Regulatory Waivers and Extensions Pursuant to Hurricane Katrina

Order Code RS22253

Updated September 19, 2005

CRS Report for Congress

Received through the CRS Web

Regulatory Waivers and Extensions Pursuant

to Hurricane Katrina

Curtis W. Copeland

Specialist in American National Government

Government and Finance Division

Summary

Federal agencies have waived a number of regulatory requirements and extended

the deadlines for certain reports and applications to assist victims of Hurricane Katrina

and to ease the economic effects of the storm. Most of the actions were permitted by

agency or program-specific authorizing statutes. More generally, though, Section 301

of the Robert T. Stafford Disaster Relief and Emergency Assistance Act permits

agencies to modify or waive administrative conditions for federal assistance in the wake

of a major disaster upon the request of state or local authorities. This report identifies

some (but not all) of those Katrina-related waivers and extensions, and will not be

updated.

In the wake of Hurricane Katrina, a number of federal agencies waived certain

regulatory requirements or extended the deadlines for certain reports or applications. The

purposes of these actions varied, but they often centered on making it easier to assist

victims of Hurricane Katrina or to ease the economic effects of the storm. In most cases,

agency or program-specific federal statutes gave the agencies the authority to take those

actions on their own with regard to specific regulatory issues. In other cases, though,

waivers required actions by the President or Congress. For example, on September 8,

2005, President Bush issued a proclamation suspending application of the Davis-Bacon

Act wage requirements on federal reconstruction projects in areas of Alabama, Florida,

Mississippi, and Louisiana that had been adversely affected by the hurricane.1 The

Department of Labor could not, on its own, have taken that action.

One statutory provision is particularly notable in this circumstance because it is not

focused on a specific agency or program. Section 301 of the Robert T. Stafford Disaster

Relief and Emergency Assistance Act (P.L. 93-288, codified at 42 U.S.C. 5141), says the

following:

1

The Davis-Bacon Act sets certain minimum labor standards for workers employed in federal

contract construction. For more on the act, see CRS Report 94-408, The Davis-Bacon Act:

Institutional Evolution and Public Policy, by William G. Whittaker. For a copy of the

proclamation, see [http://www.whitehouse.gov/news/releases/2005/09/20050908-5.html].

Congressional Research Service { The Library of Congress

CRS-2

Any Federal agency charged with the administration of a Federal assistance program

may, if so requested by the applicant State or local authorities, modify or waive, for

a major disaster, such administrative conditions for assistance as would otherwise

prevent the giving of assistance under such programs if the inability to meet such

conditions is a result of a major disaster.

It is unclear how many of the agencies’ regulatory waivers in the wake of Hurricane

Katrina were prompted by this provision, because agencies do not always cite the impetus

for or statutory authority underlying their actions.2

Regulatory Waivers and Extensions

The regulatory waivers and extensions listed below were identified by searching the

Federal Register, agencies’ websites, and published news accounts, but should not be

considered a compendium of all such waivers. No comprehensive, governmentwide

listing of such actions is currently available, and new waivers are being developed daily.3

The waivers are generally presented in chronological order, and citations to either the

formal waiver actions or press statements are provided for each.

!

On August 30, the Internal Revenue Service (IRS) announced that

taxpayers in the Presidential Disaster Areas struck by Hurricane Katrina

will have until October 31, 2005, to file late tax returns and submit tax

payments without penalties or interest.4

!

On August 30, the Environmental Protection Agency (EPA) granted an

emergency fuel waiver for Florida, Louisiana, Alabama, and Mississippi.

Specifically, EPA allowed, until September 15, all parties in the fuel

distribution system to supply gasoline meeting a less stringent, higher

vapor-pressure standard than is usually allowed, and to supply diesel fuel

to the states with a sulfur content greater than previously allowed.5

!

On August 31, the Secretary of the Department of Health and Human

Services (HHS) declared a federal public health emergency for Louisiana,

Alabama, Mississippi, and Florida, allowing the Centers for Medicare

and Medicaid Services (CMS) to waive certain requirements under

Medicare, Medicaid, and other federal statutes. Texas was added to the

list on September 4. The Secretary issued a waiver under Section 1135

of the Social Security Act on September 1, 2005. According to press

reports, health care providers providing medical services but unable to

2

For more information on this statute, see CRS Report RL33053, Federal Stafford Act Disaster

Assistance: Presidential Declarations, Eligible Activities, and Funding, by Keith Bea.

3

The Department of Homeland Security compiled a listing of waivers authorized for Hurricane

Katrina response as of September 12, but the listing does not include all such actions. See

[http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0718.xml].

4

For a copy of this waiver, see [http://www.irs.gov/newsroom/article/0,,id=147055,00.html].

5

For a copy of this waiver, see [http://www.epa.gov/katrina/activities.html#aug30waiver].

CRS-3

comply with certain program requirements will still be paid for their

good-faith services and will be exempt from sanctions for

noncompliance. For example, the waiver suspended the requirement that

doctors and other health care professionals hold licenses in the state in

which they provide services. CMS also reportedly said it will relax

requirements under the State Children’s Health Insurance Programs, the

Heath Insurance Portability and Accountability Act, and the Emergency

Medical Treatment and Active Labor Act.6

!

On August 31, the Department of Transportation’s (DOT) Federal Motor

Carrier Safety Administration (FMCSA) temporarily eased hours of

service regulations until September 14 for certain carriers to allow fuel

transportation services to continue. As a result, covered drivers may

drive longer hours than would otherwise be permitted. Drivers must

have a copy of the Declaration of Regional Emergency in their

possession.7

!

EPA said on August 31 that it will waive until September 15 volatility

and sulfur standards for gasoline and diesel fuels nationwide to ensure

that fuel is available throughout the country, to address public health

issues, and to ensure emergency vehicle supply needs are met.8

!

On September 1 and 2, the Federal Communications Commission (FCC)

issued several notices and orders providing telecommunications carriers,

wireless, and satellite operators in Katrina-affected areas more time to

file their regular reports and providing assistance in restoring operations.

For example, FCC granted a 90-day waiver of its rules, through

November 27, to allow carriers and their numbering administrators to

“port” telephone numbers geographically outside of their rate centers. It

also suspended rules (until November 1) that prohibit noncommercial

educational radio and television stations in and around New Orleans from

airing commercial programming. 9

!

IRS announced on September 2 that it will not impose a tax penalty when

dyed diesel fuel (normally used for purposes exempt from excise tax,

such as distribution to farmers for farming and to local governments for

busses) is sold for use or used on the highway during the period of

6

See [http://www.cms.hhs.gov/media/press/release.asp?Counter=1546]. For a copy of the Sept.

1, 2005, waiver, see [http://www.cms.hhs.gov/katrina/1135ssa.pdf].

7

See [http://www.fmcsa.dot.gov/about/news/news-releases/2005/083105.htm].

8

EPA also granted gasoline waivers for particular areas (e.g., Richmond, VA, and Atlanta, GA).

F o r mo r e i nf or mat i on on t h e s e a n d t h e n a t i o n w i d e w a i ve r , s e e

[http://www.epa.gov/katrina/waivers.html].

9

For a copy of the Sept. 1 waiver, see

[http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-161A1.pdf]. For the Sept. 2 action,

see [http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-2410A1.pdf].

CRS-4

expected shortages of clear diesel fuel caused by Hurricane Katrina. The

relief applies until September 15, 2005.10

!

The same day, the Department of the Treasury and IRS said they would

waive rules that prohibit owners of low-income housing from providing

housing to victims of the hurricane who do not qualify as low-income.

The waiver suspends income limitation and non-transient requirements

nationwide.11

!

On September 2, the Department of Agriculture’s Food and Nutrition

Service (FNS) announced a series of Katrina-related waivers in effect

through September 30, 2005. For example, the agency said state

agencies may waive institution application requirements and designate

any appropriate facility as an emergency shelter where significant

numbers of persons are being temporarily housed. Also, households

certified for emergency food stamps are automatically eligible for free

meals in centers or family day care homes.12

!

On September 2, DOT allowed foreign air carriers to participate in

evacuation and relief processes. Specifically, DOT granted exemptions

under 49 U.S.C. 40109 to permit certain air carriers to engage in foreign

air transportation of persons and property (for compensation) between

any point not in the U.S. and any point in the U.S., for the evacuation of

persons from affected areas, and to carry personnel relief supplies in

support of the relief efforts. DOT also granted special authorization

under 14 C.F.R. 375.70 to permit foreign air carriers to carry evacuees

and other persons and relief supplies without charge.13

!

On September 2, the Transportation Security Administration granted a

temporary exemption from the requirements for the issuance of a

hazardous materials endorsement in 49 C.F.R. 1572.13(b)(1) in support

of disaster recovery efforts from the effects of Hurricane Katrina. The

exemption is valid through December 1, 2005, and applies only to the

issuance of new endorsements.14

!

On September 2, the Securities and Exchange Commission (SEC)

announced that it would soon publish a notice extending the filing

deadlines for those affected by the disaster, and said it was working to

10

See [http://www.irs.gov/newsroom/article/0,,id=147221,00.html].

11

See [http://www.irs.gov/newsroom/article/0,,id=147239,00.html].

12

See [http://www.fns.usda.gov/cnd/Care/Regs-Policy/PolicyMemos/2005-09-02.pdf].

13

See [http://www.dot.gov/katrina/order200591.pdf].

14

Copy available from the author on request.

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ensure that individuals have access to representatives of securities firms

that hold their assets.15

15

!

On September 3, the Forest Service temporarily rescinded the fee

requirement and the 14-day stay limit for 106 campgrounds in certain

forests to assist survivors of Hurricane Katrina.16

!

On September 5, the Department of Housing and Urban Development’s

(HUD) Assistant Secretary for Community Planning and Development

suspended the requirements of the Housing and Community

Development Act of 1974 that limit expenditures to 15% of the grantee’s

most recent CDBG allocation plus program income. The suspension was

available only to grantees for purposes related to Hurricane Katrina

assistance efforts, and communities exercising the waiver were asked to

notify HUD in writing as soon as possible.17

!

On September 6, DOT granted carriers licensed under 14 C.F.R. Part 125

emergency exemption authority from the provisions of 14 U.S.C. 4110.

The exemption will allow those carriers to provide assistance in the

carriage of freight and people affected by Katrina, and the transport into

the affected areas of relief and personnel supplies.18

!

On September 7, the Secretary of the Department of Homeland Security

waived “coastwise laws” under the Merchant Marine Act of 1920 (the

“Jones Act”) that (among other things) provide that only vessels built and

owned by citizens of the U.S. and flagged in the U.S. can carry

merchandise between U.S. ports. The waiver applies for the

transportation of petroleum and refined petroleum products until

September 19, 2005. The Secretary also waived the coastwise laws

generally for the transportation of petroleum released from the Strategic

Petroleum Reserve.19

!

On September 8, the Federal Energy Regulatory Commission (FERC)

announced that it was allowing Katrina-affected transmission providers

to delay compliance with certain reporting requirements until September

30. (Normally, providers are required to report any deviation from

standards of conduct within 24 hours.) FERC also extended until

See [http://www.sec.gov/news/press/2005-125.htm].

16

For a copy of the news release accompanying this action, see

[http://www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1RD?printable=true&contentidonly=tr

ue&contentid=2005/09/0348.xml].

17

See [http://www.hud.gov/offices/cpd/library/katrina/revkatpswaive.pdf].

18

See [http://www.dot.gov/katrina/order200592.pdf].

19

For a copy of this notice, see

[http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/0

5-17829.pdf].

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September 30 any non-statutory deadlines occurring before that date if

participants need those extensions because of the hurricane.20

!

On September 8, DOT’s Federal Railroad Administration (FRA)

established a temporary emergency relief docket and procedures for

handling petitions for relief from regulatory requirements. FRA said its

existing procedures “do not lend themselves to quick and immediate

decisions” by the agency, and said the emergency procedures (e.g., a 72hour comment period on waiver petitions) would be in place for the next

nine months.21

!

On September 9, the Department of Education announced an extension

of the deadline dates for specific filing and reporting activities by

educational institutions, applicants, and other parties under certain

assistance programs (e.g., Federal Pell Grants, William D. Ford Federal

Direct Loan program). The new dates (often moving from September 30

to December 1) apply only to institutions or other parties located in

federally declared disaster areas affected by Hurricane Katrina, and

applicants adversely affected by the hurricane.22

!

On September 9, HUD’s Assistant Secretary for Public and Indian

Housing extended the September 2 submission deadline date for the

Fiscal Year 2004 HOPE VI Main Street Grants for applicants in Katrinaaffected areas, but only until September 7. (The extension was limited

because funding for this program expires on September 30.)23

!

The same day, HUD’s Assistant Secretary for Community Planning and

Development waived a number of requirements in connection with the

Department’s HOME program (e.g., citizen participation requirements

for consolidated plan amendment, source documentation requirements

for income determination, and rent and property standards for tenantbased rental assistance).24

20

For a copy of this notice, see

[http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/E

5-4871.pdf].

21

For a copy of this notice, see

[http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/0

5-17840.pdf].

22

For a copy of this notice, see

[http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/0

5-18034.pdf].

23

For a copy of this notice, see

[http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/0

5-17728.pdf].

24

See [http://www.hud.gov/offices/cpd/library/katrina/HOMEwaiver.pdf]. The Assistant

Secretary waived the citizen participation requirements earlier, on Sept. 5, 2005.