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Customs and Border Protection’s (CBP’s) recent decision, HQ H328718 (July 17, 2023), to request that this ruling be withdrawn and reconsidered.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