After nearly 3 years of COVID pandemic hours-of-service waivers, FMCSA is planning to place limits on the amount of regulatory relief that is granted when an emergency declaration is declared, according to their notice of proposed rulemaking.
While they acknowledge that the use of emergency declarations has not yielded negative safety results, the goal would be to ensure that the relief granted “is appropriate and tailored” to the specifics of the circumstances and the emergency being addressed.
Specifically, FMCSA proposes to:
- Narrow the automatic applicability of an emergency declaration to the hours-of-service limits
- Clarify that emergency regulatory relief generally does not apply to economic conditions that are caused by market forces
- Remove definition of emergency relief and amend definition of direct assistance to incorporate essential components of former emergency relief definition
- Limit duration and scope of existing automatic relief when issued by a governor or representative for the FMCSA, and
- Simplify language allowing FMCSA to extend and modify the regulatory relief outlined in 390.23
Let us look at what these changes are in more detail.
Narrow the automatic applicability of § 390.23 to the HOS limits in § 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.
Changes to the definitions in § 390.5 and 390.5T
It would modify the definition of an emergency to clarify that emergency regulatory relief under § 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
This is true unless such conditions or events cause an immediate threat to human life and result in a declaration of an emergency
Remove definition for emergency relief as that term would no longer be used in § 390.23
It 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 § 390.23 and place it in the definition sections, §§ 390.5T and 390.5.
These reorganizational changes would simplify the regulatory text in § 390.23, without changing the regulation’s meaning.
Limit duration and scope of existing automatic relief when issued by a governor or a governor’s representative for the FMCSA
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 §§ 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 5days.
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.
According to John Irwin, CEO of CNS Companies, “Although there has been no information that suggest the past or existing emergency exemptions have negatively impacted road safety the FMCSA needed to take a hard look at this process as the COVID-19 HOS waiver was extended way past the actual need. I believe the scope of the waivers make sense. I also don’t anticipate many issues with drivers operating in emergency areas under the proposed changes. I would hope that the FMCSA would work with states to extend the waivers if the need would arise.”
Revise § 390.25 to simplify the language allowing FMCSA to extend and modify the regulatory relief outlined in § 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.
How to comment
To quantify the impacts of these changes, 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 §§ 395.3 and 395.5, as well as data on how many trips drivers make during those periods.
Once the notice is published in the Federal Register, the public will have 60 days to comment on the proposal.
To submit your comment online, go to https://www.federalregister.gov/documents/2022/12/08/2022-26506/clarification-to-the-applicability-of-emergency-exemptions, click on this NPRM, click “Comment,” and type your comment into the text box on the following screen.
If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult: 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.