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, CDL, CLP and Medical Certificate Waivers

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. It was most recently extended until November 30, 2021.

The declaration provides regulatory relief regarding maximum driving time and applies only to commercial motor vehicle operations involved directly in COVID-19 relief efforts, including but not limited to the transportation of: 

• Vaccines 
• Medical supplies and equipment; 
• Livestock and livestock feed; and 
• Food, paper products, and other groceries for emergency restocking. 

Additional commodities covered under the newest declaration include:

• Gasoline; 
• Diesel; 
• Jet fuel;  
• Ethyl alcohol; and 
• Supplies to assist individuals impacted by the consequences of the COVID-19 pandemic, such as building materials for displaced individuals.

FMCSA also extended its waiver regarding the validity of CDLs, CLPs and certain medical certificates. CDL and CLP holders, and interstate drivers operating CMVs with credentials that expired on or after March 1, 2020, now have until November 30 to renew these credentials. Drivers whose medical certification or medical variance expired on or after June 1, 2021 also have until November 30 to renew. 

This is not a blanket exemption from the CLP, CDL, and/or Medical Certificate requirements. Drivers and carriers should review the waiver details and check with SDLAs to ensure their operations qualify. Some states have indicated they will not extend the expiration periods to match FMCSA’s waiver.
 
Furthermore, FMCSA extended its waiver giving third-party CDL skills test examiners the ability to administer the CDL knowledge test, so long as the examiner has maintained their CDL test examiner certification and has previously completed a CDL skills test examiner training course.
 
Finally, FMCSA extended its waiver (1) allowing a CLP holder, who has passed the CDL skills test but has not yet received credentials, to be accompanied by a CDL holder seated anywhere in-cab while the CLP holder operates a CMV, and (2) waiving restrictions that limit states to administering a driving skills test to a non-domiciled CDL applicant who has taken driver training in that state.

Frequently Asked Questions:

What is “direct assistance” under the extended Emergency Declaration? 

FMCSA defines direct assistance 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 related to COVID-19 during the emergency.”

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. However, a best practice is to denote the direct assistance nature of the shipment on the bill of lading. 
 
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. The extended Emergency Declaration clarifies direct assistance ends when a driver is no longer using a CMV in support of emergency relief efforts related to COVID-19, or when the motor carrier dispatches a driver to another location to begin operations in commerce.

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

No, mixed loads with only a nominal quantity of qualifying emergency relief are not covered.

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

Yes, livestock and livestock feed are covered under the extended emergency declaration. 

Guidance for Qualified Direct Assistance

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.

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.

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.”

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.

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?

May 31, 2021, but dates vary depending on the CDL/CLP or medical card date of expiration. See above for details.

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, 2021?
 
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.

Medical certifications remain valid for CDL and CLP holders and non-CDL drivers whose med cards were valid on February 28, 2021 and expired on or after June 1, 2020.

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. 

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

U.S. Customs & Border Protection has issued a reminder regarding the due dates for the estimated duties, taxes and fees that were postponed for 90 days for importers experiencing a significant financial hardship due to COVID-19. This temporary postponement applied to formal entries of merchandise entered, or withdrawn from warehouse, for consumption (including entries for consumption from a Foreign Trade Zone) in March and April 2020. 
 
CBP advises that no interest will accrue for the postponed deposit of such estimated duties, taxes and fees during this 90-day postponement period. Deposits made after the new due date may be subject to interest. No penalty, liquidated damages or other sanction will be imposed for the postponed deposit of estimated duties, taxes and fees in accordance with this temporary postponement, if paid by the new due dates.
 
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. Importers/filers should work with their financial institutions to ensure awareness of both the regularly scheduled and postponed deposits of estimated duties, taxes and fees that now must be submitted under the new deadlines.
 
CBP has provided the following examples of due dates for the deferred deposits:
 
Certain estimated duties, taxes, and fees paid on single pay basis or Daily Statement may have been postponed up to 90 days from the payment due date. 

Example:

Estimated Internal Revenue Tax paid via the deferred excise tax program (which allows for deferred payment of estimated excise taxes on imported beer, wine, and distilled spirits to CBP on a bi-weekly basis) may have been postponed up to three months from the payment due date.

Example:

Certain estimated duties and fees paid via Periodic Monthly Statement (PMS) may have been postponed up to three months, as defined by the 15th working day of the third month. 

Example:

If an entry summary is removed from a PMS and placed on a daily statement, the payment due date will be calculated from the date the daily statement payment would have been due.

Example:

Date of entry: April 2, 2020
Date of entry summary: April 16, 2020
Original Due Date on scheduled PMS: May 21, 2020
3 Month Postponement: August 21, 2020
Removed from August 2020 PMS and placed on daily statement
Payment due date, pursuant to 90-day postponement: July 16, 2020

Trusted Traveler Programs

U.S. Customs and Border Protection has announced Trusted Traveler Programs enrollment centers will remain closed until September 8, 2020, due to continuing concerns regarding the spread of COVID-19. Details concerning the closure can be found 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.