US Customs Issues Cable Operation Ruling Helpful To Offshore Wind – Transport – United States – Mondaq News Alerts

11 November 2021

Winston & Strawn LLP

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On November 9, 2021, U.S. Customs And Border Protection MadePublic A Ruling Dated November 2 Regarding The LayingAnd Burial By A Foreign Vessel Of Fiber Optic Cable In U.S. WatersAnd The Transportation Of Technicians By That Vessel. The RulingWould Apply Equally To The Laying And Burial Of Power Cable AndFurthers Substantially The Understanding Of What Operations AForeign Vessel May Undertake In U.S. Waters.

CBP Has Long Held That A Foreign Vessel May Pick Up Pipe OrCable In A U.S. Port And Lay It From That Point To Another Point InThe United States Or Otherwise Between Two U.S. Points. TheRationale Is That The Laying Of Pipe Or Cable Is Not The&Ldquo;Transportation&Rdquo; Of&Ldquo;Merchandise&Rdquo; Between Two U.S. Points Which IsProscribed By U.S. Coastwise Law Known As The &Ldquo;Jones Act.&Rdquo; This Holding WasAffirmed In The November 2 Ruling.

More Importantly, U.S. Law Also Restricts&Ldquo;Dredging&Rdquo; In U.S. Waters To QualifiedU.S.-Flag Vessels. &Ldquo;Dredging&Rdquo; Generally Means&Ldquo;Excavation&Rdquo; Which Is Turn CBP Defines To Mean&Ldquo;Hollow Out&Rdquo; Or &Ldquo;To Remove Soil ByDigging, Scooping Out Or Other Means.&Rdquo; U.S. Waters MeansU.S. Territorial Waters Which Extend Three Nautical Miles From TheU.S. Coast And Beyond On The U.S. Outer Continental Shelf If TheLaying Of Cable Or Pipe Is Related To The Exploration, Development,Or Production Of &Ldquo;Resources&Rdquo; Which IncludesRenewable Energy Resources (As Of January 1, 2021).

The Requester Proposed Utilizing A Proprietary Self-PropelledCable Burial Tool To Simultaneously Lay The Cable And Bury It In ANarrow Trench In U.S. Territorial Waters. The Tool Is Equipped WithWater Jets And Jetting Nozzles To Fluidize The Soil And Utilizes ACutting Wheel Or Digging Chain To Cut Through Hard Sediment AndRock. Consistent With A Few Prior Rulings, CBP Ruled That The UseOf This Cable Burial Tool Did Not Constitute&Ldquo;Dredging&Rdquo; Within The Meaning Of The LawBecause It Would Not Use A Mechanical Hoe Or Plow.

The Requester Also Asked CBP To Confirm That The Foreign VesselCould Pick Up A Few Technicians In A U.S. Port And Either ReturnThem To The Same U.S. Port Or To A Canadian Port At The End Of TheVessel&Rsquo;S Operational Program. U.S. Law Restricts TheTransportation Of &Ldquo;Passengers&Rdquo; Between Two U.S.Points To Qualified U.S.-Flag Vessels. CBP Determined On November 2That The Technicians Were Not &Ldquo;Passengers&Rdquo; InThat &Ldquo;They Are Required To Be Onboard To Contribute ToThe Accomplishment Of The Operation Or Navigation Of The VesselDuring The Voyage Or Are Onboard Because Of A Necessary VesselOwnership Or Business Interest During The Voyage.&Rdquo;Therefore, The Foreign Vessel Could Lawfully Take On TheTechnicians At One U.S. Port And Later Deliver Them To A DifferentU.S. Port.

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US Customs Issues Cable Operation Ruling Helpful To Offshore Wind - Transport - United States - Mondaq News Alerts