The Jones Act Waiver: Fuel for Further Reform?

This article was first published in the spring issue of The Beacon by the Maritime Exchange for the Delaware River and Bay.

By Michael F. Merlie, Esq. and Gordon W. Prince, Esq.

The ongoing Jones Act waiver issued this year has reopened familiar debates in U.S. maritime policy. The waiver, and its extension, appear to comply with the letter of current law. However, the purpose of the waiver stands in tension with reforms Congress enacted just five years ago to narrow waiver authority.

The Jones Act requires that merchandise transported between U.S. ports be carried on vessels that are U.S.-built, U.S.-owned, U.S.-flagged, and crewed primarily by U.S. mariners. These requirements can be suspended when a Jones Act waiver is granted.

Prior to amendments in 2021, both discretionary waivers and waivers requested by the Secretary of Defense were governed by the same broad “in the interest of national defense” standard, with neither subject to explicit duration limits, or reporting requirements. The primary difference was who initiated the request rather than the scope of authority exercised.

Beginning in 2005, requests for discretionary waivers became much more common, usually in response to a natural disaster. The increased frequency of these requests raised concerns in Congress. Some felt that the broad banner of “in the interest of national defense” was used as catch-all justification rather than a narrow standard related to defense readiness.

In 2021, Congress amended the Jones Act waiver statute, sharply narrowing the discretionary waiver pathway. Congress capped the initial period of a discretionary waiver at ten (10) days, subject to an extension of up to a maximum of forty-five (45) days. A discretionary waiver also now required formal findings by the Maritime Administration that no qualified U.S.-flag vessels were available, and imposed reporting and publication obligations. The intent was to have discretionary waivers used in extraordinary circumstances for a limited period.

At the same time, Congress preserved a separate and broader mechanism for waivers requested by the Secretary of Defense but tightened the statute to require that such waivers be requested only when “necessary in the interest of national defense to address an immediate adverse effect on military operations.”

The initial sixty (60) day waiver issued in March 2026 followed severe global energy disruptions linked to the conflict with Iran. Critically, the waiver was structured as a defense-requested waiver, formally issued at the request of the Secretary of Defense. The administration justified the action on the grounds that constrained domestic fuel logistics posed risks to military readiness, defense-related transportation, and allied support operations.

Because the waiver was issued at the request of the Secretary of Defense, it was not subject to the duration limits applicable to discretionary waivers. The statute contains no explicit time cap for defense-requested waivers.

On April 24, 2026, the administration approved a request from the Secretary of Defense to extend the Jones Act waiver for an additional ninety (90) days, citing the persistence of defense‑related energy logistics concerns. Nothing prohibits renewing or continuing a defense-requested waiver so long as the requisite statutory findings are made.

From a legal standpoint, this approach is difficult to challenge. Courts historically afford substantial deference to executive determinations of military necessity, and Congress consciously left defense-requested waivers without a hard duration limit in 2021.

Yet the scale and duration of the 2026 waiver highlight a gap between technical legality and legislative intent. The waiver covers hundreds of product categories, applies nationwide, and will span one hundred fifty (150) days. Its primary operational effect has been to enable foreign-flag tankers to move civilian fuel and commodities between U.S. ports.

The outcome has renewed bipartisan discussion of further reforms. Proposals under debate include imposing explicit duration limits on discretionary waivers, narrowing the definition of “immediate adverse effect on military operations,” creating energy-specific or regional carve-outs, and pairing any waiver flexibility with subsidies or long-term charters to rebuild Jones Act tanker capacity. Others advocate structural reforms, such as relaxing the U.S.-build requirement while retaining U.S. flagging and crewing.

The 2026 Jones Act waiver and its extension appear technically legal under the framework Congress enacted in 2021. At the same time, they expose the limits of that framework and raise legitimate questions about whether the current waiver aligns with congressional intent. Whether Congress responds by tightening waiver authority further or by modernizing the Jones Act itself may define the next chapter of U.S. maritime policy.

Gawthrop Greenwood partners Michael F. Merlie and Gordon W. Prince lead Gawthrop Greenwood’s Maritime & Transportation Law Department, where they represent local, national and international transportation companies with matters including commercial transactions, financing, regulatory and legislative issues, environmental issues, litigation and contract disputes. They can be reached at (610) 696-8225.