H341844

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H341844 October 16, 2024 OT:RR:BSTC:CCR H341844 HKC CATEGORY: Carriers Emily S. Huggins Jones Locke Lord LLP 701 8th Street, N.W. Suite 500 Washington, DC 20001 RE: Coastwise Transportation; Outer Continental Shelf; Jack-Up Barge; Hotel; Gangway; 46 U.S.C. §§ 55102 and 55103; 19 CFR §§ 4.80a and 4.80b; 43 U.S.C. § 1333. Dear Ms. Huggins Jones: This letter is in response to your August 20, 2024 ruling request on behalf of your client [ ] regarding whether the use of jack-up barges equipped with hotel accommodations and catering services for workers involved in offshore wind construction 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 August 20, 2024 ruling request and subsequent correspondence. Your client has been engaged by [ ] to provide a jack-up barge [ ] (“the Jack-Up Vessel”) outfitted with hotel and office accommodations to support construction of the [ ] offshore wind project. The project will consist of a wind turbine generator (“WTG”) array as well as two offshore substations (“OSS”). The Jack-Up Vessel will be utilized specifically to house OSS Commissioning Personnel responsible for supporting commissioning activities at the two OSS sites. These OSS Commissioning Personnel will consist of commissioning managers, commissioning supervisors, logistics coordinators, Supervisory Control and Data Acquisition (“SCADA”) representatives, fabrication inspectors, protection engineers, onshore and offshore management specialists, offshore specialist system engineers, transformer and shunt reactor engineers and advisors, scaffolders, and general supervisors. Your client’s Jack-Up Vessel was constructed in [ ] and is currently flagged in [ ]. The Jack-Up Vessel will be transported by a foreign-flagged Heavy Lift Vessel from Rotterdam, the Netherlands to a safe and suitable position offshore of Rhode Island outside of the U.S. territorial sea where it will be offloaded with 22 core marine operational crew members on board. The core marine crew will consist of individuals responsible for navigation of the Jack-Up Vessel, positioning operations, jack-up/down operations, deck operations, vessel/equipment maintenance, and emergency functions such as lifesaving and firefighting. The Jack-Up Vessel will subsequently conduct vessel entry and take on fuel bunkers at one of several ports in the area, either [ ]. The Jack-Up Vessel will then travel under its own power to the first OSS site, located outside the U.S. territorial sea on the OCS, where it will jack down at a pristine seabed site located near the first OSS. The OSS will be already attached to the seabed, sitting atop a “jacket” consisting of a series of legs, when the Jack-Up arrives. Once the Jack-Up Vessel is secured to the seabed, the OSS Commissioning Personnel, as well as an additional 14 subcontractor personnel responsible for performing hotel and catering services aboard the vessel, will be transported from shore to the Jack-Up Vessel using either a coastwise-qualified crew transfer vessel or a U.S. registered helicopter. Once aboard, the OSS Commissioning Personnel will walk between the Jack-Up Vessel and the first OSS utilizing a gangway to be deployed from the Jack-Up Vessel to the OSS. Once commissioning activities at the first OSS are complete, the OSS Commissioning Personnel and the 14 subcontractor personnel will depart the Jack-Up Vessel utilizing coastwise-qualified crew transfer vessels. During the operations described above, the Jack-Up Vessel will receive supplies consisting of fuel, food, and drink from coastwise qualified supply vessels. These supplies will be laden aboard the Jack-Up Vessel using the Jack-Up Vessel’s crane. Separately, coastwise-qualified supply vessels will transport OSS tools and parts directly to the OSS without taking them aboard the Jack-Up Vessel. Any fuel and provisions remaining on board the Jack-Up Vessel will be transported to shore utilizing a coastwise-qualified supply vessel before the Jack-Up Vessel departs the first OSS site. The Jack-Up Vessel will then detach itself from the seabed, with only the 22 core marine operational crew members on board, and depart for the second OSS site. Once at the second OSS site, the process described above will be repeated. Upon the completion of OSS commissioning activities at the second site, the OSS Commissioning Personnel, subcontractor personnel, and all merchandise will be offloaded utilizing coastwise-qualified vessels. The Jack-Up Vessel will subsequently depart for a safe and suitable location off the coast of Rhode Island outside the U.S. territorial sea, where it will be loaded back aboard the Heavy Lift Vessel for transportation to Europe. Most of the 22 core marine crew will board the Heavy Lift Vessel, while a handful will remain aboard the Jack-Up Vessel to assist with loading operations. Once the Jack-Up Vessel is loaded aboard the Heavy Lift Vessel, all 22 core marine crew members will be transported to Europe aboard the Heavy Lift Vessel. As a preliminary matter, CBP previously has determined that use of a dynamically positioned floating hotel (“floatel”) on the OCS to support oil and gas infrastructure development would not violate the coastwise laws. CBP further noted that there would be no coastwise violation even if the floatel were anchored to the seabed, reasoning that such a use would not constitute the transportation of passengers or merchandise between coastwise points. Consistent with this analysis, CBP does not consider the use of a jack-up vessel as a hotel to violate the coastwise laws. ISSUES Whether the transportation of merchandise by coastwise-qualified supply vessels, between a U.S. port located on the eastern seaboard and a jack-up vessel secured to the seabed of the U.S. OCS as described above, violates the Jones Act, 46 U.S.C. § 55102? Whether the transportation of core marine operational crew, subcontracted hotel personnel, and OSS Commissioning Personnel between coastwise points, as described above, 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, 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. (E

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 of merchandise by coastwise qualified supply vessels,