Q: With regard to motor carrier transportation of exempt commodities and regulated freight, I’ve always been told that if the product was “processed” in any way, then it was not exempt and, thus, was regulated. For example, potatoes are exempt, but French fries aren’t. Cattle are exempt, but the processed parts such as boxed steaks, roasts, etc., aren’t. And a trucking company must have the proper motor carrier authority to transport anything that’s not exempt.
Yesterday, my company had a load of frozen chicken breasts, chicken tenders, etc., that needed to be transported. A carrier authorized for exempt commodities only (he had a proper Transportation Department safety number but no motor carrier registration) wanted to haul the load. We told the carrier we couldn’t use it because it had no authority to transport what we considered to be regulated product (processed poultry).
However, he told us the Federal Motor Carrier Safety Administration recently came out with a publication stating that anything related to poultry is now considered exempt. When researching, I could find nothing of the sort. Reaching out to the FMCSA was no help. You know how difficult it is to reach them.
Do you know of any recent rulings I may have missed?
A: I’ll start by telling you that your carrier is pretty much correct; poultry requires a real boatload of “processing” before it’s not regulation-exempt. Your load was indeed exempt.
As you seem to recognize, “exempt” — which used to mean a lot back in the old days of fairly strict economic regulation — now has little importance, save that a trucker hauling exempt commodities need not be registered with the FMCSA as a for-hire motor carrier. So your unregistered carrier could have moved this load legally.
But it was no recent ruling that brought this about. You have to go way, way, way (add as many “ways” as suits your fancy) back to get to the root of this one. And the ruling you’ll find if you dig back more than half a century is pretty obscure.
It’s referenced briefly, though, in the current law, 49 U.S.C. Section 13506(a)(6)(C), which specifies an exemption for “commodities listed as exempt in the Commodity List incorporated in Ruling No. 107, March 19, 1958, Bureau of Motor Carriers, Interstate Commerce Commission,” with a few exceptions that aren’t relevant to this discussion.
And if you Google that commodity list, you’ll find several versions. The list runs to a stack of pages, and you have to scan through them to reach it, but when (if) you finally get there, you’ll discover that cut-up poultry is exempt pretty much no matter what’s been done to it.
Is it raw? Exempt. Pre-cooked or cooked? Exempt. Breaded or dressed? Exempt. Stuffed and frozen? Exempt. Rolled in butter but uncooked? Exempt. Chunked or shredded or pressed into cooked sticks or rolls? Exempt. Made into a TV dinner? Exempt (beef ones aren’t; go figure).
Basically, you have to process the bird (or bits of it) so thoroughly that you turn it into a powder for it to be non-exempt — or make it into a pot pie, which also isn’t exempt. Do just about anything else to it, and it remains exempt as to motor carrier transportation.
The list is even obliging enough to provide the source for the old Interstate Commerce Commission’s decision to exempt the various commodities, which isn’t, however, as helpful as it sounds. Mostly the source is simply listed as “Office,” which isn’t further explained anywhere in the publication. I take this to mean it was a bureaucratic decision made by one office or another of the former ICC and ratified by the agency.
There are, however, a few case citations offered by the Bureau of Motor Carriers as to certain exemptions, one of which seems fairly important to poultry. It’s a supposed Supreme Court case identified as Pillsbury v. U.S., 409 U.S. 808. Don’t try to look it up, though, because you won’t find it by citation or title; I’ve searched diligently and come up empty. Maybe some reader out there can clarify.
As for the FMCSA, I, like you, can find nothing from it on this subject. It hasn’t even reissued this ancient list. As I keep saying, the FMCSA is organizationally disinterested in the whole question of motor carrier regulation.
For you citation sticklers, actually the ICC Administrative Ruling that published this list was No. 119. But it’s commonly associated with the earlier Ruling No. 107, and easiest to find that way.
Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, S.C. 29455; phone, 843-559-1277; e-mail, BarrettTrn@aol.com. Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010.