Tester comments on proposed farm vehicle guidance

Senator encourages Montanans to weigh in on proposal before Monday deadline

(U.S. SENATE) – U.S. Senator Jon Tester is urging Montana farmers and ranchers to join him in submitting comment to the Federal Motor Carrier Safety Administration regarding proposed “guidance” on farm vehicles and off-road agriculture equipment.

Tester, a third generation Montana farmer and the Senate’s only working farmer, submitted his comments today.

The agency is not proposing any rules to require commercial drivers’ licenses for farmers who drive tractors on public roads. Nonetheless, Tester said any proposal must not “adversely impact” agriculture in Montana and across rural America.

“Nor should it require farmers and ranchers to jump through additional hoops or fill out needless paperwork in order to take care of simple, day-to-day chores,” Tester said in written comments. “Agriculture is Montana’s largest industry, and is critically important to our economy and to jobs and livelihoods across rural America.”

The Federal Motor Carrier Safety Administration is specifically asking for guidance on farm and ranch equipment on public roads, and whether shipments to grain elevators should be considered “interstate” or “intrastate” commerce.

The agency has not indicated plans to change any rules to limit “implements of husbandry,” such as farm tractors or combines, on public roads.

“Thank you for recognizing that implements of husbandry, including such equipment as tractors, subsoilers, cultivators, reapers, binders, and combines should not be considered commercial motor vehicles for purposes of FMCSA authority,” Tester wrote. “These are critical to agriculture, and do not need to be regulated by the federal Department of Transportation.”

Tester, an outspoken leader for transparency in government, encourages all interested Montanans in submitting comment online HERE by the deadline, Monday, August 1.

Tester’s comment appears below.

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Public Comment
Sen. Jon Tester
Federal Motor Carrier Safety Administration
July 28, 2011

This is a response to your request for comment on regulatory guidance on Federal Motor Carrier Safety Regulations as they relate to farm vehicles and off-road agricultural equipment. As a third-generation Montana farmer, and the U.S. Senate’s only working farmer, I look forward to sharing my perspective. My bottom line is that any proposals by your agency must not adversely impact agriculture in Montana and across rural America. Nor should they require farmers and ranchers to jump through additional hoops or fill out needless paperwork in order to take care of simple, day-to-day chores. Agriculture is Montana’s largest industry, and is critically important our economy and to jobs and livelihoods across rural America.

The first item FMCSA requested comment on is whether the agency should distinguish between intra- and interstate commerce when a commercial motor vehicle is operated within the boundaries of a single State. 

The agency must not interpret or implement rules that local officials will be unable to implement. In proposing this question, the agency uses the example of grain farmers delivering their crops to an in-state elevator. While it is true that in many, or even most cases, a grain shipment to an elevator will ultimately be shipped in interstate commerce to its final destination, this is not true in every case. A farmer delivering grain may intend for the grain to be shipped out of state, or may intend for it to serve local or statewide markets.

The agency should not task state and local officials with determining the intent of farmers or the ultimate destination of agricultural products being shipped. This requirement would be unworkable. Nor should the agency simply assume all shipments to be destined for interstate commerce. Indeed, a delivery between a Montana farmer and a Montana grain elevator must be assumed to be intra-state unless there is specific, compelling evidence to the contrary.

I appreciate FMCSA’s clarity in one regard — even if a determination is made that a transaction is “interstate,” that does not necessarily require a farmer or rancher to obtain a Commercial Driver’s License (CDL)  FMCSA has made it clear that this issue will continue to be left to the states, and it should continue to hold this view.
 
Even a farm operator engaged in interstate commerce qualifies for the agricultural exception allowed for in 49 CFR 383.3(d)(1). This regulation gives states discretion to exempt drivers of farm vehicles which are:
 
(i) “Controlled and operated by a farmer, including operation by employees or family members;
(ii) Used to transport either agricultural products, farm machinery, farm supplies, or both to or from a farm;
(iii) Not used in the operations of a common or contract motor carrier; and
(iv) Used within 241 kilometers (150 miles) of the farmer's farm.”
 
In states that choose to exercise this exception, a farmer delivering grain to an elevator would fall under state, not federal, CDL regulations, regardless of whether they are determined to be engaged in interstate commerce. I urge you to clarify that the agency is not proposing to alter this exception. This issue is critically important to farmers and ranchers, who should not be subject to the same CDL regulations as long-haul freight carriers.
 
The second question asked was whether FMCSA should distinguish between indirect and direct compensation in deciding whether a farm vehicle driver is eligible for the exception to the CDL requirements in 49 CFR 383.3(d)(1)?

I applaud the agency for seeking to clarify an area where some farmers may have been improperly classified as freight operators (contract carriers), and denied the agricultural exception to CDL requirements. State exemptions for farmers are important to facilitate activity considered essential to “crop delivery,” and farmers should be able to take full advantage of those exceptions regardless of the details of their land rental arrangements.
 
Cropshare operators’ delivery of their crops to market has the “essential character” of crop delivery. As producers, these farmers deliver their entire crops to market identically to farmers who have cash rental agreements with their landowners, and who inarguably qualify for any agricultural exception. Furthermore, the crop being delivered was grown, harvested and marketed by the farmer making the delivery, so the delivery lacks the “essential character” of contract carriage. There should be no distinction in FMCSA treatment of crop deliveries by farmers with cropshare arrangements and farmers with land secured by cash rental. I urge FMCSA to clarify that states with agricultural CDL exceptions should apply those exceptions to producers who rent land through cropshare arrangements.

Third, the agency requested comment on whether implements of husbandry and other farm equipment be considered CMVs. I agree with the agency’s determination that applying federal FMCSA regulations to implements of husbandry “would mean applying the rules in circumstances where they would be impractical and produce no discernible safety benefits.” Thank you for recognizing that implements of husbandry, including such equipment as tractors, subsoilers, cultivators, reapers, binders, and combines should not be considered commercial motor vehicles for purposes of FMCSA authority. These are critical to agriculture, and do not need to be regulated by the federal Department of Transportation.
 
Thank you again for extending your comment period to allow producers in Montana to make their voices heard on these important issues. I am concerned that the agency’s intent in these regulations has been unclear to many producers. I urge you to improve your work with stakeholders to ensure that FMCSA’s intent is clear and transparent as you move forward in seeking comment.
 
Sincerely,
(s)
Jon Tester
United States Senator

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