OT:RR:BSTC:CCR H327270 HKC
Mr. Jonathan K. Waldron
Blank Rome LLP
1825 Eye Street NW
Washington, D.C. 20006
RE: Dredging; 46 U.S.C. § 55109
Dear Mr. Waldron,
This is in response to your correspondence, dated September 13, 2022, requesting a ruling as to whether the use of a non-coastwise-qualified vessel with a United States registry endorsement to conduct dredging operations in the waters of Guam would violate the coastwise laws of the United States. Our decision follows.
ISSUE:
Whether the use of a non-coastwise-qualified vessel with a U.S. registry endorsement to dredge in Guam waters would violate 46 U.S.C. § 55109.
LAW AND ANALYSIS:
Under 46 U.S.C. § 55109(a) “[e]xcept as provided in subsection (b)”, a vessel may dredge in the navigable waters of the United States only if (1) the vessel is wholly owned by U.S. citizens, (2) the vessel is chartered by a U.S. citizen, if applicable, and (3) the vessel has been issued a coastwise endorsement. The specific exception at 46 U.S.C. § 55109(b) permits a vessel documented with a registry endorsement to dredge for gold in Alaska. The language of 46 U.S.C. § 55109 contains no other exceptions.
Under 46 U.S.C. § 55102(b) “[e]xcept as otherwise provided in this chapter or chapter 121 of this title”, a vessel may only engage in the transportation of merchandise between two coastwise points if the vessel is (1) wholly owned by U.S. citizens, and (2) the vessel has been issued a coastwise endorsement. Similarly, under 46 U.S.C. § 55103(a) “[e]xcept as otherwise provided in this chapter or chapter 121 of this title”, a vessel may only engage in the transportation of passengers between two coastwise points if the vessel is (1) wholly owned by U.S. citizens, and (2) the vessel has been issued a coastwise endorsement. One such exception to the coastwise endorsement requirement is created by 46 U.S.C. 12111 which states “[a] vessel for which a registry endorsement is issued may engage in foreign trade or trade with Guam, American Samoa, Wake, Midway, or Kingman Reef.”
The plain-language meanings of 46 U.S.C. § 55102 and 46 U.S.C. § 55103 differ from that of 46 U.S.C. § 55109 because the merchandise and passenger statutes allow for exceptions “otherwise provided in this chapter or chapter 121 of [46 U.S.C.]”, while the dredging statute only allows for exceptions “provided in subsection (b)”.
Petitioner argues that the exception for “trade with Guam” in 46 U.S.C. 12111 should encompass dredging because “46 U.S.C. § 12111, which CBP has interpreted as allowing foreign-built, U.S.-registered vessels to engage in coastwise trade in Guam, does not single out the dredging statute or state that the word ‘trade’ does not include dredging.”
However, the plain-language meanings of the terms “trade” and “dredge” indicate otherwise. The International Maritime Dictionary defines a trade as, “[t]he waterborne commerce between given ports.” In contrast, “dredge” is defined 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”. 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.”
Completely absent from the plain-language meaning of “trade” is the excavation of submarine material, encompassed in the understanding of the term “dredge.” In accordance with this plain-language meaning of the term “trade”, CBP has consistently held registry endorsed vessels may engage in coastwise transportation of merchandise and passengers with Guam. However, CBP has never held that registry endorsed vessels may dredge in Guam waters.
Additionally, the petitioner argues that 46 U.S.C. § 55109(a) permits a registry endorsed vessel to dredge in Guam waters because the phrasing of the coastwise endorsement requirement contained at 46 U.S.C. § 55109(a)(3) of the dredging statute is nearly identical to the phrasing of the coastwise endorsement requirement located at 46 U.S.C. § 55102(b)(2) of the merchandise statute and 46 U.S.C. § 55103(a)(2) of the passenger statute. However, the nearly identical phrasing of the coastwise endorsement clause at 46 U.S.C. § 55109(a)(3) to its sister clauses in the merchandise and passenger statutes does not negate the language of the dredging statute at 46 U.S.C. § 55109(a) which permits exceptions only as “provided in subsection (b)”, language not present in either 46 U.S.C. § 55102 or 46 U.S.C. § 55103.
In the present matter, the proposed dredging operations in Guam waters fall outside the scope of the sole exception to 46 U.S.C. § 55109(a)’s coastwise endorsement requirement located at 46 U.S.C. § 55109(b). Accordingly, the proposed dredging in Guam waters using a non-coastwise-qualified vessel would be in violation of 46 U.S.C. § 55109.
HOLDING:
The use of a non-coastwise-qualified vessel with a U.S. registry endorsement to dredge in Guam waters would violate 46 U.S.C. § 55109.
Sincerely,
W. Richmond Beevers
Chief, Cargo Security, Carriers and Restricted Merchandise Branch
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection