Energy Waiver Library

Office of Cybersecurity, Energy Security, and Emergency Response

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During energy emergencies, regulatory assistance (or a “waiver”) is often used to expedite restoration when the situation warrants. Temporarily waiving enforcement of certain safety, environmental, and statutory requirements, when appropriate, can accelerate response efforts, restoring power and moving fuel more quickly to affected citizens. The Department of Energy consolidated and verified resources from across the Federal Government to create this central location for common waivers and special permits used for energy response, to include background on the waiver or special permit, historical examples of past use, links to previously issued waivers, and an appropriate point of contact to request such waivers should the need arise.

Common Waivers by Event

▼ Fuel Shortage (Pipeline Release, Prolonged Power Outages)

▼ Mutual Assistance/Aid Efforts

▼ Severely Impacted Electric Infrastructure

▼ National Policy Directives and Frameworks

Waivers by Department/Agency

Department of Energy
The mission of DOE is to ensure America’s security and prosperity by addressing its energy, environment and nuclear challenges through transformative science and technology solutions. DOE has also been designated the Sector-Specific Agency (SSA) for the Energy Sector under the National Infrastructure Protection Plan (NIPP), and serves as the lead federal coordinating agency for Emergency Support Function #12 – Energy under the National Response Framework. DOE also has its own authorities under the Federal Power Act to address electricity shortages and secure the grid.

Federal Power Act Section 202(c)
Background:
The Secretary of Energy has authority in time of emergencies to order temporary interconnections of facilities and generation, delivery, interchange, or transmission of electric energy that the Secretary deems necessary to meet an emergency. While not a waiver, a 202(c) order may have the effect of superseding a regulatory requirement.  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.

Past Use:
On September 14, 2008, in response to Hurricane Ike, a 202(c) emergency order was issued authorizing CenterPoint Energy to temporarily connect electricity lines to restore power to Entergy Gulf States, Inc., as well as electric cooperatives and municipal customers within the State of Texas. Other uses of DOE’s Federal Power Act emergency authority can be found on the OE website.

Point of Contact:
Any requests for the Secretary to use this authority should be directed to the 24/7 Watch Office for the Department of Energy at energyresponsecenter@hq.doe.gov or 202-586-8100.

Environmental Protection Agency (EPA)
The EPA, along with DOE, understands the importance of facilitating fuel supply in the event of an unforeseen emergency supply disruption. By waiving certain fuel standards, the Federal Government can ensure that an adequate supply of fuel is available, especially for emergency operations and the lifeline sectors. The Clean Air Act Section 211(c)(4)(c) specifies the criteria for granting a fuels waiver and the conditions that must be included in a fuels waiver.

Normally, a formal request for an EPA fuels waiver is made by, or on behalf of, the governor of the impacted state.

Reformulated Gasoline (RFG) Requirements
Background:
RFG is a blended gasoline and 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. During emergency response situations, it is important to ensure that an adequate supply of fuel is available. For more information on fuel waivers please visit the EPA Enforcement page and its FAQ.

Past Use:
During the Colonial Pipeline failures in late 2016, RFG requirements were waived in the states of Alabama, Delaware, Georgia, Kentucky, Maryland, Mississippi, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, Virginia, and the District of Columbia by the Administrator of the EPA due to an “extreme and unusual fuel supply circumstance.” The letter waiving these requirements from the EPA Administrator can be found on the EPA website.

Point of Contact:
The EPA Air Enforcement Division (202-564-2260) or the Compliance Division (Kurt Gustafson 202-403-4419, gustafson.kurt@epa.gov or Madison Le 202-507-3062) can be reached Monday through Friday, 8 am to 5 pm ET to obtain information about any fuel waiver request. Outside of these times, the EPA Emergency Operations Center can be contacted at 202-564-3850.

In addition to official coordination with the EPA, consider sharing any waiver requests or implementations with EnergyResponseCenter@hq.doe.gov to improve situational awareness, particularly given DOE’s role in assessing fuel supply and sharing that information with the EPA.

Gasoline Reid Vapor Pressure (RVP)
Background:
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 and diminish the effects of ozone-related health problems.Depending upon the state and month, gasoline may not exceed 7.8 psi or 9.0 psi. An overview and list of RVP requirements may be viewed here.

Past Use:
In response to the Colonial Pipeline Incident in September of 2016, the governors of Georgia and Tennessee both requested the EPA administrator to waive the federal gasoline low volatility requirements. This affected 13 counties in metropolitan Atlanta and five counties in metropolitan Nashville. The pipeline failure had caused a significant curtailment of the supply of 7.8 psi RVP gasoline available for distribution to these affected areas. This waiver allowed for the distribution and retail of gasoline with a maximum RVP of 9.0 psi.

Point of Contact:
The EPA Air Enforcement Division (202-564-2260) or the Transportation and Regional Programs Division (734-214-4956) can be reached Monday through Friday, 8 am to 5 pm ET to obtain information about any fuel waiver request. Outside of these times, the EPA Emergency Operations Center can be contacted at 202-564-3850.

In addition to official coordination with EPA, consider sharing any waiver requests or implementations with EnergyResponseCenter@hq.doe.gov to improve situational awareness, particularly given DOE’s role in assessing fuel supply and sharing that information with EPA.

Department of Transportation (DOT)
During emergency situations, DOT will post information related to transportation permits, waivers, and other regulations and authorities that are applicable during an emergency on its website. Under the National Response Framework, DOT is the primary federal agency for the Emergency Support Function - 1 - Transportation (ESF-1). For a general overview of all DOT agencies, and fact sheets, please visit the DOT Emergency Preparedness, Response, and Recovery Information webpage.

Federal Motor Carrier Safety Administration (FMCSA)
Emergency treatment under the Federal Motor Carrier Safety Regulations (FMCSR) is automatically triggered under a declared emergency (as defined in the FMCSR) that results in reduced fuel levels. A fuel shortage could be caused by the unanticipated shutdown of a refinery, a disruption to a pipeline, a severe power outage, or a similar event. Although not all disasters are necessarily energy emergencies, distribution of fuel may be prioritized to the impacted areas to facilitate recovery efforts.

A declaration of emergency under the FMCSR, which can be declared by the President of the United States, the governor of the impacted state, or by the Federal Motor Carrier Safety Administration (FMCSA) 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 below:

Driver, Load, and Inspection Standards
Background:
Under normal operating conditions, the FMCSA requires certain requirements be met by the driver and his/her cargo. When an emergency is declared under the FMCSR, these provision are waived, allowing for more timely arrival of resources

Hours of Service Requirements
Background:
The FMCSA regulates the amount of time property-carrying drivers may drive. During times of emergency, mutual assistance crews will be traveling from far away to aid in restoration efforts. The waiving of Hours of Service requirements allows for these crews to arrive in a more timely fashion.

Motor carriers are exempt from these FMCSA regulations 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 / 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.

Effective resources to determine if a specific state is under a state of emergency is the governor’s office website of the respective state, the White House website www.whitehouse.gov, or the FMCSA emergency webpage. FMCSA can be contacted at 1-877-831-2250 by individuals who have any questions about FMCSA regulations during a declared emergency.

Pipeline and Hazardous Materials Safety Administration (PHMSA)
PHMSA is charged with ensuring the safe transportation of energy and other hazardous materials through the establishment of national policy, the enforcement of standards and regulations, education, and conducts research to prevent incidents

Special Permits to Modify Regulatory Compliance
Background:
During an incident, PHMSA 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 USC § 60118(c) and the application process is set forth in 49 CFR 190.341. Once an Emergency Special Permit request is received, PHMSA 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. Each Emergency Special Permit will automatically expire on the date specified in the permit. Emergency Special Permits may be renewed upon application to PHMSA only after notice and opportunity for a hearing on the renewal.  

Past uses:
Following Hurricane Sandy in 2012, DOT/PHMSA issued an Emergency Special Permit to waive compliance from certain hazardous liquids requirements of 49 CFR Part 195 for the operation of two terminals in New Jersey. The waiver allowed for increased manpower to increase the output of product to near normal levels considering the damage from the recent storm and hardship in the area. For more information on Emergency Special Permits issued by PHMSA, please visit its website for additional information, requirements, previous register notices related to special permit applications, and available state waivers.

Point of Contact:
Requests for Emergency Special Permits should be directed to PHMSA’s Office of Pipeline Safety at phone number (202) 366-4595 and email phmsa.pipeline-emergencyspecpermit@dot.gov.

Other DOT Waivers

Jones Act
Background:
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 only be waived 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 the Department of Homeland Security (DHS) must grant a Jones Act waiver to the extent the Secretary of DHS 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 (1) the Secretary of DHS considers it necessary in the interest of national defense and (2)  the Administrator of the Maritime Administration (MARAD), a component of DOT, has determined that no qualified U.S.-flag vessels are available to meet the  national defense requirements. For additional information on coastwise trade, to include waiver information, please see the U.S. Customs and Border Protection’s informed compliance publication, available at the following webpage.

To request a Jones Act waiver, a request must be made to the U.S. Customs and Border Protection (CBP). A Jones Act waiver request is coordinated with the heads of other interested agencies; depending on the nature of the waiver request, these other interested agencies may include MARAD, the U.S. Coast Guard, and the Department of Defense (DOD).  DOE monitors energy supply needs and advises CBP during periods of actual or imminent shortages of energy on requests for waivers of the Jones Act.

Past uses:
Following Hurricane Sandy in 2012, DOE recommended the Secretary of DHS issue a Jones Act waiver to facilitate the transportation of necessary volumes of petroleum products to the impacted areas.  Based on concurrence by DOE and DOD, and after consultation with MARAD, the Secretary of DHS issued a Jones Act waiver permitting foreign vessels and U.S.-flag vessels that are not coastwise qualified to transport petroleum products including other feedstocks, blending components, and additives used to produce fuels to the impacted areas. The waiver lasted  for almost three weeks. The initial letter from the Secretary of DHS waiving the Jones Act can be found at the following U.S. Customs and Border website.

Point of Contact:
Requests to waive the Jones Act should be directed to the Cargo Security, Carriers & Immigration Branch, Regulations and Rulings, Office of International Trade, U.S. Customs and Border Protection, phone (202) 325-0030, fax (202) 325-0152.  A Jones Act waiver request should include the purpose for which the waiver is sought, port(s) involved, and estimated period of time for which the waiver is sought.

Consider sharing any waiver requests that implicate energy supply needs or shortages with EmergencyResponseCenter@hq.doe.gov to facilitate processing of such requests in a timely manner.

Internal Revenue Service (IRS)
Special tax assistance may be available to taxpayers in Presidentially-declared Disaster Areas. The IRS will work to provide tax assistance as part of the coordinated federal response to disasters based on local damage assessments by FEMA.

Diesel Fuel Penalty
Background:
The IRS imposes a tax penalty of 24.4 cents per gallon on diesel fuel sold for “on road” use. Dyed diesel fuel used is not ordinarily subject to this tax. Typically, if a diesel fuel that was not subject to this excise tax was converted to use for “on road” purposes, the IRS would require that use to be reported and the tax paid accordingly. When a waiver is instated, the tax penalty may not be applied to individuals who sell or use dyed diesel fuel for highway use.

Past Use:
In the aftermath of Hurricane Sandy, the states of New Jersey, New York, and Pennsylvania experienced shortages of clear (non-dyed) diesel fuel. As a result, a tax penalty was not imposed on dyed diesel fuel sold for use on the highway. More information on this particular instance of the Diesel Fuel Penalty being waived can be found on the IRS website.

Point of Contact:
The Excise Operation phone number for the IRS is 1-866-699-4096 and is available Monday through Friday from 8 am to 6 pm ET.

In addition to official coordination with IRS, consider sharing any waiver requests or implementations with EnergyResponseCenter@hq.doe.gov to improve situational awareness.

 

The information on this page is intended to assist the sector, as well as state, local, tribal, and territorial partners identify appropriate federal regulatory assistance during disasters to aid in response and recovery efforts. (Please note the content on other government websites is managed by their respective agencies and not DOE.)

Please submit any questions related to energy emergency response to the Office of Cybersecurity, Energy Security, and Emergency Response's (CESER) Infrastructure Security and Energy Restoration Division (ISER) at energyresponsecenter@hq.doe.gov or call 202-586-2264. For after-hours energy sector emergencies please contact the DOE Emergency Operations Center at 202-586-8100.

This resource will be maintained and updated regularly by DOE. A future update will include relevant and common state-level waivers.

National Policy Directives and Frameworks

Robert T. Stafford Disaster Relief and Emergency Assistance Act – Presidential Declaration

https://www.fema.gov/robert-t-stafford-disaster-relief-and-emergency-assistance-act-public-law-93-288-amended

Presidential Policy Directive 8 – National Preparedness

https://www.dhs.gov/presidential-policy-directive-8-national-preparedness

Presidential Policy Directive 21 – Critical Infrastructure Security and Resilience

https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil

Presidential Policy Directive 41 – United States Cyber Incident Coordination

https://obamawhitehouse.archives.gov/the-press-office/2016/07/26/presidential-policy-directive-united-states-cyber-incident

Presidential Executive Order on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure

https://www.whitehouse.gov/the-press-office/2017/05/11/presidential-executive-order-strengthening-cybersecurity-federal

National Planning Frameworks

https://www.fema.gov/national-planning-frameworks

Emergency Support Function #12 – Energy

https://energy.gov/oe/downloads/emergency-support-function-12-energy-annex

National Infrastructure Protection Plan

https://www.dhs.gov/national-infrastructure-protection-plan

Defense Production Act

https://www.fema.gov/media-library/assets/documents/15666