MaritimeFedWatch

In the aftermath of the tragic destruction and disruptions of hurricanes there are usually some calls to “waive the Jones Act.”  Putting aside whether such a waiver can ever be efficacious, it might be useful to review how very narrow the circumstances must be to justify such a waiver under the law as it has been amended.

The U.S. Department of Justice recently made available the Settlement Agreement in the case involving the transportation of frozen fish from Alaska to New England via Canada allegedly in violation of the Jones Act. The Settlement Agreement was provided in response to a Freedom of Information Act request. It was not included in the case docket when the Stipulation for Dismissal was submitted to the U.S. District Court for the District of Alaska in February 2024.

U.S. Customs and Border Protection confirmed on August 21, 2024 its Jones Act interpretations relating to the installation of foundations for an offshore wind project which it issued last year. 

The United States reserves its domestic maritime trade to vessels “built in the United States” under a set of laws popularly referred to as the “Jones Act.” What qualifies as “U.S. built” under the law and U.S. Coast Guard interpretations was recently tested in the U.S. Court of Appeals for the Fifth Circuit case of Diamond Services Corp. v. Curtin Maritime Corp.

U.S. Customs and Border Protection recently issued three rulings on multiple facets of the transportation by water of liquified natural gas. All three rulings addressed how the U.S. Jones Act, which is a set of U.S. laws restricting U.S. domestic maritime commerce to qualified U.S.-flag vessels, applies to LNG transportation.

On October 16, 2023, Judge Kenneth M. Hoyt of the U.S. District Court for the Southern District of Texas (Houston Division) granted the intervenor-defendant American Petroleum Institute’s (API) motion for summary judgment in the case of Great Lakes Dredge & Dock Company, LLC v. Chris Magnus (Civil Action No. 4:22-CV-02481).

The U.S. Congress has been actively considering legislation since 2022 that would restrict the use of foreign vessels in U.S. offshore projects. Both oil and gas and renewable energy projects would be affected. The latest version of that legislation was introduced on October 5, 2023, by Senator Bill Cassidy (R-LA) entitled the “American Worker Fairness Act.”

U.S. Customs and Border Protection modified earlier Jones Act guidance on the installation of foundations for offshore wind turbines on September 14. The “Jones Act” is a popular term for several laws which reserve U.S. domestic maritime trade to U.S.-flag vessels which must be built in the United States and be owned and operated by qualified U.S. citizens.

An amendment was recently offered by Sen. Bill Cassidy (R-LA) to the pending National Defense Authorization Act legislation which would substantially change the way the U.S. Government provides Jones Act compliance guidance.

U.S. Customs and Border Protection just made public two rulings dated May 11 and June 6 which further fill in the picture of what foreign vessels can lawfully do in the U.S. offshore wind industry.

On April 21, 2022, U.S. Customs and Border Protection posted on its public website a ruling dated April 14 which addresses in one ruling many of the Jones Act issues which arise from the installation of offshore wind turbines off the coasts of the United States.

The Biden Administration announced on March 31, 2022 that it would put on average of one million barrels of crude oil per day from the Strategic Petroleum Reserve on the market starting in May and continuing for six months.

On March 3, 2022, the Grassroot Institute of Hawaii sent an open letter to President Biden purporting to request a one-year waiver of the Jones Act to permit the use of foreign-flag vessels to transport crude oil from Alaska or the lower 48 states to Hawaii.

On March 2, 2022, the U.S. House Transportation and Infrastructure Committee reported favorably H.R. 6865, the Coast Guard Authorization Act of 2022, including the Graves/Garamendi offshore manning legislation, a required Coast Guard report on Jones Act enforcement, and a required report on the foreign oceanographic research vessels in U.S. waters.

On January 7, 2022, Customs and Border Protection sent letters to three trade associations declining to revisit its March 25, 2021, Jones Act ruling on the definition of a “point in the United States” for purposes of installing scour protection or foundations for an offshore wind farm.  The letters were made available on February 9, 2022, in response to a Freedom of Information Act request.  As a result, CBP’s March 25, 2021 ruling remains the best available guidance on what a foreign-flag vessel can lawfully do with respect to the installation of foundations or scour protection on the U.S. outer continental shelf in compliance with the Jones Act.

On January 12, 2022, the U.S. Bureau of Ocean Energy Management announced plans to auction on February 23 almost 500,000 acres off the coast of New York and New Jersey (known as the New York Bight) for offshore renewable energy development. 

On November 15, 2021, the Offshore Marine Service Association (OMSA) made public allegations that a foreign vessel had violated U.S. coastwise law (popularly referred to as the “Jones Act”) and offshore manning laws (and also safety and pollution laws) in the conduct of offshore wind-related survey work.

On November 9, 2021, U.S. Customs and Border Protection made public a ruling dated November 2 regarding the laying and burial by a foreign vessel of fiber optic cable in U.S. waters and the transportation of technicians by that vessel.

On October 22 the U.S. Coast Guard National Vessel Documentation Center posted on its website an October 20, 2021 ruling regarding the U.S. construction of crew transfer vessels or CTVs.

The “Jones Act” “third proviso” has been in the news regarding the transportation of fish and fish products from Alaska to the lower 48 states. It might be useful to review how that proviso came about.