During the first months of the COVID-19 pandemic, truckers were delivering time-critical medical supplies. Here, UPS driver Kerry Vannada picks up a load of ventilators in April 2000.  -  Photo: UPS

During the first months of the COVID-19 pandemic, truckers were delivering time-critical medical supplies. Here, UPS driver Kerry Vannada picks up a load of ventilators in April 2000.

Photo: UPS

The Federal Motor Carrier Safety Administration wants to limit the trucking regulations that are suspended for motor carriers and drivers providing direct relief in emergency situations. The proposal is a result of concerns raised about the broad, extended, nationwide emergency exemptions for the COVID-19 pandemic, which the agency allowed to expire in late October.

Currently, section 390.23 of title 49, Code of Federal Regulations, automatically creates a 30-day exemption from 49 CFR parts 390 through 399 when the president, a governor, or FMCSA issues a declaration of an emergency and a motor carrier or driver provides direct assistance to supplement emergency relief efforts.

In a notice of proposed rulemaking published in the Federal Register on Dec. 8, the agency explained that it believes that most emergencies justify relief from the normal hours of service limits in order to deliver critical supplies and services.

However, it said, other safety regulations often have no direct bearing on the ability to provide emergency assistance. Examples include:

  • Driver qualification requirements.
  • Drug and alcohol requirements.
  • Vehicle inspection requirements.
  • Prohibitions on operating while ill or fatigued.

The agency proposes to narrow the automatic applicability of 390.23 to exemptions of only the hours-of-service limits. It also proposes to cut down the time period of the waiver for regional emergencies.

“This change would clarify that carriers and drivers are not authorized to overlook other important safety requirements while performing direct assistance to emergency relief efforts,” FMCSA says in its executive summary. “By limiting the scope of the current rule on emergency regulatory relief, the NPRM would clarify that the Federal Motor Carrier Safety Regulations not relevant to most emergency situations remain in effect while retaining the agency's flexibility to tailor emergency regulatory relief to the specific circumstances of an emergency.”

The COVID-19 Exemptions

When the emergency exemptions rule was created in 1992, the agency said, it was designed to deal with regional emergencies. But on March 13, 2020, the president issued an emergency declaration in light of the COVID-19 pandemic, and the FMCSA issued its first national emergency declaration.

Both declarations automatically triggered relief from all regulations in 49 CFR parts 390 through 399 for 30 days. FMCSA kept extending the emergency declaration, changing the commodities that qualified as emergency relief based on conditions, and finally allowed it to expire in October of this year.

“The unprecedented time-period and geographical breadth of that emergency exemption brought into focus the need to ensure that the regulatory relief granted under emergency exemptions is appropriate and tailored to the specific circumstances being addressed,” the agency explains in its proposal.

By the fall of 2020, the Commercial Vehicle Safety Alliance was expressing concerns about the blanket waivers and filed a petition asking FMCSA to revise sections 390.23 and 390.25.

In this rulemaking proposal, however, the agency admits that it has no information that suggests that past or existing emergency exemptions have negatively impacted road safety. It did point out that before it allowed the COVID-19 exemptions to expire, FMCSA requested comment on how much motor carriers were continuing to rely on the COVID-19 emergency declaration and whether there has been any impact on safety (87 FR 54630). (See more below.)

Proposed Changes to Emergency Regulatory Exemptions

Under the proposed changes, FMCSA would make some changes to 390.5 that it says would clarify and simplify the language without changing the regulation's meaning.

More significant are proposed revisions to section 390.23.

While presidential declarations of emergency would continue to trigger a 30-day exemption from all FMCSRs in parts 390 through 399, the proposed rule would limit the duration of the automatic regulatory relief for regional emergencies. It would apply for only five days, rather than the current 30 days. In addition, it would exempt commercial drivers only from the hours of service regulations.

FMCSA explained that in its experience in monitoring emergency declarations, in most cases, the actual emergency, such as the specific weather event, is over within five days. Any emergency relief efforts extending beyond that time are typically geared to rebuilding and not to the time-critical emergency response scenarios the rule was originally meant to address.

For local emergencies, the automatic regulatory relief would be limited to the hours-of-service regulations. This regulatory relief was already limited to five days, so no changes there.

Exemptions for home heating oil, however, would not change. Section 390.23 would keep the requirement from the Reliable Home Heating Act (49 U.S.C. 31136 note) that when a governor declares a state of emergency due to a shortage of residential heating fuel, the automatic regulatory relief lasts for a period of 30 days and exempts those carriers from all regulations in parts 390 through 399. And it will keep the provision that the initial automatic exemption may be extended two times by the governor, for a total of 90 days.

The comment period for the Notice of Proposed Rulemaking ends on Feb. 6, 2023.

Did the COVID-19 Exemptions Affect Highway Safety?

When FMCSA asked for comments earlier this year on whether to extend the COVID-19 emergency waivers, it received nearly 400 responses.

The American Trucking Associations said most of its members “no longer feel continued relief is necessary. ATA members continue to voice concerns that continuing regulatory relief may be used to circumvent the hours-of-service regulations or foster abuse of the regulations.”

The Truck Safety Coalition said in its comments, “FMCSA must consider the deplorable state of roadway safety when considering continued regulatory relief, specifically, the unabated rise in truck crash fatalities. … The Truck Safety Coalition recognizes that in times of crisis, such as natural disasters or public health emergencies, conditions may in fact require temporary relief for commercial motor vehicle operations.

"The conditions that prompted the original COVID-19 emergency declaration on March 13, 2020, have shifted substantially," said the coalition. "What has not changed is the steady rise of truck crash fatalities. FMCSA is encouraged to carefully consider the risk to roadway safety that accompanies regulatory relief from HOS against the continued need for the urgent need for delivery of life-saving medical supplies and commodities to save lives at risk due to COVID-19."

Many of the comments from truck drivers and small trucking companies were more about the hours of service regulations in general, as well as mandatory electronic logging devices. The fact that so many motor carriers ran on COVID-19 exemptions without incident, they say, should show that drivers can operate safely with more flexible rules.

“We are a small carrier and we hire and retain drivers who know their sleep schedules better than anyone or anything,” said Keith Arteberry, owner of Arteberry Transportation Inc., a family-owned business in Walnut, Illinois, in his comments. “We have run many COVID-exempt loads without a single incident or accident. Drivers are much happier and much more productive. Let us decide when we should drive and when we should stop.”

The Owner-Operator Independent Drivers Association wrote, “the COVID-19 Emergency Declaration has given truckers both broad and targeted Hours-of-Service (HOS) relief through various modifications since being implemented in March 2020. We understand that the Department of Transportation and the Federal Motor Carrier Safety Administration will thoroughly review all the data that has been collected since the onset of the pandemic, but the preliminary information certainly shows that professional drivers are capable of operating safely with additional HOS flexibility.

"According to the agency in August 2022, 'Since March 2020, when FMCSA issued the COVID-19 declaration, it has been reported that two commercial motor vehicles were involved in crashes while operating under the COVID-19 declaration.' FMCSA noted that no injuries or damages occurred.

"This shows that drivers are generally not going to abuse additional HOS flexibility at the risk of highway safety," OOIDA contends. "An experienced driver will know when they need to rest or take a break, and this data shows that more practical HOS rules allow drivers to use their time more efficiently without endangering other highway users."

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