In March 2020, as domestic COVID-19 outbreaks first became widely reported, the Federal Motor Carrier Safety Administration (“FMCSA”) gave notice that it would exercise its discretion to not take enforcement action on certain Federal Motor Carrier Safety Regulations (“FMCSRs”) relating to expiring driver’s licenses and medical examiner’s certificates. The notice, the FMCSA explained, was designed to provide relief to Commercial Learner’s Permit (“CLP”) holders, Commercial Driver’s License (“CDL”) holders, non-CDL commercial drivers, and motor carriers using those drivers in light of: (1) the closure or high employee absence rate of many State Driver Licensing Agencies in response to social distancing guidance issued by the U.S. Center for Disease Control, which left many drivers unable to renew licenses or provide required medical certificates to licensing authorities; and (2) the reported cancellation by medical providers nationwide of regularly-scheduled appointments to dedicate resources to COVID-19 response, which left many drivers unable to obtain appointments for the physical examinations required under the FMCSRs. According to the FMCSA, maintaining an “adequate and sustained” supply of commercial drivers is important during the pandemic in order to ensure transportation of essential supplies, essential equipment, and essential workers, the continued successful operation of the country’s energy supply and transportation networks, and the “safety and economic stability” of the nation.
The FMCSA’s initial policy was effective from March 24, 2020 through June 30, 2020. On June 15, 2020, the FMCSA issued notice that it was extending the policy through September 30, 2020. The extension, like the original policy, applies to CLP holders, CDL holders, and non-CDL drivers: (1) holding licenses issued for less than the maximum period set by 49 C.F.R. 383.25 and 383.73 (for CLPs, no more than one year from the initial date of issuance; for CDLs, no more than eight years from issuance); and (2) holding licenses that were valid on February 29, 2020 and expired on or after March 1, 2020. Under the extension policy, the FMCSA exercises its discretion to decline enforcement action on the following regulations through September 30, 2020:
(1) 49 CFR 383.23(a)(2), which provides that, ordinarily, no person may legally operate a commercial vehicle unless that person holds a CDL issued by his or her state of domicile. Enforcement of this regulation will not be pursued against CLP or CDL holders operating a commercial vehicle with an expired license, but only if the license was valid as of February 29, 2020 and expired on or after March 1, 2020.
(2) 49 CFR 383.37(a), which provides that, ordinarily, no employer may “allow, require, permit, or authorize” a driver to operate a commercial vehicle during any period in which the employer knows or reasonably should know that the driver does not have a current CLP or CDL. Enforcement will not be pursued against motor carriers allowing CLP or CDL drivers holding licenses that were valid on February 29, 2020 and expired on or after March 1, 2020 to operate commercial vehicles.
(3) 49 CFR 391.11(b)(5), which provides that, ordinarily, a person is only qualified to drive a commercial vehicle if (among other things) he or she holds a currently valid operator’s license issued by only one state or jurisdiction. Enforcement will not be pursued against any commercial driver (whether holding a CLP, CDL, or non-CDL license) or motor carrier that allows operation of a vehicle by a driver whose license has expired but only if: (1) the driver is otherwise qualified to drive under Section 391.11; and (2) the license in question expired on or after March 1, 2020.
(4) 49 CFR 391.45(b), which provides that, ordinarily, any driver who has not been examined and medically cleared to operate a commercial vehicle in the preceding 24 months must undergo a medical exam and obtain certification to continue driving. Enforcement will not be pursued against any driver (or employing motor carrier) who lacks a current medical certificate and/or required medical variance, but who can present evidence of a medical certificate and any required variance that was valid on February 29, 2020 and expired on or after March 1, 2020.
The policy makes clear that, notwithstanding these areas of discretionary non-enforcement, drivers and motor carriers are required to comply with all other FMCSRs and other applicable law. The policy also clearly defines its limits. Drivers holding licenses or medical certificates that expired on or before February 29, 2020 (and the motor carriers who employ them) are not given relief from possible enforcement action under the policy. The message is clear: Drivers and motor carriers cannot use the COVID-19 pandemic or the relief afforded by the FMCSA as a shield against regulatory violations that predate either. Drivers or motor carriers who are aware of licensure or certification requirement violations that pre-date the pandemic, and fall outside the window of the FMCSA’s non-enforcement policies, should act swiftly to correct them.
The team at Ansa Assuncao LLP has extensive experience counseling motor carrier and transportation clients on the applicability and effect of FMCSA regulations and policies. We’re ready to guide clients through how those regulations and policies apply in a pandemic and after.