H329630

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H329630 March 9, 2023 VES-3-02-OT:RR:BSTC:CCR H329630 TNA CATEGORY: Carriers Constantine G. Papavizas, Esq. Winston & Strawn LLP 1901 L Street, NW Washington, DC 20036 RE: Coastwise Transportation; Undersea Cable Laying; 46 U.S.C. § 55102; 46 U.S.C. § 55109; 19 C.F.R. § 4.80b; Outer Continental Shelf Lands Act; 43 U.S.C. § 1333. Dear Mr. Papavizas: This letter is in response to your January 25, 2023, ruling request on behalf of your client, [], (“the Company”) regarding whether certain activities related to the installation of electric power transmission cable by a non-coastwise-qualified vessel would violate the coastwise laws. Our decision follows. FACTS The following facts are taken from your ruling request. The Company proposes using a non-coastwise-qualified cable-lay vessel (“CLV”) and a non-coastwise-qualified trencher support vessel (“TSV”) to lay and bury electrical transmission cables on the seabed of U.S. territorial waters. These vessels will also lay and bury electrical transmission cables on the seabed of the U.S. Outer Continental Shelf. Both the CLV and the TSV will be supported by coastwise-qualified offshore support vessels (“OSVs”). These works are carried out for a project permitted under a Bureau of Ocean Energy Management lease off the coast of the state of []. The CLV will be the []. The TSV will be the []. The CLV will pay out and lower cable onto the seabed along existing cable routes between wind turbine foundations and/or offshore substation foundations. At each foundation, a cable protection system comprised of tubular formed stiffening/protection elements will be attached onto the cable-ends onboard the CLV. The cables will be cut to length and prepared aboard the CLV before being paid out along with a cable protection system. Both ends of each cable with attached cable protection systems will then be pulled into and attached within the wind turbine foundations. The trenching machine appurtenant to the TSV will then be placed on the seabed above the paid-out cables, where it will use a submersible tracked jetting trencher (“cable burial jetting tool”) to fluidize the seabed. This will allow the cables to be buried along the pre-agreed cable routes, where they will be used to transmit electric current from the wind turbine generators to offshore substations. The cable burial jetting tool is an electrically powered, tracked trencher that contains jetting “swords” with jetting nozzles distributed over the length of the swords. The nozzles fluidize the seabed soil in front of the trencher to reduce friction and allow the cable to be submerged into the fluidized soil/water mix. This allows the cable to be buried to its required depth. The TSV will carry, deploy, and transport the cable burial jetting tool to the seabed. Both the cables and the cable protection system will be manufactured outside of the U.S. The cables will be manufactured in []. The cable protection system will be manufactured in the []. These items will be transported separately to a U.S.-port by the CLV or by other non-coastwise-qualified vessels to be named later. Various items such as tools, ropes, cable grips, provisions, ships spares and consumables will be transported from a U.S. port or from vessels that are active on the project onto the CLV, TSV and OSVs. These items are necessary for the personal protection, equipment, and provision of the CLV, TSV and OSV crews, operation of the CLV, TSV and OSVs, and will remain on board while these vessels are operational. Used consumables and waste will then be backloaded into containers aboard the CLV or onto the coastwise qualified feeder vessels for final discharge in a U.S. port. The offloaded containers will contain trash and waste related to the operation, including dirty rags, biohazard bags, and wrappings. Finally, once all installation operations conclude, the containers which had been placed on board the CLV containing tools, rigging, and spare parts also will remain on board the CLV when departing the construction site to a non-U.S.-port. The CLV, TSV and OSV vessel crews will consist of approximately [] personnel who will operate the vessel and its machinery or provide services to the crew. This includes positions such as the vessel master, dynamic position operators, officers, deck crew, lifting supervisors, surveyors, cable system operators, helicopter landing officers, cable operators, supervisors, riggers, electricians, chefs and stewards. However, the CLV and TSV will arrive in U.S. waters with an incomplete crew complement and will visit a U.S.-port so that their remaining crewmembers can embark. In addition, new shifts of crew members will embark the coastwise-qualified OSVs at a U.S. port and sail to the project site and will either embark the CLV and TSV from shore-side via coastwise-qualified crew transfer vessels, or airside by FAA-registered helicopters. Any crewmembers disembarking at the end of their rotations will disembark the CLV and TSV in a similar manner. The project installation crew will comprise of approximately [] project installation crew members who will perform installation functions both on board the coastwise-qualified feeder vessels, TSV, and CLV and directly on the cables at the foundations. These crew members’ work will include cable operations, equipment testing, planning, and training. The crew will hold positions such as pulling-in teams, riggers, supervisors, technicians, surveyors, marine warranty surveyors, and client representatives. Coastwise-qualified vessels are used for personnel transport in the field and travelling to/from the shore to the CLV, TSV and stationary foundations. During the cable installation process, members of the project installation crew will disembark from coastwise-qualified vessels and onto the stationary foundations and from the CLV onto the coastwise-qualified vessels to conduct installation activities. The crew will also perform other work such as pre-installation cable tasks on board the CLV, as well as on the feeder and support vessels; this includes inspecting and maintaining the cable handling equipment. The crew will then return to the coastwise-qualified vessels following completion of these tasks. ISSUES Whether the proposed cable laying and burial operations constitute a violation of 46 U.S.C. § 55109? Whether the proposed cable lay and burial operations by a non-coastwise-qualified vessel violate the Jones Act, 46 U.S.C. § 55102? Whether the proposed transportation of the project installation crew by a non-coastwise qualified vessel violates the Passenger Vessel Services Act, 46 U.S.C. § 55103? LAW AND ANALYSIS Generally, the coastwise laws prohibit the transportation of merchandise or passengers 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 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)(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 e