Bipartisan concern over waiver of ‘novel and problematic’ Jones Act

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House Transportation and Infrastructure Committee Chairman Peter DeFazio (D-OR), Transportation and Infrastructure Committee Ranking Member Sam Graves (R-MO), Chairman of the Subcommittee on Coast Guard and Shipping Salud Carbajal (D-CA), and Coast Guard and Shipping Classification Subcommittee Member Bob Gibbs (R-OH), have written to the Secretary of Homeland Security and the Secretary of Transportation to express concern about Jones Act waivers issued by the Department of Homeland Security (DHS) for the delivery of fuel to Puerto Rico by foreign vessels.

On October 16, Homeland Security Secretary Alejandro N. Mayorkas announced that DHS had approved a temporary, targeted waiver of the Jones Act to address the needs of Puerto Rico as hurricane recovery efforts Fiona are continuing. This followed the previous waiver announced in September.

Mayorkas said the decision to approve the waivers was made in consultation with the Departments of Transportation and Energy to assess the rationale for the waiver request and based on input from the Governor of Puerto Rico and others. people on the ground supporting recovery efforts.

But the members of the Committee are concerned and question the decisions of the DHS.

“We are writing to express our concern and disappointment with your recent decision to grant waivers of the Jones Act for fuel delivery to Puerto Rico, including allowing the delivery of diesel from the continental United States. by British Petroleum Products North America (BPPNA) in Puerto Rico on a foreign vessel on September 28, 2022,” the representatives said in their letter. “We agree with the Maritime Administration (MARAD) that reviewing a waiver while a vessel is already underway is ‘new and problematic’ and would like to better understand the reasoning behind your decision to issue a waiver for a company that appeared to be playing the Jones Act waiver process.

The Jones Act is vital to maintaining the strength of the US shipping and shipbuilding industries by requiring that all shipping of ocean freight between US ports be on US flag vessels. When U.S.-flagged vessels are unavailable to meet national defense requirements, DHS may grant a Jones Act waiver if proposed shipments are in the interest of national defense and after careful evaluation of the matter. . In 2020, Congress removed the power of the federal government to issue comprehensive long-term waivers, except in cases where a waiver is necessary to “remediate an immediate adverse effect on military operations”. By law, waivers that do not meet this standard must be considered on a case-by-case basis.

Representatives asked how DHS failed to consider the waiver requirements: “The question of availability was not meant to be answered retrospectively; the statute is intended to be a forward-looking assessment to give U.S.-flagged vessels the first opportunity to move goods, without having to deviate from the law,” the representatives wrote. “We do not understand how the Department of Homeland Security (DHS), either independently or through MARAD, retroactively determined that no U.S.-flagged vessel could have made the movement for which the waiver was granted. granted – and did so on the day the waiver was granted.

The representatives concluded their letter by requesting written responses on (1) how DHS issued the waiver despite the failure to meet the requirements, (2) the legal justification for performing a retroactive assessment of the vessel’s availability, ( 3) why the expedition was made when reports indicate the island had adequate fuel supplies, (4) whether DHS had considered whether the waiver was requested for disaster arbitration purposes, and ( 5) why the waiver was necessary in the interest of national defence.

Hurricane Fiona hit Puerto Rico on September 18 and caused extensive damage. To date, thousands of people are still without electricity.

Read the full letter to the House Committee on Transportation and Infrastructure

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