[Federal Register Volume 87, Number 235 (Thursday, December 8, 2022)]
[Proposed Rules]
[Pages 75206-75215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26506]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 390

[Docket No. FMCSA-2022-0028]
RIN 2126-AC53


Clarification to the Applicability of Emergency Exemptions

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: FMCSA is proposing to narrow the scope of regulations from 
which relief is provided automatically for motor carriers providing 
direct assistance when an emergency has been declared. Through the 
proposed changes, the Agency would ensure that the relief granted 
through emergency declarations is appropriate and tailored to the 
specifics of the circumstances and emergency being addressed. The 
Agency also proposes revisions to the process for extending an 
automatic emergency exemption where circumstances warrant.

DATES: Comments must be received on or before February 6, 2023.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2022-0028 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/ FMCSA-2022-0028. Follow the online 
instructions for submitting comments.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: Dockets Operations, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, West Building, 
Ground Floor, Room W12-140, Washington, DC 20590-0001, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
     Fax: (202) 493-2251.

FOR FURTHER INFORMATION CONTACT: Ms. Kathryn Sinniger, Regulatory Law 
Division, Office of the Chief Counsel, FMCSA, 1200 New Jersey Avenue 
SE, Washington, DC 20590-0001, (202) 570-8062, 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Dockets Operations at (202) 
366-9826.

SUPPLEMENTARY INFORMATION: FMCSA organizes this NPRM as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy
    D. Comments on the Information Collection
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Summary of Major Provisions
    C. Costs and Benefits
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. Section-by-Section Analysis
IX. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures
    B. Congressional Review Act
    C. Waiver of Advance Notice of Proposed Rulemaking
    D. Regulatory Flexibility Act (Small Entities)
    E. Assistance for Small Entities
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act (Collection of Information)
    H. E.O. 13132 (Federalism)
    I. Privacy
    J. E.O. 13175 (Indian Tribal Governments)
    K. National Environmental Policy Act of 1969

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
NPRM (FMCSA-2022-0028), indicate the specific section of this document 
to which your comment applies, and provide a reason for each suggestion 
or recommendation. You may submit your comments and material online or 
by fax, mail, or hand delivery, but please use only one of these means. 
FMCSA recommends that you include your name and a mailing address, an 
email address, or a phone number in the body of your document so FMCSA 
can contact you if there are questions regarding your submission.
    To submit your comment online, go to https://www.regulations.gov/docket/ FMCSA-2022-0028, click on this NPRM, click ``Comment,'' and 
type your comment into the text box on the following screen.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period.
Confidential Business Information (CBI)
    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. 
If your comments responsive to the NPRM contain commercial or financial 
information that is customarily treated as private, that you actually 
treat as private, and that is relevant or responsive to the NPRM, it is 
important that you clearly designate the submitted comments as CBI. 
Please mark each page of your submission that constitutes CBI as 
``PROPIN'' to indicate it contains proprietary information. FMCSA will 
treat such marked submissions as confidential under the Freedom of 
Information Act, and they will not be

[[Page 75207]]

placed in the public docket of the NPRM. Submissions containing CBI 
should be sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation 
Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001. Any comments FMCSA receives not specifically 
designated as CBI will be placed in the public docket for this 
rulemaking.

B. Viewing Comments and Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/ FMCSA-2022-0028 and choose 
the document to review. To view comments, click this NPRM, then click 
``Browse Comments.'' If you do not have access to the internet, you may 
view the docket online by visiting Dockets Operations in Room W12-140 
on the ground floor of the DOT West Building, 1200 New Jersey Avenue 
SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. To be sure someone is there to 
help you, please call (202) 366-9317 or (202) 366-9826 before visiting 
Dockets Operations.

C. Privacy

    DOT solicits comments from the public to better inform its 
regulatory process, in accordance with 5 U.S.C. 553(c). DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL 14--Federal Docket Management System), which 
can be reviewed at https://www.govinfo.gov/content/pkg/FR-2008-01-17/pdf/E8-785.pdf.

D. Comments on the Information Collection

    Written comments and recommendations for the information collection 
discussed in this NPRM should be sent within 60 days of publication to 
the docket for this rulemaking, as indicated above in paragraph A. 
``Submitting Comments.''

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    Section 390.23 of title 49, Code of Federal Regulations (CFR), 
automatically creates a 30-day exemption from 49 CFR parts 390 through 
399 when the President, a Governor, or FMCSA issues a declaration of an 
emergency, as defined in Sec. Sec.  390.5 and 390.5T, and a motor 
carrier or driver provides direct assistance to supplement State and 
local emergency relief efforts in response to that emergency, as those 
terms are defined in Sec. Sec.  390.5 and 390.5T.\1\
---------------------------------------------------------------------------

    \1\ Section 390.5 of title 49 is currently suspended and 
replaced by 49 CFR 390.5T, however the definitions for the listed 
terms are identical in both sections.
---------------------------------------------------------------------------

    Based on Agency subject matter expertise and input from States, 
affected localities, industry groups and others, FMCSA believes that 
most emergencies justify allowing carriers and drivers providing direct 
assistance in responding to the emergency relief from the normal hours 
of service (HOS) limits to deliver critical supplies and services to 
the communities in need. However, other safety regulations, including 
the driver qualification requirements of part 391, the vehicle 
inspection and other operating requirements such as prohibitions on 
operating while ill or fatigued in part 392, or the parts and 
accessories required by part 393 often have no direct bearing on the 
motor carrier's ability to provide assistance to the emergency relief 
efforts.
    Safety regulations ensure that companies, vehicles, and drivers 
meet the minimum requirements to operate safely. While the temporary 
relief from some regulations may be necessary during an emergency, 
waiving every regulation in parts 390-399 could negatively impact the 
safety of commercial motor vehicles (CMVs) operating on the roadways. 
However, the Agency has no information that suggests that past or 
existing emergency exemptions have in fact negatively impacted road 
safety.\2\
---------------------------------------------------------------------------

    \2\ The Agency recently requested comment on the extent to which 
motor carriers are continuing to rely on the COVID-19 emergency 
declaration to deliver certain commodities and whether there has 
been any impact on safety. (Sept. 7, 2022, 87 FR 54630) While some 
commenters noted an overall increase in truck crash fatalities, 
there were no comments linking those fatalities to the emergency 
exemption.
---------------------------------------------------------------------------

    In order to provide clarity on which emergency exemptions are 
necessary during an emergency, FMCSA proposes to narrow the automatic 
applicability of Sec.  390.23 to the HOS limits in Sec. Sec.  395.3 and 
395.5. This change would clarify that carriers and drivers are not 
authorized to overlook other important safety requirements while 
performing direct assistance to emergency relief efforts. By limiting 
the scope of the current rule on emergency regulatory relief, the NPRM 
would clarify that the Federal Motor Carrier Safety Regulations 
(FMCSRs) not relevant to most emergency situations remain in effect 
while retaining the Agency's flexibility to tailor emergency regulatory 
relief to the specific circumstances of an emergency.

B. Summary of Major Provisions

    This NPRM proposes changes to the definitions in Sec. Sec.  390.5 
and 390.5T. It would modify the definition for emergency to clarify 
that emergency regulatory relief under Sec.  390.23 generally does not 
apply to economic conditions that are caused by market forces, 
including shortages of raw materials or supplies, labor strikes, driver 
shortages, inflation, or fluctuations in freight shipment or brokerage 
rates, unless such conditions or events cause an immediate threat to 
human life and result in a declaration of an emergency. The NPRM would 
also remove the definition for emergency relief as that term would no 
longer be used in Sec.  390.23 and would amend the definition of direct 
assistance to incorporate the essential components of the former 
emergency relief definition. It would also move the definition for 
residential heating fuel from the text of Sec.  390.23 and place it in 
the definition sections, Sec. Sec.  390.5T and 390.5. These 
reorganizational changes would simplify the regulatory text in Sec.  
390.23, without changing the regulation's meaning.
    This NPRM would revise Sec.  390.23 in several ways. While 
Presidential declarations of emergency would continue to trigger a 30-
day exemption from all FMCSRs in parts 390 through 399, the proposed 
rule would limit the duration and scope of the existing automatic 
regulatory relief that takes effect upon a regional declaration of an 
emergency by a Governor, a Governor's authorized representative, or 
FMCSA. The automatic regulatory relief would apply for only 5 days, as 
opposed to 30 days, and would exempt CMV drivers only from the HOS 
regulations in Sec. Sec.  395.3 and 395.5, as opposed to all 
regulations in parts 390 through 399. This change would both shorten 
the time the automatic regulatory relief is in place as well as limit 
the scope of relief provided, ensuring that any impact on safety 
continues to be minimized during the period of the automatic regulatory 
relief. FMCSA determined that the period of 5 days for automatic relief 
was appropriate for regional declarations of emergency, as its 
experience in monitoring emergency declarations demonstrated that in 
most cases, the actual emergency (e.g., the specific weather event or 
highway accident) is over within 5 days. Any emergency relief efforts 
extending beyond that time are typically geared to rebuilding and not 
to the emergency response scenarios envisioned when this rule was first 
issued.

[[Page 75208]]

    Section 390.23 would maintain the statutory requirement from the 
Reliable Home Heating Act (49 U.S.C. 31136 note) that when a Governor 
declares a state of emergency due to a shortage of residential heating 
fuel, the automatic regulatory relief lasts for a period of 30 days and 
exempts any motor carrier or driver operating a CMV to provide 
residential heating fuel in the geographic area so designated as under 
a state of emergency from all regulations in parts 390 through 399. 
Consistent with the statute, the initial automatic exemption may be 
extended two times by the Governor, for a total of 90 days, if the 
Governor determines that the emergency shortage has not ended.
    Third, for local emergencies, the automatic regulatory relief would 
be limited to the HOS regulations in Sec. Sec.  395.3 and 395.5. This 
regulatory relief was already limited to 5 days, thus no change to the 
length of the automatic relief is needed. As with the changes proposed 
for regional declarations, this change would ensure that any impact on 
safety continues to be minimized during the period of the automatic 
regulatory relief.
    Finally, this NPRM proposes to revise Sec.  390.25 to simplify the 
language allowing FMCSA to extend and modify the regulatory relief 
outlined in Sec.  390.23. It would also require that requests for 
extensions or modifications to exemptions be made via email. The 
proposal would maintain the provision allowing FMCSA to establish a new 
time limit and place any restrictions upon the emergency relief and 
proposes specifically naming reporting requirements as one of the 
restrictions FMCSA may choose to include. FMCSA will request approval 
from the Office of Information and Regulatory Affairs (OIRA) in OMB for 
a collection of information as part of this rulemaking process.

C. Costs and Benefits

    The Agency does not expect this proposed rule to result in 
substantive incremental impacts relative to the baseline established in 
the FMCSRs. Most of the changes proposed in this rule have already been 
in practice through modifications to existing exemptions, including 
those related to the Coronavirus Disease 2019 (COVID-19) emergency. 
FMCSA presents a qualitative analysis of the potential costs and 
benefits of limiting emergency exemptions, as there is uncertainty 
surrounding the number of motor carriers and drivers who currently 
utilize exemptions beyond HOS waivers.
    In limiting the exemptions to the HOS regulations in Sec. Sec.  
395.3 and 395.5, as opposed to all of 49 CFR parts 390 through 399, 
this change may result in costs to certain motor carriers and drivers 
using those additional exemptions. However, as most emergency 
exemptions are limited to HOS requirements, including the current 
COVID-19 emergency exemption, the Agency believes this change would not 
result in incremental costs relative to the baseline.
    Because automatic regulatory relief would decrease from 30 to 5 
days for some non-Presidential declarations of emergencies, the 
proposed rule may result in an increase in the number of extension 
requests from motor carriers and drivers. An increase in the number of 
extension requests would increase the burden on drivers and motor 
carriers to prepare and submit extension requests, as well as the 
burden on the Agency to review and respond to them. FMCSA presents a 
quantitative analysis of the impacts of the proposed requirement for 
individuals to request extensions or modifications to exemptions via 
email.
    While the existing FMCSRs offer relief from safety regulations in 
parts 390 through 399, FMCSA believes that most exemptions used during 
emergencies have been related to relief from the HOS requirement. The 
Agency has no information that suggests that existing emergency 
exemptions have negatively impacted road safety. This rule would 
provide clarity on which exemptions are necessary during an emergency 
and would ensure the public continues to benefit from the other 
important safety requirements in parts 390 through 399.

III. Abbreviations

ANPRM Advance Notice of Proposed Rulemaking
CBI Confidential Business Information
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
COVID-19 Coronavirus Disease 19
DOT Department of Transportation
E.O. Executive Order
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
HOS Hours of Service
NPRM Notice of Proposed Rulemaking
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PTA Privacy Threshold Assessment
SBA The Small Business Administration
The Secretary The Secretary of Transportation
UMRA The Unfunded Mandates Reform Act of 1995
U.S.C. United States Code

IV. Legal Basis for the Rulemaking

    Under 49 U.S.C. 31136(a)(1), DOT is required to adopt regulations 
to ensure that ``commercial motor vehicles are maintained, equipped, 
loaded, and operated safely,'' but in accordance with 31136(e) may 
``grant in accordance with section 31315 waivers and exemptions from, 
or conduct pilot programs with respect to, any regulations prescribed 
under this section.'' Section 31315(a) of 49 U.S.C. provides that the 
Secretary may grant waivers or exemptions from compliance in whole or 
in part with a regulation issued under section 31136 in certain 
situations. Section 31502(e) of 49 U.S.C. provides that certain 
regulations issued under 49 U.S.C. 31502 or 31136 shall not apply to 
the driver of a utility service vehicle during an emergency period, as 
declared by an elected official of one or more State or local 
governments having jurisdiction.
    Title 49 U.S.C. 31136 note requires that the Secretary issue the 
regulations found within this document as proposed 49 CFR 
390.23(a)(1)(ii)(B).
    Finally, 49 U.S.C. 31133 provides that the Secretary of 
Transportation may perform other acts the Secretary considers 
appropriate. These responsibilities and authorities have been delegated 
by the Secretary to FMCSA. (49 U.S.C. 113 and 49 CFR 1.87)

V. Background

    For nearly 30 years, FMCSA has cited 49 CFR 390.23 ``Relief from 
regulations'' to provide automatic relief to motor carriers from 
various regulations. These relief provisions originated with the July 
30, 1992, Federal Register publication of a final rule (57 FR 33638, 
1992 final rule) by the Federal Highway Administration (FHWA), which 
amended the regulations to exempt motor carriers and drivers from 
certain parts of the regulations when directly responding to 
emergencies. This specific rulemaking constituted the FHWA's final 
action on three proposed rulemakings, two of which were to exempt motor 
carriers and drivers from most of the regulations when responding to 
regional disasters or local emergency situations, and the third 
proposed rule was for certain relief from the HOS regulations for tow 
truck operations and tow truck drivers. As one other part of this final 
rule, the FHWA also made certain technical amendments to the 49 CFR 
part 395 HOS regulations with an effective date of August 31, 1992 
(July 30, 1992, 57 FR 33638).

[[Page 75209]]

    FHWA undertook this rulemaking to address emergencies created by 
regional disasters. The 1992 final rule exempts motor carriers and 
drivers operating in interstate commerce from the requirements of parts 
390 through 399 of the regulations when providing direct assistance as 
part of a disaster relief effort. To accomplish this, the rule provided 
that the exemption would be utilized only when a disaster had occurred 
and the President of the United States, a Governor of a State, or his 
or her authorized representative had publicly declared that assistance 
was needed to supplement State and local efforts to save lives and 
property, to protect public health and safety, or otherwise to lessen 
the impact of a disaster in any part of the U.S. The exemption would 
last the length of the emergency or 30 days from the time of the 
initial declaration, whichever was less, except that a motor carrier 
could apply for, and the Agency could approve, an extension of time 
prior to the expiration of the relief exemption. The Agency believed 
that the rule's definitions of direct assistance; emergency; and 
emergency relief covered most disasters. Those definitions remain 
basically unchanged since their initial establishment in Sec.  390.5 of 
the regulations, as finalized in the 1992 final rule.
    After a disaster has been declared, the exemption may be used by 
all motor carriers providing direct assistance to the disaster relief 
effort. The authorized individual declaring the disaster need not 
specify individual motor carriers allowed to use the exemption; rather, 
an individual motor carrier will decide if it wishes to participate in 
the relief effort and operate under the exemption. The final rule 
established the 30-day relief period, however, the time period lasts 
only as long as there is direct assistance being provided to the 
emergency relief effort, not to exceed 30 calendar days, unless 
extended by the Agency.
    In the 1992 final rule, FHWA included a provision in the rule to 
deal with local emergencies by exempting motor carriers and drivers 
from parts 390 through 399 after a Federal, State, or local government 
official having authority to declare public emergencies has made such a 
declaration. Any motor carrier or driver providing direct assistance 
once a declaration of an emergency has been made by a government 
official may utilize this exemption. The exemption is effective for the 
motor carrier and/or driver as long as they are providing direct 
assistance to the emergency relief effort, but for no longer than 5 
calendar days including the initial day of the emergency.
    FHWA included a provision allowing for extension of the relief from 
regulations in Sec.  390.25. This section provides that the Agency may 
extend the 30-day time period of the exemption contained in Sec.  
390.23(a)(1) (regional emergencies), but not the 5-day time period 
contained in Sec.  390.23(a)(2) (local emergencies) or the 24-hour 
period contained in Sec.  390.23(a)(3) (dealing with tow trucks). Any 
motor carrier or driver seeking to extend the 30-day limit shall obtain 
approval from the Agency in the region in which the motor carrier's 
principal place of business is located before the expiration of the 30-
day period. The motor carrier or driver shall give full details of the 
additional relief requested. The Agency shall determine if such relief 
is necessary, taking into account both the severity of the ongoing 
emergency and the nature of the relief services to be provided by the 
carrier or driver. If the Agency approves an extension of the 
exemption, it shall establish a new time limit and place on the motor 
carrier or driver any other restrictions deemed necessary. In the 1992 
final rule, FHWA stated that it did not believe that motor carriers and 
drivers should be allowed an extension of a local emergency or tow 
truck exemption in the absence of a declared regional emergency.
    In the 1992 final rule, FHWA argued that emergencies are events 
that require immediate action to protect human life and the public 
welfare, and that the final rule removed regulatory requirements that 
could slow emergency response efforts by drivers and motor carriers. 
There have been technical amendments to Sec. Sec.  390.23 and 390.25 
published since the 1992 final rule, including revisions to reflect the 
transfer of authority for the regulations from FHWA to FMCSA; however, 
these amendments did not substantively amend either section.
    On March 13, 2020, the President issued an emergency declaration in 
light of the COVID-19 pandemic. On the same date, FMCSA issued a 
regional declaration of emergency. Both declarations automatically 
triggered relief from all regulations in 49 CFR parts 390 through 399 
for a period of 30 days in accordance with Sec.  390.23(a). FMCSA has 
continually extended the emergency declaration since then in accordance 
with Sec.  390.25(a). In its extensions of the COVID-19 emergency 
declaration,\3\ FMCSA modified the emergency relief granted by the 
emergency exemption as the circumstances of the emergency changed, 
eventually limiting the relief provided by the emergency exemption to 
the HOS rules in Sec. Sec.  395.3 and 395.5, relying upon the authority 
in Sec.  390.25 to restrict blanket exemptions from parts 390 through 
399. The unprecedented time-period and geographical breadth of that 
emergency exemption brought into focus the need to ensure that the 
regulatory relief granted under emergency exemptions is appropriate and 
tailored to the specific circumstances being addressed.
---------------------------------------------------------------------------

    \3\ The emergency declaration is available online at https://www.fmcsa.dot.gov/emergency-declarations.
---------------------------------------------------------------------------

    Some Agency stakeholders have raised concerns in this regard. In 
October 2020, for example, the Commercial Vehicle Safety Alliance 
submitted a petition for a rulemaking asking FMCSA to revise Sec. Sec.  
390.23 and 390.25, and noting the potential safety risks posed by the 
blanket exemption provision:

    For example, while it may be appropriate that during an 
emergency, all, or portions of, the hours-of-service regulations be 
waived to expedite the delivery of emergency supplies, there are 
many other critical safety components and driver requirements that 
are necessary to safely operate a commercial motor vehicle. Waiving 
Part 392, for example, which contains drug and alcohol requirements, 
as well as safe driving practices for a commercial motor vehicle, 
does nothing to expedite the delivery of emergency products or 
services, but may have a serious negative impact on highway safety.

    Letter dated October 7, 2020, from Collin Mooney, Executive 
Director, CVSA, to Wiley Deck, then FMCSA Deputy Administrator. (A copy 
of the CVSA letter has been added to the docket (FMCSA-2022-0028).) The 
Agency has met with other groups in the past 18 months that have 
expressed similar concerns. Additionally, the Agency recently requested 
comment on the extent to which motor carriers are continuing to rely on 
the COVID-19 emergency declaration to deliver certain commodities and 
whether there has been any impact on safety (Sept. 7, 2022, 87 FR 
54630), and received over three hundred comments.\4\
---------------------------------------------------------------------------

    \4\ The Agency is currently reviewing those comments and 
determining its next steps with regard to the COVID-19 emergency 
declaration.
---------------------------------------------------------------------------

    FMCSA agrees that blanket relief from all the FMCSRs in all 
emergencies is not appropriate and that motor carriers and drivers of 
CMVs generally need relief only from the HOS regulations found in 
Sec. Sec.  395.3 and 395.5 in order to provide direct assistance to 
emergency relief efforts. FMCSA initiated this rulemaking to ensure 
that any impact on safety would continue to be minimized

[[Page 75210]]

during the period of the automatic regulatory relief.

VI. Discussion of Proposed Rulemaking

    As noted above, FMCSA believes that the automatic emergency 
regulatory relief authorized by Sec.  390.23 is unnecessarily broad for 
the intended purpose, as the primary, immediate constraint that drivers 
and carriers face when providing direct assistance during an emergency 
is the HOS limits.
    FMCSA proposes to revise, remove, and add definitions to reflect 
changes made to the emergency exemption rules. These changes include 
removing an obsolete term, moving the definition of one term to the 
definition section, and revising two definitions (as discussed below in 
the ``section-by-section'' portion of this NPRM).
    FMCSA also proposes to shorten the duration and limit the scope of 
the initial, automatic regulatory relief triggered by an emergency 
declaration in certain situations. The scope of relief would be limited 
to specific provisions of the HOS regulations unless the emergency 
declaration is made by the President under the authority of 42 U.S.C. 
5191(b). The relief would also be limited to a period of 5 days unless 
the emergency declaration is made by the President under the authority 
of 42 U.S.C. 5191(b). Presidential declarations will continue to 
trigger a 30-day exemption from all FMCSRs in parts 390 through 399.
    Any party, including a State or local official, who believes an 
extension of the HOS relief or broader regulatory relief is necessary, 
would be required to request relief and/or an extension from FMCSA. The 
Agency would evaluate any such request and could approve, modify, or 
deny the request, as appropriate. FMCSA would also have independent 
authority to extend or modify the emergency relief. No formal request 
or form would be required to request relief. Requests would be 
submitted to FMCSA's emergency declaration email inbox 
([email protected]).
    More sharply focused regulatory relief will continue to authorize 
emergency transportation in the public interest while allowing the 
Agency to better tailor regulatory relief to specific needs in 
emergencies. It will also avoid automatic suspension of the rest of the 
FMCSRs in 49 CFR parts 390 through 399, which pose no serious obstacles 
to drivers and carriers providing direct assistance to emergency relief 
efforts but could encourage an unwelcome indifference to compliance 
with safety regulations.
    Beginning with the extension effective in September 2021, FMCSA 
included a reporting requirement as part of the COVID-19 emergency 
exemption, requiring motor carriers or drivers to inform FMCSA on how 
often they relied upon the emergency relief from the HOS regulations in 
the previous month. This data is used to determine whether the 
emergency regulatory relief should continue to be extended.
    The usefulness of this data prompted FMCSA to propose adding 
language to Sec.  390.25 to expressly note that one of the conditions 
FMCSA may include when extending an emergency exemption is to collect 
information from those carriers and drivers relying upon the regulatory 
relief. Information on the burden of such a collection of information 
may be found later in this NPRM.

VIII. Section-by-Section Analysis

    This section-by-section analysis describes the proposed changes in 
numerical order.

49 CFR 390.5/49 CFR 390.5T

    This NPRM proposes changes to the definitions found in Sec. Sec.  
390.5 and 390.5T. The definition for emergency relief would be removed, 
as this term would no longer appear in Sec.  390.23 or Sec.  390.25. 
FMCSA would add a definition for residential heating fuel, which 
currently appears in Sec.  390.23. It would be moved to the definitions 
section, Sec.  390.5, to make proposed Sec.  390.23 easier to read, and 
to ensure all definitions appear in one section. The definition would 
also be modified to include additional common shipping names for 
petroleum, Liquefied Petroleum Gas or Petroleum Gas Liquified.
    The definition for direct assistance would be revised to 
incorporate the definition of emergency relief. In turn, the separate 
definition of emergency relief would be deleted. The definition of 
emergency would be revised to clarify what does and does not qualify as 
an emergency that could trigger the automatic exemptions of Sec.  
390.23.

49 CFR 390.23

    This NPRM proposes several revisions to Sec.  390.23. Paragraph (a) 
would be clarified to include only those Presidential declarations of 
emergency issued under 42 U.S.C. 5191(b). These declarations would 
continue to trigger automatic regulatory relief from parts 390 through 
399 for the duration of the emergency, or 30 days from the declaration, 
whichever is less. This change is being made to ensure that the broader 
relief triggered by a Presidential declaration of emergency is limited 
to those situations where a President ``determines that an emergency 
exists for which the primary responsibility for response rests with the 
United States because the emergency involves a subject area for which, 
under the Constitution or laws of the United States, the United States 
exercises exclusive or preeminent responsibility and authority.'' In 
addition, this change clarifies the relevant time periods for emergency 
regulatory relief and eliminates overlapping and potentially 
conflicting periods where a Presidential disaster or emergency 
declaration is issued in response to a request from a State when the 
State has already declared an emergency resulting in relief from 
certain Federal motor carrier safety regulations. Paragraph (b) of 
Sec.  390.23 would be used for the emergency declaration scenarios laid 
out in 42 U.S.C. 5191(a) and (c), where the Presidential declaration is 
based on an underlying State or Indian Tribal request.
    Paragraph (c) would cover local emergencies, whether declared by a 
Federal, State, or local government official with authority to declare 
an emergency. The automatic regulatory relief in this case would be 
limited to a period of 5 days or for the period of assistance 
(whichever is less) and provide relief only from the HOS requirements 
in Sec. Sec.  395.3 and 395.5.
    Paragraph (d) of proposed Sec.  390.23 carries forward the special 
provision for tow trucks from existing paragraph (a)(3). The emergency 
regulatory relief provided in this paragraph applies only to the HOS 
regulations in Sec.  395.3 and lasts for no more than 24 hours. No 
substantive changes are proposed.
    Paragraph (e) would carry forward the provisions in existing 
paragraph (b), outlining the details of when direct assistance to an 
emergency effort terminates, and the impact of that termination on the 
terms of the emergency regulatory relief. Changes to this paragraph are 
made only to clarify the rule; no substantive changes are proposed.

49 CFR 390.25

    FMCSA is proposing to change the section heading to indicate that 
the section applies not only to extensions of emergency relief, but 
also to their modification. The section would be divided into two 
paragraphs. Proposed paragraph (a) of Sec.  390.25 would provide that 
FMCSA may extend or modify any of the emergency regulatory relief 
issued under Sec.  390.23 on its own initiative, or upon request by an 
interested party who provides a detailed explanation of the

[[Page 75211]]

need for an extension through the FMCSA emergency declarations email 
address ([email protected]). This would not be a change to the 
current regulation. Proposed paragraph (b) would carry forward the 
existing language requiring that the FMCSA official issuing or 
approving an extension or modification must set a new expiration date 
for the emergency regulatory relief. It would also continue to allow 
the FMCSA official to include any other restriction deemed necessary 
but would be revised to allow FMCSA to include reporting requirements 
as a restriction.

IX. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FMCSA has considered the impact of this NPRM under E.O. 12866 (58 
FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 
FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, 
and DOT's regulatory policies and procedures. OIRA within OMB 
determined that this notice of proposed rulemaking is not a significant 
regulatory action under section 3(f) of E.O. 12866, as supplemented by 
E.O. 13563, and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of that Order. Accordingly, OMB has not 
reviewed it under that order.
    As described above, the changes proposed in this NPRM would exempt 
CMV drivers and motor carriers only from the HOS regulations in 
Sec. Sec.  395.3 and 395.5, as opposed to all regulations in 49 CFR 
parts 390 through 399, following a regional or local declaration of 
emergency. In addition, when a regional declaration of emergency is 
triggered, the automatic regulatory relief would apply for only 5 days, 
as opposed to the current 30-day standard. The proposed rule would 
retain the existing automatic regulatory relief of 30 days under 
Presidential and 5 days under local declarations of emergencies.
Baseline for This Analysis
    We do not expect this proposed rule to result in substantive 
incremental impacts relative to the baseline established in the FMCSRs. 
Most of the changes proposed in this rule have already been in practice 
through modifications to existing exemptions, including the COVID-19 
emergency exemption.
    Since the publication of the 1992 final rule, the FMCSRs have 
provided the option for motor carriers and drivers to be exempt from 
the requirements in parts 390 through 399 following a declaration of a 
Presidential, regional, or local emergency. Beginning in 2020, the 
COVID-19 related emergency exemption has been utilized to aid with 
supply chain shortages during the pandemic, as well as with 
distributing medical products for dealing with COVID-19 (such as tests, 
treatments, and vaccines). The unprecedented need to continually extend 
an emergency exemption prompted FMCSA to reevaluate the rule for 
exemptions issued in response to an emergency declaration.
    In September 2021, FMCSA modified the COVID-19 exemption to narrow 
the issued relief to just the HOS requirements in Sec. Sec.  395.3 and 
395.5. Based on Agency experience and expertise, FMCSA believes the HOS 
limits are the primary, immediate constraints drivers and carriers face 
when providing direct assistance during an emergency. As such, any 
driver currently operating under the COVID-19 exemption is already 
afforded only HOS-related exemptions and not a broad exemption from all 
requirements of parts 390 through 399.
Need for the Proposed Rule
    The need for practical and effective exemptions has been 
highlighted since the COVID-19 pandemic of 2020. The NPRM emphasizes 
the need for ensuring that relief granted by emergency declarations is 
appropriate and tailored to the specifics of the circumstances and 
emergency being addressed. FMCSA believes that a blanket relief from 
all FMCSRs in parts 390 through 399 is not necessary. Most often, motor 
carriers and drivers of CMVs need relief from only the HOS regulations 
in Sec. Sec.  395.3 and 395.5 in order to provide direct assistance to 
emergency relief efforts.
Uncertainties
    FMCSA presents a qualitative analysis of the potential costs and 
benefits of limiting emergency exemptions to HOS waivers. There is 
uncertainty surrounding the number of motor carriers and drivers who 
currently utilize exemptions beyond the HOS regulations in Sec. Sec.  
395.3 and 395.5 because FMCSA has not previously collected data on the 
use of the exemptions, and therefore cannot quantitively inform the 
potential impacts of limiting emergency exemptions. While the Agency 
did begin collecting data on COVID-19 exemption use in September of 
2021, this data is insufficient to quantitatively estimate these 
impacts. It provides FMCSA with a basis for the number of respondents 
to potential data collections on extensions of emergency exemptions, 
but it does not provide insight into the use of exemptions beyond HOS 
exemptions. In order to quantify these impacts, the Agency would need 
historical data on how many motor carriers and drivers operating during 
emergency declarations use exemptions from the requirements in parts 
390 through 399, excluding the HOS regulations in Sec. Sec.  395.3 and 
395.5, as well as data on how many trips drivers make during those 
periods. Comprehensive and verifiable data in this area are likely 
unavailable.
Costs
    In narrowing the exemptions to the HOS regulations in Sec. Sec.  
395.3 and 395.5, as opposed to all of parts 390 through 399, this 
proposed rule may result in costs to certain motor carriers and drivers 
using those additional exemptions. As mentioned above, FMCSA does not 
have data to indicate how many carriers and drivers are using 
emergency-related exemptions beyond the HOS exemptions. However, most 
emergency exemptions are limited to HOS requirements, including the 
COVID-19 emergency exemption; therefore, the Agency believes this 
change would not result in incremental costs relative to the baseline.
    As discussed in the Paperwork Reduction Act (PRA) section below, 
FMCSA estimates that there could be 477 monthly respondents if the 
Agency adds a reporting requirement to an extension or modification of 
an exemption. This estimate is based on the average number of responses 
the Agency received from the COVID-19 emergency exemption data 
collection. This would represent an upper-bound estimate for how many 
motor carriers the Agency expects would be required to report their use 
of an extension and thus be subject to an information collection. The 
costs of this proposed rule are associated with the cost of compliance 
to all parts of 390 through 399 except the HOS regulations in 
Sec. Sec.  395.3 and 395.5, whereas the 477 respondents denoted below 
represent all individuals using extensions of emergency exemptions 
which include a reporting requirement. The number of individuals who 
may incur costs to comply with parts 390 through 399 would be a subset 
of the individuals using extensions of emergency exemptions. As such, 
the number of affected entities would likely be fewer than 477 
individuals. The Agency does

[[Page 75212]]

not have a means of inferring how many individuals would be affected by 
the changes proposed in this rulemaking and, therefore, does not use 
the estimate of 477 respondents as a basis for a quantitative analysis.
    The proposed rule may result in an increase in the number of 
extension requests from motor carriers and drivers, as exemption 
periods resulting from non-Presidential emergency declarations would be 
reduced from 30 to 5 days. This rule would require individuals to 
request extensions or modifications to exemptions via email whenever 
they seek such action from FMCSA. These requests are currently made to 
local FMCSA offices, but they may be made by any means.
    A requirement for drivers and motor carriers to submit extension 
requests would increase the burden on drivers and motor carriers to 
prepare and submit such requests, as well as the burden on the Agency 
to review and respond to them. As mentioned in the PRA section below, 
the Agency estimates that 50 individuals \5\ would submit requests for 
extensions per year. These extension requests would take 15 minutes to 
complete and total to 12.5 hours of labor (50 respondents x 15 
minutes). The Agency assumes a motor carrier employee equivalent to 
General and Operations Managers with a loaded hourly wage of $83.79 
would submit the extension request.\6\ As such, there would be a total 
annual cost of $1,047.39 ($83.79 x 12.5 hours) to submit extension 
requests.
---------------------------------------------------------------------------

    \5\ The Agency is estimating 50 requests per year based on the 
expertise of the FMCSA Crisis Management Center.
    \6\ The loaded hourly wage is a product of the median hourly 
wage of a General and Operations multiplied by the fringe benefits 
rate of 50 percent and overhead costs of 27 percent. The median 
hourly wage of a General and Operations Manager is $47.10. A General 
Operations Manager falls under Bureau of Labor Statistics [BLS] 
Occupation Code 11-1021.
---------------------------------------------------------------------------

    The Agency estimates that requests for extensions would take 15 
minutes each to review. The requests would be reviewed by a GS-13, step 
5 in the Washington, DC area with a loaded hourly wage of $117.69. The 
total annual cost to review these extension requests is $1,471.10 
($117.69 x 12.5 hours).\7\
---------------------------------------------------------------------------

    \7\ The hourly wage for a GS-13 Step 5 in the Washington, DC 
region was multiplied by the federal government fringe benefits rate 
of 45 percent and the federal government overhead rate of 64 percent 
to arrive at the loaded hourly wage. The hourly wage denoted in the 
OPM schedule for a GS-15 step 5 is $56.31. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2021/DCB_h.pdf.
---------------------------------------------------------------------------

Benefits
    While the existing FMCSRs offer relief from safety regulations in 
parts 390 through 399, FMCSA believes that most exemptions used during 
emergencies have been related to HOS requirement relief. The Agency has 
no information that suggests that existing emergency exemptions have 
negatively impacted road safety. This rule would provide clarity on 
which exemptions are necessary during an emergency and would ensure the 
public continues to benefit from the other important safety 
requirements in parts 390 through 399. In addition, in requiring that 
individuals request extensions or modifications to exemptions via 
email, the Agency would be able to more efficiently track exemption 
requests.

B. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801-808), OIRA 
designated this rule as not a major rule.\8\
---------------------------------------------------------------------------

    \8\ A major rule means any rule that the OMB finds has resulted 
in or is likely to result in (a) an annual effect on the economy of 
$100 million or more; (b) a major increase in costs or prices for 
consumers, individual industries, geographic regions, Federal, 
State, or local government agencies; or (c) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export 
markets (49 CFR 389.3).
---------------------------------------------------------------------------

C. Advance Notice of Proposed Rulemaking

    Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance 
notice of proposed rulemaking (ANPRM) or proceed with a negotiated 
rulemaking, if a proposed rule is likely to lead to the promulgation of 
a major rule. As this proposed rule is not likely to result in the 
promulgation of a major rule, the Agency is not required to issue an 
ANPRM or to proceed with a negotiated rulemaking.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996,\9\ requires Federal agencies to consider the effects of the 
regulatory action on small business and other small entities and to 
minimize any significant economic impact. The term small entities 
comprises small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000 (5 
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the 
impact of all regulations on small entities, and mandates that agencies 
strive to lessen any adverse effects on these businesses.
---------------------------------------------------------------------------

    \9\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
---------------------------------------------------------------------------

    The proposed rule would affect motor carriers and drivers. Drivers 
are not considered small entities because they do not meet the 
definition of a small entity in section 601 of the RFA. Specifically, 
drivers are considered neither a small business under section 601(3) of 
the RFA, nor are they considered a small organization under section 
601(4) of the RFA. The Small Business Administration's (SBA) size 
standard for a small entity (13 CFR 121.201) differs by industry code. 
The entities affected by this rule fall into many different industry 
codes. In order to determine if this rule would have an impact on a 
significant number of small entities, FMCSA examined the 2017 Economic 
Census data \10\ for two different industries; truck transportation 
(Subsector 484) and transit and ground transportation (Subsector 485).
---------------------------------------------------------------------------

    \10\ U.S. Census Bureau, 2017 US Economic Census. Available at: 
https://data.census.gov/cedsci/table?q=United%20States&t=Value%20of%20Sales,%20Receipts,%20Revenue,%20or%20Shipments&n=484&tid=ECNSIZE2017.EC1700SIZEREVEST&hidePreview=true (last accessed Oct. 29, 2021).
---------------------------------------------------------------------------

    According to the 2017 Economic Census, approximately 99.4 percent 
of truck transportation firms, and approximately 99.2 percent of 
transit and ground transportation firms, had annual revenue less than 
the SBA's revenue thresholds of $30 million and $16.5 million, 
respectively, to be defined as a small entity. Therefore, FMCSA has 
determined that this rule would impact a substantial number of small 
entities. However, as emergencies are generally infrequent and the 
primary impact of the rule would be to marginally limit the breadth of 
the automatic exemptions that apply after a regional or local emergency 
declaration, FMCSA has determined that this rule would not have a 
significant impact on the affected entities.
    Consequently, I certify that the proposed action would not have a 
significant economic impact on a substantial number of small entities.

E. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996,\11\ FMCSA wants to assist small 
entities in understanding this proposed rule so they can better 
evaluate its effects on themselves and participate in the rulemaking 
initiative. If the proposed

[[Page 75213]]

rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult the person listed under FOR 
FURTHER INFORMATION CONTACT.
---------------------------------------------------------------------------

    \11\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996).
---------------------------------------------------------------------------

    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman (Office of the National 
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness 
Boards. The Ombudsman evaluates these actions annually and rates each 
agency's responsiveness to small business. If you wish to comment on 
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). 
DOT has a policy regarding the rights of small entities to regulatory 
enforcement fairness and an explicit policy against retaliation for 
exercising these rights.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
(UMRA) requires Federal agencies to assess the effects of their 
discretionary regulatory actions. The Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $178 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2021 levels) or more in any 1 year. Though this NPRM would not result 
in such an expenditure, and the analytical requirements of UMRA do not 
apply as a result, the Agency discusses the effects of this rule 
elsewhere in this preamble.

G. Paperwork Reduction Act

    This NPRM contains information collection requirements under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined in 5 
CFR 1320.3(c), collection of information comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other similar 
actions. The title and description of the information collection, a 
description of those who must collect the information, and an estimate 
of the total annual burden follow. The estimate covers the time for 
reviewing instructions, searching existing sources of data, gathering 
and maintaining the data needed, and completing and reviewing the 
collection.
    Title: Emergency Declaration Exemption Reporting under 49 CFR 
390.25.
    OMB Control Number: [2126-NEW].
    Summary of the Information Collection: Proposed 49 CFR 390.25 would 
allow FMCSA to add a reporting requirement to an extension of an 
emergency exemption, requiring motor carriers operating under the 
extension's terms to report their continued use of and reliance on the 
exemption. It would also require that individuals request extensions or 
modifications to exemptions via an email whenever they seek such action 
from FMCSA.
    Need for Information: The collection of information is necessary 
for FMCSA to determine the extent to which motor carriers continue to 
rely upon an extended emergency exemption.
    Proposed Use of Information: FMCSA would use the information 
collected as one piece of data to determine whether or not to extend or 
modify emergency exemptions under 49 CFR 390.25.
    Description of the Respondents: Motor carriers that operate under 
the terms of an extended emergency exemption, originally triggered by a 
declaration of emergency. Individuals who want to request an extension 
or modification of an emergency exemption.
    Number of Respondents: 477 per month for reporting requirements; 50 
per year for requests for extension or modification of exemptions.
    Frequency of Response: Monthly for reporting requirements; as 
necessary for requests for extension or modification of exemptions.
    Burden of Response: 15 minutes per response for reporting 
requirements and for requests for extension or modification of 
exemptions.
    Estimate of Total Annual Burden: The public burden for this 
information collection is estimated to average 1,444 hours per year 
(1,431 for reporting + 13 for requests for extension or modification).
    As required by the Paperwork Reduction Act of 1995, FMCSA will 
submit a copy of this NPRM to OMB for review.
    You are asked to comment on any aspect of this information 
collection, including: (1) Whether the proposed collection is necessary 
for FMCSA to perform its functions; (2) the accuracy of the estimated 
burden; (3) ways for FMCSA to enhance the quality, usefulness, and 
clarity of the collected information; and (4) ways that the burden 
could be minimized without reducing the quality of the collected 
information.

H. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 
13132 if it has ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    FMCSA has determined that this rule would not have substantial 
direct costs on or for States, nor would it limit the policymaking 
discretion of States. Nothing in this document preempts any State law 
or regulation. Therefore, this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Impact 
Statement.

I. Privacy

    The Consolidated Appropriations Act, 2005,\12\ requires the Agency 
to assess the privacy impact of a regulation that will affect the 
privacy of individuals. This NPRM would not require the collection of 
personally identifiable information.
---------------------------------------------------------------------------

    \12\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5 
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency that receives records contained in a system 
of records from a Federal agency for use in a matching program.
    The E-Government Act of 2002,\13\ requires Federal agencies to 
conduct a Privacy Impact Assessment (PIA) for new or substantially 
changed technology that collects, maintains, or disseminates 
information in an identifiable form.
---------------------------------------------------------------------------

    \13\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 
17, 2002).
---------------------------------------------------------------------------

    No new or substantially changed technology would collect, maintain, 
or disseminate information as a result of this proposed rule. 
Accordingly, FMCSA has not conducted a PIA.
    In addition, the Agency submitted a Privacy Threshold Assessment 
(PTA) to evaluate the risks and effects the proposed rulemaking might 
have on collecting, storing, and sharing personally identifiable 
information. The PTA has been submitted to FMCSA's Privacy Officer for 
review and preliminary adjudication and to DOT's Privacy Officer for 
review and final adjudication.

J. E.O. 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect

[[Page 75214]]

on one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.

K. National Environmental Policy Act of 1969

    FMCSA analyzed this proposed rule pursuant to the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined this action is categorically excluded from further analysis 
and documentation in an environmental assessment or environmental 
impact statement under FMCSA Order 5610.1 (69 FR 9680), Appendix 2, 
paragraph 6.y(4). The categorical exclusion (CE) in paragraph 6.y(4). 
covers relief during regional and local emergencies. The proposed 
requirements in this rule are covered by this CE.

List of Subjects in 49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, FMCSA proposes to amend 
49 CFR part 390 as follows:

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
1. The authority citation continues to read as follows:

    Authority: 49 U.S.C. 113, 504, 508, 31132, 31133, 31134, 31136, 
31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108 
Stat. 1673, 1677; secs. 212 and 217, Pub. L. 106-159, 113 Stat. 
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and 
transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 
109-59, 119 Stat. 1144, 1726, 1743, 1744), 113 Stat. 1748, 1773; 
sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; secs. 32101(d) and 
32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 
113-125, 128 Stat. 1388; secs. 5403, 5518, and 5524, Pub. L. 114-94, 
129 Stat. 1312, 1548, 1558, 1560; sec. 2, Pub. L. 115-105, 131 Stat. 
2263; and 49 CFR 1.81, 1.81a, 1.87.

0
2. Amend Sec.  390.5 as follows:
0
a. Lift the suspension of the section;
0
b. Revise the definitions of ``Direct assistance'' and ``Emergency'';
0
c. Remove the definition of ``Emergency relief'';
0
d. Add, in alphabetical order, a definition of ``Residential heating 
fuel''; and
0
e. Suspend the section indefinitely.
    The revisions and addition read as follows:


Sec.  390.5  Definitions.

* * * * *
    Direct assistance means transportation operations in which a motor 
carrier or driver of a commercial motor vehicle (CMV) is supplementing 
State and local efforts and capabilities to save lives or property or 
to protect public health and safety as a result of an emergency as 
defined in this section involving transportation and other relief 
services provided by a motor carrier or its driver(s) incident to the 
immediate restoration of essential services (e.g., electricity, medical 
care, sewer, water, telecommunications, and telecommunication 
transmissions) or essential supplies (e.g., food and fuel). It does not 
include transportation related to long-term rehabilitation of damaged 
physical infrastructure or routine commercial deliveries after the 
initial threat to life and property has passed.
* * * * *
    Emergency means any hurricane, tornado, storm (e.g., thunderstorm, 
snowstorm, ice storm, blizzard, sandstorm, etc.), high water, wind-
driven water, tidal wave, tsunami, earthquake, volcanic eruption, mud 
slide, drought, forest fire, explosion, blackout, or other occurrence, 
natural or man-made, which interrupts the delivery of essential 
services (e.g., electricity, medical care, sewer, water, 
telecommunications, and telecommunication transmissions) or essential 
supplies (e.g., food and fuel) or otherwise immediately threatens human 
life or public welfare, provided such hurricane, tornado, or other 
event results in a declaration of an emergency by the President of the 
United States, the Governor of a State, or their authorized 
representatives having authority to declare emergencies; by the Federal 
Motor Carrier Safety Administration (FMCSA); or by other Federal, 
State, or local government officials having authority to declare 
emergencies; or a request by a police officer for tow trucks to move 
wrecked or disabled motor vehicles. Emergency does not include events 
from economic conditions that are caused by market forces, including 
price increases, shortages of raw materials or labor strikes, (e.g., 
driver shortages, other supply chain issues) unless such event causes 
an immediate threat to human life and results in a declaration of an 
emergency by the President of the United States; the Governor of a 
State, or their authorized representatives having authority to declare 
emergencies; FMCSA; or other Federal, State, or local government 
officials having authority to declare emergencies.
* * * * *
    Residential heating fuel includes heating oil, natural gas, and 
propane (also known as Liquefied Petroleum Gas or Petroleum Gas 
Liquified).
* * * * *
0
3. Amend Sec.  390.5T as follows:
0
a. Revise the definitions of ``Direct assistance'' and ``Emergency'';
0
b. Remove the definition of ``Emergency relief''; and
0
c. Add, in alphabetical order, a definition of ``Residential heating 
fuel''.
    The revisions and addition read as follows:


Sec.  390.5T  Definitions.

* * * * *
    Direct assistance means transportation operations in which a motor 
carrier or driver of a commercial motor vehicle (CMV) is supplementing 
State and local efforts and capabilities to save lives or property or 
to protect public health and safety as a result of an emergency as 
defined in this section involving transportation and other relief 
services provided by a motor carrier or its driver(s) incident to the 
immediate restoration of essential services (e.g., electricity, medical 
care, sewer, water, telecommunications, and telecommunication 
transmissions) or essential supplies (e.g., food and fuel). It does not 
include transportation related to long-term rehabilitation of damaged 
physical infrastructure or routine commercial deliveries after the 
initial threat to life and property has passed.
* * * * *
    Emergency means any hurricane, tornado, storm (e.g., thunderstorm, 
snowstorm, ice storm, blizzard, sandstorm, etc.), high water, wind-
driven water, tidal wave, tsunami, earthquake, volcanic eruption, mud 
slide, drought, forest fire, explosion, blackout, or other occurrence, 
natural or man-made, which interrupts the delivery of essential 
services (e.g., electricity, medical care, sewer, water, 
telecommunications, and telecommunication transmissions) or essential 
supplies (e.g., food and fuel) or otherwise immediately threatens human 
life or public welfare, provided such hurricane, tornado, or other 
event results in a declaration of an emergency by the President of the 
United States, the Governor of a State, or their authorized 
representatives having authority to declare emergencies; by the Federal 
Motor Carrier Safety Administration (FMCSA); or by other Federal, 
State, or local government officials having authority to declare 
emergencies; or a request by a police officer for tow trucks to move 
wrecked

[[Page 75215]]

or disabled motor vehicles. Emergency does not include events from 
economic conditions that are caused by market forces, including 
shortage of raw materials or labor strikes, (e.g., driver shortages, 
computer chip shortages, other supply chain issues) unless such event 
causes an immediate threat to human life and results in a declaration 
of an emergency by the President of the United States, the Governor of 
a State, or their authorized representatives having authority to 
declare emergencies; by FMCSA; or by other Federal, State, or local 
government officials having authority to declare emergencies.
* * * * *
    Residential heating fuel includes heating oil, natural gas, and 
propane also known as Liquefied Petroleum Gas or Petroleum Gas 
Liquified.
* * * * *
0
4. Revise Sec.  390.23 to read as follows:


Sec.  390.23  Automatic relief from regulations in this chapter.

    (a) Presidential declaration of emergency. During an emergency 
declared by the President of the United States pursuant to 42 U.S.C. 
5191(b) or for 30 days from the date of the initial declaration of the 
emergency, whichever is less, parts 390 through 399 of this chapter 
shall not apply to any motor carrier or driver operating a commercial 
motor vehicle, so long as the motor carrier or driver is providing 
direct assistance.
    (b) Regional declarations of emergency. Except as provided in 
paragraph (b)(1) of this section, Sec. Sec.  395.3 and 395.5 of this 
chapter shall not apply to a motor carrier or driver operating a 
commercial motor vehicle so long as the motor carrier or driver is 
providing direct assistance during an emergency declared by the 
Governor of a State, their authorized representative, or FMCSA during 
the emergency period or 5 days from the date of the initial declaration 
of emergency, whichever is less.
    (1) Residential heating fuel shortages. Parts 390 through 399 of 
this chapter shall not apply to a motor carrier or driver operating a 
commercial motor vehicle to provide residential heating fuel in the 
geographic area designated in an emergency declaration issued by the 
Governor of a State. If the Governor of a State declares an emergency 
caused by a shortage of residential heating fuel and, at the conclusion 
of the 30-day period immediately following the declaration, determines 
that the emergency shortage has not ended, and extends the declaration 
of an emergency for up to two additional 30-day periods, this 
regulatory relief shall remain in effect up to the end of such 
additional periods. The total length of the emergency shall not exceed 
90 days.
    (2) [Reserved]
    (c) Local emergencies. Sections 395.3 and 395.5 of this chapter 
shall not apply to a motor carrier or driver operating a commercial 
motor vehicle so long as the motor carrier or driver is providing 
direct assistance during an emergency declared by a Federal, State, or 
local government official having authority to declare an emergency for 
the period of such assistance or 5 days from the date of the initial 
declaration of emergency, whichever is less.
    (d) Tow trucks responding to emergencies. Section 395.3 of this 
chapter shall not apply to a motor carrier or driver operating a 
commercial motor vehicle so long as the motor carrier or driver is 
providing direct assistance during an emergency when a request has been 
made by a Federal, State, or local police officer for tow trucks to 
move wrecked or disabled motor vehicles. This regulatory relief shall 
not exceed the length of the motor carrier's or driver's direct 
assistance in providing emergency relief or 24 hours from the time of 
the initial request for assistance by the Federal, State, or local 
police officer, whichever is less.
    (e) Termination of regulatory relief. (1) Upon termination of 
direct assistance to the emergency relief effort, the motor carrier or 
driver is subject to all previously exempted sections with the 
following exception: A driver may return empty to the motor carrier's 
terminal or the driver's normal work reporting location without 
complying with the previously exempted sections. However, a driver who 
informs the motor carrier that he or she needs immediate rest must be 
permitted at least 10 consecutive hours off duty before the driver is 
required to return to such terminal or location. Having returned to the 
terminal or other location, the driver must be relieved of all duty and 
responsibilities.
    (2) Direct assistance terminates when a driver or commercial motor 
vehicle is used in interstate commerce to transport cargo not destined 
for the emergency relief effort, or when the motor carrier dispatches 
such driver or commercial motor vehicle to another location to begin 
operations in commerce.
    (3) When the driver has been relieved of all duty and 
responsibilities upon termination of direct assistance to an emergency 
relief effort, no motor carrier shall permit or require any driver used 
by it to drive nor shall any such driver drive in commerce until the 
driver has met the requirements of Sec. Sec.  395.3(a) and (c) and 
395.5(a) of this chapter.
0
5. Revise Sec.  390.25 to read as follows:


Sec.  390.25  Extension or modification of relief from regulations in 
this chapter--emergencies.

    (a) FMCSA may extend the period of the regulatory relief or modify 
the scope of emergency relief contained in Sec.  390.23. Interested 
parties may also request an extension or modification by providing a 
detailed explanation of the need for an extension or modification of 
the relief. Any interested party seeking to extend the period of 
regulatory relief shall send its request to the FMCSA emergency 
declarations mailbox, [email protected], before the expiration 
of the period of relief. FMCSA will determine if such relief is 
necessary by evaluating the circumstances of the ongoing emergency, the 
need for relief, and the nature of the relief to be provided.
    (b) If FMCSA initiates or approves an extension of the regulatory 
relief, it shall establish a new time limit and may place terms and 
conditions on motor carriers or drivers relying upon the continued or 
modified relief. These terms and conditions may include reporting 
requirements concerning operations under the exemption.

    Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2022-26506 Filed 12-7-22; 8:45 am]
BILLING CODE 4910-EX-P