Safety exemptions for livestock haulers raise concerns

Kristoffer Tique
Midwest Center for Investigative Reporting
Safety exemptions for livestock haulers raise concerns.

It was sometime around 4 a.m. on a cool spring morning when James McGilvray lost control of his semi, careening into a ravine off Interstate 49 in Harrisonville, Missouri.
His trailer, which carried between 80 and 100 cattle, according to police records, flipped on its side as the truck plowed to a halt.

The crash killed roughly half the livestock onboard, with the other half escaping onto the highway where state and city law enforcement spent the next four hours shutting down traffic in order to corral the remaining herd.

McGilvray, who was 48 at the time of the crash, blamed another car for causing the wreck, according to the crash report, despite officers marking no evidence for another vehicle's involvement. Rather, Stacy Ball, 45, who was traveling with McGilvray and was in the sleeper cabin changing when the crash occurred, believes McGilvray fell asleep at the wheel.

On the crash report, Ball told officers that McGilvray had run off the road twice the previous night and "had been driving 'non-stop' for 2-3 months between Mississippi and Florida." She also informed officers that McGilvray had been pushing himself to prove to his current employers that despite his age, he was still fit to drive the long, hard hours commonly associated with the trucking industry.

"Show me you're not too old to haul cattle," Ball recalled the trucking company telling McGilvray when he was first hired, according to the report.

Ball also told officers that McGilvray hadn't updated his mandatory hours log because of how busy the company was keeping him, and that the trucking company wasn't using electronic logging devices, or ELDs, which in December 2017 the Federal Motor Carrier Safety Administration began requiring most U.S. truckers to carry to prevent fatigue-related accidents.

Under current federal hours of service law — which dictate how long commercial drivers can be on the road —commercial drivers can operate on duty for 14 hours after a mandatory 10-hour break. Electronic logging devices, which are approved GPS tracking devices plugged into the truck's engine, are meant to replace older paper logs in order to more accurately track driver's on-duty hours, federal officials said.

The devices are projected to save dozens of lives and prevent hundreds of injuries each year, officials said, plus save stakeholders more than $1 billion annually by reducing paperwork.

But McGilvray's crash, which happened April 27, 2018, came while livestock haulers were still temporarily waived from complying with the new ELD law because of persistent lobbying efforts from the agricultural industry. In fact, federal agencies that track and enforce these laws, like the FMCSA, have been slow to implement the devices since the law came into effect.

FMCSA has also expanded broad exemptions for drivers carrying agricultural commodities and is now considering changing several other standards that some safety advocates say would greatly reduce the effectiveness of hours of service rules.

That's despite national data showing a rise in large truck-related fatalities. In 2017, there were 841 occupants of large trucks killed in crashes, up from 725 in 2016, and 665 in 2015, according to a National Highway Traffic Safety Administration report. When including pedestrians and other cars involved in those crashes, fatalities jump to 4,761 in 2017, up from 4,369 the year prior.

"Forty-four states have experienced increases in truck crash deaths since 2009," said Harry Adler, a spokesman for the Truck Safety Coalition, a national nonprofit focused on reducing truck-related fatalities and injuries. "When you look at the state of truck safety, the number of truck crashes, injuries, fatalities, they all keep going up."

For years, industry associations like the National Pork Producers Council and the National Cattlemen's Beef Association have touted the safety record of their drivers to circumvent expanding regulation.

"Livestock haulers comprise one of the safest sectors of the commercial motor vehicle industry due in part to the very nature of the only cargo they haul: live animals," wrote the association in an October petition to the FMCSA, asking the agency to increase on-duty hours for livestock drivers from 14 hours to 16.

The group points to an analysis they did of FMCSA data between 2013 and 2015, where livestock haulers make up between 6-7 percent of the nation's roughly 4 million commercial drivers yet constitute less than 1 percent of the total crashes.

Added to their driver safety record is the fact that livestock haulers must also worry about keeping their animals safe, particularly during times of extreme heat or cold, said Allison Rivera, the beef association's executive director for government affairs.

"It's an animal welfare issue," Rivera said. "The problem is that, unlike the rest of trucking, we can't just stop at a rest stop for 10 hours and rest with the animals in the back."

So far, that argument has been working, delaying ELD implementation and relaxing the way federal agencies interpret hours of service laws and their exemptions.
Petitions from the National Pork Producers Council — joined by the National Cattlemen's Beef Association and several other stakeholders — delayed the original ELD implementation date of December 2017 not once, but twice, giving livestock haulers 180 days to fall into compliance.

Then on Dec. 13, the FMCSA announced on its website that transporters of livestock and insects aren't required to carry ELDs at all "until further notice," raising questions of when livestock haulers, if ever, will need to install the device.

But a larger change came from several revisions the FMCSA made to the National Highway System Designation Act of 1995, which established the first exemptions for drivers "transporting agricultural commodities or farm supplies for agricultural purposes."
The act set a radius of 100 "air miles" around any pickup spot for agricultural goods, including livestock, feed and farm equipment. The agency defines an air mile as a nautical mile, which is equivalent to about 1.15 miles.

Truck drivers operating within the radius were exempt from hours of service regulations during a state's harvest season. However, if their trip included leaving that radius after they picked up their livestock or other agricultural goods, then standard hours of service laws applied as soon as they left the radius, and they were subject to 10-hour breaks every 14 hours.

The idea was to give drivers with sensitive cargo the flexibility to manage their own schedules without having to worry about tight federal deadlines. And under pressure from the agriculture industry, Congress expanded that exemption to 150 air miles, or roughly 172 miles, back in 2012.

Then in the summer of 2017, the FMCSA quietly changed how it interpreted the nearly 30-year-old law altogether, said Matt Wells, the associate director of the Midwest Truckers Association, on a Facebook video.

Drivers hauling agricultural goods have always been exempted from hours of service rules while in the exempted radius but were required to track all their hours driving if their trip ever intended to leave it. Under the agency's new guidelines, he said, now agricultural haulers only need to track their hours outside the radius and aren't required to log any hours within it.

"Meaning that you record that time as off-duty, not driving," Wells said. "This is the drastic change the FMCSA has done that you can now turn your logbook on and off throughout the day without affecting your daily or weekly hour limit of the logbook rules."

That means that unlike before, law enforcement or regulatory agencies are now no longer privy to when a trucker is actually driving or when they're taking a break while in exempted zones.

Industry leaders say giving drivers more flexibility and less stress over logging hours was necessary to help address the unique challenges livestock haulers face.

For example, Rivera said, truckers hauling livestock in some cases require extra training to handle live cargo, and therefore some end up loading and unloading by themselves because of workforce shortages and the cost of hiring extra manpower. That itself can be a safety concern, she said, and eats into the already limited time allotted to drivers under hours of service rules.

Some drivers have also come out publicly to say ELDs force truckers to act more recklessly because they essentially create a "hazardous race to beat the clock," reported Business Insider back in May.

But Adler said these exemptions go too far at the expense of safety, especially since Congress considered expanding them further. In 2018, about 10 bills were introduced that would, in some way, expand hours of service exemptions or relax ELD requirements, he said.
"They're all different attempts to lengthen the amount of time truck drivers are either driving or working, and there's just not data to support that more time on task without a break, or longer work days, are safer," Adler said.

One bill, called the Transporting Livestock Across America Safely Act, was introduced to both the U.S. Senate and House in early 2018, but failed to make it further. That bill, sponsored by Republican Nebraska Sen. Ben Sasse, would double the 150-air-mile exemption to 300 air miles — nearly 100 miles longer than the drive between Kansas City and St. Louis.

In states like Missouri or Illinois, where harvest season is year-round, 300 air miles essentially covers each state entirely, giving anyone hauling livestock or other agricultural goods free reign to drive within them without any kind of federal accountability.

The FMCSA announced in October that it would be extending the public comment period for a second month to discuss proposed changes to those regulations, including increasing on-duty time from 11 hours to 12.

Ultimately,  industry and regulators need to find a balance between public safety and animal welfare, especially when it comes to tracking driving hours and mitigating fatigue, said Jennifer Woods, an expert in livestock handling and safety.

"There's a lot of moving parts," she said. "This is not just about our truck drivers, this is about our industry. It's about animal welfare ... trying to find one hat that fits them all isn't going to work."