Motor carriers and drivers beware: FMCSA scales back COVID-19 immediate needs in latest update to Emergency Declaration No. 2020-20

In mid-March 2020, President Trump determined that the COVID-19 pandemic was of sufficient severity and magnitude so as to warrant a declaration of national emergency under 42 U.S.C. §5191(b).

Under 49 CFR §390.23(a)(1)(i)(A), if the President declares a national emergency, the Federal Motor Carrier Safety Administration (FMCSA) may provide emergency relief from its regulations at 49 CFR Parts 390 through 399 to motor carriers or drivers operating commercial motor vehicles if they are providing emergency relief while the national emergency is in effect. Parts 390 through 399 address the following FMCSA regulations (FMCSRs):

• Part 390 Federal Motor Carrier Safety Regulations; General
  
  
• Part 391 Qualifications of Drivers
  
  
• Part 392 Driving of Commercial Motor Vehicles
  
  
• Part 393 Parts and Accessories Necessary for Safe Operation
  
  
• Part 395 Hours of Service
  
  
• Part 396 Inspection, Repair, and Maintenance
  
  
• Part 397 Transportation of Hazardous Materials; Driving and Parking Rules
  
  
• Part 398 Transportation of Migrant Workers
  
  
• Part 399 Employee Safety and Health Standards

On March 13, 2020, in response to the President’s national emergency determination, the FMCSA issued its first relief from the FMCSRs in the form of an Emergency Declaration No. 2020-002 under 49 CFR §390.23. The FMCSA carefully laid out that motor carriers and drivers were eligible for relief from compliance with the above-referenced FMCSRs if they were “providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs.” The FMCSA provided a list of six immediate needs. See Table 1 at Column ED1. The FMCSA was clear to indicate that “direct assistance” did not include routine commercial deliveries or transportation of mixed loads that included essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts. The FMCSA also reminded drivers and motor carriers that “direct assistance” terminated 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.

By March 18, 2020, the list of immediate needs in support of the emergency relief efforts related to COVID-19 expanded to include transportation of additional paper products and groceries to grocery stores and distribution centers, raw materials necessary to produce the immediate needs listed in categories 1-3 below and fuel. See Table 1 at Column ED2. On April 8, 2020, FMCSA extended the Emergency Declaration to May 15 and added liquefied gases used in refrigeration or cooling systems to the list of immediate needs. See Table 1 at Column ED3. The Emergency Declaration was again extended on May 13, 2020, without the addition of any immediate needs. See Table 1 at Column ED4.

Earlier this week, the FMCSA extended and further modified its Expanded Emergency Declaration No. 2020-002 through July 14, 2020. Under this newly modified Emergency Declaration, motor carriers and drivers will be granted emergency relief from the above-referenced FMCSRs, except as set out below, if they are providing “direct assistance in support of emergency relief efforts related to COVID-19” and are transporting:

• livestock and livestock feed;
  
  
• medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19; and
  
  
• 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.

With this modification, the FMCSA has concluded that there is no longer a need for emergency relief regarding the “categories of supplies, equipment, and persons covered by the May 13 extension and expansion of Emergency Declaration No. 2020-002, and those categories are therefore no longer covered.” See Table 1 at Column ED4 for the eliminated immediate need categories 3-9. In other words, after June 15, 2020, motor carriers and drivers will not be exempt from the above-referenced FMCSRs for transporting food, raw materials, fuel, liquified gas, equipment and persons for COVID-19 isolation facilities and persons designated to provide medical services as set out in categories 3-9.

Motor carriers and drivers providing direct assistance to the national emergency are still not granted emergency relief from the following FMCSRs and conditions as set out in the June 8 Extension and Modification:

1. 49 CFR § 392.2 - operation of CMV in accordance with State laws/regulations, including compliance with applicable speed limits/other traffic restrictions.
   
   
2. 49 CFR § 392.3 - operation of CMV 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.
   
   
3. Motor carriers shall not require or allow fatigued drivers to operate a commercial motor vehicle. 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.
   
   
4. 49 CFR §§ 392.80 and 392.82 - related to the prohibitions on texting while driving and using a hand-held mobile telephone while driving.
   
   
5. 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.
   
   
6. Nothing in this Emergency Declaration shall be construed as an exemption from the controlled substance and alcohol uses and testing requirement (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.
   
   
7. Motor carriers or drivers currently subject to an out-of-service order are not eligible for the relief granted by this Emergency Declaration until they have met the applicable conditions for its rescission and the order has been rescinded by FMCSA in writing.
   
   
8. 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 COVID-19 or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. (49 CFR § 390.23(b)). Upon termination of direct assistance to emergency relief efforts related to COVID-19, the motor carrier and driver are subject to the requirements of 49 CFR Parts 390 through 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 through 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.

Please let us know if you have any questions regarding the implementation of the Emergency Declaration or any other FMCSRs.

Sean McGowan and Tony Anderson are members of Thompson Coburn’s Transportation practice group.

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