Trucks move roughly 71.4% of the nation’s freight by weight. According to the U.S. Department of Transportation, as of May 2019, the number of for-hire carriers on file with the Federal Motor Carrier Safety Administration (FMCSA) totaled 892,078, private carriers totaled 772,011, and other interstate motor carriers totaled 84,930. Suffice it to say that without the commercial trucking industry, much of the country’s population would have a difficult time obtaining everything from produce at their local supermarket to packages they ordered online. The trucking industry is vital to the economy of the United States and to its inhabitants. Even more, due to the current COVID-19 pandemic, and as the vast majority of United States of America is currently quarantined and sheltering in place, the continuous operation and fluidity of the trucking industry is vital.
In response to the pandemic, the FMCSA has issued a national emergency declaration for commercial motor vehicles delivering relief during the coronavirus outbreak. Its initial Emergency Declaration (No. 2020-002) was issued on March 13, 2020 and expanded again on March 18, 2020. It was most recently extended and expanded on April 8, 2020. The Emergency Declaration extends all exemptions through May 15, 2020 and further expands the relief provided to cover liquefied gasses to be used in refrigeration or cooling systems. By execution of the extension of Emergency Declaration No. 2020-002, motor carriers and drivers providing “direct assistance in support of relief efforts related to the COVID-19 outbreak” are granted emergency relief from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSRs), except as specifically restricted by the Emergency Declaration. So what is “direct assistance”, you may ask? Direct assistance is defined as transportation and other relief services provided by a motor carrier or its driver(s) incident to the immediate restoration of essential services (such as medical care) or essential supplies (such as food and fuel) related to COVID-19 outbreaks during the emergency. More specific items that fall within the definition are explained within the Declaration, noted below.
The extension of Emergency Declaration No. 2020-002 provides regulatory relief for commercial motor vehicle operations providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:
- medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;
- supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19 such as masks, gloves, hand sanitizer, soap and disinfectants;
- food, paper products and other groceries for emergency restocking of distribution centers or stores;
- immediate precursor raw materials — such as paper, plastic or alcohol — that are required and to be used for the manufacture of items in categories (1), (2) or (3);
- liquefied gases to be used in refrigeration or cooling systems;
- equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
- persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and
- persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.
Direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration. Of note, the term “nominal” is not defined within the regulations or exemptions. However, we suspect that the authorities will not issue many warnings or citations relating to this mixed load provision unless it is clear that the motor carrier or driver is attempting to take advantage of the exemption by hauling a majority of non-qualifying direct assistance goods and only de minimis direct assistance goods. Additionally, since this pandemic has been declared a National Emergency, drivers may cross state lines and still claim the exemption. Of note, this marks the first time the FMCSA has ever issued a nationwide emergency exemption, made possible by the President’s declaration of a National Emergency.
As the exemption only applies to carriers and drivers who are performing transportation or other relief services related to the immediate restoration of essential services or supplies, the items that fit within this exemption are important to know. Pursuant to the regulations and guidance provided by the FMCSA, some specific items that will likely be included under the definition of direct assistance include livestock (which would be covered as a precursor to food), household waste and medical waste (which would be covered as “supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19), wood pulp (if it was being used as a precursor to one of the essential items related to medical supplies and equipment, supplies and equipment necessary for community safety, sanitation and prevention of community transmission of COVID-19 or food), and paper products and other groceries for emergency restocking of distribution centers or stores. Even items such as feed and fertilizer, packaging for food and raw materials used to manufacture bleach, disinfectants, hand sanitizers, and similar items would be covered under the definition of “direct assistance.” One example that the FMCSA included in its guidance that would not be covered would be pet food.
49 CFR Parts 390-399 are very expansive and, therefore, this article will focus on some of the more notable and commonly dealt with exceptions to the Emergency Declaration, as well as those regulations which continue unchanged by the Emergency Declaration. For reference, Part 390 relates to general Federal Motor Carrier Safety Regulations; Part 391 relates to qualifications of drivers and longer combination vehicle (LCV) driver instructors; Part 392 relates to driving of commercial motor vehicles; Part 393 relates to parts and accessories necessary for safe operation; Part 395 relates to hours of service of drivers; Part 396 relates to inspection, repair, and maintenance; Part 397 relates to transportation of hazardous materials, as well as driving and parking rules; Part 398 relates to transportation of migrant workers; and Part 399 relates to employee safety and health standards.
The notable restrictions and limitations to the Emergency Declaration and which are not affected or altered, even when motor carriers or drivers are providing direct assistance to the National Emergency are as follows:
- 49 CFR § 392.2 related to the operation of a commercial motor vehicle in accordance with State laws and regulations, including compliance with applicable speed limits and other traffic restrictions.
- 49 CFR § 392.3 related to operation of a commercial motor vehicle while a driver’s ability or alertness is so impaired, or so likely to become impaired through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the motor vehicle.
[Accordingly, while the maximum driving time for property/carrying vehicles (49 CFR § 395.3) and the maximum driving time for passenger-carrying vehicle (49 CFR § 395.5) have been suspended when motor carriers and drivers are providing direct assistance to the National Emergency, thus permitting the motor carriers and drivers to operate a commercial vehicle for longer than eleven and ten hours, respectively, without the required ten or eight consecutive hours off duty, respectively.]
- A driver who informs a carrier that he/she needs immediate rest shall be given at least ten consecutive hours before the driver is required to return to service.
- A motor carrier whose driver is involved in a crash while operating under this Emergency Declaration must report any recordable crash within 24 hours, by phone or in writing, to the FMCSA Division Office where the motor carrier is domiciled. The carrier must report the date, time, location, driver, vehicle identification, and brief description of the crash.
- Nothing in this Emergency Declaration shall be construed as an exemption from the controlled substance and alcohol uses and testing requirements (49 CFR Part 382), the commercial driver’s license requirements (49 CFR Part 383), the financial responsibility (insurance) requirements (49 CFR Part 387), the hazardous material regulations (49 CFR Parts 100-180), applicable size and weight requirements, or any other portion of the Regulations not specifically exempted under 49 CFR § 390.23.
[This exception is very important as, specifically, regulations related to controlled substance and alcohol uses and testing requirements are not specifically exempted since they are not included in Parts 390-399. However, the FMCSA understands that there may be some limitations to administering alcohol and controlled substances tests at the present time due to the COVID-19 pandemic and the potential inability to obtain immediate testing at the present time. While pre-employment testing is required and the FMCSA, in accordance with 49 CFR § 382.301(a), will not permit or allow a perspective employee to perform DOT safety-sensitive functions until that individual receives a negative pre-employment test result unless the limited exception in 49 CFR § 382.301(b) applies, and a motor carrier must not allow a driver to perform any safety-sensitive functions until the return-to-duty test is conducted and there is a negative result, the FMCSA is providing some leniency with respect to other aspects of those regulations.]
[Specifically, with respect to required random controlled substance and alcohol testing, the FMCSA has indicated that if, due to disruptions caused by the COVID-19 national emergency, a motor carrier is unable to perform random selections and tests sufficient to meet the random testing rate for a given testing period in order to achieve the required 50% rate for drug testing and 10% rate for alcohol testing, the motor carrier should make up the tests by the end of the year. The motor carrier should document in writing the specific reasons why it was unable to conduct tests on drivers randomly selected and any actions taken to locate an alternative collection site or other testing resources.]
[Similarly, with respect to post-accident testing, if a driver is unable to obtain an alcohol test within 8 hours following an accident, or a controlled substance test within 32 hours following the accident, due to disruptions caused by the COVID-19 national emergency, the carrier must document in writing the specific reason why the test could not be conducted during that time period. The suggestion would be to make all attempts to obtain a post-accident controlled substance and alcohol test, if required to do so, within the required time/periods above; however, if a driver is unable to obtain such testing due to the lack of available and open test sites due to the COVID-19 pandemic or inability to have the test occur at a hospital due to the COVID-19 pandemic, the driver or motor carrier should record the attempts he/she made to obtain the required controlled substance and alcohol testing and reasons it could not be achieved within the permitted time.]
- Motor carriers or drivers currently subject to an out-of-service order are not eligible for the relief granted by this declaration until they have met the applicable conditions for its rescission and the order has been rescinded by FMCSA in writing.
- Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services that are not in support of emergency relief efforts related to the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations and commerce (49 CFR § 390.23(b)). Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreak, the motor carrier and driver are subject to the requirements of 49 CFR Parts 390-399, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390-399. When a driver is moving from emergency relief efforts to normal operations, a 10-hour break is required when the total time a driver operates conducting emergency relief efforts, or a combination of emergency relief and normal operations equals 14 hours.
Additionally, on March 28, 2020, the FMCSA, in response to the COVID-19 Emergency granted a three-month waiver for States and (Commercial Lerner’s Permit) CLP holders operating commercial motor vehicles. The waiver covers States and CLP holders for the period beginning at 12:01 a.m. (ET) on March 28, 2020, and continuing through 11:59 p.m. on June 30, 2020, or the revocation of the President’s declaration of national emergency under 42 U.S.C. § 5191(b) related to Coronavirus Disease 2019 (COVID-19), whichever is sooner. This grant of waiver waives the requirement that a CLP holder be accompanied by a CDL holder, with the proper CDL class and endorsements, seated in the front seat of the vehicle while the CLP holder operates a CMV on public roads or highways. Accordingly, under the terms, conditions, and restrictions of this waiver, a CLP holder may operate a CMV on public roads or highways without an accompanying CDL holder present in the front seat of the vehicle, provided that the CDL holder is elsewhere in the cab, the CLP holder is in possession of evidence from the testing jurisdiction including an authorized third-party tester, that the CLP holder has passed the CDL driving skills test, and, unless the FMCSA waiver issued on March 24, 2020 applies, that the CLP holder has a valid non-CDL driver’s license, CLP, and medical certificate. It also waives the restriction that limits a State to administering a driving skills test, in accordance with subparts F, G, and H of 49 CFR Part 383, to an out-of-state CDL applicant who has taken driver training in that State. Under the terms, conditions and restrictions of this waiver, a State may elect to administer a driving skills test to any out-of-state CDL applicant, regardless of where the applicant received driver training.
The basis for this waiver includes the public need for immediate transportation of essential supplies, equipment, and persons, which requires an adequate and sustained supply of drivers eligible to operate a commercial motor vehicle and as many States are experiencing greater-than-normal employee absences or have closed offices of their State Driver Licensing Agencies in response to the COVID-19 pandemic and, as such, are unable to process and issue a Commercial Driver’s License credential to eligible CLP holders who have passed the driving skills test. Since a CDL driver is still required to be somewhere within the CMV, albeit not the passenger’s seat, the FMCSA did not believe there was any concern to the public’s safety with this waiver and it would permit for additional drivers who have met the vast majority of requirements to obtain a CDL but who have yet to receive the actual CDL to transport much-needed supplies throughout the country. Additionally, the waiver would not apply to a CLP holder who would be prohibited from performing safety-sensitive functions, who does not have a valid Medical Examiner’s Certificate, unless the waiver issued on March 24, 2020 applies and the driver is in compliance with the terms, conditions, and restrictions of the March 24 waiver, and also does not apply to any CMV operations requiring a double/triple trailer endorsement, a passenger endorsement, a tank vehicle endorsement, a hazardous materials endorsement, a school bus or a combination of tank vehicle and hazardous materials endorsement.
Additionally, as the hours of service regulations are implicated within the exemptions related to hauling loads providing “direct assistance” under the Emergency Declaration, the 30-minute break typically required is no longer required during the National Emergency, nor are any of the hours of service regulations applicable while the driver is engaged with providing direct assistance under the emergency relief exemption. Moreover, the hours worked while providing direct assistance would not count toward the 60/70-hour rule and the 34-hour restart provision would not be required after providing direct assistance under the emergency declarations. However, upon completion of the direct assistance and prior to returning to “normal operations,” a driver would be required to meet the requirements of 49 CFR §§ 395.3(a) and (c) and 395.5(a), which include, for example, the requirement to take 10 hours off duty (or 8 hours off duty for passenger carriers) and to comply with the on-duty limit of 60/70 hours and seven/eight days before returning to driving. Additionally, since any of the regulations contained within Parts 390-399 are exempted when providing direct assistance, with the exception of the limited regulations listed as exceptions and stated above, even requirements of maintaining a paper log book or Electronic Logging Device (ELD) have been waived during this period of a National Emergency. Guidance provided by the FMCSA would permit a driver to turn off an ELD, or use it in its normal mode and annotate the ELD record to indicate that the driver was driving under the emergency relief exemptions.
These certainly are unprecedented times and, thus, have called for unprecedented measures within the commercial trucking industry. It is important for commercial drivers and motor carriers to be aware of these exemptions so that much-needed goods and supplies can be transported to meet the needs of all those individuals fighting this pandemic and in need of essential supplies and items, without the fear of being issued a citation or violation by the state police or federal government. The attorneys of Burns White’s Transportation and Trucking Group remain committed to providing experienced representation and defense of commercial motor carriers, their drivers and insurers, especially during this unprecedented time.
If you have any questions regarding the exemptions to the FMCSRs discussed herein, need assistance with clarification, or require assistance with defending a violation/citation issued to a motor carrier or driver, please feel free to contact Attorney David Chludzinski at (412) 995-3214 or at [email protected], or any of the other members of the Burns White Transportation and Trucking Group.