Emergency Response Services are Available
COVID-19 Related Force Majeure
Jim Kearns, of Jones Walker LLP, and IRPT Executive Committee Member, offers a general overview if there is a question of whether Force Majeure might apply in a given situation, such as COVID-19. The contract between the parties should be reviewed to see if there is a Force Majeure clause. It there is, this would most likely govern the situation. Contracts often differ on how that clause is drafted, and there are also different laws among the states on how such clauses are interpreted and enforced. The laws of the states differ also in dealing with situations in which a contract does not have a Force Majeure clause, or there is no written contract at all. The specific circumstances of each case need to be reviewed, as well as the law of the state that would be applicable.
As a practical matter, it is key to communicate with customers and vendors in a possible Force Majeure situation. If the situation cannot be resolved by mutual agreement and ends up in a dispute proceeding of some kind, then a judge, jury or arbitrator is likely to look more favorably on a party who looks like it made every reasonable effort to find a solution.
Jones Walker LLP has issued some helpful information in this situation, accessed here:
Contract Disputes from COVID-19 - Force Majeure Checklist
COVID-19's Impact on Construction - Time Extension, Force Majeure, or More
Jones Walker provides Back-to-Work Toolkit: Helping Businesses Protect Lives and Livelihoods
Companies and organizations worldwide are facing a difficult question: As the fight against the COVID-19 pandemic shifts gears from emergency to maintenance, how can we reopen and run our businesses — from Day One and beyond — in a manner that preserves jobs and generates revenue without risking the health and safety of our employees and customers? The answers to this question are not simple, nor is there a one-size-fits-all solution.
This Back to Work Toolkit, prepared by Jones Walker, is a compendium of best practices that apply to many types of businesses and industries. The goal is to provide a concise, issue-driven resource and a range of recommendations that can be used as a platform upon which you can stage an informed, practical return to partial or full business operations.
As time progresses, new ideas and information will undoubtedly become available. While we all recognize that this is a process and our reactions must be fluid, we know that business disruption has been and will continue to be a certainty for the foreseeable future. Jones Walker is here to partner with you as we navigate this time and will utilize all resources available to assist you.
The document can be found at: https://sites-communications.joneswalker.com/47/1476/compose-email/2020-covid-19-back-to-work-toolkit.asp
Transportation Workers are Essential Support Functions
As the Nation comes together to slow the spread of COVID-19, on March 16th, the President issued updated Coronavirus Guidance for America. This guidance states that: “If you work in a critical infrastructure industry, as defined by the Department of Homeland Security, such as healthcare services and pharmaceutical and food supply, you have a special responsibility to maintain your normal work schedule.”
Please find guidance on the essential critical infrastructure workforce: Ensuring Community and National Resilience in COVID-19 Response:
April 20: Cyber & Infrastructure Security
THE IMPORTANCE OF OPERATION CENTERS AND CONTROL ROOMS
This Guide provides considerations and mitigation measures for operations centers and control rooms across the 16 critical infrastructure sectors required to operate in a pandemic environment.
Operations centers and control rooms often operate 24/7, depend on unique equipment, and require specially trained staff who are difficult to replace. As a result, specialized equipment and long lead times required to train personnel mean there is a higher risk to sustaining reliable operations. Fortunately, operations centers and control rooms are generally isolated and physically secure, and may be more conducive to the sequestration of on-site staff if needed. This guide provides a set of special considerations for maintaining these critical operations.
Foreign Trade Zone Storage Space Availability
IRPT Member and Industry Partner, National Association of Foreign Trade Zones (NAFTZ) has issued a survey request for foreign trade zone storage space availability.
One of the big supply-chain challenges many companies face as a result of the COVID-19 pandemic is how to deal with growing bottlenecks created by imported merchandise arriving in the U.S. just as consumer demand has plummeted, and domestic distribution networks are significantly disrupted.
Since the U.S. foreign-trade zone system is a duty-deferral program, FTZs could play an important role in helping to alleviate this problem. Some zones have already announced the availability of activated FTZ space to store excess merchandise during the current crisis and alleviate companies’ cash-flow challenges by deferring the payment of duties and other fees.
If you would like to provide information on the availability of storage space in your zones and your willingness to advertise the availability of that space on the NAFTZ website as a public service, please access the survey here: You can access the survey here.
For more information about NAFTZ, please visit www.naftz.org
TWIC Exemption Notice during COVID-19
The Transportation Security Agency (TSA) has granted a temporary exemption from the requirements in 49 CFR 1572 regarding the expiration of TWIC's. Effectively they are extending the expiration for TWICs. So, for TWICs expiring between March 1, 2020, and July 31, 2020, the exemption extends the validity of a TWIC for 180 days for an individual whose TWIC would otherwise expire during the effective period of the exemption, which remains in effect through July 31, 2020. Which means that those TWIC's should be treated as valid, and not expired.
Please find that full notice here.
COVID-19: Port and Terminal Facility Best Practices
Inland Rivers, Ports & Terminals (IRPT) has compiled some best practices based on port/terminal operations. Some information comes from CDC. You might find it a helpful start to developing your own individual-based practices. It is understood that each facility will need to evaluate their operations and adjust best practices to meet your facility needs.
For all workers, regardless of specific exposure risks, it is always a good practice to:
- Frequently wash your hands with soap and water for at least 20 seconds. When soap and running water are unavailable, use an alcohol-based hand rub with at least 60% alcohol. Always wash hands that are visibly soiled.
- Avoid touching your eyes, nose, or mouth with unwashed hands.
- Avoid close contact with people who are sick.
To facilitate safe crew changes:
- Designate port, terminal and maritime personnel, as "essential" and provide an essential service. Provide letter addressed to the employee on company letterhead and attach both Federal and State issued guidance proclamations.
- Implement appropriate approval and screening protocols for port, terminal or maritime personnel entering the facility for the purposes of crew changes and repatriation, based on CDC guidance.
- Encourage port tenants and terminal service providers to comply with and adopt similar screening or other protocols or procedures introduced by the port.
- Provide information (and display in open view) to personnel on basic protective measures against COVID-19 based on WHO advice.
- Adopt employee reporting requirements of illness to port or terminal management.
Small Business Administration’s Paycheck Protection Program (PPP)
An SBA loan that helps businesses keep their workforce employed during the Coronavirus (COVID-19) crisis.
The Paycheck Protection Program is a loan designed to provide a direct incentive for small businesses to keep their workers on the payroll.
SBA will forgive loans if all employees are kept on the payroll for eight weeks and the money is used for payroll, rent, mortgage interest, or utilities.
The Paycheck Protection Program will be available through June 30, 2020.
This program is for any small business with less than 500 employees (including sole proprietorships, independent contractors and self-employed persons), private non-profit organization or 501(c)(19) veterans organizations affected by coronavirus/COVID-19.
Businesses in certain industries may have more than 500 employees if they meet the SBA’s size standards for those industries.
Small businesses in the hospitality and food industry with more than one location could also be eligible at the store and location level if the store employs less than 500 workers. This means each store location could be eligible.
A Marine Safety Information Bulletin from the U.S. Coast Guard:
Maintaining Maritime Commerce and Identification of Essential Maritime Critical Infrastructure Workers
The uninterrupted flow of commerce on our Marine Transportation System (MTS) is critical to both National Security and economic vitality. During the ongoing national emergency, it is paramount that we safeguard the continued operation of the MTS in the face of the acute and evolving threats posed by the COVID-19 pandemic. The MTS, which provides more than 90 percent of the domestic supply chain, is dependent on an extensive support network comprised of workers from both the private and public sectors.
On March 19, 2020, the Cybersecurity and Infrastructure Security Agency (CISA), within the Department of Homeland Security (DHS), issued a memorandum that developed an initial list of “Essential Critical Infrastructure Workers” to help State and local officials as they work to protect their communities while ensuring continuity of functions critical to public health and safety, as well as economic and national security (The most current version can be found: https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19). The CISA memorandum and this MSIB are advisory in nature and quarantine orders and their enforcement are ultimately up to State and local officials. This MSIB should be used to provide further clarification when making determinations regarding which MTS workers are considered essential in regions impacted by COVID-19 quarantine and shelter-in-place orders.
Though not meant to be an exhaustive list, the following personnel are essential for sustaining the continuous flow of maritime commerce:
A message from USDA re COVID-19:
The U.S. Department of Agriculture (USDA) seeks a united effort with our industry partners in preventing the spread of COVID-19 while continuing to produce safe food for consumers. We provide this updated guidance to our industry partners in accordance with the President’s March 13, 2020 Proclamation declaring a National Emergency, the World Health Organization and the Center for Disease Control both declaring that COVID-19 is a pandemic, and the Office of Management and Budget March 17, 2020 Guidance, “Federal Agency Operational Alignment to Slow the Spread of Coronavirus COVID-19”. COVID-19 remains a fluid situation, and thus, USDA will continue to monitor and implement Federal government and applicable public health authorities’ guidance and may revise the following accordingly.
During this pandemic, industry employees may orally ask USDA employees questions concerning COVID-19 prior to allowing entrance into the facility. USDA permits industry to orally ask the following:
Protecting Inland Shores against Covid-19
On March 13th, the U.S. Coast Guard issued a Marine Safety Information Bulletin in the wake of novel coronavirus (COVID-19). Here are two (2) very important messages:
- Symptoms to look for, and
- Reporting illness requirements
An outbreak of respiratory illness caused by novel coronavirus (COVID-19) is affecting mariners and maritime commerce. This MSIB serves as a reminder that the illness of persons on board a vessel must be reported to both the Coast Guard and the Centers for Disease Control and Prevention (CDC). Reporting delays create significant challenges to protect persons on board vessels and, more broadly, maintain an effective Marine Transportation System. Vessels or masters that do not immediately report illness or death among passengers or crew may face delays and disruption to passenger and cargo operations including a requirement to return to the previous port after sailing. Additionally, vessels and masters are subject to Coast Guard enforcement action, which include civil penalties, vessel detentions, and criminal liability.