H333884

HQ H333884 June 03, 2024 VES-3-02-OT:RR:BSTC:CCR H333884 HKC CATEGORY: Carriers Stefanos N. Roulakis Blank Rome 1825 Eye Street, NW Washington, DC 20006 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. Roulakis, This letter is in response to your August 15, 2023 ruling request, and subsequent communications, on behalf of your client [ ] regarding whether the transportation and installation of offshore wind export cables and associated seabed preparatory work 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 August 15, 2023 ruling request and subsequent correspondence. Your client has been awarded a contract to perform the transportation and installation of an export cable system (“ECS”) at the [ ] located on Bureau of Ocean Energy Management (BOEM) Renewable Energy Lease Area [ ]. The ECS will consist of two High Voltage Direct Current (“HVDC”) cores and one Fiber Optic (“FO”) cable. In order to complete the project scope, your client will perform various operations on the OCS, to include boulder removal, cable transportation and laying, equipment transportation, jointing operations, cable pull-in, trenching/excavation, and transportation of crewmembers, each of which is described in detail below. ISSUES Whether the relocation of boulders by a non-coastwise qualified vessel would violate the Jones Act, 46 U.S.C. § 55102, or the Dredging Statute, 46 U.S.C. § 55109. Whether the transportation and laying of cable would violate the Jones Act, 46 U.S.C. § 55102. Whether the transportation of cable installation equipment would violate the Jones Act, 46 U.S.C. § 55102. Whether the performance of cable jointing operations, and transportation of associated equipment including joint habitats and temporary cable hang-offs would violate the Jones Act, 46 U.S.C. § 55102. Whether the performance of cable pull-in operations violates the Jones Act, 46 U.S.C. § 55102. Whether the transportation of “free issued items” between different U.S. ports would violate the Jones Act, 46 U.S.C. § 55102. Whether the performance of controlled flow excavation activities by non-coastwise qualified vessels, or trenching works conducted by a jet trenching ROV, would violate the Dredging Statute, 46 U.S.C. § 55109. Whether the transportation and installation of remedial cable protection items would violate the Jones Act, 46 U.S.C. § 55102. Whether excess cable transported to a U.S. port or a foreign port by a non-coastwise qualified vessel would violate the Jones Act, 46 U.S.C. § 55102. Whether the transportation of marine crew personnel, as described below, would violate 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 Jones Act specifically prohibits the coastwise transportation of “merchandise” between coastwise points by non-coastwise qualified vessels. Pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” Further, 46 U.S.C. § 55102(a) also provides: “[m]erchandise includes (1) merchandise owned by the United States Government, a State, or a subdivision of a State; and (2) valueless material.” For purposes of the Jones Act, merchandise also includes “valueless material.” 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, 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, 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 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 Islands, and the Virgin Islands. A non-coastwise-qualified vessel transporting passengers embarking from a U.S. port must disembark them at the same U.S. port in order to avoid a violation of 46 U.S.C. § 55103. A passenger is defined under 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b) as “any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.” Furthermore, the shipboard activities engaged in by such aforementioned individuals while traveling on a non-coastwise-qualified vessel between coastwise ports must be “directly and substantially” related to the operation, navigation, ownership, or 

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 Jones Act specifically prohibits the coastwise transportation of “merchandise” between coastwise points by non-coastwise qualified vessels. Pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” Further, 46 U.S.C. § 55102(a) also provides: “[m]erchandise includes (1) merchandise owned by the United States Government, a State, or a subdivision of a State; and (2) valueless material.” For purposes of the Jones Act, merchandise also includes “valueless material.” 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, 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