The U.S. Department of Homeland Security (DHS) on Sept. 27, 2017, said that it has not formally denied a Jones Act waiver for Puerto Rico requested on Sept. 25 by Rep. Nydia Velázquez (D-N.Y.) and seven other members of the House of Representatives in the aftermath of Hurricane Maria.

DHS, acting on the basis of a Defense Department request, had previously approved Jones Act waivers in response to Hurricanes Harvey and Irma in order to allow more readily available foreign vessels to supply oil, gas and other needed supplies to devastated regions. (See Holland & Knight's alert, "DHS Extends Jones Act Waiver to Sept. 22 and Broadens Geographic Area Covered," Sept. 15, 2017.)

Agency officials said on Sept. 27 that a final decision on a Jones Act waiver has not been made. Other than the letter from the members of Congress, DHS has not received an official waiver request.

However, a day earlier, a DHS official had said that waiving the Act for Puerto Rico would not necessarily help the U.S. island territory due to damaged ports that have prevented ships from docking. After consulting with other federal agencies, DHS preliminarily determined there was "sufficient capacity" of U.S.-flagged vessels to move needed goods to the island.

"The limitation is going to be port capacity to offload and transit, not vessel availability," DHS spokesman Gregory Moore said in the Sept. 26 statement. "Most of the humanitarian shipments will be through barges, which make up a significant portion (along with tugs) of the U.S.-flagged cargo fleet."

Sen. John McCain (R-Ariz.), a longtime Jones Act opponent, also weighed in favoring a Jones Act waiver to support the Puerto Rico recovery on economic grounds, urging in a Sept. 26 letter to DHS that the agency consider waiving the Jones Act to assist the island's recovery efforts. Thus far, DHS has not agreed.

On a related note, the vessel unloading deadline for the ongoing DHS Jones Act waiver that was initially granted Sept. 8, allowing refined fuel products movements to Gulf of Mexico and East Coast ports, ends on Sept. 30.