Dredging; 46 U.S.C. App. 292 Dear Mr. Myhre:

HQ 114743 June 29, 1999 VES-10-02-RR:IT:EC 114743 GOB CATEGORY: Carriers William N. Myhre, Esq. Preston Gates Ellis & Rouvelas Meeds LLP 1735 New York Avenue, N.W. Suite 500 Washington, D.C. 20006-5209 RE: Dredging; 46 U.S.C. App. 292 Dear Mr. Myhre: This is in response to your ruling request of June 22, 1999 on behalf of Great Lakes Dredge & Dock Company. FACTS: You describe the pertinent facts as follows: The subject of this request is the proposed use of a non-coastwise-qualified jack-up “drill barge” for drilling and blasting work in conjunction with planned dredging operations in U.S. territorial waters off Puerto Rico. It is Great Lakes’ understanding that such employment would be prohibited under 46 U.S.C. App. 292. Great Lakes has been offered the use of such a vessel under charter for the proposed employment. ... In the proposed project, the vessel in question would serve as a platform for drilling and blasting work as an integral part of broader dredging operations. To perform the drilling phase of the operation, drilling equipment would be installed on the barge which, by hydraulic percussion or other means, would drill numerous holes approximately 4.5" in diameter in the seabed and its underlying rock formations. These holes would immediately be filled with gel or solid explosives from the barge. Once a series of such holes was drilled and packed with explosives, the barge would “jack” down to its floating configuration and using its anchor lines move approximately 300 ft. from the drilling site. The explosives would then be detonated, fracturing the seabed and underlying rock. The drilling/blasting barge would move to the next adjacent area to be broken up in this manner and the process repeated. Once the drilling/blasting phase is completed for any given area, the fractured seabed materials would then be removed by other (coastwise qualified) vessels using mechanical or other forms of dredging. The drilling/blasting phase, however, is an integral part of such dredging operation inasmuch as were it not for the drilling and blasting having been performed, removal of the seabed material/underlying rock formations could not occur. ISSUE: The application of 46 U.S.C. App. 292 to the above-described activity. LAW and ANALYSIS: 46 U.S.C. App. 292 provides: § 292. 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 - (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. Thus, 46 U.S.C. App. 292 prohibits the use of a non-coastwise-qualified vessel to engage in dredging in the navigable waters of the United States. We have stated 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, for example, Ruling 111188 dated September 14, 1990. The court in Gar-Con Development v. State of Florida, 468 So. 2d 413, 414-415 (Fla. App. 1 Dist. 1985) stated as follows: 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 waters by suction or scooping or other means. The common, plain and ordinary meaning of the term “pile driving” is the driving of a long slender member, usually of timber, steel or reinforced concrete, into the ground to carry a vertical load, to resist a lateral force, or to resist water or other earth pressure. Pile driving has absolutely nothing to do with the excavation or removal of soil or forming a hole or cavity in the ground. Dredge is defined in The International Maritime Dictionary (De Kerchove, 2nd ed., 1961) 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. In Ruling 111833 dated November 26, 1991, we held that: The use of a foreign drilling/blasting barge to participate in a dredging operation by blasting and dislodging the sea bottom from its original sea bottom position to another position is an engagement in dredging and therefore is a violation of 46 U.S.C. App. 292. In Ruling 111188, we stated: ... it is clear that the various uses of the Watermaster, with the exception of cable and pipe-laying, drilling/pile driving and harvesting aquatic vegetation, constitute dredging so as to come within the purview of 46 U.S.C. App. 292 ... [Emphasis added.] Thus, in Ruling 111188, consistent with the Gar-Con Development case, we stated that drilling and pile driving did not constitute dredging. Therefore, if the activity proposed is only drilling or pile driving, we do not consider such activity to be dredging and it is not subject to the proscription of 46 U.S.C. App. 292. If there is a de minimis dislodging of the seabed incidental to a drilling or pile driving operation, we would not consider that de minimis dislodging to be substantial enough to constitute dredging. If the proposed activity includes the excavation, digging up, displacing, dislodging, or removal of submarine material by blasting or other means, such activity is dredging and is subject to the proscription of 46 U.S.C. App. 292, i.e., pursuant to that statute it may not be accomplished by a non-coastwise-qualified vessel. This determination is consistent with Ruling 111833. Your state that, with respect to the proposed operation: “The explosives then would be detonated, fracturing the seabed and underlying rock. The drilling/blasting barge would move to the next adjacent area to be broken up in this manner and the process repeated.” If this activity involves the displacing or dislodging of submarine material (i.e., “fracturing the seabed”) such activity would constitute dredging and would be subject to the proscription of 46 U.S.C. App. 292. HOLDING: If the proposed activity, which includes the detonation with explosives and the fracturing of the seabed and underlying rock, involves the displacing or dislodging of submarine material, it is dredging and is therefore subject to the proscription of 46 U.S.C. App. 292. Sincerely, Jerry Laderberg Chief, Entry Procedures and Carriers Branch