In our Winter Trucking Newsletter sent in December, we published an article entitled “ELDs & Personal Conveyance: Further FMCSA Guidance is Coming.” The guidance is now here! FMCSA recently released proposed guidance to replace the current interpretation listed in Question 26 under section 49 C.F.R. 395.8. Regarding when a driver may operate a commercial motor vehicle (CMV), the proposed guidance states “[a] driver may record time operating a CMV for personal conveyance (i.e., for personal uses or reasons) as off-duty only when the driver is relieved from work and all responsibility for performing work.” This is a simplification of the previous guidance. FMCSA then provides examples of appropriate uses of personal conveyance and others that would not qualify. Examples of appropriate personal conveyance include: 1) time spent traveling from a driver’s en route lodging (i.e., motel or truck stop) to restaurants and entertainment facilities and back to the lodging; and 2) commuting from the last location where on-duty activity occurred to the driver’s permanent residence and back to that last location. Further examples of this second category include commuting between the driver’s terminal and his or her residence, between trailer-drop lots and the driver’s residence, and between work sites and the driver’s residence. Uses that would not qualify as personal conveyance include: 1) moving a CMV closer to its next loading or unloading point or other motor carrier- scheduled destination; 2) returning to the point of origin under the motor carrier’s direction to pick up another towed unit after a towing unit delivers a towed unit; 3) continuing a CMV trip in interstate commerce, even after the vehicle is unloaded; 4) bobtailing or operating with an empty trailer to retrieve another load; and 5) repositioning a CMV or trailer at the direction of the motor carrier. As a general test, a use of a CMV should not be considered personal conveyance if the transportation is for the commercial benefit of the carrier at that time. Perhaps the biggest change coming from the proposed guidance is that the CMV no longer has to be unladen. FMCSA wishes to focus on the reason the driver is operating the CMV while off duty, and not whether or not the CMV is laden. This eliminates the old requirement of having to take steps such as offloading or leaving trailers unattended, in order to move a CMV under personal conveyance.

FMCSA is seeking public input and comments on this proposed guidance. They wish to hear from industry participants regarding other appropriate uses of a CMV while off-duty for personal conveyance and for information on the economic impacts of the proposal. Public comments on this proposed guidance can be submitted to FMCSA online at www.regulations.gov or through the mail to Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. If you have comments or concerns, make your voice heard! FMCSA is looking for industry feedback.

FMCSA Releases Proposed Guidance on Transportation of Agricultural Commodities

FMCSA has also issued proposed guidance concerning the transportation of agricultural commodities. The agency is seeking to clarify areas of uncertainty in existing regulations. The current regulatory provisions contain language susceptible to multiple interpretations, and enforcement officials in different states have expressed inconsistent understanding of the provisions. While the ELD mandate does not change the hours of service rules or the agricultural commodity exception, some carriers have raised questions as to how the agricultural exception and hours of service rule work with the ELD mandate. FMCSA offers the following guidance in response to some of these concerns. First, the agricultural commodity exception could be read to apply only when the commodity is being transported, and not to movements of an unladen vehicle heading to pick up a load or returning from a delivery. FMCSA’s opinion is that the legislative intent was to provide “round-trip relief” to farmers. As such, the newly proposed guidance makes clear that the agricultural commodity exception applies to a driver operating an unladen commercial motor vehicle “used in transportation either to a source to pick up

an agricultural commodity or on a return trip following delivery of an agricultural commodity.” This will formalize the position of which FMCSA has been advising interested parties informally. Second, enforcement personnel have interpreted the agricultural commodity exception to be inapplicable to any portion of a trip if the destination exceeds 150 air-miles from the source. Currently, the regulation states that hours of service regulations will not apply to “[d]rivers transporting agricultural commodities from the source of the agricultural commodities to a location within a 150-air-mile radius from the source.” The strict interpretation by some enforcement personnel reads “location” to mean only the final destination of the load. FMCSA now proposes to define “location” as the outer limit of the exception distance, i.e. 150 air-miles from the source. This means the agricultural commodity exception would apply for the first 150 air-miles of a trip from the source, regardless of the final destination. Once the driver crossed the 150 air-mile point, he or she would be subject to the hours of service rule for the remainder of the trip. Essentially, when transporting agricultural commodities, the driver gets 150 “free” air-miles before hours of service rules kick in. Lastly, FMCSA seeks public comment on some other guidance requests from the industry. Transporters have requested clarification on what constitutes a “source” of agricultural commodities. Specifically, questions have arisen regarding the classification of grain elevators and livestock sale barns, originating points for many agricultural commodity loads. Currently, these locations are not considered “sources” under the statutory and regulatory terminology. Additionally, transporters have asked if the agricultural commodity exception would apply if the driver were to pick up partial loads at two or more locations. Really, the question is whether the calculation of the 150 air-mile radius restarts when there is a pickup at a subsequent “source.” To this point, informal guidance has stated that the 150 air-mile radius is calculated from the first source of an agricultural commodity, and no subsequent stops extend it. FMCSA is requesting public comment on this interpretation and how additional sources may affect the exception.

Public comments on this proposed guidance can be submitted to FMCSA online at www.regulations.gov or through the mail to Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. If you have comments or concerns, make your voice heard! FMCSA is looking for industry feedback. If you’d like more information, please contact Steve Setliff at 804.377.1261.