H311603

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H311603 August 31, 2020 VES-3-02-OT:RR:BSTC:CCR H311603 AMW CATEGORY: Carriers Ms. Emily Huggins Jones, Esq. Squire Patton Boggs (US) LLP 4900 Key Tower 127 Public Square Cleveland, Ohio 44114 RE: Coastwise Transportation; Undersea Cable Laying; 46 U.S.C. § 55102; 46 U.S.C. § 55103; 46 U.S.C. § 55109; 19 C.F.R. § 4.80; 19 C.F.R. § 4.80a. Dear Ms. Huggins Jones: This letter is in response to your June 3, 2020 ruling request on behalf of your client Global Marine Systems Limited (“GMSL”) regarding whether certain activities related to the installation of electric cable 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 ruling request and supporting information received in our office on June 30, 2020, July 9, 2020, July 31, 2020, August 7, 2020, and August 14, 2020. Your client has requested U.S. Customs and Border Protection (“CBP”) determine whether certain operations related to the installation of electrical cable in U.S. territorial waters off the coast of Rhode Island would violate the Jones Act, 46 U.S.C. § 55102, and the Dredging Act of 1906 (the “Dredging Statute”), 46 U.S.C. § 55109. You state the proposed operation is intended to replace a section of submarine power cable installed to service the Block Island Wind Farm. Specifically, a section of the original cable has become unburied and now requires replacement with a new cable lay. As such, GMSL has entered into a contract to remove a portion of the existing cable and install a new section of submarine power cable to replace the current landfall at the site. GMSL proposes to use the non-coastwise-qualified M/V GLOBAL SYMPHONY (the “vessel”), a dynamic positioned, cable installation and repair vessel, to perform the operation. The vessel will be laden with cable segments in Portland, United Kingdom and navigate to U.S. territorial waters off of Block Island, Rhode Island. You have provided the exact coordinates for the cable lay operation, including the cable’s landfall and connection points, both of which are located within U.S. territorial waters. The project will occur in roughly two stages, which may be performed in sequence or simultaneously depending upon weather and sea conditions. These stages are roughly broken into the decommissioning and removal of the existing cable, and the placement and connection of a new cable segment. Your request describes the first phase as involving the “decommissioning of existing cable.” After arriving at the project site, the vessel will deploy a work-class remotely-operated vehicle (“WROV”). (You state that the WROVs utilized by the vessel are “free-swimming with tracks available, if required.”) Initially, the WROV will conduct survey work to determine the location of the cable to be decommissioned. Next, the WROV will cut and collect the spent cable, removing the cable to the vessel for transportation to and disposal in the United Kingdom. The WROV will not place any new material on the seabed as part of the decommissioning activity. Your request describes the second phase as the “cable lay” stage, in which the vessel will lay a replacement cable segment and connect it to the existing cable system. To begin with, the vessel will perform a “pull-in operation” to attach the new cable to a landfall point. The landfall point will be prepared prior to the operation by a separate contractor who will install a horizontal directional drilling (“HDD”) tunnel leading from the seabed to a land-sea manhole located onshore. This HDD tunnel will be fitted with a messenger rope and sealed with a water-tight cap. Once the HDD tunnel construction is complete, GMSL’s U.S. subcontractor will attach a pull wire to a messenger rope inside the HDD tunnel. The vessel will then position itself at the HDD tunnel site and deploy the WROV. The WROV will remove the HDD tunnel’s water-tight cap and drag the pull wire to the vessel; the pull wire will then be connected to the end of the replacement cable and pulled back towards the land-sea manhole via a winch deployed at the landfall point. Once pull-in operations are complete, the vessel will pay out the cable on the seabed while moving away from shore and towards the connection site. In doing so, the cable, which will be stored on the vessel’s deck in a rotating cable tank, will be paid out via a cable tensioner. The far end of the cable will then be attached to the pre-existing submarine cable. The two cables will be attached via a joint, which will be attached to the new cable onboard the vessel and paid out to the seabed with the remainder of the cable. You state that the cable joint will be housed within a corrosion-resistant casing and will employ compression ferrules for conduction connections, as well as a combination of tape and heat shrink for insulation reinstatement. After the cable is laid, the vessel will also deploy a trenching system to bury the subject cable, which will apply low ground pressure and jet plough technology to cover the newly laid cable. Finally, although the majority of personnel necessary to support the project will originate in the United Kingdom and will remain on the vessel throughout the subject operation, you state that a limited number of personnel will join the vessel in the United States. These individuals will board a U.S. coastwise-qualified vessel at a U.S. port and transit to the project site, where they will embark the vessel. After the project is completed, the vessel will return to the same geographic point at which the individuals boarded the vessel. The individuals will then disembark onto a coastwise-endorsed vessel, which will return them to the same U.S. port from which they originated. You have clarified that the following individuals will embark the vessel in U.S. territorial waters: Project Developer’s Client Installation Manager: This individual is employed by the project developer and will have overall technical responsibility for the project. The individual will observe the project to ensure that GMSL’s activities comply with the project developer’s technical requirements and specifications. Project Developer’s Project Manager: This individual is employed by the project developer and will have overall responsibility for the commercial aspects of the project. The individual will observe the project to ensure that GMSL’s activities comply with the project’s commercial and contractual requirements. Project Manager’s Permit and Consents Manager: This individual is employed by the project developer and will have overall responsibility to ensure the project complies with all relevant environmental and protected species requirements. This individual will conduct Protected Species Observer (“PSO”) training for the vessel’s crew. ISSUES Whether the subject cable laying operation by the non-coastwise-qualified vessel violates the Jones Act, 46 U.S.C. § 55102? Whether the subject cable burial operations by the non-coastwise-qualified vessel violates the Dredging Statute, 46 U.S.C. § 55109? Whether the subject transportation of individuals onboard the non-coastwise-qualified vessel 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.” Issue One: Whether the Cable Laying Operation Violates 46 U.S.C. § 55102 First, we determine whether the proposed decommissioning and cable laying operations violate the Jones Act, 46 U.S.C. § 55102. The coast