H328865

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H328865 February 14, 2023 VES-3-02-OT:RR:BSTC:CCR H328865 HKC CATEGORY: Carriers John D. Giffin, Esq. Keesal, Young & Logan 400 Oceangate Long Beach, CA 90802 RE: Coastwise Transportation; Outer Continental Shelf; Wind Turbines; 46 U.S.C. §§ 55102 and 55103; 19 CFR §§ 4.80a and 4.80b; 43 U.S.C. § 1333. Dear Mr. Giffin: This letter is in response to your June 2, 2022 ruling request on behalf of your client Maersk Supply Services A/S (“Maersk”) regarding whether the installation of wind turbine generators and transportation of wind turbine installation crew 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 The following facts are from your June 2, 2022 ruling request, its supporting materials, and email correspondence. Your client proposes to install wind turbine generator (“WTG”) units for a project organized by Equinor Offshore Wind LLC (“Equinor”). You state that your client will install multiple WTG units at two separate lease areas: Empire Wind I and II and [ ], both located on the seabed of OCS off the East Coast of the United States. The proposed transportation of the WTG units from U.S. ports to installation sites on the U.S. Outer Continental Shelf (“OCS”) will be conducted by a coastwise-qualified tug and a coastwise-qualified barge (the “Tug and Barge”). At the installation sites, a non-coastwise-qualified, European-flagged jack up vessel (the “Jack Up Vessel”) built in a foreign shipyard in Asia will install the WTG components. Prior to installation, the non-coastwise-qualified Jack Up Vessel will be transported from Singapore to the United States on a heavy lift vessel. Once in U.S. waters, the Jack Up Vessel will travel to the first WTG installation site on the U.S. OCS under its own power, secure its retractable legs to the seabed, and jack up to installation height. After the Jack Up Vessel establishes itself at the installation site, the coastwise-qualified Tug and Barge will transport WTG components from a port in the United States (likely South Brooklyn Marine Terminal – New York) to the Jack Up Vessel, which will remain grounded on the OCS. The WTG components will be secured for transport on board the Barge in a [ ]. Upon arriving at the Jack Up Vessel, the Tug will push the Barge into a “notch” located on the Jack Up Vessel. [ ]. Once the [ ] is placed on the deck of the Jack Up Vessel, the Tug will then pull the Barge clear from the Jack Up Vessel leaving the [ ] on the Jack Up Vessel. The Tug and Barge will then wait offshore at a safe distance from the Jack Up Vessel while WTG components are installed. After receiving WTG components from the Tug and Barge, crewmembers onboard the Jack Up Vessel will utilize the vessel’s crane to install the WTG units onto pre-constructed turbine foundations. The Jack Up Vessel will remain stationary on the seabed via retractable legs throughout this process. If the weather is favorable once WTG components have been installed, the Tug will push the Barge into the “notch” of the Jack Up Vessel, and [ ]. The Jack Up Vessel will then proceed to the next WTG installation site under its own power, while transporting a “waste skip” container, tools, materials, and consumables, and installation crew as discussed below. If the weather is not favorable once WTG components have been installed, the Jack Up Vessel will move to the next WTG installation site under its own power with the [ ] still on board. At the next installation site, once the weather is favorable, the Tug will push the Barge into the “notch” of the Jack Up Vessel and [ ]. Upon receiving the empty [ ], the Tug and Barge will return to a U.S. Port where additional WTG components will be placed into the empty [ ] for delivery to the Jack Up Vessel at the next WTG installation site. Besides the WTG components, the Tug and Barge will transport the following components from a U.S. port (likely South Brooklyn Marine Terminal – New York) to the Jack Up Vessel. These materials include: (1) a waste skip for waste generated by daily vessel operations; (2) a container used to hold all tools, materials, and consumables necessary for the mechanical completion and installation of one WTG. These items, along with the empty [ ] (if the weather is not favorable for it to be removed immediately following WTG installation) will subsequently be transported by the Jack Up Vessel between installation. Finally, you have provided a list of approximately 28 installation crewmembers who will be transported to the Jack Up Vessel for the purpose of assembling and installing the WTG units. The installation crew will be transported to the Jack Up vessel from a U.S. port onboard either a coastwise-qualified vessel or a U.S.-registered helicopter. Once on board, the Jack Up Vessel will transport the installation crew between WTG sites. Besides WTG installation, these installation crewmembers will also be responsible for inspection and maintenance of lifting gear on the Jack Up Vessel, as well as ensuring equipment is securely fastened to the vessel. ISSUES Whether the transportation of the WTG components by a coastwise-qualified tug and barge from a U.S. port to an anchored, non-coastwise-qualified Jack Up Vessel 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 Jack Up Vessel on the OCS violates the Jones Act, 46 U.S.C. § 55102? Whether transportation of certain containers, tools, and materials between coastwise points by the non-coastwise-qualified Jack Up Vessel violates the Jones Act, 46 U.S.C. § 55102? Whether the transportation of the installation crew between coastwise points by the non-coastwise-qualified Jack Up Vessel violates the Passenger Vessel Services Act, 46 U.S.C. § 55103? 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 th

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 n