H327590

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H327590 December 16, 2022 VES-3-02-OT:RR:BSTC:CCR H327590 DMK CATEGORY: Carriers Mr. Constantine G. Papavizas, Esq. Winston & Strawn, LLP 1901 L Street, NW Washington DC 20036 RE: Coastwise Transportation; Outer Continental Shelf; Wind Turbines; Vessel Crew; Project Installation Crew; 46 U.S.C. § 55102; 46 U.S.C. § 55103; 19 CFR §§ 4.50(b), 4.80a, and 4.80b; 43 U.S.C. § 1333. Dear Mr. Papavizas: This letter is in response to your August 2, 2021, ruling request on behalf of your client [], 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 Your client proposes to install [] offshore wind turbine generators (“WTG”) off the coast of [] pursuant to a project permitted under the U.S. Bureau of Ocean Energy Management. The project will be outside U.S. territorial waters, but on the U.S. outer continental shelf pursuant to federal leases issued by the Bureau of Ocean Energy Management. The lease is subdivision number []. You state that the WTG units will be installed by a non-coastwise-qualified offshore installation vessel [] (“OIV”). You state that the OIV will arrive at the first WTG site without cargo and will be provided WTG components from U.S. ports by coastwise-qualified feeder vessels. Specifically, the OIV will arrive at the first WTG site and jack up to the proper installation height, at which time a coastwise-qualified tug and barge will bring WTG components to the OIV. The OIV will utilize its crane to raise and place on its deck the components of a single WTG. In addition to the components themselves, the WTG components will be transported and laden onto the OIV with a series of containers and components intended to facilitate transport, transfer, and installation, including: a tower lifting tool, tower transport frame, nacelle lifting tool, nacelle transport frame, blade spreader bar, blade rack/stacking frame, backloading skip, bolts, nuts, spare parts, rigging, and provisions. In the process of installing the WTG, these listed components are removed from the WTG and transported to the next WTG site to be loaded on the next barge. That barge will then return the components to shore to be used on a future WTG. After installation of the WTG, the OIV will jack down and sail to the second WTG installation site. On board will be empty shipping frames and related devices as well as shipping containers that were loaded for the first installation. At the second site, the OIV will again jack up and take on board, utilizing its crane, a second set of WTG components with their shipping frames and devices. The OIV will also offload the empty shipping frames and containers laded at the previous WTG site back onto the coastwise-qualified feeder vessels, which will transport them back to a U.S. port at which those empty shipping frames and containers will be filled for subsequent installation activities and operation of the OIV. The offloaded containers may also contain refuse and waste related to the operation, including dirty rags, biohazard bags, and wrapping. These operations will be repeated at each of the installation sites. Finally, once all installation operations conclude, the remaining containers which had been placed on board the OIV containing tools, rigging, and spare parts also will be returned to the original U.S. port of lading by a coastwise-qualified vessel. The OIG vessel crew will consist of approximately [] officers and personnel whose job functions will be to operate the vessel and its machinery. The OIG will arrive in U.S. waters with an incomplete crew and the remaining crew will embark the OIV at a U.S. port or will arrive shore side or airside via coastwise-qualified transfer vessels and/or FAA registered helicopters. Any crew disembarking at the end of their rotation will leave the OIV in a similar manner. The project installation crew will consist of approximately [] project installation crew members who will perform installation functions on board the coastwise-qualified feeder vessels, and OIV as well as on the WTGs. All project installation crew members will perform some functions on the OIV. During the WTG installation process, some of the project installation crew will disembark from the stationary OIV onto the feeder vessels and WTGs to conduct activities such as: mooring and unmooring the feeder barge, releasing, or performing sea fastenings, lifting assistance, bolting, painting touch-up works, and similar activities. After these activities are complete the project installation crew will return to the OIV. The OIV will transport the project installation crew between WTG sites. Project installation crewmembers will disembark from the OIV by coastwise-qualified vessels and/or FAA registered helicopters to a U.S. port or airport. ISSUES Whether the transportation of the WTG components by a coastwise-qualified tugboat and barge from a U.S. port to an anchored, non-coastwise-qualified OIV 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 OIV 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 OIV violates the Jones Act, 46 U.S.C. § 55102? Whether transportation of the OIV vessel crew and project installation crew by a non-coastwise qualified OIV violates the Passenger Vessel Services Act, 46 U.S.C. § 55013? 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, 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; 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 non-mineral energy such as wind energy. Issue 1: Whether the transportation of the WTG components by a coastwise-qualified tugboat and barge from a U.S. port to an anchored, non-coastwise-qualified Jack Up Vessel located on the U.S OCS violates the Jo

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