5 BIG QUESTIONS Being Asked About FMCSA’s Historic 50-State H.O.S. Suspension
Washington, D.C. – In an historic action issued late Friday evening, the Federal Motor Carrier Safety Administration (FMCSA) granted unprecedented regulatory exemptions for commercial motor vehicle (CMV) operators and motor carriers transporting emergency relief in response to the coronavirus (COVID-19) outbreak.
The FMCSA’s Emergency Declaration suspended federal hours of service (HOS) regulations for those CMV operators and motor carriers involved in providing “direct assistance” in the transportation of relief supplies.
The Agency’s action came only hours after President Donald Trump declared the COVID-19 pandemic a “national emergency,” thereby paving the way for an additional $50 billion from the Disaster Relief Fund to be available to the Federal Emergency Management Administration (FEMA) to combat the health crisis.
While it has been fewer than 48 hours since the FMCSA’s regulatory relief measures were issued, many are anxious for much needed clarifications.
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READ FMCSA’s entire Emergency Declaration HERE.
Let’s take a look at a few important questions being asked among industry stakeholders.
1.) Was a 50-state Emergency Declaration needed?
As Americans have grown increasingly worried about the coronavirus pandemic in the last few weeks, “panic buying” has depleted warehouse inventories and retailers of essential living items such as food, bottled water, paper products, disinfectants, soap, hand sanitizer, and basic medical supplies.
Widely circulated reports of empty store shelves and long lines at grocery store chains around the nation have only led to more demand for these products in recent days.
Most freight analysts believe the coronavirus pandemic has pulled demand for these certain products forward and it will likely flatten out as we approach the summer months.
However, such elevated demand is putting a significant strain on America’s supply chain.
FMCSA Acting Administrator Jim Mullen said the Emergency Declaration is intended to “help America’s commercial drivers get these critical goods to impacted areas faster and more efficiently.”
Tim Wiseman is a managing partner at Scopelitis, a law firm specializing in transportation and currently representing many mid to large-sized trucking companies.
In an exclusive interview with Transportation Nation Network (TNN), Wiseman, who has been in trucking since 1985, says he believes “extraordinary times” calls for extraordinary measures.
“I think it’s a good thing,” he said. “It’s extraordinary and illustrative of the extraordinary times we are in with this pandemic. It’s just something we’ve never seen in our lifetime.”
2.) When exactly is a driver exempt?
It didn’t take long after the release of the Emergency Declaration for stakeholders to begin asking questions and seeking clarifications.
In fact, Wiseman says he found parts of the Declaration to be “a little bit muddy.”
For example, a CMV operator is to be exempted from HOS if he or she is under a load delivering “food for emergency restocking of stores.”
To illustrate why he believes trucking companies are finding parts of the Declaration to be “confusing,” Wiseman posed an example.
“You have a driver who might be making 10 stops every day across the Boston area and they [the motor carrier] add two more stops, for the purpose of emergency relief, to that driver’s day… extending his day from maybe 12 hours to 15 hours. What part of that day is exempt and what is not?”
While the Declaration disqualifies “mixed loads” from being covered under the exemption, Wiseman says it is not completely clear.
“When you have a driver who has 20-percent of his cargo that is essential supplies, but 80-percent not, what does that do to the HOS exemption? It doesn’t make any sense that the driver is 20-percent exempt. I think that’s where we need more guidance from the Agency.”
Stakeholders, including Wiseman, expect the FMCSA to post additional guidance to its website in the coming days.
3.) Is it worth the risk for drivers and motor carriers?
Should trucking companies and drivers take on the additional risks associated with such an unprecedented situation?
That’s a question TNN has been asking to numerous executives of major motor carriers since the FMCSA issued its Declaration.
The reaction so far has been split with some executives indicating they intend to continue to follow the HOS regulations as normal and others saying they are willing to “help out” during this time of need.
Wiseman says he is not seeing much “push back” from carriers he represents regarding the liability risks, but acknowledges there is more risk, especially if an accident occurs.
“The bigger liability is if one of your drivers who is over hours falls asleep at the wheel and crosses the center lane and kills somebody. What’s the carrier’s liability there because you allowed this driver to drive 100 hours that week? That’s the exposure carriers have.”
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An owner of one major trucking company told TNN “the risk is not worth it… at least not right now.”
As for drivers, given the nearly 1,000 comments made about the issue on TNN’s social media pages thus far, the reaction also seems to be mixed.
Some say they are gladly willing to accept the additional responsibility and risk, while others express resentment that the FMCSA quickly relaxes federal rules in times of need, but the rulemaking process often takes years.
Nevertheless, Wiseman urged drivers who do choose to haul emergency relief loads to communicate clearly with your motor carrier when you are tired and ensure you take the required breaks.
For motor carriers, he stressed the importance of listening carefully to these drivers and remaining compliant with each aspect of the Emergency Declaration.
4.) Will the Emergency Declaration be challenged in court?
Given the historic nature of the 50-state HOS exemption, it’s possible a safety advocacy group could challenge it in court and seek a temporary restraining order (TRO) or injunctive relief, Wiseman says.
However, Wiseman believes the FMCSA is on firm legal ground.
“In my view, I don’t see a court overturning this. It makes no sense from a legal standpoint.”
Still, it could be argued that the Declaration is “too vague,” making parts of it unenforceable.
Wiseman says that argument would likely not hold up either.
“Is it as clear and concise and detailed as we wish it was? Probably not. But is it sufficiently broad enough to be considered arbitrary or capricious? I doubt that.”
5.) Is the coronavirus pandemic an opportunity to educate the American public on the importance of the trucking industry?
Those who work in trucking know well the invaluable contributions made by the industry to our way of life, but is it possible the COVID-19 “national emergency” could greatly impact how millions of Americans view us too?
Count Wiseman as a “yes.”
“It is a time when the industry can really shine in the eyes of the public in providing the type of relief efforts we need right now. There’s going to be a lot of industries and occupations come to the forefront, but I think the nation is going to learn pretty quickly how vital this industry is to their well-being,” he predicted.
Many similar comments have also been shared and posted on TNN’s social media pages in the last few days.
However, Wiseman urged stakeholders not to “make a bad situation even worse” by price gouging during this time.
“It’s important for the industry not to abuse the exemption. I don’t think that will happen much, but I would certainly caution companies to not try to take advantage of a bad situation by any kind of price hikes and emergency surcharges. I think that’s short-sighted.”
We agree with Wiseman, and so many others, who have expressed confidence that the men and women who keep America moving will step up to meet this unique challenge, just like they have so many times before.