Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 13, 2020, the Federal Motor Carrier and Safety Administration (FMCSA) of the United States Department of Transportation (DOT) announced and issued a national emergency declaration (Emergency Declaration) establishing a limited exemption from driver safety regulatory requirements set forth in 49 Code of Federal Regulations Parts 390-399. These regulations include the DOT Hours of Service (HOS) regulations, and the limited exemption applies “for motor carriers and drivers engaged in the transport of essential supplies, equipment and persons” that provide “direct assistance in support of relief efforts related to the COVID-19 outbreaks.” The Emergency Declaration is effective immediately and will remain in effect until the end of the emergency or until 11:59 p.m. (ET) on April 12, 2020, whichever comes sooner.
“Direct assistance” means 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, related to COVID-19 outbreaks during the emergency. These include transportation of the following:
- 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 for emergency restocking of stores;
- 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.
Significantly, “direct assistance” does not include routine commercial deliveries or transportation of mixed loads that include essential supplies, equipment and persons, along with supplies, equipment and persons that are not being transported in support of emergency relief efforts related to the COVID-19 outbreaks. In addition, direct assistance (and the exemption) terminate when a driver or commercial motor vehicle is used to transport cargo or provide services 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 in commerce. Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carrier and driver are again 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.
If drivers inform the motor carrier they need immediate rest, they must be permitted at least 10 consecutive hours off duty before they are required to return to the motor carrier's terminal or the their normal reporting location. Once the driver has returned to the terminal or other location, the driver must be relieved of all duties and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers. It may be helpful, in light of these “immediate rest” requirements, that DOT-regulated drivers be provided and directed to read the Emergency Declaration and to maintain the copy with them as well.
The Emergency Declaration does not include exemptions for any other DOT regulations, including any exemption from the controlled substances and alcohol use 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), or size and weight requirements.
Motor carriers or drivers currently subject to an out-of-service order are not eligible for the relief granted by this declaration. They are barred from operating until they have met the conditions set by the agency to resume service, and the FMCSA has in fact rescinded the out-of-service order.
It bears emphasis that the exemption from certain DOT driver safety regulations under the Emergency Declaration would not reach those drivers who are not governed by DOT driver safety regulations, including the HOS regulations. Consequently, if a driver does not operate a commercial motor vehicle in interstate commerce, the FMCSA Emergency Declaration exemption does not apply. For example, if a driver only drives in intrastate commerce, state motor vehicle laws, rules and regulations would apply unless the state acts to lift those requirements. We are unaware of any state declaration similar to the federal Emergency Declaration at this time.