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February 15, 2018

Update: Electronic Logging Device (ELD) and Agriculture in Interstate Commerce

Since the implementation of the ELD mandate for interstate commerce on December 18, 2017, agriculture carriers continue to operate under a temporary partial exemption, pending a formal resolution from the Federal Motor Carrier Safety Administration (FMCSA), which is currently accepting comments. Western Growers is finalizing its further comments, which will be filed before the February 20, 2018, deadline.

Starting in early November 2017, in order to ensure that Western Growers members secure the best flexibility under the ELD mandate, the following steps have been taken:

On November 6, 2017, Western Growers contacted the Secretary of the U.S. Department of Transportation (letter here) requesting a compliance extension from ELDs of at least one year in the public interest in order to ensure uninterrupted distribution of our members’ commodities.

On December 20, 2017, the FMCSA announced a limited 90-day waiver for agricultural commodities, retroactively commencing on December 18, 2017, with that exemption due to expire on March 18, 2018.  Based on this waiver, agricultural carriers may continue to utilize recording on paper logs when traveling beyond the current 150 air-mile radius from the original source.

To further clarify this agricultural waiver, Western Growers reached out to representatives of the FMCSA and confirmed that carriers transporting agricultural commodities in interstate commerce are exempt from the Hours-of-Service (and ELD) during the initial 150 air-mile radius from the original source of the commodity. Once a driver operates beyond the 150 air-mile radius, the driver must begin recording his/her duty time and the rules apply under the 11 hour, 14 hour requirement. (See FMCSA memo)

Next, on January 18, 2018, Western Growers submitted comments (letter here) to another notice published in the Federal Register by FMCSA which stated that Western Growers supports a permanent exemption to the ELD mandate for carriers transporting fresh vegetables, fruit and tree nuts. The letter also requested an extension of the comment period to allow industry stakeholders to submit further comments.

In response to this most Federal recent notice Western Growers will be asking FMCSA for broad interstate commerce agricultural exemption including the following:

  1. Make permanent the exemption to the ELD while transporting agricultural commodities.
  2. Provide industry with a more distinctive definition as to when and where the 150 mile air radius applies and specifically what agricultural commodities and/or agricultural supplies encompass the exemption.
  3. Expand the definition of “source” to include such sources as farm, packing facility, cold storage or other nearby off farm origins when used to introduce fresh vegetables, fruit and tree nuts into commercial commerce.
  4. Expand the agricultural exemption to include those unladen truck returning west to apply the agricultural exemption once they have been assigned a specific pick up order and are within 150 miles of the pickup location, regardless whether or not it is the same pick up origin as the original agricultural outbound move.
  5. Create and define a reasonable geographical area/zone that would permit the 150 mile exemption to extend beyond the first pickup, thereby allowing minimal extra mileage beyond the final pickup prior to becoming subject to the Hours of Service regulations.
  6. Provide some additional hours to compensate for delay in loading due to product availability and at destination to allow for delayed unloading and other activity such as USDA inspections.

Finally, because there still remains considerable confusion over the ELD mandate—which is separate from Hours of Service—Western Growers again reached out to, and spoke directly with, representatives of the FMCSA.

First, it needs to be made clear that the ELD mandate simply means that carriers are now required to utilize the ELD rather than recording Hours of Service on paper logs (with the exception of agricultural carriers previously herein noted). Secondly, this is not an Hours-of-Service rule change. The few exceptions that have been made were to accommodate certain industry segments, such as the agricultural exemption that allows the continued use of paper logs, rather than ELDs, when, and only when, the carrier is transporting designated agricultural commodities. As confirmed with representatives from the FMCSA, Hours-of-Service and the use of ELDs do not apply when agricultural commodities are being loaded and carried within the 150 air-mile radius of the source. When the carrier reaches the 150 mile limit, it then becomes subject to Hours-of-Service; however, the carrier may record its Hours-of-Service on paper logs rather than an ELD, at least until March 18, 2018.

Western Growers has and will continue to engage in dialogue and written comment with appropriate FMCSA officials to secure the best possible resolution for our industry. Further, Western Growers is fully engaged with industry associations throughout the United States to coordinate our efforts and be consistent with our public messaging.

For questions, please contact Ken Gilliland at (949) 885-2267 or Matt McInerney at (949) 885-2263.