DOT/FMCSA – Noteworthy Updates

On 5/01/20, the Federal Motor Carrier Safety Administration (FMCSA) announced a change to the Crash Preventability Demonstration Program and Safety Measurement System (SMS) that will permanently exclude no-fault crashes when calculating a carrier’s safety score. Effective immediately, if the FMCSA determines that a crash was not preventable,
it will no longer be included in the carrier’s Crash Indicator Behavior Analysis and Safety Improvement Category score in SMS.

On 5/13/20, the FMCSA extended its 3/13/20 and 3/18/20 emergency declarations until revocation of the Presidential-declared national emergency. The extended declaration is found here.

The FMCSA has further clarified how drivers may be exempt from certain regulations:

• Hours of Service (HOS) regulations do not apply while the driver is engaged with providing direct assistance under the emergency relief exemption.
• Hours worked in direct assistance do not count towards the 60/70-hour rule.
• The 34-hour restart is not required while engaged with direct assistance.
• Drivers must take 10 hours off duty after completing direct assistance.
• To account for the exemption on Electronic Logging Devices (ELDs), drivers may select “authorized personal use,” annotate the log to indicate operation under the emergency relief exception, or turn off the ELD.
• No specific documentation is required to verify operation under the emergency relief exception; however, bills of lading may help with later enforcement actions.

The FMCSA defines “direct assistance” as carriers and drivers transporting the following:

• Supplies and equipment necessary for healthcare worker, patient and community safety, sanitation, and prevention of COVID-19 spread in communities, including masks, gloves, hand sanitizer, soap and disinfectants;
• Food for emergency restocking of stores;
• Equipment, supplies and persons necessary for establishment and management of temporary housing and quarantine facilities related to COVID-19;
• Persons designated by federal, state or local authorities for transport for medical, isolation or quarantine purposes;
• Personnel to provide medical or other emergency services.

On 5/14/20, the FMCSA published its final rule updating HOS regulations for normal, non-exempt operation. The key revisions include:

• Extend on-duty time by 2-hours for adverse weather;
• Extend the “short haul” exception from 100 air-mile radius to 150 miles and increase allowable drive time from 12 hours on-duty to 14 hours;
• Allow drivers to split the required off-duty time into two periods: one period of at least 7 consecutive hours in the sleeper birth and a second period of not less than 2 consecutive hours either off-duty or in the sleeper berth;
• Allow one off-duty break of between 30 minutes and 3 hours that would pause the 14-hour driving window as long as the driver takes 10 consecutive hours off-duty at the end of the shift.

The final rule may be found here.

On 3/24/20, the Department of Transportation (DOT) issued guidance to clarify compliance with drug and alcohol testing given concerns with COVID-19.

• If compliance with DOT training and testing requirements is not possible due to COVID-19 closing of testing facilities, carriers must make a reasonable effort to locate necessary resources, such as mobile testing sites.
• If DOT testing is not possible, carriers must continue complying with DOT guidelines for documenting why a test was not completed.
• Even when testing is not possible, carriers must continue complying with DOT regulations. For example, without a “negative” pre-employment screen result, a carrier may not permit an employee from performing any DOT safety-sensitive functions.
• Employers may evaluate an employee’s refusal to test based on COVID-19 concerns and determine whether it should be considered a refusal under 49 CFR 40.355(i).

On 4/28/20, the California Air Resources Board (CARB) released a plan to require 5% of all Class 7 and 8 heavy trucks sold in 2024 to be electric vehicles, with a goal of 100% of trucks manufactured in California to be electric by 2045. The CARB is expected to vote on the new manufacturing standards at the end of June.

This publication is not intended to be all-encompassing and does not cover all situations and exceptions to general rules. To discuss the applicability or interpretation of any provision of the law to a specific situation, please contact an attorney at Hedrick Gardner Kincheloe & Garofalo, LLP.