[Guest post by DRJ]
According to the Maritime Executive Magazine, the Administration says no oil skimming vessels have been turned away and no Jones Act waivers are needed to skim more than 3 miles offshore:
HAS THE JONES ACT RESULTED IN FOREIGN VESSELS, PARTICULARLY FOREIGN SKIMMING VESSELS, BEING TURNED AWAY?
The National Incident Command (NIC) says there has been “no case” where an offer of foreign assistance has been declined because of the Jones Act. In fact, the U.S. State Department has said that “[a] number of offers of assistance have been accepted,” including Mexican skimmers, Norwegian skimming systems and other assets from Canada, Germany, and the Netherlands. The Jones Act does not even apply to skimming operations outside of 3 miles from shore. Oil skimming outside 3 miles, including near the well 50 miles from shore that is the source of the leak, is completely open to foreign oil spill response vessels. That is where the vast majority of skimming has occurred so far.
The Jones Act also can be waived on a case-by-case basis if there is a need but no American vessel is available to meet that need. That waiver process is always quick but it has been streamlined even further by Admiral Thad Allen and the NIC since the spill to deal with any waiver requests. Additionally, on June 16, 2010, the Coast Guard Federal On-Scene Coordinator for the oil spill determined that there is an insufficient number of specialized oil skimming vessels in the U.S. to respond to this spill. This determination allows foreign specialized skimming vessels to be deployed within 3 miles of the shore if the foreign country provides the same privileges to American skimming vessels in that country’s waters.
Interesting. So there aren’t enough oil skimmers available after all, and either America is playing tit-for-tat with our allies’ offers of assistance or the law provides for joint waivers of mutual assistance. If we don’t have enough of certain types, why not open the field to all appropriate oil skimmers instead of conditioning offers of assistance on letting American vessels into their waters?
As for the Jones Act, the article says no individual waivers have been granted to date. It also addresses the Dutch oil skimmer story:
THE CONSUL GENERAL OF THE NETHERLANDS WAS QUOTED AS SAYING THAT HIS COUNTRY OFFERED VESSELS BUT THE U.S. AND BP DECLINED. WHY?
We do not know why those particular Dutch vessels were declined (or even if they were) but we do know it wasn’t because of the Jones Act. As mentioned earlier, foreign vessels can skim oil or perform most other maritime services freely in the area where most of the oil can be found – out beyond 3 miles from our shoreline – plus the streamlined provisions in the law to allow foreign skimmers to operate within 3 miles have been activated. Many foreign (and U.S.-flag) vessels and assets, including from the Netherlands, are actively involved in the Gulf cleanup.
IF THE PROBLEM ISN’T THE JONES ACT, WHY ISN’T EVERY AVAILABLE SKIMMING VESSEL IN THE WORLD AT WORK IN THE GULF?
The problem isn’t the Jones Act – even state-of-the-art American vessels are standing by in the Gulf, ready and willing to participate in the cleanup. Also, oil spill response equipment offered by foreign nations, such as Norwegian skimming systems, can be deployed on U.S. vessels. In some cases, according to the NIC, offers of international assistance have been turned down because the offer did not fit the needs of the response. The Gulf oil spill is an unprecedented disaster. Finding, evaluating, procuring, and directing oil spill response vessels or skimming, booms or other response equipment does not happen overnight, and both BP and the federal government have acknowledged that the procurement of skimmers has not occurred as quickly as people would like. The most recent count is that about 500 vessels are skimming as part of BP’s so-called Vessels of Opportunity Program.
WHY NOT JUST WAIVE THE WHOLE JONES ACT LIKE PRESIDENT BUSH DID AFTER HURRICANES KATRINA AND RITA?
As noted, the problem is not the Jones Act but possibly one of the overwhelming task of vetting resources necessary to meet this unprecedented disaster. As the needs and available resources are sorted out, every available and useful vessel should be used. However, American vessels and American workers should be given first priority.
A blanket waiver of the Jones Act, as opposed to a vessel-specific waiver (where no American vessel is available), would do away with that basic, common sense approach. It would effectively outsource to foreigners work that Americans legally should get and very much need, especially in this region and economy. A broad waiver eliminating any employment opportunities for American workers would be an odd and even cruel approach considering the economic devastation of the oil spill and related fishing and drilling restrictions on American fishermen, offshore supply vessel operators and others in the Gulf.
This raises more questions than it answers for me, although I’m almost convinced the Jones Act isn’t the problem — but an excuse the Administration may have used to protect American jobs. More and more, it sounds like an uncoordinated response with agencies working against each other. For example:
The foreign oil skimmers may be working now but “the offer was apparently turned down because EPA regulations do not allow water with oil to be pumped back into the ocean.” Was this the EPA’s decision and, if so, why was the EPA making the decision instead of the MMS? [EDIT: At that time, I suspect the government was basing its projections on its own models that said the oil would likely dissipate in the Gulf and never reach the coast. Thus, those bad projections may well have affected everyone’s preparations and response to the spill.]
The Coast Guard grounded Louisiana oil skimmers for 24 hours over life vests and fire extinguishers. Was this a long-standing issue the skimmers failed to address or something else?
Despite government claims to the contrary, someone is telling oil skimmers they need a Jones Act waiver. Yesterday’s AP report on the giant “A Whale” oil skimmer says the vessel’s operator stated he needs a Jones Act waiver, even though his only mission is to skim oil more than 3 miles off the coast — something the Maritime article reports does not require a Jones Act waiver.
Over 2 months and no one even knows what rules apply.