COVID 19 (Coronavirus) “Cheat Sheet” for information concerning USDOT/FMCSA exemptions and exceptions

We here at TSCI (as is everyone) are concerned with everything going on regarding the Cornavirus and COVD 19. Because of the numerous questions coming up regarding the exemptions and exceptions, ee ask that you familiarize yourself with the entire exemptions and exceptions put out there by the FMCSA. To help clarify these, TSCI has listed out a “cheat sheet” with the more important information that has been released. Please see below:

FMCSA – Federal Exemptions – “Cheat Sheet”

In order to try and make sense of all of the exceptions and exemptions happening due to COVID-19, we here at TSCI wanted to put something together that contained the items that were of most importance and could possibly impact you the most.

Please understand that this “cheat sheet” does not contain all of the specifics of the exceptions and exemptions, but contains those items outlined. Please refer back to the original documents put out there by the Federal Office for the specifics of each and how it might impact you.

Please remember that these are Federal rules. Each state has published its own exemption, exceptions and temporary rule changes, that could also affect your operations.

Federal Exemptions/Exceptions

FMCSA’s expanded declaration provides for regulatory relief for commercial motor vehicle operations providing direct assistance supporting emergency relief efforts intended to meet immediate needs for:

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 essential items.
Fuel.
Equipment, supplies and persons necessary to establish and manage temporary housing, quarantine.
Persons designated by federal, state or local authorities for medical, isolation, or quarantine purposes.
Persons necessary to provide other medical or emergency services.

The expanded declaration stipulates that 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 the emergency declaration.

To ensure continue safety on the nation’s roadways, the emergency declaration stipulates that once a driver has completed his or her delivery, the drive must receive a minimum of 10 hours off duty if transporting property, and 8 hours if transporting passengers.

FMCSA’s emergency declaration is the first time the Agency has issued nation-wide relief and follows President Trump issuing of a national emergency declaration in response to the virus.

To read expanded FMCSA’s national emergency declaration, visit: https://www.fmcsa.dot.gov/emergency/expanded-emergency-declaration-under-49-cfr-ss-39023-no-2020-002

FAQ’s Regarding the exemptions/ exceptions

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.

FMCSA/USDOT Drug and Alcohol Testing

For DOT-Regulated Employers:

As a DOT-regulated employer, you must comply with applicable DOT training and testing requirements.[2] However, DOT recognizes that compliance may not be possible in certain areas due to the unavailability of program resources, such as collection sites, Breath Alcohol Technicians (BAT), Medical Review Officers (MRO) and Substance Abuse Professionals (SAP). You should make a reasonable effort to locate the necessary resources. As a best practice at this time, employers should consider mobile collection services for required testing if the fixed-site collection facilities are not available.[3]
If you are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, State or locally imposed quarantine requirements, or other impediments, you are to continue to comply with existing applicable DOT Agency requirements to document why a test was not completed. If training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with applicable modal regulations. Links to the modal regulations and their respective web pages can be found at https://www.transportation.gov/odapc/agencies
If employers are unable to conduct DOT drug and alcohol testing due to the unavailability of testing resources, the underlying modal regulations continue to apply. For example, without a “negative” pre-employment drug test result, an employer may not permit a prospective or current employee to perform any DOT safety-sensitive functions, or in the case of the Federal Aviation Administration (FAA), you cannot hire the individual (See 14 CFR § 120.109(1) and (2)).
Additionally, DOT is aware that some employees have expressed concern about potential public health risks associated with the collection and testing process in the current environment. Employers should review the applicable DOT Agency requirements for testing to determine whether flexibilities allow for collection and testing at a later date.
As a reminder, it is the employer’s responsibility to evaluate the circumstances of the employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i). However, as the COVID-19 outbreak poses a novel public health risk, DOT asks employers to be sensitive to employees who indicate they are not comfortable or are afraid to go to clinics or collection sites. DOT asks employers to verify with the clinic or collection site that it has taken the necessary precautions to minimize the risk of exposure to COVID-19.
Employers should revisit back-up plans to ensure the plans are current and effective for the current outbreak conditions. For example, these plans should include availability of collectors and collection sites and BAT, and alternate/back-up MRO, as these may have changed as a result of the national emergency. Employers should also have regular communications with service agents regarding the service agent’s availability and capability to support your DOT drug and alcohol testing program.

Specifics

• Random Testing – You are required by 49 CFR 382.305(k) to ensure that the dates for administering random alcohol and controlled substances tests are spread reasonably throughout the calendar year. DOT guidance further recommends that you perform random selections and tests at least quarterly.

For further guidance see https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Best_Practices_for_DOT_Random_Drug_and_Alcohol_Testing_508CLN.pdf.

If, due to disruptions caused by the COVID-19 national emergency, you are unable to perform random selections and tests sufficient to meet the random testing rate for a given testing period in order to achieve the required 50% rate for drug testing, and 10% for alcohol testing, you should make up the tests by the end of the year. You should document in writing the specific reasons why you were unable to conduct tests on drivers randomly selected, and any actions taken to locate an alternative collection site or other testing resources.

• Pre-Employment Testing – If you are unable to conduct a pre-employment controlled substances test, in accordance with 49 CFR 382.301(a), you cannot allow a prospective employee to perform DOT safety sensitive functions until you receive a negative pre-employment test result, unless the exception in 49 CFR 382.301(b) applies.

• Post-Accident Testing – You are required to test each driver for alcohol and controlled substances as soon as practicable following an accident as required by 49 CFR 382.303. However, if you are unable to administer an alcohol test within 8 hours following the accident, or a controlled substance test within 32 hours following the accident, due to disruptions caused by the COVID-19 national emergency, you must document in writing the specific reasons why the test could not be conducted, as currently required. See 49 CFR 382.303(d) and FMCSA Guidance at: https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing/commercial-motor-vehicle-operator-involved-accident-which

• Reasonable suspicion testing – You should document in writing the specific reasons why the test could not be conducted as required; include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. This documentation should be provided in addition to the documentation of the observations leading to a test, as required by 49 CFR 382.307(f). Follow current regulations addressing situations in which reasonable suspicion testing is not conducted, set forth in 49 CFR 382.307(e)(1), (2).

• Return-to-duty (RTD) testing – In accordance with 49 CFR 40.305(a), you must not allow the driver to perform any safety-sensitive functions, as defined in 49 CFR 382.107, until the RTD test is conducted and there is a negative result.

• Follow-up testing – If testing cannot be completed, you should document in writing the specific reasons why the testing could not be conducted as in accordance with the follow-up testing plan; you should include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. You should conduct the test as soon as practicable.

FMCSA-Regulated Employees:

Please follow the ODAPC guidance, as set forth below, and available at: https://www.transportation.gov/odapc/compliance-with-dot-drug-and-alcohol-testing-regulations.

CDL and Medical Certification

To respond to this unique event and to continue the ability of intrastate and interstate CDL and CLP holders and interstate non-CDL drivers to transport goods in response to the COVID-19 emergency, this waiver:

· Extends until June 30, 2020 the maximum period of CDL validity by waiving 49 CFR 383.73(b)(9) and 383.73(d)(6) for CDLs due for renewal on or after March 1, 2020.
· Extends until June 30, 2020 the maximum period of CLP validity by waiving 49 CFR 383.73(a)(2)(iii) and 383.25(c) for CLPs that are due for renewal on or after March 1, 2020, without requiring the CLP holders to retake the general and endorsement knowledge tests.
· Waives the requirement under 49 CFR 383.25(e) that CLP holders wait 14 days to take the CDL skills test.
· Waives the requirement under 49 CFR 391.45 that CDL holders, CLP holders, and non-CDL drivers have a medical examination and certification, provided that they have proof of a valid medical certification that was issued for a period of 90 days or longer and that expired on or after March 1, 2020. e.
· Waives the requirement under 49 CFR 383.71(h)(3) that, in order to maintain the medical certification status of “certified,” CDL or CLP holders provide the State Driver Licensing Agency with an original or copy of a subsequently issued medical examiner’s certificate, provided that they have proof of a valid medical certification that expired on or afterMarch 1, 2020.
· Waives the requirement under 49 CFR 383.73(o)(2) that the State Driver Licensing Agency change the CDL or CLP holder’s medical certification status to “not certified” upon the expiration of the medical examiner’s certificate or medical variance, provided that the CDL or CLP holders have proof of a valid medical certification that expired on or after March 1, 2020.
· Waives the requirements under 49 CFR 383.73(o)(4) that the State Driver Licensing Agency initiate a CDL or CLP downgrade upon the expiration of the medical examiner’s certificate or medical variance, provided that the CDL or CLP holders have proof of a valid medical certification or medical variance that expired on or after March 1, 2020.
· In accordance with 49 CFR 383.23(a)(1) and 391.41(a)(1)(i), FMCSA continues to recognize the validity of commercial driver’s licenses issued by Canadian Provinces and Territories and Licencias Federales de Conductor issued by the United Mexican States, in accordance with 49 CFR part 383, when such jurisdictions issue a similar notice or declaration extending the validity date of the medical examination and certification and/or validity of the corresponding commercial driver’s license due to interruption to government service resulting from COVID-19.

States, CDL holders, CLP holders, and interstate non-CDL CMV drivers are covered under this waiver without further action

We here at TSCI will continue to monitor and update you as we come across new and changing information.

We want to send out a very “heart felt” Thank you, to you, your drivers, your support staff, mechanics, and everyone else involved in keeping things moving. This is an unprecedented time in our history, and none of it could work without the efforts of all of you!

THANK YOU