Latest Developments on Maritime Legislation in the 116th Congress

Jonathan K. Waldron, Joan M. Bondareff, and Dana S. Merkel

As the 116th Congress begins to slowly come to an end, and Congress leaves town without passing a relief bill during the summer recess, the maritime industry can benefit from several bills that have been added to this year’s National Defense Authorization Act (“NDAA”), in particular those on the House side. Following is a synopsis of a few key items to watch for.

NEW DEVELOPMENT

Numerous bills have been added to the NDAA that impact the maritime industry or provide critical COVID-19 relief to the industry. Although each of these bills was proceeding independently, they were recently added to the NDAA, which has passed reliably every year for 56 years, in an effort to move them forward. The maritime industry-related legislation added to the NDAA included:

Coast Guard Authorization Act of 2020

The Elijah E. Cummings Coast Guard Authorization Act of 2020 (“CGAA”), which has been in progress for over a year, was attached to the NDAA in full on the House side. The CGAA includes a number of significant authorizations for new cutters and icebreakers, including construction of a new Polar Security Cutter to replace aging icebreakers, acquiring a new National Security Cutter and four Fast Response Cutters, and acquiring a Great Lakes icebreaker. We are monitoring the appropriations bills for FY2021 to determine whether funding is provided for these ongoing and significant procurements.

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Firm News and Announcements

Chambers USA 2020 Recognizes Blank Rome Attorneys and Practices

Blank Rome’s Maritime practice and attorneys have again been highly ranked by Chambers USA, notably receiving national #1 rankings in the areas of Shipping – Litigation and Shipping – Regulatory. The 2020 edition of Chambers USA recognized Blank Rome in a number of categories across a wide range of practices, and also ranked 69 Blank Rome attorneys as “leaders in their fields.” Read More »

Blank Rome Attorneys and Practices Highly Ranked in The Legal 500 United States 2020

Blank Rome’s Maritime practice and attorneys were again highly ranked and recommended in The Legal 500 United States 2020, notably recognizing Blank Rome as a “Top-Tier Firm” for Shipping – Finance, and Shipping – Litigation and Regulation. Read More »

Blank Rome’s Maritime Industry Team

Our maritime industry team is composed of practice-focused subcommittees from across many of our Firm’s offices, with attorneys who have extensive capabilities and experience in the maritime industry and beyond, effectively complementing Blank Rome Maritime’s client cases and transactions. Read More »

Coronavirus (“COVID-19”) Task Force

The outbreak of the novel coronavirus is impacting businesses and public life around the world. From supply chain disruption, government-ordered closures, and event cancellations to employee safety concerns and social distancing recommendations, every company is facing its own unique challenges in the face of the uncertainties surrounding this global pandemic. Blank Rome’s Coronavirus (“COVID-19”) Task Force is monitoring this ever-changing situation and is here to help. Read More »

A Message from Blank Rome’s Leadership

We hope it never becomes normal to share a message denouncing acts of discrimination, harassment, or violence against our communities of color. During these upsetting and anguished times, we reaffirm Blank Rome’s dedication to our core value and founding principle—an unwavering commitment to diversity, equity, and inclusion. Read More »

Offshore Wind: Driving Factors and Recent Impediments

Joan M. Bondareff and Dana S. Merkel

This article contains a brief review of the latest developments in offshore wind, including state laws and policies, federal laws and permitting practices, and the impact of COVID-19. The main issue we are now watching is the Department of the Interior’s supplemental environmental review of the proposed Vineyard Wind project, discussed below. Until a final environmental review is completed, we are unable to predict with certainty how many offshore wind construction plans will be approved this year by the Bureau of Ocean and Energy Management (“BOEM”) in the Department of the Interior.

States Are Driving the Offshore Wind Process along the Atlantic Coast

We have reviewed state laws and policies before (see our article in the April 2019 edition of Mainbrace). Although developments offshore California and Hawaii are still being considered, they have been hampered by objections from the Department of Defense to siting wind farms near adjacent military bases. Meanwhile, development along the mid-Atlantic and New England coasts remains strong.

We conclude, as we have before, that the governors are taking the lead in promoting offshore wind by adopting new laws and/or executive orders and promoting renewable energy, including offshore wind. Their goal is to bring in some of the more than 40,000 new offshore wind jobs predicted by 2030. Continue Reading

 

The Emerging U.S. Offshore Wind Industry in a Post-COVID-19 World

Thomas H. Belknap Jr. and Lauren B. Wilgus

Just when it was looking like the offshore wind industry was finally about to take off in the United States, the COVID-19 pandemic has introduced one more significant layer of uncertainty upon an already very complicated playing field. There are currently 15 active offshore wind projects in the planning stages that, if completed, could add approximately 25 gigawatts of electricity to the power grid.

The State of Play

Things were hard enough already. Cape Wind, the United States’ first—and very ambitious—130-turbine offshore wind project, died under its own weight after years-long delays and caused its energy providers to end power supply contracts for the project in 2015. Indeed, just one project—the five-turbine (30 megawatt) Deepwater Wind farm off Block Island—is up and running so far. But, there are a slew of other projects in the pipeline. The two-turbine (12 megawatt) Coastal Virginia Offshore Wind facility—a “test” construction in advance of the planned 2,640-megawatt Dominion Energy Wind Farm—has already started construction and reportedly remains largely on schedule.

Several other large projects are in the pipeline to start construction within the next two to three years. The 800-megawatt Vineyard Wind 1 project in Massachusetts was initially scheduled to commence last year until federal regulators determined that they needed more time to analyze environmental impacts before they would issue the necessary permit. Recently, the Department of Energy’s Bureau of Ocean Management has indicated that it will issue its findings by December 2020, setting that project back at least a couple of years from their initial projections. Since the new analysis will require a consideration of the potential “cumulative” environmental impact if other offshore windfarms are built, this delay is likely to cascade to other projects.

Revolution Wind, a 704-megawatt project off the coast of Connecticut and Rhode Island targeted for completion by 2023, has announced delays of their own, also due to permitting issues and effects of the COVID-19 pandemic. Other large projects are facing similar delays.

Among other problems, the delays have jeopardized the projects’ access to federal tax credit and investment tax credits. Originally expiring in 2019, the credits were extended for one year to include facilities that begin construction within 2020. The credits can be claimed where a project is placed into service within four years of starting construction—a timetable that may be increasingly challenging due to COVID-19-related delays. Recently, the Treasury Department has signaled to Congress that they will be looking at possible modifications to this rule.

So what does all this mean for the maritime sector? Offshore wind has been tantalizing the industry for years now, and it’s no wonder why. The American Wind Energy Association (“AWEA”) predicts that the offshore wind projects could create up to 83,000 jobs and $25 billion in annual economic output by 2030. Already, the AWEA reports, companies have announced well over a billion dollars in port-related infrastructure, transmission infrastructure, manufacturing facilities, and supply chain development.

Meanwhile, in other parts of the world, offshore wind development and infrastructure is already well developed, particularly in places like northern Europe where the first offshore wind farm was erected in 1991. Unsurprisingly, many companies from those markets are looking closely at the United States as a major new opportunity—and not just for the installations, but also for design, fabrication, consulting, service and maintenance, and every other aspect of this specialized work. And they are right to do so, for there remains a shortage of expertise in the United States when it comes to offshore wind projects, and experienced companies will have much to offer in this new market. Continue Reading

This article was first published in the June 2020 edition of Maritime Reporter & Engineering News. Reprinted with permission.

Navigating the Maritime Regulatory Response to the COVID-19 Pandemic

Maritime stakeholders should examine key guidance documents that have been published by U.S. government agencies in response to the coronavirus pandemic. Some of these guidance documents create new opportunities for stakeholders, while others may impact operations in U.S. waters. Regardless of effect, businesses involved in maritime commerce should be aware of these updates and plan accordingly. For example, companies who depend on non-U.S. citizen crews for operations in U.S. waters should be adequately prepared to equip crew with support letters during visa interviews and transit to the United States. And, vessel owners and operators with upcoming ballast water compliance dates should examine whether installation is feasible in this climate and seek extensions to their compliance date if it is not.

EW DEVELOPMENTS

The COVID-19 pandemic and the logistical and operational challenges it has caused have raised a host of questions within the maritime industry. A number of government agencies have sought to clarify expectations and even ease some requirements for the industry. Some of these changes, such as changes to the approach to extending the compliance date for installation of ballast water management systems, were directly intended to benefit the maritime industry. Other updates, such as the U.S. entry restrictions instituted via a Presidential Proclamation, did not target the maritime industry, but the impact was felt by companies that rely on the ability to have crewmembers travel through the United States. Below is a summary of some key guidance documents that are affecting the maritime industry during this pandemic.

ANALYSIS

Visas and Entry Restrictions

On March 14, 2020, a Presidential Proclamation entitled “Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus” (available here) was issued, which included a travel ban for several countries. This Proclamation contained an exception for “any alien traveling as a nonimmigrant pursuant to a C‑1, D, or C-1/D nonimmigrant visa as a crewmember or any alien otherwise traveling to the United States as air or sea crew.” However, there have been significant problems for holders of B-1 visas for offshore work, which stems from differing interpretations from U.S. Customs and Border Protection (“CBP”) and the State Department. To date, industry is still experiencing difficulty with some embassies, which apparently are not recognizing that B-1 crew type visas are exempt from the Presidential Proclamation and should be considered mission critical, leading to reluctance on the part of some embassies around the world to issue these visas on an emergency basis. Support letters should be provided to crew seeking appointments and these crew type visas.

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