Spinning wheels

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A little more than a year after the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) began the compliance phase of its Electronic Logging Device (ELD) rule and hours-of-service (HOS) regulations, questions about the agriculture exemption remain.

The ELD rule required most FMCSA-regulated motor carriers to convert their records from paper to an electronic format. That rule brought to focus HOS regulations, especially certain regulations that affect ag and horticulture.

In the fall of 2018, FMCSA sought public comment on revising four specific areas of current HOS regulations, which limit the operating hours of commercial truck drivers. The Advanced Notice of Proposed Rulemaking (ANPRM), which was published in the Federal Register, asked for feedback from the public “to determine if HOS revisions may alleviate unnecessary burdens placed on drivers while maintaining safety on our nation’s highways and roads.” The comment period for the proposed changes has closed.

FMCSA is considering four areas for revision:

• Expanding the current 100 air-mile “short-haul” exemption from 12 hours on-duty to 14 hours on-duty, to be consistent with the rules for long-haul truck drivers;
• Extending the current 14-hour on-duty limitation by up to two hours when a truck driver encounters adverse driving conditions;
• Revising the current mandatory 30-minute break for truck drivers after 8-hours of continuous driving;
• Reinstating the option for splitting up the required 10-hour off-duty rest break for drivers operating trucks that are equipped with a sleeper-berth.

AmericanHort submitted comments to the ANPRM and emphasized the need for additional regulatory guidance and clarification around the agricultural exemption, noting that horticulture should explicitly be included within the agricultural exemption based on extensive precedent in federal law and regulation.

“We noted that the specialty crop definition in Section 101 of the Specialty Crop Competitiveness Act of 2004 is ideal for inclusion in the FMCSA’s ‘agricultural commodity’ definition,” explains Tal Coley, AmericanHort's Director of Government Affairs. “That law defines specialty crops as ‘fruits and vegetables, tree nuts, dried fruits, horticulture, and nursery crops (including floriculture).’ We are aware that discussions are ongoing between the Department of Agriculture and the Department of Transportation on this issue. A clear solution is urgently needed to address the opaqueness in the trucking exemption’s agricultural commodity definition. It remains unclear as to when FMCSA will decide on next steps and potentially finalize these proposed changes. Leadership at the agency has stated previously that they will continue to look for additional flexibility measures going forward.”

AmericanHort’s comments explained the short window of time our industry works to grow and ship product.

“The unique nature of nursery and greenhouse crops, as well as other specialty crops, really creates the rationale underlying the agricultural exemption. Specialty crops are typically highly seasonal, perishable, affected by the elements, and the availability of inputs such as water and labor. Because of their perishability and narrow market windows, nursery, greenhouse, and other specialty crops require timely access to markets. In our industry, 60 percent or more of annual business occurs in a six- to eight-week window in the spring. A delay of a day or two can often be make-or-break in terms of marketability or hitting the viable market window. This contrasts with many food and fiber crops, which can be stored for long periods of time as producers and handlers await favorable market conditions.”

The Owner-Operator Independent Drivers Association (OOIDA) also called for flexibility in the comments. “The current HOS regulations that dictate a truck driver’s work schedule are overly complex, provide virtually no flexibility and in no way reflect the physical capabilities or limitations of individual drivers. They effectively force drivers to be on the road when they are tired or fatigued, during busy travel times such as morning and afternoon rush hour. The unyielding 14-hour clock pressures truckers to drive faster when they’re running short [on time].”

This advance notice does not guarantee changes will be made, only that FMCSA is exploring the idea, Coley explains. If these measures are eventually adopted, they would be the first major changes to HOS rules in more than a decade, he adds.

Additional help for clarifications came from the House with the introduction of the Agricultural Trucking Relief Act of 2018, H.R. 7004. The bill was sponsored by Rep. Austin Scott (R-GA) and introduced the end of September last year. It calls for clarity to the definition of “agricultural commodity,” as it relates to transportation policy, by amending The Motor Carrier Safety Improvement Act of 1999.

“Unlike other legislation on the issue that is more messaging-oriented and touches on aspects of the Electronic Logging Device mandate, H.R.7004 is surgical and addresses the immediate problem at hand – the opaqueness of the agricultural commodity definition currently being used,” Coley says.

At press time, the bill had been referred to the House Committee on Transportation and Infrastructure. However, Rep. Scott’s office has said it will reintroduce the bill this year if necessary, according to Coley.

Late last year, the FMCSA announced in the Dec. 7 Federal Register that it rejected 10 petitions from groups seeking exemptions from the ELD rule, including the OOIDA which requested a five-year exemption from ELD regulations for certain motor carriers considered to be a small transportation trucking business under 13 CFR 121.201. View all the petitions and the FMCSA responses here: http://bit.ly/HOS_petitions.

During an FMCSA listening session last October, the agency conceded that drivers are looking for flexibility, not necessarily the ability to work longer hours.