H309186

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H309186 January 27, 2021 VES-3-02-OT:RR:BSTC:CCR H309186 AMW CATEGORY: Carriers Mr. Michael H. Wray Ms. Courtney Campion Holman Fenwick Willan USA LLP 5151 San Felipe, Suite 400 Houston, Texas 77056 RE: Coastwise Transportation; Coastwise Towing; Scour Protection; 46 U.S.C. § 55102; 46 U.S.C. § 55111; 19 CFR § 4.80(b). Dear Mr. Wray and Ms. Campion: This letter is in response to your February 12, 2020 ruling request on behalf of your client Great Lake Dredge and Dock regarding whether the transportation of scour protection rocks on 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 February 12, 2020 ruling request and supporting information submitted to this office on March 23, 2020. Your client, Great Lake Dredge and Dock (“Great Lake”) has proposed to transport and unlade “scour protection” materials to protect wind turbine generator (“WTG”) foundations in conjunction with the construction of the Vineyard Wind Project located on the OCS off of the southeast shore of Martha’s Vineyard, an island that is part of the State of Massachusetts. The Vineyard Wind Project is described in the ruling request as an offshore wind energy farm that is expected to consist of approximately 84 WTGs. Each installed WTG will consist of a tower and nacelle unit attached to a monopile foundation that is embedded in the seafloor. Each WTG foundation will have scour protection composed of rock or similar material, which will prevent sediment erosion and protect against increased seabed drag caused by the placement of the foundation. The scour protection will be unladed at the WTG sites on the OCS in layers and at different phases of the WTG installation process. The radius of scour protection surrounding each monopile will be approximately 22-26 meters (72-85 feet) and one to two meters high (3-6 feet). The ruling request states that a combination of coastwise and non-coastwise-qualified vessels will be used to install the scour protection. Specifically, the non-coastwise-qualified, Netherlands-flagged M/V FLINTSTONE (the “Scour Vessel”) will be used to install scour protection throughout the Vineyard Wind Farm. The ruling request also states that the operation will take place between February 2023 and December 2023 and outlines seven potential scenarios, “A” through “G,” which describe how the scour protection may be installed: Scenario A: The scour protection will be laden onto the Scour Vessel at the Port of Providence, Rhode Island and transported to the project site on the OCS. The Scour Vessel will then unlade the scour protection onto the seabed prior to the installation of each monopile. After unlading each load of scour protection, the Scour Vessel will return to the Port of Providence (or potentially another U.S. port) to lade additional scour protection. This process will be repeated at each installation area within the project site. Scenario B: The Scour Vessel will unlade a second layer of scour protection after the initial layer of scour protection is applied and the monopile is installed into the seabed. The procedure to unlade the scour protection will otherwise be the same as described in Scenario A (i.e., transportation of scour protection from Providence to each WTG site). Scenario C: After the WTGs are fully installed and operational, Scour Protection will be periodically reapplied as part of routine maintenance. The procedure to lade and unlade the scour protection will be the same as described in Scenario A. Scenario D: The Scour Vessel will unlade the scour protection in the same manner and at the same locations during the installation phase and post-construction phase as described in scenarios A, B, and C, except that the scour protection will be laden onto the vessel in Canada. The Scour Protection vessel will return to Canada to replenish the scour protection as needed. Scenario E: The scour protection will be laden onto the non-coastwise-qualified, Panama-flagged BULK FRIENDSHIP (the “Bulk Carrier”) in Canada and transported to the project site or an alternative site within U.S. territorial waters. After the Bulk Carrier arrives at the Project Site or a site within U.S. territorial waters, the Bulk Carrier will anchor to the seabed and serve as a floating storage platform. The Scour Vessel will apply the scour protection in the same manner and at the same locations as described in scenarios A, B, C, and D, except that instead of transporting the scour protections from either a foreign or U.S. mainland point of lading, the Scour Vessel will lade scour protection from the anchored Bulk Carrier located within U.S. territorial waters. Scenario F: In lieu of the Scour Vessel, a non-coastwise-qualified, foreign-flagged installation barge (the “Barge”) will be laden with scour protection and towed by coastwise-qualified tug boats from the Port of Providence to the project site on the OCS to install scour protection as described in scenarios A, B, and C above. Scenario G: The Barge will be used as described in scenario F with the exception that it will be towed to the installation site on the OCS by non-coastwise-qualified tug boats to install scour protection. ISSUES Whether the transportation of the subject scour protection as described in each of the scenarios above violates the Jones Act, 46 U.S.C. § 55102? Whether the use of non-coastwise-qualified and coastwise-qualified tug boats to transport a barge carrying scour protection violates 46 U.S.C. § 55111? LAW AND ANALYSIS The coastwise law applicable to the transportation of merchandise, known as the Jones Act, is found at 46 U.S.C. § 55102, and provides in pertinent part: Except as otherwise provided in this chapter or chapter 121 of this title, 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— is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. The coastwise laws apply, in part, 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. In addition, Section 4(a)(1) of the Outer Continental Shelf Lands Act of 1953 (“OCSLA”), as amended by The William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, H.R. 6395, 116th Cong. § 9503 (2021), provides that the Constitution and laws and civil and political jurisdiction of the United States extend to: the subsoil and seabed of the outer Continental Shelf; all artificial islands on the outer Continental Shelf; installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources, including non-mineral energy resources; or any such installation or other device (other than a ship or vessel) for the purpose of transporting or transmitting such resources. (emphasis added). Issue One: Transportation of Merchandise (Scenarios A through E) 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, a State, or a subdivision of a State; and (2) valueless material.” Prior CBP rulings have interpreted this definition of “merchandise” to include rocks and dre