Statutory Amendments Affecting Transportation of Agricultural Commodities and Farm Supplies

Anne S. Ferro
Federal Motor Carrier Safety Administration
October 1, 2012

[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 TRANSPORTATION

Federal 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

[[Page 59841]]

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

[[Page 59842]]

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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