Coastwise Transportation; Dredging; Undersea Cable Laying; 46 U.S.C. § 55102; 46 U.S.C. § 55109; 19 CFR § 4.80b; Outer Continental Shelf Lands Act; 43 U.S.C. § 1333(a)(1).

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H318628 June 30, 2022 VES-3-02-OT:RR:BSTC:CCR H318628 AMW CATEGORY: Carriers Mr. Constantine G. Papavizas, Esq. Winston & Strawn LLP 1901 L Street, NW Washington, DC 20036 RE: Coastwise Transportation; Dredging; Undersea Cable Laying; 46 U.S.C. § 55102; 46 U.S.C. § 55109; 19 CFR § 4.80b; Outer Continental Shelf Lands Act; 43 U.S.C. § 1333(a)(1). Dear Mr. Papavizas: This letter is in response to your April 22, 2021, ruling request on behalf of your clients [ ] regarding whether certain activities related to the installation of electric transmission cable by a non-coastwise-qualified vessel would violate the coastwise laws. Our decision follows. FACTS The following facts are from your ruling request and a “Revised and Restated” request submitted on September 21, 2021. This request relates to the construction of the [ ] project, which will be situated on the U.S. outer continental shelf (“OCS”), approximately [ ]. Specifically, your client proposes to utilize a non-coastwise-qualified cable-lay vessel (“CLV”) to create a fluidized path and simultaneously place cables on the seabed of U.S. territorial waters and along the seabed of the outer continental shelf (“OCS”). The cable will then be placed in “wet storage” until the CLV returns to attach the cable to an offshore substation. This cable will be used to transmit electric current from the completed wind farm to the continental United States. You state that the identity of the CLV has not been finalized but will be a non-coastwise-qualified cable-lay vessel, possibly the [ ]. The subject operation involves the placement, underwater storage, and subsequent installation of [ ] electric cables. The cables will be sourced from both domestic and international manufacturers. Some of the cables will be manufactured in [ ] and transported to the United States by either the CLV or another non-coastwise-qualified “feeder” vessel to be named later. The remaining portions of cable will be manufactured domestically in [ ] and transported to the installation site by either a CLV or by another non-coastwise-qualified “feeder” vessel. If the U.S.-origin cable is delivered to the CLV by a feeder vessel, the feeder vessel will transfer the cable to the CLV while both are floating unattached outside U.S. territorial waters. The subject cables will be placed on a route running from a landfall point within U.S. waters to the wind project site, which is located on the U.S. OCS. In conjunction with the cable-lay stage, the CLV will employ a tool to simultaneously create a fluidized trench and bury the cable for its protection in certain locations (the “Cable Burial Tool”). As shown in the technical drawings appended to your request, the Cable Burial Tool is a sled-type mechanism containing two front skids and a rear “blade” equipped with jetting nozzles on its front and side. The jetting nozzles will fluidize the seabed soil and reduce friction against the portion of the tool opening the trench. Your request states that the trenching and burial process will occur in roughly the following sequence: The CLV will position itself near the point where the cable will meet the U.S. shoreline, at which point there will be an entry point previously constructed by a Horizontal Directional Drill (“HDD”); The cable will be floated from the CLV to the entrance of the offshore end of the HDD entry point, attached to a pulling rope passed through the entry point, and inserted into the entry point; The cable will be pulled all the way by a winch positioned on shore to the transition joint bay on shore, then the CLV will move away from the landfall point, laying the cable along the route while simultaneously digging a fluidized path and burying the cable with the Cable Burial Tool. Once the cable is laid, the cable will be placed in “wet storage” until the related wind field is completed, at which time the CLV will return to install the cable to the relevant infrastructure. Your request states that the “wet storage” and installation process will include the following stages: A cable end is laid at an agreed-upon location to be wet stored, such as near an offshore substation or at a point between the windfarm and the landfall point; The cable end at that location is equipped with rigging and/or a marker buoy for later retrieval; The section may be temporarily buried for approximately six to eighteen months (alternatively, rock bags or concrete mats may be installed on top of the cable); If de-burial of the wet-stored segments is necessary, the CLV will again deploy the Cable Burial Tool, which will use its jetting nozzles to de-bury these segments; The section is spliced with a new length of cable already on the CLV that the CLV will then lay, or the section will be laid anew into its final location. ISSUES Whether the use of the Cable Burial Tool to create a path along the seabed in which to place the cable constitutes a violation of 46 U.S.C. § 55109? Whether the cable placement, wet storage, and installation operations by a non-coastwise-qualified vessel violate the Jones Act, 46 U.S.C. § 55102? LAW AND ANALYSIS Generally, the coastwise laws prohibit the transportation of merchandise or passengers between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.” 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. In addition, Section 4(a)(1) of the Outer Continental Shelf Lands Act of 1953 (“OCSLA”), as amended by The William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, H.R. 6395, 116th Cong. § 9503 (2021), provides that the Constitution and laws and civil and political jurisdiction of the United States are extended to: the subsoil and seabed of the outer Continental Shelf; all artificial islands on the outer Continental Shelf; installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources, including non-mineral energy resources; or any such installation or other device (other than a ship or vessel) for the purpose of transporting or transmitting such resources. (Emphasis added.) Accordingly, the OCSLA, as amended in 2021, extends U.S. jurisdiction to devices attached to the seabed of the OCS for the purpose of producing wind energy, such as the wind energy project contemplated in the present matter. Issue One: Whether the Creation of the Cable Pathway Violates 46 U.S.C. § 55109? Pursuant to 46 U.S.C. § 55109, only coastwise-qualified vessels may engage in dredging in the navigable waters of the United States, providing, in pertinent part: [A] vessel may engage in dredging in the navigable waters of the United States only if— (1) the vessel is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; (2) 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. 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.” See HQ 103692 (Dec. 28, 1978) (published as Customs Service Decision (C.S.D.) 79-331); HQ 109108 (Nov.13, 1987); HQ 109910 (Jan. 26, 1989) (published as C.S.D. 89-64). In contrast, with respect to the use by cable-laying vessels of cable-burial devices employing a jetting action resulting in the emulsification of the seabed surrounding the cable, CBP has also long held that such an operation does not constitute an engagement in “dredging” for the purposes of the aforementioned statute. See, e.g., HQ 115646 (Apr. 12, 2002). Specifically, CBP has reasoned that the use of a jetting tool to “temporarily lift” a “narrow ‘slice’” of the seabed amounts to a “temporary manipulation of the seabed” as opposed to the creation of a furrow or trench by operation of a share or plow and disc cutting wheel. See HQ 109412 (Mar. 29, 1988), published at C.S.D. 88-7. Furthermore, in HQ 115646, CBP approved the use of a “jet plow” consisting of two blades with “multiple nozzles along the face of the blade,” through which high-pressure jets of water were utilized to fluidize a seabed path. In the present matter, you state that the Cable Burial Tool, which will be used to create the pathway for the cable, or to subsequently “de-bury” portions of the cable placed in wet storage, will fluidize the seabed by use of pressurized water jets attached to a narrow “blade.” Based on the narrative and technical depictions provided in your request, it appears the subject Cable Burial Tool will create a fluidized pathway in which to place the cables by the function of pressurized jets, rather than through a plow or similar feature. Indeed, the design of the Cable Burial Tool, which involves a “blade” face lined with pressurized jets is similar to the “jet plow” described in HQ 115646, which CBP determined was not engaged in dredging for the purposes of the Dredging Act. As a result, this activity, as ruled in HQ 115646, is not within the ambit of 46 U.S.C. § 55109. Accordingly, the proposed operation does not constitute dredging for the purposes of 46 U.S.C. § 55109. Issue Two: Whether the Cable Placement, Wet Storage, and Installation Operations Violate the Jones Act, 46 U.S.C. § 55102? Next, we determine whether the proposed cable placement, wet storage, and installation operations by the non-coastwise-qualified CLV violates the Jones Act. The Jones Act, 46 U.S.C. § 55102, 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 a foreign port, unless the vessel— is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and 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. Pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” For purposes of the Jones Act, merchandise also includes “valueless material.” 46 U.S.C. § 55102(a)(2). The CBP Regulations promulgated under the authority of 46 U.S.C. § 55102 provide that a coastwise transportation of merchandise takes place when merchandise laden at a coastwise point is unladen at another coastwise point, regardless of origin or ultimate destination. 19 CFR § 4.80b(a). As an initial matter, we determine that the original cable placement and storage operation does not constitute coastwise trade under the Jones Act. CBP has long held that the sole use of a vessel in laying pipe or cable between two coastwise points is not considered a use in the coastwise trade of the United States. See, e.g., HQ 115431 (Sept. 4, 2001), HQ 115333 (Apr. 27, 2001). In doing so, CBP has reasoned that situations in which material is not landed as cargo but is only paid out in the course of the installation operation makes such operation permissible (i.e., “paid out/not unladen”). Further, since the use of a vessel in pipe or cable laying is not a use in the coastwise trade, a non-coastwise-qualified vessel may carry pipe or cable which is laid between such points by that vessel. However, the transportation of pipe or cable by any vessel other than the vessel that is laying pipe to a pipe-laying location at a point within U.S. territorial waters would be considered coastwise trade and would therefore have to be accomplished by a vessel meeting the statutory requirements entitling it to engage in such trade. See, e.g., HQ 114833 (Apr. 20, 2000). In line with these rulings, your request describes a scenario in which the subject cable will initially be paid out from a dedicated cable vessel (the CLV) onto the seabed of U.S. territorial waters and the OCS. As such, the proposed use of the non-coastwise-qualified CLV to lay cable within U.S. territorial waters and on the OCS would not be in violation of the Jones Act, 46 U.S.C. § 55102. Similarly, we determine that the “wet storage” and subsequent cable installation do not constitute coastwise trade. In relevant part, your request states that the cable may initially be laid up to a certain point along the designated route, either inside U.S. territorial waters or on the U.S. OCS, such as near an offshore substation. Once the cable is ready for attachment, the CLV will return to lift the cable and either connect it to the relevant infrastructure or splice it to an additional section of cable. CBP has previously confirmed that the movement of submarine cable to effect the repair, replacement, or installation of a section of cable does not constitute coastwise trade. See, e.g., HQ H311603 (Aug. 31, 2020). Furthermore, CBP contemplated a situation in which an umbilical would be “cut to the proper length, then abandoned on the seabed, including some additional length, to allow for pulling up to the platform….” See HQ 113711 (Nov. 26, 1996). CBP determined that such an operation, including the initial “abandonment” and eventual cable pull in, would not violate the Jones Act because it still constituted a cable-laying operation. As a result, the movement of the cable to effectuate its attachment to further cable sections or to connect that cable to an offshore structure would not be in violation of the Jones Act, 46 U.S.C. § 55102. HOLDINGS The proposed use of a Cable Burial Tool to create fluidized paths for the underwater cables does not constitute dredging within the meaning of the Dredging Statute, 46 U.S.C. § 55109. The proposed cable placement, wet storage, and installation operations do not constitute coastwise trade within the meaning of the Jones Act, 46 U.S.C. § 55102 and 19 CFR § 4.80b(a).  Sincerely, W. Richmond Beevers, Chief Cargo Security, Carriers, and Restricted Merchandise Branch Office of Trade, Regulations and Rulings U.S. Customs and Border Protection