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Can you use the ‘emergency exemption’ for your Hurricane Harvey relief efforts?

Familiarize yourself with key FMCSA definitions before drawing a conclusion

Posted August 31, 2017

There is often a big difference between what a driver or motor carrier considers an “emergency” and what the Federal Motor Carrier Safety Administration (FMCSA) thinks. Do you know when you can legitimately claim to be exempt from hours of service and other safety rules due to an “emergency”?

With hurricane Harvey in the news, it’s a good time to remind your drivers of when they can and cannot claim the emergency exemption.

Under 49 CFR §390.23, motor carriers and commercial drivers who “provide emergency relief during an emergency” are exempt from the Federal Motor Carrier Safety Regulations in 49 CFR Parts 390 through 399. This includes such requirements as hours of service and driver qualification.

It’s important to understand the definitions of some of the terms used above:

Emergency — any severe event (hurricane, tornado, high water, earthquake, drought, blackout, etc.) or other natural or man-made occurrence which interrupts the delivery of essential services such as electricity, medical care, sewer, water, telecommunications, etc., or essential supplies such as food and fuel, or otherwise immediately threatens human life or public welfare. The key to this definition, however, is that the event MUST result in a declaration of emergency (or tow truck drivers can be exempt if there is a police request for tow trucks). An emergency declaration must come from the President, a state governor(s), or the FMCSA.

Emergency relief — an operation in which a motor carrier or driver is providing “direct assistance” to add to state and local efforts and capabilities to save lives or property or to protect public health and safety as a result of an emergency.

Direct assistance — transportation and other relief services provided by a motor carrier or its driver(s) related to the immediate restoration of essential services or supplies. It does not include transportation related to long-term rehabilitation of damaged physical infrastructure or routine commercial deliveries after the initial threat to life and property has passed.

“Direct assistance” ends when a driver or commercial motor vehicle is used in interstate commerce to transport cargo not destined for the emergency relief effort, or when the motor carrier dispatches the driver or commercial motor vehicle to another location to begin operations in commerce.

When claiming the emergency exemption, keep the following in mind:

  • Relief from the Federal Motor Carrier Safety Regulations is limited to a maximum of 30 days, unless extended by the FMCSA itself. Refer to current emergency declarations listed on the FMCSA website.
  • Drivers eligible for the exemption are exempt in all states on their route to the emergency, even if those states are not involved in the emergency or stated in the declaration of emergency.
  • The federal exemption, when in effect, only applies to certain safety regulations. You still have to comply with CDL, drug/alcohol, hazardous materials, size and weight, insurance, and state/federal registration and tax requirements unless a governor's emergency declaration specifically adds one or more of those exemptions.
  • Even if an emergency declaration is still in effect, the emergency must be on-going and you must be providing direct emergency relief in order to be exempt from safety regulations.
  • Even though safety regulations may be suspended, the FMCSA expects drivers and carriers to use good judgment and not operate vehicles with fatigued or ill drivers, or under any conditions presenting a clear hazard to other motorists using the highways.
  • At the roadside, a driver may be asked to prove that he/she is exempt. The bill of lading, invoice, or other shipping document describing the cargo should be sufficient for this. Law enforcement officers are expected to give the benefit of the doubt if they can't really be certain that a load is destined for emergency relief.
  • Drivers are NOT required to log their hours while providing direct assistance. However, drivers should keep track of their total time providing direct assistance so that they can satisfy the requirements of §390.23(b) and (c) with regard to returning to duty once they’re done providing direct assistance.
  • After emergency work is complete, drivers are again subject to the regulations, with one exception: a driver may return empty to the motor carrier's terminal or the driver's normal work reporting location without complying with Parts 390-399. However, a driver who tells the motor carrier that he or she needs immediate rest must be given at least 10 consecutive hours off duty before being required to return to the terminal or other location.
  • To return to regular duty, the driver must comply with the driving, on-duty, and off-duty limits (§§395.3(a) and 395.5(a)). If the driver has been on duty for more than 60/70 hours in any 7/8 consecutive days, then the driver must be given at least 34 consecutive hours off duty.

This article was written by Daren Hansen of J. J. Keller & Associates, Inc.

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