Livestock Haulers, Organizations Seek ELD Clarity

The Proposed Regulatory Guidance Concerning the Transportation of Agricultural Commodities (Docket No. FMCSA-2017-0360) continues to be a concern for livestock haulers, including those within the American sheep industry. For that reason, the American Sheep Industry Association joined three dozen other livestock organizations this week in filing comments on the issue with the U.S. Department of Transportation and the Federal Motor Carrier Safety Administration.

While the industry continues to believe a delay of enforcement with respect to the electronic logging device mandate is essential to prevent catastrophic outcomes for stakeholders, the live animals hauled and American consumers, the industry is thankful to the agency for continued focus on addressing underlying hours of service concerns.

The 150-air mile agricultural commodity exemption described in 49 CFR 395.1(k)(1) can be a useful tool for haulers. Unfortunately, the exemption can only be used in many states during certain times of year. These times of year vary from state-to-state, making uniform application and use of the exemption impossible. Until recently, many livestock haulers and state law enforcement agencies were unaware of the application of the 150-air mile agricultural commodity exemption to livestock. With this new awareness comes additional need for clarity with respect to application in practice. This need for clarity is particularly more pressing when coupled with the unforgiving realities of using ELD technology.

The Moving Ahead for Progress in the 21st Century Act or "MAP-21" amended the Motor Carrier Safety Improvement Act of 1999 (49 U.S.C. § 31136 note) to state that regulations regarding maximum driving and on-duty time for drivers do not apply to "[d]rivers transporting agricultural commodities from the source of the agricultural commodities to a location within a 150-air-mile radius from the source." As a result, 49 CFR 395.1(k)(1) was promulgated. Live animal haulers can utilize the flexibility contemplated by the regulation as their cargo is defined as an "agricultural commodity" under 49 CFR 395.2. An agricultural commodity is "any agricultural commodity, non-processed food, feed, fiber or livestock (including livestock as defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 1988 [7 U.S. C. 1471] and insects)."

"We again urge the agency to grant a waiver and limited exemption from the Electronic Logging Device mandate while definitions such as the "source" of agricultural commodities are solidified," the letter said in conclusion. "This delay will enable FMCSA and the live animal hauling industry to undertake necessary training and outreach to fully understand and apply existing flexibilities and how they function with the new ELD devices."