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Guest Opinions

Federal Regulations Question Intrastate Versus Interstate Commerce

Written by Keith Kennedy

By Keith Kennedy, Executive Director, Wyoming Ag-Business Association

Have you ever hauled cull cows to the local auction? Sugar beets to the local receiving station? Wheat to the local elevator, or barley to the receiving station?

If you answer “yes” to any of these questions, your shipment is “interstate commerce,” according to Federal Motor Carrier Safety Act (FMCSA) rules. A court ruling in the 1980s, and FMCSA interpretation since the early 1990s, confirms these shipments are “interstate” commerce. Fortunately, most states, Wyoming included, have for years considered these agriculture activities as “intrastate commerce,” and thus, within well-defined limits, these activities do not require a Commercial Driver’s License, Annual Medical Certificate and an Annual Vehicle Inspection.

It’s true, no one cares more about the safety of our neighbors, and of the equipment we operate every day, more than farmers and ranchers. I also believe this is true of the Wyoming Department of Transportation and the Wyoming Legislature, which have adopted rules that recognize the way we do business here in Wyoming.

Apparently, FMCSA does not believe that the states are diligent in this effort, and has requested comment on three issues: distinguishing between intra- and interstate commerce; applicability of the Commercial Driver’s License (CDL) rules to farm vehicle drivers operating under a crop share farm lease agreement; and implements of husbandry.

Originally, comments were due June 30, 2011, but on June 28 the deadline was extended to Aug. 1, 2011. After some discussion, I’ll let you know how to comment on these issues.

First, it seems clear that if you deliver an agricultural good, within 150 air-miles of your home base, and within Wyoming, this is an intrastate shipment, regardless of where the product travels after you make delivery. When one delivers a load of cull cows to the auction barn, there is no way of knowing when the cattle will enter interstate commerce.  The feedlot across the county could purchase these cattle as easily as a packer from Texas. Likewise, if I deliver sugar beets to the local receiving station, I do not know if they will be processed in Lovell or Billings, Torrington or Scottsbluff; that decision is in the hands of the processor. In similar fashion, if I deliver corn to the local elevator, I cannot tell if the corn will be sold to my neighbor, the ethanol plant or shipped by rail for export to China. FMCSA apparently doesn’t realize we’re out to maximize profit by seeking the best price at the closest market.

Secondly, crop-share agreements are anything but standardized. Over the years, localities generally have similar crop-share arrangements, but agreements for irrigated cropland in Goshen and Platte counties are likely different than those in Park and Big Horn counties. Dryland crop-share agreements will differ from Laramie to Campbell counties, as do the motivations for such agreements, whether the motivation is risk-sharing, profit-sharing or customary within that area. FMCSA doesn’t seem to recognize that we don’t have scales by the side of every field to divide the crop as it’s harvested. If FMCSA proceeds to consider crop-share farmers as “contract carriers,” farmers will likely forego crop-share leasing, thus eliminating a tool that offers landlords profit potential, and renters a tool that mitigates risk.

Finally, I do not believe that FMCSA needs to have a uniform definition of an implement of husbandry. Wyoming’s definition includes “sheep wagons, portable livestock loading chutes…” (W.S. 31-1-101 (a)(x)). It seems apparent to me that this definition isn’t necessary in Delaware or Massachusetts, but they likely have a definition that includes poultry hauling or cranberry equipment, equipment Wyoming producers are unlikely to need or use. The point here is, one size does not fit all, nor should it. Wyoming, as have all other states, has defined “implements of husbandry” to fit agriculture as it occurs in each state.

While I mentioned delivering farm/ranch production earlier in this column, what about farm/ranch inputs? If I pick up a fertilizer cart from the local ag retailer, is this an interstate shipment by virtue of the fact that some of the fertilizer was delivered to the retailer from outside Wyoming? Is the load of mineral I hauled from the local feed dealer to my ranch an interstate shipment because the salt in the blocks came from Utah, the phosphate from a Canadian mine and the iodine from Texas? Wyoming law is clear: “‘intrastate’ means the transportation of persons or property between points within Wyoming.” I only wish FMCSA could be as clear.
I realize this is just one more item in a long list of the regulatory morass we’re in, along with the usual set of acronyms – USEPA, APHIS, GIPSA, BLM, FWS, USFS… but, I believe it is high time for us to demonstrate that local control of issues makes for common-sense rules that protect the public and make sense, both for producers and consumers.

How can you affect the decision FMCSA makes on these issues? You can offer your comments several ways. First, you can mail a letter to U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room 12-140, Washington, DC, 20590-0001. You may fax the Department of Transportation at 202-493-2251, or you can file comments on the Federal eRulemaking Portal at regulations.gov. Be sure to note the docket number FMCSA-2011-0146; you need to mention the docket number in the subject line of your comments, or to file your comments via the web.
Thanks for your time, and stay safe.

Keith Kennedy lives in Laramie and is the executive director of the Wyoming Ag-Business Association and the Wyoming Wheat Marketing Commission, and lobbies for the Ag-Business Association, Wyoming Crop Improvement Association and the Wyoming Wheat Growers Association.