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Maritime Labor Urges Clarity on CBP’s Latest Coastal Ruling

By Admin

September 11, 2023 

To Whom It May Concern: 

We write regarding U.S. Customs and Border Protection’s (CBP’s) recent decision, HQ  H328718 (July 17, 2023), to request that this ruling be withdrawn and reconsidered. On behalf  of America’s seagoing unions, we believe it is important to have more clarity in the applicability  of the coastwise laws — clarity that is not provided by this letter ruling — because this emerging  sector represents a significant new employment opportunity for our members.  

As you know, this ruling addresses the possible use of a foreign flag vessel to transport and  install monopiles on a wind farm project in U.S. federal waters. The installation sites appear to  be part of an integrated wind farm somewhere on the U.S. Outer Continental Shelf, although  many details have been redacted from the ruling.  

While most CBP decisions are fact-based, precise and clear, this particular decision lends itself  to multiple possible interpretations. The most extreme of those interpretations is that a foreign  flag jack up vessel could transport monopiles from the U.S. mainland to points on the OCS, jack  up on the seabed, install the monopile, and then repeat the process dozens of times over,  theoretically, throughout an entire U.S. wind farm. Taken to its extreme, that interpretation  could mean that the foreign flag jack up vessel could continuously transport wind farm  foundations from the U.S. mainland and install them in dozens of sites throughout a wind farm— even in proximity and directly related to existing monopiles and seabed cables, all of which CBP  has held are coastwise points. Such an interpretation is, to our knowledge, unprecedented and  would dramatically reduce the need for American mariners in the U.S. offshore wind industry.  When Congress amended the Outer Continental Shelf Lands Act in 2021 to include non-mineral  resources, it was clear that they intended all laws – including the Jones Act – to apply to the  installation of these wind farm monopiles and the rest of the construction on these sites. This  interpretation would exclude American mariners from one of the most significant aspects of  wind farm development. 

CBP’s letter ruling is vague and omits valuable information needed for companies that employ  our unions to make investment decisions. Any such decision that lends itself to multiple  interpretations presents difficulties for all parties involved. For example, it is not clear if the  ruling even applies to the jack up vessel, which is only mentioned incidentally in one sentence.  Also, this ruling does not even address CBP’s longstanding position that a coastwise point exists  when it is in the vicinity and directly related to an existing coastwise point. The ruling suggests  that the relevant installation sites are naturally nearby and directly related to existing coastwise  points on the seabed, like cables, but there is no discussion of that within the ruling. The ruling  lacks any discussion of what “in the vicinity” means. The common understanding — “nearby or surrounding a particular place” — is one logical interpretation, but there is no reference to that  definition or any other in the ruling.  

The worst thing CBP can do is issue a ruling that is unclear. 

Further, the letter ruling flies in the face of common sense. OCSLA, by its statutory language,  applies American law to the “subsoil and seabed,” and to any “installations … permanently or  temporarily attached to the seabed, which may be erected thereon…” The sites where these  monopiles will be established are obviously distinct points within the OCS – the monopiles are  not being dropped at random in international waters. They are being installed at specific,  determined points within the lessees’ remit within the OCS. The “pristine seabed” argument is  specious for this exact reason. No one would argue that the Jones Act only applies to cargo  moved between developed ports within the United States. A Jones Act movement that begins at  a port and ends at a delivery point in the middle of the undeveloped desert in New Mexico is still  a Jones Act movement, regardless of the state of the ground the cargo is dropped on, pristine or  developed. 

Fundamentally, OCSLA extends American law and jurisdiction to the Outer Continental Shelf.  The Jones Act is part of American law. Thus, it should apply here. The Constitution and laws of  the United States apply throughout our jurisdiction, regardless of whether there’s something  constructed on the cargo delivery site. CBP has the opportunity here to correct a long-standing  misinterpretation of the law – one that has caused confusion in the past and has led to on-going  litigation in federal court.  

As you know, CBP has 60 days to withdraw a decision for further consideration. We believe this  ruling is a perfect candidate for a withdrawal and a reconsideration. Given the potential impact  of this decision on the employment of our members, and the overall lack of clarity of the ruling,  we urge you to withdraw the decision for further consideration. 


American Maritime Officers 

International Organization of Masters, Mates and Pilots 

Marine Engineers’ Beneficial Association 

Maritime Trades Department, AFL-CIO 

Seafarers International Union 

Transportation Trades Department, AFL-CIO