Customs and Border Protection Revokes New Ruling Regarding Offshore Wind

Jonathan K. Waldron and Stefanos N. Roulakis

Stakeholders in offshore wind, particularly vessel operators and project managers, should ignore a recent U.S. Customs and Border Protection (“CBP”) ruling on offshore wind. While there had been buzz about this ruling, CBP has revoked the ruling based on a misunderstanding of the facts in question in the ruling request. As such, there are no recent rulings related to offshore wind, and stakeholders should continue to examine their Jones Act compliance plans with experienced counsel and seek rulings as needed.

NEW DEVELOPMENT

A recent CBP ruling, HQ H309672 (July 15, 2020) (the “Ruling”), drew the attention of many in the industry since the last ruling relating to offshore wind was issued approximately nine years ago for the Deepwater Wind project in 2011. The Ruling related to wind farm activities occurring in the territorial sea off the coasts of Rhode Island and Massachusetts. CBP has since published a revocation notice, HQ H312773 (August 3, 2020) (the “Revocation”), which was published on the CBP website on August 12, 2020, retracting the Ruling. CBP’s stated reason for the revocation was the lack of clarity on whether the “activities would occur in the territorial sea or on the Outer Continental Shelf (“OCS”)” and that it would be best to revoke the Ruling “until the coordinates of the installation can be established.”

BACKGROUND

In 2011, CBP issued Blank Rome a ruling on behalf of the Deepwater Wind project that the use of a crane that is aboard a non-coastwise-qualified vessel to load and unload wind turbines in the territorial seas is not prohibited by the Jones Act. No rulings have been issued on an offshore wind project since the 2011 ruling. Since that time, we understand CBP has declined to rule on requests to issue a ruling on the applicability of the Jones Act to offshore wind activities occurring on the OCS and whether a wind farm foundation or other devices attached to the seabed for wind farm purposes would constitute a coastwise point under the Jones Act.

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