46 U.S.C. § 55102; Coastwise Transportation; 46 U.S.C. § 55109; Dredging.

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H294785 July 11, 2018 VES-3-02-OT:RR:BSTC:CCR H294785 ASZ CATEGORY: Carriers Ms. Anne E. Mickey Mr. Jeff R. Vogel Cozen O'Connor 1200 19th Street NW Washington, DC 20036 RE: 46 U.S.C. § 55102; Coastwise Transportation; 46 U.S.C. § 55109; Dredging. Dear Ms. Mickey and Mr. Vogel: This letter is in response to your correspondence dated February 28, 2018, on behalf of your client [], in which you inquire about whether your client’s use of a non-coastwise-qualified vessel as part of a beach replenishment project constitutes a violation of 46 U.S.C. § 55102 or 46 U.S.C. § 55109. Our decision follows. FACTS The following facts are from your ruling request and your April 25, 2018 e-mail to this office. Your client seeks to operate a non-coastwise-qualified, self-propelled Panamax self-unloading bulk carrier vessel (the “Vessel”) as part of a beach replenishment project in []. On or about September 2019, the Vessel will load sand in [] and will transport the sand to a point in U.S. territorial waters, located approximately one half (1/2) mile off the coast of [], where the Vessel will anchor in approximately 75’ to 100’ feet of water. A non-U.S.-flag self-propelled dredge (the “Dredge”) will be positioned adjacent to the Vessel. The Dredge will be attached to the Vessel by a series of lines and a Yokohama fender system. The Dredge will not be separately anchored to the seabed. The sand will be transferred directly from the Vessel into the Dredge using the Vessel’s self-unloading equipment. The Dredge will then use its suction pumps to bring ocean water from its immediate vicinity aboard the Dredge to create a slurry mixture. You state that given the depth of the water at the Vessel’s anchoring location, no disruption of the seabed is anticipated during the suctioning process. Your client proposes two scenarios. Scenario One: In a continuous operation, using the Vessel’s self-unloading equipment, the entirety of the sand will be transferred directly from the Vessel to the Dredge at the original point of the Vessel’s anchoring. The Dredge will produce the slurry mixture and will pump it ashore to [] using only the Dredge’s pumps and a series of floating hoses. Once the entirety of the slurry mixture has been pumped ashore, the Dredge will detach from the Vessel, and the operation will be complete. This operation may be repeated multiple times with the Vessel returning to [] and lading more sand until the beach replenishment project is complete. Scenario Two: A portion of the sand will be transferred directly from the Vessel to the Dredge at the original point of the Vessel’s anchoring. The Dredge will create a slurry mixture with the first portion of sand and will pump it ashore to [] using only the Dredge’s pumps and a series of floating hoses. Once the portion of sand is pumped ashore, leaving the Dredge empty, the Dredge will detach from the Vessel. At this point, the Vessel will lift anchor and reposition itself, using its own engines, to another point approximately one half (1/2) mile off the coast of [] where the Vessel will anchor in approximately 75’ to 100’ feet of water. The Dredge will again be brought alongside and fastened to the Vessel. At this time, another portion of sand will be transferred directly from the Vessel to the Dredge, slurried by the Dredge, and pumped ashore using the Dredge’s pumps and a series of floating hoses. This process of detaching the empty Dredge, repositioning the Vessel at a different coastwise point, and reattaching the Dredge may be repeated until all of the sand originally laden on the Vessel in [] is transferred to the Dredge, slurried, and pumped ashore. This operation may be repeated multiple times with the Vessel returning to [] and lading more sand until the beach replenishment project is complete. ISSUE Whether the proposed operations in the scenarios described in the FACTS section above would constitute a violation of 46 U.S.C. §§ 55102 and 55109? LAW AND ANALYSIS Pursuant to 46 U.S.C. § 55102, which provides, in pertinent part: Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not provide any part of the transportation of merchandise by water, or by land and water, between points in the United States to which the coastwise laws apply, either directly or via foreign port, unless the vessel— (1) is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and (2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline. Pursuant to 46 U.S.C. § 55102(a), “merchandise, includes (1) merchandise owned by the United States Government, a State, or a subdivision of a State; and (2) valueless material.” As such, any cargo, regardless of its value or ownership, would be considered merchandise for the purpose of 46 U.S.C. § 55102. The regulations promulgated under the authority of 46 U.S.C. § 55102(a), provide in pertinent part: A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise laden at a point embraced within the coastwise laws (“coastwise point”) is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise. Pursuant to 46 U.S.C. § 55109, only coastwise-qualified vessels may engage in dredging in the navigable waters of the United States (“U.S.”), providing, in pertinent part: [A] vessel may engage in dredging in the navigable waters of the United States only if— the vessel is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; the charterer, if any, is a citizen of the United States for purposes of engaging in the coastwise trade; and (3) the vessel has been issued a certificate of documentation with a coastwise endorsement under chapter 121 of this title or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement 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. A. Coastwise Transportation under 46 U.S.C. § 55102 Scenario One The coastwise laws prohibit a non-coastwise-qualified vessel from transporting merchandise between points in the United States to which the coastwise laws apply, either directly or via a foreign port. In the instant case, the sand will laden onto the Vessel in [], a foreign port, and transferred to the Dredge at a point in the U.S. territorial sea using the Vessel’s self-unloading equipment. Insofar as the Vessel will transport the sand from a foreign port to a coastwise point, the transportation is not in violation of 46 U.S.C. § 55102. Next, the Dredge will use its suction pumps to bring ocean water aboard and create a slurry mixture, which will be pumped ashore using only the Dredge’s pumps and a series of floating hoses. In the present case, the slurry mixture will move by the Dredge’s pumps and a series of floating hoses and not by the movement of the Dredge. Insofar as the Dredge will not transport the slurry mixture between coastwise points, the use of the Dredge is not a violation of 46 U.S.C. § 55102. Scenario Two The coastwise laws prohibit a non-coastwise-qualified vessel from transporting merchandise between points in the United States to which the coastwise laws apply, either directly or via a foreign port. In the instant case, the sand will be laden onto the Vessel in [], a foreign port, and a portion of sand will be transferred to the Dredge at a point in the U.S. territorial sea using the Vessel’s self-unloading equipment. Once the Dredge has completed its operation of slurring the first portion of sand and pumping it ashore, the Vessel will reposition itself at another point in U.S. territorial waters, where it will anchor. The empty Dredge will be fastened to the Vessel and another portion of sand will be transferred directly from the Vessel to the Dredge, slurried, and pumped ashore. CBP has held that merchandise, transported on a non-coastwise-qualified vessel, can be laden at a foreign port and then partially unladen at a U.S. port or point with the remaining merchandise onboard unladen at another U.S. port or point without violating 46 U.S.C. § 55102. See HQ 111403 (Nov. 20, 1990). Therefore, the use of the Vessel to lade the sand in [], a foreign port, and partially unlade the sand at multiple coastwise points off the coast of [] is not a violation of 46 U.S.C. § 55102. In this scenario, the Dredge will use its suction pumps to bring ocean water aboard and create a slurry mixture out of the first portion of sand, which will be pumped ashore using only the Dredge’s pumps and a series of floating hoses. The entirety of the slurry mixture will be pumped ashore, leaving the Dredge empty. The empty Dredge will reattach to the Vessel once the Vessel has repositioned itself and will repeat this process. The Dredge will only be moved when it is empty. In the instant case, the slurry mixture will move by the Dredge’s pumps and a series of floating hoses and not by the movement of the Dredge itself. Insofar as the Dredge will not transport the slurry mixture between coastwise points, the use of the Dredge is not a violation of 46 U.S.C. § 55102. B. Dredging under 46 U.S.C. § 55109 Under both scenarios one and two, the Dredge will use its suction pumps to bring aboard ocean water from its immediate vicinity to fluidize the sand and create the slurry mixture that will be pumped ashore. 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.” You state that given the depth of the water at the Vessel’s anchoring location, no disruption of the seabed is anticipated from the suctioning of the ocean water aboard the Dredge. Insofar as the Dredge will not remove submarine material with excavating machinery, the subject Dredge is not engaged in dredging pursuant to 46 U.S.C. § 55109. HOLDING The proposed operations in the scenarios described in the FACTS section above would neither constitute a violation of 46 U.S.C. § 55102 nor 46 U.S.C. § 55109. Sincerely, Lisa L. Burley Chief/Supervisory Attorney-Advisor Cargo Security, Carriers and Restricted Merchandise Branch Office of International Trade, Regulations and Rulings U.S. Customs and Border Protection