H311602

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H311602 March 25, 2022 VES-3-02-OT:RR:BSTC:CCR H311602 AMW CATEGORY: Carriers Mr. Constantine G. Papavizas, Esq. Winston & Strawn LLP 1901 L Street, NW Washington, DC 20036 RE: Coastwise Transportation; Undersea Cable Laying; 46 U.S.C. § 55102; 46 U.S.C. § 55109; 19 CFR § 4.80b; Outer Continental Shelf Lands Act; 43 U.S.C. § 1333(a)(1). Dear Mr. Papavizas: This letter is in response to your June 9, 2020, ruling request on behalf of your client [ ] regarding whether certain activities related to the installation of electric transmission cable by a non-coastwise-qualified vessel would violate the coastwise laws. Our decision follows. FACTS The following facts are from your ruling request and supporting information submitted on June 26, 2020, July 2, 2020, July 8, 2020, August 11, 2020, August 17, 2020, and March 10, 2022. The subject non-coastwise-qualified [ ] (the “Cable Lay Vessel” or “CLV”), deploying a specialized piece of equipment, will both create a fluidized path for and subsequently place and install two electric cables on the seabed in U.S. territorial waters and along the seabed of the outer continental shelf (“OCS”) off the coast of the U.S. state of [ ]. You have provided a complete list of coordinates for the subject cable route, which will run from a landfall point in [ ] to an offshore wind energy platform on the OCS off of [ ]. The first phase of your proposal is described as a “pre-rip” preparatory operation in which the non-coastwise-qualified [ ] (the “Cable Lay Vessel” or “CLV”), deploying a specialized piece of equipment, will fluidize the seabed along the path that the subject cable will be placed. During this stage, the CLV will utilize a water jet sled [ ] (the “Water Jet Sled”), which will be dragged along the seabed to fluidize the subsea path in which the cable will be placed. In doing so, the Water Jet Sled will create space to bury the cable at a depth of between 1.2 meters to 8 meters while the width of the path will vary between 0.5 to 1 meter, dependent on soil condition. The Water Jet Sled will use pressurized water jets to fluidize the seabed, functioning without the use of a mechanical plow or cutter to create a trench. In the second phase, the subject cables will be placed on the seabed along the fluidized path created during the “pre-rip” stage. To start, the cable will be laden on board the CLV in Germany or Sweden and transported to U.S. territorial waters. At the beginning of this phase, the CLV will situate itself near the cable’s landfall point and launch the Water Jet Sled from its stern. At this time, the CLV will also deploy either a remotely operated vehicle, divers, or its own crane to retrieve a “messenger wire” that will be used to bring the pull-in wire from shore to the CLV. The CLV will then proceed along the cable’s path placing the subject cable along the seabed, utilizing the Water Jet Sled to simultaneously place the cable and further enhance the seabed path. While placing the cable, the CLV will periodically conduct “remedial post-burial work” at locations at which the cable crosses third-party assets or other areas where the cable cannot be buried utilizing the Water Jet Sled. At these locations, the CLV will raise the Water Jet Sled to its deck and deploy either the [ ]. Each of these devices is a free-hanging jetting tool that operates from the CLV’s stern crane, employing water pressure jets to fluidize the seabed to bury the cable without the use of a mechanical plow or cutter. The above-described process will be repeated for the installation of the second cable. Although the “pre-rip” and cable placement phases will occur in 2023 or 2024, the platform to be serviced by the cable may not be installed for up to two years after this operation. As such, you have clarified that the cable placement stage of the operation is intended to attach one cable end to shore and the other near the future platform site, where the cable will remain in “temporary storage” until the platform is eventually completed. Specifically, you state that “the cable end is planned to be temporary [sic] laid down on the seabed for temporary storage waiting for the platform to be installed in its final position.” The third phase of your proposal, described as the “late pull-in operation,” will occur when the cable is eventually connected to the finished platform. According to your submission, the CLV will perform the following steps to complete the late pull-in operation: Lower a cable quadrant to the seabed (i.e., a half-circle-shaped device used to hold and move submarine cable); Hook a crane wire to the end of the submarine cable end; Lift the cable end from the seabed while maneuvering into position for the cable to enter the cable quadrant; Move the cable end to the platform entrance and lower it to the seabed; The platform’s winch wire is connected to the cable end and the CLV’s crane wire is disconnected from the cable end; The CLV transits to the cable quadrant and hooks its crane wire to the quadrant; The CLV’s crane lifts the quadrant with the cable hanging down on either side of the quadrant; The platform’s winch pulls in the cable end to the platform while the CLV’s crane lowers the cable quadrant to the seabed; The CLV retrieves the cable quadrant to its deck and departs from the installation site. Finally, you state that the CLV or a yet-to-be-named foreign-flagged vessel may conduct inspection and repairs on the submarine cable as necessary. If inspection and repair is needed, you note that it would involve the following steps: De-burial of the cable using an [ ] type of water jetting tool; Cutting the unburied portion of cable; Lifting one of the cable ends and sealing it to prevent water ingress and laying it back on the seabed; Lifting the other cable end to the vessel’s deck, cutting away the damaged portion, and splicing in replacement cable; Laying down the splice with the new cable part’s first end and the second end still on the vessel; Lifting up the first end of the existing cable from the seabed and splicing it to the new cable part; Laying down the replacement cable, which will be paid out from a cable spool or similar device, on the seabed in a bight; and Burying the cable using an [ ] type of water jetting sled. You have also clarified that any replacement cable will be laded from a “spare part location” situated on the east coast of the United States. In addition, any damaged cable raised by the vessel will be disposed of at a foreign port. ISSUES Whether the use of the Water Jet Sled, [ ] to create a path along the seabed in which to unlade the cable constitutes a violation of 46 U.S.C. § 55109? Whether the cable placement, late pull-in, and repair operations by a non-coastwise-qualified vessel violate the Jones Act, 46 U.S.C. § 55102? LAW AND ANALYSIS Generally, the coastwise laws prohibit the transportation of merchandise or passengers 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.” 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. 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 are extended to: the subsoil and seabed of the outer Continental Shelf; all art

above, we find that the proposed cable placement and “late pull-in” operations constitute transportation within the meaning of the Jones Act, 46 U.S.C. § 55102 and 19 CFR § 4.80b(a). In contrast, we find that the inspection and repair operation does not constitute transportation within the meaning of the Jones Act.HOLDINGThe use of a Water Jet Sled, [ ] to create fluidized paths for the underwater cables does not constitute dredging within the meaning of the Dredging Statute, 46 U.S.C. § 55109.The proposed cable placement, “late pull-in,” and inspection/repair operations do not constitute coastwise trade within the meaning of the Jones Act, 46 U.S.C. § 55102 and 19 CFR § 4.80b(a). Sincerely,Lisa BurleyChief/Supervisory Attorney-AdvisorRegulatory Reform and Priority Programs BranchOffice of Trade, Regulations and RulingsU.S. Customs and Border Protection