By The Maritime Executive
The ocean freight sector was hit hard by the coronavirus outbreak's impact on Chinese manufacturing and logistics, and ocean carriers have been forced to blank sailings to and from China and the United States. The Federal Maritime Commission reports that based on its consultations with ocean carriers, cargo levels and services on the trans‐Pacific trades are now returning to pre-outbreak levels.
However, the FMC expects that the outbreak's impact in U.S. West Coast ports will linger over the next few weeks while vessels are still in transit, and there may still be logistical challenges in processing cargoes on the U.S. side. In addition, refrigerated exports out of the United States are currently hampered by a shortage of reefer containers, which may take somewhat longer to rectify.
“I was heartened to hear that shipping lines have indicated that there is cargo for pickup and that trucking, and port operations have substantially resumed in China. I remain concerned that there will continue to be negative economic impacts as a result of delays, as shipments transit the Pacific from China. I would hope that the industry resists the temptation to take actions to price gouge or otherwise unfairly leverage their position," said Federal Maritime Commissioner Carl W. Bentzel in a statement. "Our ability to recover from this economic disruption through the resumption of maritime commerce underscores the criticality and importance of our maritime trade . . . I believe we all owe a debt of gratitude to the ocean carriers and their crews, the longshoremen who continue to process vital supplies, the truckers and railroad laborers who deliver cargo throughout the nation. We have to make sure that our policies continue to allow these vital functions to continue.”
Commissioner Bentzel also called on the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA) to clarify that the U.S. freight transportation industry is an "essential critical infrastructure industry."
"Longshoremen, trucking, railroad employees, and other affiliated organizations such as truck and rest stop operators, should be exempted from restrictions that restrict their abilities to function," Bentzel wrote. "This action should help avoid issues such as the provision of priority testing for transportation employees, and continuation of services at truck and rest stops to allow the trucking industry to operate with limited interruption."
TRENTON – Governor Phil Murphy and New Jersey Motor Vehicle Commission Chief Administrator Sue Fulton have announced that due to the COVID-19 outbreak and to protect the public, the MVC will extend expiration dates for driver licenses, registrations, and inspection stickers.
Effective immediately, the NJMVC will grant a two-month extension for:
“All residents who have their driver’s licenses, auto registration, or vehicle inspection due for a renewal by May 31 will receive an automatic two-month extension,’’ said Governor Murphy. “Keeping New Jerseyans out of crowded Motor Vehicle agencies is another step we can take to limit exposure and hold the line against the spread of COVID-19.”
“Extending the expiration dates will reduce the numbers of customers who come through our agencies daily, helping us to reduce the risk to New Jerseyans,” Chief Fulton said. “We also strongly encourage customers to renew their licenses and registrations online if they are eligible.”
For expiration dates falling in March, the renewal deadline is extended to May; for expiration dates falling in April, the renewal deadline is extended to June; for expiration dates falling in May, the renewal deadline is extended to July.
By law, Chief Administrator Fulton has the authority to extend expiration dates when a State of Emergency has been declared. Governor Murphy declared a State of Emergency and Public Health Emergency on March 9 as part of the state’s coordinated response to limit the spread of COVID-19.
The NJMVC continues to encourage those customers who are eligible to conduct online transactions, including license renewals, vehicle registrations and change of address, to do so by visiting NJMVC.gov.
Customers should check NJMVC.gov for the latest information and updates.
WASHINGTON — The U.S. Environmental Protection Agency (EPA) announced several steps the Agency is taking to protect the Nation’s gasoline supply in response to the COVID-19 pandemic.
EPA intends to provide additional flexibility to the marketplace to transition from winter-grade, high volatility gasoline to summer-grade low vapor pressure gasoline. Due to the steep fall-off in gasoline demand as a result of the COVID-19 pandemic, gasoline storage capacity is limited and more time is needed to transition the distribution system in order to come into compliance for the summer driving season. EPA will temporarily waive the summer low volatility requirements and blending limitations for gasoline.
Without a waiver of the summer gasoline requirements, parties upstream of retailers and wholesale purchasers would be required to stop selling the winter gasoline sitting in their storage tanks on May 1, 2020, which would prevent them from loading summer gasoline into the storage tanks, resulting in a shortage of gasoline. By waiving the low volatility and blending limitations through May 20, 2020, EPA will ensure a steady supply of gasoline. EPA will continue to monitor the adequacy of gasoline supplies and, should conditions warrant, may modify or extend this waiver at a later date.
Additionally, EPA does not intend to unilaterally revisit or rescind any previously granted small refinery exemptions issued for prior compliance years. As noted in the temporary policy on COVID-19 Implications for EPA's Enforcement and Assurance Program, issued yesterday, EPA is focused on protecting our employees and ensuring continued protection of public health and the environment from acute or imminent threats during the COVID-19 pandemic. Therefore, investigating and initiating enforcement actions against small refineries that were previously subject to an exemption is a low priority for the agency. EPA intends to develop an appropriate implementation and enforcement response to the Tenth Circuit’s decision in RFA v. EPA once appeals have been resolved and the court’s mandate has been issued.
Finally, in a forthcoming action, EPA intends to extend the RFS compliance date for small refineries to provide them with additional flexibility.
Industry Survey Seeks Operating Impacts from Drivers, Fleets
Minneapolis, MN – The American Transportation Research Institute (ATRI) and the Owner-Operator Independent Driver Association Foundation (OOIDA Foundation) are conducting a joint research study to understand the numerous impacts that the Coronavirus pandemic is having on trucking operations. The research focuses heavily on a survey that solicits critical input from truck drivers and motor carrier staff who are encountering Covid-19 impacts such as limited shipper access, changing distribution patterns and traffic-related issues.
“This survey will help us confirm what we know anecdotally,” said Tom Weakley, Director of the OOIDA Foundation, “that the trucking industry is leading the charge in responding to food and medicine shortages among other critical supplies. We need everyone’s input on this effort.”
The survey can be found at: https://www.surveymonkey.com/r/ATRI-Coronavirus-Perspectives.
Anyone involved in trucking operations is urged to respond.
“Our goal is to complete the data analysis as quickly as possible, as it can provide important guidance to public and private decision-makers. The Covid-19 pandemic is a moving target, and we can’t afford to design policies and supply chains around guesswork,” said Dan Murray, Senior Vice President at ATRI.
FMCSA COVID-19 Drug & Alcohol Testing Guidance.pdf
DISRUPTIONS TO DRUG AND ALCOHOL TESTING DUE TO THE CORONAVIRUS DISEASE 2019 (COVID-19) PRESIDENTIALLY DECLARED NATIONAL EMERGENCY
To help ensure the safety and well-being of everyone, while also ensuring that we continue to meet our mission, we are providing the following guidance in effect until May 30, 2020 (90 days from the date proclaimed as the beginning of the national emergency in the President’s Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak), unless the national emergency is extended beyond that date.
Please click on this link to access information, provided by DOT’s Office of Drug and Alcohol Policy Compliance (ODAPC), about the impact of the COVID-19 national emergency on DOT drug and alcohol testing requirements for employers, employees, and service agents. The Federal Motor Carrier Safety Administration (FMCSA) regulations provide reasonable flexibility to motor carrier employers and their drivers subject to testing under 49 CFR part 382 to address the COVID-19 national emergency. FMCSA is aware that, as described in ODAPC’s guidance, disruptions caused by the COVID-19 national emergency are interfering with, and in some cases, may be preventing, employer and driver compliance with current drug and alcohol testing requirements. In addition to the guidance provided by ODAPC, see below for further information specifically related to FMCSA’s testing requirements.
Recommended actions for FMCSA-regulated employers unable to conduct:
• Random Testing – You are required by 49 CFR 382.305(k) to ensure that the dates for administering random alcohol and controlled substances tests are spread reasonably throughout the calendar year. DOT guidance further recommends that you perform random selections and tests at least quarterly.
For further guidance see https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Best_Practices_for_DOT_Random_Drug_and_Alcohol_Testing_508CLN.pdf.
If, due to disruptions caused by the COVID-19 national emergency, you are unable to perform random selections and tests sufficient to meet the random testing rate for a given testing period in order to achieve the required 50% rate for drug testing, and 10% for alcohol testing, you should make up the tests by the end of the year. You should document in writing the specific reasons why you were unable to conduct tests on drivers randomly selected, and any actions taken to locate an alternative collection site or other testing resources.
• Pre-Employment Testing – If you are unable to conduct a pre-employment controlled substances test, in accordance with 49 CFR 382.301(a), you cannot allow a prospective employee to perform DOT safety sensitive functions until you receive a negative pre-employment test result, unless the exception in 49 CFR 382.301(b) applies.
• Post-Accident Testing – You are required to test each driver for alcohol and controlled substances as soon as practicable following an accident as required by 49 CFR 382.303. However, if you are unable to administer an alcohol test within 8 hours following the accident, or a controlled substance test within 32 hours following the accident, due to disruptions caused by the COVID-19 national emergency, you must document in writing the specific reasons why the test could not be conducted, as currently required. See 49 CFR 382.303(d) and FMCSA Guidance at: https://www.fmcsa.dot.gov/regulations/drug-alcohol-testing/commercial-motor-vehicle-operator-involved-accident-which
• Reasonable suspicion testing – You should document in writing the specific reasons why the test could not be conducted as required; include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. This documentation should be provided in addition to the documentation of the observations leading to a test, as required by 49 CFR 382.307(f). Follow current regulations addressing situations in which reasonable suspicion testing is not conducted, set forth in 49 CFR 382.307(e)(1), (2).
• Return-to-duty (RTD) testing – In accordance with 49 CFR 40.305(a), you must not allow the driver to perform any safety-sensitive functions, as defined in 49 CFR 382.107, until the RTD test is conducted and there is a negative result.
• Follow-up testing - If testing cannot be completed, you should document in writing the specific reasons why the testing could not be conducted as in accordance with the follow-up testing plan; you should include any efforts you made to mitigate the effect of the disruption, such as trying to locate an alternative collection site. You should conduct the test as soon as practicable.
Please follow the ODAPC guidance, as set forth below, and available at: https://www.transportation.gov/odapc/compliance-with-dot-drug-and-alcohol-testing-regulations.
• As a reminder, it is the employer’s responsibility to evaluate the circumstances of what may be considered an employee’s refusal to test and determine whether or not the employee’s actions should be considered a refusal as per 49 CFR § 40.355(i).
 This guidance document does not have the force and effect of law and is not meant to bind the public in anyway. This guidance is intended only to provide clarity regarding existing requirements under the law.
Last updated: Tuesday, March 24, 2020
Today, the American Transportation Research Institute is releasing new data showing that trucks are continuing to move – in many cases faster than usual – to respond to the demands placed on the industry by the COVID-19 pandemic.
“ATRI’s real-time GPS data comes from more than a million trucks, allowing us to analyze freight flows, and so far in March, what we are seeing is an unprecedented level of truck movement,” said ATRI President and COO Rebecca Brewster. “Not only are trucks continuing to move, but they are doing so at speeds well in excess of normal traffic patterns.”
For example, according to ATRI’s data, at the intersection of I-85 and I-285 in Atlanta, known locally as Spaghetti Junction, afternoon rush hour truck speeds are typically less than 15 MPH due to congestion. Last week, truck speeds averaged 53 MPH.
“Spaghetti Junction is typical of what we’ve seen across the country, especially in areas hit hard by the virus and subject to quarantines and lockdowns,” Brewster said. “As other traffic dissipates, trucks continue to move, delivering much-needed relief supplies to markets, hospitals, gas stations and other essential businesses.”
Among the hardest hit states, New York, California and Illinois, the data is showing similar changes.
According to ATRI’s analysis, the results can be explained by several COVID-19 related factors: first is the dramatic reduction in commuter traffic, allowing trucks to operate at higher speeds, particularly during traditional rush hours. Second, is the continuous 24/7 truck operations that generate higher average truck speeds across nearly all hours of the day.
ATRI’s analysis used truck GPS data from more than a million heavy-duty trucks and the locations examined included some of the nation’s top truck choke points.
“Normally, ATRI’s bottleneck data is used to show us where the problems are on our highway system,” said American Trucking Associations President and CEO Chris Spear, “but during this period of extreme uncertainty, the data is showing us where the solution is – in the back of America’s trucks as professional drivers continue to quickly and safely deliver life-sustaining medical supplies, food, fuel and other essentials to Americans when they need it most.”
The Delaware River Joint Toll Bridge Commission (DRJTBC) today announced it will shift to temporary cashless toll collections 10 p.m. Tuesday, March 24, in response to the worsening coronavirus/COVID-19 pandemic.
Until further notice, tolls at the Commission’s seven cash/E-ZPass tolling points will be assessed electronically via E-ZPass or through toll notices sent to registered vehicle owners via U.S. Mail. (Note: Latest available statistics show more than 75 percent of transactions at Commission toll bridges are now collected through E-ZPass.)
The new emergency toll-collection process will eliminate exchanges of currency and change that could spread coronavirus among customers and Commission personnel.
New Tolling Process for Previous Cash Customers
There are no changes for E-ZPass customers; they are urged to proceed through lanes marked for E-ZPass as they do now.
Motorists who previously paid cash at Commission toll plazas will be directed to a single lane (far right) at each tolling point. While these lanes will have overhead signs reading “cash,” the respective toll booth will be closed with an accompanying placard stating “Cashless tolling in effect. Keep moving.” Motorists should move through these lanes at 5 MPH without stopping.
In the absence of toll-both attendants, overhead equipment will record the passage of any vehicle without a functioning E-ZPass transponder. A bill for the transaction — for the toll charge only — will be prepared and mailed to the vehicle’s registered owner at a future date. (Since this is a new process, specific details about the wording of billing notices and issuance dates are still being worked out.)
PaymentAs currently planned, a non-E-ZPass-equipped vehicle’s owner would have 30 days from a toll-notice’s issuance date to provide payment to the Commission’s toll-processing service provider – the regional New Jersey E-ZPass Customer Service Center. Payment can be made by credit card or check. More information will be on the notice.
Penalties for Missing Payment Deadline
Failure to make payment by the prescribed due date will cause the toll bill to be placed in violation. A $30 violation fee will be applied to each toll transaction that goes unpaid and ascends to violation status.
Applicable Toll Bridges
The new toll-assessment process applies to the following seven toll bridges:
(The Commission’s Scudder Falls [I-295] Toll Bridge is an all-electric toll facility and is not affected by this new temporary emergency process.)
E-ZPass – Safer, More Convenient Way to Go
Motorists who must travel during the current coronavirus crisis are encouraged to get E-ZPass if they don’t already utilize the electronic toll-paying service. Advantages include enhanced safety, convenience, and possible time and cost savings.
As previously noted, the entity that processes DRJTBC toll transactions is the regional NJ E-ZPass Customer Service Center, which serves seven toll agencies located or domiciled in New Jersey, Pennsylvania and Delaware. Accounts may be established with this E-ZPass service provider by going to www.ezpassnj.com or I-888-AUTO-TOLL (1-888-288-6865). This regional toll processor – which is not a New Jersey state government agency – has served the DRJTBC for more than five years.
E-ZPass use has numerous benefits:
FMCSA Emergency Declaration FAQ 3-19-20.pdf
Are loads that include supplies related to direct assistance under the emergency declaration mixed with other, un-related materials covered under the declaration?
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.
Is a driver required to take a 30-minute break?
No, none of the hours of service regulations apply while the driver is engaged with providing direct assistance under the emergency relief exemption.
How do the hours a driver worked under the emergency exemption impact the 60/70-hour rule when the driver goes back to normal operations?
The hours worked providing direct assistance under the emergency relief exemption do not count toward the 60/70- hour rule.
Is a 34-hour restart required after providing direct assistance under the emergency declaration?
No, however, upon completion of the direct assistance and prior to returning to normal operations, the driver is required to meet the requirements of §§ 395.3(a) and (c) and 395.5(a), which include, for example, the requirement to take 10 hours off duty (8 hours for passenger carriers) and to comply with the on-duty limit of 60/70 hours in 7/8 days before returning to driving.
Is the driver required to use a paper logbook or ELD?
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)).
If there is an ELD in the truck, what should a driver do to account for the miles driven?
There are three options
What does a driver need to do if taking a backhaul not covered by the exemption after transporting an exempt load?
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.
Are livestock a covered commodity under the terms of the emergency declaration?
Yes, Livestock are covered as a precursor to food. The emergency declaration covers “immediate precursor raw materials—such as paper, plastic or alcohol—that are required and to be used for the manufacture of items” including food needed for the emergency restocking of stores.
Are haulers of household waste and medical waste covered under the terms of the declaration?
Yes, transportation for removal of both household and medical waste is covered as “supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19.”
What documentation is needed to verify that the driver is operating under the exemption?
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.
Does FMCSA have preemptive authority over states that decide/attempt to close highway rest stops?
No, however FMCSA is working closely with the States to ensure adequate truck parking and facilities are available.
With the unprecedented level of business closures over the last week throughout New Jersey, New York and Pennsylvania resulting from the spread of COVID-19, many companies are facing innumerable challenges in revenue cycles and supply chains. Because these rapid and –in some cases devastating—changes are occurring as a result of world events that are outside of the control of businesses, force majeure provisions should be analyzed in all existing contracts.
A force majeure clause in a contract “provides a means by which the parties may anticipate in advance a condition that will make performance” of that contract “impracticable” or impossible. If an “unforeseen event,” that impacts performance of a contract occurs, courts may give such a provision a reasonable interpretation based upon the circumstances at the time. Examples of events that are often listed as triggering a force majeure event include labor and material shortages, strikes, wars, terrorist attacks, government orders and acts of God. While the rapid spread of a communicable virus such as COVID-19 may not be specified in every force majeure clause, courts have interpreted “acts of God” to extend “not just to natural events such as storms but to ‘comprehend all misfortunes and accidents arising from inevitable necessity which human prudence could not foresee or prevent.’” Consequently, businesses that are faced with contracts that are impossible to perform as a result of COVID-19 may be excused from performance based upon a force majeure clause.
Businesses that have contracts that include no force majeure clause may also have protection. New Jersey Courts and others have held that force majeure principles may be invoked by companies by asserting the defense of impracticability or impossibility. In short, a party to a contract may defend their breach of a contract by proving the unavailability of a certain thing – i.e., a healthy workforce – simply makes performance of the contract impracticable or impossible.
Businesses that are facing challenges performing contracts or those businesses that have partners who may be at risk of breach should have counsel perform a detailed review of existing force majeure provisions. There may also be circumstances that justify a business forced to consider breaching a contract to affirmatively invoke the defense of impossibility. It is important to understand what options parties to a contract may have in this rapidly-changing commercial environment.
 Facto v. Pantagis, 390 N.J. Super. 227, 231-232 (App. Div. 2007).
 Id. (quoting Meyer Bros. Hay & Grain Co. v. Nat’l Malting Co., 124 N.J.L. 321, 323 (Sup. Ct. 1940)).
 Id. (citing Opera Co. of Boston, Inc. v. Wolf Trap Found. For Performing Arts, 817 F.2d 1094 (4th Cir. 1987)); see also Petrozzi v. City of Ocean City, 433 N.J. Super. 290, 302 (App. Div. 2013); M.J. Paquet, Inc. v. N.J. Dept. of Transp., 171 N.J. 378, 390 (2002).
The COVID-19/Coronavirus crisis is bringing many aspects of American life to a halt, but the Commercial Vehicle Safety Alliance (CVSA) says that their biggest trucker inspection campaign will likely go on as planned.
As concerns over COVID-19 spread, the CVSA elected to cancel planned events for the month of April, but they say that May’s three day Roadcheck campaign is still going to happen.
Will Schaefer, the Director of Safety Programs for the CVSA, told CDLLife that “Presently we plan to proceed with Roadcheck, as inspections are continuing to be conducted today. But we are following developments closely. And we note that Roadcheck will take into account USDOT emergency declarations in effect at the time of inspections.”
Roadcheck is scheduled to take place May 5 — 7 throughout North America, a month earlier than usual in hopes of conducting the event in more favorable weather than in early June.
The focus of this year’s Roadcheck will be on “driver requirements.” According to Federal Motor Carrier Safety Administration (FMCSA) data, in 2019, 3.36 million CMV inspections were conducted and during these inspections, 944,794 driver violations were discovered, of which 195,545 were out-of-service conditions.
“With last year’s federal electronic logging device full-compliance mandate in the U.S., the Alliance decided that this year’s International Roadcheck would be the perfect opportunity to revisit all aspects of roadside inspection driver requirements,” said CVSA President Sgt. John Samis with the Delaware State Police.
During the 72 hour Roadcheck blitz, 15 trucks or buses inspected, on average, every minute across North America.