Commodity Transport Comments Submitted
The NCC and the National Cotton Ginners’ Association (NCGA) filed comments with the Federal Motor Carrier Safety Administration (FMCSA) to help clarify future guidance on how agricultural commodities are treated under the Federal Hours of Service (HOS) and Electronic Logging Device (ELD) rules.
February 20, 2018
U.S. Department of Transportation
Docket Management Facility
1200 New Jersey Avenue SE
West Building, Ground Floor, Room W12-140
Washington, DC 20590-0001
Re: Docket ID No. FMCSA-2017-0360. Hours of Service of Drivers of Commercial Motor Vehicles; Proposed Regulatory Guidance Concerning the
Transportation of Agricultural Commodities
The National Cotton Council (NCC) is the central organization of the United States cotton industry. Its members include producers, ginners, cottonseed processors and merchandizers, merchants, cooperatives, warehousers and textile manufacturers. A majority of the industry is concentrated in 17 cotton-producing states stretching from California to Virginia. U.S. cotton producers cultivate between 9 and 12 million acres of cotton with production averaging 12 to 18 million 480-lb bales annually. The downstream manufacturers of cotton apparel and home furnishings are located in virtually every state. Farms and businesses directly involved in the production, distribution and processing of cotton employ more than 125,000 workers and produce direct business revenue of more than $21 billion. Annual cotton production is valued at more than $5.5 billion at the farm gate, the point at which the producer markets the crop. Accounting for the ripple effect of cotton through the broader economy, direct and indirect employment surpasses 280,000 workers with economic activity of almost $100 billion. In addition to the cotton fiber, cottonseed products are used for livestock feed and cottonseed oil is used as an ingredient in food products as well as being a premium cooking oil.
The National Highway System Designation Act of 1995 provided the initial hours of service (HOS) exception for drivers transporting agricultural commodities or farm supplies for agricultural purposes. This Act limited the exception to a 100 air-mile radius from the source of the commodities or distribution point for the farm supplies and during the planting and harvesting seasons as determined by the applicable State.
In enacting the Safe, Accountable, Flexible, Efficient Transportation Act: A Legacy for Users (SAFETEA-LU), Congress revised this provision, enacted it to be new section 229 of Title II of the Motor Carrier Safety Improvement Act of 1999, and defined the terms “agricultural commodity” and “farm supplies for agricultural purposes.” These terms are now defined in 49 CFR 395.2.
Most recently, the statute was amended by section 32101(d) of the Moving Ahead for Progress in the 21st Century Act (MAP-21). This provision revised the description of the exception's scope and extended the applicable distance from 100 air-miles to 150 air-miles from the source.
The focus of today's guidance is limited to the transportation of agricultural commodities, 49 CFR 395.1(k)(1). While the regulatory provision governing the agricultural commodity exception (49 CFR 395.1(k)(1)) closely tracks the statutory provisions, the language is susceptible to multiple interpretations, and the Agency acknowledges that various stakeholders and enforcement officials in different States have expressed inconsistent understandings of the exception from time to time.
Congress originally authored this limited exemption to HOS of drivers’ rules to address the special requirements of agriculture, and in so doing recognized the fact that drivers involved in the agricultural production industry are not long-haul truck drivers. The hard work of these responsible and safety-conscious crop input dealers, agricultural transporters, and farmers is essential to the nation’s agricultural production, especially since there often is a short window of time to plant and harvest crops around changing weather patterns. These operations, many of which are farm cooperatives that are owned by groups of farmers in a particular county or area, are directly involved in the activities of farming and are a key part of the economy in rural America. U.S. agriculture depends heavily on this limited regulatory relief.
This proposed regulatory guidance would clarify the exception with regard to:
(1) Drivers operating unladen vehicles traveling either to pick up an agricultural commodity, as defined in 49 CFR 395.2, or returning from a delivery point; and,
(2) drivers engaged in trips beyond 150 air-miles from the source of the agricultural commodity.
In addition, the Agency seeks public comment on:
(1) whether grain elevators and/or livestock sale barns should be considered a “source” of agricultural commodities under section 395.1(k)(1); and,
(2) how the exception should apply when agricultural commodities are loaded at multiple sources during a trip.
Unladen vehicles: The Agency states that their view of legislative intent is that the exception provides relief for round-trips.
Response: The NCC agrees with this interpretation. Whereas non-agricultural trucking companies are set up to keep cargo on the trucks for all legs of any trip, agriculture cannot work that way. Agricultural trucks are almost always empty going one way of the trip and then hauling commodities on the next leg of the trip. It is the nature of the business, and therefore, the industry needs the round-trip relief as interpreted by the Agency.
Loads beyond a 150 air-mile radius: The Agency would interpret the exception as available to a driver transporting agricultural commodities for a distance up to 150 air-miles from the source, regardless of the distance between the source and final destination or place of delivery. Once a driver crosses the 150 air-mile point, however, the driver would be subject to the hours of service rules for the remainder of the trip.
Response: The NCC agrees with Agency interpretation on this matter. It is our belief that the exception extends to a 150 air-mile radius regardless of further distance traveled and is not completely negated, as some enforcement personnel interpret it, when/if an agricultural transporter crosses the 150-mile point.
Furthermore, we believe that picking up a partial load at more than one location should reset the 150 air-mile exception. Agricultural transporters sometimes pick up partial loads at more than one source for a destination, and this type of work is normally seasonal. This action for agricultural commodities does not compare to non-agricultural trucking where multiple sources along a route is the normal course of business. Another suggestion for the Agency to consider is to increase the air-mile radius exception. With increased transportation technology and infrastructure improvements, it is not unreasonable to review limits set over two decades ago.
Sources of agricultural commodities – specifically grain elevators and livestock sale barns: The Agency asks if these specific locations should be considered sources of agricultural commodities.
Response: While the listed sources are not directly applicable to the cotton industry, the NCC believes that all sources of agricultural commodities should be included. Agriculture is not a normal business model when compared to other industries. It has to operate based in large part on weather patterns and seasons. When commodities must be harvested/moved/sold, then in almost all cases they MUST go then. In general, all facilities tied into agriculture are also tied into these time-sensitive patterns and therefore should be considered “sources” under the Agency’s interpretation.
Furthermore, because cotton ginning is a continuation of the harvesting process that other crops are able to complete in the farm field with other equipment, we agree with FMCSA’s interpretation that ginned and baled cotton is still a non-processed fiber, and along with cottonseed, falls under the definitions of ‘agricultural commodity’ and ‘agricultural supply’.
We appreciate the opportunity to comment on this proposal and are open to further dialog in order to clear up any confusion on these issues. Agriculture is constantly changing, which we understand makes it extremely difficult for the agency to interpret and revise the regulations to facilitate the flow of food and fiber. If you have any questions, please contact Steve Hensley of the National Cotton Council at firstname.lastname@example.org or 202-745-7805.
National Cotton Council
National Cotton Ginners Association