FMCSA Proposes Narrowing Automatic Emergency Exemptions

In December 2022, the Federal Motor Carrier Safety Administration (FMCSA) proposed limiting the automatic regulatory relief that took effect when an emergency was declared. Under a notice of proposed rulemaking published on December 8, 2022, under docket FMCSA-2022-0028, most emergency declarations would have relieved carriers and drivers only from the hours-of-service (HOS) limits, and for a shorter period. Comments were due February 6, 2023.

The rule FMCSA wanted to change

Under 49 CFR 390.23, when the President, a governor or FMCSA declared an emergency, carriers and drivers giving direct assistance to relief efforts automatically received a 30-day exemption from all of the Federal Motor Carrier Safety Regulations in parts 390 through 399. Local emergencies already carried shorter, 5-day relief.

FMCSA said that most emergencies justified relief from the normal HOS limits so that critical supplies and services could reach communities in need. But other rules, such as driver qualification requirements, prohibitions on driving while ill or fatigued, and parts and accessories requirements, often had no direct bearing on a carrier's ability to help. Waiving every rule in parts 390 through 399 could hurt safety, the agency said, although it added that it had no information suggesting past or existing emergency exemptions had in fact harmed road safety.

The agency said the repeated extensions of the COVID-19 emergency exemption since 2020 had prompted it to re-evaluate the rule. FMCSA had already narrowed that exemption to the HOS requirements in September 2021, and said most of the proposed changes had already been put into practice through modifications to existing exemptions.

What the proposal would do

• Regional declarations by a governor, a governor's authorized representative or FMCSA: automatic relief would last 5 days instead of 30 and would cover only the HOS rules in §§ 395.3 and 395.5. FMCSA said its experience showed that in most cases the actual emergency, such as a weather event or highway accident, was over within five days, and that later work was typically about rebuilding.
• Presidential declarations under 42 U.S.C. 5191(b): unchanged, with a 30-day exemption from all of parts 390 through 399.
• Residential heating fuel shortages declared by a governor: unchanged, as required by the Reliable Home Heating Act. Relief would last 30 days and could be extended twice by the governor, for a total of 90 days.
• Local emergencies: relief would be limited to the same HOS rules, with the 5-day period unchanged.

Anyone who believed longer HOS relief or broader relief was needed, including state or local officials, would have to ask FMCSA for it. Requests for extensions or modifications would have to be made by email, and FMCSA proposed naming reporting requirements specifically as one of the conditions it could attach.

A narrower definition of "emergency"

FMCSA also proposed revising the definition of "emergency" to make clear that relief generally would not apply to economic conditions caused by market forces. It listed shortages of raw materials or supplies, labor strikes, driver shortages, inflation and swings in freight or brokerage rates, unless such conditions caused an immediate threat to human life and led to an emergency declaration.

Other changes were organizational, including folding the definition of "emergency relief" into the definition of "direct assistance" and moving the definition of residential heating fuel into the definitions sections.

Archive: this article describes rules and events as of December 2022. Regulations may have changed since, so check the current rule before relying on it.