Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 70897 

or modified information collection 

burden for small business concerns with 

fewer than 25 employees, pursuant to 

the Small Business Paperwork Relief 

Act of 2002, Public Law 107–198, see 44 

U.S.C. 3506(c)(4). 

III. Ordering Clause 

41. Accordingly, it is ordered, 

pursuant to sections 4(i), 303(r), and 610 

of the Communications Act of 1934, as 

amended, 47 U.S.C. 154(i), 303(r), 710, 

and §§ 0.331 and 1.3 of the 

Commission’s rules, 47 CFR 0.331 and 

1.3, that ATIS’s request for a partial 

waiver of § 20.19(b)(1) and (b)(3) is 

granted to the extent indicated herein. 

42. It is further ordered that this Order 

is effective upon release and will remain 

effective for 24 months from the release 

date of this Order. 

43. It is further ordered that the Office 

of the Managing Director, Performance 

Evaluation and Records Management, 

shall send a copy of this Order in a 

report to be sent to Congress and the 

Government Accountability Office 

pursuant to the Congressional Review 

Act, 5 U.S.C. 801(a)(1)(A). 

Federal Communications Commission. 

Amy Brett, 

Chief of Staff, Wireless Telecommunications 

Bureau. 

[FR Doc. 2023–22561 Filed 10–12–23; 8:45 am] 

BILLING CODE 6712–01–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1812, 1813, 1816, 1819, 

1823, 1832, and 1852 

[Notice: (23–089)] 

RIN 2700–AE71 

Federal Acquisition Regulation 

Supplement: Revision of the Definition 

of ‘‘Commercial Item’’ (NFS Case 2022– 

N003); Correction 

AGENCY: National Aeronautics and 

Space Administration. 

ACTION: Final rule; correction. 

SUMMARY: National Aeronautics and 

Space Administration (NASA) is 

correcting a final rule that appeared in 

the Federal Register on September 19, 

2023. The document issued was to 

conform the NASA FAR Supplement 

(NFS) to changes in the Federal 

Acquisition Regulation (FAR) that 

reflect an updated ‘‘commercial item’’ 

definition pursuant to a section of the 

John S. McCain National Defense 

Authorization Act (NDAA) for Fiscal 

Year (FY) 2019. 

DATES: Effective October 19, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Andrew O’Rourke, NASA HQs, Office of 

Procurement Management and Policy 

Division, LP–011, 300 E Street SW, 

Washington, DC 20456–0001. 

Telephone 202–358–4560; facsimile 

202–358–3082. 

SUPPLEMENTARY INFORMATION: In FR Doc. 

2023–17720 appearing on page 64384 in 

the Federal Register of Tuesday, 

September 19, 2023, the following 

corrections are made: 

PARTS 1812, 1813, 1816, 1819, 1823, 

1832, and 1852—[Corrected] 

■ 1. On page 64385, in the second 

column, in amendment 2, the 

instruction ‘‘In parts 1812, 1816, 1819, 

1823, 1832, and 1852 revise all 

references to ‘‘Commercial Items’’ to 

read ‘‘Commercial Products and 

Commercial Services’’ ’’ is corrected to 

read ‘‘In parts 1812, 1813, 1816, 1819, 

1823, 1832, and 1852 revise all 

references to ‘‘Commercial Items’’ to 

read ‘‘Commercial Products and 

Commercial Services.’’ ’’ 

Dated: October 10, 2023. 

Erica Jones, 

NASA FAR Supplement Manager. 

[FR Doc. 2023–22651 Filed 10–12–23; 8:45 am] 

BILLING CODE 7510–13–P 

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: Final rule. 

SUMMARY: FMCSA revises the 

emergency exemption rules to narrow 

the scope of safety regulations from 

which relief is automatically provided 

for motor carriers and drivers providing 

direct assistance when an emergency 

has been declared. This rule ensures 

that the relief granted through 

emergency declarations is appropriate 

and tailored to the specifics of the 

circumstances and emergencies being 

addressed. This rule also revises the 

process for extending automatic 

emergency regulatory relief where 

circumstances warrant and allows for 

potential reporting requirements when 

FMCSA issues an extension or 

modification. 

DATES: Effective December 12, 2023. 

Comments on the information 

collection in this final rule must be 

submitted to the Office of Information 

and Regulatory Affairs (OIRA) at the 

Office of Management and Budget 

(OMB) by November 13, 2023. 

Petitions for Reconsideration of this 

final rule must be submitted to the 

FMCSA Administrator no later than 

November 13, 2023. 

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, Kathryn.sinniger@dot.gov. If you 

have questions on viewing material in 

the docket, call Dockets Operations at 

(202) 366–9826. 

SUPPLEMENTARY INFORMATION: FMCSA 

organizes this final rule as follows: 

I. Availability of Rulemaking Documents 

II. Comments on the Information Collection 

III. Executive Summary 

A. Purpose and Summary of the Regulatory 

Action 

B. Summary of Major Provisions 

C. Costs and Benefits 

IV. Abbreviations 

V. Legal Basis 

VI. Discussion of Proposed Rulemaking and 

Comments 

A. Proposed Rulemaking 

B. Comments and Responses 

VII. Changes From the NPRM 

VIII. Section-by-Section Analysis 

IX. Severability 

X. Regulatory Analyses 

A. E.O. 12866 (Regulatory Planning and 

Review), E.O. 13563 (Improving 

Regulation and Regulatory Review), E.O. 

14094 (Modernizing Regulatory Review), 

and DOT Regulatory Policies and 

Procedures 

B. Congressional Review Act 

C. Regulatory Flexibility Act (Small 

Entities) 

D. Assistance for Small Entities 

E. Unfunded Mandates Reform Act of 1995 

F. Paperwork Reduction Act (Collection of 

Information) 

G. E.O. 13132 (Federalism) 

H. Privacy 

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

J. National Environmental Policy Act of 

1969 

I. Availability of Rulemaking 

Documents 

To view any documents mentioned as 

being available in the docket, go to 

https://www.regulations.gov/docket/ 

FMCSA-2022-0028/document and 

choose the document to review. To view 

comments, click this final rule, then 

click ‘‘Browse Comments.’’ If you do not 

have access to the internet, you may 

view the docket online by visiting 


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70898 Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 

1Section 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. 

Dockets Operations at U.S. Department 

of Transportation, 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. 

II. Comments on the Information 

Collection 

Written comments and 

recommendations for the information 

collection discussed in this final rule 

should be sent within 30 days of 

publication to www.reginfo.gov/public/ 

do/PRAMain. Find this information 

collection by clicking the link that reads 

‘‘Currently under Review—Open for 

Public Comments’’ or by entering OMB 

control number 2126–0077 in the search 

bar and clicking on the last entry to 

reach the ‘‘comment’’ button. 

III. 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 §§ 390.5 and 390.5T, and a motor 

carrier or driver provides direct 

assistance to supplement State or local 

emergency relief efforts in response to 

that emergency, as those terms are 

defined in §§ 390.5 and 390.5T.1

Based on Agency subject matter 

expertise and input from States, affected 

localities, industry groups, and others, 

FMCSA believes most emergencies 

justify allowing carriers and drivers who 

provide direct assistance to the 

emergency response to receive 

temporary relief from the normal hours 

of service (HOS) limits, so that they may 

deliver critical supplies and services to 

the communities in need as quickly and 

safely as possible. However, other safety 

regulations, including the driver 

qualification requirements of part 391, 

vehicle inspection requirements of part 

396, parts and accessories required by 

part 393, and other operating 

requirements such as prohibitions on 

operating while ill or fatigued in part 

392, often have no direct bearing on the 

motor carrier’s ability to provide direct 

assistance to the emergency relief effort. 

Safety regulations ensure that the 

companies, vehicles, and drivers meet 

the minimum requirements to operate 

safely. While temporary relief from 

some regulations may be necessary 

during an emergency, waiving every 

regulation in parts 390 through 399 

could negatively impact the safety of 

commercial motor vehicles (CMVs) 

operating on the roadways. Although 

the Agency has no detailed quantitative 

information that suggests that past or 

existing emergency exemptions have in 

fact negatively impacted road safety, it 

also has no information suggesting that 

exemptions from all safety regulations 

in Parts 390–399 in the event of an 

emergency is necessary to enable the 

provision of emergency relief. FMCSA is 

committed to ensuring that the 

operation of CMVs in interstate 

commerce is conducted as safely as 

practicable and, therefore, presumes 

that its promulgated safety regulations 

should remain in effect absent a specific 

showing that exemption is necessary. 

In order to provide clarity on which 

emergency exemptions are necessary 

during an emergency, FMCSA is 

narrowing the automatic applicability of 

§ 390.23 to the HOS limits in §§ 395.3 

and 395.5, which set the basic HOS 

limits for property-carrying and 

passenger-carrying vehicles, 

respectively. This change clarifies 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, today’s rule clarifies 

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 rule changes definitions in 

§§ 390.5 and 390.5T. It modifies the 

definition for 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, unless such conditions 

or events cause an immediate threat to 

human life and result in a declaration of 

an emergency. This rule also removes 

the definition of emergency relief as that 

term is no longer used in § 390.23 and 

amends the definition of direct 

assistance to incorporate the essential 

components of the emergency relief 

definition. This rule moves the 

definition of residential heating fuel 

from the text of § 390.23 and places it 

in the definition sections, §§ 390.5 and 

390.5T. These reorganizational changes 

simplify the text in § 390.23 without 

changing the regulation’s meaning. 

This rule revises § 390.23 in several 

ways. Presidential declarations of 

emergency will continue to trigger a 30- 

day exemption from all FMCSRs in 

parts 390 through 399. The rule limits 

the duration and scope of the automatic 

regulatory relief that takes effect upon a 

regional declaration of emergency by a 

Governor, a Governor’s authorized 

representative, or FMCSA, however. 

The automatic regulatory relief applies 

for 14 days, as opposed to 30 days, and 

exempts 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 both 

shortens the time the automatic 

regulatory relief is in place and limits 

the scope of the relief provided, 

ensuring any impact on safety continues 

to be minimized during the period of 

the automatic regulatory relief. FMCSA 

revised this provision from the NPRM at 

the suggestion of commenters who 

expressed concern that the proposed 5- 

day emergency exemption period would 

be too short to provide emergency relief, 

and also too little time for FMCSA to 

receive and evaluate information on 

whether a longer FMCSA-issued 

emergency exemption was warranted. 

FMCSA believes that most emergency 

declarations expire within 5 days, but it 

is aware that climate change has 

impacted both the number and severity 

of storms that often give rise to regional 

declarations of emergency. Providing for 

14 days of automatic relief will allow 

emergency relief efforts in these severe 

weather scenarios to continue unabated, 

without fear that there will be a lapse 

between the automatic regulatory relief 

and any FMCSA action to extend or 

reinstate the regulatory relief. 

Additionally, for those emergencies that 

do not require an extended response 

period, the regulation provides that the 

exemption period triggered by a 

Governor-issued emergency declaration 

will end upon cessation of the 

emergency declaration or 14 days, 

whichever is sooner. 

Section 390.23 maintains 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 


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Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 70899 

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 under 

section 390.23(c), the automatic 

regulatory relief is limited by this rule 

to the HOS regulations in §§ 395.3 and 

395.5. This regulatory relief is already 

limited to 5 days, thus no change to the 

length of the automatic relief is needed. 

This change ensures that any impact on 

safety continues to be minimized during 

the period of the automatic regulatory 

relief. 

Finally, this rule simplifies the 

language in § 390.25, allowing FMCSA 

to extend and modify the automatic 

regulatory relief outlined in § 390.23, 

either on its own volition or upon 

request. All requests for modifications 

and extensions must be made via email. 

FMCSA will still establish a time limit 

for the extended or modified emergency 

exemption, and the Agency may place 

any restrictions upon the emergency 

relief. This final rule adds, specifically, 

that FMCSA may include reporting 

requirements as one of these 

restrictions. FMCSA is requesting 

approval from OMB for a collection of 

information as part of this rulemaking. 

C. Costs and Benefits 

The Agency does not expect this rule 

will result in substantive incremental 

impacts relative to the baseline 

established in the FMCSRs. Most of the 

changes in this rule have already been 

in practice through modifications to 

previous automatic 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. 

Limiting the automatic regulatory 

relief to the HOS regulations in §§ 395.3 

and 395.5, as opposed to all the 

FMCSRs in 49 CFR parts 390 through 

399, may result in costs to certain motor 

carriers and drivers who currently rely 

on the automatic regulatory relief, 

beyond the HOS regulations. However, 

as most emergency exemptions are 

either issued or modified to be limited 

to cover only the HOS regulations, 

including the COVID–19 emergency 

exemption, the Agency believes this 

change will not result in incremental 

costs relative to the baseline. 

Because automatic regulatory relief is 

decreasing from 30 days to 14 days in 

the case of regional emergencies, the 

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 

this rule for individuals who request 

extensions to exemptions via email. 

IV. Abbreviations 

AASHTO American Association for State 

Highway and Transportation Officials 

AECC Arkansas Electric Cooperatives 

Corporation 

AECI Arkansas Electric Cooperatives, Inc. 

AHAS Advocates for Highway and Auto 

Safety 

ANPRM Advance Notice of Proposed 

Rulemaking 

ATA American Trucking Associations 

CBI Confidential Business Information 

CE Categorical Exclusion 

CFR Code of Federal Regulations 

CMV Commercial Motor Vehicle 

COVID–19 Coronavirus Disease 2019 

CRASH Citizens for Reliable and Safe 

Highways 

CVSA Commercial Vehicle Safety Alliance 

IDOT Iowa Department of Transportation 

DOT U.S. Department of Transportation 

EEI Edison Electric Institute 

EMA Energy Marketers of America 

E.O. Executive Order 

FHP Florida Highway Patrol—Office of 

Commercial Vehicle Enforcement 

FMA Fuel Merchants Association of New 

Jersey 

FHWA Federal Highway Administration 

FMCSA Federal Motor Carrier Safety 

Administration 

FMCSRs Federal Motor Carrier Safety 

Regulations 

FPMA Florida Petroleum Marketers 

Association 

FR Federal Register 

HOS Hours of Service 

MCS Montana Department of 

Transportation—Motor Carrier Services 

Division 

MEMA Mississippi Emergency 

Management Agency 

MMTA Maine Motor Transport Association 

NAICS North American Industry 

Classification System 

ND State of North Dakota 

NEFI National Energy & Fuels Institute 

NPGA National Propane Gas Association 

NPRM Notice of Proposed Rulemaking 

NWRA National Waste & Recycling 

Association 

OIRA Office of Information and Regulatory 

Affairs 

OMB Office of Management and Budget 

OOIDA Owner-Operator Independent 

Drivers Association 

PATT Parents Against Tired Truckers 

PTA Privacy Threshold Assessment 

SBA Small Business Administration 

SC Shippers Coalition 

SWANA Solid Waste Association of North 

America 

TSC Truck Safety Coalition 

UMRA Unfunded Mandates Reform Act of 

1995 

U.S.C. United States Code 

V. 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 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) 

VI. Discussion of Proposed Rulemaking 

and Comments 

A. Proposed Rulemaking 

On December 8, 2022, FMCSA 

published in the Federal Register 

(Docket No. FMCSA–2022–0028, 87 FR 

75206) an NPRM titled ‘‘Clarification to 

the Applicability of Emergency 

Exemptions.’’ The NPRM proposed to 

revise, remove, and add definitions to 

reflect other changes proposed to the 

emergency exemption rules. These 

changes included removing an obsolete 

term, moving the definition of one term 

to the definition section, and revising 

two definitions. 

FMCSA also proposed to shorten, in 

certain situations, the duration and limit 

the scope of the initial, automatic 

regulatory relief triggered by an 

emergency declaration. Under the 

NPRM, the scope of relief would be 

limited to specific provisions of the 

HOS regulations, unless the emergency 


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70900 Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 

2Oncor submitted their comment after the 

comment period officially closed via an email, 

which FMCSA placed in the docket for this 

rulemaking. 

3One commenter submitted a duplicate 

comment, which contained numerous attachments 

that were not included in their initial filing. 

FMCSA counted these two comments as one. 

4 ‘‘The Carrier Safety Measurement System 

(CSMS) Effectiveness Test by Behavior Analysis 

and Safety Improvement Categories (BASICs)’’ from 

January 2014, available in the docket for this 

rulemaking. 

declaration is made by the President 

under the authority of 42 U.S.C. 5191(b). 

As proposed, the relief would 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 

would continue to trigger a 30-day 

exemption from all FMCSRs in parts 

390 through 399. 

The NPRM proposed that any party, 

including a State or local official, could 

request additional relief and/or an 

extension from FMCSA. The Agency 

would evaluate any such request and 

approve, modify, or deny the request, as 

appropriate. No formal request or form 

would be required to request relief. 

Requests would be submitted to 

FMCSA’s emergency declaration email 

inbox (FMCSAdeclaration@dot.gov). 

FMCSA would also have retained 

independent authority to extend or 

modify the emergency relief. 

FMCSA also proposed adding 

language to § 390.25 to expressly note 

that one of the conditions FMCSA may 

include when extending/modifying an 

emergency declaration exemption is to 

collect information from those carriers 

and drivers relying upon the regulatory 

relief. 

B. Comments and Responses 

FMCSA solicited comments 

concerning the NPRM for 60 days 

ending February 6, 2023. Twenty-nine 

comments were received, from the 

following parties: American Association 

of State Highway and Transportation 

Officials (AASHTO), Arkansas Electric 

Cooperative Corporation (AECC), 

Arkansas Electric Cooperatives, Inc. 

(AECI), Advocates for Highway and 

Auto Safety (AHAS), American 

Trucking Associations (ATA), Citizens 

for Reliable and Safe Highways 

(CRASH), Commercial Vehicle Safety 

Alliance (CVSA), Edison Electric 

Institute (EEI), Energy Marketers of 

America (EMA), Florida Highway 

Patrol—Office of Commercial Vehicle 

Enforcement (FHP), Florida Petroleum 

Marketers Association, Inc. (FPMA), 

Fuel Merchants Association of New 

Jersey (FMA), Iowa Department of 

Transportation (IDOT), Montana 

Department of Transportation—Motor 

Carrier Services Division (MCS), 

Mississippi Emergency Management 

Agency (MEMA), Maine Motor 

Transport Association (MMTA), the 

State of North Dakota (ND), National 

Energy & Fuels Institute, Inc. (NEFI), 

National Propane Gas Association 

(NPGA), National Waste & Recycling 

Association (NWRA), Oncor 2 OwnerOperator Independent Drivers 

Association (OOIDA), Parents Against 

Tired Truckers (PATT), Powell 

Transportation Co., Inc., Shippers 

Coalition (SC), Solid Waste Association 

of North America (SWANA), Suburban 

Propane, Truck Safety Coalition (TSC), 

and two private citizens.3 The Agency 

also received a letter signed by twentyseven Members of Congress, which was 

added to the docket. 

Request To Extend Comment Period 

One commenter, EMA, requested an 

extension of the comment period, citing 

a lack of awareness on the part of State 

associations. However, several States 

and associations submitted comments to 

the docket prior to its closing date, 

including a second, substantive 

comment from EMA. FMCSA ensured 

that the docket would stay open beyond 

February 6, 2023, so all interested 

parties would have time to file their 

comments. FMCSA considered all 

comments it received, whether those 

comments were filed in the docket 

before or after February 6, 2023. For 

these reasons, FMCSA did not extend 

the comment period. 

General Comments 

The majority of commenters agreed 

with the proposal to limit the automatic 

exemption to the HOS requirements 

triggered by a declaration of emergency. 

Most of the commenters who agreed 

with the idea of limiting the application 

of the automatic emergency exemption 

to the HOS requirements had additional 

comments, which are addressed below. 

Seven commenters opposed all aspects 

of the NPRM. 

Reason for Making Changes 

Five commenters questioned 

FMCSA’s stated reasons for proposing 

changes to the emergency exemption 

regulations. NPGA noted that ‘‘the 

stated basis for this rulemaking lacks 

evidence, and evidence to the contrary 

is provided by FMCSA itself.’’ NEFI 

recommended that FMCSA analyze 

safety data from the COVID–19 

emergency declaration to see if there 

was a rise in fatigue related incidents 

prior to making any changes. OOIDA, 

EMA, FPMA, and the Members of 

Congress all noted a lack of evidence 

that the current emergency exemption 

rules impact safety. 

FMCSA acknowledges that there is no 

specific quantitative evidence that the 

current emergency exemption rules 

have led to a degradation of safety. Data 

collected during the COVID–19 

emergency declaration was of limited 

scope and does not allow for a specific 

safety impact analysis of those carriers 

operating under the emergency 

exemption. However, it is generally 

accepted that driver fatigue increases 

risk of safety incidents, and that one of 

the leading causes of driver fatigue is 

driving for too long and working long 

hours without adequate opportunities 

for restorative sleep. FMCSA is 

committed to ensuring the safety of 

commercial vehicle transportation, both 

for CMV drivers and for others sharing 

the roads with CMVs. The FMCSRs exist 

in order to ensure safety, and there is 

published research that indicates the 

FMCSRs overall have a solid safety 

basis. (See research studies on the 

Safety Measurement System, the 

Behavior Analysis and Safety 

Improvement Categories from which are 

rooted in the FMCSRs).4 Any time 

FMCSA agrees to lower a safety 

standard by issuing an exemption, there 

must be a compelling reason. While 

responding to emergency situations is a 

compelling reason to issue relief from 

some FMCSRs, FMCSA does not believe 

that it is a compelling reason to exempt 

motor carriers and drivers from all 

FMCSRs. Nor does it provide a 

compelling reason to extend that relief 

for a longer period than is necessary to 

respond. In the absence of specific data 

showing an increased safety risk for 

CMVs operating under an emergency 

exemption, FMCSA determined that the 

potential for increased safety risk under 

the current emergency exemption 

regulation, as reflected by the removal 

of all FMCSR requirements during an 

emergency exemption, was enough to 

warrant the changes made by this rule. 

Additionally, in recent years FMCSA 

saw emergency declarations from state 

Governors or their representatives that 

do not warrant the emergency 

exemptions from the Federal regulations 

in § 390.23. Examples include an 

emergency exemption covering all 

interstate shipments of goods during the 

month of December, to counteract 

supply chain issues and help increase 

the supply of toys and other items for 

Christmas, and an exemption for all 

shipments of gasoline to encourage 


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Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 70901 

more travel after the pandemic. FMCSA 

considered the increase in the number 

of inappropriate emergency declarations 

as another reason to initiate this 

rulemaking, to clarify those instances 

when emergency exemptions are 

appropriate. 

Limitation of Regional Exemption to 5 

Days 

Twenty-two commenters opposed 

shortening the duration of the automatic 

exemption triggered by regional 

emergency declarations by governors, 

their authorized representative, or 

FMCSA. These commenters included 

Powell Transportation, MMTA, CVSA, 

AASHTO, SC, MCS, IDOT, FHP, AECC/ 

AEC, MEMA, Suburban Propane, ATA, 

NPGA, NWRA, SWANA, EEI, NEFI, 

OOIDA, EMA, FPMA, and the Members 

of Congress. These commenters noted 

that 5 days may not be long enough to 

deal with certain emergencies, citing 

various examples of emergencies from 

recent years, where emergency relief 

efforts extended beyond 5 days. They 

noted that the effects of climate change 

make it likely that storms will become 

more frequent and stronger, requiring 

longer response times. Many added that 

a 5-day exemption does not provide 

enough time for responders to plan and 

prepare for a response before they might 

need to pause to ensure that the 

exemption will be extended to cover 

their entire response time. Additionally, 

they argued that this shortened time 

period will require responders to focus 

on requesting an extension at the very 

time when they should be focusing on 

relief efforts. ATA suggested that the 

duration for these regional emergency 

exemptions be revised to 14 days; 

NWRA suggested 15 days. They argued 

that this would still be a shorter period 

than is currently in regulation but 

would be long enough to ensure that 

most regional emergencies were covered 

completely without the need for an 

extension. 

As FMCSA stated in the NPRM, the 

Agency believes most direct assistance 

to emergencies requiring regulatory 

relief ends within 5 days. However, 

FMCSA acknowledges there are 

circumstances that may result in the 

need for more time for responders to 

complete their emergency relief efforts. 

The Agency also acknowledges that in 

certain cases, coordination efforts may 

take longer than a 5-day exemption 

period would allow. Therefore, FMCSA 

is revising the duration of the automatic 

regulatory relief that is triggered by a 

regional declaration of emergency to 14 

days, as suggested by ATA. FMCSA 

notes that, as is the case now, these 

exemptions will expire earlier if the 

emergency declaration expires before 

the end of 14 days. Additionally, while 

this limitation also applies to 

declarations issued by FMCSA, the 

Agency retains the ability to issue a 

modified emergency exemption from 

day one of an emergency, with an initial 

expiration beyond 14 days. 

One commenter, AWM Associates, 

thought FMCSA should go further and 

apply this temporal limit even to 

Presidential declarations of emergency. 

FMCSA questions its legal authority to 

limit Presidential declarations by 

rulemaking, and it, therefore, declines to 

make such a change. The Agency notes, 

however, that the emergency exemption 

will expire in less than 30 days where 

the Presidential declaration expires in 

less than 30 days. 

Limitation of Emergency Exemption to 

HOS Rules 

Four commenters questioned the 

limitation of the automatic exemption to 

just the HOS rules. The State of North 

Dakota and OOIDA opposed this change 

on the basis of a lack of data, a point 

addressed previously above. IDOT listed 

several additional FMCSRs from which 

CMVs might need relief, including 

medical certificate and DOT number 

requirements, as well as the CDL 

requirement waivers that were issued 

during the COVID–19 emergency 

declaration. Oncor, an intrastate carrier, 

noted that they rely on the automatic 

exemption from rules in parts 391, 392, 

393, and 396 when responding to 

emergencies in other states, noting its 

efforts in response to several hurricanes 

that hit Florida in recent years. 

FMCSA understands that, in certain 

situations, there may a need to grant 

additional regulatory relief to one or 

more entities in order to facilitate 

emergency response. However, the 

Agency is confident that such relief can 

be provided using other existing 

authorities, as was the case of the CDL 

waivers during the COVID–19 

emergency declaration. For this reason, 

FMCSA is not revising the proposal to 

include additional regulatory provisions 

in the automatic emergency regulatory 

relief. In response to the situation 

presented by Oncor, FMCSA notes that 

the regulations covering registration 

allow for the issuance of temporary 

authority in emergency situations 

(§ 365.107T), which would allow 

intrastate motor carriers to travel 

interstate when responding to an 

emergency. 

Comments on Changes to Definitions 

FMCSA received several requests to 

revise definitions included in the 

NPRM. AASHTO and NPGA requested 

changes to the definition of 

emergencies. AASHTO requested the 

definition of emergencies be broadened 

to cover health and cybersecurity 

emergencies; NPGA requested clarity on 

the conditions that would constitute an 

immediate threat to human life, which 

would allow for emergency regulatory 

relief even though a declaration is based 

on economic conditions caused by 

market forces (as opposed to a natural 

disaster). 

FMCSA believes that the proposed 

definition could cover health and 

cybersecurity emergencies, as it retains 

the phrase ‘‘or other occurrence, natural 

or man-made’’ found in the current 

definition. As such, no revision is being 

made. As for NPGA’s request, FMCSA 

notes that the term ‘‘immediate threat to 

human life’’ is intended to be read 

literally—as was the case during the 

COVID–19 emergency declaration, as 

the related emergency exemptions 

issued were limited to commodities that 

were tied to human health and safety, 

such as vaccines, food supplies, public 

sanitation and hygiene products. They 

did not cover all commodities, as not all 

commodities impact human health and 

safety. 

AASHTO also requested that the 

definition of direct assistance be revised 

to cover shipments of emergency 

supplies before an event occurs, and to 

cover debris removal. 

FMCSA notes that in some cases, 

emergency declarations are issued in 

advance of an event that can be reliably 

predicted, such as a hurricane, blizzard, 

or flooding. In those cases, the 

emergency regulatory relief would also 

start prior to the event. However, in 

instances where the emergency 

declaration is not made prior to the 

event, FMCSA does not believe it is 

appropriate for the emergency 

regulatory relief exemption to start prior 

to an emergency declaration. FMCSA 

also notes that there is no reason why 

debris removal couldn’t be included in 

the term ‘‘essential services,’’ which is 

used in the definition of emergencies, 

even if it isn’t included in the list of 

examples within that definition. So long 

as the debris in question immediately 

threatens human life or public welfare, 

its removal would qualify as direct 

assistance. However, if the debris is not 

posing such threat, its removal would 

not qualify. 

EMA requested that the term 

‘‘biodiesel blends’’ be added to the 

definition of residential heating fuels, to 

ensure that carriers transporting those 

fuels are included in the statutory 

exemption. FMCSA disagrees with this 

change as it creates redundancy in the 

definition. The term ‘‘heating oil,’’ as 


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previously discussed in the rule, has 

already been defined and will 

encompass those ‘‘biodiesel blends’’ 

that are used for or in ‘‘residential 

heating fuel.’’ Accordingly, there is no 

need to specifically include ‘‘biodiesel 

blends’’ as an example of a ‘‘heating oil’’ 

that could be used as a residential 

heating fuel. 

Comments on Requests for Exemption 

Extensions/Modifications 

Three commenters questioned the 

proposed requirement that requests for 

extension and modification of an 

emergency exemption be made using a 

specified email address 

(FMCSADeclarations@dot.gov). EMA 

requested that the current procedures, 

using phone numbers, be retained. EEI 

had several questions on how the new 

procedure would work, including what 

would happen if the end of an 

automatic exemption occurs on a 

weekend or holiday, how long FMCSA 

will need to respond to the request, and 

what basis FMCSA will use to make 

their decision. NPA questioned whether 

FMCSA would be able to respond in a 

timely manner to a ‘‘flood of email 

requests.’’ 

FMCSA disagrees with the suggestion 

that extension and modification 

requests be made via telephone calls. 

The Agency believes it will be easier for 

motor carriers and CMV drivers to 

remember one email address than it is 

to know which service center should be 

called, and to have access to the correct 

phone number at that service center, as 

the current regulation requires. 

Additionally, FMCSA will have several 

individuals continuously monitor the 

single email address, ensuring 

continuity of coverage through 

weekends and holidays, and ensuring 

that it can respond in a timely manner. 

FMCSA notes that the extension of the 

automatic emergency exemption for 

regional declarations from 5 days to 14 

days will also mitigate against the need 

for numerous extension requests. 

In regard to what information needs to 

be included in a request, this final rule 

requires only a ‘‘detailed explanation of 

the need for an extension or 

modification;’’ because disasters that 

spur emergency declarations are 

universal only in their uniqueness, 

FMCSA does not want to provide a 

prescriptive list of elements to include 

in a request. FMCSA encourages an 

interested party to include all facts and 

rationale as they deem relevant. As 

noted in this final rule, ‘‘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.’’ 

Comments on the Reporting 

Requirement and Information Collection 

AHAS requested that FMCSA include 

reporting requirements in future 

emergency exemptions and that the 

Agency commit to sharing data as 

quickly as possible. Once this final rule 

takes effect, FMCSA will determine on 

a case-by-case basis whether or not to 

include a reporting requirement in any 

modified and/or extended emergency 

exemptions. The Agency will follow all 

current information sharing 

requirements in regard to the reports, 

and the data included. 

AASHTO questioned FMCSA’s 

estimates of the administrative burden 

associated with requesting extensions of 

emergency exemptions and with the 

potential reporting requirements on 

extended/modified emergency 

exemptions. They commented that they 

found FMCSA’s estimates to be 

‘‘unrealistically low’’ but provided no 

alternate estimates for the Agency to 

use. In the absence of an alternative, 

FMCSA believes that relying upon the 

estimates developed by Agency experts, 

which built upon estimates developed 

when reporting requirements were 

added to the COVID–19 emergency 

declaration, is reasonable. 

Comments on the Regulatory Evaluation 

EEI had several questions on the cost 

assessment, which are addressed below 

in the ‘‘Regulatory Analyses’’ section. 

Miscellaneous Comments 

EEI requested clarification that the 

changes in this rule would not impact 

the HOS exemption for utility service 

vehicles found in §§ 395.1(n) and 395.2. 

FMCSA confirms that nothing in today’s 

rule impacts the utility service vehicle 

HOS exemptions cited. AECC and AECI 

requested a utility specific exemption to 

allow for prompt restoration of power. 

FMCSA notes that the exemptions cited 

by EEI already exists and covers both 

AECC and AECI when responding to 

emergencies within their coverage areas. 

When responding to emergencies 

outside of their coverage areas, the 

automatic exemption in today’s rule 

should, in most cases, provide adequate 

time for the restoration of power. Where 

additional time is needed, this final rule 

would allow for the extension of the 

exemption. 

NPGA requested that FMCSA declare 

that State waivers in adjoining States 

have the same effect as an FMCSA 

regional waiver. FMCSA notes that this 

rule only applies to the automatic 

emergency regulatory relief from 

Federal regulations triggered by 

emergency declarations. Should 

Governors in neighboring States declare 

emergencies for the same event (such as 

a storm), then the automatic emergency 

relief would be triggered in both States, 

allowing for a lifting of the HOS 

restrictions on interstate travel 

providing direct assistance to the 

emergency to or from both States. 

SWANA requested that solid waste 

carriers receive a special ‘‘carve out’’ in 

the same way that home heating does. 

However, the home heating ‘‘carve out’’ 

was created by Congress, not FMCSA. 

Therefore the Agency does not believe 

it is appropriate to create an additional 

‘‘carve out’’ without Congressional 

action. Additionally, as noted above, 

certain solid waste removal would 

qualify as an essential service under the 

definition of emergencies if the solid 

waste threatens human life or public 

welfare, making an additional ‘‘carve 

out’’ unnecessary in the contexts where 

the solid waste threatens human life or 

public welfare. 

One private citizen commented that 

FMCSA does not declare emergencies. 

This is incorrect. While many 

emergency declarations are made by 

Presidential, gubernatorial, or other 

local decree, FMCSA also has authority 

to issue emergency declarations, in 

accordance with 49 CFR 

390.23(a)(1)(i)(B), and has done so on 

numerous occasions. 

VII. Changes From the NPRM 

As noted above in the discussion of 

comments and responses, this final rule 

contains changes from the NPRM. In 

response to the commenters, FMCSA is 

extending the length of time of the 

automatic regulatory relief from Federal 

regulations that is triggered by a 

regional declaration of emergency by a 

Governor of a State, their authorized 

representative, or FMCSA. The NPRM 

proposed that this period be 5 days, but 

this final rule extends that to 14 days, 

and this change can be found in section 

390.23(b). FMCSA is also making minor 

grammatical changes in the definition of 

‘‘emergency’’ and in section 390.23. 

VIII. Section-by-Section Analysis 

This section-by-section analysis 

describes the changes to the regulatory 

text in numerical order. 

49 CFR 390.5/49 CFR 390.5T 

This final rule changes the definitions 

found in §§ 390.5 and 390.5T. The 

definition for emergency relief is 

removed, as this term no longer appears 

in § 390.23 or § 390.25. FMCSA adds a 

definition for residential heating fuel. 

The definition previously appeared in 


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Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 70903 

§ 390.23; it is moved to the definition 

section to make § 390.23 easier to read, 

and to ensure all definitions appear in 

one section. The definition itself 

remains substantively unchanged. 

The definition for direct assistance is 

revised to incorporate the definition of 

emergency relief, which is deleted. The 

definition of emergency is revised to 

clarify what does and does not qualify 

as an emergency that could trigger the 

automatic exemptions of § 390.23. 

49 CFR 390.23 

This final rule makes several revisions 

to § 390.23. Paragraph (a) is limited to 

addressing Presidential declarations of 

emergency issued under 42 U.S.C. 

5191(b). These declarations will 

continue to trigger automatic regulatory 

relief from parts 390 through 399 for the 

period of assistance, or 30 days from the 

declaration, whichever is less. 

Paragraph (b) addresses regional 

declarations of emergencies issued by a 

Governor, their authorized 

representative, or FMCSA, and limits 

the automatic regulatory relief to the 

HOS regulations in §§ 395.3 and 395.5 

for the period of direct assistance or 14 

days from the declaration, whichever is 

less. This paragraph includes an 

exception for declarations by a Governor 

of a State when there is an emergency 

caused by a shortage of residential 

heating fuel, as required by statute. 

Residential heating fuel declarations 

trigger automatic regulatory relief from 

all regulations in parts 390 through 399, 

and the Governor may extend the 

declaration for up to two additional 30- 

day periods. (49 U.S.C. 31136 note). 

Paragraph (c) covers 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 continues to be 

limited to a period of 5 days or for the 

period of assistance (whichever is less), 

and now provides relief only from the 

HOS requirements in §§ 395.3 and 395.5 

rather than all the FMCSRs. 

Paragraph (d) of § 390.23 carries 

forward the special provision for tow 

trucks from previous paragraph (a)(3). 

The emergency regulatory relief 

provided in this paragraph only applies 

to the HOS regulations in § 395.3 and 

lasts for no more than 24 hours. No 

substantive changes are made except to 

narrow the provision to granting relief 

from the HOS restrictions in § 395.3 

only. 

Paragraph (e) carries forward the 

provisions in previous 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, no matter 

which entity makes the declaration of 

emergency. Changes to this paragraph 

are intended only to clarify the rule; no 

substantive changes are made. 

49 CFR 390.25 

Paragraph (a) of § 390.25 provides that 

FMCSA may extend or modify any of 

the emergency regulatory relief issued 

under § 390.23 on its own authority, or 

upon request by an interested party who 

provides a detailed explanation of the 

need for an extension or modification 

through the FMCSA emergency 

declarations email address 

(FMCSAdeclaration@dot.gov). This 

change affords FMCSA greater 

flexibility to consider requests for 

extensions of emergency regulatory 

relief, beyond current language in 

§ 390.25, which is limited to requests 

from drivers and motor carriers only. 

Additionally, FMCSA may continue to 

extend or modify emergency relief upon 

its own volition. This would include 

issuing an initial emergency declaration 

and regulatory relief from Federal 

regulations that extends beyond 14 

days, if the Agency determines such 

additional time will be necessary. 

Paragraph (b) carries forward the preexisting language requiring any FMCSA 

official approving an extension to set a 

new expiration date for the emergency 

regulatory relief and allowing the 

FMCSA official to include any other 

restriction deemed necessary. This final 

rule adds explicitly that these additional 

restrictions may include reporting 

requirements. 

IX. Severability 

As noted in the Legal Authority 

section above, Congress mandated that 

FMCSA adopt regulations to ensure that 

‘‘commercial motor vehicles are 

maintained, equipped, loaded, and 

operated safely,’’ but that it may also 

‘‘grant . . . waivers and exemptions 

from, or conduct pilot programs with 

respect to, any regulations prescribed 

under this section.’’ Consistent with that 

authority, FMCSA is revising its 

regulations covering automatic, 

emergency relief from Federal 

regulations that is triggered by an 

emergency declaration. The purpose of 

this rule is to ensure that the automatic 

regulatory relief is limited in scope to 

providing relief from only those 

regulations most likely to inhibit 

emergency relief operations during an 

emergency declaration, and that the 

automatic relief lasts only as long as is 

necessary for those providing direct 

assistance during an emergency 

declaration. However, FMCSA 

recognizes that certain provisions focus 

on unique scenarios. Therefore, FMCSA 

finds that the various provisions of this 

final rule are severable and able to 

operate functionally if severed from 

each other. In the event a court were to 

invalidate one or more of this final 

rule’s unique provisions, FMCSA 

intends that the remaining provisions 

would stand, thus allowing FMCSA to 

continue to fulfill its Congressionally 

authorized role of promoting safe 

operation of CMVs. 

X. Regulatory Analyses 

A. Executive Order (E.O.) 12866 

(Regulatory Planning and Review), E.O. 

13563 (Improving Regulation and 

Regulatory Review), E.O. 14094 

(Modernizing Regulatory Review), and 

DOT Regulatory Policies and Procedures 

FMCSA has considered the impact of 

this final rule 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, E.O. 

14094 (88 FR 21879, Apr. 11, 2023), 

Modernizing Regulatory Review, and 

DOT’s regulatory policies and 

procedures. OIRA at OMB determined 

that this final rulemaking is not a 

significant regulatory action under 

section 3(f) of E.O. 12866, as 

supplemented by E.O. 13563 and E.O. 

14094, 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 E.O. 

Baseline for This Analysis 

The Agency does not expect this final 

rule to result in substantive incremental 

impacts relative to the baseline 

established in the FMCSRs. Most of the 

changes 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 a 

mechanism 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 was 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 


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5FMCSA consulted with its Crisis Management 

Center, which is responsible for monitoring 

emergency declarations. Based on that expertise, 

the Agency is estimating 50 requests per year. 

6The loaded hourly wage is a product of the 

median hourly wage of a General and Operations 

multiplied by the fringe benefits rate of 50.5 percent 

and overhead costs of 21 percent. The median 

hourly wage of a General and Operations Manager 

is $47.16. A General Operations Manager falls 

under the Bureau of Labor Statistics Occupation 

Code 11–1021. 

7The 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–13 step 5 is $60.83. Located at https://

www.opm.gov/policy-data-oversight/pay-leave/ 

salaries-wages/salary-tables/pdf/2023/DCB_h.pdf 

(accessed May 16, 2023). 

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 §§ 395.3 and 395.5. 

Based on Agency experience and 

expertise, and input from industry 

stakeholders, 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 

operating under the COVID–19 

exemption from September 2021 until 

its expiration in October 2022 was 

already afforded only HOS-related 

exemptions and not a broad exemption 

from all requirements of parts 390 

through 399. 

Need for This Final Rule 

The COVID–19 pandemic highlighted 

the value of effective exemptions from 

the HOS rules. This rule emphasizes the 

need for ensuring that relief granted by 

emergency declarations is appropriate 

and tailored to the specific 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 §§ 395.3 and 395.5 in 

order to provide direct assistance to 

emergency relief efforts. 

Uncertainties 

FMCSA presents a qualitative analysis 

of the 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 §§ 395.3 

and 395.5, because FMCSA has not 

previously collected data on the use of 

the exemptions, and, therefore, cannot 

quantitatively 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. The data 

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 

§§ 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 not 

currently available to the Agency. 

Costs 

In narrowing the exemptions to the 

HOS regulations in §§ 395.3 and 395.5, 

as opposed to all of parts 390 through 

399, this rule will 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, this 

change will 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 as proposed in the NPRM 

and included in this final rule. This 

estimate is based on the average number 

of responses the Agency received from 

the COVID–19 emergency exemption 

data collection. This figure represents 

an upper-bound estimate for the number 

of motor carriers the Agency expects 

will be required to report their use of an 

HOS exemption extension and thus be 

subject to an information collection. 

This figure cannot be used to estimate 

the total number of affected entities, 

however, because FMCSA does not have 

information on whether any of the 

individuals who reported their use of 

the COVID–19 emergency exemption 

from the HOS limits would also have 

relied upon exemptions from other 

portions of the FMCSRs if a broader 

exemption had remained in place. 

Based on comments received on the 

NPRM, which generally supported 

limiting emergency relief to the HOS 

limits, FMCSA does not believe that all 

477 respondents would have relied 

upon relief from requirements beyond 

the HOS limits. The Agency does not 

have a means of inferring how many 

individuals will 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 final rule will result in an 

increase in the number of extension 

requests from motor carriers and 

drivers, as the automatic exemption 

period resulting from a regional 

declaration of emergency by a Governor 

will be reduced from 30 to 14 days. This 

rule will 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 

will 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 will submit requests for 

extensions per year. These extension 

requests will take 15 minutes to 

complete and total to 12.5 hours of labor 

(50 respondents × 15 minutes). A motor 

carrier employee equivalent to General 

and Operations Managers with a loaded 

hourly wage of $80.88 will submit the 

extension request.6 As such, there will 

be a total annual cost of $1,011 ($80.88 

× 12.5 hours) to submit extension 

requests. Requests for extensions will 

take 15 minutes each to review. The 

requests will be reviewed by a GS–13, 

step 5 in the Washington, DC area with 

a loaded hourly wage of $127.13. The 

total annual cost to review these 

extension requests is $1,589 ($127.13 × 

12.5 hours).7

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, but likewise it has no 

information suggesting that exemptions 

from all safety regulations are necessary 

to provide emergency relief. This rule 

provides clarity on which exemptions 

are necessary during an emergency and 


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Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 70905 

8As described in the cost section, the estimated 

annual cost for these extensions has been updated 

to $1,011 for this final rulemaking. 

9A major rule means any rule that 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 (5 U.S.C. 802(4)). 

10Public Law 104–121, 110 Stat. 857, (Mar. 29, 

1996). 

11U.S. Census Bureau. 2017 Economic Census. 

Table EC1700SIZEEMPFIRM—Selected Sectors: 

Employment Size of Firms for the U.S.: 2017. 

Available at https://www.census.gov/data/tables/ 

2017/econ/economic-census/naics-sector-48- 

49.html (accessed Apr. 25, 2023). 

12U.S. Census Bureau. 2012 Economic Census. 

Table EC1248SSSZ4—Transportation and 

Warehousing: Subject Series—Estab & Firm Size: 

Summary Statistics by Revenue Size of Firms for 

the U.S.: 2012. Available at https://

www.census.gov/data/tables/2012/econ/census/ 

transportation-warehousing.html (accessed Apr. 25, 

2023). 

ensures 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 will be able to more 

efficiently track exemption requests. 

Comments on the Regulatory Evaluation 

EEI disagreed with FMCSA’s estimate 

that 50 individuals would submit 

requests for extensions annually at an 

estimated cost of $1,047 8 but provided 

no alternate estimates for the Agency to 

use. In the absence of an alternative, 

FMCSA believes that relying upon the 

estimates developed by Agency experts, 

which built upon estimates developed 

when reporting requirements were 

added to the COVID–19 emergency 

declaration, is reasonable. EEI asserted 

that this estimate is ‘‘based on current 

regulations, with no projections based 

on the impact of the proposed rule.’’ 

FMCSA disagrees with this assertion 

based on observations during the 

COVID–19 exemption. FMCSA’s crisis 

management center predicts, based on 

past experience, that owners/operators 

will utilize the exemptions, if available, 

but would seldom request an extension. 

It has also been observed that direct 

assistance to most emergencies is often 

concluded within 5 days. However, 

based on the suggestion of commentors, 

FMCSA has opted to revise the 

automatic regulatory relief as proposed 

in the NPRM from 5 to 14 days for 

regional declaration of emergencies. 

Providing for 14 days of automatic relief 

for regional emergencies should serve to 

abate fears of a lapse between the 

automatic regulatory relief and any 

FMCSA action to extend or reinstate the 

regulatory relief due to federal holidays, 

weekends, or other circumstances. The 

regulatory relief for local emergencies is 

already limited to 5 days, thus no 

change to the length of the automatic 

relief is needed, as this period has been 

observed to be appropriate. 

EEI also objected that the regulatory 

evaluation does not account for possible 

delays of restoration. This argument 

erroneously assumes that extensions or 

modifications will not be made during 

the automatic relief period and that 

FMCSA will take no action to extend or 

reinstate regulatory relief if needed. 

FMCSA disagrees with this assertion but 

considered it in revising the automatic 

regulatory relief for regional 

emergencies. FMCSA cannot account for 

costs in delayed restoration due to lack 

of available data supporting this claim 

and the dynamic nature of each 

emergency. 

B. Congressional Review Act 

This rule is not a major rule as 

defined under the Congressional Review 

Act (5 U.S.C. 801–808).’’ 9

C. Regulatory Flexibility Act (Small 

Entities) 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 10 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. 

This rule applies to motor carriers and 

drivers subject to the FMCSRs. 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 impacts a 

significant number of small entities, 

FMCSA examined the 2012 and 2017 

Economic Census data for two different 

North American Industry Classification 

System (NAICS) subsectors: Truck 

Transportation (subsector 484) and 

Transit and Ground Transportation 

(subsector 485). 

As shown in the table below, the SBA 

size standards for the national 

industries under the Truck 

Transportation and Transit and Ground 

Transportation subsectors range from 

$19.0 million to $43.0 million in 

revenue per year. 

To determine the percentage of firms 

that have revenue at or below SBA’s 

thresholds within each of the NAICS 

national industries, FMCSA examined 

data from the 2017 Economic Census.11

In instances where 2017 data were 

suppressed, the Agency imputed 2017 

levels using data from the 2012 

Economic Census.12 Boundaries for the 

revenue categories used in the 

Economic Census do not exactly 

coincide with the SBA thresholds. 

Instead, the SBA threshold generally 

falls between two different revenue 

categories. However, FMCSA was able 

to make reasonable estimates as to the 

percentage of small entities within each 

NAICS code. 

The percentages of small entities with 

annual revenue less than the SBA’s 

threshold ranged from 96.3 percent to 

100 percent. Specifically, approximately 

96.3 percent of Specialized Freight 

(except Used Goods) Trucking, Long 

Distance (484230) firms had annual 

revenue less than the SBA’s revenue 

threshold of $34 million and would be 

considered small entities. FMCSA 

estimates 100 percent of firms in the 

Mixed Mode Transit Systems (485111) 

national industry had annual revenue 

less than $29 million and would be 

considered small entities. The table 

below shows the complete estimates of 

the number of small entities within the 

national industries that may be affected 

by this rule. 


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70906 Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 

ESTIMATES OF NUMBER OF SMALL ENTITIES

NAICS code Description 

SBA size 

standard 

in millions 

Total number 

of firms 

Number of 

small 

entities 

Percent of 

all firms 

484110 .......... General Freight Trucking, Local ........................................... $34.0 22,066 21,950 99.5 

484121 .......... General Freight Trucking, Long Distance, Truckload .......... 34.0 23,557 23,045 97.8 

484122 .......... General Freight Trucking, Long Distance, Less Than 

Truckload.

43.0 3,138 3,050 97.2 

484210 .......... Used Household and Office Goods Moving ......................... 34.0 6,097 6,041 99.1 

484220 .......... Specialized Freight (except Used Goods) Trucking, Local .. 34.0 22,797 22,631 99.3 

484230 .......... Specialized Freight (except Used Goods) Trucking, Long 

Distance.

34.0 7,310 7,042 96.3 

485111 .......... Mixed Mode Transit Systems ............................................... 29.0 25 25 100.0 

485113 .......... Bus and Other Motor Vehicle Transit Systems .................... 32.5 318 308 96.9 

485210 .......... Interurban and Rural Bus Transportation ............................. 32.0 309 302 97.7 

485320 .......... Limousine Service ................................................................ 19.0 3,706 3,694 99.7 

485410 .......... School and Employee Bus Transportation ........................... 30.0 2,279 2,226 97.7 

485510 .......... Charter Bus Industry ............................................................ 19.0 1,031 1,013 98.3 

485991 .......... Special Needs Transportation .............................................. 19.0 2,592 2,567 99.1 

485999 .......... All Other Transit and Ground Passenger Transportation .... 19.0 1,071 1,059 98.9 

Therefore, FMCSA has determined 

that this rule would apply to 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 regulatory 

relief that applies 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 this action 

will not have a significant economic 

impact on a substantial number of small 

entities. 

D. Assistance for Small Entities 

In accordance with section 213(a) of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121, 110 Stat. 857), FMCSA 

wants to assist small entities in 

understanding this final rule so they can 

better evaluate its effects on themselves 

and participate in the rulemaking 

initiative. If the final rule will 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. 

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 

https://www.sba.gov/about-sba/ 

oversight-advocacy/office-nationalombudsman) 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. 

E. 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 

$192 million (which is the value 

equivalent of $100 million in 1995, 

adjusted for inflation to 2022 levels) or 

more in any 1 year. Though this final 

rule 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. 

F. Paperwork Reduction Act 

This final rule 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. 

FMCSA received two comments on 

the proposed information collection 

requirements, which are discussed 

previously. The Agency makes no 

changes to the proposed requirements as 

a result of those comments. 

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: 2126–0077. 

Summary of the Information 

Collection: Section 390.25 of 49 CFR, as 

revised, allows FMCSA to add a 

reporting requirement to an extension of 

an emergency exemption, requiring 

motor carriers operating under the 

extensions terms to report their 

continued use of and reliance on the 

exemption. It also requires 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 

datapoint to help determine whether to 

extend 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. 

Frequency of Response: Monthly. 

Burden of Response: 15 minutes per 

response. 


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13Public Law 108–447, 118 Stat. 2809, 3268, note 

following 5 U.S.C. 552a (Dec. 4, 2014). 

14Public Law 107–347, sec. 208, 116 Stat. 2899, 

2921 (Dec. 17, 2002). 

Estimate of Total Annual Burden: The 

public burden for this information 

collection is estimated to average 1,431 

hours per year. 

As required by the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)), FMCSA will submit a copy of 

this final rule to OMB for review. OMB 

has not yet completed its review of this 

collection. If OMB does not complete its 

review prior to the effective date set for 

this final rule, FMCSA will publish a 

final rule delaying the effective date for 

§ 390.25. 

G. 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 

will 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. 

H. Privacy 

The Consolidated Appropriations Act, 

2005,13 requires the Agency to assess 

the privacy impact of a regulation that 

will affect the privacy of individuals. 

This rule would not require the 

collection of personally identifiable 

information. 

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 2002,14

requires Federal agencies to conduct a 

PIA for new or substantially changed 

technology that collects, maintains, or 

disseminates information in an 

identifiable form. No new or 

substantially changed technology will 

collect, maintain, or disseminate 

information as a result of this 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 

rulemaking might have on collecting, 

storing, and sharing personally 

identifiable information. The DOT 

Privacy Office has determined that this 

rulemaking does not create privacy risk. 

I. 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 

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. 

J. National Environmental Policy Act of 

1969 

FMCSA analyzed this rule pursuant to 

the National Environmental Policy Act 

of 1969 (NEPA) (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. This rule is 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 amends 49 CFR part 

390 as follows: 

PART 390—FEDERAL MOTOR 

CARRIER SAFETY REGULATIONS: 

GENERAL 

■ 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. 

■ 2. Amend § 390.5 as follows: 

■ a. Lift the suspension of the section; 

■ b. Revise the definitions of ‘‘Direct 

assistance’’ and ‘‘Emergency’’; 

■ c. Remove the definition of 

‘‘Emergency relief’’; 

■ d. Add in alphabetical order a 

definition for ‘‘Residential heating fuel’’; 

and 

■ e. Suspend the section indefinitely. 

The revisions and addition read as 

follows: 

§ 390.5 Definitions. 

* * * * * 

Direct assistance means 

transportation operations in which a 

motor carrier or driver of a 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, winddriven 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 

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 arising from economic conditions 

that are caused by market forces, 

including shortage of raw materials (e.g., 

driver shortages, computer chip 

shortages, other supply chain issues) or 

labor strikes, unless such event causes 

an immediate threat to human life and 

results in a declaration of an emergency 


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70908 Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 

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). 

* * * * * 

■ 3. Amend § 390.5T as follows: 

■ a. Revise the definitions of ‘‘Direct 

assistance’’ and ‘‘Emergency’’; 

■ b. Remove the definition of 

‘‘Emergency relief’’; and 

■ c. Add in alphabetical order a 

definition for ‘‘Residential heating fuel’’. 

The revisions and addition read as 

follows: 

§ 390.5T Definitions. 

* * * * * 

Direct assistance means 

transportation operations in which a 

motor carrier or driver of a commercial 

motor vehicle 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, winddriven 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 

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 arising from economic conditions 

that are caused by market forces, 

including shortage of raw materials (e.g., 

driver shortages, computer chip 

shortages, other supply chain issues) or 

labor strikes, 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). 

* * * * * 

■ 4. Revise § 390.23 to read as follows: 

§ 390.23 Automatic relief from regulations. 

(a) Presidential declaration of 

emergency. Parts 390 through 399 of this 

chapter, or any section thereof, 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 during an 

emergency declared by the President of 

the United States pursuant to 42 U.S.C. 

5191(b) during the emergency period or 

30 days from the date of the initial 

declaration of the emergency, whichever 

is less. 

(b) Regional declarations of 

emergency. Except as provided in 

paragraph (b)(1) of this section, §§ 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 

14 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, or 

any section thereof, 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. 


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Federal Register / Vol. 88, No. 197 / Friday, October 13, 2023 / Rules and Regulations 70909 

(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 §§ 395.3(a) and 

(c) and 395.5(a) of this chapter. 

■ 5. Revise § 390.25 to read as follows: 

§ 390.25 Extension or Modification of relief 

from regulations—emergencies. 

(a) FMCSA may extend the period of 

the regulatory relief or modify the scope 

of emergency relief contained in 

§ 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, 

FMCSAdeclaration@dot.gov, 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. 

Issued under authority delegated in 

49 CFR 1.87. 

Robin Hutcheson, 

Administrator. 

[FR Doc. 2023–22538 Filed 10–12–23; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 231006–0241] 

RIN 0648–BM61 

Fisheries of the Northeastern United 

States; Temporary Measures To 

Reduce 2023 Atlantic Mackerel Catch 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; interim 

measures; request for comments. 

SUMMARY: This temporary rule 

implements interim measures to reduce 

Atlantic mackerel catch for the 

remainder of the 2023 fishing year and 

the beginning of the 2024 fishing year to 

reduce the likelihood of overfishing 

based on new assessment information 

regarding the status of the Atlantic 

mackerel stock. This action is intended 

to reduce potential Atlantic mackerel 

overfishing through the end of 2023 and 

the beginning of 2024 while the 2024 

specifications are developed. We will be 

collecting comments on the changes in 

per-trip catch limits to help inform 

future decisions on this topic. 

DATES: Effective October 12, 2023, 

through April 10, 2024. Comments must 

be received by November 13, 2023. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2023–0119 by the following 

method: 

Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2023–0119 in the Search 

box. Click on the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

Instructions: Comments sent by 

another method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are part of the public record 

and will generally be posted for public 

viewing on https://www.regulation.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). 

The supporting documents for the 

action, are available upon request from 

Dr. Christopher M. Moore, Executive 

Director, Mid-Atlantic Fishery 

Management Council, Suite 201, 800 N 

State Street, Dover, DE 19901. These 

documents are also accessible via the 

internet at https://www.mafmc.org. 

FOR FURTHER INFORMATION CONTACT: 

Carly Bari, Fishery Policy Analyst, (978) 

281–9150. 

SUPPLEMENTARY INFORMATION: 

Background 

The Mid-Atlantic Fishery 

Management Council manages the 

Atlantic mackerel fishery under the 

Mackerel, Squid, and Butterfish (MSB) 

Fishery Management Plan (FMP). 

Section 305(c) of the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act) allows the 

Secretary to implement interim 

measures to reduce or address 

overfishing. In situations such as this, in 

which the stock assessment has been 

delayed, section 305(c) allows the 

Council to request the Secretary to 

implement interim measures to address 

overfishing, until these measures can be 

replaced by the 2024 Atlantic mackerel 

specifications. As further described 

below, NMFS implements this action to 

reduce the Atlantic mackerel catch for 

the remainder of 2023 and the beginning 

of 2024 by reducing mackerel 

possession limits. 

At its July 2023 meeting, the Council’s 

Scientific and Statistical Committee 

(SSC) reviewed the preliminary updated 

Atlantic mackerel stock assessment. 

This stock assessment is considered 

preliminary until it can be peer 

reviewed and then the SSC can make 

allowable biological catch (ABC) 

recommendations for 2024 and 2025. 

The preliminary assessment results 

showed that the stock is no longer 

experiencing overfishing, but also 

showed additional concerns in the 

rebuilding progress of the stock. 

Although the change in stock status to 

no longer experiencing overfishing 

seems to be a positive development, it 

follows significant reductions in catch 

associated with limits NMFS 

implemented in 2022 and 2023. 

Subsequent projections from the 

assessment show additional concerns in 

the rebuilding progress of the stock, 

warranting additional action to prevent 

the stock from once again being subject 

to overfishing. 

The preliminary management track 

assessment showed an unexpected 

failure of the Atlantic mackerel stock to 

rebuild, and updated projections suggest 

Atlantic mackerel overfishing will occur 

in 2023 if the full Atlantic mackerel 

quota is landed. Based on this 

information, at its August 2023 meeting, 

the Council requested that NMFS take 

emergency action to limit the directed 

Atlantic mackerel fishery for the 

remainder of the 2023 and until the 

more conservative 2024 Atlantic 

mackerel specifications are 

implemented. 

Interim Atlantic Mackerel Measures 

Based on the recommendations of the 

SSC and the request by the Council, this 

action implements incidental Atlantic 

mackerel catch limits including 20,000 

pounds (lb) (9.08 metric tons (mt)) for 

all limited access permits and 5,000 lb 

(2.27 mt) for all open access permits. 

This is a reduction from the current 

catch limits of unlimited possession for 


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