On September 13, 2017, The Department of Homeland Security (DHS) announced that it has:
… extended the limited Jones Act Waiver initially signed on September 8 at the recommendation of the Departments of Defense and Energy. Due to the severe disruptions of the oil supply system resulting from Hurricanes Harvey and Irma, the extended waiver will facilitate movement of refined petroleum products, including gasoline, diesel, and jet fuel, to be shipped from New York, New Jersey, Delaware, Maryland, Pennsylvania, New Mexico, Texas, Louisiana, Mississippi, Alabama, and Arkansas to Florida, Georgia, South Carolina, North Carolina, Virginia, West Virginia, and Puerto Rico. Effective immediately, this waiver applies to covered merchandise laded on board a vessel through and including September 22, 2017.”
The original waiver announcement stated that September 8, 2017, in recognition of the severity of Hurricanes Harvey and Irma, DHS Acting Secretary Elaine Duke approved a waiver of the federal Jones Act (46 U.S.C. §55102). In light of the impact on the affected region’s energy needs, the Department of Energy (DOE) recommended that DHS waive the requirements of the Jones Act in the interest of national defense to facilitate the transportation of the necessary volume of petroleum products for a 7-day period. Furthermore, the Department of Defense (DoD) has requested a 7-day waiver of the Jones Act in the interest of national defense, commencing immediately. This waiver will ensure that all options are available to distribute fuel to states and territories impacted by Hurricanes Harvey and Irma, both historic storms. The waiver will be in effect for seven days after signature and is specifically tailored to transportation of refined products in hurricane-affected areas.
“This is a precautionary measure to ensure we have enough fuel to support lifesaving efforts, respond to the storm, and restore critical services and critical infrastructure operations in the wake of this potentially devastating storm,” said Acting Secretary Duke.
“Hurricane Harvey significantly disrupted the distribution of fuel across the Southeastern states, and those states will soon experience one of the largest mass evacuations in American history while at the same time we’ll see historic movements through those states of restoration and response crews, followed by goods and commodities back into the devastated areas.”
The coastwise transportation provisions of the Jones Act prohibit the transportation of cargo between points in the U.S., either directly or via a foreign port, or for any part of the transportation, in any vessel other than a vessel that has a coastwise endorsement (e.g. a vessel that is built in and owned by persons who are citizens of the United States).
The navigation laws, including the coastwise laws, can be waived under the authority provided by 46 U.S.C. 501. The statute provides in relevant part, “On request of the Secretary of Defense, the head of an agency responsible for the administration of the navigation or vessel-inspection laws shall waive compliance with those laws to the extent the Secretary considers necessary in the interest of national defense.” 46 U.S.C. 501(a). The last Jones Act waiver was issued in December 2012, for petroleum products to be delivered for relief assistance in the aftermath of Hurricane Sandy. The actual notice of “Waiver of Compliance With Navigation Laws; Hurricanes Harvey and Irma” was published in the Federal Register on September 14, 2017.