H316313

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H316313 February 4, 2021 VES-3-02-OT:RR:BSTC:CCR H316313 AMW CATEGORY: Carriers Mr. John Giffin, Esq. Keesel, Young & Logan 400 Oceangate Long Beach, California 90802 RE: Coastwise Transportation; Outer Continental Shelf; Wind Turbines; 46 U.S.C. §§ 55102 and 55103; 19 CFR §§ 4.80a and 4.80b; 43 U.S.C. § 1333. Dear Mr. Giffin: This letter is in response to your September 10, 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 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 September 10, 2020 ruling request and from communications submitted in relation to a prior ruling request submitted by Maersk regarding this transaction. 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 your client will transport and install multiple WTG units at two separate lease areas located on the seabed of OCS off the coast of Rhode Island and Massachusetts. The proposed transportation and installation of the WTG units will be conducted by coastwise-qualified tug boats that will be chartered on an as-needed basis and a coastwise-qualified barge, that will be built closer to the project start date (the “Tug and Barge”), and a non-coastwise-qualified, Danish-flagged jack up vessel (the “Jack Up Vessel”) that will be built in a foreign shipyard closer to the project start date. The project is currently scheduled to commence on [ ]. Prior to installation, the non-coastwise-qualified Jack Up Vessel will travel from a foreign port in [ ] to the first WTG installation site on the U.S. OCS, secure its retractable to the seabed, and jack up to installation height. After the Jack Up Vessel establishes itself at the installation site, the coastwise-qualified Tug and Barge will transport 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 remain grounded on the OCS. 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. The Jack Up Vessel will then raise the WTG components to its deck using [ ]. 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 [ ] and transported to the Jack Up Vessel after it establishes itself at the next WTG installation site. After receiving WTG components from the Tug and Barge, crewmembers 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 WTG location where it will secure itself to the seabed of the OCS, jack up to installation height, and repeat the same process. Besides the wind turbine components, the Tug and Barge will transport additional materials from a U.S. port (likely one of Bridgeport, Connecticut; Staten Island, New York; or Coeymans/Albany, New York) to the Jack Up Vessel. These materials include: (1) a waste skip for waste generated by daily vessel operations; (2) provisions for the crew and spare parts for the Jack Up Vessel, which will be transported by the Barge in a separate container from [ ]; and (3) a container holding all tools, materials, and consumables necessary for the mechanical completion and installation of each wind turbine. The latter category of tools, materials, and consumables will subsequently be transported by the Jack Up Vessel between installation sites and unladen at each WTG site by the installation crew. You have provided a comprehensive list of these items, which 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 have provided a list of approximately 28 “installation crewmembers” who will be transported to the Jack Up Vessel for the purpose of assembling and installing the WTG units. The installation crew will be transported to the Jack Up vessel from a U.S. port onboard either a coastwise-qualified vessel or a U.S.-registered, operated and crewed helicopter. Following this, the Jack Up Vessel will transport the Installation Crew between WTG sites. Upon arrival at each WTG site, the installation crew will board the WTG by a gangway connected to the transition piece to complete the installation of each WTG unit. In addition, the installation crew will perform pre-installation tasks onboard the Jack Up Vessel, including regularly inspecting and maintaining lifting equipment to be used in the WTG installation. ISSUES Whether the transportation of the WTG components by a coastwise-qualified tug boat and barge from a U.S. port to an anchored, non-coastwise-qualified Jack Up Vessel located on the U.S OCS violates the Jones Act, 46 U.S.C. § 55102? Whether the installation of the subject wind turbine generators by the non-coastwise-qualified Jack Up Vessel on the OCS violates the Jones Act, 46 U.S.C. § 55102? Whether transportation of certain tools and material between coastwise points by the non-coastwise-qualified Jack Up Vessel violates the Jones Act, 46 U.S.C. § 55102? Whether the transportation of the installation crew between coastwise points by the non-coastwise-qualified Jack Up Vessel violates the Passenger Vessel Services Act, 46 U.S.C. § 55103? 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 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, landwa

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; andhas 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 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. 33 CFR § 2.22(a)(2). 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 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; orany such installation or other device (other than a ship or vessel) for the purpose of transporting or transmitting such resources.(emphasis added).Accordingly, the OCSLA, as amended in 2021, extends U.S. jurisdiction to devices attached to the seabed of the OCS for the purpose of producing n