H346762

H346762 July 3, 2025 OT:RR:BSTC:CCR H346762 KAM CATEGORY: Carriers Ms. Emily Huggins Jones Troutman Pepper Locke LLP 401 9th Street, NW Suite 100 Washington, DC 20004 RE: Coastwise Transportation; Undersea Cable Laying; Dredging; 46 U.S.C. § 55012; 46 U.S.C. § 55109. Dear Ms. Jones: This responds to your March 14, 2025, letter and supplements (collectively the “ruling request”) in which you request a ruling on behalf of your client, [ ] (“the Company”) determining that the proposed use of cable lay and burial equipment to effect the installation of electric transmission cables would not violate the Jones Act, 46 U.S.C. § 55012, or the Dredging Statue, 46 U.S.C. § 55109.1 Our decision follows. FACTS: The following facts are taken from your ruling request. CBP issued ruling [ ] ] to the Company regarding a proposed operation to install two solid state high 1 You have asked this office for confidential treatment of all information contained in brackets, which includes your client’s name. CBP Regulations at 19 C.F.R. § 177.2(b)(7) provide that the requester of a ruling from our office may ask that privileged or confidential commercial or financial information supplied for purposes of preparing the requested ruling not be disclosed. Such requests will be considered if the information is clearly identified and the reasons for requesting that information not be disclosed are provided. If this office receives a Freedom of Information Act request for your submission, Regulations at 6 C.F.R. § 5.12, et seq. regarding the disclosure of business information provide that the submitter of business information will be advised of receipt of a request for such information whenever the business submitter has in good faith designated the information as commercially or financially sensitive information. We accept your request for confidential treatment as a good faith request. 1 voltage direct current electric power transmission cables in [ ], New York State waters (“the Project”).2 The Project contemplated in [ ] used a variety of vessels to complete the work, including two cable lay vessels and one trenching support vessel (“TSV”).3 The Project also required the use of several remotely operated vehicles (“ROVs”) and several cable burial tools equipped with water jetting systems that use high-pressure water jetting action to temporarily liquify the seabed, creating a depression in4 to which the cable would be laid on the seafloor. Our ruling [ ] held that the proposed cable laying and burial operations did not constitute dredging within the meaning of the Dredging Statute, 46 U.S.C. § 55109, nor coastwise trade within the meaning of the Jones Act 46 U.S.C. § 55102 and 19 C.F.R. § 4.80b(a). The Project was intended to be completed in five phases.5 Since CBPs , the Company has completed 3 of the 6 issuance of ruling [ ] Phases 1- begin Phases 4 and 5 of the Project starting in July 2025.7 Project. The Company intends to You state that the remaining work will be divided into two parts: • Part One: As described in [ ], the Cable Lay Vessel will pay out electric transmission cable and lay it along the [ ] riverbed. Beginning in July 2025, Trenching Support Vessel 2 will be employed, along with Remedial Burial Tool 5, (and alternately Remedial Burial Tool 2) to bury the surface-laid cable installed by Cable Lay vessel 2 using high-pressure water jets to fluidize the riverbed, which allows the cable to settle into the trench created by the jetting tool. The soil fluidized by Remedial Burial Tool 5 will naturally settle over the buried cable, and no riverbed material will be removed. • Part Two: Beginning in September 2025, Trenching Support Vessel 2 will be deployed, along with Remedial Burial Tool 5 (and alternately Remedial Burial Tool 2), to bury cable that was previously surface-laid by Cable Lay Vessel 1 and Cable Lay Vessel 2 during the now completed 2024 Project Phases. The technology and methodology used for Part Two will be the same process described above in Part One.8 The Replacement Vessels and Tools Due to “vessel and equipment availability developments,” the Company’s subcontractor seeks to substitute new equipment for the trenching support vessel, [ remedial burial tools [ ], that were previously ruled upon by CBP.9 ] and one of the You ask us to approve the two replacement pieces of equipment, which will use the same methodology and will be employed for the same purpose as those they will replace, which were originally in the subjects of our ruling [ ]. You state that both replacement pieces of equipment use 2 [ ] – Ruling Request - at 1. 3 Id. at 2. 4 Id. 5 Id. 6 Id. at 1, 2. 7 Id. at 2. 8 Id. at 3. 9 Id. at 2. 2 the same methodology and will be employed for the same purpose as in the Initial Ruling Request.10 The replacement vessel, [ ], is a Greek-flagged trenching support vessel (“Trenching Support Vessel 2”) and is functionally equivalent to the TSV it will replace [ ] (“Trenching Support Vessel 1”).11 You state Trenching Support Vessel 2 will complete the work of Phase 4, and other work previously ruled upon in [ ].12 The second replacement tool, [ 13 ] (“Remedial Burial Tool 5”), will replace [ ] (“Remedial Burial Tool 3”). Remedial Burial Tool 5 will be the functional equivalent of Remedial Burial Tool 3. Regarding other departures from the initial ruling [ ], you state: In the Initial Ruling Request, the work described in Phase 4 and Phase 5 included Cable Lay Vessel 2 (the “[ ]”) burying cable with the use of Burial Tool 1 (the “[ ]”) as well as surface laying cable that would then be buried using one or more of the remedial burial tools previously approved for use during the 2024 work (e.g., the [ ]). The work described in Part One and Part Two of the current March 14, 2025 Ruling Letter Request does not contemplate the use of Burial Tool 1. During Part One and Part Two of the 2025 work, all of the cable will be surface laid by Cable Lay Vessel 2. The surface-laid cable will subsequently be buried by Remedial Burial Tool 2 (the [ ]) or the Replacement Tool. The remedial burial tools will be deployed from either Cable Lay Vessel 2 (the “[ ]”), approved in the Initial Ruling Request, or Trenching Support Vessel 2 (the “[ ]”), the new vessel discussed in our March 14, 2025 Ruling Letter Request, which will replace the [ ].14 Otherwise, the work described in the ruling request does not differ from the work described in [ ]. ISSUE: 1. Whether the proposed use of cable lay and burial equipment as described above would violate the Jones Act, 46 U.S.C. § 55012. 2. Whether the proposed use of cable lay and burial equipment as described above would violate the Dredging Statue, 46 U.S.C. § 55109. 10 Id. 11 Id. 12 Id. 13 Id.; RFI 5-8-25. 14 Email dated May 8, 2025. 3 LAW AND ANALYSIS: The Jones Act The coastwise law applicable to the transportation of merchandise, often referred to as “the Jones Act,” is found at 46 U.S.C. § 55102,15 and provides that: (b) Requirements. Except as otherwise provided in this chapter or chapter 121 of this title [46 U.S.C. §§ 55101 et seq. or 12101 et seq.], 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- - (1) is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and (2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 [46 U.S.C. §§ 12101 et seq.] or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. The Jones Act specifically prohibits the coastwise transportation of “merchandise” between coastwise points by non-coastwise qualified vessels. Pursuant to 46 U.S.C. § 55102(a): “[m]erchandise includes (1) merchandise owned by the United States Government,16 a State, or a subdivision of a State; and (2) valueless m

The Jones Act The coastwise law applicable to the transportation of merchandise, often referred to as “the Jones Act,” is found at 46 U.S.C. § 55102,15 and provides that: (b) Requirements. Except as otherwise provided in this chapter or chapter 121 of this title [46 U.S.C. §§ 55101 et seq. or 12101 et seq.], 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- - (1) is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and (2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 [46 U.S.C. §§ 12101 et seq.] or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. The Jones Act specifically prohibits the coastwise transportation of “merchandise” between coastwise points by non-coastwise qualified vessels. Pursuant to 46 U.S.C. § 55102(a): “[m]erchandise includes (1) merchandise owned by the United States Government,16 a State, or a subdivision of a State; and (2) valueless material.” 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.”17 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 term “territorial waters” is defined in regulation as synonymous with the term “navigable waters,” and encompasses both the U.S. territorial sea and U.S. internal waters. CBP has long held that the sole use of a vessel in laying pipe or cable between two coastwise points is not consid