June 24, RE: Comments on Docket No. FMCSA

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1 June 24, 2011 Docket Management Facility (M-30) U.S. Department of Transportation 1200 New Jersey Avenue, S.E. West Bldg, Ground Floor, Room Washington, D.C RE: Comments on Docket No. FMCSA Please accept these comments from the Illinois Fertilizer & Chemical Association pertaining to the May 31, 2011 Federal Register Notice titled: Applicability of the Federal Motor Carrier Safety Regulations to Operators of Certain Farm Vehicles and Off-Road Agricultural Equipment IFCA s membership consists of owners, managers and employees of retail agrichemical facilities located in Illinois, as well as representatives of pesticide, fertilizer and agricultural equipment manufacturers. The majority of IFCA s 1,100+ members are directly responsible for serving the product and service needs of Illinois agricultural producers. IFCA is committed to developing and helping implement programs that upgrade and enhance the safe handling and efficient use of agricultural chemicals and commercial fertilizers. Agriculture is Illinois leading industry with over 20 million acres in our state in crop production, mostly corn, soybeans and wheat. Agriculture makes up nearly 25% of the state economy of Illinois and employs 1 in 4 Illinois citizens. A myriad of specialized equipment referred to as implements of husbandry are absolutely necessary for field preparation, nutrient application, planting, crop protection applications, harvest and transportation to grain elevators. We appreciate the opportunity to provide guidance to FMCSA regarding a suitable FMCSR definition for point (3) regarding whether implements of husbandry should be considered commercial motor vehicles. IFCA s comments are mainly regarding this portion of the proposed rule. However, we will also provide input on item (1) regarding the guidance on interstate operations within a state s borders. Regarding item (2) pertaining to farm vehicle drivers involved in crop-share agreements, we support the comments submitted by the Illinois Farm Bureau. Input on Item (3): Off-Road Farm Equipment or Implements of Husbandry In Illinois, agricultural equipment used for field preparation, planting, nutrient and crop protection application and harvest have operated under the framework of the Illinois Vehicle Code (IVC) when these implements are transported on a public highway. The IVC is enforced by the Illinois Department of Transportation, Division of Traffic Safety, the Illinois State Police and local law enforcement. The Illinois Vehicle Code has included a definition of Implement of Husbandry since There are many types of implements designed specifically for agricultural operations (tillage, application of agrichemicals, tendering of seed, fertilizer, chemicals, and application of these products). Many of these implements are of a trailer-type design and many of them are self-propelled. In all cases, transportation on a public highway is incidental to the primary function of these implements, which is in-field agricultural production.

2 Much of the equipment used in agricultural production, with the exception of certain nurse tanks and tillage equipment, is manufactured in accordance with ASAE (American Society of Agricultural Engineers) Booklet S These are industry standards for safety features on agricultural equipment, but the features differ from those required in Appendix G of the FMCSR, and thus would never satisfy USDOT standards for commercial motor vehicles. This is because they are designed and adapted exclusively for agricultural activities, not primarily for highway transportation. In many instances such as with nurse tank trailers, brakes and light fixtures would not survive being pulled repeatedly, for months at a time, over rough, chisel-plowed ground and through waterways and ditches. That is a major reason some of these fixtures do not exist on these types of tank trailers. Illinois borders five states: Wisconsin, Iowa, Indiana, Missouri and Kentucky. For decades, Illinois ag retailers have conducted business across state lines, transporting nurse tanks, tool bars and pesticide/fertilizer application vehicles to serve customers who are close geographically to the retail location. Retailers in our neighboring states have also served Illinois farmers in this manner. It has only been in the past year that FMCSA officers have informed us that we cannot transport these implements across state lines because they do not officially conform to FMCSR standards set for commercial motor vehicles. This has caused a severe disruption in the business practices of retailers and farmers who live along a state border, and we are glad that FMCSA is considering guidance to recognize that portions of the FMCSR should not apply to implements of husbandry. The only time agricultural equipment is exposed to other motorists on a highway is the small window of time in which they are being transferred from farm field to farm field or from ag retail facility to the field. If they are not equipped with lights, Illinois law (and many other state laws) require them to be operated only in day-light hours, and they are restricted to speeds of less than 30 mph due in part to the special nature of the tires on this equipment. This equipment is also equipped with a slow moving vehicle (SMV) emblem which lets other motorists know they are approaching a slow moving vehicle. Please see Attachment A to these comments. This attachment shows pictures of various types of implements of husbandry commonly utilized in agricultural production in Illinois and the Midwest. Beneath each picture is an explanation of the implement. In many cases, the tires are a flotation design which lessens soil compaction and which can also float over a plant during application of fertilizer and ag chemicals to lessen the likelihood of injuring the plant. Many tires are rated for low speeds, which limits their feasibility for use on a public highway other than for getting to and from the farm field. In our effort to assist FMCSA with a suitable definition for implement of husbandry we have incorporated the applicability of other sections in the FMCSR. This includes the Waiver for Farm-Related CDL Service Industries in (f) when defining the scope of an implement of husbandry as well as PHMSA, 49 CFR Part (m) pertaining to anhydrous ammonia nurse tanks. Taking this all into account, we propose the following definition for FMCSA to consider for Implement of Husbandry: Implement of Husbandry means a vehicle designed and adapted exclusively for the primary function of serving agricultural, horticultural, or livestock operation. This includes self-propelled application type vehicles, farm wagons, farm trailers or like equipment used to transport products necessary for agricultural production so long as the implements are operated within a 150 air mile radius of the source of the supply or the farm field. Placarded quantities of materials necessary for agricultural production are limited to implements transporting diesel fuel in quantities of 3,785 liters (1,000 gallons) or less; liquid fertilizers including anhydrous ammonia in quantities of 11,355 liters (3,000 gallons) or less and solid fertilizers that are not transported with any organic substance.

3 We also point out that the Internal Revenue Service provides similar guidance in their Publication 510 to determine the applicability of using nontaxable fuel. Their guidance is as follows pertaining to agricultural equipment: Vehicles not considered highway vehicles. Generally, the following kinds of vehicles are not considered highway vehicles for purposes of the credit or refund of fuel taxes. 1. Specially designed mobile machinery for nontransportation functions. A self-propelled vehicle is not a highway vehicle if all the following apply. a. The chassis has permanently mounted to it machinery or equipment used to perform certain operations (construction, manufacturing, drilling, mining, timbering, processing, farming, or similar operations) if the operation of the machinery or equipment is unrelated to transportation on or off the public highways. b. The chassis has been specially designed to serve only as a mobile carriage and mount (and power source, if applicable) for the machinery or equipment, whether or not the machinery or equipment is in operation. c. The chassis could not, because of its special design and without substantial structural modification, be used as part of a vehicle designed to carry any other load. d. The vehicle must have traveled less than 7,500 miles on public highways during the taxable year. 2. Vehicles specially designed for off-highway transportation. A vehicle is not treated as a highway vehicle if the vehicle is specially designed for the primary function of transporting a particular type of load other than over the public highway and because of this special design, the vehicle's capability to transport a load over a public highway is substantially limited or impaired. While not as concise as what we propose for a definition of Implement of Husbandry it is clear that another federal agency has carefully reviewed and granted exceptions to these types of equipment, recognizing that its design is unique to a specific operation and that highway transportation is incidental to its intended purpose. FMCSA should ensure that a similar exception is made in the FMCSR to recognize that these types of equipment are not considered commercial motor vehicles. Input on Item (1) Distinction Between Interstate and Intrastate Commerce IFCA has many members also involved in the grain industry. We do not agree with FMCSA s determination that grain taken to an elevator that may export the grain is explicitly considered interstate commerce. The example that FMCSA cites is that farmers choose to take their grain to elevators that export in order to obtain the best price. This is not accurate. Many elevators that process grain on-site into feedstuffs or ethanol frequently offer prices competitive to or higher than elevators that export, depending upon demand and the market forces that day. Farmers may choose to deliver grain to an elevator who offers the best price, but it s unlikely that the farmer knows exactly what forces are behind the best price. Export alone is not synonymous with higher prices and we fail to see how FMCSA can prove the intent of the farmer to be an interstate shipper when the elevator of his choice is located in the same state and may have multiple channels for the grain on any given day. We also disagree with FMCSA s statement that farmers are making a fixed and persistent intent at the time of shipment to offer their grain for interstate shipment at an elevator that is operating in the same state as the farmer. We believe the management of the grain elevator makes the decision on whether to export the grain, not the farmer. A farmer may choose to deliver grain to an in-state elevator because it is the closest in vicinity, because they prefer the customer service the elevator provides, because they charge less for drying,

4 offer contract terms the farmer prefers, etc. The fact that an elevator may export from time to time, but not 100% of the time, should NOT be the single conclusive determination for whether the farmer is considered subject to interstate FMCSR regulations when delivering grain. We urge FMCSA to develop a more precise formula for the agricultural industry regarding fixed and persistent intent with regard to interstate activities. We support the comments and suggestions provided by Illinois Farm Bureau on this particular item. If there is any additional information that we can provide in your decision making process, please give me a call at (309) or at jeanp@ifca.com. Thank you for considering our comments on this very important issue. Kind regards, The Illinois Fertilizer & Chemical Association Jean Payne, President Attachment

5 Attachment A Single 1000 gallon capacity anhydrous ammonia (NH3) nurse tanks used to transport NH3 to a farm field Bulk Tender Seed Wagon Agricultural Implement of Husbandry standard tire rating for speed Toolbar used to inject anhydrous ammonia fertilizer into the soil Terra-Gator used to apply liquid fertilizer or liquid crop protection products Stainless steel tank pulled behind a pickup truck used to tender (load) crop protection application equipment in the field.

6 Tractor hooked to a toolbar used to inject anhydrous ammonia fertilizer into the soil. Terra-Gator used to apply dry fertilizer or dry flowable agricultural input or crop protection products.

7 Dual mounted 1,000 gallon anhydrous ammonia (NH3) nurse tanks on a single unit used to transport NH3 to a farm field. Typical equipment used to apply liquid fertilizer or liquid crop protection products in a farm field.