The Jones Act of 1920 — still with us, still crippling shipping in general, and LNG shipments in particular. Planes, trains, and automobiles, but no boats.

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Here are brief portions of a couple of articles outlining the issue (no mentioned, but discussed here before, many times, is the Greens’ successful operations to block the construction of any new LNG terminals on the East Coast, from Florida to Maine. Anything that involves adding to the existing fossil fuel infrastructure: pipelines, refineries, transmission lines, and LNG terminals are to stopped, and so far, they have been.)

Antiquated Law Holding Back U.S. Supply Chain

Executive Summary:

A 1920 law, Merchant Marine Act (the Jones Act), makes water-based methods for shipping goods within the United States not price-competitive with trains and trucks, causing most freight to be transported via land.

  • In the absence of this law, water-based transit of goods would likely be much cheaper and more widely utilized.

  • A transition to water-based transit would likely increase industrial demand in well-positioned markets such as New Orleans, Tampa, Houston, and eastern port markets.

Introduction

Due to the Jones Act, a law passed in 1920, any vessel transporting freight from one U.S. port to another is subject to a strict set of legal criteria. Any ship engaging in such activity is required to 1.) be made in the United States, 2.) be owned by an American citizen, and 3.) be crewed by American citizens or legal residents. The motivation of this was to promote a domestic merchant-marine force and ship-building industry for national security and strategic reasons. However, these requirements substantially increase the cost of domestic trade by water.1 In part for this reason, the majority of U.S. domestic freight is carried by rail and truck, despite the U.S. having an extensive coastline and navigable waterways. According to data from the Census Bureau, 68.5% of U.S. domestic freight is carried by truck (41.6%) and rail (26.9%). Including freight carried by both train and rail (18.4%), this figure comes out to 86.9%. Only 5.6% of freight is carried by water, mainly via inland water in the Mississippi River.

So, how do these requirements increase shipping costs for the U.S. economy? How could supply chains improve in the absence of these restrictions, and how would this affect the industrial real estate sector?

Shipping Costs

This law imposes higher costs for domestic trade via water in two primary ways: reducing supply and competition and increasing capital and operating costs.

Supply Reduction

The simplest way this law reduces the supply of vessels to transport goods within the U.S. is by banning foreign-flagged vessels from moving goods. Effectively, the entire stock of ships (except for U.S. flagged ones) across the globe is banned from operating between U.S. ports. For example, if an international container ship going from Houston to Shenzhen were to stop at Tampa, it would be unable to unload any goods there. International carriers are competitive with the cost of trucking. One analysis found a potential cost savings of 36% for transporting from Long Beach, CA to Memphis, TN via ship (assuming international costs) relative to train.

And then there’s this, from 2023:

New CBP Jones Act Ruling Prevents Release of Vapor from LNG Loaded at 1st U.S. Port during Loading at 2nd U.S. Port

The Jones Act is a challenge for the LNG industry in the United States. The Jones Act requires that all vessels used to transport merchandise between points in the United States satisfy certain requirements: to be Jones Act compliant, vessels must be U.S.-built, U.S.-owned, U.S.-flagged, U.S.-operated and U.S.-crewed, subject to certain limited exceptions. 

No Jones Act Compliant LNG Tanker

There is currently no Jones Act compliant LNG tanker, and therefore, no LNG tanker can move LNG between U.S. terminals—for example from the Gulf region, where many LNG plants are located, to regions where there is a need for LNG, such as Puerto Rico or New England. As a result, the vessels that pick LNG up from U.S. terminals are all directed to non-U.S. terminals, and the vessels that deliver LNG to U.S. terminals all come from non-U.S. terminals. There are some Jones Act compliant barges that can handle minor operations, such as moving a small quantity of LNG from the shore to a tanker that is waiting at a U.S. anchorage point in order to cool its tanks down. These barges cannot move large quantities of LNG between the regions of the United States that export LNG, and those that need it.

This situation is unlikely to change in the near future. From a commercial perspective, there is probably no business case to invest in building the first Jones Act compliant LNG tanker, because such a vessel will be too expensive to be competitive in the international market, and there is currently not enough domestic need to keep such a vessel employed in the United States only. And from a legal perspective, the federal agency in charge of enforcing the Jones Act’s requirements on the coastwise transportation of merchandise, Customs and Border Protection (“CBP”), has not given any indication that it intends to relax these requirements for the LNG industry.

New CBP Ruling on Two-Part-Loads Scenario

CBP issued on November 14, 2023 a Jones Act ruling (HQ H335463) that further limits the types of operations that foreign LNG tankers can undertake in the United States. As a result of this new ruling, in addition to being precluded from loading U.S.-bound LNG, foreign tankers will be precluded from loading several part cargoes of foreign-bound LNG at several U.S. terminals. 

This is because, when an LNG tanker loads a first part cargo at a first U.S. terminal, and then loads another part cargo at another U.S. terminal, a small portion of the LNG loaded at the first terminal must be released through the vapor return lines at the second terminal, in the form of vaporized LNG or boil-off gas, in order to control pressure levels in the tanks of the LNG tanker during the second loading operation. CBP has held that this is not permissible because the vaporized LNG is transported from the first to the second terminal on a vessel that is not Jones Act compliant in violation of the Jones Act. 

CBP noted in the ruling that the release of vapor at the second terminal is necessary for safety reasons, but emphasized that the Jones Act does not contain any exception for safety considerations. CBP has also previously refused to recognize any de minimis exception to the Jones Act, such that the minimal quantity and value of the product—in this case, the boil-off gas—does not avoid the need to use a Jones Act compliant vessel for any intra-U.S. movement.

Implications for the U.S. LNG Industry

The new CBP ruling effectively prevents the loading of two part cargoes of LNG at two different U.S. terminals, and it can have broader implications as well.  For example, even the transfer of a small quantity of LNG to a tanker for gas-up or cool-down purposes at a location in the United States, prior to a loading operation at a different location in the United States, could be found to violate the Jones Act in view of CBP’s reasoning in the recent ruling: a small part of the LNG transferred for gas-up or cool-down purposes will also be returned to the shore through the vapor lines during the loading operation, and that LNG will arguably have been transported between two points in the United States on a vessel that is not Jones Act compliant.

But there’s a Trump card available:

Jones Act provisions can be waived by the Secretary of Homeland Security.

The Jones Act

The most far reaching of the coastwise trade statutes, is the Jones Act (46 U.S.C. § 55102), a section of the 1920 Merchant Marine Act that strictly speaking, only applies to merchandise being transported by water between U.S. points.  The law requires that this cargo is to be shipped solely aboard vessels that are U.S.-built, U.S.-citizen owned, and, registered in the U.S., which means crewed by Americans. This encourages a strong U.S. Merchant Marine for both economic security and national defense by fostering a U.S.-flag fleet that can contribute to our financial wellbeing, and act as a sealift resource for the transportation of supplies in time of contingency.

The Jones Act Waiver Processes 46 U.S.C. § 501

An often-asked question is “can the U.S.-owned, -built, -crewed, - registered requirements of the Jones Act be waived to allow foreign-flag vessels in some circumstances?”  The answer is yes, however, Jones Act exemptions are rare as the only basis for an exemption is “interest of national defense.”  There are two types of Jones Act waiver request processes, one for the Secretary of Defense and one for non-Defense entities. 

It is important to note that regarding both processes the final issuer of any Jones Act waiver is the Secretary of Homeland Security.  The Maritime Administration does not issue Jones Act waivers.

For waivers requested by the Secretary of Defense (SECDEF), under 46 U.S.C. § 501 (a), U.S. Customs and Border Protection (Customs) has been delegated the authority to waive the Jones Act immediately as the SECDEF is the Federal authority on “interests of national defense”, the only grounds for Jones Act waivers.

For all other (non-Department of Defense) waiver requests, the Secretary of Homeland Security is only authorized to grant a waiver if it is considered necessary in the interest of national defense under (46 § 501(b)).

Consequently, when a waiver request is submitted, the Department of Homeland Security screens civilian entity requests and makes a rapid assessment regarding whether there is sufficient “interest of national defense” to proceed. 

If the waiver application passes the test for sufficient “interest of national defense”, the Maritime Administrator is formally consulted regarding the availability of qualified United States flag capacity to meet the national defense requirements.  The Maritime Administrator is also directed to provide advice regarding how the coastwise qualified U.S.-flag fleet can be enabled to meet the national defense needs.  With these formal determinations onboard, the Secretary of Homeland Security makes the final Jones Act waiver decision.