H329165

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H329165 August 21, 2024 OT:RR:BSTC:CCR H329165 MF CATEGORY: Carriers John Waldron. Esq. Blank Rome LLP 1825 Eye Street, NW Washington, DC 20006 RE: Coastwise Transportation; 46 U.S.C. § 55102; 19 CFR § 4.80(b) Dear Mr. Waldron: This is in response to your December 22, 2022, ruling request on behalf of your client [ ] regarding whether the transportation of monopiles and transition pieces 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 December 22, 2022, ruling request and supplemental responses to CBP. Your client, [ ] (hereinafter “[ ]”)] proposes to transport and unlade “monopiles” and “transition pieces” to construct wind turbine generators (“ ”) in conjunction with the construction of the [“ ” and “ ” ] (hereinafter “ ”) located on the OCS off the [ ]. The [ ] is described in the ruling request as an offshore wind energy farm that is expected to consist of approximately [ ] WTGs. Each installed WTG will consist of a tower and nacelle unit attached to a monopile foundation (“MP”). The tower will be installed atop the monopile foundation through the use of a transition piece (“TP”). Inter-array cables (“IAC”) will be installed from one turbine to another and are connected between individual offshore wind turbines in order to link together multiple individual turbines in strings to the offshore substation. IACs allow multiple turbines to be connected together to facilitate a single connection for a string of wind turbines to an offshore substation without the need to connect individual cables from each offshore wind turbine directly to the offshore substation. No IAC will be connected to a WTG site until the MP and TP have been installed at a particular WTG site. The IAC construction work will be conducted by a U.S.-flag or foreign-flag cable laying vessel. An export cable will be used to connect the offshore substations to the onshore transmission grid. The export cable construction work will be conducted by a U.S.-flag or foreign-flag cable laying vessel. For both types of cable, the vessel performing cable laying operations will pay out and lower cable to the seabed between turbines or between the offshore stations and the shoreline. The cable in all cases will not be landed as cargo but will be paid out in the course of installation operations (i.e., paid out instead of unladen). The cable laying, both for the export cable and IAC, is independent of the MP/TP installation work, and it may commence, before, after, or contemporaneously with the installation of the MPs/TPs. Under current plans, the MPs and substations will be installed well in advance (up to a year) of the cables. It is possible the export cable (used to connect the offshore substations to the onshore transmission grid) may be laid on the seabed before a particular MP is placed in position at a particular WTG turbine site, but in no case will the distance between the IAC and a particular WTG site be closer than approximately [ ] NM. Also, the distance between any pre-laid, wet-stored cable and the substations will be no closer than [ ] nautical miles. The construction and installation of the substations will occur as follows. Each substation will consist of a jacket (a steel frame consisting of a deck truss structure supported by a welded tubular structure that is piled to the seafloor) and a topside (steel structure above water attached to a jacket). If the substation site is pristine (e.g., there is no scour protection in place), a foreign-flag vessel will transport the jacket from either a U.S. port or a foreign port to the installation site. If the site is not pristine (e.g., there is scour protection in place), a foreign-flag vessel will transport the jacket from a foreign port to the installation site. Subsequent to jacket installation, substation topsides, two in total, will be transported directly from a foreign port and installed onto jacket foundations in the windfarm fields on the OCS. These completed substations will not be located any closer than [ ] NM to the closest WTG. You posit several different scenarios regarding the contemplated MP and TP installation, substation installation, and cable laying, as discussed below: Scenario A: The installation vessel loads several MPs and TPs on deck at a U.S. port. The vessel then proceeds to a WTG location and installs an MP and a TP at that location. The installation vessel then proceeds to the next WTG location and installs an MP and then a TP at that location. The installation vessel continues installing MPs and TPs in this sequence until all MPs and TPs on deck have been installed. The vessel will then return to the U.S. port location, load more MPs and TPs, and repeat this sequence until all MPs and TPs are installed for the project. Scenario B: The non-coastwise qualified installation vessel loads several MPs and TPs on deck at a U.S. port location. The vessel then proceeds to a WTG location and installs an MP only. The installation vessel then proceeds to the next WTG location and installs another MP only. The installation vessel continues installing MPs until all MPs on deck have been installed. The vessel then returns to the WTG sites at which the MPs were installed and installs TPs on top of the MPs until all TPs on deck have been installed. The vessel will then return to the U.S. port location, load more MPs and TPs, and repeat this sequence until all MPs and TPs are installed for the project. Scenario C: Installation of the substations and export cable is scheduled to occur while the installation of the MPs and TPs is ongoing. The closest any IAC or export cable will be to a WTG turbine site or a substation site will be approximately [ ] NM. ISSUES Whether the transportation of the monopiles and transition pieces by a non-coastwise-qualified vessel as described in Scenarios A and B violates the Jones Act, 46 U.S.C. § 55102? Whether the use of a non-coastwise-qualified vessel to lay the IAC or export cable as described in Scenario C violates the Jones Act, 46 U.S.C. § 55102? Whether the use of a non-coastwise-qualified vessel to construct the substations as described in Scenario C violates the Jones Act, 46 U.S.C. § 55102? LAW AND ANALYSIS Generally, the coastwise laws prohibit the transportation of merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a certificate of documentation with a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.” 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. In addition, Section 4(a) of the Outer Continental Shelf Lands Act of 1953, as amended (“OCSLA”), 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. The coastwise law applicable to the transportation of merchandise, often referred to 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