Several industry groups have provided input to the Federal Motor Carrier Safety Administration on the question of hours of service rules as they relate to definitions of agricultural commodities.

Here is what the FMSCA said when it requested comments:

FMCSA seeks public input and data that the Agency could use in a future proposal on the definition of ‘Agricultural commodity’ for the ‘Hours of Service (HOS) of Drivers’’ regulations at 49 CFR 395.1(k)(1) and 49 CFR 395.2.

FMCSA seeks comment to assist in determining whether, and if so to what extent, the Agency should revise or otherwise clarify the definitions of “agricultural commodity” or “livestock” in the “Hours of Service (HOS) of Drivers” regulations. Currently, during harvesting and planting seasons as determined by each State, drivers transporting agricultural commodities, including livestock, are exempt from the HOS requirements from the source of the commodities to a location within a 150-air-mile radius from the source. This ANPRM is prompted by indications that the current definition of these terms may not be understood or enforced consistently when determining whether the HOS exemption applies.



The comment period closed Sept. 27, but not before several industry groups had their say before the curtain closed 

From the United Fresh Produce Association:

We appreciate the opportunity to provide insights on this important matter related to our industry’s needs regarding the definition of an “agricultural commodity” in the “Hours of Service of Driver” regulations.

United Fresh strongly believes that improvements can be made to existing regulations that will encompass the entirety of the agriculture commodity industry, particularly those products that are highly perishable such as fresh produce. Fresh produce is highly sought after by consumers and with regards to its transportation from farm to table, time is of the essence. Therefore, any regulation that is put forth by the Federal Motor Carrier Safety Administration should extend the definition of an agricultural commodity covered under this regulation to fresh produce, including fresh cut produce because any delay in the transport of such products results in the loss of quality and safety for the consumer.

As the agency considers clarifying the current definition of an agricultural commodity, United Fresh suggests at a minimum, to consider the following as a revised definition of an agricultural commodity:
• Any products planted or harvested for food, feed, fuel or fiber;
• Fruits, vegetables; and other agricultural products that are sensitive to temperature and climate and at the risk of perishing in transit;

United Fresh believes this definition would and should include fresh fruit, fresh vegetables and fresh-cut fruits and vegetables. Fresh-cut products, similar to wholly harvested fruits and vegetables, are equally as perishable as their non-cut counterparts and likewise must be delivered in a timely manner to ensure food quality and food safety. These products need constant monitoring for temperature fluctuations during transport and need to be delivered within their post-cut storage life parameters, including both transport time and time spent on the retail shelf. Short transportation and handling times are important for both product quality (look, taste, etc.), but also to ensure that potential contamination from human, animal or environmental sources do not occur during this crucial supply chain step.  The fresh produce marketplace has also evolved significantly over time. This is particularly true for products that include highly perishable ingredients such as prepared salads. 

The nature of these products is something that the current regulations never anticipated when they were originally written and approved. For example, one of the fastest growing segments of the produce industry are packaged salads.  These meals include highly perishable products such as leafy greens, but also include products such as salad dressing, croutons or tortilla chips in a single package. While these additional items may not be considered highly perishable, the overall product is. United Fresh believes strongly that such products should also be covered as an agriculture commodity in the revised definition.

More of the same from the Produce Marketing Association:

Securing the safety of perishable foods during transport and protecting perishable foods from loss of quality is extremely important. Fresh market fruits and vegetables are highly perishable, mostly consumed raw and can rapidly decompose if mishandled. Delays in shipping and/or delivery can affect the safety of the food and destroy product quality demanded by USDA regulations and consumers, resulting in potential public health implications.

PMA recognizes the importance of FMCSA’s work to create more flexible regulations to accommodate the unique needs of perishable foods in the transportation process. However, it is equally important that FMCSA includes the various market forms of fresh agricultural products.

Unlike some commodities, where further processing can extend the safety and stability of a product, this is generally not the case for fresh produce. In the fresh produce industry even minimal processing, such as slicing or dicing can increase the perishability of some fresh produce items. For this reason, when defining the term “agricultural commodity” for the HOS exemption, PMA strongly encourages FMCSA to ensure that value-added products remain included under the definition.

Value-added fresh produce products, such as bagged salads, pre-chopped or prediced packaged fresh fruits and vegetables are highly perishable and important food safety considerations are required when transporting, just as they are for whole products immediately after harvest.

When the principal ingredient is a highly perishable product such as lettuce, the inclusion of products such as salad dressing, croutons, seeds, or tortilla chips should not disqualify a product as being considered an agricultural commodity. Excluding these and similar products from any exemption could deny regulatory relief to a significant portion of the market. For example, 2019 market data indicates that these products can be found in over 75% of U.S. households, representing over $4.5 billion in value.

More specifically, the term “non-processed” within the meaning of 49 CFR §395.1(k)(1) should apply to items such as bagged salads which are not significantly changed from their original form by any processing or packaging and remain highly perishable.

TK: Let’s hope the FMSCA  get’s the message; it is loud and clear. Widen the definition of agricultural commodity to include all fresh cut and value added, and give the maximum flexibility to transport of fresh produce.