[Federal Register Volume 77, Number 190 (Monday, October 1, 2012)]
[Rules and Regulations]
[Pages 59840-59842]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24106]
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DEPARTMENT OF TRANSPORTATIONFederal Motor Carrier Safety Administration
49 CFR Chapter III
Statutory Amendments Affecting Transportation of Agricultural
Commodities and Farm Supplies
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notification of statutory exemptions.
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SUMMARY: FMCSA alerts motor carriers and enforcement officials of two
statutory exemptions included in the MAP-21 transportation
reauthorization legislation that are applicable to certain motor
carriers engaged in the transportation of agricultural commodities and
farm supplies. Section 32101 of MAP-21 provides a statutory exemption
from the hours-of-service regulations for certain carriers transporting
agricultural commodities and farm supplies and section 32934 provides a
statutory exemption from most of the Federal Motor Carrier Safety
Regulations for the operation of covered farm vehicles by farm and
ranch operators, their employees, and certain other specified
individuals under certain specific circumstances. The statutory
provisions are self-executing and take effect on October 1, 2012. This
notice is intended to ensure that enforcement officials and the motor
carriers are aware of the statutory provisions. The Agency will, at a
later date, conform the FMCSRs to the statutory provisions.
DATES: The legislative provisions are effective October 1, 2012.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas L. Yager, Chief, Driver and
Carrier Operations Division, Office of Bus and Truck Standards and
Operations; 1200 New Jersey Ave. SE., Washington, DC 20590, Telephone
202-366-4325, Email: MCPSD@dot.gov.
SUPPLEMENTARY INFORMATION:Background
On July 6, 2012, the President signed into law ``Moving Ahead for
Progress in the 21st Century Act'' (MAP-21) (Pub. L. 112-141, 126 Stat.
405). MAP-21 included two provisions applicable to the operation of
commercial motor vehicles (CMVs) for agricultural purposes. They are
section 32101(d), ``Transportation of Agricultural Commodities and Farm
Supplies,'' and section 32934, ``Exemptions from Requirements for
Covered Farm Vehicles.''
Section 32101(d) of MAP-21
Section 32101(d) of MAP-21 amends section 229(a)(1) of the Motor
Carrier Safety Improvement Act of 1999 [49 U.S.C. 31136 (note)] which
provides a statutory exemption from the Federal hours-of-service (HOS)
rules for commercial motor vehicle (CMV) drivers engaged in the
transportation of agricultural commodities and farm supplies.
FMCSA's previous guidance on its HOS regulations stated that the
NHS Act agricultural operations exemption applies to the transportation
of farm supplies from the local farm retailer to the ultimate consumer
within a 100 air-mile radius. FMCSA's interpretation, however, had not
extended the HOS exemption to deliveries from wholesalers located at
port or terminal facilities to either local farm retailers or farms.
(See Question 33, 49 CFR 395.1 on the Agency's Web site:
www.fmcsa.dot.gov.) Question 33 reads as follows:
Question 33: How is ``point of origin'' defined for the purpose of
Sec. 395.1(k)?
Guidance: The term ``point of origin'' is not used in the NHS
Designation Act; the statutory term is ``source of the [agricultural]
commodities.'' The exemption created by the Act applies to two types of
transportation. The first type is transportation from the source of the
agricultural commodity--where the product is grown or raised--to a
location within a 100 air-mile radius of the source. The second type is
transportation from a retail distribution point of the farm supply to a
location (farm or other location where the farm supply product would be
used) within a 100 air-mile radius of the retail distribution point.
The legislative history of the agricultural exemption indicates it
was intended to only apply to retail store deliveries. Thus, it is
clear Congress intended to limit this exemption to retail distributors
of farm supplies.
Second-stage movements, such as grain hauled from an elevator (or
sugar beets from a cold storage facility) to a processing plant, are
more likely to fall outside the exempt radius. Similarly, the exemption
does not apply to a wholesaler's transportation of an agricultural
chemical to a local cooperative because this is not a retail
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delivery to an ultimate consumer, even if it is within the 100 air-mile
radius.
In consideration of the new statutory exemption, FMCSA withdraws
the above guidance. And through the publication of this notice and
distribution of information to the enforcement community, the Agency
will ensure the full implementation of the MAP-21 statutory exemption
on October 1, 2012.
In addition, the Agency announces that its 2-year, limited
exemption from the Federal HOS regulations for certain carriers engaged
in the transportation of anhydrous ammonia, granted on October 6, 2010
(75 FR 61626), is no longer needed and will not be renewed. The 2-year
limited exemption covered the transportation of anhydrous ammonia from
any distribution point to a local farm retailer or the ultimate
consumer, and from a local farm retailer to the ultimate consumer, as
long as the transportation takes place within a 100 air-mile radius of
the retail or wholesale distribution point. The MAP-21 statutory
exemption addresses the needs of the carriers covered by the 2010
exemption notice.
Impact of Section 32101(d) on the States
The statutory amendment does not, in and of itself, require any
actions by the States, at this time. However, FMCSA requests that
States immediately take action to put into place policies and
procedures to provide the regulatory relief provided by section
32101(d) of MAP-21. The Agency will amend the FMCSRs to reflect the
language in section 32101(d) and the States will be required as a
condition of receiving Motor Carrier Safety Assistance Program (MCSAP)
funding, to adopt and enforce compatible safety regulations.
MCSAP is a Federal grant program that provides financial assistance
to States to reduce the number and severity of crashes and hazardous
materials incidents involving CMVs. The goal of the MCSAP is to reduce
CMV-involved crashes, fatalities, and injuries through consistent,
uniform, and effective CMV safety programs. The MCSAP rules (49 CFR
Part 350) include conditions for participation by States and local
jurisdictions and promote the adoption and uniform enforcement of
safety rules, regulations and standards compatible with the FMCSRs and
Federal Hazardous Materials Regulations (HMRs) for both interstate and
intrastate motor carriers and drivers.
States are required by 49 CFR 350.331 to amend their laws and
regulations within three years after the effective date of any newly
enacted regulation or amendment to the FMCSRs or HMRs. While this
notice is not a rulemaking action amending the FMCSRs, FMCSA requests
that States immediately take action to put into place policies and
procedures to provide the regulatory relief provided by MAP-21, and to
follow up with the appropriate amendments to their laws and regulations
to reflect the statutory exemption in section 32101(d). FMCSA will
issue, at a later date, a final rule to amend the FMCSRs to reflect
this MAP-21 provision. The effective date of that rule would begin the
three-year period during which the States must adopt compatible
regulations to remain eligible for MCSAP funding.
Section 32934 of MAP-21
Section 32934 of MAP-21 provides a statutory exemption from most of
the FMCSRs, including those pertaining to commercial driver's licenses
(CDL) and driver physical qualifications (medical) requirements, for
the operation of covered farm vehicles by farm and ranch operators,
their employees, and certain other specified individuals under specific
circumstances.
The Agency notes the scope of the statutory exemption provided by
section 32934 is broad and its applicability may be difficult to
determine. The Agency will work with the enforcement community and
motor carriers to provide clarification, as needed, to ensure the
statutory exemption is implemented as intended by Congress. The statue
provides relief from:
49 CFR Part 383: Commercial Driver's License Standards;
Requirements and Penalties
49 CFR Part 382: Controlled Substances and Alcohol Use and
Testing
49 CFR Part 391, Subpart E: Physical Qualifications and
Examinations
49 CFR Part 395: Hours of Service
49 CFR Part 396: Inspection, Repair and Maintenance
Which CMVs are considered covered farm vehicles?
With regard to covered farm vehicles, the statute lists several
criteria, including a requirement that the vehicles be ``equipped with
a special license plate or other designation by the State in which the
vehicle is registered to allow for identification of the vehicle as a
farm vehicle by law enforcement personnel.'' This statutory provision
explicitly excludes farm vehicles transporting hazardous materials in
quantities requiring placards. Therefore, the absence of a ``special
license plate or other designation by the State in which the vehicle is
registered,'' or the presence of hazardous materials in a quantity
requiring placards are straightforward indicators that the farm vehicle
in question is not covered by the statutory exemption. The other
criteria require more in-depth consideration by motor carriers and
enforcement officials to determine the applicability of the exemption.
The other criteria for identifying a ``covered farm vehicle'' are
located at section 32934 of MAP-21.
The statutory definition of covered farm vehicles may include
vehicles described above that are (1) operated pursuant to a crop share
farm lease agreement; (2) owned by a tenant with respect to that
agreement; and (3) transporting the landlord's portion of the crops
under that agreement. However, section 32934 is not applicable to the
operation of farm vehicles by for-hire motor carriers.
Relationship Between Section 32934 of MAP-21 and 49 CFR 383.3
With regard to the CDL requirements, FMCSA notes that certain
drivers in the agricultural industry who are not covered by the MAP-21
provision, based on the statutory definition of ``covered farm
vehicle,'' may be covered by an existing regulatory exception from the
CDL requirements. As the Agency concluded in its August 15, 2011 (76 FR
50433) notice concerning the applicability of the FMCSRs to operators
of certain farm vehicles, Under 49 CFR 383.3(d), the States are
allowed, at their discretion, to provide relief from the CDL
requirements under certain specific circumstances. The regulatory
relief under section 383.3(d)(1)(iii) excludes drivers working for
commercial common or contract carriers. However, it covers drivers
transporting 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, as the Agency made clear in its
notice of August 15, 2011 (76 FR 50433). 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.
Impact of Section 32934 on the States
The section 32934 provision of MAP-21 includes language concerning
the impact of the statutory exemption on the States' eligibility for
Federal
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transportation funding to ensure that States are not penalized for
providing regulatory relief consistent with the statutory exemption.
The statute states that ``Federal transportation funding to a State may
not be terminated, limited, or otherwise interfered with as a result of
the State exempting a covered farm vehicle, including the individual
operating that vehicle, from any State requirement relating to the
operation of that vehicle.''
In its simplest terms, the statute makes it clear that States
adopting compatible regulations concerning motor carriers and drivers
operating covered farm vehicles in intrastate commerce must not be
penalized through the withholding of Federal transportation funding,
specifically grants associated with the FMCSA's (MCSAP) and highway
construction grants that could be withheld from States for substantial
non-compliance with the CDL.
As indicated previously in this notice, States are required by 49
CFR 350.331 to amend their laws and regulations within three years
after the effective date of any newly enacted regulation or amendment
to the FMCSRs or HMRs. While this notice is not a rulemaking action
amending the FMCSRs, FMCSA requests that States immediately take action
to put into place policies and procedures to provide the regulatory
relief provided by MAP-21, and to follow-up with the appropriate
amendments to their laws and regulations to reflect the statutory
exemption in section 32934. FMCSA will issue, at a later date, a final
rule to amend the FMCSRs to reflect this MAP-21 provision. The
effective date of that rule would begin the three-year period during
which the States must adopt compatible regulations to remain eligible
for MCSAP funding.
As far as the impact of section 32934 on States' CDL programs, the
statute makes clear that the U.S. Department of Transportation must not
withhold Federal-aid highway funds from a State because the State
provided exceptions or exemptions from its CDL requirements when that
relief is compatible with the language in MAP-21. Therefore, such
exceptions or exemptions will not be considered substantial non-
compliance, and section 384.301, Withholding of funds based on
noncompliance, would not be applicable in these circumstances.
Future Action
The Agency intends to to conform the FMCSRs to the statutory
provisions. This notice is intended to ensure that all interested
parties are aware of these self-executing provisions of MAP-21 in the
interim.
Issued on: September 26, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-24106 Filed 9-27-12; 4:15 pm]
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