H318628

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H318628 June 30, 2022 VES-3-02-OT:RR:BSTC:CCR H318628 AMW CATEGORY: Carriers Mr. Constantine G. Papavizas, Esq. Winston & Strawn LLP 1901 L Street, NW Washington, DC 20036 RE: Coastwise Transportation; Dredging; 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 April 22, 2021, ruling request on behalf of your clients [ ] 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 a “Revised and Restated” request submitted on September 21, 2021. This request relates to the construction of the [ ] project, which will be situated on the U.S. outer continental shelf (“OCS”), approximately [ ]. Specifically, your client proposes to utilize a non-coastwise-qualified cable-lay vessel (“CLV”) to create a fluidized path and simultaneously place cables on the seabed of U.S. territorial waters and along the seabed of the outer continental shelf (“OCS”). The cable will then be placed in “wet storage” until the CLV returns to attach the cable to an offshore substation. This cable will be used to transmit electric current from the completed wind farm to the continental United States. You state that the identity of the CLV has not been finalized but will be a non-coastwise-qualified cable-lay vessel, possibly the [ ]. The subject operation involves the placement, underwater storage, and subsequent installation of [ ] electric cables. The cables will be sourced from both domestic and international manufacturers. Some of the cables will be manufactured in [ ] and transported to the United States by either the CLV or another non-coastwise-qualified “feeder” vessel to be named later. The remaining portions of cable will be manufactured domestically in [ ] and transported to the installation site by either a CLV or by another non-coastwise-qualified “feeder” vessel. If the U.S.-origin cable is delivered to the CLV by a feeder vessel, the feeder vessel will transfer the cable to the CLV while both are floating unattached outside U.S. territorial waters. The subject cables will be placed on a route running from a landfall point within U.S. waters to the wind project site, which is located on the U.S. OCS. In conjunction with the cable-lay stage, the CLV will employ a tool to simultaneously create a fluidized trench and bury the cable for its protection in certain locations (the “Cable Burial Tool”). As shown in the technical drawings appended to your request, the Cable Burial Tool is a sled-type mechanism containing two front skids and a rear “blade” equipped with jetting nozzles on its front and side. The jetting nozzles will fluidize the seabed soil and reduce friction against the portion of the tool opening the trench. Your request states that the trenching and burial process will occur in roughly the following sequence: The CLV will position itself near the point where the cable will meet the U.S. shoreline, at which point there will be an entry point previously constructed by a Horizontal Directional Drill (“HDD”); The cable will be floated from the CLV to the entrance of the offshore end of the HDD entry point, attached to a pulling rope passed through the entry point, and inserted into the entry point; The cable will be pulled all the way by a winch positioned on shore to the transition joint bay on shore, then the CLV will move away from the landfall point, laying the cable along the route while simultaneously digging a fluidized path and burying the cable with the Cable Burial Tool. Once the cable is laid, the cable will be placed in “wet storage” until the related wind field is completed, at which time the CLV will return to install the cable to the relevant infrastructure. Your request states that the “wet storage” and installation process will include the following stages: A cable end is laid at an agreed-upon location to be wet stored, such as near an offshore substation or at a point between the windfarm and the landfall point; The cable end at that location is equipped with rigging and/or a marker buoy for later retrieval; The section may be temporarily buried for approximately six to eighteen months (alternatively, rock bags or concrete mats may be installed on top of the cable); If de-burial of the wet-stored segments is necessary, the CLV will again deploy the Cable Burial Tool, which will use its jetting nozzles to de-bury these segments; The section is spliced with a new length of cable already on the CLV that the CLV will then lay, or the section will be laid anew into its final location. ISSUES Whether the use of the Cable Burial Tool to create a path along the seabed in which to place the cable constitutes a violation of 46 U.S.C. § 55109? Whether the cable placement, wet storage, and installation 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 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; or any 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 wind energy, such as the wind energy project contemplated in the present matter. Issue One: Whether the Creation of the Cable Pathway Violates 46 U.S.C. § 55109? Pursuant to 46 U.S.C. § 55109, only coastwise-qualified vessels may engage in dredging in the navigable waters of the United States, providing, in pertinent part: [A] vessel may engage in dredging in the navigable waters of the United States only if— (1) the vessel is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; (2) the charterer, if any, is a citizen of the United States for purposes of engaging in the coastwise trade; and (3) the vessel has been issued a certificate of documentation with a coastwise endorsement under chapter 121 of this title or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. Dredging is defined as “excavation” by any means: The word “excavate” is derived from the Latin word meaning to hollow out. Its common, plain and ordinary meaning is to make a cavity or hole in, to dig out, hollow out, to remove soil by digging, scooping out or other means. The common p