U.S. Customs Issues Additional Turbine and Scour Protection Guidance for Offshore Wind – Renewable Energy
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US Customs and Border Protection just went public two judgments dated May 11 and June 6 which further complete the picture of what foreign vessels can legally do in the US offshore wind industry.
Both decisions took into account the application of the American “Jones Act” to offshore wind power. The “Jones Act” is a popular term for a set of US federal laws generally limiting domestic maritime commerce to qualified vessels flying the US flag. In particular, the law restricts the “carriage” of “goods” between two “points in the United States”.
Prior to January 1, 2021, the application of federal laws such as the Jones Act to US offshore wind projects was ambiguous. Congress amended the Outer Continental Shelf Lands Act on that date to remove some of the ambiguity.
On January 27, 2021, CBP issued a ruling stating that the law change expanded the jurisdiction of the Jones Act to encompass all pristine seabed on the outer continental shelf of the United States. Prior to the January 2021 law change, CBP had ruled numerous times that a “facility or other device” must be “temporarily or permanently attached” to the seabed to create a “point in the United States.”
CBP reconsidered and on March 25, 2021 determined that the January 1, 2021 statute did not affect a substantial extension of pre-existing jurisdictional law other than to encompass renewable energy. CBP further determined that once a layer of stones was placed on the seabed, those stones constituted a “point in the United States”.
CBP has been challenged both by people who have argued that the January 1, 2021 law has fundamentally changed offshore jurisdiction and by people who have argued that stones lying on the seabed are neither a “facility”. nor an “other device”. These challenges by people who had not requested the original decision were denied by CBP on January 7, 2022 for lack of standing to seek such an appeal.
CBP implicitly rejected the argument that rocks resting on the seabed are neither a “facility” nor an “other device” is not sufficient to be a U.S. point in the first comprehensive facility ruling dated April 14. CBP ultimately issued a dismissal on June 6, 2022, of the original plaintiff’s May 2021 administrative appeal regarding pristine seabed.
CBP did not back down on June 6 from its position that the January 1, 2021 law amendment did not fundamentally change offshore jurisdiction other than to encompass renewable energy. CBP further confirmed that an American point is not created when the foundation stone is laid, but rather after the first layer of scour protection has been laid.
The May 11 installation decision is the third turbine installation decision issued by CBP for the US SCO. CBP re-confirmed that a foreign installation vessel may pick up tools and implements, including containers, from a U.S. port, deliver them to an offshore job site, and pick them up, as these items are “work equipment. vessel” and not “goods”. CBP also reconfirmed that personnel who board a tower and re-board to work on the next tower are “crew” and not “passengers,” so a foreign vessel may undertake such movements.
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