COVID-19 has dramatically tightened the truckload capacity in the United States, but the federal and state governments are committed to keeping the supply chain moving.  As spot market truckload rates rise to highly affected areas, fewer drivers are willing to take loads into these areas forcing the ad hoc rates to climb.  Urgent orders of retail goods are driving rates up for van and reefer equipment. Retailers, including e-commerce outlets, are increasingly relying on spot market providers to re-stock shelves immediately, while truckers report long wait times at pickup and delivery points.

Most LTL carriers are returning freight immediately (i.e., less than one day) after a refusal because a consignee is closed.  They are doing this because cargo cannot be held at the destination due to large volumes of undeliverable freight, which results in additional charges.  As a means of practicing “Social Distancing,” many LTL and small package carriers are suspending physical signatures.  As a result, drivers will not be obtaining signatures from consignees.  Instead, drivers will record the exact time of delivery and note the name of the person who is accepting the freight, along with any exceptions. 

Internationally, the restrictions on crossing the borders into Mexico and Canada only impact "non-essential" travel and do not apply to the transportation of goods and services.¹

For interstate trucking within the United States, the Federal Motor Carrier Safety Administration (FMCSA) issued an Expanded Emergency Declaration² under 49 CFR § 390.23, which grants an exemption to motor carriers and drivers providing direct assistance in support of relief efforts related to the COVID-19 outbreaks to the regulations contained in Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSR).   This includes a broad spectrum of regulations, including:

• PART 390 - FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL (§§ 390.1 - 390.403)
• PART 391 - QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS (§§ 391.1 - 391.71)
• PART 392 - DRIVING OF COMMERCIAL MOTOR VEHICLES (§§ 392.1 - 392.82)
• PART 393 - PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION (§§ 393.1 - 393.209)
• PART 394 - [RESERVED]
• PART 395 - HOURS OF SERVICE OF DRIVERS (§§ 395.1 - 395.38)
• PART 396 - INSPECTION, REPAIR, AND MAINTENANCE (§§ 396.1 - 396.25)
• PART 397 - TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND PARKING RULES (§§ 397.1 - 397.225)
• PART 398 - TRANSPORTATION OF MIGRANT WORKERS (§§ 398.1 - 398.8)
• PART 399 - EMPLOYEE SAFETY AND HEALTH STANDARDS (§§ 399.201 - 399.211)

Under the Emergency Declaration, “Direct assistance” means transportation and other relief services provided by a motor carrier or its drivers incident to the immediate restoration of essential services (such as medical care) or essential supplies (such as food and fuel) related to COVID-19 outbreaks during the emergency.

The Emergency Declaration provides regulatory relief for commercial motor vehicle operations providing direct assistance in support of emergency relief efforts related to the COVID-19 outbreaks, including transportation to meet immediate needs for:

1. Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;
2. 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;
3. Food, paper products and other groceries for emergency restocking of distribution centers or stores;
4. Immediate precursor raw materials-such as paper, plastic or alcohol-that are required and to be used for the manufacture of items in categories (1), (2) or (3);
5. Fuel;
6. Equipment, supplies and persons necessary to establish and manage temporary housing, quarantine, and isolation facilities related to COVID-19;
7. Persons designated by Federal, State or local authorities for medical, isolation, or quarantine purposes; and
8. Persons necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

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.

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.  See 49 CFR § 390.23(b).

Upon termination of direct assistance to emergency relief efforts related to the COVID-19 outbreaks, 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.

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. Once the driver has returned to the terminal or the driver's normal reporting location, the driver must be relieved of all duty and responsibilities and must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers.

The Emergency Declaration clearly states that nothing therein shall be construed as an exemption from:

1. Controlled substances and alcohol use and testing requirements (49 CFR Part 382);
2. Commercial driver's license requirements (49 CFR Part 383);
3. Financial responsibility (insurance) requirements (49 CFR Part 3 87);
4. Hazardous material regulations (49 CFR Parts 100-180);
5. Applicable size and weight requirements; or
6. Any other portion of the regulations not specifically exempted under 49 CFR § 390.23.

Motor carriers or drivers currently subject to an out-of-service order are not eligible for the relief granted by the Emergency Declaration until they have met the applicable conditions for its rescission and the order has been rescinded by FMCSA.

In accordance with 49 CFR § 390.23, the Emergency Declaration became effective immediately upon its issuance on March 18, 2020, and will remain in effect until the termination of the emergency (as defined in 49 CFR § 390.5) or until 11:59 P.M. (ET) on April 12, 2020, whichever occurs sooner.

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, mmitchell@c-wlaw.com, or Bill Pentecost, wpentecost@c-wlaw.com. 

Cipriani & Werner, P.C. has implemented a full-spectrum approach to the COVID-19 situation.  Please click on the “COVID-19 Resource Center” red link on the home page of our website to access our multi-disciplinary articles and updates to stay current on the changing legal landscape as it responds to COVID-19.