FMCSA Proposes More Narrow Scope for Emergency Waivers

The Federal Motor Carrier Safety Administration wants to limit the trucking regulations that are suspended for motor carriers and drivers providing direct relief in emergency situations. The proposal is a result of concerns raised about the broad, extended, nationwide emergency exemptions for the COVID-19 pandemic, which the agency allowed to expire in late October.

Currently, section 390.23 of title 49, Code of Federal Regulations, 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 and a motor carrier or driver provides direct assistance to supplement emergency relief efforts.

In a notice of proposed rulemaking published in the Federal Register on Dec. 8, the agency explained that it believes that most emergencies justify relief from the normal hours of service limits in order to deliver critical supplies and services.

However, it said, other safety regulations often have no direct bearing on the ability to provide emergency assistance. Examples include:

• Driver qualification requirements.
• Drug and alcohol requirements.
• Vehicle inspection requirements.
• Prohibitions on operating while ill or fatigued.

The agency proposes to narrow the automatic applicability of 390.23 to exemptions of only the hours-of-service limits. It also proposes to cut down the time period of the waiver for regional emergencies.

“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,” FMCSA says in its executive summary. “By limiting the scope of the current rule on emergency regulatory relief, the NPRM would clarify that the Federal Motor Carrier Safety Regulations 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.”

The COVID-19 Exemptions

When the emergency exemptions rule was created in 1992, the agency said, it was designed to deal with regional emergencies. But on March 13, 2020, the president issued an emergency declaration in light of the COVID-19 pandemic, and the FMCSA issued its first national emergency declaration.

Both declarations automatically triggered relief from all regulations in 49 CFR parts 390 through 399 for 30 days. FMCSA kept extending the emergency declaration, changing the commodities that qualified as emergency relief based on conditions, and finally allowed it to expire in October of this year.

“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,” the agency explains in its proposal.

By the fall of 2020, the Commercial Vehicle Safety Alliance was expressing concerns about the blanket waivers and filed a petition asking FMCSA to revise sections 390.23 and 390.25.

In this rulemaking proposal, however, the agency admits that it has no information that suggests that past or existing emergency exemptions have negatively impacted road safety. It did point out that before it allowed the COVID-19 exemptions to expire, FMCSA requested comment on how much motor carriers were continuing to rely on the COVID-19 emergency declaration and whether there has been any impact on safety (87 FR 54630). (See more below.)

Proposed Changes to Emergency Regulatory Exemptions

Under the proposed changes, FMCSA would make some changes to 390.5 that it says would clarify and simplify the language without changing the regulation's meaning.

More significant are proposed revisions to section 390.23.

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 of the automatic regulatory relief for regional emergencies. It would apply for only five days, rather than the current 30 days. In addition, it would exempt commercial drivers only from the hours of service regulations.

FMCSA explained that in its experience in monitoring emergency declarations, in most cases, the actual emergency, such as the specific weather event, is over within five days. Any emergency relief efforts extending beyond that time are typically geared to rebuilding and not to the time-critical emergency response scenarios the rule was originally meant to address.

For local emergencies, the automatic regulatory relief would be limited to the hours-of-service regulations. This regulatory relief was already limited to five days, so no changes there.

Exemptions for home heating oil, however, would not change. Section 390.23 would keep the 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 those carriers from all regulations in parts 390 through 399. And it will keep the provision that the initial automatic exemption may be extended two times by the governor, for a total of 90 days.

The comment period for the Notice of Proposed Rulemaking ends on Feb. 6, 2023.