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Proposed Rule2022-26506

Clarification to the Applicability of Emergency Exemptions

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Published

December 8, 2022

Issuing agencies

Transportation DepartmentFederal Motor Carrier Safety Administration

Abstract

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

Full Text

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<title>Federal Register, Volume 87 Issue 235 (Thursday, December 8, 2022)</title>
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[Federal Register Volume 87, Number 235 (Thursday, December 8, 2022)]
[Proposed Rules]
[Pages 75206-75215]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26506]

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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: Notice of proposed rulemaking (NPRM).

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

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

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

FOR FURTHER INFORMATION CONTACT: Ms. Kathryn Sinniger, Regulatory Law
Division, Office of the Chief Counsel, FMCSA, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001, (202) 570-8062,
<a href="/cdn-cgi/l/email-protection#9ed5ffeaf6ece7f0b0cdf7f0f0f7f9fbecdefaf1eab0f9f1e8"><span class="__cf_email__" data-cfemail="7a311b0e120803145429131414131d1f083a1e150e541d150c">[email&#160;protected]</span></a>. If you have questions on viewing or
submitting material to the docket, call Dockets Operations at (202)
366-9826.

SUPPLEMENTARY INFORMATION: FMCSA organizes this NPRM as follows:

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

I. Public Participation and Request for Comments

A. Submitting Comments

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

[[Page 75207]]

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

B. Viewing Comments and Documents

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

C. Privacy

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

D. Comments on the Information Collection

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

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

Section 390.23 of title 49, Code of Federal Regulations (CFR),
automatically creates a 30-day exemption from 49 CFR parts 390 through
399 when the President, a Governor, or FMCSA issues a declaration of an
emergency, as defined in Sec. Sec. 390.5 and 390.5T, and a motor
carrier or driver provides direct assistance to supplement State and
local emergency relief efforts in response to that emergency, as those
terms are defined in Sec. Sec. 390.5 and 390.5T.\1\
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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 that
most emergencies justify allowing carriers and drivers providing direct
assistance in responding to the emergency relief from the normal hours
of service (HOS) limits to deliver critical supplies and services to
the communities in need. However, other safety regulations, including
the driver qualification requirements of part 391, the vehicle
inspection and other operating requirements such as prohibitions on
operating while ill or fatigued in part 392, or the parts and
accessories required by part 393 often have no direct bearing on the
motor carrier's ability to provide assistance to the emergency relief
efforts.
Safety regulations ensure that companies, vehicles, and drivers
meet the minimum requirements to operate safely. While the temporary
relief from some regulations may be necessary during an emergency,
waiving every regulation in parts 390-399 could negatively impact the
safety of commercial motor vehicles (CMVs) operating on the roadways.
However, the Agency has no information that suggests that past or
existing emergency exemptions have in fact negatively impacted road
safety.\2\
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\2\ The Agency recently requested comment on the extent to which
motor carriers are continuing to rely on the COVID-19 emergency
declaration to deliver certain commodities and whether there has
been any impact on safety. (Sept. 7, 2022, 87 FR 54630) While some
commenters noted an overall increase in truck crash fatalities,
there were no comments linking those fatalities to the emergency
exemption.
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In order to provide clarity on which emergency exemptions are
necessary during an emergency, FMCSA proposes to narrow the automatic
applicability of Sec. 390.23 to the HOS limits in Sec. Sec. 395.3 and
395.5. This change would clarify that carriers and drivers are not
authorized to overlook other important safety requirements while
performing direct assistance to emergency relief efforts. By limiting
the scope of the current rule on emergency regulatory relief, the NPRM
would clarify that the Federal Motor Carrier Safety Regulations
(FMCSRs) not relevant to most emergency situations remain in effect
while retaining the Agency's flexibility to tailor emergency regulatory
relief to the specific circumstances of an emergency.

B. Summary of Major Provisions

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

[[Page 75208]]

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

C. Costs and Benefits

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

III. Abbreviations

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

IV. Legal Basis for the Rulemaking

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

V. Background

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

[[Page 75209]]

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

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

Letter dated October 7, 2020, from Collin Mooney, Executive
Director, CVSA, to Wiley Deck, then FMCSA Deputy Administrator. (A copy
of the CVSA letter has been added to the docket (FMCSA-2022-0028).) The
Agency has met with other groups in the past 18 months that have
expressed similar concerns. Additionally, the Agency recently requested
comment on the extent to which motor carriers are continuing to rely on
the COVID-19 emergency declaration to deliver certain commodities and
whether there has been any impact on safety (Sept. 7, 2022, 87 FR
54630), and received over three hundred comments.\4\
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\4\ The Agency is currently reviewing those comments and
determining its next steps with regard to the COVID-19 emergency
declaration.
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FMCSA agrees that blanket relief from all the FMCSRs in all
emergencies is not appropriate and that motor carriers and drivers of
CMVs generally need relief only from the HOS regulations found in
Sec. Sec. 395.3 and 395.5 in order to provide direct assistance to
emergency relief efforts. FMCSA initiated this rulemaking to ensure
that any impact on safety would continue to be minimized

[[Page 75210]]

during the period of the automatic regulatory relief.

VI. Discussion of Proposed Rulemaking

As noted above, FMCSA believes that the automatic emergency
regulatory relief authorized by Sec. 390.23 is unnecessarily broad for
the intended purpose, as the primary, immediate constraint that drivers
and carriers face when providing direct assistance during an emergency
is the HOS limits.
FMCSA proposes to revise, remove, and add definitions to reflect
changes made to the emergency exemption rules. These changes include
removing an obsolete term, moving the definition of one term to the
definition section, and revising two definitions (as discussed below in
the ``section-by-section'' portion of this NPRM).
FMCSA also proposes to shorten the duration and limit the scope of
the initial, automatic regulatory relief triggered by an emergency
declaration in certain situations. The scope of relief would be limited
to specific provisions of the HOS regulations unless the emergency
declaration is made by the President under the authority of 42 U.S.C.
5191(b). The relief would also be limited to a period of 5 days unless
the emergency declaration is made by the President under the authority
of 42 U.S.C. 5191(b). Presidential declarations will continue to
trigger a 30-day exemption from all FMCSRs in parts 390 through 399.
Any party, including a State or local official, who believes an
extension of the HOS relief or broader regulatory relief is necessary,
would be required to request relief and/or an extension from FMCSA. The
Agency would evaluate any such request and could approve, modify, or
deny the request, as appropriate. FMCSA would also have independent
authority to extend or modify the emergency relief. No formal request
or form would be required to request relief. Requests would be
submitted to FMCSA's emergency declaration email inbox
(<a href="/cdn-cgi/l/email-protection#9ed8d3ddcddffafbfdf2ffecffeaf7f1f0defaf1eab0f9f1e8"><span class="__cf_email__" data-cfemail="6b2d2628382a0f0e08070a190a1f0204052b0f041f450c041d">[email&#160;protected]</span></a>).
More sharply focused regulatory relief will continue to authorize
emergency transportation in the public interest while allowing the
Agency to better tailor regulatory relief to specific needs in
emergencies. It will also avoid automatic suspension of the rest of the
FMCSRs in 49 CFR parts 390 through 399, which pose no serious obstacles
to drivers and carriers providing direct assistance to emergency relief
efforts but could encourage an unwelcome indifference to compliance
with safety regulations.
Beginning with the extension effective in September 2021, FMCSA
included a reporting requirement as part of the COVID-19 emergency
exemption, requiring motor carriers or drivers to inform FMCSA on how
often they relied upon the emergency relief from the HOS regulations in
the previous month. This data is used to determine whether the
emergency regulatory relief should continue to be extended.
The usefulness of this data prompted FMCSA to propose adding
language to Sec. 390.25 to expressly note that one of the conditions
FMCSA may include when extending an emergency exemption is to collect
information from those carriers and drivers relying upon the regulatory
relief. Information on the burden of such a collection of information
may be found later in this NPRM.

VIII. Section-by-Section Analysis

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

49 CFR 390.5/49 CFR 390.5T

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

49 CFR 390.23

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

49 CFR 390.25

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

[[Page 75211]]

need for an extension through the FMCSA emergency declarations email
address (<a href="/cdn-cgi/l/email-protection#5c1a111f0f1d38393f303d2e3d283533321c383328723b332a"><span class="__cf_email__" data-cfemail="94d2d9d7c7d5f0f1f7f8f5e6f5e0fdfbfad4f0fbe0baf3fbe2">[email&#160;protected]</span></a>). This would not be a change to the
current regulation. Proposed paragraph (b) would carry forward the
existing language requiring that the FMCSA official issuing or
approving an extension or modification must set a new expiration date
for the emergency regulatory relief. It would also continue to allow
the FMCSA official to include any other restriction deemed necessary
but would be revised to allow FMCSA to include reporting requirements
as a restriction.

IX. Regulatory Analyses

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

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

[[Page 75212]]

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

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

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

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

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

B. Congressional Review Act

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

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

C. Advance Notice of Proposed Rulemaking

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

D. Regulatory Flexibility Act

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

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

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

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

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

E. Assistance for Small Entities

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

[[Page 75213]]

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

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

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

F. Unfunded Mandates Reform Act of 1995

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

G. Paperwork Reduction Act

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

H. E.O. 13132 (Federalism)

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

I. Privacy

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

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

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

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

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

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

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

[[Page 75214]]

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

K. National Environmental Policy Act of 1969

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

List of Subjects in 49 CFR Part 390

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

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

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

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

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

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

Sec. 390.5 Definitions.

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

Sec. 390.5T Definitions.

[[Page 75215]]

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

Sec. 390.23 Automatic relief from regulations in this chapter.

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

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

(a) FMCSA may extend the period of the regulatory relief or modify
the scope of emergency relief contained in Sec. 390.23. Interested
parties may also request an extension or modification by providing a
detailed explanation of the need for an extension or modification of
the relief. Any interested party seeking to extend the period of
regulatory relief shall send its request to the FMCSA emergency
declarations mailbox, <a href="/cdn-cgi/l/email-protection#04424947574560616768657665706d6b6a44606b702a636b72"><span class="__cf_email__" data-cfemail="094f444a5a486d6c6a65687b687d606667496d667d276e667f">[email&#160;protected]</span></a>, before the expiration
of the period of relief. FMCSA will determine if such relief is
necessary by evaluating the circumstances of the ongoing emergency, the
need for relief, and the nature of the relief to be provided.
(b) If FMCSA initiates or approves an extension of the regulatory
relief, it shall establish a new time limit and may place terms and
conditions on motor carriers or drivers relying upon the continued or
modified relief. These terms and conditions may include reporting
requirements concerning operations under the exemption.

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

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