VES-3-15 CO:R:P:C 110959 BEW

Martha J. Schoonover, Esq.
Fulbright & Jaworski
1150 Connecticut Avenue, N.W.
Washington, D.C. 20036

RE: Applicability of the coastwise laws to transportation and installation of marker buoys to be used as a lateral mooring system for a tension leg platform on the United States outer Continental Shelf; 46 U.S.C. App. 883; 43 U.S.C. 1331

Dear Ms. Schoonover:

This is in reference to your letters of March 30, April 5, April 24 and July 17, 1990, concerning your request for a ruling on the impact of the coastwise trading provisions of the Jones Act on the transportation and installation of a lateral mooring system (LMS) to be connected to a tension leg platform (TLP) to be used for deep water oil and gas production and development on the United States outer Continental Shelf (OCS) in the Gulf of Mexico.

FACTS:

You state that in approximately three years, Shell Offshore, Inc. (Shell) plans to install a TLP for deep water petroleum exploration and production on the OCS in the Gulf of Mexico. The site is approximately 150 miles from shore off the coast of Louisiana. You state that when the TLP is first brought to the site, it will be moored using a LMS consisting of eight lines, each anchored to the OCS.

You state that the LMS will consist of eight or more individual mooring lines made up of wire rope, chain, buoys, and anchors. You state that the LMS will eventually help secure the TLP in place and move it laterally when needed, and will be installed in two separate phases, as much as one year apart. Its purpose is to move and hold the hull and deck in various surface positions during drilling and production activities and to help to hold the TLP on location during storm conditions.

For the transportation and installation of the eight preset LMS, you state that Coflexip will use the FLEXSERVICE III, a foreign-owned vessel built in Norway and registered in the Bahamas.

The components of each preset LMS would be transported from a port in Houston, Texas, to the installation site aboard the FLEXSERVICE III. The anchor would be deployed first by attaching it to the ground wire and lowering it to the sea bed. The various other components, the dip chain, riser wire, lower connection pendant, riser buoy, upper connection pendant, pendant with flotation collars and finally the marker buoy, would be sequentially connected and deployed by the FLEXSERVICE III. At the conclusion of the first phase of installation of the LMS, each of the eight present LMS "legs" would have been deployed.

The eight preset LMS would remain exactly as installed by the LMS contractor for up to a year, until the TLP is brought to the site and installed; they would not be connected to each other or to anything else, except to the seabed by the anchor, unless a drilling vessel employed by Shell would require their use at the site prior to the arrival of the TLP. They would be marked only by marker buoys, one marker buoy to each leg.

You state that as a part of the second phase, i.e., the attachment of the LMS to the TLP, the marker buoys of each leg would be retrieved and the intermediate and platform sections of the LMS would be installed and attached to the TLP. The marker buoy and pendant with flotation collars would be part of the LMS only to facilitate the eventual retrieval of the preset LMS, and would not be incorporated in the eventual lateral mooring system.

In your letter dated April 5, 1990, you state that at the present time there is nothing on the seabed at the LMS site, but that at the time that Coflexip would install its preset LMS, there might be one or more temporarily abandoned wells in the vicinity of the LMS installation site. The wells will not be marked on the surface by a buoy marker or other device or installation.

Additional facts stated in your April 24, 1990, letter indicate that the mission of the FLEXSERVICE III is to pay out a series of chains and wires which will eventually be used by the TLP as the LMS, that the FLEXSERVICE III is designed to pay out cable and flexible pipe from a basket on its deck. It is used exclusively for such cable or pipe laying operations, and it is not used to transport cargo. The LMS system will be paid out from the FLEXSERVICE III in the following series of steps:

1. The cables and associated items on the layout and configuration of the FLEXSERVICE III (submitted with your request) are all items on the vessel which are to be integral parts of the mooring system or are the ship's equipment necessary to install the LMS.

2. Each of the eight LMS to be installed consists of an anchor, a wire rope ground wire, a dip chain, a wire rope riser wire, upper and lower wire rope connection pendants, a riser buoy, a pendant with flotation collars and a marker buoy.

You request that we rule on the following issues.

ISSUES:

1. Is the installation site on the OCS, at which the only contact with the seabed is a temporary wire rope and chain, attached to the seabed by an anchor and marked only by marker buoys, one marker buoy to each leg, an anchor mooring system (LMS), which is intended to hold the hull and superstructure (TPL) on location during exploration, development, and production of oil resources on the OCS, a coastwise point.

2. Is the installation site on the OCS for purposes stated in issue 1, where there are one or more temporarily abandoned wells in the vicinity, a coastwise point during the initial installation.

3. If the installation site of the LMS is a coastwise point would a foreign flag vessel be in violation of the coastwise laws when the foreign-vessel is a cable laying vessel and is laying cable or pipe-laying?

4. Whether the installation of a lateral mooring system as described in the FACTS is cable-laying within the meaning of the coastwise laws.

LAW AND ANALYSIS:

Section 27 of the Act of June 5, 1920, as amended (41 Stat. 999; 46 U.S.C. App. 883, often called the Jones Act), provides, in pertinent part, that:

No merchandise shall be transported by water, or by land and water, on penalty of forfeiture of the merchandise (or a monetary amount up to the value thereof as determined by the Secretary of the Treasury, or the actual cost of the transportation, whichever is greater, to be recovered from any consignor, seller, owner, importer, consignee, agent, or other person or persons so transporting or causing said merchandise to be transported), between points in the United States ... embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States ....

For purposes of the coastwise laws, a point in United States territorial waters is considered a point embraced within the coastwise laws. The territorial waters of the United States consist of the territorial sea, defined as the belt, 3 nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline.

Section 4(a) of the Outer Continental Shelf Lands Act of 1953, as amended (67 Stat. 462; 43 U.S.C. 1333(a)) (OCSLA), provides, in pertinent part, that the laws of the United States are extended to:

... the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all 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 there- from ... to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State.

Under this provision, Customs has ruled that the coastwise laws and other Customs and navigation laws are extended to mobile oil drilling rigs during the period they are secured to or submerged onto the seabed of the United States OCS. The same principles have been applied to drilling platforms, artificial islands, and similar structures attached to the seabed of the OCS for the purpose of resource exploration operations, including warehouse vessels anchored over the OCS when used to supply drilling rigs on the OCS.

Section 203 of the OCSLA Amendments of 1978 (92 Stat. 629, 635) (1978 Amendments), amended section 4(a) of the OCSLA by substituting "... and all installations and other devices permanently or temporarily attached to the seabed ..." for "... and fixed structures ...." The purpose of this change was stated in the legislative history to be to make it clear "... that Federal law is to be applicable to all activities on all devices in contact with the seabed for exploration, develop- ment, and production." Thus, Federal law was intended "... to be applicable to activities on drilling ships, semisubmersible drilling rigs, and other watercraft, when they are connected to the seabed by drillstring, pipes, or other appurtenances, on the OCS for exploration, development, or production purposes." (reproduced at 1978 U.S.C.C.A.N. 1450, 1534.)

On the basis of the 1978 Amendments, we ruled that the coastwise laws extend to devices such as a well casing with attendant accessory systems when submerged into the seabed of the OCS (see C.S.D. 81-95). We modified that ruling (see C.S.D. 84- 96) by holding that a point at which no well has been sunk into the seabed is not a coastwise point even if there are unrelated buoys or wells in the general vicinity. We also ruled that marker buoys attached to the OCS to mark drilling sites will not be considered coastwise points within the meaning of the OCSLA. This is based upon the legislative history to the 1978 Amendment to the OCSLA which states that for the purposes of the coastwise laws, the term "installations and other devices" in the OCSLA may be limited to something to which merchandise or passengers can be transported and on which they can be unladen (see House Conference Report No. 95-1474, dated August 10, 1978, page 124). We assume for purposes of this ruling that the marker buoy cannot be so employed.

Accordingly, marker buoys attached to the OCS for possible future use with a TLP will not be considered coastwise points within the meaning of the OCSLA until the time of attachment to a drill ship or TLP. In addition, a non-coastwise-qualified vessel may be used to transport merchandise between a point in the territorial waters and a point at which no buoy marker is submerged onto or attached to the shelf and no well has been sunk into the seabed, even if there are buoys or wells in the general vicinity, provided that such points are unrelated to the subject activity.

You state that there may be temporarily abandoned wells at or in the vicinity of the site where the LMS will be installed. We have ruled that the plugging and permanent abandonment of a well on the OCS results in the well no longer being considered a coastwise point by virtue of the OCSLA (see Customs Service Decision (C.S.D.) 83-13 and ruling dated July 9, 1984, File Number 106910). However, the platform from which such a well is drilled, while it is attached to the OCS, remains an "installation" or "other device" attached to the seabed for the purpose of exploring for, developing, or producing resources therefrom. We have ruled that a drilling rig at anchor on the OCS, whether preparatory to, at the conclusion of, or during activities related to the exploration or exploitation of the OCS, is a "fixed structure" for purposes of the OCSLA (before the 1978 Amendment, see ruling letters 105123 and 101466, and subsequent rulings 109516 PH and 110385 PH).

In order to be permanently abandoned, the well must be plugged and abandoned in accordance with the requirements of the Department of the Interior (DOI) (See 30 CFR part 250).

In the case under consideration, you indicate that the abandoned wells will be temporarily abandoned, that they will not be plugged and abandoned in accordance with DOI requirements, that the wells may be exploratory wells and not production wells. Because the said regulations are DOI regulations, and subject to approval by the Agency, the plugging and capping procedures may vary somewhat from well to well depending on the circumstances. Accordingly, we find that installation of the LMS at a site where there are temporarily abandoned wells, is a coastwise point and transportation of the LMS to such site would be in violation of the coastwise laws.

With regard to the issues relating to cable-laying and pipe laying, the operation differs from the precedents which address the paying out of communication cables between two coastwise points within the territorial or international waters of the U.S. The operation as described would be prohibited by 46 U.S.C. App. 883.

HOLDINGS:

1. The installation site on the OCS, at which the only contact with the seabed is a temporary wire rope, chain, an anchor mooring system (LMS) which is intended to hold the hull and superstructure (TPL) on location during exploration, development, and production of oil resources on the OCS, is not a coastwise point during the installation of the marker buoys, until the time of attachment to a drill ship, TLP or other point at which merchandise or passengers can be unladed.

2. The installation site on the OCS for purposes stated above, where there are one or more temporarily abandoned wells at the installation site, is a coastwise point during the installation of the LMS, which will be used for the production of oil and gas because there would be "[an] installation [or] other device ... attached to the seabed ... for the purpose of exploring for, developing, or producing resources therefrom [i.e., from the OCS]". However, where abandoned wells or buoys are in the general vicinity of the site rather than the installation site, and are unrelated to any ongoing activity, a coastwise point would not exist at the installation site.

3. Once a coastwise point is established (see above) the transportation of the components of the LMS as described would be a coastwise transportation violative of 46 U.S.C. App. 883.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch