HQ 113223: 46 U.S.C. App. 292; Dredging; Cable burial; 46 U.S.C. App. 883; 46 U.S.C. App. 12107

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 113223

                          September 29, 1994

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

CATEGORY:  Carriers

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.




                              - 2 -

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:

     

                              - 3 -

     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.

     

                              - 4 -

     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