HQ 0109366 - Applicability of dredging law, 46 U.S.C. App. 292, to cable laying operations in United States territorial waters - United States International Trade Commision Rulings

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HQ 109366

March 31, 1988

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

CATEGORY: CARRIER

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.

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.

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

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