H334641

HQ H334641 December 17, 2024 VES-3-02-OT:RR:BSTC:CCR H334641 HKC CATEGORY: Carriers Constantine G. Papavizas, Esq. Winston & Strawn LLP 1901 L Street, N.W. Washington, DC 20036 RE: Coastwise Transportation; Outer Continental Shelf; Cable Laying; 46 U.S.C. §§ 55102, 55103, and 55109; 19 CFR §§ 4.80a and 4.80b Dear Mr. Papavizas, This letter is in response to your September 19, 2023 ruling request on behalf of your client [ ] regarding whether vessel activities relating to the installation of a subsea power cable 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 September 19, 2023 ruling request and subsequent correspondence. Your client has been awarded the contract to provide inter-array subsea cable installation services at two separate offshore wind sites located off the coast of [ ] on the OCS. Both the [ ] located at [ ] and the [ ] located at [ ] will be developed by [ ]. At the project sites, the wind turbine generators (“WTGs”) will be connected to each other by subsea power cables or to an offshore sub-station by such cables (referred to as “inter-array cable installation”) and the offshore sub-station will be connected by subsea power cables to an onshore connection for the delivery of power to the local electrical grid (referred to as the “export cable installation”). This request concerns only the inter-array cable installation, which occurs entirely on the OCS more than three nautical miles from shore. Your client proposes to utilize two non-coastwise qualified Cable Installation Vessels (“CIVs”) for this cable installation. These vessels are the [ ], registered in [ ] and constructed in [ ] and the [ ], registered and constructed in [ ]. The cable will be loaded aboard the CIVs either at a foreign port or at a U.S. port. Prior to loading, a foreign-flagged vessel may transport the cable from a foreign port to a U.S. port. The cable installation vessel will be crewed by marine crew and project crew who will perform all the functions associated with installing the power cable including project developer representatives who board the CIV to perform project oversight and inspection functions. Prior to cable installation on the seabed, three types of preparatory work will be undertaken on these OCS sites. First, an out-of-service (“OoS”) cable removal vessel will utilize a grapnel to pick up abandoned OoS cable from the seabed, cut the cable, and deliver cable sections to a coastwise-qualified vessel for delivery to a U.S. port for recycling. If the use of a grapnel is not feasible, the vessel will utilize a grab-equipped ROV to lift the cable after it is uncovered by a controlled flow excavator. The controlled flow excavator will solely utilize water jets to uncover the OoS cable. The cable removal vessel will also have a “clump weight” loaded aboard at a U.S. port. The vessel will attach the clump weight to the end of the remaining OoS cable on the seabed to ensure it remains in place and does not interfere with inter-array cable installation. The OoS cables to be removed from the seabed will consist solely of abandoned telecommunications cables. Second, prior to cable laying operations, a vessel will drag a grapnel along the cable route several times, picking up debris from the seabed to include abandoned fishing nets and discarded rope. Grapnels will periodically be brought on board the vessel where debris will be removed and stored aboard the vessel. In the event any debris recovered from the seabed of the OCS is transported from these OCS seabed locations to a U.S. port, it will be transferred to a coastwise-qualified vessel beforehand. Finally, a survey vessel will use a multi-beam survey tool to map the seabed and anything that may lay on the seabed. The survey tool will not physically contact the seabed. With regards to each of the three vessels above, your client has yet to determine whether to utilize a coastwise-qualified, or non-coastwise-qualified vessel. Additionally, each vessel may pick up as many as [ ] crew members at a U.S. port on the eastern seaboard and offload them at a different U.S. port on the eastern seaboard upon the completion of work. The crew members are likely to consist of a [ ]. Once seabed preparatory work is complete, the inter-array cable will be laid by the CIV by paying it out directly onto the seabed. A cable protection system (“CPS”) will also be installed. The CPS consists of a bend restrictor at the entry of the wind towers and a segmented tubular protection sleeve to protect the cable in the transition between wind tower entry above seabed level and complete burial. The CPS will be picked up along with the cable either at a U.S. port or a foreign port, stored in containers. Prior to the laying of the cable, the CPS will be attached to the cable onboard the CIV; thus the CPS will be paid out from the vessel along with the cable. The CIV may lay cable in stages, returning to a U.S. port to pick up additional cable. The empty CPS containers may be offloaded at a U.S. port other than the port from which it was laded. The CIV would recover the previously laid cable end from the seabed and join it to the new segment of cable to be laid. Once cable laying operations are complete, there is a possibility excess cable originally laded aboard the CIV in a U.S. port will be either (i) unloaded from the CIV at the same berth in the same U.S. port where it was originally loaded, or (ii) unloaded from the CIV at a different port if the amount of excess cable is determined to be de minimis. After the cable has been laid, it will be buried using a tracked underwater remotely operated vehicle (“ROV”). Your client is contemplating using one of four ROV models to complete this burial. The [ ] and the [ ] would [ ]. On the other hand, the [ ] would utilize [ ]. The fourth model, the [ ] utilizes solely a [ ] for burial. Each ROV is capable of creating a slice into the seabed [ ] deep and [ ] wide, and simultaneously buries the cable while trenching the seabed. None of the ROVs utilize a plough or hoe-type mechanism. ISSUES Whether transportation of subsea power cable from a foreign or a U.S. port by a foreign vessel, as described above, prior to cable lay operations would violate the Jones Act, 46 U.S.C. § 55102. Whether the use of a foreign vessel to lay subsea power cable, as described above, would violate the Jones Act, 46 U.S.C. § 55102. Whether the return of a de minimis amount of excess power cable by a foreign cable installation vessel to the exact location from which it was laden, as described above, would violate the Jones Act, 46 U.S.C. § 55102. Whether the transportation of a de minimis amount of excess power cable by a foreign cable installation vessel between U.S. ports, as described above, would violate the Jones Act, 46 U.S.C. § 55102. Whether the employment by a foreign vessel of a pure chain cutting device, a hybrid water jet/chain cutter device, or a pure water jet device on the OCS seabed to bury subsea power cable, as described above, would violate the Dredging Statute, 46 U.S.C. § 55109. Whether the use of a foreign vessel to engage in a pre-lay grapnel removal of out of service cable and debris, as described above, and subsequent transportation of such cable and debris to a U.S. port for recycling by a coastwise qualified vessel would violate the Dredging Statute, 46 U.S.C. § 55109. Whether the transportation of containers containing cable protection materials between two U.S. ports by a foreign cable installation vessel, as described above, would violate the Jones Act, 46 U.S.C. § 55102. Whether the use of a foreign vessel to conduct survey operations, as described above, would violate the coastwise laws. Whether the transportation of marine crew personnel between points in the United States by a foreign cable installation vessel, out of service cab

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, 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 non-mineral energy such as wind energy.Pursuant to 46 U.S.C. § 55109, only coastwise-qualified vessels may engage in dredging in t