§390.23 Relief from regulations

Question 1: Does §390.23 create an exemption from the FMCSRs each and every time the delivery of electricity is interrupted, no matter how isolated or minor the occurrence?

Guidance: The rule creates an exemption from the FMCSRs when interruptions of electricity are severe enough to trigger a declaration of an emergency by a public official authorized to do so. However, utility service vehicles (USV), as defined in 49 CFR 395.2, are exempt from both Federal and State hours-of-service regulations, see 49 CFR 395.1(n). The USV exemption includes vehicles operated by electrical utilities.

An interruption of electricity that does not produce a declaration by a public official is not an emergency for purposes of §390.23 and does not exempt a motor carrier or driver from the FMCSRs, except as noted above. A call reporting a downed power line, whether directed to the State police or a public utility company, does not create a declared emergency, although drivers of utility service vehicles can respond to a downed power line without complying with Federal or State hours-of-service regulations.

The authority to declare emergencies has been delegated to different officials in the various States. The FMCSA has not attempted to list these officials. In order to utilize the exemption provided by §390.23, drivers and motor carriers must therefore ascertain that a declaration of an emergency was made by a State or local official authorized to do so.

Question 2: Section 390.23 provides that parts 390 through 399 do not apply to any motor carrier or driver operating a CMV to provide direct assistance in an emergency. Is a motor carrier or driver required to keep a record of the driver’s on-duty or driving time while providing relief?

Guidance: No.

Question 3: After providing emergency relief under §390.23, what on-duty hours must a driver use to determine how much off-duty time he/she must have before returning to the service of the employing motor carrier?

Guidance: The driver must total the number of hours worked while the driver actually provided direct assistance to the emergency relief effort.

Question 4: Upon termination of direct assistance to a regional or local emergency relief effort, as specified in §390.23(a), may utility company line crews return directly to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390-399?

Guidance: Yes. However, drivers of utility service vehicles are exempt from Federal and State hours-of-service regulations, see 49 CFR 395.1(n). Because the returning vehicles are transporting only crew members, tools, equipment, or materials not used in the emergency relief effort, they are considered to be “return(ing) empty” for purposes of §390.23(b).

Question 5: When an interstate tow truck operator responds to a request for assistance from a Federal, State or local police officer to move wrecked or disabled motor vehicles, what should the Record of Duty Status (RODS) required by Section 395.8 reflect for the time spent in the exempt status?

Guidance: The time spent responding to the police call is exempt under Section 390.23(a)(3). The entry on the RODS for the time spent in this activity should be entered as “exempt,” or “exempt under Section 390.23(a)(3).” Any time logged by the driver while engaged in activities that are NOT exempt must be accounted for on the RODS, but exempt time is not included in the computation of maximum driving time under Section 395.3. Please note that this exemption is only operative during the time that the tow truck operator is providing direct assistance to the emergency, or twenty-four hours from the time of the request, whichever is less. The driver and the motor carrier are also at all times subject to the prohibitions of Section 392.3 pertaining to ill or fatigued drivers. Section 390.23(c) applies to local and regional emergencies, not tow truck emergency operations.

Question 6: An emergency declaration states that after completed work under the declaration and returning to normal operations, a commercial vehicle driver must take 10 hours off. What if there is nowhere at the location for the driver to park?

Guidance: The driver may proceed to the nearest reasonable, safe location to obtain the required 10 hours of rest.

Question 7: How do the hours a driver worked under an emergency exemption impact the 60/70-hour rule when the driver goes back to normal operations?

Guidance: The hours worked providing direct assistance under the emergency relief exemption do not count toward the 60/70- hour rule.

Question 8: If there is an ELD in the truck, what should a driver do to account for the miles driven under an emergency declaration?

Guidance: There are three options:

• 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.
• Use the ELD in its normal mode and annotate the ELD record to indicate they were driving under the emergency relief exemption; or
• Turn off the ELD, in which case the carrier would address the unassigned miles in accordance with the current regulation

Question 9: What documentation is needed to verify that the driver is operating under an emergency declaration?

Guidance: 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.

Question 10: What safety regulations are NOT exempted by an Emergency Declaration?

Guidance: Drivers and motor carriers must continue to comply with the Controlled Substances and Alcohol Use and Testing requirements (49 CFR part 382), the Commercial Driver’s License (CDL) requirements (49 CFR part 383), the Minimum Levels of Financial Responsibility requirements (49 CFR part 387), and the Hazardous Materials Regulations (49 CFR parts 100-185).

Question 11: What other regulations are NOT exempted by a Declaration of Emergency?

Guidance: Declarations of emergency that trigger the provisions of 49 CFR 390.23 do not exempt motor carriers or drivers from requirements relating to license plates, taxes, oversize-overweight rules, or “for hire” Federal or State registration requirements. However, individual governors’ declarations may provide for exemptions from State laws or regulations.

Additionally, motor carriers or drivers currently subject to an out-of-service order are not eligible for the exemption until they have met the applicable conditions for its rescission and the order has been rescinded by FMCSA.

Question 12: Where do the emergency exemptions apply?

Guidance: Drivers responding to provide direct assistance to a declared emergency are exempt from applicable regulations in all States on their route to the emergency, even though those States may not be involved in the emergency or stated in the declaration of emergency.

Question 13: How do I need to identify my vehicle when providing direct assistance? What paperwork must I carry?

Guidance: There are no specific requirements to identify a vehicle operating under an emergency declaration or for paperwork that must be carried on the vehicle. However, drivers should be prepared to explain to law enforcement officers how their shipment qualifies under the emergency provisions.

Question 14: Do I need to stop at weigh stations when operating under a declared emergency exemption?

Guidance: Weigh stations are managed by individual States, so requirements to stop vary. Unless advised otherwise, you should assume that normal rules apply even during a declared emergency.

Question 15: Are loads that include supplies related to direct assistance under the emergency declaration mixed with other, un-related materials covered under an emergency declaration?

Guidance: 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.

Question 16: Is a driver required to take a 30-minute break while providing direct assistance under an emergency declaration?

Guidance: No, none of the hours of service regulations apply while the driver is engaged with providing direct assistance under the emergency relief exemption.

Question 17: How do I know what emergency declarations are in effect at any given time?

Guidance: The FMCSA makes every attempt to list known declarations of emergency on its website at www.fmcsa.dot.gov/emergency-declarations. Regional emergency exemptions based on 49 CFR 390.23 are valid for 30 days or the duration of the carrier’s or driver’s direct assistance whichever occurs sooner.

Question 18: Are motor carriers required to obtain approval from the FMCSA prior to participating in the emergency relief effort?

Guidance: No. With one exception, any motor carrier providing direct assistance, as defined in the regulations, to the emergency relief effort may participate. However, motor carriers that have an Out-of-Service (OOS) Order must continue to comply with that order during the emergency and are prohibited from providing any transportation of freight or passengers while the order is in effect.

Question 19: How do I log my time when operating under an emergency exemption?

Guidance: Since the hours-of-service rules do not apply when operating under declaration of emergency issued under 49 CFR 390.23, you do not have to maintain a record of duty status (log). However, it is recommended that, for future reference, you explain the activity in the log “remarks” section without completing the detailed grid.

Question 20: Can an emergency declaration be extended?

Guidance: Yes, under 49 CFR §390.25 FMCSA may extend the 30-day time period of a regional emergency declaration issued under 49 CFR §390.23(a)(1) taking into account the severity of the ongoing emergency and the nature of the relief services to be provided. If FMCSA extends an emergency declaration it will establish a new time period and will include any other necessary restrictions.

Question 21: Is the driver required to use a paper logbook or ELD when providing direct assistance under an emergency declaration?

Guidance: 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)).

Question 22: What does a driver need to do when returning to normal operations after operating under an emergency declaration?

Guidance: 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.

Question 23: What services and supplies are covered by an emergency declaration?

Guidance: In general, direct assistance includes the immediate restoration of essential services (such as electricity, medical care, sewer, water, telecommunications, and telecommunication transmissions) or essential supplies (such as food and fuel). It is not possible to list what would be essential in each emergency situation.

Question 24: What would NOT be included in exempt services and supplies in a declared emergency?

Guidance: The emergency exemption 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. The services and supplies must be intended to meet immediate needs.

Question 25: How do State and Federal Declarations of Emergency affect motor carrier operations?

Guidance: When an official governmental Declaration of Emergency is issued for a type of major emergency, motor carriers and operators of commercial motor vehicles that are providing emergency relief through direct assistance to support State and local efforts to save lives or property or to protect public health or safety, are relieved from the Federal Motor Carrier Safety Regulations listed in 49 CFR Parts 390-399. (The italicized words are defined in 49 CFR 390.5.) Even though safety regulations may be suspended, drivers and carriers are expected to use good judgment and not to operate vehicles when drivers are fatigued or ill, or under any conditions presenting a clear hazard to other motorists using the highways

Question 26: I have a truck that is not normally used commercially and a local charitable group wants me to take donated clothing and supplies to the impacted area. What do I need to know?

Guidance: Be certain to read all of the FAQs for 49 CFR 390.23 to ensure compliance, and consult your State’s commercial vehicle enforcement officers (usually State Police) if in doubt. It is very strongly recommended that you have a definite trip plan in mind before starting toward the disaster area. In other words, know what materials are needed and desired, exactly where you will deliver them, what routes are open, etc. For most major emergencies, websites are deployed to help provide this type of information.

Question 27: Am I still exempt while returning empty from delivering an exempt load?

Guidance: 49 CFR 390.23 provides, in part, “…A driver may return empty to the motor carrier's terminal or the driver's normal work reporting location without complying with parts 390 through 399 of this chapter. However, a driver who informs the motor carrier that he or she needs immediate rest must be permitted at least 10 consecutive hours off duty before the driver is required to return to such terminal or location. Having returned to the terminal or other location, the driver must be relieved of all duty and responsibilities. Direct assistance terminates 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 such driver or commercial motor vehicle to another location to begin operations in commerce.”

Question 28: What regulations are included in 49 CFR Parts 390-399?

Guidance: Among the major regulations are those safety rules relating to hours of service, vehicle maintenance and inspection, and general driver qualifications. The complete Federal Motor Carrier Safety Regulations can be found at www.fmcsa.dot.gov/regulations.

Question 29: Is the time spent driving to pick up a truck regulated as on duty time?

Guidance: No. Time spent travelling to work in a personal vehicle does not meet the definition of on duty time in 49 CFR 395.2.