H325120

HQ H325120 May 23, 2023 OT:RR:BSTC:CCR H325120 AFM CATEGORY: Carriers Constantine G. Papavizas, Esq. Winston & Strawn, LLP 1901 L Street, NW Washington, DC 20036 RE: Coastwise Transportation; Offshore Wind Turbines; 46 U.S.C. § 55102; 46 U.S.C. § 55109; 19 C.F.R. § 4.80b. Dear Mr. Papavizas: This letter is in response to your ruling request of April 12, 2022, supplemented with responses to our requests for information on August 11, 2022, March 1, 2023, March 22, 2023, April 3, 2023, April 25, 2023, and May 12, 2023, on behalf of your client New England Aqua Ventus, LLC (“Aqua Ventus”) regarding whether certain activities related to the laying of export cables (“cables”) would be in violation of the Jones Act, 46 U.S.C. § 55102, and the Dredging Act, 46 U.S.C. § 55109. Our decision follows. FACTS The following facts are from your April 12, 2022, ruling request, and subsequent responses to our requests for information of August 11, 2022, March 1, 2023, March 22, 2023, April 3, 2023, April 25, 2023, and May 12, 2023. Aqua Ventus is proposing the installation of a floating wind turbine off the coast of Maine as part of a floating offshore wind demonstration project, the Maine Research Array, where a portion of the cable laying and burial will occur outside the U.S. three nautical mile limit. Diamond Offshore Wind and RWE Renewables will be part of the joint venture for this project. The Bureau of Ocean Energy Management (“BOEM”) will be issuing the lease for this project to the State of Maine. The object of the present transaction is to lay and bury cables both within and outside the U.S. three nautical mile limit that will transmit electricity generated by offshore wind turbines more than three nautical miles off the coast of Maine, starting from a coastwise point near East Boothbay, Maine, to a coastwise point approximately 3 miles south of Monhegan Island, Maine, as seen in the draft cable route map submitted in response to our requests for information. The cable will be laded onto a non-coastwise-qualified vessel either in a U.S. port or from another non-coastwise-qualified vessel in a U.S. port. The prospective transaction involves three possible scenarios: Aqua Ventus seeks to bury cable with a jet trenching cable burial tool with no plow or hoe-type aspects deployed by a non-coastwise-qualified vessel, with the cable burial occurring either when the cable is laid or as a separate operation after the cable has been laid. If the cable burial occurs when the cable is laid, a non-coastwise-qualified cable burial vessel will install the cable, with a jet trenching burial tool pulled behind the cable lay vessel to bury the cable in one pass. If the cable burial occurs as a separate operation after the cable has been laid, the non-coastwise-qualified cable lay vessel will lay the cable on the seabed for the subsea burial tool(s) to later pick up and bury using a non-coastwise-qualified trenching support vessel. The jet trenching cable burial tool, equipped with water jets and jetting nozzles to fluidize the soil, would open a trench, likely 1-2 meters deep. A depressor would then push the cable into the trench. Displaced soil would partially subside and collapse into the trench to bury the cable after the tool passes. No seabed material would be transported away from the trench. If soil characteristics or rocks on the seabed preclude installation of the cable with the jet trenching cable burial tool and placement of the cable with armoring (rock bags, concrete mattresses, or rip rap) is either not a practical solution or permit restrictions do not allow, Aqua Ventus seeks to bury cable with the use of a mechanical cutter cable burial tool operated by a non-coastwise-qualified vessel. The tool would open a trench, likely 1-1.5 meters deep. A depressor would then push the cable into the trench. The trench would fill with sediments gradually once the tool passes, and some parts of the sidewalls may partially collapse to assist in burying the cable. The tool may have jetting capabilities which could be used to assist in fluidizing the soils in softer ground or keeping the trench clear in harder ground. No seabed material would be transported away from the trench. The cable burial would occur either when the cable is laid or as a separate operation with the use of either the non-coastwise-qualified cable lay vessel or a different non-coastwise-qualified vessel. If the cable burial is done at the same time as the cable is laid, the cable burial tool would be tethered to and operated from the non-coastwise-qualified cable lay vessel. If the cable burial is done after the cable is laid as a separate operation, the cable burial tool would be operated either from the non-coastwise-qualified cable lay vessel that was previously used for laying the cable, or from a different non-coastwise-qualified vessel. If needed, Aqua Ventus may install cable protection utilizing rock bags, concrete mattresses, or loose rock to cover the cable. These items would be laded onto a coastwise-qualified vessel from a U.S. port and transshipped to a non-coastwise-qualified vessel for installation over pre-laid cable on the seabed outside the U.S. three nautical mile limit. The vessel used for installing rock bags, concrete mattresses, or loose rock to cover the cable will not be the same vessel used to install the cable. The rock bags, concrete mattresses, or loose rock would be placed directly onto the newly installed cable and would only be installed in locations where it is not possible to bury the cable to a depth required for sufficient cover of the cable. ISSUES Whether the use of the jet trenching cable burial tool deployed by a non-coastwise-qualified vessel to bury cable, either as the cable is laid or as a separate operation following when the cable is laid, constitutes a violation of the coastwise dredging statute, 46 U.S.C. § 55109? Whether the use of the mechanical cutter cable burial tool deployed by a non-coastwise-qualified vessel to bury cable, either as the cable is laid or as a separate operation following when the cable is laid, constitutes a violation of the coastwise dredging statute, 46 U.S.C. § 55109? Whether the transportation or installation of rock bags, concrete mattresses, or loose rocks to be placed over the subject cable on board a non-coastwise-qualified vessel violate the Jones Act, 46 U.S.C. § 55102? LAW AND ANALYSIS Your request presents three separate issues as outlined above. This ruling analyzes each below. Issue One: Whether the use of the trenching tool deployed by a non-coastwise-qualified vessel to bury cable, either as the cable is laid or as a separate operation following when the cable is laid, constitutes a violation of the coastwise dredging statute, 46 U.S.C. § 55109? Pursuant to 46 U.S.C. § 55109(a), 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 a latin (sic.) 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 plain and ordinary meaning of the word “dredging” is the removal of soil from the bottom waters by suction or scooping or other means. CBP (to include its predecessor, the U.S. Customs Servi

Your request presents three separate issues as outlined above. This ruling analyzes each below.Issue One: Whether the use of the trenching tool deployed by a non-coastwise-qualified vessel to bury cable, either as the cable is laid or as a separate operation following when the cable is laid, constitutes a violation of the coastwise dredging statute, 46 U.S.C. § 55109? Pursuant to 46 U.S.C. § 55109(a), 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 endorsementDredging is defined as “excavation” by any means:The word “excavate” is derived from a latin (sic.) 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 plain and ordinary meaning of the word “dredging” is the removal of soil from the bottom waters by suction or scooping or other means. CBP (to include its predecessor, the U.S. Customs Service) has consistently held that the term “dredging” within the meaning of 46 U.S.C. § 55109, is “the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material.” See HQ 103692 (Dec. 28, 1978), published as Customs Service Decision (C.S.D.) 79-331; HQ 109910 (Jan. 26, 1989), published as C.S.D. 89-64.However, CBP has consistently held that the use of certain devices to create underwater trenches