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HQ 115972

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April 22, 2003

VES-10-02-RR:IT:EC 115972 CK

CATEGORY: CARRIER

Charles A. Patrizia, Esq.
Paul, Hastings, Janofsky & Walker LLP
1299 Pennsylvania Avenue, NW
10th Floor
Washington, D.C. 20004-2400

RE: Dredging; 46 U.S.C. App. § 292

Dear Mr. Patrizia:

This is in response to your letter dated April 16, 2003 on behalf of your client, [ ] and its members ("the Company"), requesting a ruling regarding a pipelaying/burial project. Our ruling on this matter is set forth below.

FACTS:

The Company is a foreign pipelay and subsea construction company that operates specialized vessels designed in-house to lay pipe and perform other specialized tasks. It has contracted a pipeline installation project that includes, amongst other installation work, the installation of 30-inch oil pipeline in [ ] .

The Company proposes using foreign-flagged, foreign-built vessels for this project. The Company will use a [ ] operated from the non-self propelled pipelay barge, the [ ], to bury the pipe. The [ ] will lay pipe on the seabed surface starting in 10 feet of water and proceeding beyond the territorial waters of the United States. The [ ] will then bury the pipe using the [ ], which will temporarily emulsify the seabed sediment to permit the pipeline to settle through the water column to a resting level at least three feet beneath the seabed. We note your statement that the [ ] will be used exclusively to bury the pipeline the first 12 miles from the U.S. coastline.

The [ ] is suspended from the [ ] crane, and positioned by means of lines controlled by winches on board the [ ]. The bottom of the [ ] rests lightly on the seabed, so that as the winches pull the [ ], it moves along the seabed surface over the pipeline but is not resting on the pipeline. Consequently, the [ ] will follow the path of the pipeline, although it will not touch the pipeline to minimize the risk of damage. You state that because the [ ] will be supported primarily by the crane, the movement of the [ ] as it is pulled along the desired path does not significantly disturb the seabed adjacent to the pipeline.

The [ ] is equipped with jet nozzles which will fluidize the soil and enable the pipeline to sink into the sea bottom by its owns weight to the desired depth through the resulting fluidized sediment. As the [ ] proceeds along the pipeline, the water jets system will be activated and the water jet will be directed underneath the [ ]. The force of the jets will fluidize the sediment, bring it into suspension, and loosen the material underneath the pipeline. The suspended material is moved from alongside and around the pipeline with the assistance of eductor pipes, so as to minimize the dispersal of the fluidized sediments and control the movement into the water column, so that the pipeline will settle through the fluidized material. As the material comes out of suspension, it will settle back onto the bottom covering the pipeline and generally restore the seabed to its prior condition.

The near surface sediments at the location of the proposed activity generally contain soils such as silty sand, sandy silt, clayey silt, and silt. The suspended sediments are not removed from the seabed. The emulsification process, which displaces the sediment temporarily, allows it to return naturally back to the seabed around the pipeline. You state the process does not require any backfill procedure or rock dumping, and the [ ] contains no excavation or trenching arms.

ISSUE:

Whether the use in United States territorial waters of a cable burial device as described in the FACTS portion of this ruling is an engagement in dredging for purposes of 46 U.S.C. App. § 292.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, § 292 (46 U.S.C. App. § 292, the coastwise dredging statute), provides that with one exception not herein applicable, vessels may dredge in the navigable waters of the United States only if they meet the requirements of 46 U.S.C. App. § 883 (i.e., built in and documented under the laws of the United States and owned by persons who are citizens of the United States (i.e., a coastwise-qualified vessel)).

The Bureau of Customs and Border Protection (CBP) has long-held that "dredging" for purposes of 46 U.S.C. App. § 292 is the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material. With respect to the use 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 purposes of the aforementioned statute. (see CBP ruling letter 109412, dated March 29, 1988, published as Customs Service Decision (C.S.D.) 88-7; CBP ruling letter 109882, dated December 2, 1988, published as C.S.D. 89-40; and CBP ruling letter 115646, dated August 12, 2002)

Additionally, as you correctly point out in your ruling request, the proposed pipeline burying activity is virtually identical to the activity that was proposed and analyzed in CBP ruling letter 115823, dated October 28, 2002. In that ruling letter, a similar method of burying the cable, which also employed a jetting action to emulsify the seabed, was proposed and CBP concluded that no "dredging" as defined in 46 U.S.C. APP. § 292 would occur in that project.

Accordingly, in view of the fact that the [ ] attached to the [ ] is essentially the same device performing the same function as those discussed in C.S.D.s 88-7 and 89-40, CBP ruling letter 115646, and particularly CBP ruling letter 115823, we reach the same conclusion in this case. The pipeline burial operation under consideration does not constitute dredging for purposes of 46 U.S.C. App. § 292.

HOLDING:

The use in United States territorial waters of a cable burial device described in the FACTS portion of this ruling is not an engagement in dredging for purposes of 46 U.S.C. App. § 292.

Sincerely,

Glen E. Vereb

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