H338702

HQ H338702 August 13, 2024 VES-3-02-OT:RR:BSTC:CCR H338702 SEH 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 and 55103; 19 C.F.R. §§ 4.80a and 4.80b; 43 U.S.C § 1333. Dear Mr. Papavizas: This letter is in response to your April 16, 2024, ruling request on behalf of your client [ ] regarding whether the installation of wind turbine generators (“WTG”) and associated operations 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 16, 2024, ruling request and the supplemental information you submitted via email on June 10, 2024, and June 17, 2024 (collectively “ruling request”). Your client proposes to install approximately [ ] WTG units for a project organized by [ ] pursuant to a lease issued by the U.S. Bureau of Ocean and Energy Management. The project is located in federal waters on the OCS located off the coast of [ ] at approximately [ ]. The project installation of up to [ ] WTGs is scheduled to commence as early as [ ]. The proposed transportation of the WTG units from a U.S. port located on the eastern seaboard, to installation sites on the OCS will be conducted by a coastwise-qualified tug and a coastwise-qualified barge (the “Tug and Barge”). [ ] is the marshalling/feeder port for the barge carrying large components. At the installation sites, the WTGs will be installed by a foreign-flagged jack-up vessel (“jack-up vessel”), the [ ], which was constructed in [ ] and registered in [ ]. Monopile foundations and transition pieces will already be installed when the jack-up vessel commences WTG installation. Prior to installation, the jack-up vessel will travel to the first WTG installation site on the OCS under its own power, secure its retractable legs to the seabed, and jack up to installation height. After the jack-up vessel establishes itself at the installation site, the coastwise-qualified Tug and Barge will moor alongside the jack-up vessel, which will remain grounded on the OCS. The components for a single WTG, contained in shipping frames, will be lifted onto the deck of the jack-up vessel using the jack-up vessel’s crane. Additionally, one or more shipping containers containing WTG nuts and bolts, spare parts for the jack-up vessel, and provisions will be lifted on the jack-up vessel from the coastwise-qualified Tug and Barge. Finally, a second set of shipping containers, consisting of office spaces, tools, rigging equipment, and spare parts for the jack-up vessel will be laded onto the jack-up vessel from the coastwise-qualified Tug and Barge. After receiving WTG components from the Tug and Barge, crew members onboard the jack-up vessel will install the WTG units onto the pre-constructed monopile foundations. The jack-up vessel will remain stationary on the seabed via retractable legs throughout this process. Once the first installation is complete, the jack-up vessel will jack down and sail to the second WTG installation site. Onboard it will have the empty shipping frames and devices as well as shipping containers which were loaded for the first installation site. At the second installation site, the empty shipping frames, and shipping containers filled with waste, dirty rags, etc. will be offloaded onto the coastwise-qualified Tug and Barge, and a new set of WTG components and containers will be laded aboard the jack-up vessel. All WTG bolts and nuts will be consumed in the WTG construction process before the Jack Up Vessel departs the initial installation site. Accordingly, the Jack Up Vessel will not transport any WTG components between WTG sites. The Tug and Barge will then return to a U.S. port on the eastern seaboard. The second set of shipping containers, consisting of office spaces and tools etc., will remain on the jack-up vessel until the WTGs have been installed. [ ] scope does not include the transport of the WTG components. The jack-up vessel will be jacked up at the installation site, the components are then transported to the jack-up vessel via feeder Tug and Barge. The components are lifted onto the jack-up vessel’s deck for a short period of time, then installed while still jacked up. Regarding nuts and bolts, there will be a certain number to secure the towers at each site and these will be replenished by new ones at the next site transported to the jack-up vessel by Tug and Barge from a U.S. port once the jack-up vessel is jacked up at a subsequent work site. This process will be repeated at each installation site. All personnel will work a rotation based on five weeks onboard the vessel and five weeks in their home country. Personnel will arrive with the vessel from a foreign port and will rotate off the vessel while near the United States via U.S.-registered, operated, and crewed helicopter. Some personnel will go on board installed foundations, conduct operations, and then be recovered by the jack-up vessel for work on subsequent foundations. Once installation is complete at the final installation site, the containers for office spaces and tools etc., will be unladed onto the coastwise-qualified Tug and Barge and returned to a U.S. port located on the eastern seaboard. ISSUES Whether the transportation of the WTG components by a coastwise-qualified tug and barge from a U.S. port located on the eastern seaboard, to an anchored, non-coastwise-qualified jack-up vessel located on the OCS violates the Jones Act, 46 U.S.C. § 55102? Whether the installation of the subject wind turbine generators by the non-coastwise-qualified jack-up vessel on the OCS violates the Jones Act, 46 U.S.C. § 55102? Whether transportation of certain empty shipping frames, containers, tools, and materials as described above between coastwise points by the non-coastwise-qualified jack-up vessel violates the Jones Act, 46 U.S.C. § 55102? Whether the transportation of the marine crew and project crew between coastwise points by the non-coastwise-qualified jack-up 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 C.F.R. § 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 OCS