Wenzel v. Seward Marine Services, Inc., 709 F.2d 1326, 1328 (9th Cir. 1983), the fact that a particular craft “was constructed for a purpose other than the transportation of persons or things from one place to another does not mean that as a matter of law, it is not a vessel in navigation.”
As to whether a particular craft resembles a traditional vessel as discussed above, the courts have looked to whether it maintains or possesses the following attributes of traditional vessels: (1) navigational aids; (2) lifeboats and other life-saving equipment; (3) a raked bow; (4) bilge pumps; (5) crew quarters; and (6) registration with the Coast Guard as a vessel. Gremillion, at 293, citing Bernard v. Binnings Construction Co., Inc., 741 F.2d 824, 832, n.25 (5th Cir. 1984). The degree to which a particular craft possess these features is indicative as to its legally-recognized status as a vessel. Id.
The dredge in question is the “IMS Model 7012 HP Versi-Dredge”. Based on the manufacturer’s literature, the dredge has a compartmentalized catamaran hull, steel construction with bulkhead and skeleton frame reinforcement, and port and starboard decks. The dredge is self-propelled by a diesel engine, joy-stick controlled, and has a climate-controlled operator’s station. The video clips on IMS’s website show that at least two persons may be transported on the dredge and photos and animation on this website show the dredge navigating various beaches, rivers, and lakes. Optional equipment includes navigation lights and a GPS system. Insofar as the dredge is built like a vessel, is capable of transporting at least two persons, and is capable of navigating inland waterways, the dredge is a vessel within the meaning of 46 U.S.C. § 55109(a).
B. Whether the Vessel will be Engaged in Dredging
CBP has long-held that the term “dredging” within the meaning of 46 U.S.C. § 55109, is “the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material.” See HQ 103692 (Dec. 28, 1978 published as Customs Service Decision (C.S.D.) 79-331); HQ 109108 (Nov.13, 1987); HQ 109910 (Jan. 26, 1989) published as C.S.D. 89-64; see also Gar-Con Development v. State, 468 So.2d 413, 414-15 (1985) (holding that “[t]he 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)(emphasis added). You argue that the proposed operation does not constitute dredging because the tracked excavator is digging out the dredge pond in which the dredged material will be placed for pumping by the dredge and that material is not being pumped from the bottom of any waterway.
Initially we note that although the dredge is equipped with an excavator cutter head, you state that it will not be employed to dig out the dredge pond. Based on our review of the facts presented, it is both the digging by the tracked excavator and the suctioning by the dredge of not only the previously dredged material, but also the island matter, using its “dredge pump”, that will create the dredge pond. The dredge pond is a body of water; albeit not navigable. However, navigability is an inquiry separate from whether a particular action constitutes dredging. You argue that because the suction hose does not touch the bottom of the pond, but is only suspended halfway down (10 feet) into the pond, that there is no removal material from the bottom waters. You assert that if the hose touches the bottom of the pond, the debris and trash at the bottom of the pond would damage the dredge. Since the pond is not solely made out of the dredged material pushed in it, but also out of the island soil, we are not convinced that island sand or silt, when commingled with the emulsified dredged material, cannot rise up and get suctioned by the dredge. Thus, the suctioning of the previously dredged material pushed into the dredge pond by the tracked excavator commingled with the island soil constitutes dredging.
C. Whether such Dredging is in the Navigable Waters of the U.S.
With regard to the navigability of the dredge pond, the U.S. Coast Guard determines whether a particular body of water is deemed to be navigable waters of the United States in order to ascertain its jurisdiction to enforce the laws it administers. In ascertaining its own jurisdiction to enforce the navigation laws it administers, CBP is strongly disposed to follow determinations of the U.S. Coast Guard and other agencies in the absence of Federal judicial decisions or explicit Congressional enactment, although it is not required to do so. The test of navigability has been established by the federal courts through the years. This test consists of four essential elements which, 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 water (4) as a highway for interstate commerce. The Daniel Ball, 10 Wall, 557, 563, 77 U.S. 557, 563, 19 L.Ed. 999 (1871). The foregoing elements are also reflected in the U.S. Coast Guard regulations. See 33 C.F.R. § 2.36 (a)(3)(i)(stating in pertinent part, that navigable waters of the U.S. include internal waters of the United States not subject to tidal influence that 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.)
The 20-foot deep man-made dredge pond in the present case is located on an island in the Mississippi. Based on the description of the pond, it is not susceptible of use in the customary modes of trade and travel on water as a highway for interstate commerce. Absent any evidence to the contrary, the dredging in question is not taking place in a navigable body of water in the U.S.
Accordingly, although the dredge in question is a foreign-owned vessel engaged in dredging, the dredging does not occur on a navigable body of water in the U.S. Therefore, the described dredging operation does not violate 46 U.S.C. § 55109.
Issue 2
The Jones Act, codified at 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 (i.e., “coastwise-qualified”). In addition, 46 U.S.C. § 55110 provides that the restrictions set forth in 46 U.S.C. § 55102 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).
CBP has held, however, that the use of a dredge in effecting the movement of dredged material through a pipeline, and not by movement of the dredge itself, is not considered transportation of merchandise by the dredge between points within the United States within the meaning of 46 U.S.C. § 55102. See HQ 112074 (May 14, 1992) and HQ 109056 (Aug. 19, 1987). Insofar as the dredged material is being transported by a pipeline and not the dredge, the transportation of the dredged material would not be in violation of 46 U.S.C. §§ 55102 and 55110.
Issue 3
In addition to 46 U.S.C. § 55102 cited above, the 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 point embraced within the coastwise laws (“coastwise point”) is unladen at another coastwise point, regardless of origin or ultimate destination. See 19 C.F.R. § 4.80b(a)(2010). Insofar as the non-coastwise qualified barges that will be used to transport the booster pumps to the pipeline will be laden and unladen at the same point at the West Newton Chute, the described transportation would not violate 46 U.S.C. § 55102 and 19 C.F.R. § 4.80b(a).
HOLDING
1. The subject corporation may engage in dredging on an island in the Mississippi River as proposed without violating 46 U.S.C. § 55109 insofar as the dredging does not occur in the navigable waters of the U.S.
2. The transportation of the dredged material by pipeline would not violate 46 U.S.C. § 55102 and 55110.
3. The transportation of the booster pumps by a non-coastwise qualified vessel would not violate 46 U.S.C. § 55102 insofar they are being laden and unladen at the same coastwise point.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch