By Brandon Wiseman

Law360 (March 31, 2020, 4:56 PM EDT) --

Brandon Wiseman

While the novel coronavirus dominates the news cycle, stories of empty shelves at grocery stores and shortages of crucial medical supplies abound. Restocking those shelves and replenishing those supplies are critical components of our country's well-being during this challenging time, which President Donald Trump has reiterated during his daily press briefings.

It's no surprise that commercial trucking plays an important role here, as data has consistently shown that upwards of 70% of the nation's freight moves by truck.[1] Indeed, the U.S. Department of Homeland Security recently identified transportation systems, including highway motor carriers, as one of the 16 "critical infrastructure sectors" that "have a special responsibility in these times to continue operations."[2]

What are federal and state governments doing to ensure that motor carriers and drivers can continue delivering vital goods and supplies during these times? So far, they have taken swift and significant action, including easing certain safety-related restrictions for carriers and drivers assisting in the emergency relief efforts, and carving out transportation and logistics services from state shelter-in-place orders.

Relaxing Certain Federal Regulations for Emergency Relief Efforts

Shortly after Trump declared the COVID-19 pandemic a national emergency, the Federal Motor Carrier Safety Administration, or FMCSA, a subagency of the U.S. Department of Transportation responsible for regulating highway carriers, issued an emergency declaration.[3]

The FMCSA's declaration provides an exemption from various parts of the Federal Motor Carrier Safety Regulations for motor carriers and drivers providing direct assistance in support of relief efforts related to the COVID-19 outbreak. Most notably, the exemption encompasses items such as driver qualification (i.e., medical examination, minimum age and driver file requirements) and hours of service (i.e., restrictions on the number of hours drivers can operate before taking rest breaks).

This is not the first time the FMCSA has issued such a declaration. However, it has historically done so on a regional rather than a national basis (e.g., following natural disasters like hurricanes, tornadoes or wildfires). The COVID-19 declaration is different in the sense that it (1) applies across the country; and (2) delineates specific types of transportation services that fall within its scope. These include:

• Medical supplies and equipment related to the testing, diagnosis and treatment of COVID-19;

• 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;

• Food, paper products and other groceries for emergency restocking of distribution centers or stores;

• Immediate precursor raw materials — such as paper, plastic or alcohol — that are required and to be used for the manufacture of items in the categories above;

• Fuel;

• Equipment, supplies and people necessary to establish and manage temporary housing, quarantine and isolation facilities related to COVID-19;

• People designated by federal, state or local authorities for medical, isolation or quarantine purposes; and

• People necessary to provide other medical or emergency services, the supply of which may be affected by the COVID-19 response.

Importantly, FMCSA's declaration explicitly does not encompass routine commercial deliveries or mixed loads of emergency and nonemergency relief when there is only a nominal amount of emergency items added to the load in an effort to come under the exemption.

Further, the exemption does not encompass drug and alcohol testing, commercial driver's licensing requirements or the hazardous materials regulations, meaning that drivers who are typically subject to these rules must continue to abide by them, even if assisting with the emergency relief efforts.

In theory, the easing of these federal regulations should free up additional drivers to assist with the relief efforts and give them additional time within which to do so. That said, carriers and drivers are well-advised to exercise caution and discretion in utilizing the exemption, particularly when doing so would place an otherwise unqualified or fatigued driver behind the wheel. Aiding emergency relief is laudable, to be sure — but not at the expense of a serious accident resulting from inexperience or fatigue.

Putting aside the FMCSA's emergency declaration, the agency is also tackling issues stemming from the temporary closure of state departments of motor vehicle and driver licensing agencies. These state agencies rely, in part, on federal funding, and as a condition to receiving those funds agree to abide by federal statutes pertaining to, among other items, the procedures for issuing and renewing commercial driver's licenses.

The agencies' closures are, in some cases, preventing drivers from renewing expiring licenses and carriers from renewing expiring license plates. In response, the FMCSA issued a notice[4] indicating that federal funds will not be withheld to these agencies if they, notwithstanding federal statutes that would normally prohibit it, unilaterally extend the expiration dates on commercial driver's licenses. Some states, including Pennsylvania, have done just that.[5]

In sum, the FMCSA and its state partners are taking action on nearly a daily basis to clear the way for trucking companies and commercial drivers to continue delivering critical goods and supplies amid the COVID-19 outbreak.

Carving Out Transportation Services From State Lockdowns

Motor carriers and drivers face yet another potential impediment to their deliveries as more and more states follow California's lead and enact shelter-in-place or lockdown orders. The good news for these carriers and drivers is that, to date, every one of these orders has contained an "essential services" exemption, which broadly encompasses trucking services and allows commercial trucks to continue operating, notwithstanding the mandatory shutdowns.

By way of example, California's lockdown order requires all California residents to stay home "except as needed to maintain continuity of operations of the federal critical infrastructure sectors" as outlined by the DHS. And as noted previously, the DHS has identified transportation as one of the 16 critical infrastructure sectors. Likewise, Illinois' lockdown order exempts essential businesses, which explicitly include commercial transportation and logistics providers.[6]

Although the essential nature of their services may seem obvious, based on the trucks they drive or the product they haul, drivers would be well-advised to keep some documentation in their vehicles that they could provide to law enforcement upon demand, even if just an advisory notice on their carrier's letterhead, or a copy of the applicable state order explaining the nature of their services and why they are exempt from the lockdown orders.

Conclusion

While there are very few certainties when it comes to COVID-19, we do know that trucking has played and will continue to play a tremendous role in relief efforts. Ensuring trucks and drivers can continue making their deliveries unimpeded is a top priority of the federal and state governments, and will continue to be so in the days and months ahead.

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Brandon K. Wiseman is a partner at Scopelitis Garvin Light Hanson & Feary PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://markets.businessinsider.com/news/stocks/trucking-industry-facts-us-truckers-2019-5-1028248577.

[2] https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19.

[3] https://www.fmcsa.dot.gov/emergency/expanded-emergency-declaration-under-49-cfr-ss-39023-no-2020-002-relating-covid-19.

[4] https://www.fmcsa.dot.gov/emergency/notice-state-drivers-licensing-agencies-federal-motor-carrier-safety-administrations.

[5] https://www.penndot.gov/pages/coronavirus.aspx.

[6] https://www2.illinois.gov/sites/coronavirus/Pages/default.aspx.

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