DOT Compliance and Transportation Safety

UPDATE #4: DOT suspends safety rules for COVID-19 relief efforts

By: Daren Hansen

Publication: Transportation Regulatory Alert

Date Posted: Mar 19, 2020

NOTE: The following article was updated on March 26, 2020, to add more FAQs from the FMCSA concerning the emergency exemption.

The FMCSA has issued an expanded emergency declaration that exempts certain motor carriers and drivers from most safety regulations when assisting with relief efforts related to the coronavirus (COVID-19) outbreak.

Under the declaration, motor carriers and drivers providing “direct assistance” anywhere in the United States are not required to comply with Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSRs). This includes rules for hours of service and driver qualification, among others.

This marks the first time the FMCSA has ever issued a nationwide emergency exemption, made possible by the Trump Administration’s declaration on Friday of a national emergency. The list of products and services eligible for the exemption was expanded on Wednesday, March 18, and a list of FAQs were added on Friday, March 20.

Who qualifies?

The exemption applies only to carriers and drivers who are performing transportation or other relief services related to the immediate restoration of essential services or supplies. This includes transportation to meet immediate needs for the following (items in bold were added or expanded since the original notice):

• 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 essential items;
• Fuel;
• Equipment, supplies, and people necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID- 19;
• People designated by federal, state, or local authorities for medical, isolation, or quarantine purposes; and
• People necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Because the emergency is nationwide, drivers may cross state lines and still claim the exemption.

Drivers are NOT considered to be providing direct assistance if they:

• Engage in routine commercial deliveries; or
• Transport mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of the emergency.

Once a driver or vehicle is used to transport cargo or provide services that are not in support of emergency relief efforts or is dispatched to another location to begin operations in commerce, the exemption no longer applies. However, a driver who provides direct assistance may travel back to his or her terminal with an empty vehicle and still claim the exemption for that return trip.

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Hours-of-service provision

Eligible drivers are exempt from the hours-of-service rules while providing direct assistance, including the need to comply with any driving limits, rest requirements, or logging rules. Driving while ill or fatigued is never advised, however, and getting into compliance after the emergency-relief work is done could be a little tricky to manage.

First, immediate needs must be met. When direct assistance ends, if a driver says he or she is fatigued and needs rest before returning to the normal work-reporting location, the driver must be given at least 10 consecutive hours off duty.

After a driver has returned to his or her normal work-reporting location and is no longer providing direct assistance, the driver must have at least 10 hours off duty if operating a property-carrying vehicle or 8 hours off duty if operating a passenger-carrying vehicle.

Under normal conditions, drivers and/or their employers are supposed to track the hours worked during an emergency and use those hours to determine compliance with the 60- or 70-hour rule. However, the FMCSA has indicated that that is not necessary during the COVID-19 emergency. Instead, the agency says drivers who get 10 hours off duty after doing exempt emergency work can restart their 60/70-hour limit at zero. As a best practice, however, getting 34 hours off may be the best and safest solution. Good records of the emergency-related work must be kept in case it becomes an issue during an audit (up to six months later).

Drivers using electronic logging devices (ELDs) can use the “personal use” setting on their ELD to track their time, though they should annotate the record to indicate that the time was spent providing emergency relief. Using “personal use” requires drivers to log in to their ELDs, avoiding the creation of unassigned driving records that would need to be managed later.

Compliance with some regulations still required

Drivers and motor carriers operating under the exemption must continue to comply with certain safety rules, including those for:

• Commercial drivers’ licenses,
• Drug and alcohol testing,
• Financial responsibility (insurance),
• Hazardous materials, and
• Size and weight requirements.

Motor carriers and drivers currently under an out-of-service order are not eligible to use the exemption.

Exemption ends in April

The exemption will be in place until 11:59 p.m. Eastern Time on April 12, 2020, or until the Trump Administration announces an end to the emergency, whichever happens first.

Frequently Asked Questions

Are loads that include supplies related to direct assistance under the emergency declaration mixed with other, un-related materials covered under the declaration?

Generally, yes, however, mixed loads with only a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration are not covered.

Is a driver required to take a 30-minute break?

No, none of the hours of service regulations apply while the driver is engaged with providing direct assistance under the emergency relief exemption.

How do the hours a driver worked under the emergency exemption impact the 60/70-hour rule when the driver goes back to normal operations?

The hours worked providing direct assistance under the emergency relief exemption do not count toward the 60/70- hour rule.

Is a 34-hour restart required after providing direct assistance under the emergency declaration?

No, however, upon completion of the direct assistance and prior to returning to normal operations, the driver is required to meet the requirements of §§ 395.3(a) and (c) and 395.5(a), which include, for example, the requirement to take 10 hours off duty (8 hours for passenger carriers) and to comply with the on-duty limit of 60/70 hours in 7/8 days before returning to driving.

Is the driver required to use a paper logbook or ELD?

No, the emergency exemption includes relief from all the hours-of service regulations in 49 CFR part 395, including the recordkeeping requirements (i.e., records of duty status (RODS)).

If there is an ELD in the truck, what should a driver do to account for the miles driven?

There are three options

• Use the “authorized personal use” (personal conveyance) function of the ELD to record all of the time providing direct assistance under the exemption. Use of this function will result in the time being recorded as off duty and requires an annotation.
• Use the ELD in its normal mode and annotate the ELD record to indicate they were driving under the emergency relief exemption; or
• Turn off the ELD, in which case the carrier would address the unassigned miles in accordance with the current regulation.

What does a driver need to do if taking a backhaul not covered by the exemption after transporting an exempt load?

Upon completion of the direct assistance activities and prior to returning to normal operations, the driver is required to take 10 consecutive hours off duty before driving. All the time the driver spends engaged in work-related activities that are not associated with providing direct assistance must be counted under the HOS rules.

Are livestock a covered commodity under the terms of the emergency declaration?

Yes, Livestock are covered as a precursor to food. The emergency declaration covers “immediate precursor raw materials—such as paper, plastic or alcohol—that are required and to be used for the manufacture of items” including food needed for the emergency restocking of stores.

Are haulers of household waste and medical waste covered under the terms of the declaration?

Yes, transportation for removal of both household and medical waste is covered as “supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”

What documentation is needed to verify that the driver is operating under the exemption?

There is no specific documentation required for verification. Retention of ordinary business records, such as the bill of lading, may be useful later for the convenience of the motor carrier and driver, to document use of the exemption during a future inspection or enforcement action.

Does FMCSA have preemptive authority over states that decide/attempt to close highway rest stops?

No, however FMCSA is working closely with the States to ensure adequate truck parking and facilities are available.

Is wood pulp covered under the expanded emergency declaration?

Wood pulp is covered if it is being used as a precursor to one of the essential items listed in the exemption as follows: (1) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19; (2) 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 or (3) food, paper products and other groceries for emergency restocking of distribution centers or stores;

Are the raw materials used to manufacture bleach, disinfectants, hand sanitizers and similar items covered under the expanded emergency declaration?

Yes, these items and their precursors are covered as “supplies necessary for community safety, sanitation and community prevention of. . .COVID 19.”

Does the Declaration cover packaging for food -- for example, produce containers?

Yes, packaging is covered as a precursor necessary to the production and transportation of products covered under the emergency exemption.

Are feed and fertilizer covered under the emergency declaration?

Yes, both are covered as precursors to essential items.

Is pet food covered under the emergency declaration?

No, pet food is not covered.

The emergency declaration states that after completed work under the declaration and returning to normal operations, a commercial vehicle driver must take 10 hours off. What if there is nowhere at the location for the driver to park?

The driver may proceed to the nearest reasonable, safe location to obtain the required 10 hours of rest.

Is the time spent driving to pick up a truck regulated as on duty time?

No. Time spent travelling to work in a personal vehicle does not meet the definition of on duty time in 49 CFR 395.2.

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