[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 
[email protected].

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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