[Federal Register Volume 76, Number 157 (Monday, August 15, 2011)]
[Rules and Regulations]
[Pages 50433-50435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20663]


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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 of regulatory guidance.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) sought 
public comment on three issues related to the applicability of the 
Federal Motor Carrier Safety Regulations (FMCSRs) to operators of farm 
vehicles: first, the interpretation of interstate commerce as it 
applies to movement of farm products; second, whether farmers operating 
under share-cropping agreements are common or contract carriers; and 
third, whether FMCSA should issue new guidance on implements of 
husbandry. After considering comments from the public, FMCSA has 
determined that no further guidance is needed on interpreting 
interstate commerce and implements of husbandry. FMCSA is issuing 
guidance that farmers operating under share-cropping or similar 
arrangements are not common or contract carriers and, therefore, are 
eligible for the CDL exemption if a State elects to adopt the 
exemption.

DATES: August 15, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, Phone (202) 366-4325.

SUPPLEMENTARY INFORMATION: 

Legal Basis

    The Motor Carrier Act of 1935 (74, 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 (98, 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 (99, 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) (49 
U.S.C. 31311, 31314).
    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

    On May 31, 2011, FMCSA issued a notice seeking public comment on 
three issues related to the applicability of the Federal Motor Carrier 
Safety Regulations (FMCSRs) to operators of farm vehicles (76 FR 
31279). Recognizing that changes in regulatory guidance (if implemented 
by a State) could have an impact on an individual farmer, the Agency 
sought as much public involvement and comment as possible on these 
issues.
    It is worth repeating that neither the May 31 notice nor today's 
notice propose or proposed any rule change or new safety requirements. 
Instead, the Agency sought feedback from farm organizations, farmers, 
and the public on the agency's long-standing interpretations of 
existing rules, so it could then determine whether any adjustments were 
needed to improve understanding of the current safety regulations.
    First, the Agency sought comment on whether it needed to provide 
additional guidance or information to explain the distinction between 
intra- and interstate commerce in the agricultural industry. Second, 
the Agency asked whether it should distinguish between indirect and 
direct compensation in deciding whether a farm vehicle driver is 
eligible for the exception to the commercial driver's license (CDL) 
requirements in 49 CFR 383.3(d)(1). Third, the Agency asked for 
comments on how best to define implements of husbandry so that such 
equipment is exempted from safety regulations in a uniform, practical

[[Page 50434]]

manner. In response to requests, FMCSA extended the initial comment 
period from June 30, 2011, to August 1, 2011. FMCSA received about 
1,700 comments on the notice, including more than 155 from farm 
organizations and 13 from State governments.

Interstate Versus Intrastate Commerce

    The issue of what constitutes interstate commerce has been 
adjudicated many times over many decades, and FMCSA's interpretations 
are governed by the findings of the Federal courts. Although the 
various cases are heavily fact-specific, the general rule is set forth 
in the Agency's guidance to Q. 6 under 49 CFR 390.3, which is posted on 
our Web site:

    Interstate commerce is determined by the essential character of 
the movement, manifested by the shipper's fixed and persistent 
intent at the time of the 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.
Comments
    Many commenters misinterpreted FMCSA's request for input on whether 
it needed to provide additional guidance on interstate versus 
intrastate commerce. Commenters almost uniformly opposed any 
interpretation of interstate commerce that would consider movement of 
products from a farm to a grain elevator in the same state as 
interstate commerce. The commenters argued that the farmer who moves a 
crop to a local elevator and sells it has no control over its ultimate 
destination and no knowledge of that destination, which could change 
from sale to sale. The elevator mixes crops from multiple farmers and 
sells the mixed crops without the farmers' involvement. Some of the 
crop may move out of state, but in many cases, the crop is sold to 
local processors. In either case, the farmer has no way of knowing the 
destination. They also argued that the movement from farm to elevator 
is generally local--5 to 10 miles--on rural roads with little traffic. 
They stated that FMCSA has not identified any safety risk that would 
justify imposing interstate operating rules on these local, seasonal 
moves. The primary concern of commenters expressed by many farm 
organizations was that by designating these farm-to-elevator moves as 
interstate the farmers would have to obtain a CDL and comply with other 
operating rules. The commenters noted the cost of obtaining a CDL and a 
medical certificate as well as the issue that CDLs are only available 
to those 21 years old or older. Commenters stated that many farm 
vehicles are driven by younger family members.
FMCSA Response
    The Agency has concluded that new regulatory guidance concerning 
the distinction between interstate and intrastate commerce is not 
necessary. FMCSA believes that previously published guidance, such as 
that referenced in the May 31, 2011, notice, is useful and that 
attempting to address more scenarios in new regulatory guidance would 
not be helpful to the agricultural industry or enforcement officials. 
To the extent that novel fact-specific questions arise, the Agency will 
work with the parties involved to provide a clarification for the 
specific scenario. FMCSA notes that the farm exemption from the CDL 
rules is not linked to intrastate or interstate commerce. A State may 
exempt farmers from the CDL requirements if they operate in interstate 
commerce provided that they meet the other requirements of the 
exemption.

Contract Carriage

Comments
    Commenters opposed any interpretation of the rules that would make 
a tenant farmer a contract carrier. They stated that for those with 
share cropping agreements, which can be either formal or informal, the 
farmer compensates the landowner by paying a portion of the proceeds 
from the sale of the crop after the crop is delivered to the grain 
elevator. They argued that because the farmer owns the crop until it is 
delivered for sale, whether the farmer is compensated directly or 
indirectly for transporting the grain is irrelevant. The farmer should 
be considered in private transportation.
FMCSA Response
    FMCSA appreciates the information that it received on this issue 
and agrees with commenters that tenants should not be considered 
contract carriers. Since 1935, the Federal government has been required 
to regulate the safety, but not the commercial affairs, of carriers 
whose principal business is not transportation. This is usually called 
the ``primary business'' test (see 49 U.S.C. 13505). Section 
383.3(d)(1)(iii) was meant to deny the CDL exception to drivers of 
vehicles ``used in the operations of a common or contract motor 
carrier'' when transportation is the principal business of the carrier, 
a conclusion that follows from the use of terminology created by the 
Motor Carrier Act of 1935 to describe two branches of the for-hire 
truck and bus industry, i.e., common and contract carriage. The 
exclusion from the CDL exception of drivers for common and contract 
carriers was not meant to reach drivers working for a primary business 
other than transportation whose driving is within the scope of, and 
furthers, that primary non-transportation business. Trucking is a 
necessary adjunct of agricultural production, but it is by no means the 
purpose of farming. Section 383.3(d)(1)(iii) therefore denies the CDL 
exemption to drivers for commercial common or contract carriers, but 
not to drivers hauling both the farmer's and the landlord's crops under 
a crop share agreement, even if the sharecropper is specifically 
compensated for performing the transportation. In other words, the CDL 
exemption is equally available to (1) Farmers who own their land and 
haul their crops to market; (2) farmers who rent their land for cash 
and haul their crops to market; and (3) farmers who rent their land for 
a share of the crops and haul their own and the landlord's crops to 
market. These farmers continue to be eligible for the CDL exemption if 
a State elects to provide the exemption.

Implements of Husbandry

Comments
    Many commenters misinterpreted FMCSA's notice on implements of 
husbandry. FMCSA was seeking comment on whether it needed to issue 
additional interpretative guidance to clarify that implements of 
husbandry, such as tractors, cultivators, reapers, etc., were not 
considered CMVs even if they are occasionally driven on public roads. 
Many commenters, however, assumed that FMCSA intended to define this 
equipment as CMVs, which would expose the vehicles to different State 
requirements (higher registration fees, higher insurance requirements, 
etc.) and might require a CDL for the driver. They opposed any such 
extension of the CMV definition. Those commenters that addressed 
FMCSA's proposed guidance generally supported it, but made a number of 
suggestions for defining implements of husbandry based on varying State 
definitions and recommended restrictions that could be placed on these 
vehicles (e.g., speed limits, warning signs, distance traveled, etc.).
FMCSA Response
    As FMCSA stated in the notice, its goal was to ensure that 
implements of husbandry were not considered CMVs for its purposes. 
Based on the variety of

[[Page 50435]]

State definitions and the varying restrictions States impose (e.g., 
speed limits, signs, etc.), FMCSA has decided that uniform guidance 
would be difficult to draft and that further discussions of this issue 
are better left to case-by-case analysis.

Conclusion

    The FMCSA is sensitive to the critical role agriculture plays in 
our economy and farmers in our communities and it greatly appreciates 
the public comments to its May 31, 2011, notice. These comments have 
helped us better understand the complexity of farm lease arrangements 
and today's use of farm equipment on public roads.

    Issued on: August 10, 2011.
William A. Bronrott,
Deputy Administrator.
[FR Doc. 2011-20663 Filed 8-12-11; 8:45 am]
BILLING CODE 4910-EX-P