In an unprecedented action, both the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) and the Public Utilities Commission of Ohio (“PUCO”) provided hours of service regulatory relief to commercial motor carriers engaged in the transportation of goods vital to relief efforts during the COVID-19 pandemic.
On March 18, 2020, FMCSA issued Emergency Declaration No. 2020-002 (“Declaration”), which creates a limited exemption from Parts 390-399 of the FMCSA Regulations (“Regulations”) for interstate commerce. The Declaration remains in effect until termination of the emergency or 11:59 PM EST on April 12, 2020, whichever occurs sooner.
The Declaration temporarily suspends all hours of service guidelines under the Regulations applicable to drivers engaged in providing direct assistance in support of relief efforts related to the pandemic. ”Direct assistance” is defined 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, related to COVID-19 outbreaks during the emergency.” Examples of “direct assistance” as applied by the FMCSA refer to commercial motor vehicle operations needed for:
- Medical supplies and equipment related to the testing, diagnosis, and treatment of COVID-19;
- Supplies and equipment, including masks, gloves, hand sanitizer, soap and disinfectants, necessary for healthcare worker, patient and community safety, sanitation, and prevention of COVID-19 spread in communities;
- Food, paper products and other groceries for emergency restocking of distribution centers and stores;
- Immediate precursor raw materials, such as paper, plastic or alcohol, that are required and to be used for the manufacture of essential items;
- Equipment, supplies, and persons necessary for the establishment and management of temporary housing and quarantine facilities related to COVID-19;
- Persons designated by federal, state, or local authorities for transport for medical, isolation, or quarantine purposes; and
- Personnel to provide medical or other emergency services.
The FMCSA has separately stated that “direct assistance” does not apply to routine commercial deliveries or transportation of mixed loads. Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, the motor carriers and drivers are again subject to the Regulations, except that a driver may return the empty commercial vehicle without complying with the Regulations.
Despite a sweeping exemption from Parts 390-399 of the Regulations, the Declaration contains many exceptions to the exemption, such as (a) qualification of drivers; (b) drug and alcohol use; (c) insurance requirements; (d) hazardous material regulations, and (e) size and weight requirements. The focus of the Declaration is lifting the hours of service requirements. Even though the Declaration lifts restrictions on how long a driver can be behind the wheel, it provides protection for a driver who might be coerced by his or her employer to drive when tired. If a driver informs the motor carrier that he or she needs immediate rest, the driver must be permitted at least 10 consecutive hours off duty before the driver is required to return to the motor carrier’s terminal or the driver’s normal reporting location. Furthermore, to ensure continued ongoing safety on the nation’s roadways, the Declaration stipulates that once a driver has completed his or her delivery, the driver must receive a minimum of 10-hours off duty if transporting property, and 8-hours if transporting passengers.
Coinciding with the FMSCA Declaration, PUCO also issued a notice to aid in the COVID-19 relief effort (“Notice”), which grants regulatory relief from the hours of service requirements in Ohio Revised Code Section 4923.02 and Rule 4901:2-5-05(A)(3) of the Ohio Administrative Code for the intrastate transportation of fuel including gasoline, diesel, propane, and heating oil. The Notice is directed toward motor carriers providing intrastate transportation of relief supplies, including both consumer goods and medical supplies, as a part of the COVID-19 relief effort. The Notice remains in effect until 11:59 PM EST on March 27, 2020 (which most likely will be extended). In order to comply with the Notice, all drivers taking advantage of the temporary relief under the Notice must keep a copy of the Notice on board the motor carrier vehicle. A copy of the notice can be found here.
The Notice explicitly states that the regulatory relief does not alter a motor carrier’s duty to monitor its drivers, maintain records of duty status, and ensure drivers are not ill, fatigued, impaired, or otherwise unable to operate a commercial motor vehicle safely. Furthermore, the regulatory relief does not provide an exemption from the commercial driver’s license requirements, the controlled substance and alcohol use and testing requirements, and the financial responsibility/insurance requirements adopted by PUCO.
If you have questions about the interpretation or implementation of the FMSCA or PUCO actions as they apply to you and your business, please do not hesitate to contact us.
Critchfield attorneys Easton E. Saltsman and Kaleigh E. Talaganis also contributed to this report.
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