HQ 109366: Applicability of dredging law, 46 U.S.C. App. 292, to cable laying operations in United States territorial waters

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 109366

                                   March 31, 1988


          VES-10-02/VES-3-01 CO:R:P:C  109366 PH

          CATEGORY:  Carriers

          Robert Martin, Esq.
          Raymond J. Sherbill, Esq.
          Leva, Hawes, Mason & Martin
          1220 Nineteenth Street, NW.
          Washington, D.C. 20036

          RE:  Applicability of dredging law, 46 U.S.C. App. 292, to cable
          laying operations in United States territorial waters

          Dear Messrs. Martin and Sherbill:

              This in response to your letter of February 10, 1988, in
          which you request a ruling on the applicability of 46 U.S.C. App.
          292 to certain cable laying operations in United States territo-
          rial waters.  You request CONFIDENTIALITY for the identity of
          your principal, the registry of the cable ships, and the names of
          the equipment of the cable ships.  We will provide confidential
          treatment as you request.

          FACTS:

              Your client in this matter proposes to use a cable burial
          device to bury a submarine cable in United States territorial
          waters.  Both the cable burial device and the seagoing vessel
          which will tow it are foreign built.

              The cable burial device is described in enclosures with your
          letter.  It is a sled-mounted contraption which creates a subsoil
          channel by operation of a disc cutting wheel which precedes a
          vertical knife with a share or horizontal wedge.  A narrow wedge
          of soil is cut and lifted upwards at an angle and the cable is
          placed beneath it.  After placement of the cable, the wedge of
          soil is immediately returned to the same place from which it was
          lifted.  You state that at the conclusion of the operation of the
          device over any given section of the seabed there is no visible
          disturbance of the seabed or change in its profile, although the
          cable has been laid beneath it.

              It is requested that we rule on the following issue.











                                        - 2 -


          ISSUE:

              Is the use in United States territorial waters of the cable
          burial devices described in the FACTS portion of this ruling an
          engagement in dredging in the United States, for purposes of 46
          U.S.C. App. 292?

          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 in-
          terpretation of this statute, we have ruled that dredging in the
          United States is prohibited to any foreign-built dredging vessel
          except one of those named in section 2 of the 1906 Act.

              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 conti-
          nental shelf (OCS) outside territorial waters.  With regard to
          the applicability of section 292 to the OCS, we have held that
          the statute only applies with regard to dredging on the OCS for
          the purposes described in section 4(a) of the Outer Continental
          Shelf Lands Act of 1953, as amended (43 U.S.C. 1333(a)), and not
          to dredging done to prepare the seabed of the OCS for the laying
          of a trans-oceanic cable.

              In our application of 46 U.S.C. App. 292, we have long held
          that "dredging," for purposes of that statute, means the use of a
          vessel equipped with excavating machinery in digging up or other-
          wise removing submarine material.  In response to another request
          for a ruling on the applicability of section 292 to cable burial
          devices, we recently reconsidered this matter (see our ruling of
          March 29, 1988, file number 109412, copy enclosed).  In that
          ruling we held:

                    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.















                                        - 3 -


              Accordingly, assuming that the cable burial device under
          consideration is used from the vessel which is laying or repair-
          ing the cable, its use in United States territorial waters would
          not be considered an engagement in dredging in the United States,
          for purposes of 46 U.S.C. App. 292.

          HOLDING:

              The use in United States territorial waters from a cable
          laying or repair vessel of a cable burial device which temporar-
          ily removes from the seabed, by operation of a disc cutting wheel
          which precedes a vertical knife with a share or horizontal wedge,
          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.

                                        Sincerely,




                                        Kathryn C. Peterson
                                        Chief
                                        Carrier Rulings Branch
          Enclosure