H338525

HQ H338525 May 28, 2024 VES-3-02-OT:RR:BSTC:CCR H338525 HKC CATEGORY: Carriers Constantine G. Papavizas, Esq. Winston & Strawn LLP 1901 L Street, N.W. Washington, DC 20036 RE: Coastwise Transportation; Outer Continental Shelf; Wind Turbines; 46 U.S.C. §§ 55102; 19 CFR §§ 4.80b; 43 U.S.C. § 1333. Dear Mr. Papavizas: This letter is in response to your April 9, 2024 ruling request on behalf of your client [ ] regarding whether various ancillary vessel activities relating to the installation of monopile foundations 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 April 9, 2024 ruling request. Your client has been contracted to perform the transport and installation of monopile foundations for the [ ], located entirely on the U.S. OCS on BOEM Lease Area [ ] (the “lease area”). The lease area is approximately [ ]. [ ] will consist of up to [ ] wind turbine generators (“WTG”) and [ ] Offshore Converter Stations. Monopile installation activities will involve the movement and use of (1) navigation aids, (2) anode cages, and (3) bubble curtains. We discuss each set of ancillary operations in detail below. Navigation Aids Your client proposes using two foreign-flagged installation vessels (“IVs”) to install monopile foundations in the lease area. Both IVs are floating and do not have jack-up capabilities. The first IV, [ ] (“IV 1”), will install a monopile foundation, and place navigation aids on the foundation it just installed. The navigation aids will be loaded aboard IV 1 at a European port and remain on the foundation for an interval of time, after which the second IV, [ ] (“IV 2”), will arrive to install secondary steel elements on top of the foundation. IV 2 will lift the navigation aids off the monopile foundation and place them on a coastwise-qualified vessel. IV 2 will then proceed to install steel elements (transported to the installation site from a U.S. port using a coastwise-qualified vessel) atop the foundation. Once the navigation aids are loaded aboard the coastwise-qualified vessel, they will either (1) be transported by the coastwise-qualified vessel to a second monopile foundation, where the first IV will lift them onto the foundation, or (2) be transported directly to IV 1, where the IV will lift the navigation aids on its deck, travel to the second monopile foundation, and place the navigation aids aboard the second foundation. Once construction of all monopiles is complete, the navigation aids will travel on board the deck of IV1 to a European port. All movement of the navigation aids between the deck of the IV 1, the monopile foundations, and the coastwise-qualified vessel will occur using IV 1’s cranes while IV 1 remains stationary. Anode Cages As part of monopile installation, anode cages will be placed by one of the IVs around the monopile foundations. An anode cage consists of a ring-shaped steel structure with anodes on it which fits around the bottom of the monopile to prevent it from rusting. The anode cages in this project will be transported from a U.S. port to one of the IVs located at the monopile foundation. There, one of the IV’s cranes will lift the anode cage from the coastwise-qualified vessel to the IV’s deck while the IV remains stationary. Aboard the IV’s deck, a separate rigging tool will be attached to the anode cage. The IV’s crane will then lift the anode cage from the IV’s deck to the monopile foundation while the IV remains stationary. Bubble Curtains Prior to monopile foundation installation, double bubble curtains will be temporarily placed at the installation site for noise and vibration mitigation purposes. The double bubble curtains consist of two hose reels with loaded hoses. The inner hose is placed at a radius of between [ ] meters from the monopile installation site. The outer hose is placed surrounding the inner hose at an even greater radius. Two potential installation scenarios are currently contemplated: Scenario A: A foreign-flagged vessel (“the Bubble Curtain Vessel” or “BCV”) loads up to five hose reels at a foreign port. The BCV sails to a U.S. port, and offloads two hose reels at the U.S. port. The BCV sails with the remaining three hose reels to the lease site, where it lays two hoses using two of the hose reels surrounding the installation site. The installation site will be pristine with the exception of scour protection in the area where the monopile will be installed. The third hose reel remains aboard the BCV as a spare. Once the hoses have been laid, the BCV sails to a U.S. port where it offloads the two empty hose reels. It will load two full hose reels and sails to a second work site where it lays two more hoses. The BCV then returns to the first installation site, where it uses air compressors to inflate the two hoses there, creating the bubble curtains while monopile installation occurs. Once monopile installation is complete, the BCV picks up the two hoses and transports them to a third installation site where they are laid. This leapfrogging process continues until all monopiles are installed, after which the BCV recovers all five hose reels and hoses and returns them to a foreign port. Scenario B: A foreign-flagged vessel (“BCV”) transports three reels and hoses from a foreign port directly to the first monopile installation site, where it lays two of the hoses. One of the IVs loads the remaining reels and hoses at a foreign port, and arrives in the U.S. territorial sea with the reels and hoses aboard. The BCV then meets one of the IVs at a location less than three nautical miles from the U.S. coast where it offloads one or two empty hose reels onto the IV and loads another two hose reels with hoses from the IV. The BCV then uses these two hose reels to lay hose at the second installation site. After this, the BCV returns to the first installation site and inflates the two hoses there, creating the bubble curtains while the monopile is installed. It then recovers the two hoses and lays them at the third installation site, proceeding in a leapfrogging fashion as described in Scenario A. Once all foundations are installed, the BCV meets one of the IVs at a location less than three nautical miles from the U.S. coast, where it offloads one or two full hose reels onto the IV. The IV transports these hose reels to a foreign port where they are unloaded. The BCV then transports the remaining full hose reels to a foreign port. ISSUES Whether the transportation and installation of navigation aids, as described above, violates the Jones Act, 46 U.S.C. § 55102? Whether the transportation and installation of anode cages, as described above, violates the Jones Act, 46 U.S.C. § 55102? Whether the transportation and installation of bubble curtains, as described above, violates the Jones Act, 46 U.S.C. § 55102? 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 

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.Issue One: Whether the transportation and installation of navigation aids, as described abo