Transportation Law Update: FMCSA Rescinds Emergency Relief for Previously Covered Categories

06.25.2020

The Federal Motor Carrier Safety Administration has recently modified the emergency relief Declaration and extended it through July 14, 2020. The Declaration is accessible here. Under the new Declaration many categories of items that qualified for exemptions from 49 CFR Parts 390 through 399 have been removed.

EXEMPTIONS FOR DIRECT ASSISTANCE TO THE NATIONAL EMERGENCY

Motor carriers and drivers are exempted from 49 CFR Parts 390 through 399 if they are providing direct relief to the COVID-19 emergency with goods specified by the FMSCA. However, even carriers and drivers that are exempted by the emergency declaration are not granted emergency relief from the following rules or regulations:

1. 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.

2. 49 CFR § 392.3 related to the 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 the driver 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 the driver 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 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.

CATEGORIES THAT STILL QUALIFY FOR EMERGENCY RELIEF

The extension of the Emergency Declaration No. 2020-002, provides an exemption to 49 CFR Parts 390-99, except as restricted above, for transportation of 1) livestock and livestock feed; 2) medical supplies and equipment related to the testing, diagnosis, and treatment of COVID-19; and 3) supplies and equipment necessary for community safety, sanitation, and transmission prevention such as masks, gloves, hand sanitizer, soap, and disinfectants.

Routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of the emergency declaration do not qualify as direct assistance.

CATEGORIES THAT NO LONGER QUALIFY FOR EMERGENCY RELIEF

Previous FMSCA modifications have included a number of qualifying categories for direct assistance that no longer qualify for exemptions. The new modification has removed the following categories from qualifying for regulatory relief: 1) food, paper products, and other groceries for emergency restocking of distribution centers and stores; 2) immediate precursor materials for the manufacture of COVID-19 medical supplies, community safety items, and grocery items; 3) fuel; 4) liquefied gases to be used in refrigeration and cooling systems; 5) equipment, supplies, and persons necessary to build and manage quarantine and isolation facilities for COVID-19; 6) persons designated by authorities for medical, quarantine, or isolation purposes; and 7) persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

FOR MORE INFORMATION

Contact John F. Fatino about trucking and transportation matters at (515) 288-6041 or email. Trevor A. Jordison, J.D. Candidate, Drake University Law School assisted in the preparation of these materials.

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