VES-10-02:CO:R:PC 110442 RAH
Glenn L. Blackwell, Esquire
ROSENTHAL AND GANISTER
Matlack Building - Suite D
113 East Evans Street
West Chester, PA 19380
Re: 46 U.S.C. 292; Dredge; Smalley 6808 Dredge; U.S.-built;
Navigable Waters
Dear Mr. Blackwell:
In May 1989, we received a letter regarding the possible
violation of 46 U.S.C. App. 292 of a Smalley excavator dredge
by the City of Punta Gorda, Florida, to dredge spoil from the
dock area of canals within the city's jurisdiction. In July
1990, you requested additional time to submit information and
comments before we issued a decision in this case. On November
16, 1990, representatives of our office met with you to discuss
this case and to view a videotape of the excavator. At that
time, you again requested additional time to submit further legal
authority. We have not received any additional information from
you or your client, and thus we are writing to report on the
results of our investigation of the Smalley 6808 Dredge operated
by the of City Punta Gorda.
The dredge in question was manufactured in the United
Kingdom by Smalley Excavators Ltd., of Bourne Links, England, and
was imported by the U.S. distributor, Smalley Excavators of
Wallingford, Connecticut.
The Smalley Excavator was imported from England and shipped
by vessel to Montreal, Canada, unassembled. The merchandise
entered the U.S. on October 27, 1987, as parts for machinery
(shovels, scrapers, excavators) on entry #02821422 through
Champlain, New York, and was trucked directly to the Johnstone
Company in North Haven, Connecticut. The Johnstone Company
fabricated the barge, assembled the excavator, and placed it on
the barge, producing an amphibious dredge.
The dredge was ordered by the City of Punta Gorda on
October 9, 1987, from Smalley Excavators. It was delivered on
December 16, 1987, to the City of Punta Gorda by truck from the
U.S. distributor, Smalley Excavators of Wallingford, Connecticut.
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The Smalley 6808 Amphibious Dredge is registered with the
State of Florida as a Florida vessel; it is not documented. It
was assigned hull identification number FLZJ 5329B888 and issued
Florida State registration number FL 1855FF on January 27, 1988.
The City of Punta Gorda, Florida, was issued a permit on June 7,
1983, by the State of Florida, Department of Environmental
Regulation, to perform dredging of material for the maintenance
of existing dock sites in an existing residential canal system.
The permit has been updated several times, to include the same
extended maintenance project but appears to have expired on June
14, 1988.
The dredge was being operated within canals inside of the
territorial sea baseline. A location map attached to the permit
clearly outlined the work area, well within the internal waters
(artificial navigable waterbodies) of the City of Punta Gorda,
Florida. The Peace River feeds these canals and runs directly
into Charlotte Harbor, which empties into the Gulf of Mexico.
The dredge is basically a backhoe placed on a barge which
removes spoil from in front of a dock and then places the spoils
near the center of the canal. The mechanical dredger is moved
from the job site on a flatbed trailer and when required, is
pushed long in the water by a small pontoon boat. The dredge
measures approximately 20 feet long by 8 feet wide by 3 feet deep
and weighs 6 tons.
Title 46, United States Code App., section 292, provides in
its entirety: "A foreign-built dredge shall not, under penalty
of forfeiture, engage in dredging in the United States unless
documented as a vessel of the United States."
For purposes of 46 U.S.C. App. 292, dredging in the United
States includes 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 (see C.S.D. 85-11).
Several arguments have been asserted why the Smalley dredge
would not fall within the statute. In a letter of May 17, 1990,
Mr. Bigwood, Vice President, Smalley Excavators, Inc., asserts
that the dredge is not subject to 292 because it is technically
not a dredger but remains an excavator. He states that the 6808
consists primarily of a Smalley excavator mounted on a pontoon
having 3 stabilizer legs. The legs have wheels in the form of
drums which are used for moving the machine on land and when the
machine is operating on land. The stabilizers are further used
to raise the pontoon off the water to prevent it from floating
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when the excavator is in operation. The 6808 cannot operate as
an excavator if it is floating as it would immediately capsize.
While the dredging statute (46 U.S.C. App. 292) does not
define dredging, other sources offer helpful guidelines. One
court stated that:
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 of 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.
The Customs Service has ruled that dredging, for purposes of
46 U.S.C. App. 292, means the use of a vessel equipped with
excavating machinery in digging up or otherwise removing
submarine material. See 109692, 108222, 107052. A vessel is
defined as including "... every description of water craft or
other contrivance used, or capable of being used, as means of
transportation in water ..." (19 U.S.C. 1401(a); see also, 1
U.S.C. 3 and 46 U.S.C. 2101(45). Generally, dredges have been
held to be vessels. We have held that an amphibious dredge is
considered a "vessel" and, therefore, subject to the coastwise
laws and 46 U.S.C. App. 292. See Customs Ruling letter 107052 PH
(11-7-84). Furthermore, we have held that a foreign-built grab-
dredge crane which can operate on land or water when installed on
a floating pontoon, would be prohibited from engaging in dredging
in the United States, if used with a vessel (i.e., when installed
on a floating pontoon.). If used from on land and not in
connection with a vessel, it would not be prohibited from
engaging in dredging in the United States. See, 107052 PH (11-7-
84).
We have found that the most efficient way for us to
determine whether a dredging vessel is built in the United
States, for purposes of 46 U.S.C. App. 292, is to defer to the
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Coast Guard on the question. If a dredging vessel is considered
by the Coast Guard to be built in the United States for purposes
of documentation and particularly, the coastwise laws, we will
consider it to be a U.S.-built dredge for purposes of section
292. Headquarters Decision 107908. In that regard, we requested
the advice of the Coast Guard and they responded by letter of
May 18, 1990. That letter provides in part that "Mr. Bigwood
concedes that the entire superstructure of the dredge is of
foreign origin. He raises a question, however, as to whether
the Smalley 6808 is a vessel. Review of his submission leads to
the inescapable conclusion that the dredge is a vessel and that
it is foreign built."
The Customs Service and its predecessor in the
administration of the navigation laws, the Bureau of Marine
Navigation, have consistently held that, under 46 U.S.C. App.
292, a foreign-built dredge (except those dredges named in
section 2 of the Act of May 28, 1906; see below) may not engage
in dredging in the United States whether or not documented as a
vessel of the United States. This is so because of the
historical background and the legislative history of Act of May
28, 1906. The provision was enacted as a result of controversy
which arose over the use of foreign-built dredges to repair
damage done by a hurricane at Galveston, Texas, in 1900. At the
time of enactment of the provision, foreign-built vessels could
not be documented in the United States, unless captured in war by
citizens of the United States and lawfully condemned as prize or
adjudged to be forfeited for a breach of the laws of the United
States (section 4132, Revised Statutes). Thus, at the time of
enactment, the proviso in section 1 of the Act of May 28, 1906,
"unless documented as a vessel of the United States," was, by
itself, practically meaningless. However, section 2 of the Act
of May 28, 1906, provided:
That the Commissioner of Navigation is
hereby authorized and directed to document as
vessels of the United States the foreign-
built dredges Holm, Leviathan, Nereus, and
Triton, owned by American citizens and now
employed at Galveston, and the dredge Sea
Lion, now under construction abroad for use
at Galveston, on which an American citizen,
the contractor at Galveston, has an option.
Thus, reading both sections together, it is clear that the
proviso in section 1, "unless documented as a vessel of the
United States," refers to the dredges which were authorized and
directed to be documented as vessels of the United States by
section 2. The legislative history of the Act confirms this
interpretation (see 40 Cong. Rec. 7029 (1906))) and, as stated
above, the Act has consistently been so interpreted by the
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administrative agencies responsible for its administration.
Even though a foreign-built dredge may now be documented as a
vessel of the United States (see 46 U.S.C. 12102, 12105), it
would be prohibited by 46 U.S.C. 292 from engaging in dredging in
the United States. See also 110859 GEV (4-12-90). It is the
position of the Customs Service that because the prohibition in
46 U.S.C. 292 relates to build, and not the documentation of a
dredge, a dredge documented under a foreign flag may engage in
dredging in the United States if it was built in the United
States. Thus, your argument that the "excavator" is not within
the provision of 292 must fail.
Finally, you should be aware that the dredging statute (46
U.S.C. App. 292) as well as the other navigation laws
administered by the Customs Service, is applicable only to those
vessels engaged in activities in the navigable waters of the
United States, and the navigable waters of its territories and
possessions. 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. The U.S. Customs Service, in
ascertaining its own jurisdiction to enforce the navigation laws
it administers, 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 4 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 Montello, 20 Wall. 430, 441,
87 U.S. 430, 441, 22 L.Ed. 391 (1874); United States v. Utah, 283
U.S. 64, 76, 51 S.Ct. 438, 441, 75 L.Ed. 84
(1931); United v. Appalachian Electric Power Co., 311 U.S. 377,
406-408, 61 S.Ct. 291, 298-99, 85 L.Ed. 243 (1940).
The 4 elements listed above are reflected in the regulations
of the U.S. Coast Guard (33 CFR 2.05-25(a)(3)(i)) which state, in
pertinent part, that navigable waters of the United States
include:
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 substan-
tial interstate or foreign commerce notwithstanding
natural or man-made obstructions that require portage.
These same 4 elements are also reflected in the regulations
of the Army Corps of Engineers (33 CFR 329,4) which define
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navigable waters of the United States in pertinent part as:
those waters that are subject to the ebb and flow of
the tide and/or are presently used, or have been used
in the past, or may be susceptible for use to transport
interstate or foreign commerce.
As stated above, Customs has no similar regulations
pertaining to the statutes it enforces, preferring to look to
court decisions and the regulations of these two federal agencies
instead.
Other than legislation enacted by Congress to explicitly
exempt a particular vessel from the application of the navigation
laws, the only other waiver authority is that contained in the
act of December 27, 1950 (64 Stat. 1120), under which the
navigation laws may be waived by the Secretary of the Treasury in
the interest of national defense. This Act, among other things,
directs the granting of a waiver upon the request of the
Secretary of the Defense and permits such a waiver on the written
recommendation of the head of any other United States Government
agency. Such a waiver is inapplicable in your case.
In conclusion, we find that the Smalley excavator/dredge is
a foreign-built dredge which is prohibited from engaging in
dredging in the United States pursuant to 46 U.S.C. App. 292. If
you have any questions regarding our decision, you may contact
Rebecca Hollaway of my staff at (202) 566-5706.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch