H300962

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H300962 April 14, 2022 VES-3-02-OT:RR:BSTC:CCR H300962 AMW CATEGORY: Carriers Mr. Constantine G. Papavizas, Esq. Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 RE: Coastwise Transportation; Wind Turbines; Scour Protection; 46 U.S.C. § 55102; 46 U.S.C. § 55103; 46 U.S.C. § 55109; 19 C.F.R. § 4.80a; 19 C.F.R. § 4.80b. Dear Mr. Papavizas: This letter is in response to your ruling request, submitted on September 25, 2018, and revised on February 10, 2021, on behalf of [ ] regarding whether the installation of wind turbine generators and associated activities by non-coastwise qualified vessels over the U.S. outer continental shelf (“OCS”), as described below, would violate the coastwise laws. Our decision follows. FACTS The following facts are from your ruling requests and from subsequent follow-up communications with this office. Your client proposes to transport and install wind turbine generator (“WTG”) units for a project organized by [ ] off the coast of [ ]. You anticipate that the project will begin in early 2023 and will conclude in early 2024. You state that the project will occur in four discrete phases: (1) cable installation, (2) scour protection installation, (3) foundation installation, and (4) installation of the WTG unit itself. You propose that each phase will be conducted by a non-coastwise-qualified vessel. The first phase of the project involves the installation of electrical cable. The offshore wind towers will eventually be integrated into the U.S. power grid via subsea cable connecting each tower to an offshore sub-station or sub-stations, which will in turn be connected to an onshore connection. The cable will be laid by a non-coastwise-qualified cable installation vessel between these points, which you have identified as the [ ] (the “Cable Vessel”). To lay the subject cable, the Cable Vessel will deploy a trenching machine that will both create a narrow trench and simultaneously place the cable in that trench. You state that the Cable Vessel will utilize the [ ] (the “trenching machine”). The trenching machine will create a narrow trench using water jets and a “cutter” while laying the cable in the trench. Following this, the sediment created by this process will naturally cover the trench without further action from the trenching machine. The cable will either arrive on board the Cable Vessel from a foreign destination or via another non-coastwise-qualified vessel from a foreign destination. In the latter case, the cable will be loaded onto the Cable Vessel either in a U.S. port or at sea within or outside U.S. territorial waters. After the cable is laden onto the Cable Vessel, the vessel will lay the cable on the seabed in both U.S. territorial waters and on the pristine seabed of the U.S. OCS for storage and subsequent pick up by either a near-shore Jones Act-qualified barge or a non-coastwise-qualified cable installation vessel. Some of the cable laid down on the seabed either within U.S. territorial waters or on the OCS may be picked up and laid down again. Specifically, the cable will be picked up so that it can either be connected to another section of cable or to make the final connection to an offshore structure. In circumstances in which the cable is connected to another section of cable, the cable will be raised to the Cable Vessel to make the connection before being returned to the seabed as close as possible to its original location. Once the cable is attached to the relevant offshore structure or onshore point, the cable will not be moved. After the cable placement has been finalized, your request states that concrete mats or other protective material may be placed over the submarine cable by a yet-to-be-identified non-coastwise-qualified vessel at points at which cables cross or because of undersea sand dunes. You have provided four potential scenarios by which the cable-protection material will be transported and placed over the cable: (1) material of foreign origin will be loaded at a foreign port to be transported by a non-coastwise-qualified vessel to the cable site; (2) material of foreign origin will be laded onto a non-coastwise-qualified vessel at a U.S. port from another non-coastwise-qualified vessel tied up to a dock and transported to the cable site; (3) material of foreign or U.S. origin will be delivered to a U.S. on-shore facility and then later laded at a U.S. port onto non-coastwise-qualified vessel to be transported to the cable site; (4) material of foreign origin will be transported by a non-coastwise-qualified vessel from a foreign port and then transferred offshore to a second non-coastwise-qualified vessel floating beyond U.S. territorial waters before being transported to the cable site. The second phase of the project involves the installation of “scour protection” materials at each wind turbine site on the seabed of the OCS. Specifically, each wind turbine foundation will be protected by scour protection, which will consist of rock material placed on the seabed to prevent scour (i.e., erosion of the sand) around the tower foundation. Either a single or double layer of scour protection will be applied. You have identified three non-coastwise-qualified vessels that may be used to install the subject scour protection (the “Scour Vessel”), [ ]. As with the placement of cable-protection material, you state that one of the four scenarios outlined above will be utilized for the placement of scour protection (e.g., the scour protection material may be either transported directly from either a foreign destination or indirectly from a foreign destination where it would be first delivered to a U.S. port or a non-coastwise-qualified vessel in a U.S. port tied alongside a berth or anchored in U.S. territorial waters). In each scenario, the Scour Vessel will install the scour protection onto the seabed by dumping it onto the installation site to form a circular pattern. The Scour Vessel will install one or two layers of scour protection as needed at each site. In the event a second layer is needed, an additional layer of larger rocks will be dumped around the foundation pile after the foundation pile is driven into the seabed. No preparatory work will be performed prior to the initial placement of the scour protection material at each WTG site. The third phase of the project involves the installation of a pile or piles that will serve as each turbine’s foundation. In this phase, a non-coastwise-qualified vessel (the “Foundation Installation Vessel”) will drive a pile (in the case of a monopile foundation) or piles (in the case of a jacket foundation) into the seabed. The pile or piles will either arrive on board the Foundation Installation Vessel from a foreign destination or will be brought to the installation vessel by a coastwise-qualified feeder vessel from a U.S. port. Throughout the installation process, the Foundation Installation Vessel will remain stationary once it receives a component, whether that be by jacking up if it is a jack-up vessel or by maintaining position through dynamic position or anchoring. You have identified two non-coastwise-qualified vessels that may be used as a Foundation Installation Vessel: [ ]. In the fourth and final phase, [ ] will utilize a non-coastwise-qualified vessel to install the WTG units onto the pile (the “Turbine Installation Vessel”). Similar to the installation of the foundation, the WTG components (e.g., transition pieces and anode cages, nacelle, and blades) will either arrive on board the Turbine Installation Vessel from a foreign destination or will be transported to the vessel by a coastwise-qualified feeder vessel from a U.S. port. In the event a feeder vessel is not used, the components will be laden at a U.S. port onto a coastwise-qualified barge that will be towed by a coastwise-qualified tug or tugs and subsequently offloaded onto the

Your request presents eight separate issues as outlined above. This ruling analyzes each below.Issue One: Whether the use of the trenching machine to create a path along the seabed in which to place the cable constitutes a violation of the coastwise 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 endorsementDredging 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 (to include its predecessor, the U.S. Customs Service) has consistently 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 nevertheless held that the use of certain devices to create underwater trenches for the purpose of cable laying does not constitute “dredging.” In particular