Northeast Agribusiness and Feed Alliance Surface Transportation Issues February 7, 2017 Good Afternoon. I’d like to talk to you a little bit about regulations and some of the exemptions that you may be able to utilize as well as touch on some legislative issues that we are working on at TANY.

Are you a Covered Farm Vehicle? §390.5 Definition of Covered Farm Vehicle (1) Means a straight truck or articulated vehicle— How many of you think that you operate a covered farm vehicle? Of those that raised your hands, do any of you do backhauls for compensation? Okay, well let’s see how many of you are classifying yourselves correctly…

(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 a 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 Agricultural commodity means any agricultural commodity, non-processed food, feed, fiber, or livestock Livestock means cattle, elk, reindeer, bison, horses, deer, sheep, goats, swine, poultry (including egg-producing poultry), fish used for food, and other animals designated by the Secretary of Agriculture that are part of a foundation herd (including dairy producing cattle) or offspring; or are purchased as part of a normal operation and not to obtain additional benefits under the Emergency Livestock Feed Assistance Act of 1988, as amended. Farm supplies for agricultural purposes means products directly related to the growing or harvesting of agricultural commodities during the planting and harvesting seasons within each State, as determined by the State, and livestock feed at any time of the year. – New York does not have a designated planting and harvesting season and is considered year-round.

(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. Remember when I asked you about backhauls? This is why it’s important. If you are being compensated for hauling someone else’s product, then you are a for-hire carrier and cannot use the covered farm vehicle exemptions.

(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 Registered in a state with a license plate or other designation identifying it as a farm vehicle 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 Used to transport agricultural commodities, livestock, machinery or supplies to or from a farm or ranch Not used in for-hire motor carrier operations

(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. If operating interstate (crossing state lines) you must have apportioned plates.

So if you do in fact meet the definition of a covered farm vehicle then you are required to fill out the CFV-1 form at the NYSDMV and carry it with you. It must be available for law enforcement to examine if requested. This is the designation referred to in Part (1)(i) of the definition.

What are the exemptions for covered farm vehicles in §390.39? (a) Federal requirements. 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. (1) In New York State, if you are operating a covered farm vehicle that is 26,001 lbs. or more then you must have either the F or G farm endorsement on your license. The F endorsement is for Class A vehicles (articulated) and the G endorsement is for the Class B vehicles (single unit straight trucks). In order to obtain the endorsement you have to take a written and road test.

(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. (4) 396 Inspection, Repair and Maintenance – This refers to the record keeping, DVIRs and annual inspection requirements. This does not exempt you from 393 – Parts and Accessories Necessary for Safe Operation.

(b) State requirements— (1) In general. Federal transportation funding to a State may not be terminated, limited, or otherwise interfered with as a result of the State exempting a covered farm vehicle, including the individual operating that vehicle, from—

(i) A requirement described in paragraph (a) of this section; or (ii) Any other minimum standard provided by a State relating to the operation of that vehicle. (i) Paragraph (a) which exempts you from CDL requirements, controlled substances and alcohol use testing, HOS, and inspection, repair and maintenance

(2) Exception.—Paragraph (b)(1) of this section does not apply with respect to a covered farm vehicle transporting hazardous materials that require a placard. In other words, if your are hauling a placardable amount of hazmat, you have to operate like any other CMV with hazmat on board. You are not exempt from CDL license requirements, Drug & Alcohol testing, HOS, Med Cert, and Inspection, Repair & Maintenance record keeping.

(c) Other exemptions and exceptions (c) Other exemptions and exceptions.—The exemptions in paragraphs (a) and (b) of this section are in addition to, not in place of, the agricultural exemptions and exceptions in

§§383.3(d)(1), 391.2(a), 391.2(b), 391.2(c), 391.67, 395.1(e)(1), 395.1(e)(2), and 395.1(k) of this chapter. Motor carriers and drivers may utilize any combination of these exemptions and exceptions, providing they comply fully with each separate exemption and exception. CDL Applicability exceptions: 383.3(d)(1) – operators of a covered farm vehicle Qualifications of Drivers (21+, read & speak English, meet physical requirements, hold only one CDL, furnish list of violations to MC, road test, etc.) exceptions: 391.2(a) – custom harvesting 391.2(b) - Beekeepers 391.2(c) – Certain farm vehicles 391.67 – Farm vehicle drivers of articulated CMVs – 18+ HOS 395.1(e)(1) – Short haul 100 air-mile radius (CDL) 395.1(e)(2) – Short haul 150 air-mile radius (non-CDL) 395.1(k) – Agricultural operations

Not a Covered Farm Vehicle? Don’t worry. There still may be some Hours of Service exemptions that apply to you! If you are not a covered farm vehicle, you will need to comply with all of the federal motor carrier safety regulations, however you may be exempt from HOS.

Hours of Service Exemptions §395.1(e) Short-haul operations (1) 100 air-mile radius driver A driver is exempt from the requirements of §§395.8 (RODS) and 395.11 (Supporting Documents) if:

(i) The driver operates within a 100 air-mile radius of the normal work reporting location; (ii)(A) The driver returns to the work reporting location and is released from work within 12 consecutive hours; The term “air mile” is internationally defined as a “nautical mile” which is equivalent to 6,076 feet. Therefore, 100 air miles are equivalent to 115.08 statute miles

(iii)(A) A property-carrying commercial motor vehicle driver, has at least 10 consecutive hours off duty separating each 12 hours on duty;

(iv)(A) A property-carrying commercial motor vehicle driver does not exceed the maximum driving time specified in §395.3(a)(3) (11 hours) following 10 consecutive hours off duty; and

(v) The motor carrier that employs the driver maintains and retains for a period of 6 months accurate and true time records showing: (A) The time the driver reports for duty each day;

(B) The total number of hours the driver is on duty each day; (C) The time the driver is released from duty each day; and (D) The total time for the preceding 7 days in accordance with §395.8(j)(2) for drivers used for the first time or intermittently.

(2) Operators of property-carrying commercial motor vehicles not requiring a CDL. Except as provided in this paragraph, a driver is exempt from the requirements of §§395.3(a)(2), 395.8, and 395.11 and ineligible to use the provisions of §395.1(e)(1), (g), and (o) if: 395.3(a)(2) – 14-Hour Period 395.8 – RODS 395.11 – Supporting Documents 395.1 (e)(1) – Short haul 100 air-mile radius 395.1 (g) – Sleeper Berth 395.1 (o) – 16-Hour Rule

(i) The driver operates a property- carrying commercial motor vehicle for which a commercial driver's license is not required under part 383 of this subchapter;

(ii) The driver operates within a 150 air-mile radius of the location where the driver reports to and is released from work, i.e., the normal work reporting location; (iii) The driver returns to the normal work reporting location at the end of each duty tour; 150 air-miles = 172.6 statute miles

(iv) The driver does not drive: (A) After the 14th hour after coming on duty on 5 days of any period of 7 consecutive days; and (B) After the 16th hour after coming on duty on 2 days of any period of 7 consecutive days;

(v) The motor carrier that employs the driver maintains and retains for a period of 6 months accurate and true time records showing: (A) The time the driver reports for duty each day;

(B) The total number of hours the driver is on duty each day; (C) The time the driver is released from duty each day; and (D) The total time for the preceding 7 days in accordance with §395.8(j)(2) for drivers used for the first time or intermittently.

§395. 1(k) Agricultural operations §395.1(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.

§395. 1(v) Transport of livestock. The provisions of §395 §395.1(v) Transport of livestock. The provisions of §395.3(a)(3)(ii), requiring a 30-minute rest break, do not apply to a driver engaged in the interstate transportation of livestock by commercial motor vehicle while the livestock are on the vehicle. If you are not otherwise exempt from the HOS regulations and are transporting livestock, then you are exempt from the 30 minute rest break.

ELD Mandate If you do not meet any of the HOS exemptions and you are required to keep a Record of Duty Status (RODS or log book), then you will need to comply with the ELD mandate.

Compliance date for those not currently using an Automatic On- Board Recording Device (AOBRD) is December 18, 2017 Carriers currently using an AOBRD are grandfathered in and have until December 16, 2019 to comply

Exceptions: Drivers who use paper logs for not more than 8 days during any 30 day period; Drivers who conduct driveaway- towaway operations, where the vehicle is the product being delivered;

Drivers of vehicles manufactured before model year 2000 Drivers who operate using the logbook timecard exception (i.e. short-haul 100-air mile drivers)

Do you know your weight limit? Federal weight restrictions – apply only to the Interstate Highway System: 20,000 lbs. GVW on a single axle 34,000 lbs. GVW on a tandem axle 80,000 lbs. GVW

The Federal Bridge Formula, which was introduced in 1975 to reduce the risk of damage to highway bridges by requiring more axles, or a longer wheelbase to compensate for increased vehicle weight, may require a lower GVW; depending on the number and spacing of the axles in the combination vehicle. The following are examples from a few states that allow greater weights with a permit.

Connecticut 22,400 lbs. GVW on a single axle 42,500 lbs. GVW on a tandem axle Commodity exemptions

Maine 22,400 lbs. for a single axle 41,000 lbs. for a tandem axle 50,000 lbs. for a tridem axle 100,000 lbs. GVW on all Interstate and non-Interstate highways on the Maine Turnpike Commodity exemption

New Hampshire 22,400 lbs. on a single axle 36,000 lbs. on a tandem axle 99,000 lbs. GVW on parts of the Interstate system No commodity exemptions

Vermont 22,400 lbs. on a single axle in regular operation on non-Interstate highways 36,000 lbs. on a tandem axle in regular operation on non-Interstate highways

Vermont allows an additional 10 percent weight tolerance above these weights Various types of vehicles are exempt from State weight limits in Vermont

New York 22,400 lbs. on a single axle 36,000 lbs. on a tandem axle New York has a grandfather provision under Federal law (23 CFR Part 658, Appendix C) to allow vehicles to operate up to 143,000 lbs. GVW on parts of the Interstate System

New York State statute allows for several axle and GVW exemptions for various types of vehicles and commodities

Seasonal Agriculture Permits The Department of Transportation is authorized to issue seasonal agriculture permits valid for consecutive months to vehicles registered in New York prior to January 1, 1968, or a vehicle replacing such a vehicle. Vehicles operating under the International Registration Plan must designate New York or another valid jurisdiction as their base State to obtain such a permit. Such permits may be issued to vehicles with up to seven or more axles and allow a GVW up to 117,000 lbs. In addition, a two-axle vehicle with at least 10 feet of spacing may exceed the State GVW limit by 25 percent (N.Y. Vehicle and Traffic Law §385[15][f][i] through [iii]).

Permits issued by NYSDOT are not valid in NYC If operating in NYC, you must obtain an overweight permit from NYCDOT

The Federal Highway Administration website lists size and weight limit laws for every state at: http://tinyurl.com/jlb5jft This website also has links to each state’s section of law that relates to size and weight.

Emissions NYS Diesel Emission Reduction Act (DERA) requires the use of ultra-low sulfur diesel and best available retrofit technology (BART) Applies to all state vehicles and privately owned vehicles used on contracts with state entities (agencies, authorities, state colleges, etc.) Currently compliance with DERA has been delayed to December 31, 2017 and any vehicles operating under a waiver of the DERA requirements can continue to do so until December 31, 2018. TANY has been part of a broad coalition attempting to remove the requirement for privately owned vehicles to comply with DERA. So far, the coalition has been successful in delaying implementation of the rule and it is anticipated that another delay will be included in the FY 2017 State budget.

Green House Gas Emissions Phase I: Model year vehicles 2014- 2018 Phase II: Model year vehicles through 2027 (includes requirements for trailers)

Compliance is largely at the manufacturer stage Phase II intends to eliminate the use of glider kits as a way to continue to use older engines http://tinyurl.com/jbdfnjj This rule is currently delayed under President Trump’s executive order. Detailed information about emission regulations can be found on the EPA’s website.

Trucking Association of New York Legislative Initiatives Increase number of overweight divisible load permits Highway Use Tax Exempt vehicles Workers’ Compensation Reform Div. Load - State statute currently limits the number of overweight divisible load permits at 25,000. NYSDOT is extremely close to reaching the cap. If the cap is reached it forces the program to utilize a lottery system to issue permits (simply explained: one has to be turned in, before one can be issued) Legislation included in the executive’s budget proposal would increase the permit cap to 35,000 through 2025. It also would provide authority to the NYSDOT commissioner to increase the cap without legislative approval in the future. We are cautiously optimistic that the increase will be included in the final budget agreement. HUT - We continue to work toward full repeal of the tax. Last year’s budget reduced the fee for the certificate of registration ($15) and the decal ($4) to $1.50/truck as a result of the Owner Operator Independent Driver Association lawsuit. All other requirements of the tax remain the same. Exempt vehicles - Vehicles operated by a farmer or a related person or entity and used exclusively by the farmer or by the related person or entity to transport: • the farmer’s own agricultural commodities, products, pulpwood, or livestock (including packaged, processed, or manufactured products) that were originally grown or raised on the farmer’s own farm(s) or orchard(s); • farm products from farms contiguous to the farmer’s own farm(s); or • supplies and equipment for use or consumption on the farmer’s own farm(s). See TSB-M-13(5)M, Tax Law Amended to Expand the Highway Use Tax Exemption for Farm Vehicles, for definition of a related person (https://www.tax.ny.gov/pdf/memos/highway/m13_5m.pdf). If you use the vehicle for a nonexempt activity, you must file a tax return to report and pay tax on both the exempt and nonexempt miles for the entire calendar month when the nonexempt use occurs. Worker’s Comp. - TANY is working with a broad coalition of business groups to achieve reform of New York’s workers’ compensation program. Currently there are not any reform proposals included in the executive’s budget proposal.

Kate Kennett Director of Safety & Maintenance Programs, Trucking Association of New York Phone: 518-458-9696 Email: kate@nytrucks.org