H326258

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H326258 September 15, 2023 VES-3-02-OT:RR:BSTC:CCR H326258 DMK CATEGORY: Carriers Joshua Stein, Esq. Cozen O’Connor, P.C. 1200 19th Street, NW Washington, DC 20036 RE: Coastwise Transportation; Towing; Outer Continental Shelf; Wind Turbines; 46 U.S.C. §§ 55102, 55103, 55111; Merchandise; Passengers; Towing; Vessel Equipment; Scour Protection; 19 C.F.R § 4.50(b); 19 C.F.R. § 4.80; 19 C.F.R. § 4.80a; 19 C.F.R. § 4.80b; 19 C.F.R. § 4.92. Dear Mr. Stein; This letter is in response to your July 12, 2022, ruling request submitted on behalf of your client, [ ] (the “Company”), regarding whether the installation of wind turbine generators (“WTG”) and associated activities by non-coastwise qualified vessels over the Outer Continental Shelf (“OCS”), as described below, would violate the coastwise laws. Our decision follows. FACTS The following facts are from your client’s ruling request and supporting information dated July 12, 2022, as well as supplemental information submitted on September 2, 2022. Your client has requested U.S. Customs and Border Protection (“CBP”) to determine whether the transport and installation of offshore substations (“OSS”), foundations (“FOU”), scour protection, and associated activities on the OCS would violate the Jones Act, 46 U.S.C. § 55102, the Towing Statute, 46 U.S.C. § 55111, and the Passenger Vessel Services Act, 46 U.S.C. § 55103 (“PVSA”). The Company has been contracted to perform the transport and installation of OSS and FOU for the [ ] and [ ]. The Company has also been contracted to supply and install scour protection for WTG and OSS locations on [ ] and [ ]. You have provided a list of vessels, project crew, and materials, tools, bolts, nuts, screws, and equipment to be utilized in the operations. Each project will occur in two phases: (1) scour protection installation and (2) FOU and OSS transport and installation. The Company intends to transport scour protection material from a foreign destination to the installation site by a non-coastwise-qualified Dynamically Positioning Fallpipe Vessel (“Scour Vessel”). The scour protection material will either be installed to the pristine seabed prior to the installation of a monopile (“MP”) or will be installed after the installation of an MP. In both scenarios, the Scour Vessel will install the scour protection onto the seabed by dumping it onto the installation site to form a circular pattern. The Scour Vessel may also return to the partially installed scour protection area to add additional scour protection following restocking in a foreign location. As regards the FOU and OSS transport, the Company intends to transport MPs from a foreign location to the installation site by a non-coastwise qualified heavy lift vessel (“HLV”). In the alternative, the MPs will be brought from a foreign location to the HLV at a transfer location on the OCS by a non-coastwise-qualified heavy transport vessel (“HTV”), where the MPs will be transferred from the HTV to the HLV. You have provided transfer locations, as well as the proposed methods for transferring the MPs. The HTV will remain stationary by: (1) two non-coastwise qualified anchor handling tugs (“AHT”) which will be connected to the bow and stern on the ATV; (2) one coastwise qualified AHT will anchor to the seabed and will connect to the bow or stern of the HTV, and a non-coastwise qualified AHT will be connected on the other side; (3) two non-coastwise qualified AHTs will connect to the bow and stern of the HTV and one will anchor to the seabed; or (4) the HTV will anchor to the seabed during any of the foregoing methods. In all cases, a non-coastwise qualified HLV will come alongside the stationary HTV and will remain stationary by dynamic positioning. The HLV may also connect to the HTV via mooring lines and/or fenders but will not anchor. The MPs will then be transferred to the HLV using the HLV’s crane. The HLV will install the MPs on pristine seabed at [ ] and in locations where scour protection has already been installed during Phase 1 at [ ]. The HLV will use dynamic positioning at the MP installation locations and drive the MPs into the seabed. The HLV may install temporary MP lighting and flange protector frames, which will arrive on board the HLV from a foreign destination. Prior to installing the other components of the OSSs and FOUs, i.e., Module Support Frames (“MSF”), OSS Topsides, and Secondary Steel, the installation of which is described below, the frames will be removed. The HLV may take the frames from one MP, to transport and install it on another MP. Following their last use at a project site, the frames are retrieved to the HLV and return to a location outside the U.S. The other components of the OSSs and FOUs will be transported and installed in one of three methods: (a) transport from a foreign country to a transfer location near an installed MP on the OCS; (b) transport from a foreign country directly to the installation location with installation by a non-coastwise-qualified HLV; or (c) transport from a U.S. coastwise point by a coastwise-qualified vessel or coastwise-qualified tug and barge with installation by a non-coastwise qualified HLV. For [ ] locations, MSFs and OSS Topsides will be transported and transferred according to method (a), reflecting the same manner in which the MPs are transferred from the HTV to HLV. The MSFs and OSS Topsides will either be lifted to the deck of the HLV by the HLV’s crane or may stay in the HLV’s crane hook. The HLV will then transit to the installation location and install the component onto an already installed MP. Secondary Steel to be installed on top of the OSS MP will be transported according to method (b). All OSS Secondary Steel items excluding the [ ] MSF described above will arrive at the installation site on board the non-coastwise-qualified HLV from a foreign destination. The HLV will position itself using dynamic positioning and lift the component to the OSS MP. The Company contemplates some installations may involve the use of a temporary platform and specialized installation equipment to complete the installation of the component following placement on the OSS MP by the HLV. Such equipment will either be pre-installed on the component prior to loading on the HLV and returned to the HLV following installation, lifted to the OSS MP prior to installation and returned to the HLV following installation, or transported to the installation site aboard a coastwise-qualified Platform Supply Vessel (“PSV”) and lifted to the OSS MP by the HLV while the HLV is stationary and returned to the PSV. The third method of transport involves using a coastwise-qualified PSV to carry SS installation tools with the WTG MP SS from the [ ] to a WTG MP location. The PSV will position itself next to the HLV, where it may be moored alongside the HLV using mooring lines. The HLV will lift the integrated SS installation tool from the deck of the PSV using the HLV’s crane. The HLV will then maneuver laterally approximately 30-50 meters, before using the crane to set the installation tool on the MP. The empty installation tool will then be placed back aboard the PSV in the reverse manner as it was removed from the PSV. The PSV will then either transport the installation tool to the next MP location or return to the supply port to restock SS on the PSV. For the [ ] projects, the OSS Topsides will be fabricated in the U.S. and transported by a coastwise-qualified tug and barge to the installation site. Once at the installation site, a second non-coastwise-qualified tug may be attached to the barge to ensure the barge remains stationary. The HLV will then position alongside the barge at a position approximately 300 meters from the OSS foundation where the barge is moored to the HLV. The HLV then connects rigging and lifts the OSS Topside from the barge. The non-coastwise-qualified tug (if

is not changed if an AHT is anchored on the OCS and holds the HTV stationary because, even if the AHT is considered a coastwise point, the point of lading is still a foreign port. Accordingly, there is no transportation between coastwise points within the meaning of 46 U.S.C § 55102 and 19 CFR § 4.80.Issue Five: Whether the use of non-coastwise-qualified tugs to ensure a vessel remains stationary violates the Towing Statute, 46 U.S.C. § 55111Next, we consider whether the use of non-coastwise qualified tugs to hold a vessel in place violates the Towing Statute, 46 U.S.C. § 55111. Regarding the applicability of the coastwise towing statute to the activities described in the FACTS section above, 46 U.S.C. § 55111 provides, in pertinent part:(a) IN GENERAL.—Except when towing a vessel in distress, a vessel may not do any part of any towing described in subsection (b) unless the towing vessel— (1) is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and (2) 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.(b) APPLICABLE TOWING.—Subsection (a) applies to the towing of— (1) a vessel between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port or place; (2) a vessel from point to point within the harbors of ports or places to which the coastwise laws apply; or ….The CBP Regulations at 19 CFR § 4.92 provide, in pertinent part:No vessel other than a vessel documented for the coastwise trade, or which would be entitled to be so documented except for its tonnage (see§ 4.80), may tow a vessel other than a vessel in distress between points in the U.S. embraced within the coastwise laws, or for any part of such towing …. “Towage service is the employment of one vessel to expedite the voyage of another.” Sacramento Naviga