Jones Act question
Offshore wind farms in U.S. waters may be tested by foreign-flag vessel operators.
U.S. maritime cabotage laws may apply to offshore wind power projects within navigable waters, but their application comes into question when those confines are expanded to cover this type of energy exploration and development on the outer continental shelf.
That's the conclusion reached in a recent comprehensive analysis of Section 27 of the 1920 Merchant Marine Act, better known in the U.S. maritime industry as the Jones Act, by attorneys Charlie Papavizas and Gerald Morrissey of the law firm Winston & Strawn's Maritime Practice Group. They expect their findings to be published this spring.
The United States' navigable waters generally cover three miles offshore, whereas the continental shelf extends 200 miles into the sea.
'Everything in the literature suggests the Jones Act applies (to offshore wind projects), but I have my doubts especially outside navigable waters,' Papavizas told attendees at the Marine Log conference in Washington in early March.
The Outer Continental Shelf Lands Act (OCSLA) applies the Jones Act to the development of artificial islands and installations attached to the seabed for the purposes of energy exploration.
'That's the catch,' Papavizas said. 'Does exploring for renewable energy offshore apply?'
The 2005 Energy Policy Act deals with renewable energy development on the continental shelf, but does not address Jones Act requirements for vessels involved in these activities.
If the Jones Act is found not to apply, all the components for a wind farm could conceivably be transported to an outer continental shelf site on a foreign-flag vessel from the United States. Even if the Jones Act is found to apply, Customs and Border Protection may find that foreign-flag vessels can be used to install components but potentially not transport them. Also, once the wind farm is in place, the vessels involved in maintenance must be Jones Act qualified, since they will be shuttling materials and personnel from U.S. shore-side locations.
Papavizas said it's important for the offshore wind developers and their vessel transportation services providers to have a clear picture of when and how the Jones Act applies to these operations before the construction of the wind farms actually begin.
'I don't think the uncertainty is good for anyone,' he said. 'It would be better for the whole industry to have clarity.'