H309672

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H309672 July 15, 2020 VES-3-02-OT:RR:BSTC:CCR H309672 AMW CATEGORY: Carriers Mr. John Giffin, Esq. Keesel, Young & Logan 400 Oceangate Long Beach, California 90802 RE: Coastwise Transportation; Wind Turbines; 46 U.S.C. § 55102; 46 U.S.C. § 55103; 19 C.F.R. § 4.80a; 19 C.F.R. § 4.80b. Dear Mr. Giffin: This letter is in response to your February 20, 2020 ruling request on behalf of your client Maersk Supply Services (“Maersk”) regarding whether the installation of wind turbine generators by a non-coastwise qualified vessel in U.S. territorial waters, as described below, would violate the coastwise laws. Our decision follows. FACTS The following facts are from your February 20, 2020 ruling request and supporting information submitted on May 22, 2020, June 4, 2020, and July 13, 2020. Your client proposes to transport and install wind turbine generator (“WTG”) units for a project organized by Vineyard Wind LLC (“Vineyard Wind”). You state that the subject installation operations will occur at two sites located in U.S. territorial waters off the coast of Rhode Island and Massachusetts. The proposed installation will be conducted by a coastwise-qualified tug and barge (the “Tug and Barge”) and a non-coastwise-qualified, Danish-flagged jack up vessel (the “Jack Up Vessel”). Prior to installation, the Jack Up Vessel and its crew will arrive in U.S. territorial waters from Singapore, secure itself to the seabed at the first installation site, and jack up to installation height. After the Jack Up Vessel establishes itself at the installation site, the Tug and Barge will transport the WTG components from a port in the United States (likely one of Bridgeport, Connecticut; Staten Island, New York; or Coeymans/Albany, New York) to the Jack Up Vessel, which will be grounded in U.S. territorial waters. The WTG components will be secured for transport on board the Barge in a [ ]. Each WTG unit will consist of a tower (in one or more pieces), a nacelle, and three blades. The Jack Up Vessel will not transport WTG components between installation sites, but will carry certain installation tools as outlined below. Upon arriving at the Jack Up Vessel, the Tug will push the Barge into a “notch” located on the Jack Up Vessel. [ ] onto its deck. In addition, there will be a second, [ ] on the deck of the Jack Up Vessel when the Tug and Barge arrive. Once the [ ] is placed on the deck of the Jack Up Vessel, the Jack Up Vessel will use its crane to lower the [ ] onto the Barge. The Tug will then pull the Barge clear from the Jack Up Vessel and the Tug and Barge will return to a U.S. port where additional wind turbine components will be placed in [ ] for delivery to the project site. After receiving WTG components from the Tug and Barge, personnel onboard the Jack Up Vessel will utilize the vessel’s crane to install the WTG units onto pre-constructed turbine foundations. The Jack Up Vessel will remain stationary on the seabed via retractable legs throughout this process. Once each WTG is installed, the Jack Up Vessel will lower itself into the water and proceed to the next foundation location where it will jack up to installation height and repeat the same process. To accomplish the installation efforts described above, you state that the Jack Up Vessel will take on a variety of tools and other items, which will be delivered by the Tug and Barge. We note that you have also provided a comprehensive list of the subject installation tools and materials. Other than the wind turbine components, the Tug and Barge will also transport secondary items to the Jack Up Vessel, including: (1) a waste skip for waste generated by daily vessel operations; (2) a container with all parts, materials, and consumables necessary for the mechanical completion and installation of each wind turbine; and (3) provisions and spare parts for the Jack Up Vessel, which will be transported by the Barge in a separate container from [ ]. You state that a subset of the parts and materials will be transported by the Jack Up Vessel between installation sites and carried onto each WTG site by the installation crew. These materials will include the following: Bolt handling tools (e.g., spanners and sockets, hydraulic hoses and pumps/powerpacks, toolboxes, and bolt grippers); Hand tools (e.g., torque wrenches, sockets, screwdrivers, cordless drills, pliers, clippers); Containers and bags (e.g., cleaning products, lifting bags, lashing straps, waste bags); Personal protection equipment (e.g., gloves, glasses, safety vests, hard hats, first aid equipment, harnesses and fall-protection devices, carabiners and other light connecting devices, ropes, and rope bags); Hand washing material, rags and cleaning clothes, bags for dirty rags, biohazard bags, and other single-use items; and Food and drinks for the installation crew. Finally, you state that approximately 28 “installation crewmembers” will be transported to the Jack Up Vessel for the purpose of assembling and constructing the WTG units. The installation crew will not arrive in U.S. waters onboard the Jack Up Vessel; rather, these individuals will be transported to the vessel from a U.S. port via either a coastwise-qualified vessel or a U.S. registered, operated and crewed helicopter. You state that each member of the installation crew will remain onboard the vessel for approximately three weeks at a time and that the Jack Up Vessel will not transport members of the installation crew between WTG installation sites. Prior to installing each WTG unit onto the seafloor, the installation crew will work onboard the Jack Up Vessel to prepare the WTG unit for lifting and installation onto its foundation. Once each WTG component is lifted onto its foundation, a small number (approximately four to five individuals) will go onboard the wind turbine via a gangway to complete the installation. ISSUES Whether the transportation and installation of the subject wind turbine generators from a U.S. port to a stationary Jack Up Vessel located in U.S. territorial waters violates the Jones Act, 46 U.S.C. § 55102? Whether transportation of certain tools and material between coastwise points violates the Jones Act? Whether the transportation of the installation crew between coastwise points violates the Passenger Vessel Services Act, 46 U.S.C. § 55103? LAW AND ANALYSIS Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.” As outlined in your request, we understand that the subject Jack Up Vessel is not coastwise-qualified. Issue One: Whether the Installation of the Wind Turbines Violates 46 U.S.C. § 55102 First, we consider whether the installation of the WTGs by the non-coastwise-qualified Jack Up Vessel violates the Jones Act, 46 U.S.C. § 55102. The coastwise laws, including the Jones Act, 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 coastwise law applicable to the transportation of merchandise 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