Spotlight on DOT Agricultural Exemptions

On November 29, 2020, the Federal Motor Carrier Safety Administration (FMCSA)--a division of the USDOT--published an interim final rule clarifying the regulatory definitions of "agricultural commodity," "livestock," and "non-processed foods," as those terms are used for purposes of the agency's hours-of-service exemption for certain agricultural operations. Although the Federal Motor Carrier Safety Regulations (FMCSRs) have long contained agricultural-related exemptions, the FMCSA's recent rule highlights some of the ambiguity surrounding those exemptions that has persisted over the years. In this article, we'll explore the FMCSRs' various agriculture-related exemptions, including to whom they apply and what specific relief they offer.

Broad "Covered Farm Vehicle" FMCSR Exemption

Generally speaking, the FMCSRs apply to the operation of "commercial motor vehicles" (CMVs) in interstate commerce. In another article, we discussed the significance of that term in this context and the extent to which carriers who operate CMVs are subject to the FMCSRs, but to summarize, a CMV is generally defined to mean a "self-propelled or towed motor vehicle used on a highway in interstate commerce to transport . . . property when the vehicle . . . has a gross vehicle weight rating or gross combination weight rating . . . of 10,001 pounds or more. 49 C.F.R. 390.5. That said, the FMCSRs contain a number of fairly broad exemptions, including one for operators of "covered farm vehicles."

In particular, the pertinent regulation--49 C.F.R. 390.39--provides the following:

A covered farm vehicle, as defined in § 390.5, including the individual operating that vehicle, is exempt from the following:

(1) Any requirement relating to commercial driver's licenses in 49 CFR Part 383 or controlled substances and alcohol use and testing in 49 CFR Part 382;

(2) Any requirement in 49 CFR Part 391, Subpart E, Physical Qualifications and Examinations.

(3) Any requirement in 49 CFR Part 395, Hours of Service of Drivers.

(4) Any requirement in 49 CFR Part 396, Inspection, Repair, and Maintenance.

Thus, any driver operating a vehicle that qualifies as a "covered farm vehicle" is exempt from a large portion of the FMCSRs. The regulations define a "covered farm vehicle" as follows:

Covered farm vehicle -

(1) Means a straight truck or articulated vehicle -

(i) Registered in a State with a license plate or other designation issued by the State of registration that allows law enforcement officials to identify it as a farm vehicle;

(ii) Operated by the owner or operator of a farm or ranch, or an employee or family member of an owner or operator of a farm or ranch;

(iii) Used to transport agricultural commodities, livestock, machinery or supplies to or from a farm or ranch; and

(iv) Not used in for-hire motor carrier operations; however, for-hire motor carrier operations do not include the operation of a vehicle meeting the requirements of paragraphs (1)(i) through (iii) of this definition by a tenant pursuant to a crop share farm lease agreement to transport the landlord's portion of the crops under that agreement.

(2) Meeting the requirements of paragraphs (1)(i) through (iv) of this definition:

(i) With a gross vehicle weight or gross vehicle weight rating, whichever is greater, of 26,001 pounds or less may utilize the exemptions in § 390.39 anywhere in the United States; or

(ii) With a gross vehicle weight or gross vehicle weight rating, whichever is greater, of more than 26,001 pounds may utilize the exemptions in § 390.39 anywhere in the State of registration or across State lines within 150 air miles of the farm or ranch with respect to which the vehicle is being operated.

In sum, there are four specific conditions that must be met in order for a vehicle to qualify as a "covered farm vehicle." First, it must be registered as a farm vehicle and operated with state-issued farm plates. Second, it must be operated by the owner of a farm or an employee or family member of the owner. Third, it must be used to haul agricultural commodities, livestock, or machinery to or from a farm. And fourth, the vehicle must not be used in for-hire motor carrier operations, unless such operations are by a tenant pursuant to a crop-share farm lease agreement. If any one of these four conditions are not met, then the vehicle does not qualify as a "covered farm vehicle" and its operations would be subject to the FMCSRs unless some other exemption applies.

If a particular vehicle otherwise qualifies as a covered farm vehicle, it may still be subject to certain mileage restrictions listed in the second half of the regulation, depending on its weight. For example, if the vehicle (or combination) exceeds 26,000 pounds, then it can only be operated within a 150 air-mile radius of the farm in order to still qualify for the exemption.

Limited "Farm Vehicle Operator" Exemptions

In addition to the broad "covered farm vehicle" exemption, the FMCSRs contain more limited exemptions for "farm vehicle operators" who do not otherwise qualify for the broader exemption. In particular, "farm vehicle operators" may be (if the state in which they are domiciled allows for such an exemption) exempt from the commercial driver's license (CDL) requirement when operating a farm vehicle that is (i) controlled and operated by a farmer, including operation by employees or family members; (ii) used to transport either agricultural products, farm machinery, farm supplies, or both to or from a farm; (iii) not used in the operations of a for-hire motor carrier, except for an exempt motor carrier as defined in 49 C.F.R. 390.5; and (iv) used within 150 miles of the farmer's farm. See 49 C.F.R. 383.3. Further, "farm vehicle operators" meeting the criteria listed above may be exempt from the federal drug/alcohol testing regulations in 49 C.F.R. Part 382 if the state in which they are domiciled has chosen to recognize the CDL exemption discussed above. See 49 C.F.R. 382.103.

In addition, "farm vehicle drivers" who do not operate articulated CMVs are exempt from the driver qualification requirements in 49 C.F.R. Part 391 (except for the prohibitions on operating CMVs while texting or using a hand-held mobile device), so long as the vehicles aren't being used to haul placardable quantities of hazardous materials. See 49 C.F.R. 391.2(c); 49 C.F.R. 390.5 (defining "farm vehicle driver"). Farm vehicle drivers who operate articulated CMVs and are 18 years of age or older are exempt from a smaller subset of the driver qualification requirements, including certain general qualifications, background checks, road tests, and maintenance of files and records. See 49 C.F.R. 391.67.

Limited "Agricultural Operations" Hours-of-Service Exemption

The FMCSRs contain yet another more limited exemption--assuming the broad "covered farm vehicle" exemption doesn't apply--within their hours-of-service provisions in 49 C.F.R. Part 395. This exemption applies to "agricultural operations," and states the following:

(k) Agricultural operations. The provisions of this part shall not apply during planting and harvesting periods, as determined by each State, to drivers transporting

(1) Agricultural commodities from the source of the agricultural commodities to a location within a 150 air-mile radius from the source;

(2) Farm supplies for agricultural purposes from a wholesale or retail distribution point of the farm supplies to a farm or other location where the farm supplies are intended to be used within a 150 air-mile radius from the distribution point; or

(3) Farm supplies for agricultural purposes from a wholesale distribution point of the farm supplies to a retail distribution point of the farm supplies within a 150 air-mile radius from the wholesale distribution point.

In sum, a driver who hauls "agricultural commodities" or "farm supplies" within a 150 air-mile radius of their source or wholesale or retail distribution point are exempt from the federal hours-of-service rules during the planting and harvesting periods as determined by the applicable state. As noted at the start of this article, the FMCSA recently issued an interim final rule that clarifies the definitions of "agricultural commodity" and some of its internal terms for purposes of this exemption. That rule defines those terms as follows:

Agricultural commodity means:

(1) Any agricultural commodity, non- processed food, feed, fiber, or livestock as defined in this section. (2) As used in this definition, the term ‘‘any agricultural commodity’’ means horticultural products at risk of perishing, or degrading in quality, during transport by commercial motor vehicle, including plants, sod, flowers, shrubs, ornamentals, seedlings, live trees, and Christmas trees.

Livestock means livestock as defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 1988 [7 U.S.C. 1471], as amended, insects, and all other living animals cultivated, grown, or raised for commercial purposes, including aquatic animals.

Non-processed food means food commodities in a raw or natural state and not subjected to significant post- harvest changes to enhance shelf life, such as canning, jarring, freezing, or drying. The term ‘‘non-processed food’’ includes fresh fruits and vegetables, and cereal and oilseed crops which have been minimally processed by cleaning, cooling, trimming, cutting, chopping, shucking, bagging, or packaging to facilitate transport by commercial motor vehicle.

Further, in prior written guidance, the FMCSA has clarified that drivers who fall under this exemption are completely exempt from the hours-of-service rules while operating within the 150 air-mile radius of the source of the commodities, including when the vehicle is unladen. This means that any hours incurred within that air-mile radius are completely excluded from the driver's calculation of available hours under Part 395. By way of example, say a driver spends 10 hours driving agricultural commodities within a 150 air-mile radius of their source and then another 3 hours driving outside of that radius. The driver would only be required to log the 3 hours spent driving outside the 150 air-mile radius for that day, meaning that the driver would technically have 8 additional hours of driving time left on his/her 11-hour clock. Additionally, once the driver reenters the 150 air-mile radius, he/she is once again exempt. The FMCSA offers the following diagrams in its online guidance:

Exempt Commodity Operating Authority Exemption

Aside from its safety-related regulations, the FMCSA also promulgates and enforces certain commercial regulations, including the requirement that for-hire motor carriers obtain for-hire motor carrier operating authority in order to provide those types of services in interstate commerce. And just as there are safety-related exemptions for agricultural operations, there are similar exemptions from the agency's operating authority requirements.

Generally speaking, federal law requires any person that performs "motor vehicle transportation for compensation" in interstate commerce to obtain for-hire operating authority from the FMCSA. See 49 U.S.C. 13901. Such authority is separate and distinct from a USDOT number and is, instead, designated by an "MC number." As noted, there are a number of exemptions from the federal operating authority requirement, including one that applies to the transportation of certain "exempt commodities." See 49 USC 13506(6)(C). Those persons or entities that haul exempt commodities in interstate commerce are not required to obtain federal operating authority to do so. This is true even when the commodities are being transported for compensation or "for-hire." In such cases, the carrier is considered to be "exempt for-hire," meaning it is hauling exempt commodities for compensation.

The FMCSA maintains a list of "exempt commodities" in its Administrative Ruling No. 119, which is available online at https://www.fmcsa.dot.gov/registration/administrative-ruling-119. Included on the list are several agricultural products, including but not limited to various fruits and vegetables, milk, trees/timber, and even pet food. Again, carriers hauling products that are listed in Administrative Ruling 119 in interstate commerce are exempt from the federal motor carrier operating authority requirement.

Conclusion

The FMCSA's various agriculture-related exemptions can be confusing, particularly when there is overlap among them. The agency's recent interim rule provides some clarification with respect to the limited hours-of-service exemption. However, it's important that those seeking to take advantage of one or more of these exemptions understand precisely when and to whom they apply.

If you are looking for in-depth training on topics addressed in this article, including hours-of-service, driver qualification, vehicle maintenance and inspection, drug/alcohol testing, and much more, be sure to check out our industry-leading online compliance courses through Trucksafe Academy!