Dredging; Fluidization; Emulsification; Water Jet; 46 U.S.C. § 55109.

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H322618 March 25, 2022 VES-10-02-OT:RR:BSTC:RRPP H322618 AMW CATEGORY: Carriers Constantine G. Papavizas, Esq. Winston & Strawn, LLP 1901 L Street, NW Washington, DC 20036 RE:     Dredging; Fluidization; Emulsification; Water Jet; 46 U.S.C. § 55109. Dear Mr. Papavizas, This is in reference to your submission, dated December 15, 2021, in which you request, pursuant to 19 C.F.R. § 177, and on behalf of [ ], a ruling pertaining to the application of the Dredging Act of 1906, 46 U.S.C. § 55109 (“Dredging Act”). Specifically, you request a ruling confirming that creation of a submarine trench in conjunction with the burial of subsea power cable by a non-coastwise-qualified vessel both on the U.S. outer continental shelf (“OCS”) and within U.S. territorial waters, would not violate the Dredging Act. FACTS The following facts are from your December 15, 2021, ruling request. [ ] will utilize the non-coastwise-qualified [ ] for a cable burial operation off the coast of [ ] on the U.S. outer continental shelf and U.S. territorial waters for the [ ] (the “Project”)] utilizing the [ ] (the “Device”). The Device is a pulled-sled type implement which will use a water jetting system that includes several water jets placed along a [ ] to fluidize a narrowly sliced, 350 mm wide trench to allow the cable to be buried. “The water jets along the [ ] create a fluidized pathway that the cable then settles into, and the sediment displaced is not placed by the Device but rather settles naturally to cover the cable.” ISSUEWhether the creation of the subject submarine trench by the non-coastwise-qualified vessel violates the Dredging Act, 46 U.S.C. § 55109?  LAW and ANALYSIS 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. CBP has also held, however, that 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 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 . . . .” HQ 113223 (Sept. 29, 1994); see also, HQ H321256 (Nov. 2, 2021) (holding that a tracked device that utilized water jets and a cutting wheel or digging chain for simultaneous laying and burying of cable did not constitute “dredging”). CBP has long ruled that the use of water jets does not constitute “dredging” under the Dredging Act and can be performed by a non-coastwise-qualified vessel in U.S. territorial waters and on the U.S. OCS. See, HQ H311603 (Aug. 31, 2020), HQ 115646 (Apr. 12, 2002) (holding that a “jet plow” consisting of blades and multiple nozzles found not to be “dredging”); HQ H012082 (Aug. 27, 2007) (“holding that jetting action resulting in the emulsification of the seabed surrounding the cable” not “dredging”). 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. Although CBP has previously held that “an underwater sea plow to create a furrow or trench” may constitute “dredging,” see HQ 115580 (Mar. 20, 2002), the water jet to be used in this project, [ ] avers, is not a “plow” (as CBP has used that term) as it does not have any hoe-type or plane-type mechanical aspect and it does not direct bottom material to each side of a trench like a “plow.” The use of the word “plow” in the ruling request, and related brochure, [ ] avers, is not a legal description of the Device, but merely reflects industry usage for all devices used for cable burial including devices which create such pathways entirely by water jets. In support of this averment, you have provided a technical brochure for the Device which indicates the Device will not utilize a physical “plow” or other mechanical device, but will rather fluidize the seabed pathway using a “jetting system.” Based on the foregoing, since the subject cable-burial device employs a jetting action that would emulsify a trench in the seabed where cable will be installed, such activity does not constitute “dredging.” Accordingly, the use of the Device by a non-coastwise-qualified vessel would not violate 46 U.S.C. § 55109. HOLDING The Device that will be used by the vessel to create a trench by fluidizing the seabed using pressurized water jets, without the use of a mechanical plow or cutter, does not constitute dredging within the meaning of 46 U.S.C. § 55109. Sincerely, Lisa L. Burley, Chief Regulatory Reform and Priority Programs Branch Office of Trade, Regulations and Rulings U.S. Customs and Border Protection