Tuesday, December 12, 2017
There are several provisions in federal law that regulate the transport of livestock, other animals, poultry, fish, and insects. Those rules generally concern animal health and safety, and driver safety. The rules also apply to the transport of agricultural livestock. However, in some instances, exceptions exist that apply to agriculture.
On December 18, 2017, the U.S. Department of Transportation (USDOT) Final Rule on Electronic Logging Devices (ELD) and Hours of Service (HOS) is set to go into effect. 80 Fed. Reg. 78292 (Dec.16, 2015). The final rule, which was issued in late 2015, could have a significant impact on the livestock industry and livestock haulers. The new rule will require truck drivers to use electronic logging devices instead of paper logs to track their driving hours starting December 18. The devices connect to the vehicle's engine and automatically record driving hours.
The Obama Administration pushed for the change to electronic logs purportedly out of safety concerns. But, what will be the impact of the new final rule on the livestock industry? The federal government has a long history of regulating the transport of livestock in interstate commerce. Today’s post examines provides a brief history of the federal regulation of transporting animals in interstate commerce and the implications for agriculture of finalizing the USDOT ELD and HOS rule.
Animal Welfare Act
As originally enacted in 1966, the Animal Welfare Act (7 U.S.C. §§ 2131 et seq.) addressed the problem of an increase in the theft of pets and their sale for research. The legislation was subsequently expanded to cover the mistreatment of animals in transportation and animal fighting ventures by any live bird, dog or other mammal except man. The rules do not bar hunting with animals.
The major provisions of the legislation include licensing of those who handle pets, those who handle animals who might be used for research and ultimate dealers, exhibitors and auction operators. The purchase of dogs and cats for research purposes is prohibited except from authorized operators. The Act covers warm blooded animals used for research and experimentation. Humane standards are imposed for the handling, care and transportation of animals covered by the Act. Health certificates are required. A five-day waiting period applies before dogs and cats can be sold by dealers and exhibitors. Animals must be marked or otherwise identified.
”28 Hour Law”
The precursor to the present “28 Hour Law” was passed in 1873 to prevent cruelty to animals in interstate commerce by common carrier. The Act was repealed in 1906 and replaced with the “28 Hour Law.” 15 U.S.C. § 1825(a).
The Act, sometimes referred to as the “Food and Rest Law,” prohibits some carriers from transporting animals beyond certain time limits. For example, common carriers engaged in interstate commerce must unload animals for rest, water and feeding into properly equipped pens every 28 hours for at least five consecutive hours. The Act applies to cattle, sheep, swine and other animals. The original application of the law was with respect to trains, but the USDA revised existing regulations in 2006 to also apply to trucks. However, the Act does not apply to the transport of animals by airplane. Thus, the Act applies to transport by rail, boat or truck.
Upon request, the 28-hour time limit may be extended to 36 hours. Similarly, if the time period was exceeded because the unloading of animals was prevented “by storm or other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight,” the 28-hour time limit does not apply.
A special rule exists for sheep. Sheep do not have to be unloaded when the 28-hour time period expires at night. In that event, the sheep can be continued for 36 hours without written consent. A similar exception applicable to all animals is that no unloading is required if the animals have proper food, water, space and an opportunity to rest. However, that is not usually the case with railroads and with other kinds of carriers.
Monitoring Driver Hours – The FMCSA Final Rule
In the 1930s, the federal government established hours of service (HOS) rules for truck drivers. Under the rules, truckers are required to maintain logbooks to record on-duty as well as off-duty hours. It’s those rules that are set to change. As noted above, the Federal Motor Carrier Safety Administration (FMCSA) issued a final rule in 2015 requiring most motor carriers and interstate truck drivers to start using electronic logs to ensure drivers are complying with hours-of-service rules. 80 Fed. Reg. 78292 (Dec.16, 2015). The final rule is set to go into effect on December 18, 2017. It is estimated that the new rule will apply to more than three million truckers. Presently, there are more than 200 ELDs that are self-certified and have been registered with the USDOT.
The FMCSA claims that the goal of the ELD mandate is to make roadways safer by providing the government with a greater ability to more closely track driver hours. For fiscal year 2017, the FMCSA notes an increase of over 11 percent in citations for falsifying driver logs and a 14.8 percent increase in the number of truck drivers put out of service for falsifying logs. During that same timeframe, false log violations accounted for 16.2 percent of the 186,596 out-of-service orders issued to truck drivers. The FMCSA asserts that these statistics are justification for the ELD and HOS final rule.
The Owner-Operator Independent Drivers Association (OOIDA) challenged the final rule based on a violation of privacy rights (Fourth Amendment), but the U.S. Court of Appeals for the Seventh Circuit rejected the argument. Owner-Operator Independent Drivers Association, Inc., et al. v. United States Department of Transportation, et al., 840 F.3d 879 (7th Cir. 2016), cert. den., 137 S. Ct. 2246 (2017). The court determined that the ELD mandate constituted a reasonable administrative inspection under the Fourth Amendment involving a pervasively regulated industry, and was not arbitrary or capricious. The U.S. Supreme Court declined to hear the case, and a subsequent effort to override or delay the ELD rule legislatively failed.
The Trump Administration has instructed the FMCSA (and state law enforcement officials) to delay the December 18 enforcement of the final rule by delaying out-of-service orders for ELD violations until April 1, 2018, and not count ELD violations against a carrier’s Compliance, Accountability, Safety Score. Thus, from December 18, 2017 to April 1, 2018, any truck drivers who are caught without an electronic logging device will be cited and allowed to continue driving, as long as they are in compliance with hours-of-service rules.
Impact on agriculture. The agricultural industry has raised concern over how the ELD rule will impact its stakeholders. Data indicate that the livestock sector has consistently been one of the safest of the commercial hauling sectors. The Large Truck Crash Causation Study, conducted by the Federal Motor Carrier Safety Administration (FMCSA) and the National Highway Traffic Safety Institute, showed that of 1,123 accidents involving trucks hauling cargo, only five involved the transportation of livestock. Another report, the Transportation Institute’s Trucks Involved in Fatal Accidents Fact-book 2005, shows that livestock transporters accounted for just 0.7 percent of fatal accidents.
Exceptions. There are numerous exceptions to the ELD final rule. While the mandate is set to go into effect December 18, 2017, the FMCSA has granted a 90-day waiver for all vehicles carrying agricultural commodities. Other general exceptions to the final rule exist for vehicles built before 2000, vehicles that operate under the farm exemption (a “MAP 21” covered farm vehicle; 49 C.F.R. §395.1(s)), drivers coming within the 100/150 air-mile radius short haul log exemption (49 CFR §395.1(k)), and drivers who maintain HOS logs for no more than eight days during any 30-day period.
Several ag groups have also petitioned the FMCSA for a limited exemption from ELDs for agricultural trucks. There still remains a chance (slim as it may be) that an exemption for ag could be slipped into the tax bill that House and Senate conferees are presently marking up, or in an appropriations bill to continue the funding of the federal government.
One rule that is of particular concern is an HOS requirement that restricts drive time to 11 hours. This rule change occurred in 2003 and restricts truck drivers to 11 hours of driving within a 14-hour period. Ten hours of rest is required. That is a tough rule as applied to long-haul cattle transports. Unloading and reloading cattle can be detrimental to the health of livestock. An exemption from that restriction seems to be in order.
The federal government has long been involved in the regulation of the interstate transport of livestock and drivers. The FMCSA final rule is generally opposed by the transportation industry as well as the ag industry. Fortunately, some exemptions exist to relieve the burden on livestock transporters. Nevertheless, the finalization of the rule and eventual implementation merits attention.