H330764

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H330764 April 12, 2023 VES-3-02-OT:RR:BSTC:CCR H330764 HKC CATEGORY: Carriers Joshua P. Stein, Esq. Cozen O’Connor 1200 19th Street, NW Washington, DC 20036 RE: Coastwise Transportation; Outer Continental Shelf; Cable Laying; 46 U.S.C. §§ 55102 and 55103; 46 U.S.C. § 55109; 19 CFR §§ 4.80a and 4.80b Dear Mr. Stein: This letter is in response to your December 13, 2022 ruling request on behalf of your client [ ] regarding whether the transportation and installation of offshore wind export cables on the U.S. outer continental shelf (“OCS”) by non-coastwise-qualified vessels, as described below, would violate the coastwise laws. Our decision follows. FACTS The following facts are from your December 13, 2022 ruling request. Your client has been contracted to perform the transportation and installation of [ ] export cables from [ ] offshore substations at the [ ] Offshore Wind Farm located on the OCS [ ], to onshore connection points at [ ]. The export cables will be manufactured outside of the U.S. and transported by non-coastwise-qualified transport vessels to a port on the East Coast of the U.S. close to the [ ] windfarm site. Once in port, the export cables will be trans-spooled from the transport vessels to a quayside carrousel. The export cables will subsequently be trans-spooled from the quayside carrousel to a different, non-coastwise-qualified cable lay vessel (“CLV”). Once the export cables have been spooled onto the CLV, the CLV will lay [ ], as well as [ ] and interlink cables between the offshore substations. The cable section closest to the offshore substations will be laid on the seabed for wet storage. The cables will be buried using a jetting plow which simultaneously lays and buries the cable, creating a slot trench which closes immediately following the jetting plow’s passage. In the event the jetting plow is unable to achieve the required burial depth, the cable will be buried using a remote operating vehicle jetting tool which will similarly fluidize the soil. The CLV will arrive from Europe laden with concrete mattresses or other protective materials: these materials will remain on the CLV when it enters the U.S. port. In the event the export cable crosses telecommunications cables, these concrete mattresses will be placed by the CLV on top of the telecommunications cables before the export cable is laid. When operating in vicinity of offshore substations and telecommunications cables, the CLV will utilize a Controlled Flow Excavation (“CFE”) tool to lay the cable via seabed liquefication. The CLV will also install cable protection systems, to be loaded on the CLV from a port outside of the U.S., on a portion of the cable before it is laid. Remaining overlengths of export cable will be returned by the CLV to the same point of loading at the same U.S. port. Following cable laying, various operations will occur. A jointing vessel will lift cable sections from the seabed, connect them, and lay them back onto the seabed. Concrete mattresses or rock may be transported by a non-coastwise-qualified foreign vessel directly from a foreign port and installed on the cable as protection. Throughout operations, all crew transfers will be conducted in port or using coastwise-qualified crew transfer vessels. ISSUES Whether the transportation of export cables laden at a foreign port to a quayside point in a U.S. port by a non-coastwise-qualified transport vessel would violate the Jones Act. Whether the lading of export cables at a U.S. port onto a non-coastwise-qualified CLV, the wet storage of these export cables, their subsequent laying into the seabed by the CLV, and other ancillary operations would violate the Jones Act. Whether the use of a jet plow, remote operating vehicle jetting tool, or CFE tool to lay export cable would violate the dredging statute. Whether the transportation of crewmembers aboard the non-coastwise-qualified CLV 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 the purpose of producing non-mineral energy such as wind energy. Pursuant to 46 U.S.C. § 55109, only coastwise-qualified vessels may engage in dredging in the navigable waters of the United States, which provides, in pertinent part: [A] vessel may engage in dredging in the navigable waters of the United States only if— (1) the vessel is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; (2) the charterer, if any, is a citizen of the United States for purposes of engaging in the coastwise trade; and (3) the vessel has been issued a certificate of documentation with a coastwise endorsement under chapter 121 of this title or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. Dredging is defined as “excavation” by any means: The word “excavate” is derived from the Latin word meaning to hollow out. Its common, plain and ordinary meaning is to make a cavity or hole in, to dig out, hollow out, to remove soil by digging, scooping out or other means. The common plain and ordinary meaning of the word “dredging” is the removal of soil from the bottom waters by suction or scooping or other means. Pursuant to 46 U.S.C. § 55103 (“the Passenger Vessel Services Act” or PVSA), only coastwise-qualified vessels may transport passengers between ports or places in the United States, providing in the pertinent part: Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel- (1) wholly owned by U.S. citizens; and (2) has a certificate of documentation with a coastwise endorsement. The coastwise laws apply to the United States, including U.S. island territories and possessions, except for American Samoa, the Northern Mariana Is

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