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Exemptions to Federal Motor Carrier Safety Regulations during COVID-19 Outbreak

| By Anderson H. Phillips
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In response to the COVID-19 pandemic, the Federal Motor Carrier Safety Administration (FMCSA) issued a nationwide emergency declaration on March 13, 2020 granting temporary relief to motor carriers and drivers “providing direct assistance in support of relief efforts related to COVID-19 outbreaks.” The declaration has since been expanded by the FMCSA and currently runs through May 15, 2020, or until the national emergency declared by President Trump is lifted.  Broadly speaking, any motor carrier or driver providing direct assistance to COVID-19 relief efforts is exempt from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSR), including hours of service requirements, during the time period in which they are engaged in direct assistance activities.

The current version of the emergency declaration can be found here.

What Qualifies as “Direct Assistance” to Relief Efforts?

The declaration defines “direct assistance” 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.” Specifically, the FMCSA’s expanded emergency declaration classifies as direct assistance “transportation to meet immediate needs” for the following:

  1. Medical supplies and equipment related to COVID-19 testing, diagnosis, and treatment.
  2. Supplies and equipment necessary to prevent community spread and transmission of COVID-19 such as masks, gloves, hand sanitizer, soap, and disinfectants.
  3. Food, paper products, and other groceries necessary for emergency restocking of distribution centers and stores.
  4. “Immediate precursor raw materials” – such as paper, plastic, or alcohol – used for the manufacture of items in categories (1), (2), or (3).
  5. Fuel.
  6. Liquefied gases to be used in refrigeration or cooling systems.
  7. Equipment, supplies, and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities.
  8. Persons designated by federal, state, or local authorities for medical, isolation, or quarantine purposes.
  9. Persons necessary to provide medical or emergency services, the supply of which may be affected by COVID-19.

Notably, per the emergency declaration, direct assistance does not include “routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief.”  The term “nominal quantity” is not defined in the declaration or anywhere in the FMCSR.  As a result, the precise amount of emergency relief materials required to meet the exemption threshold for mixed loads may ultimately be a subjective determination. In addition, whether “immediate precursor raw materials” are considered direct assistance will hinge on the intended use of the raw materials.  For example, paper used in the manufacture of toilet paper would qualify for the FMCSR exemption.  Conversely, paper used to print magazines and newspapers would not qualify.

Direct assistance ends, somewhat intuitively, when a driver or vehicle is used to “transport cargo or provide services that are not in support of emergency relief efforts.” Although motor carriers and drivers once again become subject to the strictures of Parts 390 through 399 upon resumption of non-direct assistance activities, it is important to note that a driver is permitted to “return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390 through 399.”

Emergency Declaration Restrictions and Limitations

The expanded emergency declaration also contains several exceptions to the general exemption from Parts 390 through 399. Even when providing direct assistance to COVID-19 relief efforts, motor carriers and drivers are not exempt from the following regulations and conditions:

  • 49 CFR § 392.2, including compliance with applicable speed limits and traffic laws.
  • 49 CFR § 392.3, related to circumstances where a driver’s ability or alertness is impaired through fatigue, illness, or any other cause.
  • Fatigued drivers needing immediate rest shall be given at least ten consecutive hours of rest before being required to return to service.
  • A driver involved in a crash must report any recordable crash within 24 hours.
  • Motor carriers or drivers subject to an out-of-service order are not eligible for the relief provided by the FMCSA’s emergency declaration.

For more information, the FMCSA website contains a helpful list of Frequently Asked Questions related to the COVID-19 emergency declaration. Part 1 may be accessed here, and Part 2 can be found here.

Beyond the emergency declaration itself, the FMCSA has also provided additional regulatory relief to motor carriers and drivers. For example, the FMCSA has announced a three-month waiver period for drivers with expiring commercial driver’s licenses and issued drug and alcohol testing guidelines specific to COVID-19.

As the pandemic progresses, the FMCSA will likely issue updated guidance (and potentially more regulatory relief) in response to changing circumstances.  For the latest information, visit https://www.fmcsa.dot.gov/COVID-19.

Anderson H. Phillips is a member of Young Moore’s Transportation and Logistics team and represents clients in trucking litigation, product liability, premises liability, and insurance defense cases. Contact Anderson at (919) 861-5034 or Anderson.Phillips@youngmoorelaw.com.

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