U.S. Customs Withdraws Recently Issued Offshore Wind Farm Installation Guidance

On July 15, 2020, U.S. Customs and Border Protection issued “Jones Act” guidance on the installation of offshore wind farms in U.S. waters. This was the first offshore wind guidance issued by CBP since 2011. On August 3, 2020, CBP withdrew that guidance because of an apparent misunderstanding of the location of the project. CBP has long held that the “U.S. territorial waters” for Jones Act purposes extend three nautical miles from the U.S. coastline. The territorial waters limit for many other U.S. law purposes is 12 NM. CBP has been reluctant to issue Jones Act guidance on renewable energy projects outside U.S. territorial waters because of an ambiguity in the extension of U.S. federal law jurisdiction to such projects. CBP appears to have, at first, accepted the requestor’s assertion that some of the offshore wind turbines to be installed would be within the Jones Act territorial limit—when in fact that does not appear to be the actual facts—and for that reason the ruling was withdrawn.