H328183

HQ H328183 April 11, 2023 VES-3-02-OT:RR:BSTC:CCR H328183 DMK CATEGORY: Carriers Chris Hart Holman Fenwick Willan USA LLP 5151 San Felipe, Suite 400 Houston, TX 77056 RE: Coastwise Transportation; Lifting; Outer Continental Shelf; Wind Turbines; 46 U.S.C. §§ 55102, 55103; Merchandise; Passengers; Lifting; Vessel Equipment; Deck Module; 19 C.F.R §§ 4.50(b), 4.80, 4.80a, 4.80b. Dear Mr. Wray; This letter is in response to your October 24, 2022, ruling request submitted on behalf of your client, Hydra Ops, LLC (“Hydra”), regarding whether the installation of a deck module on a fixed platform and associated activities by a non-coastwise qualified vessel 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 October 24, 2022, ruling request and supporting information and November 21, 2022, response to our request for information. Your client has requested U.S. Customs and Border Protection (“CBP”) to determine whether the transport and installation of a deck module on a fixed platform and associated activities on the OCS would violate the Jones Act, 46 U.S.C. § 55102, the Towing Statute, and the Passenger Vessel Services Act, 46 U.S.C. § 55103 (“PVSA”). Hydra has been contracted to perform the transport and installation of a wing deck module on the sub cellar deck of the [ ] (the “Platform”). Hydra proposes to use a non-coastwise-qualified vessel, the [ ] (the “Vessel”) to perform this work. You have provided a list of project crew and their duties, information on the Platform and surrounding area, information on the deck module, and a list of materials, tools, and equipment to be utilized in the operation. Hydra proposes to begin mobilization at Port Arthur, Texas. At Port Arthur, the Vessel will take on the Vessel Installation Crew and may change members of the Marine Crew. The Vessel will not take on any merchandise, equipment, or materials, other than the crew’s personal effects and hand tools. The Vessel will then transit to the Platform, where the Vessel will use its crane to lift half the Installation Crew members by means of an offshore man basket from the Vessel to the Platform. After this, the Vessel will move to a standoff location approximately 500 meters away from the Platform and maintain its position using the Vessel’s dynamic positioning system. Every twelve hours, the Vessel will return alongside the Platform and use its crane to effect a crew change, before returning to the standoff location. The Vessel will house the Installation Crew who are not currently working. Meals for all Installation Crew members will be prepared on the Vessel. Twice per day, the Vessel will return to the Platform to transfer the meals for Installation Crew members who are currently on the Platform. In effect, the Vessel will transit between the standoff location and the Platform every six hours to transfer either crew or meals. The Vessel will be re-supplied with these provisions from a U.S. port via a coastwise-qualified vessel. Hydra contemplates that Installation Crew changes may be necessary. If this is done, the Vessel will move to a position about or beyond 500 meters from the Platform. There, the Vessel will use its crane to move crew on and off a coastwise qualified vessel, which will transit crew changes to and from Freeport, Texas. It is possible that a U.S.-registered helicopter will be used for crew changes rather than the coastwise-qualified vessel. You contend that moving to this position is necessary for safety and practical reasons and to mitigate risk to human life and health, avoid damage to the Platform and Vessel, and allow efficient use of limited deck space on the Platform and more available deck and storage space on the Vessel. To support this contention, you have provided information on the level of acceptable risk and a diagram depicting the oil and gas pipelines near the Platform. In the alternative, Hydra contemplates that the Installation Crew would not embark on the Vessel at Port Arthur and would instead be transported from a U.S. port to the Vessel via coastwise-qualified vessels or U.S. registered helicopters. The Installation Crew would be accommodated on the Vessel and move back and forth between the Vessel and the Platform via personnel basket. The Vessel would still move back and forth 500 meters from the standoff position to the Platform during shift changes and meal deliveries. The Installation Crew will perform their function by doing construction work on the Platform. The Installation Crew will also perform some pre-installation tasks onboard the Vessel, including rigging and lifting of construction materials to be placed on the Vessel and inspecting and maintaining lifting equipment to be used in the project. The Installation Crew will use their personal hand tools for the entirety of the project. The deck module to be installed on the Platform will be transported from a U.S. port directly to the Platform by a coastwise-qualified tug and barge. There, the Installation Crew will use the strand jacks which the Installation Crew previously set up on the Platform to lift the module from the barge to the Platform. Other materials used will be transported from a U.S. port via coastwise-qualified vessels, in one of three scenarios. In the first scenario, the materials would be lifted from the coastwise-qualified vessel and placed on the Platform using the Platform’s crane. Under some circumstances, the Vessel may come alongside the Platform, maintain its position using dynamic positioning, and use the Vessel’s crane to unlade materials onto the Platform. In the second scenario, the materials would be lifted from the coastwise-qualified vessel and placed on the Platform using the Platform’s or the Vessel’s crane, as in the first scenario. Then, some materials would be transferred from the Platform to the Vessel using the Platform’s crane, temporary winches installed on the Platform, or the Vessel’s crane. Then the vessel would return to its standoff position 500 meters from the Platform, where it would remain stationary using dynamic positioning, before returning to the Platform to transfer the materials back from the Vessel to the Platform, using the Platform’s crane, the Vessel’s crane, or temporary winches. In the third scenario, the materials would be lifted from the coastwise-qualified vessel and placed on the Vessel using the Vessel’s crane, at the standoff position approximately 500 meters away from the Platform. The Vessel will remain stationary using dynamic positioning. During a future crew change or meal transfer, the Vessel will also transfer the materials which it previously lifted from the coastwise-qualified vessel. You contend that moving to and from the 500-meter standoff position in the second and third methods is necessary for the same safety and practical reasons as stated above. After the project is completed, the Vessel will return to Port Arthur, where the Installation Crew will disembark. No merchandise, equipment, or materials will remain on the Vessel and accordingly none will be unladen at Port Arthur except for the hand tools and personal effects of the Installation Crew. ISSUES Whether transporting the Installation Crew for the entirety of this project by a non-coastwise qualified vessel violates the PVSA, 46 U.S.C § 55103? In the alternative, whether housing and transporting the Installation Crew between the standoff position and the Platform violates the PVSA, 46 U.S.C. § 55103? Whether transportation of the Installation Crew’s tools on the Vessel would constitute a violation of the Jones Act, 46 U.S.C. § 55102? Whether preparing the meals aboard the Vessel and transferring the meals to the Platform for the Installation Crew would constitute a violation of the Jones Act, 46 U.S.C. § 55102? Whether transferring materials as described in the first scenario would constitute a violation of

the materials for an indefinite period of time, before transporting the merchandise to the Platform would violate the Jones Act. We determine that the operation as described in the third scenario does not constitute a single lifting operation, but instead constitutes two lifting operations, separated by an indefinite period of storage wherein the lifting operation is safely terminated. Because, as noted above, the safety exception applies to the entirety of a lifting operation and not to transportation between separate lifting operations, the exception does not apply in this case. In this case, the merchandise would be laded at a coastwise point (a U.S. port) and transported most of the way by a coastwise-qualified vessel. Once the coastwise-qualified vessel reaches the standoff position, the merchandise would be transferred to the Vessel. At that point, the Vessel would transport the merchandise the remainder of the distance, where it would be unladed at a second coastwise point, the Platform. Accordingly, we determine that the operation as described in the third scenario includes using a non-coastwise-qualified vessel for part of the transportation of merchandise between coastwise points, and therefore violates the Jones Act, 46 U.S.C. § 55102.HOLDINGSThe proposed transportation of the Installation Crew for the entirety of this project by a non-coastwise qualified vessel would not constitute a violation of the PVSA, 46 U.S.C § 55103.The proposed alternative housing and transportation of the Installation Crew between the standoff position and the Platform would not constitute a violation of the PVSA, 46 U.S.C. § 55103.The proposed transportation of the Installation Crew’s tools on the Vessel would not constitute a violation of the Jones Act, 46 U.S.C. § 55102?The proposal to prepare the meals aboard the Vessel and transfer the meals to the Platform for the Installation Crew would not constitute a violation of the Jones Act, 46 U.S.C. § 55102.The proposed transfer o