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United States Department of Transportation United States Department of Transportation

Waiver in Response to the COVID-19 National Emergency – For States, CDL Holders, CLP Holders, and Interstate Drivers Operating Commercial Motor Vehicles (August 31, 2021)

Federal Motor Carrier Safety Administration
1200 New Jersey Avenue, SE Washington, DC 20590

Waiver in Response to the COVID-19 National Emergency –
For States, CDL Holders, CLP Holders, and Interstate Drivers 
Operating Commercial Motor Vehicles

August 31, 2021

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Grant of waiver.

SUMMARY: FMCSA permits, but does not require, States to extend the validity of commercial driver’s licenses (CDLs) and commercial learner’s permits (CLPs) and to waive the 14-day waiting period and grants other waivers from certain regulations applicable to interstate and intrastate CDL and CLP holders and to other interstate drivers operating commercial motor vehicles (CMVs).  FMCSA has initiated this action in response to the March 13, 2020 declaration of a national emergency under 42 U.S.C. § 5191(b) and the public health emergency declared on January 31, 2020 related to the coronavirus disease 2019 (COVID-19). The Agency issued similar waivers on March 24, 2020, June 15, 2020, September 18, 2020, December 15, 2020, February 16, 2021, and May 26, 2021 providing similar relief.

DATES: This waiver is effective September 1, 2021 and expires on November 30, 2021, upon the revocation of the Declaration of National Emergency under 42 U.S.C. § 5191(b) concerning the COVID-19 public health emergency, or upon early termination by FMCSA, whichever is soonest.

FOR FURTHER INFORMATION CONTACT: Ms. Nikki McDavid, Chief of the Commercial Driver’s License Division, Office of Safety Programs, 202-366-0831, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590- 0001.

Legal Basis
The Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) provides the Secretary of Transportation (the Secretary) authority to grant waivers from any of the Federal Motor Carrier Safety Regulations issued under either 49 U.S.C. § 31136 or Chapter 313 of Title 49 of the United States Code, to a person(s) seeking regulatory relief (49 U.S.C. §§ 31136(e), 31315(a)). The Secretary must make a determination the waiver is in the public interest and it is likely to achieve a level of safety equivalent to, or greater than, the level of safety obtained in the absence of the waiver. Individual waivers may be granted only for a specific unique event for a period up to three months. TEA-21 authorizes the Secretary to grant waivers without requesting public comment and without providing public notice.
The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(e) and (f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 313, relating to commercial motor vehicle operators, and 49 U.S.C. chapter 311, subchapter I and III, relating to commercial motor vehicle programs and safety regulations.

Background
On March 13, 2020, a national emergency was declared under 42 U.S.C. § 5191(b) related to COVID-19. This waiver is in response to the continuing COVID-19 public health emergency and the effects on people and the immediate risk to public health, safety, and welfare in the fifty States and the District of Columbia. On March 24, 2020, June 15, 2020, September 18, 2020, December 15, 2020, February 16, 2021, and May 26, 2021 FMCSA granted waivers covering various regulatory provisions affecting CDL holders, CLP holders, and drivers operating CMVs (non-CDL drivers), the latest of which will expire on August 31, 2021. FMCSA issues a new waiver from those provisions.
Though the number of COVID-19 cases began to decline in the U.S. following widespread introduction of vaccinations, the delta variant and lagging vaccination rates reversed that downward trajectory and have resulted in a rapid rise in infections and hospitalizations around the country. During the COVID-19 public health emergency, many States closed or reduced hours of operation in their State Driver Licensing Agencies (SDLA) in response to the guidance from the U.S. Centers for Disease Control and Prevention (CDC), and if applicable, State and local guidance, to use social distancing to reduce the spread of COVID-19. While States have now reopened their SDLAs, the delta variant has impacted the pace of return to normal customer service levels in some States. As a result, some CDL and CLP holders may be unable to renew their CDLs and CLPs or provide medical certificates to their SDLA. In addition, due to limited operations or backlogs, drivers may be unable to obtain appointments for physical examinations with medical examiners to comply with the Federal Motor Carrier Safety Regulations (FMCSRs). 

Given the national emergency, there is a continued public need for transportation of essential supplies, equipment, and persons, which requires an adequate and sustained supply of CDL holders, CLP holders, and drivers operating CMVs (non-CDL drivers). This waiver is granted to provide the same needed relief from specified FMCSRs that was provided by the March 24, 2020, June 15, 2020, September 18, 2020, December 15, 2020, February 16, 2021, and May 26, 2021 waivers.  FMCSA intends to review the status of this waiver as of October 1, 2021, and may take action to terminate the waiver sooner if conditions warrant.

FMCSA’s Determination and Regulatory Provisions Waived

Consistent with the statutory requirements for waivers, FMCSA has determined it is in the public interest to grant a waiver, limited in scope and circumstances, that is likely to achieve a level of safety equivalent to, or greater than, the level of safety obtained in the absence of the waiver.

To respond to this unique event and to continue the ability of intrastate and interstate CDL and CLP holders and interstate non-CDL drivers to transport goods in response to the COVID-19 public health emergency, this waiver:

  1. Permits, but does not require, States to extend the validity of CDLs due for renewal on or after March 1, 2020 beyond the 8-year maximum period of validity set forth in 49 CFR 383.73(b)(9) and 383.73(d)(6). Under this waiver, States have the discretion to determine whether, due to the COVID-19 public health emergency, there is a continued need to extend the validity of CDLs that expired on or after March 1, 2020. For States opting to implement the relief set forth in this paragraph, FMCSA waives, until November 30, 2021, the requirement in 49 CFR 383.73(b)(9) and 383.73(d)(6).
  2. Permits, but does not require, States to extend the validity of CLPs due for renewal on or after March 1, 2020 beyond the one-year maximum period of validity set forth in 49 CFR 383.73(a)(2)(iii) and 383.25(c) without requiring the CLP holders to retake the general and endorsement knowledge tests. Under this waiver, States have the discretion to determine whether, due to the COVID-19 public health emergency, there is a continued need to extend the validity of CLPs that expired on or after March 1, 2020. For States opting to implement the relief set forth in this paragraph, FMCSA waives, until November 30, 2021, the requirement in 49 CFR 383.73(a)(2)(iii) and 383.25(c).  
  3. Permits, but does not require, States to allow CLP holders to take the CDL skills test without waiting 14 days after initial issuance of the CLP, as required by 49 CFR 383.25(e). Under this waiver, States have the discretion to determine whether, due to the COVID-19 public health emergency, there is a continued need to waive the 14-day waiting period for CLP holders to take the CDL skills test. For States opting to implement the relief set forth in this paragraph, FMCSA waives, until November 30, 2021, the requirement in 49 CFR 383.25(e).
  4. Waives until November 30, 2021, the requirement under 49 CFR 391.45 that CDL holders, CLP holders, and non-CDL drivers have a medical examination and certification, provided they have proof of a valid medical certification and any required medical variance (as defined in 49 CFR 390.5T such as an exemption letter or a skill performance evaluation certificate) issued for a period of 90 days or longer and expired on or after June 1, 2021.   
  5. Waives until November 30, 2021, the requirement under 49 CFR 383.71(h)(3) that, in order to maintain the medical certification status of “certified,” CDL or CLP holders provide the SDLA with an original or copy of a subsequently issued medical examiner’s certificate and any required medical variance, provided they have proof of a valid medical certification or medical variance that expired on or after June 1, 2021.   
  6. Waives until November 30, 2021, the requirement under 49 CFR 383.73(o)(2) that the SDLA change the CDL or CLP holder’s medical certification status to “not certified” upon the expiration of the medical examiner’s certificate or medical variance, provided they have proof of a valid medical certification or medical variance that expired on or after June 1, 2021. 
  7. Waives until November 30, 2021, the requirements under 49 CFR 383.73(o)(4) that the SDLA initiate a CDL or CLP downgrade upon the expiration of the medical examiner’s certificate or medical variance, provided the CDL or CLP holders have proof of a valid medical certification or medical variance that expired on or after June 1, 2021. 
  8. In accordance with 49 CFR 383.23(a)(1) and 391.41(a)(1)(i), until November 30, 2021, FMCSA continues to recognize the validity of commercial driver’s licenses issued by Canadian Provinces and Territories and Licencias Federales de Conductor issued by the United Mexican States, in accordance with 49 CFR part 383, when such jurisdictions issue a similar notice or declaration extending the validity date of the medical examination and certification and/or validity of the corresponding commercial driver’s license due to interruption to government service resulting from COVID-19.

Drivers are covered under paragraphs 1 through 3 of this waiver, if their licensing State exercises discretion to extend the validity of CDLs and CLPs and to waive the 14-day waiting period, and are covered under paragraphs 4 through 8 of this waiver without further action.  States are covered under this waiver without further action necessary to comply with the FMCSRs.  

FMCSA will not issue a finding of noncompliance under 49 CFR part 384 against States for action or inaction consistent with this waiver.

FMCSA’s legal authorities extend to waiver of the maximum period under the FMCSRs for State issuance of CDLs (8 years). While some States have adopted the maximum 8-year renewal period, other States have adopted shorter periods, and waiving the 8-year limit would provide no relief to drivers with CDLs issued by those States. FMCSA is issuing a separate Notice of Enforcement Policy stating that, through November 30, 2021, the Agency will not take enforcement against drivers for operation of a CMV if the driver held a valid CDL on February 29, 2020, or against motor carriers for use of such a driver. Most States have adopted the full 1-year maximum period of CLP validity, but FMCSA is similarly including in its Enforcement Policy a comparable provision on non-enforcement of recently expired CLPs.

FMCSA notes this waiver is also applicable to non-domiciled CLPs and CDLs to the extent the waived requirements are applicable to the driver.  The waiver, however, does not authorize States to extend the validity of a non-domiciled CLP or CDL beyond the non-domiciled driver’s approved legal presence. States that issue non-domiciled CDLs for a period of validity of less than 8 years currently have the discretion to extend the validity of the license without the need for regulatory relief, provided the non-domiciled driver’s legal presence is valid. 

Public Interest
FMCSA finds the granting of this waiver is in the public interest, given interstate and intrastate CDL and CLP holders’ and interstate non-CDL drivers’ critical role in delivering necessary property and passengers, including, but not limited to, shipments of essential supplies and persons to respond to the COVID-19 public health emergency. This waiver is in the public interest because it would allow drivers covered under this waiver to deliver essential supplies and persons across State lines to address the national emergency and would aid in the economic recovery. This waiver will also reduce the administrative burden on SDLAs and CDL, CLP, and interstate non-CDL drivers during this national emergency.

Safety Equivalence
Due to the limited scope of this waiver, the short duration, and the ample precautions that remain in place, FMCSA has determined the waiver is likely to achieve a level of safety that is equivalent to the level of safety obtained absent the waiver.

The waiver of a particular regulation should not be looked at in isolation but rather as part of the whole of all regulations governing the safety of drivers. Waiver determinations are made holistically, taking all relevant factors into account. See International Bhd of Teamsters v. DOT, 724 F.3d 206 (D.C. Cir. 2013). Notably, although the maximum period of CDL and CLP validity is set by regulation, it is not one of the core of regulations that FMCSA evaluates to determine whether a State program is in “substantial compliance.” See 49 CFR 384.301. 

The waiver does not alter any of the knowledge and skills testing requirements for obtaining either a CDL, a CLP, or a necessary endorsement. It does not allow States to extend the license of a CDL or CLP holder whose credential expired prior to March 1, 2020. It does not apply to a CDL or CLP holder if the driver’s privileges have been suspended or withdrawn for traffic offenses or if the driver is otherwise disqualified to operate a CMV. And, this waiver does not authorize States to extend the validity of a non-domiciled CLP or CDL beyond the non-domiciled driver’s approved legal presence. 

For regulatory provisions concerning driver medical certification, FMCSA is limiting the waiver eligibility to drivers whose medical certification or medical variance expired on or after June 1, 2021. While FMCSA recognizes in some States, drivers continue to experience difficulty in obtaining a medical certification or variance and providing it to the SDLA, the Agency must also ensure safety by limiting how long a driver may operate a CMV with an expired medical certificate or variance. Therefore, under this waiver, FMCSA is not waiving the medical certification requirements for drivers whose medical certification or variance expired before June 1, 2021, and the Agency urges these drivers to obtain a new medical certificate or variance as soon as practicable.  The Agency also encourages SDLAs and medical examiners, to the extent administratively practicable, to prioritize for appointments drivers in this category.  Drivers whose medical certification or variance expired on or after June 1, 2021 are covered under this waiver until  November 30, 2021, unless terminated sooner.

In this case, FMCSA believes the measures listed below under Terms, Conditions, and Restrictions of the Waiver, including proof of a recently expired valid CDL, CLP or medical certificate, the inapplicability of the waiver to expired medical certificates issued for less than 90 days, and the requirement to notify FMCSA in the event of accidents involving drivers operating under the waiver, taken collectively, provide the assurance needed to meet the legal standard granting the waiver is likely to achieve an “equivalent level of safety.” Moreover, FMCSA’s March 24, 2020, June 15, 2020, September 18, 2020, December 15, 2020, February 16, 2021, and May 26, 2021 waivers have not adversely affected safety.

As such, FMCSA has determined a waiver from the regulations noted above during the period of the waiver will likely achieve a level of safety equivalent to, or greater than, the level of safety obtained in the absence of the waiver.

Unique Circumstances
The COVID-19 public health emergency led to widespread closures of State and Federal government offices, reduction of government and medical services, and disruption of transportation systems, including driver shortages and related interruption of supply chains, which are heavily dependent on continued CMV operations. FMCSA finds the circumstances surrounding this waiver are unique because such government and medical operations are not providing their usual level of service.

For the reasons above, FMCSA grants a waiver as provided above, subject to the terms, conditions and restrictions below. The Agency encourages drivers to obtain their renewed licenses and medical certificates and encourages SDLAs to bring their operations back to normal as soon as practicable, consistent with all applicable Federal, State, and local laws and guidance, as this waiver expires on November 30, 2021.  FMCSA intends to review the status of this waiver as of October 1, 2021, and may take action to terminate the waiver sooner if conditions warrant.

Terms, Conditions, and Restrictions of the Waiver

This waiver covers States, CDL holders, CLP holders and interstate non-CDL CMV drivers for the period beginning at 12:00 a.m. on September 1, 2021, and expires at 11:59 p.m. on November 30, 2021, upon the revocation of the Declaration of National Emergency under 42 U.S.C. § 5191(b) concerning the COVID-19 public health emergency, or upon early termination by FMCSA, whichever is soonest.

  1. This waiver does not apply to a CDL or CLP holder if the driver’s license or permit expired before March 1, 2020.
  2. This waiver does not apply to a non-domiciled CLP or CDL holder if the non-domiciled driver’s legal presence is not valid.
  3. This waiver does not apply to a CDL or CLP holder if the driver’s privileges have been suspended or withdrawn for traffic offenses or if the driver is otherwise disqualified to operate a CMV.
  4. Drivers claiming relief under this waiver from the requirement for a valid medical certificate must have proof of a valid medical certificate and any required medical variance in accordance with the periods of eligibility set forth above, and carry a paper copy of their expired medical certificates.
  5. Drivers who cannot produce evidence of a prior medical certification and any required medical variance in accordance with the periods of eligibility set forth above, are not covered under this waiver, including new drivers who have never obtained a medical certification.
  6. Drivers who, since their last medical certificate was issued, have been diagnosed with a medical condition that would disqualify the driver from operating in interstate commerce, or who, since their last medical certificate was issued, have developed a condition that requires an exemption or Skill Performance Evaluation from FMCSA are not covered under this waiver.
  7. This waiver does not apply to medical examiner’s certificates originally issued for less than 90 days.
  8. Notification to FMCSA of Accidents. Each motor carrier must notify FMCSA within 5 business days of an accident (as defined in 49 CFR 390.5), involving any CDL holder, CLP holder, or non-CDL driver operating under the terms of this waiver. See 49 CFR 390.15(b) (requiring maintenance of accident registry.) Notification shall be by email to MCPSD@DOT.GOV. The notification must include the following information:
    1. Date of the accident;
    2. City or town, and State in which the accident occurred, or closest to the accident scene;
    3. Driver’s name and license number;
    4. Vehicle number and State license number;
    5. Number of individuals suffering physical injury;
    6. Number of fatalities;
    7. The police-reported cause of the accident (if available at time of the report); and
    8. Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations.
  9. FMCSA reserves the right to revoke this waiver for drivers’ involvement in accidents, motor carriers’ failure to report accidents, and drivers’ failure to comply with the restrictions of this waiver.

Issued: August 31, 2021

Meera Joshi 
Deputy Administrator

Last updated: Tuesday, August 31, 2021