United States: Restrictions, and possible waiver, of foreign maritime services to remediate the BP oil spill
The Obama administration came under pressure to allow entry into U.S. waters of foreign vessels that could aid in the efforts to clean up from the BP oil spill, but has not announced whether it intends to waive a law that generally bans vessels that are not built in the United States, owned by U.S. citizens, and crewed predominantly by U.S. seamen.
At issue is the Jones Act (46 U.S.C. 883), the U.S. law on cabotage (i.e., coastwise shipping). Under this law domestic waterborne commerce is reserved for vessels built in the United States, owned and crewed by American citizens, and registered under the American flag. The law is named for Senator Wesley Jones (Republican of Washington), who sponsored the Merchant Marine Act of 1920. The act is administered by the Maritime Administration of the U.S. Department of Transportation. The law provides for waivers, such as the one that the Bush administration granted during the Hurricane Katrina crisis in 2005 in order to facilitate foreign assistance.
According to one June 14, 2010 account on the website of the Voice of America, the Netherlands had offered in April to provide ships equipped with devices that skim oil, but that the “administration declined the Dutch offer partly because of the Jones Act.” That same account quoted a spokesman for the Dutch embassy in Washington, Floris vanHovell, saying that,
We do not want to change the rules here. We do not want to come in and tell everybody how to do it, but we do see that we have something that is very helpful. We have been saying this for a number of weeks, but the process seems to be rather slow.
The issue has acquired a high profile, having been the subject of criticism on blogs such as The Examiner and DavidWarrenOnline, and is now frequently raised by those in the Gulf area that seek swifter action from Federal government.
Even the Maritime Cabotage Task Force, a coalition of groups that support the Jones Act, has come out in favor of ― or at least not in opposition to ― waiver of the act for this case. It issued a statement on June 11, 2010, declaring that ―
The American maritime industry supports immediate action to address the unfolding environmental disaster in the Gulf. Federal law called the Jones Act requires that American vessels be used for domestic transportation activities in the U.S., and countless American vessels are already responding in the Gulf. In addition, we know that many other American vessels are standing by ready to help.
There are well-established federal procedures for waiving the Jones Act to bring in foreign vessels in those situations where American vessels are not available. The American maritime industry has not and will not stand in the way of the use of these well-established waiver procedures to address this crisis.
National Incident Commander Admiral Thad Allen announced on June 15, 2010 the development of specific guidance to ensure accelerated processing of requests for Jones Act waivers should they be received as a part of the BP oil spill response. As of that time, fifteen foreign-flagged vessels were involved in the response to the oil spill. No Jones Act waivers had been granted because none of these vessels have required such a waiver to conduct their operations in the Gulf of Mexico. In order to prepare for any potential need, however, Admiral Allen provided guidance to the Coast Guard Federal On-Scene Coordinator, U.S. Customs and Border Protection (CBP), and the U.S. Maritime Administration to ensure any Jones Act waiver requests receive urgent attention and processing.
“While we have not seen any need to waive the Jones Act as part of this historic response, we continue to prepare for all possible scenarios,” said Admiral Allen. “Should any waivers be needed, we are prepared to process them as quickly as possible to allow vital spill response activities being undertaken by foreign-flagged vessels to continue without delay.”
Any Evidence-Based Deliberation:
|Is there anything in the public record to suggest that evidence of the effectiveness of the proposed measure was considered during official deliberations?||No|
|Is there any evidence that alternatives to the proposed measure were considered?||No|
|Is there anything in the public record that suggests that empirical evidence informed the comparison across the alternatives available to government?||No|
|Was such evidence identified?||No|
|Is such evidence publicly available?||No|
|Did the official decision-maker in question provide an explanation as to why a chosen measure was favoured over alternatives?||No|
|Is there any evidence to suggest that potentially affected trading partners were consulted before the measures were taken?||No|
|Is there any evidence that safeguards have been put in place to ensure that implementation of the initiative is transparent and non-discriminatory?||No|
|Did the government state its intention to review the measure within one year of implementation?||No|
Date of inception:
GTA Evaluation: Amber
See the hyperlinked materials in the description.