Undersea Cable Laying; 46 U.S.C. § 55102; 46 U.S.C. § 55103; 46 U.S.C. § 55109; 19 C.F.R § 4.50(b); 19 C.F.R. § 4.80.

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H321256 November 2, 2021 VES-3-02-OT:RR:BSTC:CCR H321256 DMK CATEGORY: Carriers Mr. Charlie Papavizas, Esq. Winston & Strawn LLP 1901 L Street, N.W. Washington, DC 20036 RE: Undersea Cable Laying; 46 U.S.C. § 55102; 46 U.S.C. § 55103; 46 U.S.C. § 55109; 19 C.F.R § 4.50(b); 19 C.F.R. § 4.80. Dear Mr. Papavizas: This letter is in response to your October 12, 2021 ruling request on behalf of your client [ ] regarding whether certain activities related to the installation of telecommunications cable by a non-coastwise qualified vessel in U.S. territorial waters, as described below, would violate the coastwise laws. Our decision follows. FACTS The following facts are from your ruling request and supporting information received in our office on October 12, 2021 and October 18, 2021. Your client has requested U.S. Customs and Border Protection (“CBP”) determine whether certain operations related to the installation of telecommunications cable in U.S. territorial waters off the coast of [ ] would violate the Jones Act, 46 U.S.C. § 55102, and the Dredging Act of 1906 (the “Dredging Statute”), 46 U.S.C. § 55109. You state the proposed operation is intended to provide telecommunications between the United States [ ] and Europe [ ]. As such, [ ] has entered into a contract to lay and bury the cable. [ ] proposes to use the non-coastwise-qualified [ ] (the “Vessel”), a cable laying vessel employing a self-propelled cable burial tool, to perform the operation. The Vessel will be laden with cable segments in [ ] and proceed to the landfall site where it will begin laying and burying the cable. You have provided the exact coordinates for the cable lay operation, including the cable’s landfall point. When the project is complete, the Vessel will leave U.S. waters and discharge any remaining cable at a foreign location. Your request describes the cable burial as involving a “proprietary self-propelled cable burial tool” [ ] to simultaneously lay the cable and bury it for protection in certain locations. You state that the [ ] utilizes caterpillar tracks and is tethered to the Vessel. The tool is equipped with water jets and jetting nozzles to fluidize the soil and utilizes a cutting wheel or digging chain to cut through hard sediment and rock. The [ ] can open a trench up to 350 mm wide and up to 2.3 m deep. After the cable is laid, the displaced soil partially subsides and collapses into the trench, partly burying the cable. The Vessel will enter and leave US waters with its marine crew. Additionally, six specialized technicians will join the Vessel at a US port, and either be returned to the same port after the Vessel goes beyond US territorial limits or stay on board and leave the vessel at a Canadian port. These technicians will be [ ] citizens and are necessary to the operation of the cable burial device. ISSUES Whether the subject cable laying operation by the non-coastwise-qualified vessel violates the Jones Act, 46 U.S.C. § 55102? Whether the subject cable burial operations by the non-coastwise-qualified vessel violates the Dredging Statute, 46 U.S.C. § 55109? Whether the subject transportation of individuals onboard the non-coastwise-qualified vessel violates the Passenger Vessel Services Act, 46 U.S.C. § 55103? LAW AND ANALYSIS Generally, the coastwise laws prohibit the transportation of merchandise 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.” Issue One: Whether the Cable Laying Operation Violates 46 U.S.C. § 55102 First, we determine whether the cable laying operations violate the Jones Act, 46 U.S.C. § 55102. 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. The coastwise law applicable to the transportation of merchandise, the Jones Act, is found at 46 U.S.C. § 55102, and 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). First, we find that the proposed cable laying operations do not constitute “transportation” within the meaning of the Jones Act. CBP has long held that the sole use of a vessel in laying pipe or cable is not considered a use in the coastwise trade of the United States, even when the pipe or cable is laid between coastwise points. See, e.g., HQ H311603 (Aug. 31, 2020), HQ 115431 (Sept. 4, 2001), HQ 115333 (Apr. 27, 2001). The fact that the material is not laded as cargo but is only paid out in the course of the laying operation makes such operation permissible. Id. 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. In line with these rulings, your request outlines a scenario in which the subject cable will be paid out from a static cable tank and deposited via a gantry cable way. As such, the proposed use of the non-coastwise-qualified vessel to lay cable between coastwise points is not in violation of 46 U.S.C. § 55102. Second, we find that the discharge of excess cable at a foreign location does not violate the Jones Act. Since the excess cable is to be unladed at a foreign location, the fact that it was laded at a coastwise point is of no consequence for the purposes of this ruling. There is no coastwise movement, and consequently no violation of 46 U.S.C. § 55102. Issue Two: Whether the Cable Burial Operation Violates 46 U.S.C. § 55109 Next, we determine whether the proposed cable burial operation is in violation of the Dredging Statute, 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, CBP has also held that the use by cable-laying vessels of cable-burial devices employing a jetting action resulting in the emulsification of the seabed surrounding the cable does not constitute an engagement in “dredging.” See, e.g., HQ H311603 (Aug. 31, 2020) and HQ 115646 (Apr. 12, 2002). In the present matter, you have provided evidence that the trenching system deployed by the vessel will fluidize the seabed by use of pressurized water jets alongside a cutting wheel or digging chain to cut through hard sediment or rock. The trenching system will not use a mechanical hoe or plow. This activity, as ruled in HQ H311603 (Aug. 31, 2020) and HQ 115646 (Apr. 12, 2002), is therefore not within the ambit of 46 U.S.C. § 55109. Accordingly, the proposed operation does not constitute dredging for the purposes of the Dredging Statute. Issue 3: Whether Moving the Specialized Technicians Violates 46 U.S.C. §55103 Finally, we determine whether transporting the six specialized technicians, either from a US port to international waters and back to the same US port or to a Canadian port is in violation of the Passenger Vessel Services Act, 46 U.S.C. §55103. Pursuant to 46 U.S.C. §55103 only coastwise-qualified vessels may transport passengers in the navigable waters in the United States, provided, in pertinent part: […] a vessel may not transport passengers between ports or places 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. The applicable regulation at 19 CFR § 4.50(b) defines a passenger as “any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.” CBP has previously ruled that the transportation of passengers to the high seas and back to the point of embarkation is a “voyage to nowhere” and does not violate 46 U.S.C. § 55103. See, e.g., HQ H021838 (Jan. 24, 2008), HQ H014892 (Aug. 17, 2007), and HQ 113379 (Mar. 23, 1995). Consequently, the proposed transportation of the six specialized technicians, provided it either fits the definition of a voyage to nowhere or the technicians disembark at a foreign port without disembarking at a US port first is not a violation of 46 U.S.C. § 55103. Additionally, in accordance with previous CBP rulings, technicians transported between coastwise points are not classified as “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b) if they are required to be onboard to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are onboard because of a necessary vessel ownership or business interest during the voyage. See, e.g., HQ H311603 (Aug. 31, 2020), HQ H183157 (Sept. 2, 2011), HQ H168214 (May 26, 2011). In the present case, you state that the individuals will join the vessel to operate the cable burial device. We find that the proposed activities described in your request would be directly and substantially connected with the operation of the Vessel and the technicians will be onboard because of a necessary business interest. We therefore determine that the subject individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b). HOLDING The proposed cable laying operations by a non-coastwise-qualified vessel do not constitute “transportation” within the meaning of the Jones Act, 46 U.S.C. § 55102. Therefore, the proposed operation is not in violation of the Jones Act. The proposed use of the trenching system to bury the underwater cable does not constitute “dredging” within the meaning of the Dredging Statute, 46 U.S.C. § 55109. Therefore, the proposed trenching operation is not in violation of the Dredging Statute. The subject individuals are not “passengers” within the meaning of the Passenger Vessel Services Act, 46 U.S.C. § 55103 and the proposed transport is either a voyage to nowhere or does not involve coastwise transportation. Therefore, the transportation of such individuals is not in violation of the Passenger Vessel Services Act. Sincerely, W. Richmond Beevers Chief, Cargo Security, Carriers and Restricted Merchandise Branch Office of Trade; Regulations and Rulings U.S. Customs and Border Protection