Hours of Service of Drivers of Commercial Motor Vehicles; Proposed Regulatory Guidance Concerning the Transportation of Agricultural Commodities

Cathy F. Gautreaux
Federal Motor Carrier Safety Administration
20 December 2017

[Federal Register Volume 82, Number 243 (Wednesday, December 20, 2017)]
[Proposed Rules]
[Pages 60360-60362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27310]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2017-0360]


Hours of Service of Drivers of Commercial Motor Vehicles; 
Proposed Regulatory Guidance Concerning the Transportation of 
Agricultural Commodities

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

ACTION: Notice of proposed regulatory guidance; request for public 
comment.

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SUMMARY: FMCSA announces regulatory guidance to clarify the 
applicability of the ``Agricultural commodity'' exception to the 
``Hours of Service of Drivers'' regulations, and requests public 
comments. This regulatory guidance is being proposed to ensure 
consistent understanding and application of the exception by motor 
carriers and State officials enforcing hours of service rules identical 
to or compatible with FMCSA's requirements.

DATES: Comments must be received on or before January 19, 2018. This 
guidance would expire no later than 5 years after it is finalized.

ADDRESSES: You may insert comments identified by Federal Docket 
Management System Number FMCSA-2017-0360 by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE, Washington, DC 20590, phone (614) 942-6477, email 
MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number listed 
above, indicate the specific section of this document to which your 
comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online or by 
fax, mail, or hand delivery. FMCSA recommends that you include your 
name and a mailing address, an email address, or a phone number in the 
body of your document so that FMCSA can contact you if there are 
questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
put the docket number, FMCSA-2017-0360, in the keyword box, and click 
``Search.'' When the new screen appears, click on the ``Comment Now!'' 
button and type your comment into the text box on the following screen. 
Choose whether you are submitting your comment as an individual or on 
behalf of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this guidance based on your comments.

B. Viewing Comments and Documents

    To view comments, go to http://www.regulations.gov. Insert the 
docket number, FMCSA-2017-0360, in the keyword box, and click 
``Search.'' Next, click the ``Open Docket Folder'' button and choose 
the document to review. If you do not have access to the internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., 
e.t., Monday through Friday, except Federal holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its regulatory process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.transportation.gov/privacy.

II. Legal Basis

    The National Highway System Designation Act of 1995, Public Law 
104-59, 345, 109 Stat. 568. 613 (Nov. 28, 1995), provided the initial 
exception for drivers transporting agricultural commodities or farm 
supplies for agricultural purposes. This Act limited the exception to a 
100 air-mile radius from the source of the commodities or distribution 
point for the farm supplies

[[Page 60361]]

and during the planting and harvesting seasons as determined by the 
applicable State.
    In enacting the Safe, Accountable, Flexible, Efficient 
Transportation Act: A Legacy for Users (SAFETEA-LU), Congress revised 
this provision, enacted it to be new section 229 of Title II of the 
Motor Carrier Safety Improvement Act of 1999, and defined the terms 
``agricultural commodity'' and ``farm supplies for agricultural 
purposes.'' Public Law 109-59, Sec. Sec.  4115 and 4130, 119 Stat. 
1144, 1726, 1743 (Aug. 10, 2005). These terms are now defined in 49 CFR 
395.2.
    Most recently, the statute was amended by section 32101(d) of the 
Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 
112-141, 126 Stat. 405, 778 (July 6, 2012). This provision revised the 
description of the exception's scope and extended the applicable 
distance from 100 air-miles to 150 air-miles from the source.

III. Background

    The focus of today's guidance is limited to the transportation of 
agricultural commodities, 49 CFR 395.1(k)(1). It does not address 
``farm supplies for agricultural purposes'' under 49 CFR 395.1(k)(2) or 
(3) given that the applicable range under these latter two provisions 
is specifically addressed. While the regulatory provision governing the 
agricultural commodity exception (49 CFR 395.1(k)(1)) closely tracks 
the statutory provisions discussed above, the language is susceptible 
to multiple interpretations, and the Agency acknowledges that various 
stakeholders and enforcement officials in different States have 
expressed inconsistent understandings of the exception from time to 
time.
    This proposed regulatory guidance would clarify the exception with 
regard to: (1) Drivers operating unladen vehicles traveling either to 
pick up an agricultural commodity, as defined in 49 CFR 395.2, or 
returning from a delivery point; and (2) drivers engaged in trips 
beyond 150 air-miles from the source of the agricultural commodity. In 
addition, the Agency seeks public comment on (1) whether grain 
elevators and/or livestock sale barns should be considered a ``source'' 
of agricultural commodities under section 395.1(k)(1); and (2) how the 
exception should apply when agricultural commodities are loaded at 
multiple sources during a trip.
    FMCSA's final rule ``Electronic Logging Devices and Hours of 
Service Supporting Documents'' (80 FR 78292; December 16, 2015), will 
require most drivers who use paper logs to document their hours of 
service to switch to electronic logging devices. That rule did not 
alter the hours of service rules or the agricultural commodity 
exception. However, FMCSA has received questions from regulated motor 
carriers about the agricultural commodity exception and application of 
the hours of service rules due to the practical ramifications of that 
rule, and the approaching December 18, 2017 compliance date. Specific 
scenarios are addressed further below.

IV. Reason for This Notice of Regulatory Guidance

    Today's proposed regulatory guidance would provide clarity to the 
agricultural exception in 49 CFR 395.1(k)(1) and specifically addresses 
two scenarios: (1) Driving an unladen commercial motor vehicle to 
either pick up an agricultural commodity or on a return trip following 
the delivery of an agricultural commodity; and (2) application of the 
agricultural commodity exception to trips involving transportation of 
the commodity more than 150 air-miles from its source. In addition, the 
Agency seeks comment on (1) whether grain elevators and/or livestock 
sale barns should be considered a ``source'' of agricultural 
commodities under section 395.1(k)(1); and (2) scenarios where a trip 
involves the loading of agricultural commodities at multiple sources.
    Unladen vehicles: Interpreted literally, the agricultural commodity 
exception could be read as applicable only during the period during 
which the commodity is being transported, and not extended to movements 
of an unladen vehicle either heading to pick up a load or returning 
after a delivery. However, the Agency does not consider that view as 
consistent with legislative intent of providing round-trip relief to 
farmers, and has therefore informally advised stakeholders that both 
legs of a trip are covered. In today's proposed guidance (Question 34), 
FMCSA seeks to clarify how the agricultural commodity exception applies 
to a driver operating an unladen commercial motor vehicle used in 
transportation either to a source to pick up an agricultural commodity 
or on a return trip following delivery of an agricultural commodity.
    Loads beyond a 150 air-mile radius: The Agency recognizes that some 
motor carrier safety enforcement personnel and other stakeholders have 
interpreted the agricultural commodity exception as inapplicable to any 
portion of a trip if the destination exceeds 150 air-miles from the 
source. Under that reading, the word ``location'' in section 
395.1(k)(1) is interpreted as reflecting only the final destination of 
the load. FMCSA notes that the statutory language, as amended,\1\ and 
the implementing regulation \2\ are ambiguous, however, and considers 
this strict interpretation too narrow. In today's regulatory guidance 
(Question 35), the Agency proposes to clarify that ``location'' means 
the outer limit of the exception distance, i.e., 150 air-miles from the 
source. Thus, the Agency would interpret the exception as available to 
a driver transporting agricultural commodities for a distance up to 150 
air-miles from the source, regardless of the distance between the 
source and final destination or place of delivery. Once a driver 
crosses the 150 air-mile point, however, the driver would be subject to 
the hours of service rules for the remainder of the trip.
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    \1\ SEE MAP-21, Public Law 112-141, 32101(d), 126 Stat. 778 
(July 6, 2012). . . .
    \2\ SEE 49 CFR 395.1(k)(1). The term ``agricultural commodity'' 
is defined in 49 CFR 395.2.
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    Meaning of ``sources,'' and multiple sources: Several agricultural 
transporters have requested guidance on the extent to which grain 
elevators and/or livestock sale barns should be considered a ``source'' 
of agricultural commodities under section 395.1(k)(1). While these 
facilities are originating points for many agricultural commodity 
loads, they are not expressly encompassed within the statutory or 
regulatory terminology of the exception. Many of these transporters 
have also asked how the agricultural commodity exception would apply if 
the driver were to pick up partial loads at two or more locations. 
Specifically, they asked whether a pick-up at a subsequent source has 
the effect of extending the 150 air-mile radius, i.e., restarting the 
calculation of the 150 air-mile distance. Previous informal guidance 
has been that the 150 air-mile radius is based on the first source of 
an agricultural commodity on a particular trip, and that additional 
stops to load additional agricultural commodities do not extend the 
150-mile radius. The Agency invites public comment on this 
interpretation, however, and on how additional sources might affect the 
exception under 49 CFR 395.1(k)(1).

V. Regulatory Guidance

    FMCSA proposes Regulatory Guidance, Questions 34 and 35 to 49 CFR 
395.1 as follows:

[[Page 60362]]

PART 395--HOURS OF SERVICE OF DRIVERS


Section 395.1  Scope of the rules in this part

    Question 34: Does the agricultural commodity exception (Sec.  
395.1(k)(1)) apply to drivers while driving unloaded to a source where 
an agricultural commodity will be loaded, and to an unloaded return 
trip after delivering an agricultural commodity under the exception?
    Guidance: Yes, provided that the trip does not involve transporting 
other cargo and the sole purpose of the trip is to complete the 
delivery or pick up of agricultural commodities, as defined in Sec.  
395.2. In that case, driving and on-duty time are not limited, nor do 
other requirements of 49 CFR part 395 apply.
    Question 35: Does the agricultural commodity exception (Sec.  
395.1(k)(1)) apply if the destination for the commodity is beyond the 
150 air-mile radius from the source?
    Guidance: The exception applies to transportation during the 
initial 150 air-miles from the source of the commodity. Once a driver 
operates beyond the 150 air-mile radius of the source, part 395 
applies. Starting at zero from that point, the driver must then begin 
recording his or her duty time, and the limits under the 11-hour, 14-
hour, and the 60-/70-hour rules apply. Once the hours of service rules 
begin to apply on a given trip, they continue to apply for the duration 
of that trip, until the driver crosses back into the area within 150 
air-miles of the original source of the commodities and is returning to 
that source. If the driver is not returning to the original source, the 
HOS rules continue to apply, even if the driver reenters the 150-mile 
radius.

VI. Expiration Date for the Proposed Regulatory Guidance

    In accordance with section 5203(a)(2)(A) and (a)(3) of the Fixing 
America's Surface Transportation (FAST) Act, Public Law 114-94, 129 
Stat. 1312, 1535 (Dec. 4, 2015), the proposed regulatory guidance will 
be posted on FMCSA's website, www.fmcsa.dot.gov, if finalized. It would 
be reviewed by the Agency no later than five years after it is 
finalized. The Agency would consider at that time whether the guidance 
should be withdrawn, reissued for another period up to five years, or 
incorporated into the safety regulations.

VII. Request for Comments

    Refer to the ADDRESSES section above for instructions on submitting 
comments to the public docket concerning this regulatory guidance. The 
FMCSA will consider comments received by the closing date of the 
comment period to determine whether any further clarification of these 
regulatory provisions is necessary. In addition to comments concerning 
the proposed regulatory guidance above, including the issue of 
``sources'' of agricultural commodities, as outlined above, the Agency 
is seeking information on the following:
    1. Are there particular segments of the industry that would take 
advantage of this change more than others?
    2. How does the flexibility provided in this guidance impact a 
carrier's need for an electronic logging device?
    3. How many carriers and drivers are there transporting 
agricultural commodities in various segments (livestock, unprocessed 
food, others) that are impacted by this guidance?

    Issued on: December 13, 2017.
Cathy F. Gautreaux,
 Deputy Administrator.
[FR Doc. 2017-27310 Filed 12-19-17; 8:45 am]
 BILLING CODE 4910-EX-P