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Amendment to Emergency Relief Exemptions Pursuant to the Reliable Home Heating (RHH) Act

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Amendment to Emergency Relief Exemptions Pursuant to the Reliable Home Heating (RHH) Act

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
October 22, 2014

[Federal Register Volume 79, Number 204 (Wednesday, October 22, 2014)]
[Rules and Regulations]
[Pages 63057-63059]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-25127]



Federal Motor Carrier Safety Administration

49 CFR Part 390

[Docket No. FMCSA-2014--0355]
RIN 2126-AB77

Amendment to Emergency Relief Exemptions Pursuant to the Reliable 
Home Heating (RHH) Act

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

ACTION: Final rule.


SUMMARY: FMCSA adopts, as final, certain amendments to the Federal 
Motor Carrier Safety Regulations (FMCSRs) required by the Reliable Home 
Heating (RHH) Act. Currently, the FMCSRs include a provision which 
enables motor carriers providing direct assistance in responding to an 
emergency declared by a governor to do so without having to comply with 
certain Federal safety regulations. However, the duration of the relief 
is limited to 30 days unless FMCSA extends the exemption. This final 
rule amends the emergency relief provision in the FMCSRs so that the 
safety requirements in 49 CFR parts 390-399 will not apply if a 
Governor: Declares a state of emergency caused by a shortage of 
residential heating fuel; determines at the end of the 30-day exemption 
period currently authorized by the regulations that the emergency 
shortage has not ended; and extends the declaration of emergency for up 
to 2 additional 30-day periods. Because the rule is a non-
discretionary, ministerial action as required by the RHH Act, it is 
issued without prior notice and opportunity for comment, pursuant to 
the good cause exception in the Administrative Procedure Act (APA).

DATES: Effective October 22, 2014.

ADDRESSES: You may view material bearing the Federal Docket Management 
System (FDMS) Docket ID FMCSA-2014-0355 using any of the following 
     Federal eRulemaking Portal: Go to www.regulations.gov. 
Follow the on-line instructions for viewing material.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line Federal document management system 
is available 24 hours each day, 365 days each year. If you want 
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgment 
page that appears after submitting comments on-line.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. 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 FDMS), which can be reviewed at 

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief of Driver and 
Carrier Operations, by telephone (202) 366-4325 or by electronic mail 
at tom.yager@dot.gov; FMCSA, Department of Transportation, 1200 New 
Jersey Ave. SE., Washington, DC 20590. If you have questions on viewing 
or submitting material to the docket, contact Docket Services, 
telephone (202) 366-9826.


Executive Summary

Purpose and Summary of the Major Provisions

    This rule makes nondiscretionary ministerial changes to FMCSA's 
emergency relief regulations in 49 Code of Federal Regulations (CFR) 
390.23. The changes are required by Section 2(c) of the RHH Act, Public 
Law 113-125, 128 Stat. 1388, June 30, 2014. When shortages of 
residential heating fuel occur, the RHH amendments extend the normal 
30-day exemption period for up to 90 days, provided that the Governor 
of the affected State determines that a second or third 30-day period 
must be allowed to enable motor carriers to provide residential heating 
fuel expeditiously.

Benefits and Costs

    The rule provisions considered both individually and in the 
aggregate do not rise to the level of economic significance.

Legal Basis for the Rulemaking

    This rule is required by Section 2(c) of the Reliable Home Heating 
(RHH) Act, Public Law 113-125, 128 Stat. 1388, June 30, 2014.
    Section 390.23(a) of title 49, CFR, provides that 49 CFR parts 390-
399 of the FMCSRs shall not apply to any motor carrier or driver 
operating a commercial motor vehicle (CMV) to provide emergency relief 
during an emergency declared by certain Federal or State officials, 
including a Governor, subject to certain time limits. Section 
390.23(a)(1)(ii) limits a regional emergency (which would include a 
State-wide emergency) to a maximum of 30 days from the date of the 
initial declaration of the emergency.
    Section 2(b) of the RHH Act provides that, if a Governor (1) 
declares a state of emergency caused by a shortage of residential 
heating fuel,\1\ (2) determines

[[Page 63058]]

at the end of the 30-day exemption period authorized by section 
390.23(a)(1)(ii) that the emergency shortage has not ended, and (3) 
extends the declaration of emergency for up to 2 additional 30-day 
periods, FMCSA shall not apply parts 390-399 of the FMCSRs to a motor 
carrier or driver operating a CMV to provide residential heating fuel 
in the geographic area designated by the emergency declaration for 
those 2 additional periods.

    \1\ Although the Act states that residential heating fuel 
``includes'' heating oil, natural gas, and propane, FMCSA believes 
that list was intended to be exclusive, despite the use of the vague 
term ``includes.'' The rules of statutory interpretation generally 
treat a list of specific items as evidence of legislative intent to 
exclude other items [expressio unius est exclusio alterius]. Section 
390.23(a)(1)(ii) has been amended accordingly.

    Section 2(c) of the RHH Act requires FMCSA to amend section 
390.23(a)(1)(ii) to conform to the provisions of section 2(b). This 
rule adopts the required conforming amendment.
    Because the RHH Act leaves FMCSA no discretion in the promulgation 
of this amendment, the Agency finds good cause under the APA [5 U.S.C. 
553(b)] to publish this final rule without prior notice and opportunity 
for comment. Comments are unnecessary since they could not change the 
amendment required by the RHH Act. For the same reason, FMCSA finds 
good cause to make this rule effective upon publication in the Federal 
Register, as authorized by 5 U.S.C. 553(d)(3).

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review and DOT 
Regulatory Policies and Procedures as Supplemented by E.O. 13563)

    FMCSA has determined this final rule is not a significant 
regulatory action within the meaning of Executive Order (E.O.) 12866, 
as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is 
also not significant within the meaning of DOT regulatory policies and 
procedures (44 FR 11034, February 26, 1979). As explained above, this 
final rule promulgates nondiscretionary statutory requirements. The 
cost of these changes will not exceed the $100 million annual 
threshold. Any costs associated with this action are attributable to 
the non-discretionary statutory provisions. This final rule is not 
expected to generate substantial congressional or public interest. 
Therefore, a regulatory impact analysis has not been conducted nor has 
there been a review by the Office of Management and Budget (OMB).

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 
601 et seq.), as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not 
required to prepare a regulatory flexibility analysis under 5 U.S.C. 
604(a) for this final rule because the Agency has not issued a notice 
of proposed rulemaking prior to this action.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this rule so that they can better evaluate its effects 
on themselves and participate in the rulemaking initiative. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult the FMCSA point of contact, 
Thomas Yager, listed in the FOR FURTHER INFORMATION CONTACT section of 
this rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the SBA's Small Business and Agriculture Regulatory 
Enforcement 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 ensuring the rights of small entities to 
regulatory enforcement fairness and an explicit policy against 
retaliation for exercising these rights.

Unfunded Mandates Reform Act of 1995

    This final rule will not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et 
seq.), that will result in the expenditure by a State, local, or tribal 
governments, in the aggregate, or by the private sector of $151 million 
(which is the value of $100 million in 2013 after adjusting for 
inflation) or more in any one year.

E.O. 13132 (Federalism)

    A rule has implications for Federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. This action has been analyzed in 
accordance with E.O. 13132. FMCSA has determined that this rule would 
not have a substantial direct effect on States, nor would it limit the 
policymaking discretion of States. Nothing in this document preempts 
any State law or regulation.

E.O. 12988 (Civil Justice Reform)

    This final rule meets applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988 to minimize litigation, eliminate ambiguity, and 
reduce burden.

E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this final rule is not economically 
significant. Therefore, no analysis of the impacts on children is 
required. In any event, the Agency does not believe that this action 
could create an environmental or safety risk that would 
disproportionately affect children.

E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this final rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it will not effect a taking of 
private property or otherwise have takings implications.

Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a privacy impact assessment (PIA) of a regulation that will 
affect the privacy of individuals. This rule does not require the 
collection of personally identifiable information (PII).
    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency which receives records contained in a system 
of records from a Federal agency for use in a matching program. That 
provision is not applicable to this rule.

E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 

[[Page 63059]]

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from the OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. This rule requires no information collection.

National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this rule in accordance with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and 
FMCSA's NEPA Implementing Procedures and Policy for Considering 
Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR 
9680). FMCSA's Order states that ``[w]here FMCSA has no discretion to 
withhold or condition an action if the action is taken in accordance 
with specific statutory criteria and FMCSA lacks control and 
responsibility over the effects of an action, that action is not 
subject to this Order.'' Id. at chapter 1(D). Because the RHH Act 
requires the action taken here, FMCSA has no jurisdiction or control 
over, or responsibility for, the effects of this action, and the 
rulemaking falls under chapter 1(D). Therefore, no further analysis is 
    In addition to the NEPA requirements to examine impacts on air 
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401, et seq.) 
also requires FMCSA to analyze the potential impact of its actions on 
air quality and to ensure that FMCSA actions conform to State and local 
air quality implementation plans. This non-discretionary action is 
expected to fall within the CAA de minimis standards and is not subject 
to the Environmental Protection Agency's General Conformity Rule (40 
CFR parts 51 and 93).
    Additionally, FMCSA evaluated the effects of this final rule in 
accordance with Executive Order 12898 and determined that there are no 
environmental justice issues associated with its provisions nor any 
collective environmental impacts resulting from its promulgation. 
Environmental justice issues would be raised if there were a 
``disproportionate'' and ``high and adverse impact'' on minority or 
low-income populations. This final rule is exempt from analysis under 
the National Environmental Policy Act. This final rule simply makes 
ministerial, mandatory changes and would not result in high and adverse 
environmental impacts.

E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA analyzed this action under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. FMCSA determined that it is not a ``significant energy action'' 
under that E.O. because it is not economically significant and is not 
likely to have an adverse effect on the supply, distribution, or use of 

E.O. 13175 (Indian Tribal Governments)

    This final 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 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.

National Technology Transfer and Advancement Act (Technical Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards (e.g., specifications of materials, performance, 
design, or operation; test methods; sampling procedures; and related 
management systems practices) are standards that are developed or 
adopted by voluntary consensus standards bodies. This final rule does 
not use technical standards. Therefore, we did not consider the use of 
voluntary consensus standards.

List of Subjects in 49 CFR Part 390

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

    In consideration of the foregoing, FMCSA amends 49 CFR part 390 as 


1. The authority citation for part 390 is revised to read as follows:

     Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 
31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678; 
sections 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; 
sec. 229, Pub. L. 106-159 (as transferred by sec. 4114 and amended 
by sections 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-
1744); sec. 4136, Pub. L. 109-59, 119 Stat 1144, 1745; sections 
32101(d) and 34934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 
2, Pub. L. 113-125, 128 Stat. 1388; and 49 CFR 1.87.

2. Amend Sec.  390.23 by revising paragraph (a)(1)(ii) to read as 

Sec.  390.23  Relief from regulations.

    (a) * * *
    (1) * * *
    (ii)(A) Except as provided in paragraph (a)(1)(ii)(B) of this 
section and Sec.  390.25, the exemption shall not exceed the duration 
of the motor carrier's or driver's direct assistance in providing 
emergency relief, or 30 days from the date of the initial declaration 
of the emergency or the exemption from the regulations by the FMCSA 
Field Administrator, whichever is less.
    (B) If a Governor who declares an emergency caused by a shortage of 
residential heating fuel (namely heating oil, natural gas, and 
propane), subsequently determines at the end of the 30-day period 
immediately following the declaration that the emergency shortage has 
not ended, and extends the declaration of an emergency for up to 2 
additional 30-day periods, this exemption shall remain in effect up to 
the end of such additional periods, not to exceed 60 additional days, 
for a motor carrier or driver providing residential heating fuel in the 
geographic area designated by the Governor's declaration of emergency.
* * * * *

    Issued under the authority delegated in 49 CFR 1.87: October 14, 
T.F. Scott Darling, III
Acting Administrator.
[FR Doc. 2014-25127 Filed 10-21-14; 8:45 am]

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