H317289

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H317289 March 25, 2021 VES-3-02-OT:RR:BSTC:CCR H317289 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); 19 U.S.C. § 1625; 19 CFR § 177.12(b); Modification of H309186 (Jan. 27, 2021) Dear Mr. Wray and Ms. Campion: On January 27, 2021, U.S. Customs and Border Protection (“CBP”) issued Headquarters Ruling HQ H309186 to Great Lakes Dredge & Dock Company, LLC regarding whether the transportation of scour rocks from Canada and coastwise points in the United States and its territorial waters to the U.S. Outer Continental Shelf (“OCS”), would violate the coastwise laws. As explained below, this ruling modifies certain holdings in HQ H309186. This modification is not subject to the notice and comment provisions of 19 U.S.C. § 1625(c) because HQ H309186 has been in effect for less than 60 days; this ruling modifying HQ H309186 is effective immediately pursuant to 19 CFR § 177.12(e). As described more fully below, CBP is modifying its holdings relating to scenarios A, B, C, E, F, and G, such that with this modification, CBP holds that the Jones Act does not apply to activity occurring at the pristine seabed on the OCS, which has been CBP’s longstanding position on the issue. Of course, once a coastwise point is established on the seabed of the OCS, the Jones Act will apply to transportation activity involving that coastwise point to the extent jurisdiction is extended to it by the Outer Continental Shelf Lands Act (“OCSLA”). 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 Lakes Dredge and Dock (“Great Lakes”) 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 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 be surrounded by 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 material 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 material. 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. Some of the scour protection will be placed prior to the monopile being driven into the seabed, while other scour protection applications will occur after the monopile is put in place. The request also indicates that the Scour Vessel can carry enough material to place scour protection material at multiple sites before needing to replenish. Scenarios A through G, as described in your ruling request, are set forth below. Scenario A: The scour protection material 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 material onto the seabed prior to the installation of each monopile. After unlading each load of scour protection material, the Scour Vessel will return to the Port of Providence (or potentially another U.S. port) to lade additional scour protection material. 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 material after the initial layer of scour protection material is applied and the monopile is installed into the seabed. The scour protection material will be laded onto the vessel in the Port of Providence (or potentially another U.S. port), with periodic returns to the U.S. port to lade additional scour protection material as needed. Scenario C: After the WTGs are fully installed and operational, scour protection material will be periodically reapplied as part of routine maintenance. Under this scenario, the Scour Vessel will again lade the scour protection material at the Port of Providence or another U.S. port, with periodic returns to the U.S. port to lade additional scour protection material as needed. Scenario D: The Scour Vessel will unlade the scour protection material 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 material will be laden onto the vessel in Canada. The Scour Vessel will return to Canada to replenish the scour protection material as needed. Scenario E: The scour protection material will be laden onto the non-coastwise-qualified, Panama-flagged BULK FRIENDSHIP (the “Bulk Carrier”) in Canada and transported to the project site on the OCS or an alternative site within U.S. territorial waters. After the Bulk Carrier arrives at the Project Site on the OCS 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 material in the same manner and at the same locations as described in scenarios A, B, and C, except that instead of transporting the scour protection material from a U.S. mainland point of lading, the Scour Vessel will lade scour protection material from the anchored Bulk Carrier located within U.S. territorial waters or an installation site on the OCS and unlade the scour protection material on the seabed adjacent to a WTG structure. Scenario F: In lieu of the Scour Vessel, a non-coastwise-qualified, foreign-flagged installation barge (the “Barge”) will be laden with scour protection material and towed by coastwise-qualified tugboats from the Port of Providence to the project site on the OCS to install scour protection material 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 tugboats to install scour protection material. ISSUES Whether the transportation of the subject scour protection material 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 tugboats to transport a barge carrying scour protection material 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 

within CBP Headquarters Ruling HQ H309186 (January 27, 2021), is hereby modified as stated with respect to the various scenarios as described herein and the holdings stated within this ruling. Any statements within HQ H309186 that are contrary to statements contained within this ruling shall be considered modified to be in accord with this ruling.Sincerely,Lisa L. BurleyChief/Supervisory Attorney-AdvisorCargo Security, Carriers and Restricted Merchandise BranchOffice of Trade, Regulations and RulingsU.S. Customs and Border Protection