April 27, 2020

FMCSA Extends Emergency Declaration to May 15 in Response to COVID-19, Direct Assistance Needs

Holland & Knight Transportation Blog
Linda Auerbach Allderdice | William P. Byrne | Michael T. Maroney | Jameson B. Rice
Transportation Blog

The Federal Motor Carrier Safety Administration (FMCSA) has expanded and extended its Emergency Declaration through May 15, 2020, or until the COVID-19 national emergency declaration from the president of the United States is revoked. The Emergency Declaration exempts motor carriers and drivers from federal regulations located at 49 CFR Parts 390-399 (which includes the hours of service requirements) when providing "direct assistance" in support of relief efforts related to COVID-19.

The Emergency Declaration was initially issued on March 13, 2020, and expanded on March 18, 2020. It was set to expire on April 15, 2020. Before it expired, on April 8, 2020, the Emergency Declaration was extended until May 15, 2020, and was revised. Under the updated Emergency Declaration, "direct assistance" now includes 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, 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 items in the first three bullets
  • fuel
  • liquefied gases to be used in refrigeration or cooling systems (included as of April 8, 2020)
  • 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
  • persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

However, "direct assistance does not include routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration," according to the declaration.

"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 the COVID-19 outbreaks or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce."

There are exclusions from the Emergency Declaration, which were also revised on April 8, 2020. Motor carriers and drivers may not operate if subject to an out-of-service order. Furthermore, other motor carrier regulations are not exempted, including drug and alcohol testing requirements, commercial driver's license requirements, insurance requirements, size and weight requirements, and hazardous material requirements. Drivers must still comply with state laws and regulations.

Rest remains important for safety, even while making emergency deliveries. Drivers are not permitted to drive when the "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." Drivers requesting immediate rest must be given at least 10 hours off duty. Even though the exempted regulations do not apply to "direct assistance" transportation, that does not mean that time spent driving under the exemption is the same as off-duty time. "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."

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

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