HQ 113147: Coastwise Trade; Formal Vessel Entry; Dredging; 46 U.S.C. App. 292 and 883; Vessel Manning Requirements

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                              HQ 113147

                             July 1, 1994

VES-3/10-02-CO:R:IT:C  113147 GOB

CATEGORY:  Carriers

Alex M. Gonzalez, Esq.
Holland & Knight
P.O. Box 015441
Miami, FL 33101-5441

RE:  Coastwise Trade; Formal Vessel Entry; Dredging; 46 U.S.C. App.
     292 and 883; Vessel Manning Requirements

Dear Mr. Gonzalez:

     This is in response to your letter dated June 24, 1994 in
which you request a ruling as described infra.

FACTS:

     Your client proposes to use a foreign hopper dredge to
transport aragonite, a calcareous material, from the Bahamas to
various points off the coast of Florida.  It proposes to deliver
the aragonite, which was dredged in the Bahamas, from the dredge
by pumping it through a pipeline onto the beach.  You ask the
following questions. 

ISSUES:

     1.  Can entry be made at the point where the aragonite is to
be discharged rather than at a formal designated port?  If entry
must be made at a formal designated port, may future voyages on the
same project proceed directly to the discharge point?

     2.  If you must make formal entry at the nearest port, will
the movement of the foreign dredge from the port to several points
along the coast and/or the final destination point constitute
coastwise transportation under the Jones Act?

     3.  Is it permissible to have foreign workers on board the
vessel as it sits offshore while it is pumping the aragonite?

     4.  Does the use of the foreign hopper dredge to transport and
pump Bahamian aragonite from one point offshore to another point
along the coastline constitute coastwise transportation or trade
under the Jones Act? 

                              - 2 -

LAW AND ANALYSIS:

Issue No. 1
     
     Pursuant to 19 U.S.C. 1434, entry of the vessel is to be made
at the customs facility nearest to the point of the discharge of
the aragonite prior to the discharge.  With respect to future
voyages on the same project, entry must be made in the same manner
when the vessel arrives from a domestic port or from a foreign port
or place, i.e., from outside the customs territory of the United
States.

Issue No. 2

     46 U.S.C. App. 883, the coastwise merchandise statute often
referred to as the "Jones Act", provides in part:

     No merchandise...shall be transported by water, or by land and
     water, on penalty of forfeiture of the merchandise (or a
     monetary amount up to the value thereof as determined by the
     Secretary of the Treasury, or the actual cost of the
     transportation, whichever is greater, to be recovered from any
     consignor, seller, owner, importer, consignee, agent, or other
     person or persons so transporting or causing said merchandise
     to be transported), between points in the United
     States...either directly or via a foreign port, or for any
     part of the transportation, in any other vessel 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...

     The movement of the dredge from the Customs port to several
points along the coast and/or the final destination point does not
constitute coastwise transportation under the Jones Act because
there is no lading of merchandise at a coastwise point.

Issue 3

     There are no "vessel manning" requirements which we are aware
of with respect to foreign-flag vessels.

Issue 4

     The dredging statute, 46 U.S.C. App. 292 states:

     Vessels that may engage in dredging

     (a) In general

     Except as provided in subsection (b) of this section, a vessel
     may engage in dredging in the navigable waters of the United
     States only if -

                              - 3 -

          (1) the vessel meets the requirements of section 883 of
          this title and sections 802 and 803 of this title for
          engaging in the coastwise trade;

          (2) when chartered, the charterer of the vessel is a
          citizen of the United States under sections 802 and 803
          of this title for engaging in the coastwise trade; and

          (3) for a vessel that is at least 5 net tons, the vessel
          is documented under chapter 121 of Title 46 with a
          coastwise endorsement.   

     (b) Exception

     A documented vessel with a registry endorsement may engage in
     the dredging of gold in Alaska.

     (c) Penalty

     When a vessel is operated in knowing violation of this
     section, that vessel and its equipment are liable to seizure
     by and forfeiture to the United States Government.

     The court in Gar-Con Development v. State, 468 So. 2d 413
(Fla. App. 1 Dist. 1985) stated as follows:

     Dredging is defined as "excavation" by any means...The word
     "excavation" 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.

     The proposed activity involves the deposit at United States
sites of materials taken aboard a dredge in the Bahamas, which is
not a coastwise point.  46 U.S.C. App. 292 is not applicable in
this instance because there is no dredging in the navigable waters
of the United States.

     Similarly, 46 U.S.C. App. 883 is not applicable because there
is no lading of merchandise at a coastwise point.











                              - 4 -

HOLDINGS:

     As detailed supra:  formal entry must be made at the customs
facility each time that the vessel arrives from a domestic port or
from a foreign port or place; the proposed activity is not
prohibited by 46 U.S.C. App. 883 or 292; and there are no "vessel
manning" requirements which are applicable with respect to the
vessel.



                              Sincerely,



                              Arthur P. Schifflin
                              Chief
                              Carrier Rulings Branch