U.S. Senator Wicker Condemns ‘Unlawful’ and ‘Unnecessary’ Jones Act Waivers for Puerto Rico

Criticism is mounting over the DHS Secretary’s decision to waive the Jones Act for hurricane relief efforts in Puerto Rico.

U.S. Senator Roger Wicker (R-MS), ranking member of the Senate Committee on Commerce, Science, and Transportation, has sent a letter to Department of Homeland Security (DHS) Secretary Alejandro Mayorkas condemning his decision to waive the Jones Act for shipments of diesel and LNG to Puerto Rico following Hurricane Fiona.

Wicker’s criticism is the latest among U.S. lawmakers who have pushed back against the waivers that Maritime Administrator Phillips called “novel and problematic”. Wicker’s letter calls into the question legality of the waivers due to the fact that the Department of Transportation’s Maritime Administration (MARAD) was asked to conduct an unheard of retroactive market survey in making its determination of non-availability of American vessels—which is required under U.S. law (46 U.S.C. §501(b) Section 501).

“It appears that DHS superficially consulted with DOT simply to “check the box” but without any real intent to collect and consider data on the availability of domestic maritime vessels,” Wicker said in his letter. He also raised concerns about short period of time in which the industry was given to respond to the non-availability assessment in the case of the second waiver for a U.S.-sourced LNG cargo transshipped via the Dominican Republic. As gCaptain reported previously, that second waiver was requested on a Saturday and was granted the following day.

“Providing the industry with 20 minutes to respond falls far short of the duties your department owes to upholding the law, protecting the U.S. maritime industry, and serving the bests interests of the American public,” the letter states.

“These waivers were unlawful, unnecessary, and in direct contradiction to the government’s longstanding expressed interest in protecting American industry. Both waivers were issued for vessels that had already left port and were in route to Puerto Rico, sending a direct signal to foreign companies that our current political leadership is willing to suspend traditional norms and bipartisan support for the American maritime industry during times of crisis.

“When reviewing future Jones Act waiver requests, I urge you to consider the implications of unnecessary waivers, abide by the law, and put the domestic maritime industry ahead of foreign competition,” Wicker’s letter added.

Wicker’s letter follows a previous letter sent by bipartisan group of House lawmakers, including House Transportation and Infrastructure Committee chair Peter DeFazio (D-OR) and top committee Republican Sam Graves (R-MO), to DHS Secretary Mayorkas expressing their “concerns and disappointment” over the decision to grant the first waiver requested by BP for a cargo of diesel.

“We do not understand how the Department of Homeland Security (DHS), either independently or acting through MARAD, made a retroactive determination that no U.S.-flag vessels could have performed the move for which the waiver was granted—and did so on the day the waiver was granted,” the House lawmakers’ letter stated.

The representatives requested written answers on several items, including how DHS issued the waiver despite not following requirements; the legal justification for performing a retroactive vessel availability assessment; why the shipment was made when reports indicate the island had adequate fuel supplies; and if DHS had considered if the waiver was requested for disaster arbitrage purposes, and (5) why the waiver was needed in the interest of national defense.

While the Jones Act has strong bipartisan support in Congress, it’s support far from unanimous. In September, prior to the issuance of the two waivers, a group eight U.S. Congressmen led by Rep. Nydia Velazquez of New York sent a letter to Secretary Mayorkas requesting a one-year waiver of the Jones Act for Puerto Rico to help expedite the delivery of supplies to the island. Senator Mike Lee of Utah is also often very outspoken against the Jones Act.

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