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Biden administration to grant Puerto Rico shipping waiver after uproar

White House officials faced a backlash from the island’s governor and members of Congress after a shipment of diesel was idled off the coast

A screenshot from video of a damaged bridge in Salinas, Puerto Rico, on Wednesday in the aftermath of Hurricane Fiona. More than a fifth of the island’s residents reportedly were still without power. (Alejandro Granadillo/AP)

The Biden administration announced Wednesday that it will approve a legal waiver allowing Puerto Rico to receive a shipment of diesel fuel that has been held off the island’s coast, following an uproar among officials in the island.

The administration faced intense blowback in recent days from members of Congress and the governor of Puerto Rico, who clamored for an exemption for federal law to allow a BP tanker carrying the fuel to access an island port as the commonwealth reels from Hurricane Fiona. The ship cannot do so because of the Jones Act, a 1920 shipping law that requires goods shipped between points in the United States to be carried on U.S.-flagged ships.

Homeland Security Secretary Alejandro Mayorkas said in a statement that the administration had approved a “temporary and targeted” waiver after consultation with the Energy, Transportation and Defense departments.

“In response to urgent and immediate needs of the Puerto Rican people in the aftermath of Hurricane Fiona, I have approved a temporary and targeted Jones Act waiver to ensure that the people of Puerto Rico have sufficient diesel to run generators needed for electricity and the functioning critical facilities as they recover from Hurricane Fiona,” the statement said.

The ship, called GH Parks, is flagged to the Marshall Islands and departed from Texas.

Advocates on the island have expressed frustration it took so long for the administration to act.

“It’s a political decision. … This is such an emergency they should be able to find a justification pretty quickly,” said Federico A. de Jesús, a senior adviser for the Power 4 Puerto Rico coalition who served in the Obama administration. “The lawyers can justify it in many ways, as they did for these other two cases. It does not hold water to just blame the bureaucrats.”

Administration officials had said they have no legal authority to provide a blanket one-year waiver to the Jones Act, as a group of House Democrats demanded in a letter last week.

A spokesman for BP said a waiver request had been submitted last week.

Biden faces growing pressure to grant waiver for diesel shipment

Images of the ship idling off the coast of the island circulated on social media this week as Puerto Rico’s governor demanded action and expressed alarm about the impact of the delay on critical facilities damaged by Hurricane Fiona, including wastewater treatment plants, public hospitals and emergency centers. Many of these facilities, lacking electricity in the storm’s aftermath, need fuel for generators that provide an alternate power source.

Island advocates have emphasized that the administration granted a waiver to the Jones Act after a colonial pipeline ransomware attack led to outages in May, saying there is no reason a similar waiver could not be granted in this case and urging officials to move more quickly.

As of Wednesday morning, 335,000 customers in Puerto Rico — more than a fifth of the island’s residents — were without power, the Department of Energy reported.

Larry Summers, the former Democratic treasury secretary, questioned President Biden on Wednesday over the delayed waiver, tweeting: “Why, with hundreds of thousands of Puerto Ricans suffering after a terrible hurricane, hasn’t the @JoeBiden Administration authorized a Jones Act waiver that would make available 300,000 barrels of diesel fuel?”

To comply with federal law, the homeland security secretary must ensure Jones Act waivers meet specific legal criteria before granting a reprieve. First, DHS must determine that waiving the Jones Act is necessary “in the interest of national defense,” though the law does not define the term. Second, the federal government must determine that no available domestic vessel could meet the same need as the foreign vessel requesting the waiver.

When DHS receives a request for a Jones Act waiver, it must consult with the Energy and Defense departments to determine whether the “national defense” requirement can be met, an administration official said, speaking on the condition of anonymity to discuss internal talks. The need to provide fuel for an island where thousands of Americans remain in the dark could be a priority for maintaining order, which could be considered in the interest of national defense, the official said.

DHS must also consult with the maritime administrator in the Transportation Department to ensure no U.S.-owned vessels could make the delivery. In general, such waivers can only last for 10 days or less.

While the sight of a fuel tanker idling off the coast was infuriating to many on Puerto Rico and in Congress, the administration faced complex political crosscurrents. The American Maritime Partnership — a coalition that represents operators of U.S.-flagged vessels and unions covered by the Jones Act — said Monday that domestic ships were continuing to provide fuel to the island, making a waiver unnecessary.

Officials from the group on Tuesday highlighted a radio interview by the executive director of the Puerto Rico Ports Authority in which he said there is enough diesel fuel on the island. Biden, who in the past has declared “unwavering support” for the Jones Act and pledged to be the most pro-union president in history, has won plaudits from labor leaders for defending the century-old law and the U.S. jobs it supports.

Hurricane Fiona slammed into Puerto Rico on Sept. 18, knocking out power across the U.S. territory and leaving more than 3 million residents in the dark. The Energy Department had released an update on Tuesday reporting that a third of Puerto Rico was still experiencing power outages, a number that represents 491,000 customers.

While the department’s Monday update specified that “currently there are no reports of liquid fuel supply shortages on the island,” that line was not included in the updates released Tuesday and Wednesday. “As of September 22, long lines have been reported at some retail fuel stations due to high-demand for gasoline and diesel,” the Tuesday update read.

Other administration allies have also stepped up their criticisms in recent days. Jason Furman, who served as a top economist in the Obama administration, said it “made my blood boil” that the White House would delay the granting of the waiver.

“In the best of times, the Jones Act reduces resilience and raises prices,” Furman said. “At a time like this, it can be especially harmful to the most vulnerable people who are suffering from the aftermath of the hurricane.”

Arelis R. Hernández contributed to this report.

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