[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Proposed Rules]
[Pages 31279-31282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13035]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383 and 390

[Docket No. FMCSA-2011-0146]


Regulatory Guidance: Applicability of the Federal Motor Carrier 
Safety Regulations to Operators of Certain Farm Vehicles and Off-Road 
Agricultural Equipment

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice; request for public comment.

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SUMMARY: FMCSA requests public comment on: (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; and (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.

DATES: Comments must be received on or before June 30, 2011.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2011-0146 by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, (M-30), U.S. Department 
of Transportation (DOT), 1200 New Jersey Avenue, SE., West Building, 
Ground Floor, Room 12-140, Washington, DC 20590-0001.
     Hand Delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., ET, Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. All 
submissions must include the Agency name and docket number for this 
notice. See the ``Public Participation'' heading below for instructions 
on submitting comments and additional information.

    Note that all comments received, including any personal information 
provided, will be posted without change to http://www.regulations.gov. 
Please see the ``Privacy Act'' heading below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140 on the ground floor of the DOT Headquarters Building at 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., ET, Monday through Friday, except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act System of Records Notice for the DOT Federal Docket 
Management System published in the Federal Register on January 17, 2008 
(73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
    Public Participation: The http://www.regulations.gov Web site is 
generally available 24 hours each day, 365 days each year. You can get 
electronic submission and retrieval help

[[Page 31280]]

and guidelines under the ``help'' section of the http://www.regulations.gov Web site. Comments received after the comment 
closing date will be included in the docket, and will be considered to 
the extent practicable.

FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations, Federal Motor Carrier Safety Administration, 1200 New 
Jersey Ave., SE., Washington, DC 20590.
    E-mail: [email protected]. Phone (202) 366-4325.

SUPPLEMENTARY INFORMATION: 

Legal Basis

    The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, August 
9, 1935) (1935 Act) provides that the Secretary of Transportation may 
prescribe requirements for (1) qualifications and maximum hours of 
service of employees of, and safety of operation and equipment of, a 
motor carrier; and (2) qualifications and maximum hours of service of 
employees of, and standards of equipment of, a motor private carrier, 
when needed to promote safety of operation (49 U.S.C. 31502(b)).
    The Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 
Stat. 2832, October 30, 1984) (1984 Act) provides concurrent authority 
to regulate drivers, motor carriers, and vehicle equipment. It requires 
the Secretary of Transportation to prescribe regulations that ensure 
that: (1) Commercial motor vehicles (CMVs) are maintained, equipped, 
loaded, and operated safely; (2) the responsibilities imposed on 
operators of CMVs do not impair their ability to operate the vehicles 
safely; (3) the physical condition of operators of CMVs is adequate to 
enable them to operate the vehicles safely; and (4) the operation of 
CMVs does not have a deleterious effect on the physical condition of 
the operators (49 U.S.C. 31136(a)). Section 211 of the 1984 Act also 
grants the Secretary broad power in carrying out motor carrier safety 
statutes and regulations to ``prescribe recordkeeping and reporting 
requirements'' and to ``perform other acts the Secretary considers 
appropriate'' (49 U.S.C. 31133(a)(8) and (10), respectively).
    The Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 
Title XII, 100 Stat. 3207-170, October 27, 1986) (1986 Act) directs the 
Secretary of Transportation to prescribe regulations on minimum 
standards for testing and ensuring the fitness of an individual 
operating a commercial motor vehicle (49 U.S.C. 31305(a)). The States 
must use those standards in issuing commercial driver's licenses 
(CDLs).
    The FMCSA Administrator has been delegated authority under 49 CFR 
1.73(L), (g), and (e)(1) to carry out the functions vested in the 
Secretary of Transportation by the 1935 Act, the 1984 Act, and the 1986 
Act, respectively.

Background

    The Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR parts 
350-399) include several exceptions for agricultural operations. The 
FMCSA recently received inquiries about the applicability of these 
exceptions. As a result, the Agency has identified three issues that 
could benefit from clarification. First, how does one distinguish 
between intra- and interstate commerce when a CMV is operated within 
the boundaries of a single State? Second, should the Agency 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)? Third, should implements of husbandry and other 
farm equipment be considered CMVs?

Distinguishing Between Intra- and Interstate Commerce

    Most of the Agency's safety regulations, such as those in 49 CFR 
parts 390 through 399, are only applicable to the operation of CMVs, as 
defined in 49 CFR 390.5, in interstate commerce. The Federal courts 
have generated a large body of case law on the distinction between 
intra- and interstate commerce. The FMCSA's regulatory guidance on this 
issue is largely controlled by those decisions. The most recent 
guidance on this question involves 49 CFR 390.3, General 
applicability.\1\
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    \1\ Like most of the guidance posted on the Agency's Web site, 
this guidance was published by the Federal Highway Administration's 
Office of Motor Carriers, the predecessor to FMCSA, on April 4, 1997 
(62 FR 16369, 16404).
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    Question 6: How does one distinguish between intra- and interstate 
commerce for the purpose of applicability of the FMCSRs?
    Guidance: Interstate commerce is determined by the essential 
character of the movement, manifested by the shipper's fixed and 
persistent intent at the time of shipment, and is ascertained from all 
of the facts and circumstances surrounding the transportation. When the 
intent of the transportation being performed is interstate in nature, 
even when the route is within the boundaries of a single State, the 
driver and CMV are subject to the FMCSRs.
    While this guidance remains correct, FHWA's 1975 interpretations 
offered more detailed agricultural scenarios that can be helpful in 
understanding the distinction between intra- and interstate commerce.
    For example, in one of the scenarios, grain is transported from 
farms to an elevator in the same State. Although no truckload or 
shipment is earmarked for any particular out-of-State purchaser, all of 
the grain is intended to be shipped to points outside the State. The 
grain is graded, tested, and blended at the elevator and then shipped 
to out-of-State points during the year following harvest. Under this 
scenario, the movement of the grain to the elevators is considered 
interstate commerce (40 FR 50671, 50674; October 31, 1975; copy in 
docket). Here, the intent of the farmers (whether or not explicitly 
articulated) was to have their grain shipped out of the State of origin 
in order to obtain the best price. The grain therefore remained in the 
stream of interstate commerce until it reached its destination.
    Another example from the 1975 interpretations discusses transit 
arrangements. When it is the intent that shipments originating in a 
State move to a point in that State for a transit service, and then 
move to points outside the State, or the reverse, the intra-State 
portion to or from the transit point is considered interstate commerce. 
Many of the 1975 interpretations are based on Motor Carrier Cases of 
the Interstate Commerce Commission (ICC). The Federal courts have 
largely ratified the positions taken by the ICC. A copy of the relevant 
Motor Carrier Cases referenced in the 1975 notice is included in the 
docket. When the motor carrier safety functions of the ICC were 
transferred to the U.S. Department of Transportation's FHWA in the late 
1960s, FHWA relied upon the ICC's Motor Carrier Cases to ensure 
effective implementation of the motor carrier safety program at the 
U.S. Department of Transportation.
    The FMCSA believes the 1975 and 1997 Federal Register notices 
provide helpful information for enforcement officials and motor 
carriers. The Agency requests public comment on whether additional 
guidance or information is needed to clarify the distinction between 
intra- and interstate commerce in the agricultural industry. If you 
believe it is needed, please describe scenarios that would benefit from 
further discussion.

[[Page 31281]]

Applicability of the Commercial Driver's License (CDL) Rules to Farm 
Vehicle Drivers Operating Under a Crop Share Farm Lease Agreement

    Under the Agency's CDL regulations, persons who operate a CMV, as 
defined in 49 CFR 383.5, in interstate or intrastate commerce are 
required to have a CDL. However, a limited exception is provided for 
drivers of farm vehicles (49 CFR 383.3(d)(1)). A State may, at its 
discretion, exempt drivers of farm vehicles that are:
    (1) Controlled and operated by a farmer, including operation by 
employees or family members;
    (2) Used to transport agricultural products, farm machinery or farm 
supplies to or from a farm;
    (3) Not used in the operations of a common or contract motor 
carrier; and
    (4) Used within 241 kilometers (150 miles) of the farmer's farm.
    The exception is limited to the driver's home State unless there is 
a reciprocity agreement with adjoining States.
    It has come to FMCSA's attention that States may be taking varied 
approaches in interpreting the meaning of ``common or contract motor 
carrier'' as it relates to farm vehicle drivers operating under a crop 
share agreement and, as a result, may be applying the CDL exception 
inconsistently.
    As background, it is the Agency's understanding that in a crop 
share arrangement, land owners generally rent out or lease their farm 
land to a tenant. The tenant agrees to pay the landlord a share of the 
crops grown on the leased lands as rent. This rent, i.e., a portion of 
the crops, may be paid in a series of installment payments. The parties 
agree that each will provide certain items of equipment, materials, and 
labor, and pay a share of the expenses to run the farming operations. 
The tenant agrees to use the land for agricultural purposes only, and 
to farm the land in accordance with proper farming practices. The 
parties will share in the decision making and management of the farming 
operations to the extent set out in the lease. The landlord has a lien 
on the crops as security for the rent payable under the lease. In most 
cases, it appears that the share cropper transports the landlord's 
portion of the crops to market in his or her own CMV and is indirectly 
and implicitly compensated for this service in the form of a reduction 
in the landlord's share in the crops produced.
    The FMCSA believes that the reference to ``operations of a common 
or contract carrier'' in the CDL exception (49 CFR 383.3(d)(1)(iii)) is 
clear. Given the information FMCSA has received about the varied 
interpretations of this phrase as it relates to crop share 
arrangements, however, it acknowledges that there may be uncertainty 
about how the phrase applies in the context of a crop share 
arrangement.
    As a result, FMCSA requests public comment on this issue. 
Specifically, FMCSA seeks information on the following questions:
     How many States have exercised the discretion provided by 
49 CFR 383.3(d)(1) to include in their State CDL regulations an 
exception for farm vehicle drivers?
     For States that have opted to include the farm vehicle 
exception in their State CDL laws and regulations, how are States 
interpreting the CDL regulations as they relate to farm vehicle drivers 
working in a crop share agreement?
     Do these States construe these regulations to make farm 
vehicle drivers working in a crop share agreement contract carriers?
     If so, what evidence are States reviewing to make the 
determination that a farm vehicle driver working in a crop share 
agreement is or is not operating as a contract carrier?
     Is the Agency's understanding of the crop share agreement 
accurate?
     What types of compensation arrangements exist between farm 
vehicle operators providing transportation services as part of a crop 
share agreement and their landlords?

Implements of Husbandry

    This third issue arises from the fact that while a number of States 
exempt ``implements of husbandry'' from their vehicle safety 
regulations, there is no single, uniform definition of the term.
    For example, one State defines an implement of husbandry as farm 
equipment that is equipped with pneumatic tires, infrequently operated 
or moved on highways and used for the benefit of the farmer's 
agricultural operations to perform agricultural production or harvest 
activities or transport agricultural products or agricultural supplies. 
Implements of husbandry can also be earthmoving equipment used in 
farming operations. Farm tractors and combines are typical examples of 
what would be considered to be implements of husbandry.
    Another State's regulations explain that implements of husbandry 
include farm implements, machinery and tools, as used in tilling the 
soil, including self-propelled machinery specifically designed or 
adapted for applying plant food materials or agricultural chemicals but 
not ``designed or adapted for the sole purpose of transporting the 
materials or chemicals.'' The State provides a list of examples: 
Subsoilers, dozers (provided they are for farm use), cultivators, farm 
tractors, reapers, binders, combines, cotton module builders, planters, 
and discs. In this example, the State's rules explain that implements 
of husbandry do not include automobiles, trucks, or items used on the 
farm such as irrigation systems, silos, barns, etc.
    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.
    The FMCSA provides an example of a practical alternative approach 
in the existing regulatory guidance concerning off-road construction 
equipment. Questions 6 and 7 from 49 CFR 383.3 and Questions 7 and 8 
for 49 CFR 390.5 from the 1997 Federal Register notice (62 FR 16369, 
16406) are reprinted below.
    Sec.  383.3 Question 6 and Sec.  390.5 Question 7: Does off-road 
motorized construction equipment meet the definitions of ``motor 
vehicle'' and ``commercial motor vehicle'' as used in Sec. Sec.  383.5 
and 390.5?
    Guidance: No. Off-road motorized construction equipment is outside 
the scope of these definitions: (1) When operated at construction 
sites; and (2) when operated on a public road open to unrestricted 
public travel, provided the equipment is not used in furtherance of a 
transportation purpose. Occasionally driving such equipment on a public 
road to reach or leave a construction site does not amount to 
furtherance of a transportation purpose. Since construction equipment 
is not designed

[[Page 31282]]

to operate in traffic, it should be accompanied by escort vehicles or 
in some other way separated from the public traffic. This equipment may 
also be subject to State or local permit requirements with regard to 
escort vehicles, special markings, time of day, day of the week, and/or 
the specific route.
    Sec.  383.3 Question 7 and Sec.  390.5 Question 8: What types of 
equipment are included in the category of off-road motorized 
construction equipment?
    Guidance: The definition of off-road motorized construction 
equipment is to be narrowly construed and limited to equipment which, 
by its design and function is obviously not intended for use, nor is it 
used on a public road in furtherance of a transportation purpose. 
Examples of such equipment include motor scrapers, backhoes, motor 
graders, compactors, tractors, trenchers, bulldozers and railroad track 
maintenance cranes.
    The FMCSA proposes to issue new regulatory guidance to address 
implements of husbandry, consistent with the approach used for off-road 
motorized construction equipment. The Agency requests public comment on 
this issue and the following proposal. Specifically, the Agency 
requests comments on whether there are specific examples of implements 
of husbandry that should be included in the guidance to assist the 
enforcement community and the industry in achieving a common 
understanding of how to apply the safety regulations.

Proposed Regulatory Guidance: Applicability of the FMCSRs to Implements 
of Husbandry

Sec.  383.5 Question 13 and Sec.  390.5 Question 33

    Question: Do implements of husbandry meet the definitions of 
``commercial motor vehicle'' as used in 49 CFR 383.5 and 390.5?
    Guidance: No. Implements of husbandry are outside the scope of 
these definitions when operated: (1) At a farm; or (2) on a public road 
open to unrestricted public travel, provided the equipment is not 
designed or used to travel at normal highway speeds in the stream of 
traffic. This equipment, however, must be operated in accordance with 
State and local safety laws and regulations as required by 49 CFR 392.2 
and may be subject to State or local permit requirements with regard to 
escort vehicles, special markings, time of day, day of the week, and/or 
the specific route.
    Question: What types of equipment are included in the category of 
implements of husbandry?
    Guidance: The term implements of husbandry should be narrowly 
construed and limited to equipment which, by its design and function is 
obviously not designed or used to travel at normal highway speeds in 
the stream of traffic. Examples of such equipment include, but are not 
limited to, farm tractors, subsoilers, cultivators, reapers, binders, 
combines, cotton module builders, planters, and discs.

Request for Comments

    FMCSA requests public comment on: (1) The distinction between 
interstate and intrastate commerce in making the determination whether 
certain transportation by CMVs, within the boundaries of a single 
State, is subject to the FMCSRs; (2) the relevance of the distinction 
between direct and indirect compensation in deciding whether certain 
farm vehicle drivers working under a crop share arrangement are subject 
to the Agency's CDL regulations; and, (3) the determination whether 
certain off-road farm equipment and implements of husbandry operated on 
public roads for limited distances should be considered CMVs and 
subject to the Agency's vehicle safety equipment regulations.
    The Agency will consider all comments received by close of business 
on June 30, 2011. Comments will be available for examination in the 
docket at the location listed under the ``Addresses'' section of this 
notice. The Agency will consider to the extent practicable comments 
received in the public docket after the closing date of the comment 
period.

    Issued on: May 20, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-13035 Filed 5-27-11; 8:45 am]
BILLING CODE 4910-EX-P