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Clarification to the Applicability of Emergency Exemptions Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Robin Hutcheson Date: 13 October 2023 Subject: American Government 
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[Federal Register Volume 88, Number 197 (Friday, October 13, 2023)]
[Rules and Regulations]
[Pages 70897-70909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22538]
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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: Final rule.
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SUMMARY: FMCSA revises the emergency exemption rules to narrow the
scope of safety regulations from which relief is automatically provided
for motor carriers and drivers providing direct assistance when an
emergency has been declared. This rule ensures that the relief granted
through emergency declarations is appropriate and tailored to the
specifics of the circumstances and emergencies being addressed. This
rule also revises the process for extending automatic emergency
regulatory relief where circumstances warrant and allows for potential
reporting requirements when FMCSA issues an extension or modification.
DATES: Effective December 12, 2023.
Comments on the information collection in this final rule must be
submitted to the Office of Information and Regulatory Affairs (OIRA) at
the Office of Management and Budget (OMB) by November 13, 2023.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than November 13, 2023.
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,
Kathryn.sinniger@dot.gov. If you have questions on viewing material in
the docket, call Dockets Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION: FMCSA organizes this final rule as follows:
I. Availability of Rulemaking Documents
II. Comments on the Information Collection
III. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Summary of Major Provisions
C. Costs and Benefits
IV. Abbreviations
V. Legal Basis
VI. Discussion of Proposed Rulemaking and Comments
A. Proposed Rulemaking
B. Comments and Responses
VII. Changes From the NPRM
VIII. Section-by-Section Analysis
IX. Severability
X. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), E.O. 14094
(Modernizing Regulatory Review), and DOT Regulatory Policies and
Procedures
B. Congressional Review Act
C. Regulatory Flexibility Act (Small Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act (Collection of Information)
G. E.O. 13132 (Federalism)
H. Privacy
I. E.O. 13175 (Indian Tribal Governments)
J. National Environmental Policy Act of 1969
I. Availability of Rulemaking Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2022-0028/document and
choose the document to review. To view comments, click this final rule,
then click ``Browse Comments.'' If you do not have access to the
internet, you may view the docket online by visiting
[[Page 70898]]
Dockets Operations at U.S. Department of Transportation, 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.
II. Comments on the Information Collection
Written comments and recommendations for the information collection
discussed in this final rule should be sent within 30 days of
publication to www.reginfo.gov/public/do/PRAMain. Find this information
collection by clicking the link that reads ``Currently under Review--
Open for Public Comments'' or by entering OMB control number 2126-0077
in the search bar and clicking on the last entry to reach the
``comment'' button.
III. 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 or
local emergency relief efforts in response to that emergency, as those
terms are defined in Sec. Sec. 390.5 and 390.5T.\1\
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\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.
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Based on Agency subject matter expertise and input from States,
affected localities, industry groups, and others, FMCSA believes most
emergencies justify allowing carriers and drivers who provide direct
assistance to the emergency response to receive temporary relief from
the normal hours of service (HOS) limits, so that they may deliver
critical supplies and services to the communities in need as quickly
and safely as possible. However, other safety regulations, including
the driver qualification requirements of part 391, vehicle inspection
requirements of part 396, parts and accessories required by part 393,
and other operating requirements such as prohibitions on operating
while ill or fatigued in part 392, often have no direct bearing on the
motor carrier's ability to provide direct assistance to the emergency
relief effort.
Safety regulations ensure that the companies, vehicles, and drivers
meet the minimum requirements to operate safely. While temporary relief
from some regulations may be necessary during an emergency, waiving
every regulation in parts 390 through 399 could negatively impact the
safety of commercial motor vehicles (CMVs) operating on the roadways.
Although the Agency has no detailed quantitative information that
suggests that past or existing emergency exemptions have in fact
negatively impacted road safety, it also has no information suggesting
that exemptions from all safety regulations in Parts 390-399 in the
event of an emergency is necessary to enable the provision of emergency
relief. FMCSA is committed to ensuring that the operation of CMVs in
interstate commerce is conducted as safely as practicable and,
therefore, presumes that its promulgated safety regulations should
remain in effect absent a specific showing that exemption is necessary.
In order to provide clarity on which emergency exemptions are
necessary during an emergency, FMCSA is narrowing the automatic
applicability of Sec. 390.23 to the HOS limits in Sec. Sec. 395.3 and
395.5, which set the basic HOS limits for property-carrying and
passenger-carrying vehicles, respectively. This change clarifies 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, today's rule clarifies 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 rule changes definitions in Sec. Sec. 390.5 and 390.5T. It
modifies 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. This rule also
removes the definition of emergency relief as that term is no longer
used in Sec. 390.23 and amends the definition of direct assistance to
incorporate the essential components of the emergency relief
definition. This rule moves the definition of residential heating fuel
from the text of Sec. 390.23 and places it in the definition sections,
Sec. Sec. 390.5 and 390.5T. These reorganizational changes simplify
the text in Sec. 390.23 without changing the regulation's meaning.
This rule revises Sec. 390.23 in several ways. Presidential
declarations of emergency will continue to trigger a 30-day exemption
from all FMCSRs in parts 390 through 399. The rule limits the duration
and scope of the automatic regulatory relief that takes effect upon a
regional declaration of emergency by a Governor, a Governor's
authorized representative, or FMCSA, however. The automatic regulatory
relief applies for 14 days, as opposed to 30 days, and exempts 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 both
shortens the time the automatic regulatory relief is in place and
limits the scope of the relief provided, ensuring any impact on safety
continues to be minimized during the period of the automatic regulatory
relief. FMCSA revised this provision from the NPRM at the suggestion of
commenters who expressed concern that the proposed 5-day emergency
exemption period would be too short to provide emergency relief, and
also too little time for FMCSA to receive and evaluate information on
whether a longer FMCSA-issued emergency exemption was warranted. FMCSA
believes that most emergency declarations expire within 5 days, but it
is aware that climate change has impacted both the number and severity
of storms that often give rise to regional declarations of emergency.
Providing for 14 days of automatic relief will allow emergency relief
efforts in these severe weather scenarios to continue unabated, without
fear that there will be a lapse between the automatic regulatory relief
and any FMCSA action to extend or reinstate the regulatory relief.
Additionally, for those emergencies that do not require an extended
response period, the regulation provides that the exemption period
triggered by a Governor-issued emergency declaration will end upon
cessation of the emergency declaration or 14 days, whichever is sooner.
Section 390.23 maintains 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
[[Page 70899]]
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 under section 390.23(c), the automatic
regulatory relief is limited by this rule to the HOS regulations in
Sec. Sec. 395.3 and 395.5. This regulatory relief is already limited
to 5 days, thus no change to the length of the automatic relief is
needed. This change ensures that any impact on safety continues to be
minimized during the period of the automatic regulatory relief.
Finally, this rule simplifies the language in Sec. 390.25,
allowing FMCSA to extend and modify the automatic regulatory relief
outlined in Sec. 390.23, either on its own volition or upon request.
All requests for modifications and extensions must be made via email.
FMCSA will still establish a time limit for the extended or modified
emergency exemption, and the Agency may place any restrictions upon the
emergency relief. This final rule adds, specifically, that FMCSA may
include reporting requirements as one of these restrictions. FMCSA is
requesting approval from OMB for a collection of information as part of
this rulemaking.
C. Costs and Benefits
The Agency does not expect this rule will result in substantive
incremental impacts relative to the baseline established in the FMCSRs.
Most of the changes in this rule have already been in practice through
modifications to previous automatic 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.
Limiting the automatic regulatory relief to the HOS regulations in
Sec. Sec. 395.3 and 395.5, as opposed to all the FMCSRs in 49 CFR
parts 390 through 399, may result in costs to certain motor carriers
and drivers who currently rely on the automatic regulatory relief,
beyond the HOS regulations. However, as most emergency exemptions are
either issued or modified to be limited to cover only the HOS
regulations, including the COVID-19 emergency exemption, the Agency
believes this change will not result in incremental costs relative to
the baseline.
Because automatic regulatory relief is decreasing from 30 days to
14 days in the case of regional emergencies, the 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 this rule for individuals who request extensions to exemptions via
email.
IV. Abbreviations
AASHTO American Association for State Highway and Transportation
Officials
AECC Arkansas Electric Cooperatives Corporation
AECI Arkansas Electric Cooperatives, Inc.
AHAS Advocates for Highway and Auto Safety
ANPRM Advance Notice of Proposed Rulemaking
ATA American Trucking Associations
CBI Confidential Business Information
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
COVID-19 Coronavirus Disease 2019
CRASH Citizens for Reliable and Safe Highways
CVSA Commercial Vehicle Safety Alliance
IDOT Iowa Department of Transportation
DOT U.S. Department of Transportation
EEI Edison Electric Institute
EMA Energy Marketers of America
E.O. Executive Order
FHP Florida Highway Patrol--Office of Commercial Vehicle Enforcement
FMA Fuel Merchants Association of New Jersey
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FPMA Florida Petroleum Marketers Association
FR Federal Register
HOS Hours of Service
MCS Montana Department of Transportation--Motor Carrier Services
Division
MEMA Mississippi Emergency Management Agency
MMTA Maine Motor Transport Association
NAICS North American Industry Classification System
ND State of North Dakota
NEFI National Energy & Fuels Institute
NPGA National Propane Gas Association
NPRM Notice of Proposed Rulemaking
NWRA National Waste & Recycling Association
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association
PATT Parents Against Tired Truckers
PTA Privacy Threshold Assessment
SBA Small Business Administration
SC Shippers Coalition
SWANA Solid Waste Association of North America
TSC Truck Safety Coalition
UMRA Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
V. 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 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)
VI. Discussion of Proposed Rulemaking and Comments
A. Proposed Rulemaking
On December 8, 2022, FMCSA published in the Federal Register
(Docket No. FMCSA-2022-0028, 87 FR 75206) an NPRM titled
``Clarification to the Applicability of Emergency Exemptions.'' The
NPRM proposed to revise, remove, and add definitions to reflect other
changes proposed to the emergency exemption rules. These changes
included removing an obsolete term, moving the definition of one term
to the definition section, and revising two definitions.
FMCSA also proposed to shorten, in certain situations, the duration
and limit the scope of the initial, automatic regulatory relief
triggered by an emergency declaration. Under the NPRM, the scope of
relief would be limited to specific provisions of the HOS regulations,
unless the emergency
[[Page 70900]]
declaration is made by the President under the authority of 42 U.S.C.
5191(b). As proposed, the relief would 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 would
continue to trigger a 30-day exemption from all FMCSRs in parts 390
through 399.
The NPRM proposed that any party, including a State or local
official, could request additional relief and/or an extension from
FMCSA. The Agency would evaluate any such request and approve, modify,
or deny the request, as appropriate. No formal request or form would be
required to request relief. Requests would be submitted to FMCSA's
emergency declaration email inbox (FMCSAdeclaration@dot.gov). FMCSA
would also have retained independent authority to extend or modify the
emergency relief.
FMCSA also proposed adding language to Sec. 390.25 to expressly
note that one of the conditions FMCSA may include when extending/
modifying an emergency declaration exemption is to collect information
from those carriers and drivers relying upon the regulatory relief.
B. Comments and Responses
FMCSA solicited comments concerning the NPRM for 60 days ending
February 6, 2023. Twenty-nine comments were received, from the
following parties: American Association of State Highway and
Transportation Officials (AASHTO), Arkansas Electric Cooperative
Corporation (AECC), Arkansas Electric Cooperatives, Inc. (AECI),
Advocates for Highway and Auto Safety (AHAS), American Trucking
Associations (ATA), Citizens for Reliable and Safe Highways (CRASH),
Commercial Vehicle Safety Alliance (CVSA), Edison Electric Institute
(EEI), Energy Marketers of America (EMA), Florida Highway Patrol--
Office of Commercial Vehicle Enforcement (FHP), Florida Petroleum
Marketers Association, Inc. (FPMA), Fuel Merchants Association of New
Jersey (FMA), Iowa Department of Transportation (IDOT), Montana
Department of Transportation--Motor Carrier Services Division (MCS),
Mississippi Emergency Management Agency (MEMA), Maine Motor Transport
Association (MMTA), the State of North Dakota (ND), National Energy &
Fuels Institute, Inc. (NEFI), National Propane Gas Association (NPGA),
National Waste & Recycling Association (NWRA), Oncor \2\ Owner-Operator
Independent Drivers Association (OOIDA), Parents Against Tired Truckers
(PATT), Powell Transportation Co., Inc., Shippers Coalition (SC), Solid
Waste Association of North America (SWANA), Suburban Propane, Truck
Safety Coalition (TSC), and two private citizens.\3\ The Agency also
received a letter signed by twenty-seven Members of Congress, which was
added to the docket.
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\2\ Oncor submitted their comment after the comment period
officially closed via an email, which FMCSA placed in the docket for
this rulemaking.
\3\ One commenter submitted a duplicate comment, which contained
numerous attachments that were not included in their initial filing.
FMCSA counted these two comments as one.
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Request To Extend Comment Period
One commenter, EMA, requested an extension of the comment period,
citing a lack of awareness on the part of State associations. However,
several States and associations submitted comments to the docket prior
to its closing date, including a second, substantive comment from EMA.
FMCSA ensured that the docket would stay open beyond February 6, 2023,
so all interested parties would have time to file their comments. FMCSA
considered all comments it received, whether those comments were filed
in the docket before or after February 6, 2023. For these reasons,
FMCSA did not extend the comment period.
General Comments
The majority of commenters agreed with the proposal to limit the
automatic exemption to the HOS requirements triggered by a declaration
of emergency. Most of the commenters who agreed with the idea of
limiting the application of the automatic emergency exemption to the
HOS requirements had additional comments, which are addressed below.
Seven commenters opposed all aspects of the NPRM.
Reason for Making Changes
Five commenters questioned FMCSA's stated reasons for proposing
changes to the emergency exemption regulations. NPGA noted that ``the
stated basis for this rulemaking lacks evidence, and evidence to the
contrary is provided by FMCSA itself.'' NEFI recommended that FMCSA
analyze safety data from the COVID-19 emergency declaration to see if
there was a rise in fatigue related incidents prior to making any
changes. OOIDA, EMA, FPMA, and the Members of Congress all noted a lack
of evidence that the current emergency exemption rules impact safety.
FMCSA acknowledges that there is no specific quantitative evidence
that the current emergency exemption rules have led to a degradation of
safety. Data collected during the COVID-19 emergency declaration was of
limited scope and does not allow for a specific safety impact analysis
of those carriers operating under the emergency exemption. However, it
is generally accepted that driver fatigue increases risk of safety
incidents, and that one of the leading causes of driver fatigue is
driving for too long and working long hours without adequate
opportunities for restorative sleep. FMCSA is committed to ensuring the
safety of commercial vehicle transportation, both for CMV drivers and
for others sharing the roads with CMVs. The FMCSRs exist in order to
ensure safety, and there is published research that indicates the
FMCSRs overall have a solid safety basis. (See research studies on the
Safety Measurement System, the Behavior Analysis and Safety Improvement
Categories from which are rooted in the FMCSRs).\4\ Any time FMCSA
agrees to lower a safety standard by issuing an exemption, there must
be a compelling reason. While responding to emergency situations is a
compelling reason to issue relief from some FMCSRs, FMCSA does not
believe that it is a compelling reason to exempt motor carriers and
drivers from all FMCSRs. Nor does it provide a compelling reason to
extend that relief for a longer period than is necessary to respond. In
the absence of specific data showing an increased safety risk for CMVs
operating under an emergency exemption, FMCSA determined that the
potential for increased safety risk under the current emergency
exemption regulation, as reflected by the removal of all FMCSR
requirements during an emergency exemption, was enough to warrant the
changes made by this rule.
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\4\ ``The Carrier Safety Measurement System (CSMS) Effectiveness
Test by Behavior Analysis and Safety Improvement Categories
(BASICs)'' from January 2014, available in the docket for this
rulemaking.
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Additionally, in recent years FMCSA saw emergency declarations from
state Governors or their representatives that do not warrant the
emergency exemptions from the Federal regulations in Sec. 390.23.
Examples include an emergency exemption covering all interstate
shipments of goods during the month of December, to counteract supply
chain issues and help increase the supply of toys and other items for
Christmas, and an exemption for all shipments of gasoline to encourage
[[Page 70901]]
more travel after the pandemic. FMCSA considered the increase in the
number of inappropriate emergency declarations as another reason to
initiate this rulemaking, to clarify those instances when emergency
exemptions are appropriate.
Limitation of Regional Exemption to 5 Days
Twenty-two commenters opposed shortening the duration of the
automatic exemption triggered by regional emergency declarations by
governors, their authorized representative, or FMCSA. These commenters
included Powell Transportation, MMTA, CVSA, AASHTO, SC, MCS, IDOT, FHP,
AECC/AEC, MEMA, Suburban Propane, ATA, NPGA, NWRA, SWANA, EEI, NEFI,
OOIDA, EMA, FPMA, and the Members of Congress. These commenters noted
that 5 days may not be long enough to deal with certain emergencies,
citing various examples of emergencies from recent years, where
emergency relief efforts extended beyond 5 days. They noted that the
effects of climate change make it likely that storms will become more
frequent and stronger, requiring longer response times. Many added that
a 5-day exemption does not provide enough time for responders to plan
and prepare for a response before they might need to pause to ensure
that the exemption will be extended to cover their entire response
time. Additionally, they argued that this shortened time period will
require responders to focus on requesting an extension at the very time
when they should be focusing on relief efforts. ATA suggested that the
duration for these regional emergency exemptions be revised to 14 days;
NWRA suggested 15 days. They argued that this would still be a shorter
period than is currently in regulation but would be long enough to
ensure that most regional emergencies were covered completely without
the need for an extension.
As FMCSA stated in the NPRM, the Agency believes most direct
assistance to emergencies requiring regulatory relief ends within 5
days. However, FMCSA acknowledges there are circumstances that may
result in the need for more time for responders to complete their
emergency relief efforts. The Agency also acknowledges that in certain
cases, coordination efforts may take longer than a 5-day exemption
period would allow. Therefore, FMCSA is revising the duration of the
automatic regulatory relief that is triggered by a regional declaration
of emergency to 14 days, as suggested by ATA. FMCSA notes that, as is
the case now, these exemptions will expire earlier if the emergency
declaration expires before the end of 14 days. Additionally, while this
limitation also applies to declarations issued by FMCSA, the Agency
retains the ability to issue a modified emergency exemption from day
one of an emergency, with an initial expiration beyond 14 days.
One commenter, AWM Associates, thought FMCSA should go further and
apply this temporal limit even to Presidential declarations of
emergency. FMCSA questions its legal authority to limit Presidential
declarations by rulemaking, and it, therefore, declines to make such a
change. The Agency notes, however, that the emergency exemption will
expire in less than 30 days where the Presidential declaration expires
in less than 30 days.
Limitation of Emergency Exemption to HOS Rules
Four commenters questioned the limitation of the automatic
exemption to just the HOS rules. The State of North Dakota and OOIDA
opposed this change on the basis of a lack of data, a point addressed
previously above. IDOT listed several additional FMCSRs from which CMVs
might need relief, including medical certificate and DOT number
requirements, as well as the CDL requirement waivers that were issued
during the COVID-19 emergency declaration. Oncor, an intrastate
carrier, noted that they rely on the automatic exemption from rules in
parts 391, 392, 393, and 396 when responding to emergencies in other
states, noting its efforts in response to several hurricanes that hit
Florida in recent years.
FMCSA understands that, in certain situations, there may a need to
grant additional regulatory relief to one or more entities in order to
facilitate emergency response. However, the Agency is confident that
such relief can be provided using other existing authorities, as was
the case of the CDL waivers during the COVID-19 emergency declaration.
For this reason, FMCSA is not revising the proposal to include
additional regulatory provisions in the automatic emergency regulatory
relief. In response to the situation presented by Oncor, FMCSA notes
that the regulations covering registration allow for the issuance of
temporary authority in emergency situations (Sec. 365.107T), which
would allow intrastate motor carriers to travel interstate when
responding to an emergency.
Comments on Changes to Definitions
FMCSA received several requests to revise definitions included in
the NPRM. AASHTO and NPGA requested changes to the definition of
emergencies. AASHTO requested the definition of emergencies be
broadened to cover health and cybersecurity emergencies; NPGA requested
clarity on the conditions that would constitute an immediate threat to
human life, which would allow for emergency regulatory relief even
though a declaration is based on economic conditions caused by market
forces (as opposed to a natural disaster).
FMCSA believes that the proposed definition could cover health and
cybersecurity emergencies, as it retains the phrase ``or other
occurrence, natural or man-made'' found in the current definition. As
such, no revision is being made. As for NPGA's request, FMCSA notes
that the term ``immediate threat to human life'' is intended to be read
literally--as was the case during the COVID-19 emergency declaration,
as the related emergency exemptions issued were limited to commodities
that were tied to human health and safety, such as vaccines, food
supplies, public sanitation and hygiene products. They did not cover
all commodities, as not all commodities impact human health and safety.
AASHTO also requested that the definition of direct assistance be
revised to cover shipments of emergency supplies before an event
occurs, and to cover debris removal.
FMCSA notes that in some cases, emergency declarations are issued
in advance of an event that can be reliably predicted, such as a
hurricane, blizzard, or flooding. In those cases, the emergency
regulatory relief would also start prior to the event. However, in
instances where the emergency declaration is not made prior to the
event, FMCSA does not believe it is appropriate for the emergency
regulatory relief exemption to start prior to an emergency declaration.
FMCSA also notes that there is no reason why debris removal couldn't be
included in the term ``essential services,'' which is used in the
definition of emergencies, even if it isn't included in the list of
examples within that definition. So long as the debris in question
immediately threatens human life or public welfare, its removal would
qualify as direct assistance. However, if the debris is not posing such
threat, its removal would not qualify.
EMA requested that the term ``biodiesel blends'' be added to the
definition of residential heating fuels, to ensure that carriers
transporting those fuels are included in the statutory exemption. FMCSA
disagrees with this change as it creates redundancy in the definition.
The term ``heating oil,'' as
[[Page 70902]]
previously discussed in the rule, has already been defined and will
encompass those ``biodiesel blends'' that are used for or in
``residential heating fuel.'' Accordingly, there is no need to
specifically include ``biodiesel blends'' as an example of a ``heating
oil'' that could be used as a residential heating fuel.
Comments on Requests for Exemption Extensions/Modifications
Three commenters questioned the proposed requirement that requests
for extension and modification of an emergency exemption be made using
a specified email address (FMCSADeclarations@dot.gov). EMA requested
that the current procedures, using phone numbers, be retained. EEI had
several questions on how the new procedure would work, including what
would happen if the end of an automatic exemption occurs on a weekend
or holiday, how long FMCSA will need to respond to the request, and
what basis FMCSA will use to make their decision. NPA questioned
whether FMCSA would be able to respond in a timely manner to a ``flood
of email requests.''
FMCSA disagrees with the suggestion that extension and modification
requests be made via telephone calls. The Agency believes it will be
easier for motor carriers and CMV drivers to remember one email address
than it is to know which service center should be called, and to have
access to the correct phone number at that service center, as the
current regulation requires. Additionally, FMCSA will have several
individuals continuously monitor the single email address, ensuring
continuity of coverage through weekends and holidays, and ensuring that
it can respond in a timely manner. FMCSA notes that the extension of
the automatic emergency exemption for regional declarations from 5 days
to 14 days will also mitigate against the need for numerous extension
requests.
In regard to what information needs to be included in a request,
this final rule requires only a ``detailed explanation of the need for
an extension or modification;'' because disasters that spur emergency
declarations are universal only in their uniqueness, FMCSA does not
want to provide a prescriptive list of elements to include in a
request. FMCSA encourages an interested party to include all facts and
rationale as they deem relevant. As noted in this final rule, ``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.''
Comments on the Reporting Requirement and Information Collection
AHAS requested that FMCSA include reporting requirements in future
emergency exemptions and that the Agency commit to sharing data as
quickly as possible. Once this final rule takes effect, FMCSA will
determine on a case-by-case basis whether or not to include a reporting
requirement in any modified and/or extended emergency exemptions. The
Agency will follow all current information sharing requirements in
regard to the reports, and the data included.
AASHTO questioned FMCSA's estimates of the administrative burden
associated with requesting extensions of emergency exemptions and with
the potential reporting requirements on extended/modified emergency
exemptions. They commented that they found FMCSA's estimates to be
``unrealistically low'' but provided no alternate estimates for the
Agency to use. In the absence of an alternative, FMCSA believes that
relying upon the estimates developed by Agency experts, which built
upon estimates developed when reporting requirements were added to the
COVID-19 emergency declaration, is reasonable.
Comments on the Regulatory Evaluation
EEI had several questions on the cost assessment, which are
addressed below in the ``Regulatory Analyses'' section.
Miscellaneous Comments
EEI requested clarification that the changes in this rule would not
impact the HOS exemption for utility service vehicles found in
Sec. Sec. 395.1(n) and 395.2. FMCSA confirms that nothing in today's
rule impacts the utility service vehicle HOS exemptions cited. AECC and
AECI requested a utility specific exemption to allow for prompt
restoration of power. FMCSA notes that the exemptions cited by EEI
already exists and covers both AECC and AECI when responding to
emergencies within their coverage areas. When responding to emergencies
outside of their coverage areas, the automatic exemption in today's
rule should, in most cases, provide adequate time for the restoration
of power. Where additional time is needed, this final rule would allow
for the extension of the exemption.
NPGA requested that FMCSA declare that State waivers in adjoining
States have the same effect as an FMCSA regional waiver. FMCSA notes
that this rule only applies to the automatic emergency regulatory
relief from Federal regulations triggered by emergency declarations.
Should Governors in neighboring States declare emergencies for the same
event (such as a storm), then the automatic emergency relief would be
triggered in both States, allowing for a lifting of the HOS
restrictions on interstate travel providing direct assistance to the
emergency to or from both States.
SWANA requested that solid waste carriers receive a special ``carve
out'' in the same way that home heating does. However, the home heating
``carve out'' was created by Congress, not FMCSA. Therefore the Agency
does not believe it is appropriate to create an additional ``carve
out'' without Congressional action. Additionally, as noted above,
certain solid waste removal would qualify as an essential service under
the definition of emergencies if the solid waste threatens human life
or public welfare, making an additional ``carve out'' unnecessary in
the contexts where the solid waste threatens human life or public
welfare.
One private citizen commented that FMCSA does not declare
emergencies. This is incorrect. While many emergency declarations are
made by Presidential, gubernatorial, or other local decree, FMCSA also
has authority to issue emergency declarations, in accordance with 49
CFR 390.23(a)(1)(i)(B), and has done so on numerous occasions.
VII. Changes From the NPRM
As noted above in the discussion of comments and responses, this
final rule contains changes from the NPRM. In response to the
commenters, FMCSA is extending the length of time of the automatic
regulatory relief from Federal regulations that is triggered by a
regional declaration of emergency by a Governor of a State, their
authorized representative, or FMCSA. The NPRM proposed that this period
be 5 days, but this final rule extends that to 14 days, and this change
can be found in section 390.23(b). FMCSA is also making minor
grammatical changes in the definition of ``emergency'' and in section
390.23.
VIII. Section-by-Section Analysis
This section-by-section analysis describes the changes to the
regulatory text in numerical order.
49 CFR 390.5/49 CFR 390.5T
This final rule changes the definitions found in Sec. Sec. 390.5
and 390.5T. The definition for emergency relief is removed, as this
term no longer appears in Sec. 390.23 or Sec. 390.25. FMCSA adds a
definition for residential heating fuel. The definition previously
appeared in
[[Page 70903]]
Sec. 390.23; it is moved to the definition section to make Sec.
390.23 easier to read, and to ensure all definitions appear in one
section. The definition itself remains substantively unchanged.
The definition for direct assistance is revised to incorporate the
definition of emergency relief, which is deleted. The definition of
emergency is 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 final rule makes several revisions to Sec. 390.23. Paragraph
(a) is limited to addressing Presidential declarations of emergency
issued under 42 U.S.C. 5191(b). These declarations will continue to
trigger automatic regulatory relief from parts 390 through 399 for the
period of assistance, or 30 days from the declaration, whichever is
less.
Paragraph (b) addresses regional declarations of emergencies issued
by a Governor, their authorized representative, or FMCSA, and limits
the automatic regulatory relief to the HOS regulations in Sec. Sec.
395.3 and 395.5 for the period of direct assistance or 14 days from the
declaration, whichever is less. This paragraph includes an exception
for declarations by a Governor of a State when there is an emergency
caused by a shortage of residential heating fuel, as required by
statute. Residential heating fuel declarations trigger automatic
regulatory relief from all regulations in parts 390 through 399, and
the Governor may extend the declaration for up to two additional 30-day
periods. (49 U.S.C. 31136 note).
Paragraph (c) covers 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 continues to
be limited to a period of 5 days or for the period of assistance
(whichever is less), and now provides relief only from the HOS
requirements in Sec. Sec. 395.3 and 395.5 rather than all the FMCSRs.
Paragraph (d) of Sec. 390.23 carries forward the special provision
for tow trucks from previous paragraph (a)(3). The emergency regulatory
relief provided in this paragraph only applies to the HOS regulations
in Sec. 395.3 and lasts for no more than 24 hours. No substantive
changes are made except to narrow the provision to granting relief from
the HOS restrictions in Sec. 395.3 only.
Paragraph (e) carries forward the provisions in previous 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, no matter which entity makes the
declaration of emergency. Changes to this paragraph are intended only
to clarify the rule; no substantive changes are made.
49 CFR 390.25
Paragraph (a) of Sec. 390.25 provides that FMCSA may extend or
modify any of the emergency regulatory relief issued under Sec. 390.23
on its own authority, or upon request by an interested party who
provides a detailed explanation of the need for an extension or
modification through the FMCSA emergency declarations email address
(FMCSAdeclaration@dot.gov). This change affords FMCSA greater
flexibility to consider requests for extensions of emergency regulatory
relief, beyond current language in Sec. 390.25, which is limited to
requests from drivers and motor carriers only. Additionally, FMCSA may
continue to extend or modify emergency relief upon its own volition.
This would include issuing an initial emergency declaration and
regulatory relief from Federal regulations that extends beyond 14 days,
if the Agency determines such additional time will be necessary.
Paragraph (b) carries forward the pre-existing language requiring
any FMCSA official approving an extension to set a new expiration date
for the emergency regulatory relief and allowing the FMCSA official to
include any other restriction deemed necessary. This final rule adds
explicitly that these additional restrictions may include reporting
requirements.
IX. Severability
As noted in the Legal Authority section above, Congress mandated
that FMCSA adopt regulations to ensure that ``commercial motor vehicles
are maintained, equipped, loaded, and operated safely,'' but that it
may also ``grant . . . waivers and exemptions from, or conduct pilot
programs with respect to, any regulations prescribed under this
section.'' Consistent with that authority, FMCSA is revising its
regulations covering automatic, emergency relief from Federal
regulations that is triggered by an emergency declaration. The purpose
of this rule is to ensure that the automatic regulatory relief is
limited in scope to providing relief from only those regulations most
likely to inhibit emergency relief operations during an emergency
declaration, and that the automatic relief lasts only as long as is
necessary for those providing direct assistance during an emergency
declaration. However, FMCSA recognizes that certain provisions focus on
unique scenarios. Therefore, FMCSA finds that the various provisions of
this final rule are severable and able to operate functionally if
severed from each other. In the event a court were to invalidate one or
more of this final rule's unique provisions, FMCSA intends that the
remaining provisions would stand, thus allowing FMCSA to continue to
fulfill its Congressionally authorized role of promoting safe operation
of CMVs.
X. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), E.O. 14094
(Modernizing Regulatory Review), and DOT Regulatory Policies and
Procedures
FMCSA has considered the impact of this final rule 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, E.O. 14094 (88 FR 21879, Apr. 11, 2023), Modernizing Regulatory
Review, and DOT's regulatory policies and procedures. OIRA at OMB
determined that this final rulemaking is not a significant regulatory
action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563
and E.O. 14094, 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 E.O.
Baseline for This Analysis
The Agency does not expect this final rule to result in substantive
incremental impacts relative to the baseline established in the FMCSRs.
Most of the changes 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 a mechanism 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 was 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
[[Page 70904]]
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, and input from
industry stakeholders, 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 operating under the
COVID-19 exemption from September 2021 until its expiration in October
2022 was already afforded only HOS-related exemptions and not a broad
exemption from all requirements of parts 390 through 399.
Need for This Final Rule
The COVID-19 pandemic highlighted the value of effective exemptions
from the HOS rules. This rule emphasizes the need for ensuring that
relief granted by emergency declarations is appropriate and tailored to
the specific 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 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 quantitatively 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. The data 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 not currently available to the Agency.
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 rule
will 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, this change will 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 as proposed in the NPRM and included in this final rule.
This estimate is based on the average number of responses the Agency
received from the COVID-19 emergency exemption data collection. This
figure represents an upper-bound estimate for the number of motor
carriers the Agency expects will be required to report their use of an
HOS exemption extension and thus be subject to an information
collection. This figure cannot be used to estimate the total number of
affected entities, however, because FMCSA does not have information on
whether any of the individuals who reported their use of the COVID-19
emergency exemption from the HOS limits would also have relied upon
exemptions from other portions of the FMCSRs if a broader exemption had
remained in place. Based on comments received on the NPRM, which
generally supported limiting emergency relief to the HOS limits, FMCSA
does not believe that all 477 respondents would have relied upon relief
from requirements beyond the HOS limits. The Agency does not have a
means of inferring how many individuals will 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 final rule will result in an increase in the number of
extension requests from motor carriers and drivers, as the automatic
exemption period resulting from a regional declaration of emergency by
a Governor will be reduced from 30 to 14 days. This rule will 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 will 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\ will submit requests for
extensions per year. These extension requests will take 15 minutes to
complete and total to 12.5 hours of labor (50 respondents x 15
minutes). A motor carrier employee equivalent to General and Operations
Managers with a loaded hourly wage of $80.88 will submit the extension
request.\6\ As such, there will be a total annual cost of $1,011
($80.88 x 12.5 hours) to submit extension requests. Requests for
extensions will take 15 minutes each to review. The requests will be
reviewed by a GS-13, step 5 in the Washington, DC area with a loaded
hourly wage of $127.13. The total annual cost to review these extension
requests is $1,589 ($127.13 x 12.5 hours).\7\
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\5\ FMCSA consulted with its Crisis Management Center, which is
responsible for monitoring emergency declarations. Based on that
expertise, the Agency is estimating 50 requests per year.
\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 50.5 percent and overhead costs of 21 percent. The median
hourly wage of a General and Operations Manager is $47.16. A General
Operations Manager falls under the Bureau of Labor Statistics
Occupation Code 11-1021.
\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-13 step 5 is $60.83. Located at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB_h.pdf (accessed May 16, 2023).
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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, but likewise it has no information
suggesting that exemptions from all safety regulations are necessary to
provide emergency relief. This rule provides clarity on which
exemptions are necessary during an emergency and
[[Page 70905]]
ensures 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 will be able to more efficiently track exemption
requests.
Comments on the Regulatory Evaluation
EEI disagreed with FMCSA's estimate that 50 individuals would
submit requests for extensions annually at an estimated cost of $1,047
\8\ but provided no alternate estimates for the Agency to use. In the
absence of an alternative, FMCSA believes that relying upon the
estimates developed by Agency experts, which built upon estimates
developed when reporting requirements were added to the COVID-19
emergency declaration, is reasonable. EEI asserted that this estimate
is ``based on current regulations, with no projections based on the
impact of the proposed rule.'' FMCSA disagrees with this assertion
based on observations during the COVID-19 exemption. FMCSA's crisis
management center predicts, based on past experience, that owners/
operators will utilize the exemptions, if available, but would seldom
request an extension. It has also been observed that direct assistance
to most emergencies is often concluded within 5 days. However, based on
the suggestion of commentors, FMCSA has opted to revise the automatic
regulatory relief as proposed in the NPRM from 5 to 14 days for
regional declaration of emergencies. Providing for 14 days of automatic
relief for regional emergencies should serve to abate fears of a lapse
between the automatic regulatory relief and any FMCSA action to extend
or reinstate the regulatory relief due to federal holidays, weekends,
or other circumstances. The regulatory relief for local emergencies is
already limited to 5 days, thus no change to the length of the
automatic relief is needed, as this period has been observed to be
appropriate.
---------------------------------------------------------------------------
\8\ As described in the cost section, the estimated annual cost
for these extensions has been updated to $1,011 for this final
rulemaking.
---------------------------------------------------------------------------
EEI also objected that the regulatory evaluation does not account
for possible delays of restoration. This argument erroneously assumes
that extensions or modifications will not be made during the automatic
relief period and that FMCSA will take no action to extend or reinstate
regulatory relief if needed. FMCSA disagrees with this assertion but
considered it in revising the automatic regulatory relief for regional
emergencies. FMCSA cannot account for costs in delayed restoration due
to lack of available data supporting this claim and the dynamic nature
of each emergency.
B. Congressional Review Act
This rule is not a major rule as defined under the Congressional
Review Act (5 U.S.C. 801-808).'' \9\
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\9\ A major rule means any rule that 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 (5 U.S.C. 802(4)).
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C. Regulatory Flexibility Act (Small Entities)
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996 \10\
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.
---------------------------------------------------------------------------
\10\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
---------------------------------------------------------------------------
This rule applies to motor carriers and drivers subject to the
FMCSRs. 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 impacts a
significant number of small entities, FMCSA examined the 2012 and 2017
Economic Census data for two different North American Industry
Classification System (NAICS) subsectors: Truck Transportation
(subsector 484) and Transit and Ground Transportation (subsector 485).
As shown in the table below, the SBA size standards for the
national industries under the Truck Transportation and Transit and
Ground Transportation subsectors range from $19.0 million to $43.0
million in revenue per year.
To determine the percentage of firms that have revenue at or below
SBA's thresholds within each of the NAICS national industries, FMCSA
examined data from the 2017 Economic Census.\11\ In instances where
2017 data were suppressed, the Agency imputed 2017 levels using data
from the 2012 Economic Census.\12\ Boundaries for the revenue
categories used in the Economic Census do not exactly coincide with the
SBA thresholds. Instead, the SBA threshold generally falls between two
different revenue categories. However, FMCSA was able to make
reasonable estimates as to the percentage of small entities within each
NAICS code.
---------------------------------------------------------------------------
\11\ U.S. Census Bureau. 2017 Economic Census. Table
EC1700SIZEEMPFIRM--Selected Sectors: Employment Size of Firms for
the U.S.: 2017. Available at https://www.census.gov/data/tables/2017/econ/economic-census/naics-sector-48-49.html (accessed Apr. 25,
2023).
\12\ U.S. Census Bureau. 2012 Economic Census. Table
EC1248SSSZ4--Transportation and Warehousing: Subject Series--Estab &
Firm Size: Summary Statistics by Revenue Size of Firms for the U.S.:
2012. Available at https://www.census.gov/data/tables/2012/econ/census/transportation-warehousing.html (accessed Apr. 25, 2023).
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The percentages of small entities with annual revenue less than the
SBA's threshold ranged from 96.3 percent to 100 percent. Specifically,
approximately 96.3 percent of Specialized Freight (except Used Goods)
Trucking, Long Distance (484230) firms had annual revenue less than the
SBA's revenue threshold of $34 million and would be considered small
entities. FMCSA estimates 100 percent of firms in the Mixed Mode
Transit Systems (485111) national industry had annual revenue less than
$29 million and would be considered small entities. The table below
shows the complete estimates of the number of small entities within the
national industries that may be affected by this rule.
[[Page 70906]]
Estimates of Number of Small Entities
----------------------------------------------------------------------------------------------------------------
SBA size
NAICS code Description standard in Total number Number of Percent of all
millions of firms small entities firms
----------------------------------------------------------------------------------------------------------------
484110............... General Freight Trucking, $34.0 22,066 21,950 99.5
Local.
484121............... General Freight Trucking, 34.0 23,557 23,045 97.8
Long Distance, Truckload.
484122............... General Freight Trucking, 43.0 3,138 3,050 97.2
Long Distance, Less Than
Truckload.
484210............... Used Household and Office 34.0 6,097 6,041 99.1
Goods Moving.
484220............... Specialized Freight 34.0 22,797 22,631 99.3
(except Used Goods)
Trucking, Local.
484230............... Specialized Freight 34.0 7,310 7,042 96.3
(except Used Goods)
Trucking, Long Distance.
485111............... Mixed Mode Transit 29.0 25 25 100.0
Systems.
485113............... Bus and Other Motor 32.5 318 308 96.9
Vehicle Transit Systems.
485210............... Interurban and Rural Bus 32.0 309 302 97.7
Transportation.
485320............... Limousine Service........ 19.0 3,706 3,694 99.7
485410............... School and Employee Bus 30.0 2,279 2,226 97.7
Transportation.
485510............... Charter Bus Industry..... 19.0 1,031 1,013 98.3
485991............... Special Needs 19.0 2,592 2,567 99.1
Transportation.
485999............... All Other Transit and 19.0 1,071 1,059 98.9
Ground Passenger
Transportation.
----------------------------------------------------------------------------------------------------------------
Therefore, FMCSA has determined that this rule would apply to 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 regulatory relief that
applies 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 this action will not have a
significant economic impact on a substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857),
FMCSA wants to assist small entities in understanding this final rule
so they can better evaluate its effects on themselves and participate
in the rulemaking initiative. If the final rule will 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.
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.
E. 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 $192 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2022 levels) or more in any 1 year. Though this final rule 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.
F. Paperwork Reduction Act
This final rule 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.
FMCSA received two comments on the proposed information collection
requirements, which are discussed previously. The Agency makes no
changes to the proposed requirements as a result of those comments.
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: 2126-0077.
Summary of the Information Collection: Section 390.25 of 49 CFR, as
revised, allows FMCSA to add a reporting requirement to an extension of
an emergency exemption, requiring motor carriers operating under the
extensions terms to report their continued use of and reliance on the
exemption. It also requires 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 datapoint to help determine whether to extend 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.
Frequency of Response: Monthly.
Burden of Response: 15 minutes per response.
[[Page 70907]]
Estimate of Total Annual Burden: The public burden for this
information collection is estimated to average 1,431 hours per year.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), FMCSA will submit a copy of this final rule to OMB for
review. OMB has not yet completed its review of this collection. If OMB
does not complete its review prior to the effective date set for this
final rule, FMCSA will publish a final rule delaying the effective date
for Sec. 390.25.
G. 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 will 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.
H. Privacy
The Consolidated Appropriations Act, 2005,\13\ requires the Agency
to assess the privacy impact of a regulation that will affect the
privacy of individuals. This rule would not require the collection of
personally identifiable information.
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\13\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
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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,\14\ requires Federal agencies to
conduct a PIA for new or substantially changed technology that
collects, maintains, or disseminates information in an identifiable
form. No new or substantially changed technology will collect,
maintain, or disseminate information as a result of this rule.
Accordingly, FMCSA has not conducted a PIA.
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\14\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec.
17, 2002).
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In addition, the Agency submitted a Privacy Threshold Assessment
(PTA) to evaluate the risks and effects the rulemaking might have on
collecting, storing, and sharing personally identifiable information.
The DOT Privacy Office has determined that this rulemaking does not
create privacy risk.
I. 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 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.
J. National Environmental Policy Act of 1969
FMCSA analyzed this rule pursuant to the National Environmental
Policy Act of 1969 (NEPA) (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. This rule is 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 amends 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 for ``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 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 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 arising from economic conditions that are caused by market
forces, including shortage of raw materials (e.g., driver shortages,
computer chip shortages, other supply chain issues) or labor strikes,
unless such event causes an immediate threat to human life and results
in a declaration of an emergency
[[Page 70908]]
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
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 for ``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 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 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 arising from economic conditions that are caused by market
forces, including shortage of raw materials (e.g., driver shortages,
computer chip shortages, other supply chain issues) or labor strikes,
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.
(a) Presidential declaration of emergency. Parts 390 through 399 of
this chapter, or any section thereof, 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 during an
emergency declared by the President of the United States pursuant to 42
U.S.C. 5191(b) during the emergency period or 30 days from the date of
the initial declaration of the emergency, whichever is less.
(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 14 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, or any section thereof, 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.
[[Page 70909]]
(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--
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, FMCSAdeclaration@dot.gov, 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.
Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-22538 Filed 10-12-23; 8:45 am]
BILLING CODE 4910-EX-P