Hours of Service of Drivers of Commercial Motor Vehicles; Regulatory Guidance Concerning the Transportation of Agricultural Commodities |
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Raymond P. Martinez
Federal Motor Carrier Safety Administration
7 June 2018
[Federal Register Volume 83, Number 110 (Thursday, June 7, 2018)]
[Rules and Regulations]
[Pages 26374-26377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12250]
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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;
Regulatory Guidance Concerning the Transportation of Agricultural
Commodities
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT
ACTION: Announcement of regulatory guidance
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SUMMARY: FMCSA announces regulatory guidance to clarify the
applicability of the ``Agricultural commodity'' exception in the
``Hours of Service (HOS) of Drivers'' regulations. This regulatory
guidance clarifies the exception with regard to: drivers operating
unladen vehicles traveling either to pick up an agricultural commodity
or returning from a delivery point; drivers engaged in trips beyond 150
air-miles from the source of the agricultural commodity; determining
the ``source'' of agricultural commodities under the exemptions; and
how the exception applies when agricultural commodities are loaded at
multiple sources during a trip. This regulatory guidance is issued to
ensure consistent understanding and application of the exception by
motor carriers and State officials enforcing HOS rules identical to or
compatible with FMCSA's requirements.
DATES: This guidance is applicable on June 7, 2018 and expires June 7,
2023.
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 (202) 366-4325, email
MCPSD@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to www.regulations.gov and 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.
II. Legal Basis
The National Highway System Designation Act of 1995, Public Law
104-59, sec. 345, 109 Stat. 568. 613 (Nov. 28, 1995) (the Act),
provided the initial exception for drivers transporting agricultural
commodities or farm supplies for agricultural purposes. The Act limited
the exception to a 100 air-mile radius from the source of the
commodities or distribution point for the farm supplies and during the
planting and harvesting seasons as determined by the applicable State.
The Safe, Accountable, Flexible, Efficient Transportation Act: A
Legacy for Users (SAFETEA-LU) revised this provision, redesignated it
as 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,
sections 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 application of the
150 air-mile exception for the transportation of ``agricultural
commodities,'' 49 CFR 395.1(k)(1). It does not address ``farm supplies
for agricultural purposes''
[[Page 26375]]
under Sec. 395.1(k)(2) or (3), since few questions have been raised
about their applicability, nor does it address the specifics of the
definition of an agricultural commodity as defined in Sec. 395.2.
While the regulatory provision governing the agricultural commodity
exception 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.
IV. Public Comments and Responses?>
On December 20, 2017, FMCSA published a Federal Register notice
proposing regulatory guidance concerning the transportation of
agricultural commodities and requested public comment on the proposals
(82 FR 60360). The comment period ended on January 19, 2018, but was
extended to February 20, 2018 (83 FR 2765, Jan. 19, 2018). There were
566 comments submitted to the docket. Approximately one-half of them
addressed issues other than this regulatory guidance, such as
electronic logging devices (ELDs), other aspects of the HOS rules, and
other provisions of the Federal Motor Carrier Safety Regulations
(FMCSRs). Some commenters suggested specific revisions to the FMCSRs,
which are beyond the scope of regulatory guidance. Of the remaining
comments, most were supportive of the proposed guidance and suggested
only minor revisions. Many were from umbrella agricultural
associations, some representing as many as 15 other associations.
Additional details regarding the public comments are provided under the
topical headings below.
1. Unladen Vehicles (Question 34)
Interpreted literally, the agricultural commodity exception could
be read as applicable only during the period during which the commodity
is being transported, and not to movements of an unladen commercial
motor vehicle (CMV) either traveling to pick up a load or returning
after a delivery. The Agency does not consider that view consistent
with the de-regulatory purpose of the exception since applying HOS
rules on these unladen trips would limit the relief that Congress
intended to grant, while needlessly complicating the regulatory
monitoring task that enforcement officials are asked to perform. It is
unreasonable to assume that the 1995 statute intended to exempt, for
example, farmers hauling soy beans from the field to an elevator, while
subjecting them to the full extent of the HOS regulations during the
empty return trip to the field to pick up the next load. The Agency has
therefore informally advised stakeholders that both legs of a trip are
covered. In the proposed guidance (Question 34), FMCSA sought to
clarify how the agricultural commodity exception applies to someone
driving an unladen CMV either to a source to pick up an agricultural
commodity or on a return trip following delivery of an agricultural
commodity. The proposed Guidance to Question 34 stated that the
agricultural commodity exception (Sec. 395.1(k)(1)) does apply while
driving unloaded to a source where an agricultural commodity will be
loaded, and to an unloaded return trip after delivering an agricultural
commodity, 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 of agricultural commodities, as defined in Sec. 395.2.
Comments: All comments on this issue were supportive. The American
Farm Bureau Federation (Farm Bureau) agrees with the Agency's
interpretation that unladen vehicles traveling to and from a source of
an agricultural commodity should be able to take advantage of the
agricultural commodity exception. The Oregon Cattleman's Association
supports FMCSA's view that time spent driving an unladen or empty
vehicle to or from a source of an agricultural commodity should be
exempt from the hours-of-service (HOS) provisions. The New Mexico Farm
and Livestock Bureau agrees, commenting that unladen vehicles hauling
to and from an agricultural source or multiple sources should fall
under the exception. A number of multiple-group filers commented that
the Agency must clearly define that unladen trucks are covered under
the agricultural exception. The Owner-Operator Independent Drivers
Association (OOIDA) supports the revised guidance that would allow the
exception for 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. The Agricultural and Food
Transporters Conference, an affiliate of the American Trucking
Associations (ATA), commented that the Question 34 guidance is crucial
for the movement of agricultural commodities and farm supplies. When a
carrier is delivering an agricultural commodity, it must have the
ability to unload and travel back to reload, all while under the
exception. Not only does this minimize confusion for the carrier in
having to travel exempt and non-exempt over and over, but it also
significantly minimizes confusion for enforcement officials who are
working with the carriers.
FMCSA Response: The Agency agrees that the Sec. 395.1(k)(1)
exception should apply to all portions of a round-trip involving
agricultural commodities that occur within the 150 air-mile radius of
the source, regardless of whether the CMV is loaded or empty or whether
the destination is outside the 150 air-mile radius. The Guidance in
Question 34 to Sec. 395.1 is revised to this effect.
2. Loads Beyond a 150 Air-Mile Radius (Question 35)
The Agency recognizes that some 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
Sec. 395.1(k)(1) is interpreted as reflecting only the final
destination of the load. FMCSA considers the statutory language, as
amended,\1\ and the implementing regulation \2\ to be ambiguous, given
the legislative intent to create an exempt zone with a radius of 150
air miles. The Agency believes that a narrow interpretation is
unwarranted. In the proposed regulatory guidance (Question 35), the
Agency stated that ``location'' means the outer limit of the exception
distance, i.e., 150 air-miles from the source. Thus, the Agency
proposed to 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.
[[Page 26376]]
Upon crossing the 150 air-mile point, however, the driver would be
subject to the HOS rules for the remainder of the trip to the
destination. The hours accumulated within the 150-mile radius are not
counted toward the driver's hours of service. Returning empty, the
driver would be subject to the HOS rules until returning within the 150
air-mile radius in which the trip began.
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\1\ As amended by MAP-21, Public Law 112-141, 32101(d), 126
Stat. 778 (July 6, 2012), this statute reads:
(1) Transportation of agricultural commodities and farm
supplies.--Regulations prescribed by the Secretary under sections
31136 and 31502 regarding maximum driving and on-duty time for
drivers used by motor carriers shall not apply during planting and
harvest periods, as determined by each State, to--
(A) Drivers transporting agricultural commodities from the
source of the agricultural commodities to a location within a 150-
air-mile radius from the source; . . .
\2\ The regulatory exception reads:
Agricultural operations. The provisions of this part shall not
apply during planting and harvesting periods, as determined by each
State, to drivers transporting
(1) Agricultural commodities from the source of the agricultural
commodities to a location within a 150 air-mile radius from the
source;
. . . 49 CFR 395.1(k)(1). The term ``agricultural commodity'' is
defined in 49 CFR 395.2.
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Comments: Most commenters supported Question 35 as proposed, and
one commenter was completely opposed. The Farm Bureau requested the
Agency to modify Question 35 to simply state: ``The exception applies
to transportation during the initial 150-air miles from the source of
the commodity. 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 60/70-hour rules apply.'' The Florida Fruit and Vegetable
Association commented that the agricultural exception is unclear on how
it is to be applied beyond the 150 air-miles, and does not encompass
trucks returning once they have been assigned a specific pick-up.
Additionally, it is not clear how hours would be recorded if multiple
pickup points are involved. An individual commenter stated that the
proposed guidance is unreasonable and is likely to create unsafe
conditions where fatigued drivers are operating on the highway.
According to him, the term ``location'' in the phrase, ``from the
source of the agricultural commodities to a location within a 150 air-
mile radius from the source,'' can only mean the delivery location. He
states that under the proposed guidance, if a person is stopped outside
the 150 air-mile radius of the source, neither the motor carrier nor an
enforcement officer will be able to determine compliance with the law.
If a driver is exempt from part 395 some of the time, but has to comply
with all of part 395 at other times, it would be impossible to
determine compliance with HOS when the driver is not exempt. The
National Grain and Feed Association asked FMCSA to apply the HOS
regulations only to situations in which a driver operates beyond the
150-air mile radius. Therefore, starting at the time and location where
the vehicle goes past the 150-air mile distance, the driver must
maintain logs.
FMCSA Response: FMCSA believes it would be contrary to the purpose
of the exception to apply it to only one portion of the trip within the
150 air-mile radius. The Agency disagrees that it would be impossible
to determine HOS compliance outside the 150 air-mile radius.
Transporters are required to maintain records of duty status (paper or
AOBRD/ELD) and supporting documents when not operating under an
exception. Commercial vehicle inspectors are trained to ascertain
compliance with the HOS regulations, and would be able to do so as with
any other transporters who are not under an HOS exception at the time
of inspection.?>
3. Sources (Question 36)
Several agricultural transporters have requested guidance on the
extent to which grain elevators or livestock sale barns, for example,
should be considered a ``source'' of agricultural commodities under
Sec. 395.1(k)(1). Historically, the nature of the commodities included
in the definition led to an informal conclusion that the ``source'' was
the location where the crops were grown or the animals raised. That
concept does not adequately address the aggregation and interim storage
of commodities. The identification of the source is more reasonably
defined by factors that include more than a farm or ranch.
As long as the commodity retains its original form, a place where
the commodity is aggregated and stored may be treated as a ``source''
from which the 150 air-mile radius is measured.
Comments: Those persons who commented on the issue agreed that
elevators and livestock markets are examples of ``sources'' other than
the original farm or field. Many suggested other broad examples that
they believe should be included. No one specifically objected to the
proposal. The Farm Bureau believes that logic and common sense dictate
that grain elevators and livestock markets are ``sources'' of
agricultural commodities. The Oregon Cattleman's Association agrees
with this position, and cites the dictionary definition of ``source''
as ``a point of origin'' and describes the challenges of loading at
such locations as virtually identical to loading at a farm or ranch.
Other commenters point out that feed mills and barns, as well as
processing plants that produce bulk animal feed, are often legitimately
viewed as sources. The Midwest Shipper's Association states that grain
elevators are often a source, and that other facilities are closely
related to elevators. These include facilities that clean and process
grain, soybeans and oilseed, as well as ethanol plants that ship
distiller grains.
FMCSA Response: While an agricultural commodity may have several
``sources'' under Question 36 (e.g., for grain, both a field and an
elevator), the ``source'' necessarily excludes the point at which the
commodity is processed to such an extent that it is no longer in its
original form or does not otherwise meet the definition of an
agricultural commodity in 49 CFR 395.2. Question 36 to Sec. 395.1 has
been added to clarify that the source of an agricultural commodity
includes more than just the original location at the farm or field. The
Agency recognizes that further regulatory guidance may be necessary as
the industry and enforcement communities adjust to these clarifications
of Sec. 395.1.
4. Multiple Sources (Question 37)
Many 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.
Comments: Most commenters agreed that multiple pick-ups and
deliveries should be allowed, but that the 150 air-mile radius should
be measured from the last pick-up point, not the first point as
proposed. Other than the disagreement with that part of the proposal,
no one objected to allowing multiple pick-ups and deliveries. The Farm
Bureau believes that the exception should not be limited to one ``use''
each day, and all locations at which agricultural commodities are
loaded for shipment should qualify as a source. The Oregon Cattleman's
Association agrees, and points out that the alternative--limiting a
vehicle or driver to a single ``trip''--adds unnecessary complexity to
the analysis. Each of several loading stops during the duty day takes
place at what the industry views as a ``source''--the industry does not
think in terms of a single daily ``trip.'' The New Mexico Farm and
Livestock Bureau concurs that livestock markets and elevators are
properly viewed as the source of the commodity. The Colorado Farm
Bureau states that Congress did not intend to limit a driver or vehicle
to a single ``source'' each calendar day. The Iowa Cattlemen's
Association supports the Farm Bureau position.
Commenters explained that drivers often must pick up agricultural
commodities at several locations to fill their vehicle. This is the
only reasonable approach to making a living hauling
[[Page 26377]]
agricultural products. It would be inefficient to operate below
capacity, and one stop may not have enough product to fill a truck.
CVSA applauded efforts to update Agency guidance. It believes
greater clarity is needed regarding the loading of agricultural
commodities at multiple sources. It states that the exception should
begin with the first source, and that stopping after that initial
source should not restart the exception. In its view, the exception and
the 150 air-mile radius should be applied from the original source
only.
FMCSA Response: Question 37 to Sec. 395.1 has been added to
clarify that multiple pick-ups are permissible but that the 150 air-
mile radius continues to be measured from the first pick-up point
regardless of the number of times commodities are loaded or offloaded.
The Agency agrees with CVSA's position that the exception should begin
with the first source only. FMCSA notes in the interest of safety that,
under a contrary interpretation that restarts the 150-mile exception
with each new source, a motor carrier could effectively extend the
exception indefinitely. The Agency did not intend to imply that a
carrier would be limited to one ``trip'' per day. A trip terminates
when all of the commodity has been offloaded or non-exempt freight or
products are added to the load. Thereafter, a new trip under the
agricultural exception could be started the same day by loading a
shipment of agricultural commodities at a different source. The 150
air-mile radius would then be measured from this new trip initiation
point.
V. Regulatory Guidance
FMCSA issues Regulatory Guidance, Questions 34, 35, 36, and 37 to
49 CFR 395.1 as follows:
PART 395--Hours of Service of Drivers
Sec. 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 within 150 air-
miles of the place where an agricultural commodity will be loaded, and
to that portion of an unloaded return trip which occurs within a 150
air-mile radius of the place where the agricultural commodity was
loaded?
Guidance: Yes, provided that the trip does not involve transporting
any non-agricultural cargo and the sole purpose of the trip is to make
a pick-up or delivery 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: Yes, the exception applies to transportation during the
initial 150 air-miles from the source of the commodity, regardless of
the distance to the final destination. Once a driver operates beyond
the 150 air-mile radius of the source, 49 CFR part 395 applies. The
driver is then subject to the limits under the hours-of-service rules
and must record those hours. 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.
Question 36: How is the ``source'' of the agricultural commodities
in Sec. 395.1(k)(1) determined?
Guidance: The ``source'' of an agricultural commodity, as the term
is used in Sec. 395.1(k)(1), is the point at which an agricultural
commodity is loaded onto an unladen commercial motor vehicle. The
location may be any intermediate storage or handling location away from
the original source at the farm or field, provided the commodity
retains its original form and is not significantly changed by any
processing or packing. If a driver is making multiple trips, the first
trip, and the 150 air-mile exception around that source, terminate once
all agricultural products are offloaded at a delivery point. A new
source for a new trip may then be identified, and the 150 air-mile
radius for the exception will be around that source.
For example, a sales barn where cattle are loaded may be treated as
a ``source,'' in addition to the location at which they were raised,
since cattle remain livestock. As another example, a place where heads
of lettuce are stored may become a ``source,'' provided they retain
their original form. An elevator where grain is collected and dried may
be a new ``source,'' again assuming that the grain is not milled or
similarly processed at the elevator.
Question 37: How is the ``source of the agricultural commodities''
determined if the driver makes multiple pick-ups of the commodity en
route to the final destination?
Guidance: When a driver loads some of an agricultural commodity at
a ``source'' and then loads more of that commodity at additional stops,
the first place where the commodity was loaded is the measuring point
for the 150 air-mile radius.
VI. Review Date for the 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), this regulatory guidance will be
posted on FMCSA's website, www.fmcsa.dot.gov. It expires June 7, 2023.
The Agency will consider whether the guidance should be withdrawn,
reissued for another period up to five years, or incorporated into the
safety regulations.
Issued on: May 31, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-12250 Filed 6-6-18; 8:45 am]
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