VES-10-02/VES-3-01-CO:R:IT:C 113223 GOB

Anne Smith
Project Coordinator
General Offshore Corporation
P.O. Box 21726
Fort Lauderdale, Florida 33335-1726

RE: 46 U.S.C. App. 292; Dredging; Cable burial; 46 U.S.C. App. 883; 46 U.S.C. App. 12107

Dear Ms. Smith:

This is in response to your letter dated September 7, 1994 in which you request a ruling as described below.

FACTS:

General Offshore Corporation ("General") engages in the installation of submarine cable. It recently purchased an underwater trencher by the name of GATOR.

You describe GATOR as follows:

The GATOR when trenching digs a 300 mm width trench and depth is determined according to the customer's specification. The maximum achievable depth is 2.2 meters; the common trench specification calls for 1 meter depth. The spoils from the excavation are deposited along the sides of the trench and over a short period of time the natural currents present on the sea bottom wash these spoils back into the trench. You request a ruling with respect to the use of GATOR, using a foreign-flag vessel as a platform, to perform cable burial in U.S. coastwise waters, U.S. inland waters, and the Great Lakes.

ISSUE:

Whether the proposed activity may be accomplished by a foreign-flag vessel.

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LAW AND ANALYSIS:

46 U.S.C. App. 292

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 -

(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.

You plan to use GATOR on a foreign-flag vessel. Such a vessel does not meet the requirements of 46 U.S.C. 292(a)(1) and (3) because it is not eligible for coastwise trade and cannot obtain a coastwise endorsement. Accordingly, the vessel may not engage in dredging within the navigable waters of the United States. Thus, the crucial inquiry is whether the proposed activity is "dredging."

We have held that "dredging", for the purpose 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.

In Ruling 109412 dated March 29, 1988, we held as follows:

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The use in United States territorial waters from a cable laying or repair vessel of cable burial devices which temporarily remove from the seabed, by either an emulsification process or a share or plow and cutting disc, a very narrow "slice" of the seabed under which the cable is buried is not an engagement in dredging in the United States, for purposes of 46 U.S.C. App. 292.

We find that the facts in this case are very similar to the facts in Ruling 109412, where we described part of the activity as follows:

This emulsification process creates a temporary "deep narrow slot, typically eight inches wide and up to three feet deep" into which the cable is guided. You state that no seabed material is removed by this process and sea currents completely restore the seabed to its original state, at a minimum within several hours and, almost always, within several days.

In the instant case, the trench is 300 mm (approximately 12 inches) wide and is typically one meter deep. You state that: The spoils from the excavation are deposited along the sides of the trench and over a short period of time the natural currents present on the sea bottom was these spoils back into the trench.

Accordingly, we find that the proposed activity by a foreign- flag vessel, i.e., the use of the GATOR on a foreign-flag vessel, is not "dredging" and is not prohibited by 46 U.S.C. App. 292 when performed in U.S. territorial waters, U.S. inland waters, or the Great Lakes.

46 U.S.C. App. 883

46 U.S.C. App. 883, the coastwise merchandise statute often called the "Jones Act", provides in part that no merchandise shall be transported between points in the United States embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States.

In applying this statute to cable burial or cable laying, we have consistently ruled that the sole use of a vessel for the laying of cable, even if the vessel loads the cable at one coastwise point and lays it in United States territorial waters and/or between coastwise points, is not coastwise trade subject to 46 U.S.C. App. 883.

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Inasmuch as the subject foreign-flag vessel will be engaged in the proposed trenching activity, we consider GATOR to be equipment of the vessel and not to be merchandise subject to 46 U.S.C. App. 883. Accordingly, the proposed activity is not violative of 46 U.S.C. App. 883.

46 U.S.C. App. 12107

Similarly, the proposed activity is not trade with Canada within the meaning of 46 U.S.C. App. 12107, so that a Great Lakes endorsement is not required.

HOLDINGS:

1. As stated supra, the proposed activity in which the vessel buries cable by digging a trench approximately 12 inches wide, and pursuant to which the spoils of the trenching are deposited along the sides of the trench and shortly thereafter washed back into the trench, is not an engagement in dredging in the United States for purposes of 46 U.S.C. App. 292 when accomplished in U.S. territorial waters, U.S. inland waters, or the Great Lakes.

2. The proposed activity is not violative of 46 U.S.C. App. 883.

3. The proposed activity is not violative of 46 U.S.C. App. 12107.


Sincerely,

Arthur P. Schifflin
Chief
Carrier Rulings Branch