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July 18, 2018

TRANSPORTATION Ag Exemption Eliminates Major ELD Hurdles

The new rules governing the use of electronic logging devices (ELD) and hours of service in the world of produce trucking have eliminated many of the issues concerning the mandated use of ELD and basically given truckers back the time the use of an ELD would have taken from them.

In a nutshell, produce truckers—and truckers of other ag commodities—are off the clock as they travel the first 150 miles to and from the pickup point, including the loading of the product from its initial source. It isn’t until the trucker gets about 170 miles from the point of origin that the hours of service rules kick in. On June 7, the Federal Motor Carrier Safety Administration (FMCSA) published its guidance in the Federal Register clarifying the ag exemption and making it officially effective as of that date for the next five years.

The produce industry and other ag sectors have argued vehemently for the past several years that the ELD regulation, which officially went into effect in December of 2017, would add a day to the length of a cross-country trip for produce haulers because of the unique circumstances involved in the pickup of their load. As articulated, the argument held that produce is often not ready to be loaded when a truck arrives at the cooler of the grower-shipper. Because of its perishability, it cannot be held in inventory for an extended period like dry goods. This means that truckers often have to wait around for hours while the crops are harvested, packed and cooled before shipment.

Under the basic hours-of-service rules, this waiting around time counted against a trucker’s drive time. While the new ELD regulation didn’t change the hours of service rules, the use of electronic logging device does not allow truckers to alter their log book. With a written logbook, a trucker could wait until the truck is loaded and he is on the road to officially log in, and start the clock toward his mandated rest time. The ag exemption rules allows for that and even more.

Ken Gilliland, director of transportation for Western Growers, said that the ag exemption guidance, and a companion guidance concerning the use of a commercial vehicle for personal use are very helpful to the fresh produce industry. “We (the agricultural industry) basically got what we were looking for. Within the guidance, the FMSCA indicates that there may be need for some tweaking but generally it appears that they have covered all the bases.”

The FMSCA issued a temporary exemption for agricultural trucking after the new ELD regulations became effective in December of 2017. In January, a guidance about the exemption was published in the Federal Register and in late May a clarification about that exemption was released by FMCSA. The publishing of it in the Federal Register makes it official.

The ag exemption guidance clarifies two main points: one defining what a “source” is as it relates to the initial pickup of an agricultural commodity. The second point clarifies the exemption as it relates to operating a truck within 150 air miles (about 170 road miles) of a source prior to or immediately after picking up a load.

The new clarifications allow the pick-up point for the products—be it the field, packing shed or cooler—to be the “source” from which the ag exemption rules originate. While a trucker is within 150 miles of that sources—either going to pick up his load or leaving after having secured it—the hours of service rules are not in effect. When beyond that “exemption zone,” the hours of service rules and the mandated use of ELD governing transporters of all other goods will kick in.

For haulers of agricultural goods, after picking up a load, the hours of service limitations kick in when the trucker gets beyond 150 air miles from the point of pickup. Likewise, a hauler with an empty trailer going to a facility to pick up a load does not have to be concerned with violating the hours of service rules once within 150 air miles of the facility. When multiple pickups are involved, the 150 mile meter starts after leaving the first facility.

Two officials from the FMSCA further clarified the definition of a source in an email exchange with Western Grower & Shipper. Greg Bragg, who is with the California Division of FMSCA and FMSCA Chief of Operations Tom Yager, provided the definition of the “source” when answering a series of questions covering different scenarios. They revealed that there can be multiple sources for the same product covering different drivers. A driver taking the product from the field to an interim storage point would be covered by the 150 air-mile exemption, as would a separate driver taking the product from the interim storage point and putting it into interstate or intrastate commerce. The one caveat, however, is the hours of service exemption would not qualify “unless the only reason for the interim storage and multiple pick-ups is to skirt the intent of the regulation,” said Yager.

The FMSCA also defined a “source” as the U.S. facility where product coming from Mexico, Canada or overseas is off-loaded for shipment for processing.

They also clarified that the entire load has to qualify for the 150 air-mile exemption or the load does not qualify. “This follows the general policy that you cannot add any non-exempt items to an exempt load and still call it exempt. 100% is required,” wrote Yager.

However, he said a grower-shipper could re-ship product from one storage point to a cooler hundreds of miles away and each driver picking up that product would still enjoy the 150 air-mile exemption.

Gilliland said the guidance on the use of the semi-truck for personal conveyance is also important. This guidance covers all drivers not just those hauling agricultural products. Under the hours of service rules, FMCSA has said that a driver who has run out of drive time is allowed to use the commercial vehicle for personal conveyance as the trucker goes to the nearest facility to begin the mandated rest period. Gilliland said this allows truckers with a full load to proceed a reasonable distance to a hotel or truck stop. While they have to account for that time, it is allowed. Previously, he said the rule allowed for personal conveyance but only if the trailer was empty.

Gilliland said that the ag exemption clarification does concede that there could be further clarifications as questions arise. Both Yager and Bragg agreed with that assessment.

Bragg also said that while truckers of agricultural commodities do have an exemption from hours of service rules with regard to receiving a citation, the basic rules of safety and liability apply. He said a trucker cannot operate his equipment when it is unsafe because he is tired. For example, if a driver took eight hours from 150 air-miles out and back to pick up the load, it would be unreasonable, unsafe and thus unlawful for him to start his ELD and drive 11 hours without a break. He also noted that if a driver had put in 10 hours of driving as he arrived at that point 150 air-miles from the packing shed, those hours of service do not go away. Bragg said when the trucker gets back to that spot (150 air-miles out), he only has one hour left, unless he has taken the required rest time in the interim.

With both documents published on June 7, 2018, they will remain in effect until June 7, 2023, unless there is a superseding guidance published in the Federal Register in the interim.