COVID-19: Federal Declarations and Waivers

Overview

In response to the COVID-19 pandemic, agencies across the federal government have issued various guidance, declarations and regulatory waivers pertinent to maintaining interstate commerce and the movement of trucks.

In addition to providing temporary waivers on certain federal regulations, guidance from federal agencies can inform state and local officials as they implement lockdowns and other restrictions in their own jurisdictions.

 
Department of Homeland Security

Essential Workforce

Cross-Border Operations

Centers for Disease Control and Prevention

NYC and Hot Zones

Federal Motor Carrier Administration 

Hours of Service Waivers

CDL and Medical Cards

Occupational Safety and Health Administration

Workplace Safety

Essential Critical Infrastructure Workforce

The Cyber and Infrastructure Security Agency with the U.S. Department of Homeland Security has declared truck drivers—in addition to a wide array of transportation and logistical occupations that support trucking—as essential critical infrastructure workers. This valuable guidance helps state and local officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security. 

Included in CISA's definition of essential critical infrastructure workers:

  • Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain and inspect infrastructure (including those that require cross-jurisdiction travel)
  • Employees of firms providing services that enable logistics operations, including cooling, storing, packaging, and distributing products for wholesale or retail sale or use

As state and local governments implement curfews, shelter-in-place mandates and other public restrictions to slow the spread of COVID-19, it is essential that certain critical industries and workforces within those jurisdictions are permitted to continue operations.

Hours of Service

FMCSA has issued an Emergency Declaration which provides "hours-of-service regulatory relief to commercial vehicle drivers transporting emergency relief in response to the nationwide coronavirus (COVID-19) outbreak." The declaration was first issued on 3/13/20, then updated on 3/18/20, and extended once again on 4/9/20. 

The 3/18 update offered new guidance on which operations are covered under the declaration, clarifying fuel haulers are included. It also provided new guidance on "mixed load" operations. The 4/9 extension now clarifies that “liquefied gases to be used in refrigeration or cooling systems” are covered under the declaration. 

ATA encourages carriers to review the official declaration to determine if their operations are included.

Frequently Asked Questions:

Are fuel haulers currently exempted from the HOS due to FMCSA’s emergency declaration?

YES. Under the updated 3/18 guidance, fuel haulers are specified as covered by the declaration.
 
Does a driver operating under the emergency exemption need to carry any documentation, or do the shipping papers or bill of laden need to state that the freight qualifies under the declaration?

FMCSA has stated that no documentation is needed at this time.
 
Does movement from a manufacturer to distribution center qualify under the emergency declaration?

Yes, if the purpose of the movement is to supply direct assistance as stated under the emergency declaration.

Additional FAQs courtesy FMCSA:

Are loads that include supplies related to direct assistance under the emergency declaration mixed with other, un-related materials covered under the declaration?

Generally, yes, however, mixed loads with only a nominal quantity of qualifying emergency relief added to obtain the benefits of this emergency declaration are not covered.

Is a driver required to take a 30-minute break?

No, none of the hours of service regulations apply while the driver is engaged with providing direct assistance under the emergency relief exemption.

How do the hours a driver worked under the emergency exemption impact the 60/70-hour rule when the driver goes back to normal operations?

The hours worked providing direct assistance under the emergency relief exemption do not count toward the 60/70- hour rule. 

Is a 34-hour restart required after providing direct assistance under the emergency declaration?

No, however, upon completion of the direct assistance and prior to returning to normal operations, the driver is required to meet the requirements of §§ 395.3(a) and (c) and 395.5(a), which include, for example, the requirement to take 10 hours off duty (8 hours for passenger carriers) and to comply with the on-duty limit of 60/70 hours in 7/8 days before returning to driving.  

Is the driver required to use a paper logbook or ELD?

No, the emergency exemption includes relief from all the hours-of service regulations in 49 CFR part 395, including the recordkeeping requirements (i.e., records of duty status (RODS)).

If there is an ELD in the truck, what should a driver do to account for the miles driven?

There are three options:

  1. Use the “authorized personal use” (personal conveyance) function of the ELD to record all of the time providing direct assistance under the exemption.  Use of this function will result in the time being recorded as off duty and requires an annotation. 
  2. Use the ELD in its normal mode and annotate the ELD record to indicate they were driving under the emergency relief exemption; or
  3. Turn off the ELD, in which case the carrier would address the unassigned miles in accordance with the current regulation.

What does a driver need to do if taking a backhaul not covered by the exemption after transporting an exempt load?

Upon completion of the direct assistance activities and prior to returning to normal operations, the driver is required to take 10 consecutive hours off duty before driving.  All the time the driver spends engaged in work-related activities that are not associated with providing direct assistance must be counted under the HOS rules.

Are livestock a covered commodity under the terms of the emergency declaration?

Yes, Livestock are covered as a precursor to food. The emergency declaration covers “immediate precursor raw materials—such as paper, plastic or alcohol—that are required and to be used for the manufacture of items” including food needed for the emergency restocking of stores.

Are haulers of household waste and medical waste covered under the terms of the declaration?

Yes, transportation for removal of both household and medical waste is covered as “supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”

What documentation is needed to verify that the driver is operating under the exemption?

There is no specific documentation required for verification.  Retention of ordinary business records, such as the bill of lading, may be useful later for the convenience of the motor carrier and driver, to document use of the exemption during a future inspection or enforcement action.

Does FMCSA have preemptive authority over states that decide/attempt to close highway rest stops?

No, however FMCSA is working closely with the States to ensure adequate truck parking and facilities are available.

Is wood pulp covered under the expanded emergency declaration?

Wood pulp is covered if it is being used as a precursor to one of the essential items listed in the exemption as follows: (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 or (3) food, paper products and other groceries for emergency restocking of distribution centers or stores;

Are the raw materials used to manufacture bleach, disinfectants, hand sanitizers and similar items covered under the expanded emergency declaration?

Yes, these items and their precursors are covered as “supplies necessary for community safety, sanitation and community prevention of COVID 19.”

Does the Declaration cover packaging for food -- for example, produce containers?

Yes, packaging is covered as a precursor necessary to the production and transportation of products covered under the emergency exemption.

Are feed and fertilizer covered under the emergency declaration?

Yes, both are covered as precursors to essential items.

Is pet food covered under the emergency declaration?

No, pet food is not covered.

The emergency declaration states that after completed work under the declaration and returning to normal operations, a commercial vehicle driver must take 10 hours off.  What if there is nowhere at the location for the driver to park?

The driver may proceed to the nearest reasonable, safe location to obtain the required 10 hours of rest.

Is the time spent driving to pick up a truck regulated as on duty time?

No.  Time spent traveling to work in a personal vehicle does not meet the definition of on duty time in 49 CFR 395.2.

More information from FMCSA is available here.

Expired commercial drivers’ licenses and medical card waivers

On 3/24/20, The Federal Motor Carrier Safety Administration issued a temporary waiver for some commercial vehicle drivers to address disruptions in licensing and other requirements. The announcement included a “Notice of Enforcement Policy” and “Waiver” regarding expiring driver’s licenses and medical examiner’s certificates for drivers who had current credentials as of March 1. 

The announcement allows FMCSA to exercise discretion and waive enforcement action in certain cases when a commercial learners’ permit, CDL or Medical Certificate is expired. This is not a blanket exemption from the CLP, CDL and/or Medical Certificate requirements, and drivers and carriers should review the details of the waiver to ensure their operations qualify. 

Frequently Asked Questions:

What does FMCSA’s temporary waiver mean for the trucking industry?

The waiver provides flexibility to commercial driver’s license (CDL) and commercial learner’s permit (CLP) holders, and to other interstate drivers operating commercial motor vehicles (CMVs), by extending the expiration dates for federally mandated licenses and medical certifications.
 
Which drivers are covered by the waiver?

The waiver provides flexibility only to CLP or CDL holders and other interstate drivers operating CMVs who had a valid license and medical certification on February 29, 2020 that expired on or after March 1, 2020.
 
Does the waiver provide any flexibility for bringing new drivers into the industry?

Yes. The waiver eliminates the 14 day waiting period between the issuance of a CLP and taking the CDL skills test.
 
When does FMCSA’s temporary waiver expire?

June 30, 2020.

Do motor carriers have any special obligations if their drivers are operating under FMCSA's waiver?
 
Yes. Motor carriers must notify FMCSA within five business days of an accident (as defined in 49 CFR 390.5), involving any CDL holder, CLP holder or non-CDL driver operating under the terms of this waiver. The notification must be sent by email to MCPSD@DOT.gov with the following information:
 
i.  Date of the accident;
ii.  City or town, and State in which the accident occurred, or closest to the accident scene;
iii.  Driver's name and license number;
iv.  Vehicle number and State license number;
v.  Number of individuals suffering physical injury;
vi.  Number of fatalities;
vii.  The police-reported cause of the accident (if available at time of the report); and
viii.  Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations.
 
 Does the waiver apply to all medical examiner’s certificates that expired on or after March 1, 2020?
 
No. The waiver does not apply to medical examiner’s certificates originally issued for less than 90 days. Additionally, drivers who have been diagnosed with a new medical condition that would disqualify the driver from operating in interstate commerce, or have developed a new condition that requires an exemption or Skill Performance Evaluation from FMCSA, are not covered under this waiver.

Does FMCSA’s waiver apply to Hazardous Material Endorsements (HMEs), which expire on or after March 1?
 
No, FMCSA’s waiver does not apply to HMEs.

 

CDC Guidance on NYC and other hot spot areas

During the daily press briefing on 3/24/20, White House COVID-19 Task Force coordinator Doctor Deborah Birx stated “everybody who was in New York should be self-quarantining for the next 14 days to ensure that the virus doesn't spread to others.” Following the briefing, ATA immediately contacted the White House seeking clarity on Dr. Birx’s statement as it relates to truck drivers and other critical infrastructure workforce. 

As a result of frequent communications, CDC published the following clarifications on 3/27/20 regarding truck drivers entering and exiting New York:

In line with our recommendations for other essential critical infrastructure workers, this guidance does not apply to critical transportation and delivery workers who are desperately needed for New York residents to continue their daily lives and respond to the COVID-19 outbreak.

Truck drivers and other people driving into the city to deliver needed supplies should stay in their vehicles as much as possible as supplies are loaded and unloaded, avoid being within 6 feet of others as much as possible when they exit their vehicles, and move to electronic receipts if possible. If these drivers need to spend the night in the greater New York City area, they should stay in their hotel rooms or sleeper cab, when available, to the extent possible and continue to practice social distancing. Drivers who take these precautions should not need to self-quarantine when they leave the greater New York area, unless self-quarantine is recommended by state or local officials for all residents in the areas where they live.

Truck drivers and other workers who obtain or deliver needed supplies who live in the greater New York area may continue to work both within and outside of the greater New York area but should stay at home and practice social distancing according to instructions of state and local officials when they are not working. While they are working either within or outside of the greater New York area, they should stay in their vehicles as much as possible, avoid being within 6 feet of others as much as possible when they exit their vehicles, and move to electronic receipts if possible.... 

Trade and Cross-Border Operations

U.S. Customs & Border Protection established a COVID-19 Relief Imports Web Portal for inquiries on importing medical supplies in the fight against COVID-19. Carriers can use the portal to review pertinent information and submit questions directly to the COVID-19 Cargo Resolution Team. 

More general information from CBP can be found on their COVID-19 hub.

 
Northern and Southern Border Restrictions

Customs and Border Protection has partially closed the U.S. borders with Canada and Mexico to "non-essential" travel, now effective through 6/22/20. However, freight and truck traffic is deemed essential. All trucks and all loads are permitted to continue to cross borders: 

In its declaration, CBP enumerated examples of essential travel, which includes but is not limited to: 

  • U.S. citizens and lawful permanent residents returning to the United States;
  • Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
  • Individuals traveling to attend educational institutions;
  • Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);
  • Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support Federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
  • Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada);
  • Individuals engaged in official government travel or diplomatic travel;
  • Members of the U.S. Armed Forces, and the spouses and children of members of the U.S.Armed Forces, returning to the United States; and
  • Individuals engaged in military-related travel or operations.
 
Postponement of Duties, Taxes and Fees

From Custom and Border Protection:

On April 20, 2020, the Secretary of the Treasury and U.S. Customs and Border Protection (CBP) will be postponing for 90 calendar days the deadline for payment for the deposit of certain estimated duties, taxes, and fees for importers experiencing a significant financial hardship due to the coronavirus disease (COVID-19). This temporary postponement applies to formal entries of merchandise entered, or withdrawn from warehouse, for consumption (including entries for consumption from a Foreign Trade Zone) in March 2020 or April 2020.  CBP will not return deposits of estimated duties, taxes, and fees that have already been paid.

This temporary postponement does not apply to any entry, or withdrawal from warehouse, for consumption, where the entry summary includes merchandise subject to one or more of the following:

  • Antidumping duties,
  • Countervailing duties,
  • Duties assessed pursuant to Section 232 of the Trade Expansion Act of 1962,
  • Duties assessed pursuant to Section 201 of the Trade Act of 1974, and
  • Duties assessed pursuant to Section 301 of the Trade Act of 1974.
  • No interest will accrue for the postponed payment of such estimated duties, taxes, and fees during this 90-day postponement period. No penalty, liquidated damages, or other sanction will be imposed for the postponed payment of the deposit of estimated duties, taxes, and fees in accordance with this temporary postponement.

This temporary postponement does not apply to deadlines for the payment of other debts to CBP, including but not limited to deadlines for the payment of bills for duties, taxes, fees, and interest determined to be due upon liquidation or reliquidation, deadlines for the payment of fees authorized pursuant to 19 U.S.C. 58c (except for merchandise processing fees and dutiable mail fees), or deadlines for the payment of any penalty or liquidated damages due to CBP.

To determine the amount of estimated duties, taxes, and fees owed, the date used for calculation remains the date that would have otherwise applied in the absence of the 90-day postponement period.

For entries eligible for this temporary postponement, the requirement to pay the deposit of estimated duties, taxes, and fees for the purpose of establishing the time of entry stated in 19 CFR § 141.68 is waived.

More information here.

Workplace Safety

On 4/10/20, the Occupational Health and Safety Administration published interim guidance regarding enforcement of the agency's injuries and illness recording requirement pertaining to COVID-19 cases. Under the interim guidance, OSHA will exercise enforcement discretion in areas where there is ongoing community transmission of COVID-19, and where the ability of employers to determine work-related transmission is difficult. OSHA will not enforce 29 CFR § 1904 to require trucking industry employers to make the work-relatedness determinations, except where: 

  1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

Click here for ATA’s summary of OSHA’s enforcement guidance on recordable COVID-19 cases,

Additionally, on April 13, OSHA issued guidance to the trucking industry to help its workforce reduce risk of exposure to the coronavirus. OSHA recommends that motor carriers: 

  • Encourage workers to stay home if they are sick.  
  • Establish flexible work hours (e.g., staggered shifts) where feasible.  
  • Practice sensible social distancing and maintain six feet between co-workers where possible.  
  • Minimize interaction between drivers and customers by leaving deliveries at loading docks, doorsteps, or other locations that do not require person-to-person exposures. 
  • Encourage respiratory etiquette, including covering coughs and sneezes. 
  • Promote personal hygiene. If workers do not have access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol. Provide tissues, as well as disinfectants and disposable towels workers can use to clean work surfaces, including vehicle interiors. 
  • Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.  
  • Discourage workers from using other workers’ tools and equipment.  
  • Use Environmental Protection Agency-approved cleaning chemicals. 
  • Encourage workers to report any safety and health concerns. 
  • Make a good faith efforts to comply with applicable OSHA standards. 

The agency also issued this enforcement memo regarding employers' good faith efforts during the COVID-19 crisis.

For more information, OSHA recommends employers visit its website here or call 1-800-321-OSHA.