Jones Act waiver update—clarifications and uncertainty

After the Trump administration announced earlier this week a waiver of the Jones Act, U.S. Customs and Border Protection (CBP) issued yesterday a notice (CSMS # 68096516) on the implementation of the waiver. The notice indicates that the Jones Act waiver “covers a 60-day period that expires at 11:59 p.m. Eastern Daylight Time on Sunday, May 17, 2026.”  The notice attaches a “List of Potentially Covered Products as of March 18, 2026.” There are 659 products listed, including many oil and gas products, fertilizers, and other commodities.

CBP has confirmed to us that all listed products may be carried on non-Jones Act vessels, and the use of the term “potentially” in the title means only that the list may be updated at the request of the Department of War.  CBP’s expectation is that the list may be increased and not reduced.  CBP also indicated that the waiver is not subject to any geographic restrictions, and that all voyages between U.S. points are covered as long as the cargo is a listed product and it is either loaded or discharged (but not necessarily both) during the effective period of the waiver.

The notice describes the actions that industry participants must take when relying on the waiver, including (i) notifying CBP of the details of the transportation that they intend to conduct under the waiver, (ii) filing upon arrival a formal entry of the vessel, satisfying the arrival or entrance reporting requirements set forth in 19 C.F.R. Part 4, and providing a completed paper CBP Form 1302 “Inward Cargo Declaration” listing the U.S. port of loading and U.S. previous immediate port of departure, and including a statement that the “Shipment described is a domestic shipment moving under the requirement of the Jones Act waiver issued March 17, 2026,” and (iii) reporting the details of the voyage to the U.S. Maritime Administration (MarAd) within 10 days of its conclusion in accordance with 46 U.S.C. 501(c), with “an explanation as to why the waiver was in the interest of national defense.”  

MarAd is required to publish the reports of voyages conducted under a Jones Act waiver on its website within 48 hours of receipt. The last such report available online still dates back to 2022, but we expect to see new voyage reports published on MarAd’s website in the coming weeks. 

Although CBP has provided some helpful guidance on the Jones Act waiver, there is still some uncertainty.  The official justification has not been published, and this is the first Jones Act waiver that has been issued at the request of the Department of Defense (now War) (DoD) under 46 U.S.C. 501(a) since the statute was amended in 2021 to require a finding that “there are insufficient qualified vessels to meet the needs of national defense without such a [DoD] waiver,” and that the DoD waiver is necessary “to address an immediate adverse effect on military operations.”  The new waiver is also unusually long, and its 60-day duration could make it more vulnerable to legal challenges.   When fixing vessels and negotiating charter terms, vessel owners and charterers should be mindful of the risk that the waiver may not remain in effect for the duration that has been announced, and that the scope may change, as a result of a DoD decision or a legal challenge.