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Thune, Noem, Johnson Raise Bogus Alarm over Federal Farm CDL Rule

South Dakota's Congressional delegation has a penchant for fighting rules that don't exist and may never exist. A couple years ago, Senator John Thune raised a stink over regulations on livestock methane emission, regulations that the EPA never proposed. Congresswoman Kristi Noem has made her cowgirl calling card a bill to block the EPA from imposing rules on farmers kicking up dust, even though clean air regulations have a huge benefit-cost ratio, and even though some rural dust can cause cancer.

Now Senator Thune, Rep. Noem, and even Senator Tim Johnson are ruckusizing over the Federal Motor Carrier Safety Administration's effort to clarify its interpretation of existing rules on farm equipment. Rep. Noem tells us that FMCSA is proposing requiring anyone driving a tractor or combine or other farm machinery on a public road to have a commercial driver's license (CDL). Senators Thune and Johnson join 19 of their colleagues in a letter to FMCSA Administrator Anne S. Ferro to argue that "the FMCSA proposed rule changes would provide no quantifiable benefit; [sic: incorrect semicolon!] but only serve to excessively and unnecessarily overburden U.S. agriculture producers who are already strained by cumbersome federal regulations."

However, if you look at the FMCSA's call for public comment ("Applicability of Regulations to Operators of Certain Farm Vehicles and Off-Road Agricultural Equipment," Docket FMCSA-2011-0146-0001), issued May 31, 2011, you'll see that the FMCSA isn't actually proposing any new rules. Nowhere in the document will you find even a variation of the statement, "We plan to require every operator of farm equipment to obtain a CDL."

FMCSA was requesting comment on three issues (was; the extended comment period ended yesterday):

  1. Previously published regulatory guidance on the distinction between interstate and intrastate commerce in deciding whether operations of commercial motor vehicles within the boundaries of a single State are subject to the Federal Motor Carrier Safety Regulations (FMCSRs);
  2. the factors the States are using in deciding whether farm vehicle drivers transporting agricultural commodities, farm supplies and equipment as part of a crop share agreement are subject to the commercial driver's license regulations;
  3. proposed guidance to determine whether off-road farm equipment or implements of husbandry operated on public roads for limited distances are considered commercial motor vehicles. The guidance would be used to help ensure uniform application of the safety regulations by enforcement personnel, motor carriers and commercial motor vehicle drivers.

On the first issue, FMCSA is seeking public input to help clarify intra-/inter-state commerce distinctions already established by the Interstate Commerce Commission and the federal courts. FMCSA proposes no new rules.

On the second issue, FMCSA recognizes the authority it has given states to create exceptions to CDL requirements. FMCSA says nothing about wanting to require every farmhand and farmer's daughter to get a CDL. FMCSA looks very specifically at the legal status of farm vehicle drivers involved in transferring goods under crop share agreements. FMCSA acknowledges that its current strict interpretation of the governing language on this topic may not accurately apply to practice and seeks clarification from states and farmers on the issue. Again, FMCSA proposes no new rules.

On the third issue, FMCSA notes that definitions of "implements of husbandry" vary from state to state. FMCSA proposes a rule, or, more accurately, new "regulatory guidance" to define implements of husbandry. However, far from making life more difficult for farmers, FMCSA's language suggests the point is to make rules less complicated:

The FMCSA believes the experience of State agencies in dealing with implements of husbandry suggests that FMCSA should consider new regulatory guidance to emphasize a practical approach for applying the safety requirements under 49 CFR parts 390-399 to agriculture, rather than one derived from strict, literal readings of the definitions of "commercial motor vehicle'' and "motor vehicle'' under 49 CFR 390.5. Based on those definitions, almost any type of self-propelled or towed motor vehicle used on a highway in interstate commerce is subject to the FMCSRs if the threshold for weight, passenger-carrying capacity, or amount of hazardous materials is reached. This is especially the case when the definition of "motor vehicle'' is considered, which includes "any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways. * * *'' (See 49 CFR 390.5) A narrowly literal reading would mean applying the rules in circumstances where they would be impractical and produce no discernible safety benefits [emphasis mine].

FMCSA proposes to borrow language from its regulatory guidance on construction equipment to make clear that equipment used on the farm and not designed for regular highway travel should not be classified as commercial vehicles.

In a comment on a June blog post on this topic, Illinois Farm Bureau policy chief Adam Nielsen explains that FMCSA's action actually arises from a desire to prevent burdensome state-level interpretations of farm vehicle rules. Illinois State Police auditors suddenly started treating crop-share haulers as for-hire truckers and designating implements of husbandry as commercial vehicles. The Farm Bureau cried foul over this change to the U.S Department of Transportation, and FMCSA Administrator Ferro listened:

At our first meeting at U.S. DOT in early March, FMCSA administrator Anne Ferro pledged to review the issue and get back to us quickly with answers. We were pleased when an immediate moratorium on new entrant audits in Illinois was imposed. At our meeting, Administrator Ferro also told us that she was motivated to begin building a ongoing dialogue with the agriculture industry and help her staff gain a better understanding of the movement of agricultural products and equipment. Our D.C. meeting was followed a few weeks later by a large meeting in Springfield with state and federal motor carrier regulators. They had many questions for us about the nature of crop share leases and farm equipment. Administrator Ferro's appearance yesterday at a conference Farm Bureau national legislative directors in Washington was further evidence of FMCSA's commitment to work with us [Adam Nielsen, Director of National Legislation and Policy Development, Illinois Farm Bureau, comment submitted to Stu Ellis, "Buckle Your Seatbelt: A Federal Motor Carrier License May Soon Be Required For Many Farmers," FarmGateBlog.com, 2011.06.22].

You know that Senator Thune and Rep. Noem (and maybe Senator Johnson) will try spinning this issue as another example of big government burdening the little guy and failing to understand the unique needs of rural communities. But Nielsen's explanation and the FMCSA itself make clear that's not happening here. Quite the opposite: the federal government is trying to prevent unfair state-level interpretations of the rules it makes to recognize the unique nature of the agriculture industry.

So dial down the rhetoric, John and Kristi (I haven't heard Tim squawk much beyond his signature on the letter yet). There is no "CDLs for all farmers!" proposal. On this issue, Uncle Sam is doing his job and doing it right, seeking input to guide better implementation of rules already on the books.

Bonus Tractor Tyranny: If our Congress critters want to challenge farm implement restrictions, they should hop on a tractor in their next parade through Brookings, where the city commission has banned passangers on tractors during parades.

20 Comments

  1. Nick Nemec 2011.08.02

    I'm a math major and embarrassingly admit my uncertainly about some of the rules concerning punctuation. What are the rules on the use of semi-colons? My rule of thumb is to avoid them at all costs.

    As a farmer I'm used to listening to Chicken Little cries of pending doom. Few, if any, ever pan out.

    [CAH: Happy to oblige, Nick! Semicolons are appropriate in two situations: joining two complete sentences and delineating items in a complicated list. See more details in this 2008 post!]

  2. mike 2011.08.02

    I would support farmers needing CDL's. The machinery being driven isn't exactly the small stuff my Grandpa used to drive and most of it could squash a suburban driving down a hwy.

    Also most of the equipment is destroying our roads.

  3. Gary D 2011.08.02

    Also most of the equipment is destroying our roads.

    That is a pretty vague and broad statement to make.
    Yes, the equipment is much bigger than in the past but so are the tires that support this equipment. Maybe you could give a few specific examples other that trucks or semis as those vehicles not only haul ag produce but many other types of products.

  4. Bill Fleming 2011.08.02

    Nick, also, one should use a semicolon before a close parenthesis mark when one wishes to indicate that s/he is engaged at the time of writing in a winking/smiling behavior. This communication can - and is - frequently augmented by the insertion of a hyphen, a "greater than" symbol or a caret to indicate the nasal area.

    I'm sure Cory would have included this, had he been thinking in a more post-modern (and less classical) linguistic mode.

  5. mike 2011.08.02

    Overweight trucks and oversized machinery ruin our rural roads. Drive on county roads or gravel roads and trucks destroy the roads.

    It's the way it is. they certainly aren't wrecked from the pickups or the cars that drive on the roads.

    They should be taxed for it.

  6. Steve Sibson 2011.08.02

    Based on your post, the Feds are now telling the states what to do, and/or what not to do. Your post proves that Big Brother has power over the states.

    And since your post's point is that the Feds are seeking input, I think John and Kristi did that...so what is your problem? You don't like Big Government getting picked on? And you have not answered why you want Big Government to get bigger (by raising the debt ceiling) so that Big Business can keep getting bigger (Corporate Welfare).

    And go ahead and mock my English so that I will be intimidated into shutting up.

  7. Jana 2011.08.02

    Oh gosh Steve...you play such the victim. Why don't you just tell us how you think the whole thing should work, but you also need to tell us the intended and unintended consequences.

    I would never mock your English, but I will hold the ideologues feet to the fire in what their beliefs would mean to every woman, man and child in the US.

    So tell us in your perfect utopian ideologue world who would win and who would lose.

  8. Steve Sibson 2011.08.02

    Jana,

    We are incapable of creating a "perfect utopian ideologue world".

  9. Bill Fleming 2011.08.02

    Jana, I could be wrong, but I think maybe Sibby has become a Minarchist. This is a fairly recent development in his ever evolving world view.

    http://en.wikipedia.org/wiki/Minarchism

  10. Garyd 2011.08.02

    Mike,

    You can make an arguement for overweight trucks on any road but not all carry agricutural goods.

    What exactly is oversized machinery? You referred to trucks but exactly how does oversized machinery tear up the roads? Do you know the exact weight of this machinery? How caparable is that to "regular" sized machinery when comparing tire sizes?

    Could it also be possible that some county and township roads were not built properly? We have some roads in our county that were built with black dirt instead of clay like they should have been and that has caused problems. What about the extremely wet conditions that we have been experiencing? Doesn't that all contribute to the shape the roads are in?

    As far as taxes, the last time I looked I was paying property taxes to take care of both county and township roads. That along with fuel tax and license fees also contribute to the road. The legislature did raise license fees on vehicles this year and that included trucks. so yes we are being taxed for it.

  11. Charlie Johnson 2011.08.02

    My concern is that semi-trucks driven on narrow dangerous township roads are becoming 40 ton missiles. Increasingly i see semi drivers(sorry that includes neighbors and employees of the mega multi-county grain operators who soar down township roads at speeds of 60-65 miles mhp or faster. The tragedy waiting to happen is a young farm wife with several kids in a van will all be killed at a blind intersection or crest of a hill when they encounter the "40 ton missile". Please all truck drivers-CDL or not keep your speed to 35 or less on rural roads.

  12. Michael Black 2011.08.02

    Charlie, do you favor legislation enforcing a state-wide speed limit on gravel roads?

  13. Jana 2011.08.02

    Steve, I'm confused by your "We are incapable of creating a “perfect utopian ideologue world”

    Please tell us why? If nothing else, tell us what you think should be happening now and who the winners and losers should be in your world. I mean outside of your "death to RINOS" mantra.

  14. mike 2011.08.03

    Exactly my point. Roads that were never built for such large equipment are being driven on by machines that are a lot larger than ever imagine at the time they were constructed.

    The county doesn't do a great job of fixing potholes so why would I think they would rebuild roads?

    We used to hall grain in smaller trucks to a local elevator that would haul the grain by rail. Now everyone drives extremely large semis (and we all know there isn't a farm truck in SD that is underloaded).

    We have a problem. It needs to be fixed. Nothing against farmers for wanting to get their grain to town in the fewest trips but we need to figure out a better option than overweight trucks on the small roads.

  15. Steve Sibson 2011.08.03

    Jana,

    We are not evolving until we reach utopia. Humans cannot be perfect. There is not a perfect way for this world. A perfect world would have no winners and loser, but this world does.

    Fleming has provided a good (but not perfect) presentation of my position in regard to the government and the economy. Unfortunately, we have rejected the anti-Federalist Jeffersonian political philosophy that was embodied in the Declaration and the Constitution and have adopted the Hamiltonian flawed old (and current) British European monarchial system that cater to the ruling wealthy elite. Our presidents (of either party) are more like kings than an executive of the people, for the people, by the people.

  16. Douglas Wiken 2011.08.03

    "Happy to oblige, Nick! Semicolons are appropriate in two situations: joining two complete sentences and delineating items in a complicated list. See more details in this 2008 post!]"

    Two complete sentences should be separated by a period. Joining independent clauses without a conjunction might require a semi-colon. But, usually anything that communicates much of anything seems to fly ok on forums and blogs.

    Dashes, strings of dots, parentheses, all kinds of options for separating stuff and nonsense.

    There. is. this. kind. of. stuff. which. really. bugs. me. however.

    [CAH: Doug is correct: the technical term for what a semicolon may join is two independent clauses. However, when I explain the distinction, I like to tell people, "Look at the strings of words you have before and after the semicolon. Could they both stand alone as complete sentences? If not, you can't use a semicolon there."]

  17. Steve Sibson 2011.08.04

    "If not, you can't use a semicolon there."

    Thus proof that we do not live in a free country where creativity flourishes ; instead we keep repeating the mistakes of history with a central bank and huge debt.

  18. caheidelberger Post author | 2011.08.04

    Well-placed semicolon, Steve! Too bad that and your concern about huge debt are the only correct elements of your sentence.

    (1) The creativity problem here is that Noem, Thune, and even Johnson have created the impression of a problem where there is none. The FMCSA is not proposing any rules to crush either creativity or the ability of farmers to drive their big rigs around the county roads.

    (2) Proper semicolon use involves learning to forge tight logical connections between complete thoughts. Kristi Noem in particular has difficulty with logical connections and complete thoughts.

    (3) A central bank has nothing to do with the Noem/Thune spin on this non-issue.

  19. Steve Sibson 2011.08.04

    Cory,

    I just ment with Noem's representative at Perkins ans was able to present the argument that the Federal Reserve is the core cause of the debt-ceiling issue. Sorry you were not there to rebut.

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