VES-3-15 OT:RR:BSTC:CCI H143075 LLB
Category: Carriers
Jonathan K. Waldron, Esquire
Blank Rome LLP
Watergate
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037
RE: 46 U.S.C. § 55102; 19 C.F.R. § 4.80b(a); wind turbines; crane.
Dear Mr. Waldron:
This letter is in response to your January 11, 2011, ruling request on behalf of your client, Deepwater Wind Holdings (DWH), regarding whether the transportation of wind turbines aboard foreign-flagged vessels in waters off the northeast coast of the U.S., as described below, would violate the coastwise laws. Our decision follows.
FACTS
The following facts are from your January 11, 2011, ruling request. DWH is in the process of planning the installation of two new wind farms off the coast of Rhode Island. The first wind farm, the Block Island Wind Farm (BIWF), will be located within three nautical miles southeast of Block Island and will involve the installation of five turbines. Each of the five BIWF turbines will be installed on separate steel jacket foundations connected to the seabed by foundation piles similar to structures designed for oil and gas platforms. The second wind farm, the Deep Wind Energy Center (DWEC), will be located in the southern Rhode Island Sound, 20 miles off the U.S. mainland, and will involve the installation of 200 turbines. DWH plans to commence site preparation for the BIWF in late 2011 and the DWEC in late 2012.
The transportation and installation for each project are the same. The turbines will be laden aboard either a non-coastwise qualified vessel in Bremerhaven, Germany or aboard a coastwise-qualified vessel in Quonset Point, Rhode Island and transported from either of those points directly to the steel jacket foundations at their respective project sites. At the sites, a
foreign-flagged jack-up lift vessel will extend its legs to secure it to the seabed and using its crane, lift the turbines from their transporting vessels and place them on the steel jacket foundations. The jack-up lift vessel will not transport any passengers or merchandise to, or between, any of the installation sites.
ISSUE
Whether the transportation and the subsequent placement of the turbines, as described above, violates 46 U.S.C. § 55102 and 19 C.F.R. § 4.80b(a).
LAW AND ANALYSIS
You assert that the placement of the turbines by the crane of the jack-up lift vessel does not violate 46 U.S.C. § 55102 because the jack-up lift vessel does not move during such placement. Pursuant to 46 U.S.C. § 55102, 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 foreign port, unless the vessel—
(1) is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and
(2) 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.
Pursuant to 46 U.S.C. § 55102(a), "[m]"erchandise, includes (1) merchandise owned by the United States Government, a State, or a subdivision of a State; and (2) valueless material." As such, any cargo, regardless of its value or ownership, would be considered merchandise for the purpose of 46 U.S.C. § 55102. The U.S. Customs and Border Protection (CBP) regulations promulgated under the authority of 46 U.S.C. § 55102(a), provide in pertinent part:
A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise laden at a point embraced within the coastwise laws (“coastwise point”) is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise.
19 C.F.R. § 4.80b(a).
With regard to the Block Island Wind Farm, you state the turbines may be laden aboard non-coastwise qualified vessels in Germany and unladen at steel jacket foundations within and outside U.S. territorial waters. Insofar as the foregoing transportation of the turbines does not contemplate transportation between coastwise points, the foregoing voyage would not be considered coastwise transportation within the meaning of 46 U.S.C. § 55102 and 19 C.F.R. § 4.80b(a).
With regard to the DWEC, you also state the turbines may be laden aboard coastwise-qualified barges in Rhode Island and unladen at steel jacket foundations within and outside U.S. territorial waters. Because turbines will be transported between the foregoing locations by coastwise-qualified vessels, there would be no violation of 46 U.S.C. § 55102 and 19 C.F.R. § 4.80b(a).
With regard to the placement of the turbines, you state they will be moved from their transporting vessels by the crane of a jack-up lift vessel onto the steel jacket foundations at the project sites. CBP has held that the use of a crane that is aboard a non-coastwise qualified vessel to load and unload cargo is not coastwise trade within the meaning of 46 U.S.C. § 55102 “provided, that any movement of merchandise is effected exclusively by the operation of the crane and not by the movement of the vessel, except for necessary movement which is incidental to a lifting operation while it is taking place.” See HQ H008396 (June 4, 2007); HQ 113358 (Apr. 4, 1997); and HQ 106351 (Nov. 1, 1983). Similarly, in the present case, the jack- up lift vessel will be attached to the seabed and movement of the turbines from the transporting vessels to the steel jacket foundations will be effected the stationary jack-up lift vessel’s crane. Accordingly, since the movement of the turbines is being effected exclusively by the crane such movement is not coastwise trade.
HOLDING
The transportation and placement of the turbines, as described above, does not violate 46 U.S.C. § 55102 and 19 C.F.R. § 4.80b(a).
Sincerely,
George Frederick McCray
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Immigration Branch
Office of International Trade, Regulations & Rulings