During catastrophic events, regulatory assistance or waivers are often used to expedite restoration efforts and support supply systems. Temporarily waiving the enforcement of certain safety, environmental, and statutory requirements, when appropriate, can accelerate response and recovery efforts for supply chains that support lifeline sectors. In the federal government, a number of departments and agencies are responsible for statutory and regulatory requirements that deal with fuels, water, food, health, and transportation. The following is an overview of some key provisions that each of these federal entities can enact that are of relevance to the functioning of supply chains during hazardous event. Also provided are some illustrations of how these various provisions were applied in the 2017 hurricane season.
DEPARTMENT OF ENERGY
The Department of Energy (DOE) serves as the lead federal coordinating agency for Emergency Support Function (ESF) 12 – Energy under the National Response Framework.1 DOE also has its own authorities under the Federal Power Act to address electricity shortages and secure the grid.2 In addition, DOE can release crude oil from the strategic petroleum reserve.
- Federal Power Act, Section 202(c)
The Secretary of Energy has authority in time of emergencies to order temporary interconnections of facilities and generation, delivery, interchange, or transmission
2 Department of Energy, DOE Energy Waiver Library.
- of electricity that he or she deems necessary to meet needs in an emergency. The Secretary has used this authority in response to requests from the subsector, so the implementing regulations beginning at 10 CFR 205.370 describe an application process.
In 2017: The Federal Power Act was not invoked during the 2017 Hurricane season; however, it was used during Hurricane Ike in 2008 and Hurricane Katrina in 2005. Specifics can be found on the DOE Office of Electricity website.3
- Strategic Petroleum Reserve
DOE has oversight of the United States’ strategic petroleum reserve, the largest government-owned stockpile of emergency crude oil in the world. Established in the aftermath of the 1973-74 oil embargo, the strategic petroleum reserve provides the President with a powerful response option should a disruption in commercial oil supplies threaten the U.S. economy. It is also the critical component for the United States to meet its International Energy Agency obligation to maintain emergency oil stocks. The strategic petroleum reserve has a storage capacity of 713.5 million barrels and as of February 22, 2019, has a current storage level of 649.1 million barrels.
Crude oil can be made available from the strategic petroleum reserve either as a drawdown and sale based on a finding of a severe energy supply disruption or as a time exchange whereby the recipient receives crude from the reserve in exchange for a delivery of crude oil at an agreed future time.
In 2017: In August 2017, as a result of Hurricane Harvey, many ports, Gulf Coast refineries, and Gulf of Mexico oil-production facilities were shut down. As a result, the DOE exchanged 5.2 million barrels of crude oil from the Strategic Petroleum Reserve that was made available to refineries via pipeline delivery. The crude oil helped refineries to continue operations and prevent further supply disruptions.4
ENVIRONMENTAL PROTECTION AGENCY
The Environmental Protection Agency (EPA) and most states have requirements on gasoline and diesel fuel specifications that are designed to limit emissions. Waiving certain fuel specifications may increase overall fuel supplies and may allow supplies of gasoline to be delivered and used in areas where the product may not normally be used. EPA, in coordination with DOE, may consider waiving sections of the Clean Air Act 211(c)(4)(c) to facilitate fuel supply in the event of an unforeseen emergency supply disruption. Waiving certain fuel standards can ensure that supplies of fuel are available, especially for emergency operations
and the lifeline sectors. EPA regulates Reid vapor pressure (RVP)—a measure of the volatility of gasoline during summer months only, and reformulated gasoline, a special gasoline required in certain areas of the country to reduce emissions and meet clean air requirements. Unlike RVP, reformulated gasoline programs are in effect year-round.
In addition to DOE, EPA typically consults with states affected by a fuel supply situation to determine the scope, duration, and details of a fuel waiver. A formal request for an EPA fuel waiver is normally made by, or on behalf of, the governor of the impacted state. Private sector companies may also request waivers if conditions warrant such a request.
- Reformulated gasoline requirements: Reformulated gasoline is a blended gasoline, a cleaner-burning alternative to conventional gasoline that is required to meet a threshold of air quality metrics in 17 states and the District of Columbia.5 During emergency response situations, it is important to ensure that adequate supplies of gasoline fuel are available.
- Gasoline Reid vapor pressure: EPA regulates the vapor pressure of gasoline sold at retail stations during the summer ozone season to reduce evaporative emissions from gasoline that contribute to ground-level ozone to diminish the effects of ozone-related health problems. Depending upon the state and month, gasoline may not exceed 7.8 pounds per square inch RVP or 9.0 pounds per square inch RVP. An overview and list of RVP requirements may be viewed on the EPA website.6
In 2017: During the 2017 hurricane season, EPA issued a number of waivers related to fuel supply.7 Highlights of EPA response activities during the 2017 hurricane season can be found on the EPA website.8
DEPARTMENT OF TRANSPORTATION
Under the National Response Framework, the Department of Transportation is the primary federal agency for Emergency Support Function (ESF) – 1, Transportation.9 During emergency situations, the department posts information related to transportation permits, waivers, and other regulations and authorities. An overview of all Department of Transportation agencies and fact sheets can be found at the Emergency Preparedness, Response, and Recovery Information website.10 The following agencies have purview over various safety regulations that may be considered for exemption during emergencies.
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION
Emergency treatment under the Federal Motor Carrier Safety Regulations is automatically triggered under a declared emergency (as defined in the regulations). A declaration of emergency under the Federal Motor Carrier Safety Regulations, which can be declared by the President of the United States, the governor of the impacted state, or the Federal Motor Carrier Safety Administration field administrator for the geographical area in which the emergency has occurred, initiates complete exemption from all of the safety regulations contained under 49 CFR Parts 390–399. These include, but are not limited to, the following.
- Hours of service requirements
The Federal Motor Carrier Safety Regulations regulate the number of hours that drivers of commercial motor vehicles may drive and the number of hours that a commercial motor vehicle driver may be on duty before rest is required, as well as the minimum amount of time that must be reserved for rest and the total number of hours a driver may be on duty in a work week.11 During times of emergency, fuel shortages may exist or mutual assistance crews may be traveling from distant locations to aid in efforts to restore electricity. The waiving of hours of service requirements allows drivers to transport goods such as fuel over longer distances to help alleviate any shortages and allows electric utility crews to arrive sooner. Hours of service requirements are normally waived during disasters but may also be issued during fuel shortages caused by other events, such as an unanticipated shutdown of a refinery, a disruption to a pipeline, or a widespread power outage.
Motor carriers are exempt from hours of service requirements throughout their route as long as their destination state is under a state of emergency. No additional action is required beyond the issuance of the emergency or disaster declaration in order for these measures to be placed in effect; however, a state declaration can specify the commodities covered, such as heating fuels or gasoline and diesel fuel.
The Federal Motor Carrier Safety Regulations emergency webpage contains active and archived information regarding emergency declarations, waivers, exemptions, and permits, including the list of hours of service waivers during 2017.12
FEDERAL HIGHWAY ADMINISTRATION
- Oversize and overweight permits
Section 127 of title 23, U.S.C. establishes weight limitations for vehicles operating on the federal interstate highway system. Those maximum weight limitations are
- as follows: single axle, 20,000 pounds; tandem axle, 34,000 pounds; and gross weight, 80,000 pounds (or the maximum allowed by the federal bridge formula). Section 127 states that the overall gross weight may not exceed 80,000 pounds, including all enforcement tolerances, except for those vehicles and loads that cannot be easily dismantled or divided and that have been issued special permits in accordance with applicable state laws. This language establishes the states’ authority to issue special permits to “non-divisible” loads. Examples of non-divisible loads include bulldozers, large generators, scrapers, and modular homes.
Oversize and overweight permits are issued exclusively to vehicles and loads that are delivering relief supplies. The maximum gross weight limit that states must enforce on the interstate highway system is 80,000 pounds, unless a lower weight is derived from the bridge formula or a higher weight is grandfathered. However, governors of states under emergency declaration may have the authority to waive weight limits for petroleum tanker trucks. Such measures would only apply on a state by-state basis, and, should trucks have to go out of state for fuel supplies, they would be subject to weight limits in the states through which they would need to pass.
Section 1511 of MAP-21 extends the states’ authority to issue special permits to vehicles with divisible loads that are delivering relief supplies during a presidentially declared emergency or major disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) (42 U.S.C. 5121 et seq.).13
In 2017: During the 2017 hurricane season select states including Texas, Louisiana, and Florida issued special permits for relief efforts.
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
- Special Hazardous Material Permits
During an incident, the Pipeline and Hazardous Materials Safety Administration has the ability to issue an emergency special permit without notice and comment or hearing if the associate administrator of pipeline safety determines that such action is in the public interest, is not inconsistent with pipeline safety, and is necessary to address an actual or impending emergency involving pipeline transportation. Special permits are authorized by statute in 49 U.S.C. § 60118(c),14 and the application process is set forth in 49 CFR 190.341.15 Once a request for an emergency special permit is received, the Pipeline and Hazardous Materials Safety Administration will determine
- on a case-by-case basis what duration is necessary to address the emergency. However, as required by statute, no emergency special permit may be issued for a period of more than 60 days, and each permit will automatically expire on the date specified in the permit. Emergency special permits may be renewed upon application to the Pipeline and Hazardous Materials Safety Administration only after notice and opportunity for a hearing on the renewal.
In 2017: A number of special permits were issued during the 2017 hurricane season, with noted benefits.16 According to the American Fuel and Petrochemical Manufactures, “the waivers supported the movement of essential fuels and recovery products to impacted areas that aided in the recovery. In addition, following the event to ensure safe operation of pipeline infrastructure, pipeline operators must conduct inspections and in some cases repair to damaged infrastructure. To assist in these efforts the Pipeline and Hazardous Materials Safety Administration issued an emergency stay of enforcement for operators affected by hurricanes. This stay provided companies with a larger pool of skilled workers to aid in recovery. This relief aided in the recovery efforts and ensured essential mid-stream energy infrastructure resume operation quickly.”17
DEPARTMENT OF HOMELAND SECURITY
- Jones Act
The Merchant Marine Act, also known as the Jones Act, prohibits any foreign-built, foreign-owned, or foreign-flag vessel (foreign vessels) from transporting goods between U.S. ports. The same prohibitions apply to U.S.-flag vessels that are not coastwise-qualified. However, during emergency responses, resources, including shipping vessels, can be scarce. The Jones Act can be waived, but only in the interest of national defense. When the Jones Act is waived, foreign vessels and U.S.-flag vessels that are not coastwise-qualified are authorized to transport goods between U.S. ports. If the secretary of defense requests a Jones Act waiver, the secretary of DHS must grant a Jones Act waiver to the extent that he or she considers necessary in the interest of national defense. For all other Jones Act waiver requests, the secretary of DHS may grant a Jones Act waiver if (i) the he or she considers it necessary in the interest of national defense, and (ii) the administrator of the Maritime Administration, a component of the Department of Transportation, has determined that no qualified
16 See https://www.phmsa.dot.gov/pipeline/special-permits-state-waivers/rail-road-commission-texas-8302017-0,https://www.phmsa.dot.gov/regulations-fr/notices/2017-20356, and https://www.phmsa.dot.gov/regulations-fr/notices/2017-20355.
- U.S.-flag vessels are available to meet the national defense requirements. Additional information on coastwise trade, including waiver information, can be found in the Customs and Border Protection’s informed compliance publication, available online.18 To request a Jones Act waiver, a request must be made to DHS Customs and Border Protection. A Jones Act waiver request is coordinated with the heads of other relevant agencies, which, depending on the nature of the request, include the Maritime Administration, the Coast Guard, the Department of Defense, and the Department of Energy. The Department of Energy monitors energy supply needs and advises Customs and Border Protection during periods of actual or imminent shortages of energy on requests for waivers of the Jones Act.
Based on consultation and concurrence by the Department of Energy (to the extent that it involves energy supply), the Department of Defense, and the Maritime Administration, the secretary of DHS may issue a Jones Act waiver permitting foreign vessels and U.S.-flag vessels that are not coastwise-qualified to transport petroleum products including various feedstocks, blending components, and additives used to produce fuels to the impacted areas.
In 2017: The Jones Act was waived three times during the 2017 hurricane season.
A list of Jones Act waivers can be found on the DHS website.19
FEDERAL ENERGY REGULATORY COMMISSION
An area of Federal Energy Regulatory Commission (FERC) oversight is the regulation of rates and practices of oil pipeline companies engaged in interstate transportation. The commission establishes equal service conditions to provide shippers with equal access to pipeline transportation and sets reasonable rates for transporting petroleum and petroleum products by pipeline. FERC can act on requests to waive pipeline tariff provisions during an emergency. As such, it has the ability to prioritize shipments of propane and other liquid fuels through pipelines in the event of emergencies and supply shortages.20
In 2017: During Hurricane Harvey, the FERC approved an emergency waiver tariff to allow the Colonial Pipeline system to accept 11.5 RVP gasoline (A3) to fill nominations for 7.8 RVP gasoline (A1) and 9.0 RVP gasoline (A2) (see descriptions of gasoline formulations above), and to ship conventional gasoline in lieu of reformulated gasoline. This pipeline system’s tariffs and tariff practices would not normally permit it to accept product that does not conform to the specifications of the product that was nominated.21
INTERNAL REVENUE SERVICE
Special tax assistance may be available to taxpayers in presidentially declared disaster areas as part of the coordinated federal response to disasters based on local damage assessments by FEMA.
Dyed Diesel Fuel Waivers. There are typically two types of diesel sold in the United States: dyed diesel fuel (that is literally red), used only in off-road vehicles or for non-highway use, such as farm tractors, heavy construction equipment, home heating, and generators; and non-dyed diesel fuel for use in on-road vehicles. The Internal Revenue Service imposes a highway excise tax of 24.4 cents per gallon on diesel fuel sold for on-road use, whereas dyed diesel fuel is not ordinarily subject to this tax. Under normal circumstances, on-road vehicles found to have red diesel fuel in their fuel tanks may face enforcement action.22 During emergencies the Internal Revenue Service may temporarily waive the tax penalty for dyed diesel fuel being sold for use on the road, in an effort to free up additional supplies of diesel fuel.
In 2017: In response to shortages of undyed diesel fuel caused by Hurricane Harvey and Irma, the Internal Revenue Service waived the penalty when dyed diesel fuel is sold for use or used on the highway. A list of waivers can be found on the Internal Revenue Service website.23
DEPARTMENT OF HEALTH AND HUMAN SERVICES
When the President declares a disaster or emergency under the Stafford Act or National Emergencies Act, the secretary of health and human services may declare a public health emergency under Section 319 of the Public Health Service Act, authorizing the secretary to take certain actions in addition to his or her regular authorities.
- Section 1135 of the Social Security Act
Per Section 1135 of the Social Security Act, the secretary may temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program requirements to ensure (i) that sufficient health care items and services are available to meet the needs of individuals enrolled in Social Security Act programs in the emergency area and time periods, and (ii) that providers who provide such services in good faith can be reimbursed and exempted from sanctions (absent any determination of fraud or abuse).24
- In 2017: A list of actions taken by the Department of Health and Human Services during the 2017 hurricane season can be found on its website.25
- Public Health Emergencies (PHE), Paperwork Reduction Act Waivers In 2017/18: Pursuant to section 319 of the Public Health Services Act, Secretary Azar determined that, as the result of the consequences of Hurricane Maria, a public health emergency had existed in the U.S. Virgin Islands beginning on March 15, 2018, and in Puerto Rico beginning on March 16, 2018. The secretary’s decision to declare the public health emergency was made after consultation with public health officials as necessary. As result of the public health emergency, the secretary also determined, pursuant to section 319(f) of the Public Health Services Act, that circumstances of the public health emergency necessitated a waiver from the requirements of the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq., effective May 21, 2018. The waiver was justified to facilitate the collection of information to support the Department of Health and Human Services’ investigation of and response to Hurricane Maria and was in effect until October 19, 2018.26
U.S. DEPARTMENT OF AGRICULTURE
As part of the National Response Framework, the U.S. Department of Agriculture’s Food and Nutrition Service provides assistance to those most affected by a disaster or emergency. It coordinates with state, local, and voluntary organizations to provide food for shelters and other mass feeding sites, distribute food packages directly to households in need in limited situations, and approve operation of the Disaster Supplemental Nutrition Assistance Program.
In 2017: During the 2017 hurricane season, the Food and Nutrition Service approved food disaster relief assistance in Texas (select counties), Florida, and Puerto Rico.27
NATIONAL POLICY DIRECTIVES AND FRAMEWORKS TO SUPPORT THE PRIVATE SECTOR
Robert T. Stafford Disaster Relief and Emergency Assistance Act – Presidential Declaration
According to the Robert T. Stafford Disaster Relief and Emergency Assistance Act, FEMA can consider private sector requests for assistance. A private sector owner or operator
27 See https://www.fns.usda.gov/disaster/texas-disaster-nutrition-assistance, https://www.fns.usda.gov/disaster/usda-disaster-food-assistance-help-florida, and http://www.frac.org/blog/nutrition-programs-respond-recent-disasters-live-updates.
of a “critical infrastructure and key resource” may receive direct or indirect assistance from federal government sources when the need meets the following four criteria:
- Exceeds the capabilities of the private sector and relevant local, state, tribal, territorial, and insular area governments
- Relates to immediate threat to life and property
- Is critical to disaster response or community safety
- Relates to essential federal recovery measures
In certain circumstances, federal law requires appropriate authorities to include private sector representatives in incident management planning, operations, and exercises. Even when not required, it encourages such participation whenever practical. The federal government may direct private sector response resources in some cases in which contractual relationships exist.28
Defense Production Act
The Defense Production Act is the primary source of presidential authority to expedite and expand the supply of critical resources from the U.S. industrial base to support the national defense and homeland security. In addition to military, energy, and space activities, the Defense Production Act’s definition of national defense includes emergency preparedness activities conducted pursuant to Title VI of the Stafford Act; protection and restoration of critical infrastructure; and efforts to prevent, reduce vulnerability to, minimize damage from, and recover from acts of terrorism within the United States. The President’s authorities under the act are delegated to the head of various federal departments in Executive Order 13603. Defense Production Act cannot necessarily increase the production of critical resources if those production lines are already operating at a maximum capacity, and thus may not prevent shortages if the demand for such resources are high.
While primarily for federal procurement, the Defense Production Act priorities and allocations authority can also directly assist a private sector critical infrastructure owner or operator when the request is necessary or appropriate to support national defense. The act broadly defines national defense to include emergency preparedness activities to:
- Prepare for or minimize the effects of a hazard upon the civilian population;
- Deal with the immediate emergency conditions that the hazard creates; and
- Effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities that the hazard destroyed or damaged.
The use of this authority does not require a declaration of emergency. The process starts with a request from a private sector entity for a priority rating. Under normal circumstances Defense Production Act requests can go to different organizations in various ways; however, during presidentially declared disasters they should go to the federal coordinating officer at the Joint Field Office. The federal coordinating officer then determines whether to support the request and initiates coordination accordingly.
NATIONAL PLANNING FRAMEWORKS
FEMA Preparedness includes prevention, protection, mitigation, response, and recovery.29 The National Planning Frameworks, one for each preparedness mission area, describe how the whole community works together to achieve the National Preparedness Goal.30 The goal, the cornerstone for the implementation of the National Preparedness System, is “a secure and resilient nation with the capabilities required across the whole community to prevent, protect against, mitigate, respond to, and recover from the threats and hazards that pose the greatest risk.” The Goal is the cornerstone for the implementation of the National Preparedness System.31
The National Planning Frameworks are part of the National Preparedness System. There is one Framework for each of the five preparedness mission areas:32
- National Prevention Framework
- National Protection Framework
- National Mitigation Framework
- National Response Framework
- National Disaster Recovery Framework
30 See https://www.fema.gov/whole-community, https://www.fema.gov/national-preparedness-goal, and https://www.fema.gov/media-library-data/1443703117389-27c542ca395218d3154e5c1dfa8bfcb6/National_Preparedness_Goal_Whats_New_2015.pdf.
32 See https://www.fema.gov/media-library/assets/documents/117762, https://www.fema.gov/media-library/assets/documents/117782, https://www.fema.gov/media-library/assets/documents/117787, https://www.fema.gov/media-library/assets/documents/117791, and https://www.fema.gov/media-library/assets/documents/117794.
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