MaritimeFedWatch

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 restricts its domestic maritime trade, including its fisheries, to defined “United States citizens.”  Although maritime citizenship law is rigorous, it permits certain foreign investment provided vessels remain under U.S. citizen control.

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.

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.”

On April 26, 2023, the U.S. House Transportation and Infrastructure Committee reported favorably H.R. 2741, the Coast Guard Authorization Act of 2023, including the two provisions which will have an effect on the ability of the United States to produce both oil and gas resources offshore and renewable energy offshore.

The National Defense Authorization Act for Fiscal Year 2023 sent to President Biden for his signature on December 16, 2022 contains a major expansion of the Capital Construction Fund vessel tax deferral program designed to help finance the construction of vessels in the United States.

The Biden Administration announced today a new federal-state offshore wind partnership to spur the installation of electricity generating wind turbines off the U.S. coast.

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.

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.

Legislation was introduced on February 15, 2022, in the U.S. Congress by Representatives Garret Graves (R-LA) and John Garamendi (D-CA) and on February 17, 2022, by Senator Bill Cassidy (R-LA) that would restrict the citizenship of personnel manning vessels, rigs, platforms, and structures operating on the U.S. outer continental shelf in both the offshore wind and oil and gas industries.

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.

The closure of the Colonial Pipeline has given rise to discussions about whether the U.S. “Jones Act” should be waived to permit foreign tank vessels to transported refined petroleum products from the U.S. gulf coast to the U.S. east coast. The “Jones Act,” however, is not easy to waive and is rarely waived.

On March 31, 2021, the Biden Administration announced “The American Jobs Plan” to build and re-build America’s infrastructure. Among other things, the Plan seeks to “build world-class transportation infrastructure” including modernizing 20,000 miles of roads, reconstructing ten of the most economically significant U.S. bridges and repairing 10,000 small bridges.

On December 8, 2020, the U.S. Government Accountability Office, an independent research arm of the U.S. Congress, issued a report on vessels needed for U.S. offshore wind projects. The report entitled – Offshore Wind Energy – Planned Projects May Lead to Construction of New Vessels in the U.S., but Industry Has Made Few Decisions amid Uncertainties – captures the amorphous nature of the task GAO was given.

President Trump declared a national emergency as a result of the spread of the COVID-19 virus on March 13, 2020 and he selectively invoked the Defense Production Act on March 27 and April 2. These announcements were narrowly drawn and did not address potential maritime supply chain disruptions. Under existing U.S. law, the President has a range of maritime-related authorities he can invoke to deal with maritime-related supply chain issues if necessary.

U.S. House of Representatives and U.S. Senate negotiators reached agreement on the National Defense Authorization Act for Fiscal Year 2020 (S. 1790) on December 9, and the 2020 NDAA is likely to become law in the next few days. The 2020 NDAA contains a number of significant changes to existing law affecting the maritime industry including changes relating to the Maritime Security Program and new related programs, the offshore wind industry, the worldwide fishing industry, and the mission of the U.S. Maritime Administration.

With the January 1, 2020 start date for tough new limits on the sulfur content of marine fuels (commonly referred to as IMO 2020) only a month and a half away, the U.S. Coast Guard released on November 18, 2019, an update to its “Guidelines for Compliance and Enforcement of the [U.S.] Emission Control Areas.”