ARA: Managing Plenty Of Issues

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Capitol Building

The American public voiced their concern with the state of the economy in the Fall 2010 elections, which resulted in a significant swing in political power. Of note, Republicans will have the majority in the House of Representatives, which means that committee chairmanships will change in the 112th Congress, which begins in 2011.

This change and growing national concern with the economy will shape the 2011 federal agenda. The Agricultural Retailers Association (ARA) anticipates legislative and regulatory action on a number of major issue areas important to retailers and distributors of crop inputs, transportation, environment, chemical security and tax issues.

Transportation

Last year, the U.S. Department of Transportation (DOT) limited the agriculture hours of service (HOS) exemption from being applicable to all farm inputs from distribution to the farm to only anhydrous ammonia transportation. The HOS exemption allows agricultural truckers to avoid time limitations within a 100 air mile radius during planting and harvest seasons, as defined by each state. The House Transportation and Infrastructure Committee Chairman John Mica (R-FL) is a strong proponent of the exemption, unlike the previous committee chairman, Rep. Jim Oberstar (D-MN). ARA is working with Congress on the upcoming Highway Bill to ensure that the exemption’s statutory language is clarified so that movement of all farm inputs will fall under the exemption. ARA also plans to advocate for extending the limitation on distance from 100 to 150 air miles.

In 2011, Congress will also consider reauthorizing the Hazardous Materials Transportation Act (HMTA). ARA supports federal preemption of hazardous materials law so that the legal requirements for carriers do not vary between geographic regions. Within the HMTA reauthorization, ARA will also advocate for streamlined credentialing, the elimination of duplicative background checks and decreased overlap in federal regulation requirements between agencies.

This year, ARA expects the DOT to finalize a 2010 proposal to incorporate two special permits important to the industry into the regulations. The special permits, SP 13554 and SP 10950, allow for the authorization to transport nurse tanks securely mounted on field trucks and authorization for nurse tanks with missing or illegible dataplates to continue to be used in anhydrous ammonia service under specified conditions. ARA supports the incorporation of these special permits into the regulations because it will save agricultural retailers from filing applications and renewals with the DOT, allow for retailers to avoid a DOT fitness determination for access to the provisions, and provide certainty for regulatory compliance with regard to nurse tank capital investment.

ARA plans to continue working with the DOT to address problems in the Hazardous Materials Safety Permit and the implementation of the Comprehensive Safety Analysis.

Environment

In 2011, there will be no shortage of environmental legislative and regulatory issues. This month, EPA is expected to release the final general National Pollutant Discharge Elimination System (NPDES) permit for pesticide applications in, above or near water. The permit is the result of a 2009 appeals court case which struck down an EPA rule that exempted FIFRA-compliant pesticide applications from Clean Water Act Requirements (CWA). The permits will be enforced beginning in April. ARA has worked with EPA to support the development of a NPDES permitting system that will have limited impact on terrestrial pesticide applications. ARA is working with Congress to ensure FIFRA-compliant pesticide applications are not subject to the CWA requirements.

EPA expects to finalize its Pesticide Drift Labeling registration notice later in the year. ARA opposes ambiguous label language like, “could cause harm.” Further, EPA should recognize that some level of de minimus spray drift exists, even when best management practices are used. EPA also plans to move forward with evaluating the idea of Pesticide Web-Distributed Labeling, which would remove labels from pesticide containers and make pesticide labels available only on the Internet. ARA believes having access to labels on the Web may be useful to some users, but there are many technical issues to resolve, not the least of which is that high-speed Internet is not readily accessible for many farmers. ARA also has serious concerns regarding liability.

Activists groups have launched an attack on the agriculture industry, and nutrient issues are increasing in response to the attacks. ARA participates in the Agriculture Nutrient Policy Council (ANPC) to combat the attacks on fertilizer use. EPA plans to use its work in restricting nutrient runoff in Florida and the Chesapeake Bay to institute water quality standards across the U.S. ARA and ANPC are supportive of the adoption of conservation practices and technologies based on sound science and economic reasoning. The power to implement any pollution diet should remain within state control.

Clean Air Act (CAA) issues, like carbon dioxide emissions and dust regulation, will be a concern in 2011. ARA is fighting EPA’s draft proposals to increase dust regulation to unattainable levels in the West. While climate change legislation is unlikely in the 112th Congress, EPA is rolling out its CAA regulation of carbon dioxide in 2011. ARA continues to legislatively fight the EPA’s regulation of greenhouse gasses through the CAA.

Chemical Security

In 2010, Congress passed legislation that would temporarily reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS). ARA supports a permanent authorization of the CFATS program, but opposes efforts to include an inherently safer technology (IST) mandate, third-party enforcement provisions and weakening of federal preemption in the legislation. In 2011, ARA is optimistic that it will be more desirable to the new Congress to pass a straight reauthorization of the CFATS program for an additional three to five years than to add more CFATS requirements. ARA continues to work closely with the Department of Homeland Security on the implementation of CFATS and the new ammonium nitrate registration regulations.

Taxes

The 2001 and 2003 tax cuts were set to expire at the end of 2010. Further, the estate tax was set to snap back to tax all estates valued over $1 million at a 55% rate in 2011. In December, Congress visited these tax issues, along with an unemployment benefits extension. ARA has advocated for a full repeal of the estate tax, while settling for a maximum rate of 35% on estates over $5 million per spouse, as well as supporting the permanent extension of the 2001 and 2003 tax cuts. If Congress fails to act by January 1, it is foreseeable that the new Congress will take favorable action early in 2011.

ARA led the effort to secure the Agricultural Chemical Security Tax Credit in the 2008 Farm Bill. Ag retailers, manufacturers, formulators, distributors and aerial applicators storing specified ag chemicals are eligible for a 30% tax credit of aggregate amount to $100,000 per facility, limited to $2 million a year per company. The tax credit will expire with the 2012 Farm Bill. ARA looks forward to extend the tax credit beyond 2012, but expects a tough fight due to budgetary concerns.

Stacy is public policy counsel for the Agricultural Retailers Association, Washington, DC.

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