On December 1, 2020, The Federal Motor Carrier Safety Administration (FMCSA) expanded and extended the modified Emergency Declaration No. 2020-002, which had been set to expire on December 31, 2020.  The expansion and extension of the Emergency Declaration continues the exemption granted from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSRs).

The Emergency Declaration was issued following the declaration of a national emergency by the President pursuant to 42 U.S.C. § 5191(b) in response to the Coronavirus Disease 2019 (COVID-19), the public health emergency declared by the Health and Human Services Secretary, and the immediate risk COVID-19 presents to public health and welfare.  FMCSA previously modified the Emergency Declaration to expand and remove categories of supplies, equipment and persons covered thereunder to respond to changing needs for emergency relief.

On September 11, 2020, FMCSA had extended  the Emergency Declaration and associated regulatory relief through December 31, 2020 in accordance with 49 CFR § 390.25.  The present extension continues and extends the relief granted in the Emergency Declaration, as modified on June 15, 2020 and August 15, 2020, through February 28, 2021 and expands the relief from Parts 390 through 399 of the FMCSRs to include the transportation of vaccines and medical supplies and equipment related to the prevention of COVID-19, subject to certain restrictions and limitations.

The expansion and extension of the Emergency Declaration is targeted to support “direct assistance” related to COVID-19, and is limited to transportation of (1) livestock and livestock feed; (2) medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19; (3) vaccines, constituent products, and medical supplies and equipment including ancillary supplies/kits for the administration of vaccines, related to the prevention of COVID-19; (4) 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; and (5) food, paper products and other groceries for emergency restocking of distribution centers or stores.

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 the Emergency Declaration.  Moreover, the Emergency Declaration does not provide emergency relief from the following Federal Motor Carrier Safety Regulations and conditions:

1. 49 CFR § 392.2, related to the operation of a commercial motor vehicle (CMV) in accordance with State laws and regulations, e.g., compliance with applicable speed limits and other traffic restrictions;
2. 49 CFR § 392.3, related to the operation of a CMV while a driver's ability or alertness is so impaired that it is unsafe to operate the vehicle;
3. Motor carriers shall not allow fatigued drivers to operate a CMV;
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 the Emergency Declaration must report any recordable crash within twenty-four hours to FMCSA;
6. Nothing in the Emergency Declaration shall be construed as an exemption from the controlled substance and alcohol uses 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), 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 the Emergency Declaration until the order has been rescinded by FMCSA;
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, 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.

In accordance with 49 CFR § 390.25, this expansion and extension of the Emergency Declaration will remain in effect until February 28, 2021, or until the revocation of the Presidentially declared COVID-19 national emergency, whichever is sooner.  The Notice of Expansion and Extension of the Modified Emergency Declaration No. 2020-002 and other FMCSA documents related to the COVID-19 national emergency are posted at www.fmcsa.dot.gov/COVID-19.

If you have any questions about these developments, or the transportation industry in general, please contact our Firm’s Transportation Practice Group leaders, Matt Mitchell at mmitchell@c-wlaw.com, or Bill Pentecost at wpentecost@c-wlaw.com.