According to a notice scheduled to be published in the Federal Register soon, the Federal Motor Carrier Safety Administration (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.”
For decades, the agency’s regulations have granted fairly broad regulatory relief to those providing direct assistance to “emergency relief efforts” following emergency declarations issued by the President of the U.S., a governor, or the agency itself. The most recent examples include the national Covid-19 declaration and the regional declaration pertaining to Hurricane Ian.
In these circumstances, Section 390.23 of the federal safety regulations have historically afforded an automatic 30-day exemption from Parts 390 through 399 of those regulations to anyone providing direct assistance to the emergency relief efforts. These regulatory parts encompass the majority of the safety regulations, including driver qualification, hours-of-service, and vehicle maintenance. Thus, carriers and drivers directly assisting relief efforts following a declared emergency have been exempt from large swaths of the regulations.
This type of regulatory relief was stretched to its limit during the unprecedented Covid-19 emergency. In response to the President’s declared emergency in early 2020, the FMCSA issued and renewed for over two years broad exemptions for carriers and drivers directly assisting relief efforts. In the latter stages of that emergency declaration, the FMCSA narrowed the scope of the corresponding exemption to encompass primarily hours-of-service rules, before ultimately letting the declaration lapse altogether earlier this year.
Presumably as a result of lessons learned from that experience, the FMCSA is now proposing to narrow the scope of virtually all such exemptions that will be issued in the future.
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.
According to the agency, “waiving every regulation in parts 390-399 could negatively impact the safety of commercial motor vehicles (CMVs) operating on the Roadways.” However, by its own admission, the agency has no “information that suggests that past or existing emergency declarations have in fact negatively impacted road safety.”
Regardless, the agency is proposing to narrow the automatic applicability of Section 390.23 to encompass only hours-of-service limits in Sections 395.3 and 395.5. Carriers and drivers providing direct assistance to emergency relief efforts would no longer, under this proposal, be exempt from other provisions of the safety regulations like driver qualification and vehicle maintenance.
To accomplish this, the FMCSA is proposing to revise Section 390.23 in a few key ways:
Allowing only Presidential declarations to trigger a 30-day exemption from parts 390-399 of the federal safety regulations. All other declarations (regional, state, local) would trigger only a 5-day exemption from only the hours-of-service rules.
Continuing to allow a 30-day exemption in situations where a governor declares a state of emergency due to a shortage of residential heating fuel, per the Reliable Home Heating Act.
Simplifying language allowing FMCSA to extend and modify regulatory relief when necessary and requiring requests for extension or modification to be made via email.
FMCSA will be accepting comments on this proposal for 60 days from its publication date (likely through mid-February) in docket number FMCSA-2022-0028. If you have questions about this rulemaking or how it may impact your business, feel free to contact us.
