FMCSA Temporarily Waives Hours of Service (HOS) Requirements In Response To Baby Formula Shortage

5/28/2022
Robert D. Boroff By Robert D. Boroff, Anthony R. Santiago

On May 23, 2022, the Federal Motor Carrier Safety Administration (“FMCSA”) issued a Regional Emergency Declaration  (“Emergency Declaration”) in response to the recent closure of a key manufacturing facility of baby formula and the on-going baby formula shortage. As part of the Emergency Declaration, the FMCSA issued a temporary waiver of the hours of service requirements for motor carriers and drivers who provide “direct assistance to the nationwide emergency.”

Generally, 49 C.F.R. § 395.3 provides that motor carriers and drivers of property-carrying commercial motor vehicles may only drive a maximum of 11 hours in an on-duty period of 14 consecutive hours, after at least 10 consecutive hours off-duty. A driver may not drive after 14 consecutive hours on-duty. Additionally, a driver cannot drive after being on-duty 60 hours in 7 consecutive days (applies to motor carriers who do not operate all seven days of the week) or 70 hours in 8 consecutive days (applies to motor carriers who operate all seven days of the week).

The FMCSA, however, has declared that the hours of service requirements found in 49 C.F.R. § 395.3 are “temporarily waived” for motor carriers and drivers transporting baby formula, the other ingredients for production, such as corn syrup, casein, hydrolyzed protein, or whey, and containers and packaging for baby formula.

Motor carriers and drivers should be aware that this temporary waiver of the hours of service requirements does not apply to: 1) motor carriers or drivers currently subject to an out-of-service order, or 2) routine commercial deliveries, including mixed loads with a nominal quantity of qualifying emergency relief. Motor carriers and drivers should also be aware that they become subject again to the requirements found in 49 C.F.R. § 395.3 upon termination of providing direct assistance to the emergency relief efforts, but drivers may return empty without having to comply with 49 C.F.R. § 395.3.

Once drivers have moved from emergency relief efforts to normal operations, they must take a 10-hour break when the total time a driver was engaged in emergency relief efforts, or in a combination of emergency relief and normal operations, totals 14 hours or more.

Though the federal government is willing to temporarily waive the hours of service requirements for those providing direct assistance to this nationwide emergency, motor carriers and drivers must still operate their commercial motor vehicles using ordinary care and in compliance with the other Federal Motor Carrier Safety Regulations and State and local laws. In particular, motor carriers and drivers must still comply with 49 C.F.R. § 392.3 (“no driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle”), 49 C.F.R. § 392.4(a) (“no driver shall be on duty and possess, be under the influence of, or use, any of the following drugs or other substances” outlined in subparagraphs (1) – (4)), 49 C.F.R. 392.5 (no driver shall use alcohol in contravention of this Section), and 49 C.F.R. § 390.9 (“except as otherwise specifically indicated…, this chapter is not intended to preclude States… from establishing or enforcing State or local laws relating to safety…).

The Emergency Declaration will remain in effect until the end of the emergency or until June 30, 2022, whichever is earlier. FMCSA will continue to review the status of the Emergency Declaration and may extend, modify, or terminate, if necessary.

As always, we will continue to monitor this update and provide more information as it is disseminated.