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An overregulation fallacy
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There have been a number of politicians talking about the federal government and overregulation recently, including one posted on this page in last week’s Herald. Such talk is expected, given our current economic climate, as well as where our country’s ledger sits. In fact, we should always be having a discussion on what government should and should not be doing.

I just have one request - can we keep the debate to things actually taking place, instead of making up stuff out of thin air?

I am talking about the debate that took place the past few months over proposed guidelines by the Federal Motor Carrier Safety Administration (FMCSA), an arm of the U.S. Department of Transportation. In late May, they released a 14-page report entitled “Regulatory Guidance: Applicability of Federal Motor Carrier Safety Regulations to Operators of Certain Farm Vehicles and Off-Road Agricultural Equipment.” I know, the name alone seems like a literary sleep aid, but the item covered some very important issues, especially for a rural area like southwest Wisconsin,  mainly when do exemptions for farmers not needing a commercial driver’s license (CDL) end, and what equipment should be considered a commercial vehicle.

I admit I am late to seeing this, but it caught my late last month when several politicians, including newly-minted presidential candidate Rick Perry chimed in, stating that what the proposed guidelines would do is force farmers driving tractors to get a CDL.

I thought to myself this could not be true - the Federal Government makes a number of boneheaded moves, but surely they would not force farmers to get a CDL just to operate a tractor, would they? When a local politician put out a press release praising the feds for not taking action, abandoning a plan to “considering forcing all farmers who operate farm machinery on public roadways to obtain a Commercial Drivers License,” I decided I needed to check this out.

Sure enough, my gut feeling was right, that the feds were not looking to force another regulation down the throats of the American farmer, that this whole firestorm was made up. In fact, the feds were trying to look out for the farmer this time.

This whole issue came about because some states - not Wisconsin - were looking at clamping down on farmers who were using semis and transports, driving down the road hauling “for hire” as opposed to doing this for their farming operations only. Part of the exemption for farmers from having a CDL is they, and their employees, can use these vehicles without a CDL in transporting equipment, supplies, and products to and from their farms. Some states also felt that cropsharers should not have an exemption, since they were receiving a form of compensation.

A few states were starting to have a problem with this because they were seeing some farmers moonlighting as transporters, doing more than working on their, or their neighbor’s farm, and were looking at clamping down. Part of the federal CDL guidelines gives the states the ability to interpret how the farmer exemptions are given.
 Some states even wanted to say that operating all equipment over 10,000 pounds, even tractors, would require a CDL.

Hearing a rumbling from farmers that different states were treating them differently, FMCSA launched a public comment initiative this past spring to get public sentiment on the issue so they could offer fresh guidelines to the states, since the last time most of this was touched was in a group of guidelines from 1975, while there were some updates in 1997.

I went on to read this document (Docket No. FMCSA-2011-0146) and I found it very enlightening. Once you get passed the legalese of the opening pages, you read that the FMCSA is looking to make sure states apply the same rules to farmers as in other states.

For example, states vary in their definitions of what is an “implement of husbandry,” as some states note it is only something with pneumatic tires, while others include a wide range of construction equipment as well. Items of husbandry include tractors, combines, and other typical farm machinery. Implements are exempt from requiring a CDL operator.

Here is the kicker about the review - it specifically states that they do not think that operators of farm machinery, like tractors and combines, or even construction equipment, should need a CDL. Quoting the item issued in May, the FMCSA staff recommend “implements of husbandry are outside the scope of these definitions when operated: (1) At a farm; or (2) on a public road open to unrestricted public travel, provided the equipment is not designed or used to travel at normal highway speeds in the stream of traffic. This equipment, however, must be operated in accordance with state and local safety laws and regulations.” And if there was any doubt, it later describes implements of husbandry as “construed and limited to equipment which, by its design and function is obviously not designed or used to travel at normal highway speeds in the stream of traffic. Examples of such equipment include, but are not limited to, farm tractors, subsoilers, cultivators, reapers, binders, combines, cotton module builders, planters, and discs.”

If you read the May request, there are several instances where it states that farm and construction equipment does not meet the definition of a commercial motor vehicle, and therefore would not require a CDL, nor would they recommend it would.

Soon after the public comment request, several farm advocacy groups came out, misinterpreting what the proposal was, some of which thought the feds were going to require anyone operating a tractor to have a CDL. Anne Ferro, administrator for FMCSA tried to quell the pitchforks in a release in late July. She noted that state rules muddied the waters, causing problems for farmers. “In the absence of guidance, enforcement officials sometimes cite carriers for violating equipment rules, even when doing so would be impractical,” Ferro said.

Unfortunately, more and more people were under the understanding that the feds were cracking down, instead of what they were actually doing, protecting farmers from state crackdowns.
 “I strongly oppose federal regulations requiring farmers to obtain a CDL in order to operate a tractor on a public roadway,” one local politician said in June.

Even the Wisconsin Farm Bureau Federation (WFBF) read the review wrong, releasing a statement that included the following “WFBF opposes any change in statute or regulatory authority that would reclassify implements of husbandry or other farm equipment as Commercial Motor Vehicles (CMVs).” Heck, even the website I first found the public comment request stated the feds were secretly working on forcing farmers to get CDLs to drive tractors, then let me download the document I quoted previously.

The Federal Government opposed that too, all along, which is why after getting more than 1,700 comments they wanted to make sure that farmers in all states were treated the same. “Farmers deserve to know that reasonable, common sense exemptions will continue to be consistently available to agricultural operations across the country, and that’s why we released this guidance,” Transportation Secretary Ray LaHood said on Aug. 10.

I have a real problem with what went down on this issue, and what it says about what politics and government have become in this country. We should always have a critical eye on our government, but what happened here is instead of have a substantive debate on what was actually proposed, the feds were falsely portrayed as trying to  “stick it to farmers.” Politicians, and these other groups just reissued talking points based on what they heard, and appear they did not look into the issue further. They issued public statements, trying to inform the public, but by not giving the people the correct facts, stopped the conversation and gave citizens the wrong impression.

Instead of actually making things clearer for farmers in those states cracking down, the issue is being dropped, which actually hurts those farmers.

Defending the Federal Government in the climate we live in is probably as popular around here as praising Lady GaGa’s wardrobe choices, but here I am, doing it anyway. I just feel that when we debate an issue, we should debate the facts, and not just made up stuff. It’s hard to fight a unicorn.

So next time someone says “can you believe what the Federal Government is doing?” please take a critical eye to that, but also take a critical eye to what is being presented, and then, after you have all the facts, decide yourself.