View more from News & Articles or Primerus Weekly

Although Flexible, the Exception is Extremely Fact Specific

By Andrew Laquet
Roberts Perryman PC
St. Louis, Missouri

On May 31, 2018, the FMCSA recently adopted a new “guidance” for the Agricultural commodity exception on Hours of Service.  This change will affect not only traditional AG haulers but many truckload carriers who transport agricultural products as part of the normal reefer business.  The new guidance offers more flexibility and additional hours off the clock for those who haul agricultural “commodities.”

Section 395.1(k) provides exceptions to hours of service rules during harvesting and planting periods for the transportation of agricultural commodities.  Under this exception, a motor carrier is exempted from hours of service if transporting agricultural commodities if within a 150 air-mile radius from the source of the commodities.  In short, drivers are not “on the clock” if within the 150 air-mile radius.  Section 395.2 defines an agricultural commodity as “any agricultural commodity, non-processed food, feed, fiber, or livestock.”

An agricultural commodity can have many sources, not just farms. For purposes of the exception, the source of the commodity is simply the point at which it is loaded onto an unladen commercial vehicle. The “source” can be directly from the field itself, or an intermediate storage or handling location, but if it is from an intermediate facility the commodity must retain its original form and not be changed by any processing or packing. For example, lettuce can be stored in a facility that may be a “source” if it stays in its original form. However, the place of pick-up is not a “source” if that lettuce is, instead, chopped, washed, and placed in salad bags.

Once the commodity is picked up from the source, the driver may operate completely within the 150 mile radius without having to keep paper logs or use an ELD. If the driver has to automatically log into an ELD, the movement should be identified as “personal conveyance” with an annotation explaining it is exempt under the agricultural exception. Time spent within this radius does not count toward a driver’s daily or weekly limits. Drivers may also receive loads from multiple sources during a trip, as long as the first pick up point is within the measure of the radius.

Once a driver crosses the 150 mile radius, the hours of service regulations apply starting at the time and location where the transport goes past the radius.  At that point, the driver goes on the clock. The hours of service rules apply for the duration of that trip beyond the 150 mile radius and until the driver crosses back into the area within the 150 mile radius.  If the route returns within the 150 mile radius, the driver can use personal conveyance noting the agricultural exception or stop maintaining paper logs as on duty driving.

Carriers must be careful when operating under the agricultural exception.  Although it is flexible, it is extremely fact specific.  For example, imported bananas would not qualify because the cargo would not be from a first point of processing.  But, strawberries placed in plastic retail containers should qualify since they have not been processed or altered from their natural state.

Carriers must carefully prepare their drivers to successfully use the agricultural exception.  Not only should the agricultural exception be noted on E-logs, drivers need to be prepared to explain the exception to law enforcement during a roadside inspection.   It would not be unusual for a driver to log 6-8 hours under “personal conveyance” if picking up produce from several locations within a 150 air-mile radius.  Law enforcement will surely question if the driver is within the HOS if he is still driving eight hours later and outside the 150 mile radius.

The new guidance can be found at FMCSA Guidance for Agricultural Exceptions.  Please let us know if you need assistance with the agricultural commodity exception or need help in putting together a checklist for drivers to consult if stopped at roadside.

This article was written by Andrew Laquet, associate attorney at Roberts Perryman PC. Andrew focuses his practice on transportation, insurance defense and complex litigation.