Congress needs to hear from you
How do you calculate the passage of time for bureaucracies – a fortnight, phases of the moon, seasons? It took the Federal Motor Carrier Safety Administration a year to process and deny WEDA’s application for exemption from the Electronic Logging Device rule. During that span of time, many equipment dealers unable to wait on government inaction went ahead and installed ELDs in their fleets. Many others still have not and are relying on complex and confusing exemptions to the ELD and hours of service rules for agricultural operations.
Enforcement of the ELD rule
Equipment dealers are not alone in trying to figure out how the law is applied. Many state enforcement agencies are struggling to keep up with the changes in federal law they are tasked to enforce. WEDA has worked with state police and departments of transportation to educate them about agricultural operations exemptions to the ELD rule.
The responses from state officials vary from unfamiliarity to disregard for the federal regulations. More than one state official has casually said “if they’re hauling a tractor, we pretty much leave them alone.”
Adding to the confusion for enforcement agencies is the advent of technology in logging devices. Many dealers are no longer using paper logs, instead opting to have their drivers use smartphones as their logging devices. And many ELDs use smartphones to monitor compliance. We have heard from several dealers that enforcement officials simply don’t know how to read the smartphone logs and waive drivers by at checkpoints without inspecting the phone logs.
To drive the point home about state agency indifference to the ELD rule and how it affects agriculture, look no further than Oregon. The federal agricultural operations exemptions are only in effect during the harvest and planting season as defined by each state. WEDA identified that Oregon and Washington did not define these periods as year-round like other states. Legislators in Washington addressed the problem by passing a bill that defined the harvest and planting season as year-round. However, Oregon had no statute or rule on the books addressing the issue. When discussing this gap with state officials, they responded that no law was necessary because it had always been the policy of the state that harvest and planting season was year-round.
Anyone who has dealt with a state agency on an enforcement issue, from a ticket to something more severe, knows that what someone told you the law was isn’t good enough. We worked with the Oregon Department of Transportation to make the policy above board by passing a rule that now defines the harvest and planting season as year-round, providing dealers the protection of the law.
Added to the confusion are newly released guidelines from the FMCSA on the agricultural operations exemption. In WEDA’s application for exemption from the ELD rule, we pointed out the befuddling contradiction that equipment dealers are exempt from hours of service requirements when delivering farm supplies to a farm but not exempt on return trips back to the dealership. Shortly before denying our application, the FMCSA issued guidelines exempting return trips, overturning its previous interpretation. In discussions with state enforcement officials, this change does not appear to have been communicated clearly.
As you can tell by now, the ELD federal mandate is an albatross to more than just dealers. More to the point, these burdensome rules are not making it any safer for employees of equipment dealers and the general public. This is especially true given the lack of awareness and apathy of enforcement agencies on what the law is and how to enforce it.
Legislative Fix
Now that the FMCSA has finally ruled on our application, albeit unfavorably, we can move forward with a legislative fix. Knowing that a favorable outcome from the FMCSA was a coin toss at best, WEDA has been working on a backup plan to statutorily exempt dealers.
It is a monumental task to gain the attention of congressional representatives and get them to sponsor a bill. With a pending decision from a federal agency that may conclude the issue, legislators are even more hesitant to work on legislation that would ultimately be futile. For that reason, the drawn out decision by FMCSA was even more aggravating. However, before the denial of our application for exemption, we were able to work with several congressional offices that understood the complexity of the problem and the need for a fix.
H.R. 5949 is the legislative vehicle that will provide a clear cut exemption from the ELD rule for dealers. The bill’s primary sponsor is Rep. Collin Peterson (D-MN). On May 23rd, the bill was introduced on the House floor by cosponsor Rep. Greg Gianforte (R-MT). It has subsequently been referred to the Subcommittee on Highways and Transit.
The legislation is straightforward. Using similar language as the existing agricultural exemption, it would exempt agribusiness operations from the ELD mandate when transporting farm supplies for agricultural purposes from a distribution point and when returning empty to the distribution point.
The definition of farm supplies is expansive and would include anything from a combine to a bolt. The only downside of the legislation is that it would not cover inter-store transfers of equipment. However, the current exemptions would cover trips within 150 miles, and allow drivers to exceed that distance eight times during any 30-day period.
There are currently 31 cosponsors of the bill. Of the states represented by WEDA, five now have a representative as a cosponsor.
Advocacy to Achieve Change – What is your role?
The key to moving any legislation is having a consistent, clear message delivered to elected officials by their constituents. In this case, that means you – the dealer. To break through the gridlock and thousands of other bills that occupy the attention of Congress, your representatives need to hear directly from you how important it is to get this bill pass.
With bi-partisan support, H.R. 5949 stands a much better chance of passage than many bills. However, Congress has many issues sidetracking their ability to move legislation. In a recent conversation with bill co-sponsor, Rep. Gianforte, getting passed the tariff issue is the primary concern of Congress before legislation can start moving. That and the upcoming midterm elections are all but bringing legislation to a halt in Washington.
Campaign season is the perfect time to get the attention of your representatives. While in session and away at the nation’s capitol, it can be challenging to break through to your elected officials. However, when campaign season rolls around, members of Congress are eager to meet and listen to people in their district.
You Can Help Shape Legislation Impacting Dealers
Dealers need to seize the opportunity to invite their representatives for a legislative visit to their dealerships. Engaging with your members of Congress is easier than you may think, and has a tremendous effect on how they vote in Washington.
Many of you reading this would be surprised at how willing and eager a congressman would be to visit your dealership for half an hour or more during campaign season. As cornerstones of your communities, many of you employ hundreds of voters and have contact with thousands more. From the perspective of a seasoned politico, your dealership is a prime environment to be in.
The mission is simple: ask for their support of H.R. 5949. If they aren’t currently a cosponsor of the bill, ask if they would be. Explain how the ELD rule is affecting your business and customers; that your association’s request for an exemption was denied by the FMCSA.
With dealer engagement, we should be able to amplify WEDA’s collaboration with other associations supporting the bill. Livestock haulers have received the most attention for how onerous the rule would be for them, and are actively supporting passage of the bill. The Agricultural Retailers Association is another national association pushing for an ELD exemption.
Take Action
As Margaret Mead once said, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” With equipment dealers’ voices in the mix, we can move the needle on this legislation. We encourage you to reach out to your elected officials for a legislative visit this fall, or contact the association to set it up for you. Success builds on itself, and we have a lot of momentum right now in our government affairs advocacy. Let’s take this issue and chalk it up as another victory for successful dealers.
Editor’s note: WEDA members with an interest in government affairs or becoming involved in helping to shape legislation that may have an effect on equipment dealerships are encourage to contact Eric Wareham, vice president of government affairs.
Podcast By Eric Wareham
ERIC WAREHAM is the vice president of government affairs for the Western Equipment Dealers Association. He is a graduate of the Willamette University College of Law and Augusta State University. Eric may be reached by writing to ewareham@westerneda.com.
