COLUMN LEGALHow Dif? cult is it Really to Obtain a Jones Act Waiver?The American Salvage Association’s Jon Waldron provides the ultimate cabotage primer.By Jonathon WaldronThere always seems to be constant Historically, these waivers have been granted to ad-chatter about waiving the Jones Act. dress an immediate need of the Department of Defense In reality, it is a simple task to demys- (“DOD”). For example, in 2005, the Secretary of Defense tify the thought that it is easy to obtain granted a waiver permitting transportation of a portion such waivers. To set the stage, in one of of a sea-based radar system aboard a non-coastwise vessel. her ? rst press conferences after taking Similarly, in 2006, the Secretary of Defense waived Jones the chairmanship of the Senate Energy Act requirements for the transportation of military heli-Committee, Senator Mary Landrieu copters from Tacoma, Washington, to Anchorage, Alaska.exclaimed that “Waiving the Jones Act AIVERS EQUESTED BY THE ECRETARY OFliterally hands over work to foreign shippers.” W R S DHSThe fact that Senator Landrieu’s comments were not di- Although subject to the same national defense standard, rected against any potential waiver of the Jones Act shows the waivers requested by the Secretary of DHS are not auto-controversy that Jones Act waivers can rise in the maritime matic. A 2009 amendment to the law provides that the and energy sectors. In reality, however, there exists a miscon- Secretary of DHS cannot grant a waiver unless and until ception amongst many about the ease of obtaining a waiver MARAD determines that no coastwise vessels are available to the Jones Act. Accordingly, this article will discuss the re- and capable to provide the proposed transportation. Only quirements for obtaining a waiver, analyze key past Jones Act after MARAD makes this determination can the Secretary waivers, and look to possibilities for future Jones Act waivers. of DHS evaluate and determine whether the proposed transportation is “in the interest of national defense.” J A W L PONES CT AIVERS IN AW AND RACTICEROCESS TO BTAIN A ISCRETIONARY AIVERThe Jones Act prohibits the “transportation of mer- P O D Wchandise by water, or by land and water, between points To request a Jones Act waiver, the ? rst step is to submit a in the United States . . . either directly or via a foreign request to U.S. Customs and Border Protection (“CBP”), a port” unless the vessel was built in the United States and DHS agency, for processing. Upon receipt of a waiver re-is U.S.-owned and registered under the U.S.-? ag (com- quest, CBP immediately forwards the request to MARAD, monly called “coastwise vessels”). The general standard for the Secretary of DHS, DOD, and—if the transportation is waiving the Jones Act is if doing so is “necessary in the energy related—the Department of Energy (“DOE”). To interest of national defense.” There are two types of Jones determine if there are U.S.-? ag vessels available to meet the Act waivers. One type that is requested by the Secretary of needs, MARAD surveys the maritime industry to establish Defense is granted automatically. The other type of waiver the capability and availability of coastwise vessels to meet may be granted at the discretion of Secretary of the De- the needs of the requested transportation.partment of Homeland Security (“DHS”). It is discretion- After the request is submitted, DHS goes through a va-ary and may only be granted if the Administrator of the riety of consultations. To establish the “national security” Maritime Administration (“MARAD”) ? rst determines standard, the Secretary of DHS generally consults with that no U.S.-? ag vessels are available. DOD. Additionally, if an area under another agency’s jurisdiction is affected, the relevant agency may weigh in W R S D as well. For example, if timber must be moved, the De-AIVERS EQUESTED BY THE ECRETARY OF EFENSEAll waiver requests by the Secretary of Defense must be partment of Interior may provide advice. Finally, the do-granted. Speci? cally, the Waiver Provision states that “[o] mestic maritime industry will consult with DHS and the n the request of the Secretary of Defense, the head of an MARAD Administrator.agency responsible for the administration of the navigation or vessel-inspection laws shall waive compliance with those E P J A WXAMPLES OF AST ONES CT AIVERSlaws to the extent the Secretary considers it necessary in Exxon Valdez: Following the grounding of the Exxon the interest of national defense.” Valdez in 1989, Exxon requested foreign-? ag oil skim-November 2014 24MNMN Nov14 Layout 18-31.indd 24 MN Nov14 Layout 18-31.indd 24 10/23/2014 10:22:53 AM10/23/2014 10:22:53 AM