New Offshore Wind Ruling Revoked by Customs and Border Protection

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U.S. Customs and Border Protection (CPB) recently revoked a July 15, 2020 ruling that determined using a non-coastwise-qualified vessel (i.e., a non-Jones Act compliant vessel or foreign vessel) to install wind turbine generator (WTG) units would not violate the Jones Act and the Passenger Vessel Services Act. The now-revoked July ruling was the first CPB ruling on an offshore wind project since 2011.

The activities for which a ruling was sought included the installation of WTG units (a tower, nacelle, and three blades) by a Danish-flagged (thus a non-coastwise qualified) Jack Up Vessel. The Jack Up would not transport WTG components to or between installation sites, that would be done by coastwise-qualified Tug and Barge, but the Jack Up would carry certain installation tools and use its crane to install the WTG units while remaining stationary during the installation. In addition, coastwise-qualified Tugs and Barges would deliver certain tools and equipment to the Jack Up Vessel to complete the installations. Finally, it was proposed that “installation crewmembers” would be transported from either U.S. helicopters or coastwise-qualified vessels to the Jack Up to assemble the WTG units, and certain crewmembers will go from onboard the Jack Up to the wind turbine via a gangway to complete installation.

The letter that sought the now-revoked July ruling stated that the installation would take place within the “territorial waters” off Rhode Island and Massachusetts for the Vineyard Wind project but otherwise did not give specific coordinates or a geographic location for the wind farm installation. Since Jones Act coastwise trade and Passenger Vessel Services Act determinations are heavily fact-specific, and the location of whether the activity is taking place in the territorial sea or on the Outer Continental Shelf can also be legally significant, the CPB revoked the July ruling “until the coordinates of the installation can be established.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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