Hours of service with ELD mandate challenging for livestock haulers
January 18, 2018
The electronic logging device (ELD) mandate, implemented Dec. 18, 2017, has equine enthusiasts, along with other ag show competitors, wondering if they fall under the stringent rules the Federal Motor Carrier Safety Administration has created.
The American Quarter Horse Association, along with several other groups, has asked for an enforcement delay from the rule for all livestock haulers. With too many unanswered questions, the mandate is nothing short of confusing. Designed for commercial motor vehicle operators, it requires drivers to use ELDs to track the number of hours spent driving and also monitor a required amount of time spent off-duty between driving shifts.
Livestock haulers were granted an additional 90 days to comply with the mandate, but that will expire in March. The primary reasons for the FMCSA to pursue the ELD mandate is to reduce the likelihood of drivers being able to alter or falsify their logs and to prevent motor carriers from requiring drivers to operate beyond their hours-of-service (HOS) limits, the catch-all mandate has not just cattle haulers, but also recreational livestock and horse haulers, scratching their heads.
"There was no thought given to the living, breathing commodities," said Steve Hilker, with Hilker Trucking, Inc, in Cimarron, Kan. "There is no advantage (of the mandate) to livestock haulers."
In a letter to the Federal Motor Carrier Safety Administration, AQHA is requesting a one-year enforcement delay to the ELD mandate for the horse industry. While some exemptions already exist, some of the trucks and trailers used for equine and show events may not fall under the exemptions.
AQHA states in the letter that its top priority is with the welfare of the horses. The HOS rules and ELD mandate require haulers to take mandated off-duty breaks. (due to changes to 49 CFR Part 395, which states the number of hours haulers can spend on- and off-duty).
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"HOS rules mandating a hauler stop for 10 hours would require the hauler to find a safe and compatible place to offload the horses. Such places are not as ubiquitous as truck stops," said Craig Huffhines, AQHA executive vice president. "The constant offloading/reloading and co-mingling of horses by haulers for periods of time at indiscriminate locations presents a significant safety and biosecurity risk for the industry and, among other things, fosters conditions conducive to the development of contagious disease and spread thereof."
While the mandate was designed with safety in mind, the flaws in the one-size-fits-all rule is not going to work in some situations. AQHA and other livestock organizations are concerned about the regulation requiring 10 consecutive hours off duty and how that will affect the welfare of animals being transported. Livestock industry guidelines recommend that drivers avoid stops when hauling livestock, as stopping for long periods of time would have a detrimental effect on the animals being hauled.
ELD devices sync with a vehicles engine to track the amount of time spent driving. Federal regulations only allow drivers to drive 11 hours a day, and over an eight-day period, those that fall under the mandate are only allowed to drive 70 hours. After 11 hours, a 30-minute break is required. And after 14 hours of drive time, an ELD device alerts the driver of the 10-hour mandatory off-duty break. Violations are automatically recorded.
"AQHA members are involved in showing, racing, ranching, rodeos and recreation, and it is common for AQHA members to haul their horses interstate over long distances (much like other livestock haulers)," Huffhines said in his letter to the DOT. "We encourage the Department of Transportation to grant a one-year enforcement delay followed by a waiver and limited exemptions from compliance with the December 18, 2017, implementation date for the final rule on ELDs and hours of service. This will allow the department the opportunity to take appropriate steps to alleviate any unintended consequences that this mandate may have on the hauling of horses or other livestock."
According to the FMCSA's question and answer explanation for 49 CFR Part 390 – Federal Motor Carrier Safety Regulations; General, the rule would not apply to persons who occasionally use commercial motor vehicles to transport horses to events with prize money offered if:
(1) The underlying activities are not undertaken for profit, i.e., (a) prize money is declared as ordinary income for tax purposes, and (b) the cost of the underlying activities is not deducted as a business expense for tax purposes; and, where relevant; (2) corporate sponsorship is not involved.
FMCSA also points out that all drivers are subject to state licensing regulations, and may fall under a commercial motor vehicle rule, requiring drivers to have a commercial driver's license. Professional rodeo athletes, filing tax income and expenses, fall under commercial motor vehicle rules, and are likely not exempt, according to AQHA. These rules are not actually new with the recent mandate, but awareness for this rule is low among the equine industry due to lack of outreach by the FMCSA to livestock industry stakeholders.
AQHA hopes to receive a one-year exemption to allow both members of the horse industry to educate themselves on the ELD mandate, and the FMCSA to develop livestock specific solutions to the HOS rules.
Owner-Operator Independent Drivers Association also is requesting an exemption for certain small carriers from the ELD mandate for at least five years. As defined by the Small Business Administration, small trucking companies are those that earn up to $27.5 million in revenue on an annual basis.
OOIDA asked the FMCSA in November to extend the ELD deadline for small carriers that "do not have a Carrier Safety Rating of 'Unsatisfactory,' and can document a proven history of safety performance with 'no attributable at-fault crashes.'"
"The exemption would not have any adverse impacts on operational safety, as motor carriers and drivers would remain subject to the (hours of service) regulations," the group said in its request.
The owner-operator association cited the following concerns regarding the ELD mandate:
■ A lack of a full government or independent third-party vetting process on many of the 150-plus self-certified ELDs that are in the FMCSA's registry.
■ Cost of compliance.
■ Broad concerns about cybersecurity.
Comments from OOIDA's petition have flooded in, with mixed reviews. A few comments are from truckers and owner-operators who are against installing an ELD due to its cost. But supporters argue that the ELDs are not expensive and have numerous benefits that minimize operational costs and maximize profits. The FMCSA estimates that the ELD mandate would save the trucking industry over $1 billion.
A hearing, held on Nov. 29, with the House Small Business Committee, looked at the issues with the mandate, and representatives asked for the original 90-day stay to include all commodities.
"Chairman Rep. Steve Chabot (R-Ohio) couldn't have picked a better title for this important hearing today in the House Small Business Committee: 'Highway to Headache: Federal Regulations on the Small Trucking Industry.' No one will bear the brunt more from regulations like the Electronic Logging Device mandate than small businesses in my district and across the country," Rep. Brian Babin, R-Texas, tweeted, following the meeting.
The Agricultural Retailers Association's also filed an exemption request in late December, with several key points:
■ ELD requirement imposes undue economic cost with minimal to no safety benefits
■ FMCSA ELD self-certification process is flawed
■ Concerns with poor internet and cellular connectivity in rural areas
■ Concerns with cyber-security of ELD devices and systems and do not provide proper safeguards
■ Agricultural retailers and distributors would continue to operate at a level of safety equivalent to, or greater than, the level that would be achieved if FMCSA grants ARA's requested ELD exemption
Many agricultural retailers and distributors operate year-round under the HOS agricultural exemption, and within 150-air-mile radius of their facility, so are exempt from the ELD mandate. However, many states do not designate year-round "planting and harvesting" periods, so agricultural retailers in those states would still be required to have an ELD system part of the year.
ARA believes FMCSA should exempt agricultural retailers and distributors transporting farm supplies to their customers.
Currently there is language in the House appropriations bill that would give livestock haulers a one-year exemption to the mandate.
AQHA and other organizations are asking members to contact federal lawmakers, and encourage senators and representatives to support the appropriations bill with the ELD exemption. FMCSA is accepting comments on these requests until Jan. 29.
To read more about the implementation of Electronic Logging Devices, visit http://www.fmcsa.dot.gov and search "ELD Rule." ❖