HQ 109888: Aquatic Plant Harvesting Vessels

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 109888

                                   December 12, 1988

            VES-3/10-02-CO:R:P:C: 109888 GV

            CATEGORY: Carriers

            Ms. Eileen M. Crowell
            Aquarius Systems
            Post Office Box 215
            220 North Harrison
            North Prairie, Wisconsin 53153

            RE:  Aquatic Plant Harvesting Vessels

            Dear Ms. Crowell:

                 This is in reference to your letter of November 18, 1988,
            requesting a ruling as to whether the operation of a foreign-
            built harvesting vessel on the navigable waters of the United
            States is prohibited.

            FACTS:

                 Your firm manufactures and sells aquatic plant harvesting
            equipment which, when used on a continuous basis, effectively
            opens up waterways for transportation and recreation.  Enclosed
            with your letter was literature describing the subject
            equipment and its operation.  You state that foreign
            competitors are importing this same equipment in substantial
            numbers into the United States to clean lakes and waterways of
            plants for ecological, recreational, and aesthetic purposes.

                 In addition to the above-referenced literature, you also
            enclosed a copy of Customs ruling VES-10-02-RRUCDC 104578 JCL,
            dated May 5, 1980, regarding the proposed operation of British-
            built dredges in the United States.  You inquire as to the
            applicability of that ruling to the operation of the above
            mentioned foreign equipment.

            ISSUE:

                 Whether the use of a foreign-built aquatic plant
            harvesting vessel on the navigable waters of the United States
            is prohibited by 46 U.S.C. App. 292.














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            LAW AND ANALYSIS:

                 Section 1 of the Act of May 28, 1906 (34 Stat. 204; 46
            U.S.C. App. 292), provides that "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."  In our interpretation of this statute, we have ruled
            that dredging in the United States is prohibited by any
            foreign-built dredging vessel except one of those named in
            section 2 of the 1906 Act (see Customs Service Decision
            (C.S.D.) 85-11).

                 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).

                 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 in
            the absence of Federal judicial decisions or explicit
            Congressional enactment, although it is not required to do so.

                 The threshold question to be considered in this case is
            whether the harvesting of aquatic plants by the subject
            equipment is considered dredging.  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).










                                         - 3 -


            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.

                 Given the foregoing definition, it is clear that the
            harvesting of aquatic plants by the equipment depicted in your
            literature is not "dredging".  We note however, that the
            coastwise laws of the U.S. are brought into play when plant
            material is transported from the point it is brought aboard the
            harvesting vessel to a point on the shore of the waterway in
            which such vessel is operating.

                 The coastwise merchandise statute, codified at 46 U.S.C.
            App. 883, prohibits the transportation of merchandise by a non-
            coastwise-qualified vessel between points embraced within the
            law.  This statute has been found to apply even to the
            transportation of merchandise from point to point within a
            harbor.  Pursuant to 19 U.S.C. 1401(c), the word "merchandise"
            means goods, wares and chattels of every description and
            includes merchandise the importation of which is prohibited.
            Furthermore, Public Law 100-329 (102 Stat. 588) amended section
            883 to apply to the transportation of "valueless material..."

                 Accordingly, the harvesting of aquatic plants by a
            foreign-built vessel in the manner depicted in your literature
            would not violate 46 U.S.C. App. 292.  However, the transpor-
            tation of plant material by a foreign-built vessel from the
            point it is brought aboard the vessel to a point on the shore
            of the waterway in which it is operating (either by the
            harvesting vessel itself or a vessel akin to the transport
            barge in your brochure) would constitute a violation of 46
            U.S.C. App. 883 with the resultant penalty of the actual cost
            of the transportation to be recovered from any consignor,
            seller, owner, importer, consignee, agent, or other person or
            persons so transporting or causing said merchandise to be
            tranported.

            HOLDING:

                 The use of a foreign-built aquatic plant harvesting vessel
            on the navigable waters of the United States would not be
            prohibited by 46 U.S.C. App. 292.  However, the transportation














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            of plant material by a foreign-built vessel from the point it
            is brought aboard the vessel to a point on the shore of a
            navigable waterway of the United States would constitute a
            violation of 46 U.S.C. App. 883.



                                             Sincerely,




                                             D. Lynn Gordon
                                             Assistant Commissioner
                                             Commercial Operations































            CO:R:P:C:GVEREB:mr 11/29/88