Trucking wants more clarity on emergency HOS waiver

A rare emergency waiver from trucking hours-of-service (HOS) regulations provides welcome relief to an industry responding to supply chain disruptions caused by the coronavirus — while simultaneously leaving carriers confused over what the waiver actually covers.

The declaration, issued late Friday by the Federal Motor Carrier Safety Administration (FMCSA), details several types of freight considered to be “direct assistance in support of emergency relief efforts” related to COVID-19 and therefore exempt — at least until April 12, but potentially longer — from current HOS work limits.

Those include medical supplies and equipment; masks, gloves, hand sanitizer, soap and disinfectants; and food for emergency restocking of stores.

But much of the confusion centers around what is not considered direct assistance — are certain types of perishables excluded? In addition, according to FMCSA, the waiver doesn’t include “routine commercial deliveries,” but it does not specifically define “routine.” The waiver also does not include loads that mix essential and non-essential supplies and equipment.

The lack of clarity has made some carriers hesitant to advise their drivers on what they can and cannot haul in furtherance of the emergency response. “We’re at a loss in terms of interpreting what Friday’s announcement meant,” Cory Manzi, vice president of brokerage operations for John Christner Trucking, told FreightWaves.

Manzi said that while water is considered by many to be an “emergency” supply for a grocery store, “you can go into a lot of stores right now and see no meat, or dairy products wiped off the shelves as well — so are those considered emergency supplies?”

As a result, he said, “we’re not changing any of our policies until we get more clarity on what our options are. The last thing we want is to open ourselves up to unnecessary risk due to any misinterpretation or a lack of detailed information.”

An FMCSA official told FreightWaves that the agency is considering the issue.

Brandon Wiseman, an attorney with the law firm Scopelitis, agrees that more clarity is warranted in the emergency order. Wiseman said his clients are seeking more clarity on what defines a “routine commercial delivery” made in direct connection with the emergency relief efforts.

“A lot of the questions we’re getting are, how do we as a carrier know specifically that our deliveries are being made in support of the emergency relief effort, or whether they’re just a routine commercial delivery?” Wiseman said. “Unfortunately, we don’t yet have an answer from the FMCSA on that.”

If and when that occurs, “our advice to carriers is, to the extent you’re able, document what’s on your truck to make sure it falls into one of the six categories listed in the emergency order. Also, keep track of anything you can point to that supports your position that your deliveries are in furtherance of the emergency relief efforts — even if it’s just showing that the demand has gone up for the products that you’re delivering. Anything that you have in that regard will be helpful down the line.”

Wiseman said the question of “mixed loads” is another gray area. “If I’m a carrier that has a bunch of masks and test kits going to a hospital but I also have ‘normal’ deliveries that I routinely make to the hospital on my trailer, does that mean my driver’s not exempt? The declaration suggests that such a delivery would not be. But is that what FMCSA intended?”