Commentary: Ag And Livestock Haulers Seek Regulatory Concessions

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It turns out that the fight over hours of service (HOS) regulations and electronic logging device (ELD) use is not over yet; at least for agricultural product and livestock haulers. 

The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) announced that it is asking for public comment for revisions to a special rule governing agricultural commodity and livestock hauling relating to the HOS and ELD mandates.

Since the inception of the ELD mandate and revised HOS regulations that went into effect at the end of 2017, agricultural commodity and livestock haulers have been some of the loudest voices fighting against what they see as an incredibly burdensome and inflexible mandate from the FMCSA. The main reason they cite is the fact that hauling agricultural produce is very different from hauling non-perishable goods in that there is a limited window before the products spoil. 

Not only are agricultural carriers continuing their fight – claiming that rules are incompatible with their industry, but after a year in practice the carriers and those who keep them in line are thoroughly confused about how and when the regulations are to be applied.

"The agriculture industry is vital to our nation and we look forward to receiving input that will help clarify these definitions, improve safety and offer additional flexibility to farmers and commercial drivers," said U.S. Transportation Secretary Elaine L. Chao in a press release.

"The current regulations impose restrictions upon the agriculture industry that lack flexibility necessary for the unique realities of hauling agriculture commodities," U.S. Agriculture Secretary Sonny Perdue added. "We look forward to continuing to work with Secretary Chao on revising these regulations."

As the rules currently stand, agricultural carriers are exempt from HOS regulations from the source of the agricultural commodity (where it is grown or raised) up to a 150 air-mile radius during planting and harvesting seasons. Though on its face the regulation sounds straight-forward, confusion is currently rampant under the new system. The distance limitations are difficult for drivers to gauge and the regulations' enforcers are finding it difficult to apply the rules consistently and reliably.

To make matters worse, planting and harvesting seasons are determined by each state for the purposes of the law, which is leading to even more misunderstandings, given that most agricultural commodities end up being consumed in a different state than the one in which they were grown.

Adding an extra day or two to the trip from California, which produces the lion's share of the nation's fruits, vegetables and nuts, to eastern markets can be detrimental to those products.

The new regulations also are particularly onerous to livestock haulers. These carriers must load and unload in order to feed during the lane haul. And since loading time counts against hours of service, the United States Cattlemen's Association (USCA) argues that they should be given more leniency in regard to the HOS regulations. "Under the current Hours-of-Service rules, livestock haulers are allocated 11 hours of drive time and 14 hours of on-duty time. Once they've hit their hours, the ELD will force drivers off the road to take their mandatory 10-hour break. This leaves cattle potentially stranded roadside on the truck," wrote Steve Hilker, chairman of the USCA Transportation Committee.

With arguments like this, agriculture carriers did gain a special exemption from the new regulations until June 2018 (the regulations went into effect for everyone else in December 2017) to give the federal government time to work out how exactly agricultural transportation HOS regulations would work. And for livestock carriers a further extension was granted until September 2018 and renewed for a year. At the present time, the extension runs out on September 30, 2019.

The main question is, could agricultural carriers use the opportunity of the newly opened comment period to press for regulation that truly works for their industries and not against them as they perceive it. In May 2018, a USCA-backed bill was introduced in Congress that asked for an overhaul of ELD and HOS mandates including a 300 air-mile exemption for ELD mandates, the exclusion of loading times from HOS regulations, 18 hours of on-duty time for HOS, and permission for drivers to complete their trip regardless of HOS requirements if they are within 150 miles of their delivery point, among other requests.

These requests could prove to be big asks from a government agency that is under pressure to enforce stricter ELD and HOS mandates. But for now, the FMCSA says it is working closely with the USDA to ensure that there is clarity about HOS regulations for those impacted.

"FMCSA has worked closely with the agriculture industry and USDA in crafting this advanced notice. We have heard concerns from the industry, and we are acting," said FMCSA Administrator Raymond P. Martinez. "We encourage all … stakeholders, especially those involved in transporting agricultural commodities and livestock, to provide valuable feedback on how the current definitions impact safety, compliance and enforcement."

Stay tuned for updates…

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