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FMCSA: Proposed Guidance on ELD Implementation

Thursday, February 15, 2018

The Federal Motor Carrier Safety Administration (FMCSA) recently requested public comments on implementation of certain aspects of its electronic logging device (ELD) rule.  

Specifically, the FMCSA is requesting comments on a notice and proposed rule that would:

  • Clarify when drivers may use a commercial motor vehicle (CMV) for personal use while off-duty—also known as “personal conveyance.”
  • Clarify the applicability of the ELD rule to hours-of-service (HOS) regulations that affect “unladen” CMVs in the agricultural transport industry.
  • Determine how the 150 air mile rule applies to CMVs transporting agricultural commodities. 


Affected motor carriers should review the FMCSA’s answers to frequently asked questions regarding ELD implementation. Carriers wishing to submit their feedback on how ELD requirements apply to personal conveyance or the agricultural exemption must do so by Feb. 20, 2018.

Notice: Personal Conveyance

Under FMCSA regulations, drivers must document their HOS status as either on-duty (but not driving), driving, sleeper berth or off-duty. The current guidance, issued in 1997, allows for personal conveyance when:

  • The driver is off-duty;
  • The CMV is unladen during personal use; and
  • The CMV is used to travel short distances between the driver’s lodgings and nearby restaurants.

The proposed guidance would eliminate the requirement that the CMV be unladen. This change would allow CMV drivers to be off-duty even when operating the CMV, based on the reason the driver is operating the CMV.
The notice for public comment on personal conveyance was issued on Dec. 19, 2017, with an original deadline of Jan. 18, 2018. However, the FMCSA has extended the comment period, and will accept public comments on this proposal until Feb. 20, 2018. See the box below for the actual text of the proposal:

Question 26: Under what circumstances may a driver operate a commercial motor vehicle (CMV) as a personal conveyance?
Proposed guidance: A driver may record time operating a CMV for personal conveyance (i.e., for personal use or reasons) as off-duty only when the driver is relieved from work and all responsibility for performing work.

          • Examples of appropriate uses of a CMV while off-duty for personal conveyance include, but are not limited to:
              • Time spent traveling from a driver’s en route lodging (such as a motel or truck stop) to restaurants and entertainment facilities and back to the lodging.
              • Commuting from the last location where on-duty activity occurred to the driver’s permanent residence and back to that last on-duty location. This would include commuting between the driver’s terminal and his or her residence, between trailer-drop lots and the driver’s residence, and between worksites and his or her residence.
          • Examples of uses of a CMV that would not qualify as personal conveyance include, but are not limited to, the following:
              • The movement of a CMV to enhance the operational readiness of a motor carrier. For example, moving the CMV closer to its next loading or unloading point or other motor carrier-scheduled destination, regardless of other factors.
              • After delivering a towed unit, and the towing unit no longer meets the definition of a CMV, the driver returns to the point of origin under the direction of the motor carrier in order to pick up another towed unit.
              • Continuation of a CMV trip in interstate commerce, even after the vehicle is unloaded. In this scenario, on-duty time does not end until the driver reaches a location designated or authorized by the carrier for parking or storage of the CMV, such as a permanent residence, authorized lodging or home terminal.
              • Bobtailing or operating with an empty trailer to retrieve another load.
              • Repositioning a CMV and/or trailer at the direction of the motor carrier.

The CMV may be used for personal conveyance even if it is laden, since the load is not being transported for the commercial benefit of the carrier at that time.


Proposed Rule: Transportation of Agricultural Commodities

The FMCSA has also published a proposed rule regarding the HOS exemption for CMVs that transport agricultural commodities. The proposed rule has been issued to clarify the applicability of the following HOS exception for agricultural commodities:

  • 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
  • Engaging in trips beyond 150 air miles from the source of the agricultural commodity.

In addition, the proposed rule is seeking public comment on the following questions:

  • Should grain elevators and livestock sale barns be considered a “source” of agricultural commodities under Section 395.1(k)(1)?
  • Are there particular segments of the industry that would take advantage of this change more than others?
  • How does the flexibility provided in this guidance impact a carrier’s need for an ELD?
  • How many carriers and drivers are there transporting agricultural commodities in various segments (livestock, unprocessed food and others) that are impacted by this guidance?
  • How does the exception apply when agricultural commodities are loaded at multiple sources during a trip? (The proposed rule does not address “farm supplies for agricultural purposes” as defined by 49 CFR 395.1(k)(2) or (3))

The original deadline for comments on this proposal was set for Jan. 18, 2018. However, the FMCSA has extended the comment period to Feb. 20, 2018.

Unladen vehicles

Interpreted literally, the agricultural commodity exception could be read as applicable only during the period during which the commodity is being transported. This could pose a problem for unladen or “no-load” CMVs that are in motion to either pick up a load or return after a delivery.
To the FMCSA, his possible interpretation is not consistent with the purpose and intention of the ELD rule. The ELD rule was adopted to provide round-trip relief to farmers. Therefore, the FMCSA has informally advised stakeholders that both legs of a trip are covered.
The FMCSA is proposing to address this issue with the following guidance:
Question 34: Does the agricultural commodity exception (§ 395.1(k)(1)) apply to drivers while driving unloaded to a source where an agricultural commodity will be loaded, and to an unloaded return trip after delivering an agricultural commodity under the exception?
Proposed guidance: Yes, provided that the trip does not involve transporting other cargo and the sole purpose of the trip is to complete the delivery or pick up of agricultural commodities, as defined in § 395.2. In that case, driving and on-duty time are not limited, nor do other requirements of 49 CFR part 395 apply.

Loads beyond a 150 air-mile radius

Similarly, it is possible to interpret the agricultural commodity exception as inapplicable to any portion of a trip if the destination exceeds 150 air miles from the source. This narrow interpretation could exclude from the word “location” any destination other than the final destination of the load.
The FMCSA is trying to address this issue in this answer to the following question:

Question 35: Does the agricultural commodity exception (§ 395.1(k)(1)) apply if the destination for the commodity is beyond the 150 air-mile radius from the source?
Proposed guidance: The exception applies to transportation during the initial 150 air miles from the source of the commodity. Once a driver operates beyond the 150 air-mile radius of the source, part 395 applies. Starting at zero from that point, the driver must then begin recording his or her duty time, and the limits under the 11-hour, 14-hour, and the 60-/70-hour rules apply. Once the hours-of-service rules begin to apply on a given trip, they continue to apply for the duration of that trip, until the driver crosses back into the area within 150 air miles of the original source of the commodities and is returning to that source. If the driver is not returning to the original source, the HOS rules continue to apply, even if the driver re-enters the 150-mile radius.

More Information

Please contact The Horton Group, Inc.  or visit the FMCSA website for more information on ELDs, HOS and other FMCSA requirements.


Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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