[Federal Register Volume 78, Number 50 (Thursday, March 14, 2013)]
[Rules and Regulations]
[Pages 16189-16195]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05897]



[[Page 16189]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 382, 383, 390, 391, 395, 396

[Docket No. FMCSA-2012-0378]
RIN 2126-AB58


Transportation of Agricultural Commodities

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: FMCSA promulgates the regulatory exemptions for the 
``transportation of agricultural commodities and farm supplies'' and 
for ``covered farm vehicles'' and their drivers enacted by sections 
32101(d) and 32934, respectively, of the Moving Ahead for Progress in 
the 21st Century Act (MAP-21). Although prior statutory exemptions 
involving agriculture are unchanged, some of these exemptions overlap 
with MAP-21 provisions. In these cases, regulated entities will be able 
to choose the exemption, or set of exemptions, under which to operate. 
They must, however, comply fully with the terms of each exemption they 
claim.

DATES: Effective date: This rule is effective March 14, 2013.
    Compliance dates: The Motor Carrier Safety Assistance Program 
(MCSAP) requires participating States to adopt regulations compatible 
with 49 CFR Parts 390-397 to remain eligible for MCSAP grants [49 CFR 
350.201(a)]. Section 350.331(d) requires participating States to adopt 
compatible regulations as soon as practicable after the effective date 
of any newly adopted or amended FMCSA regulation, but no later than 3 
years after that date. The amendments to Parts 390, 391, 395, and 396 
made by this rule must therefore be adopted by March 14, 2016.
    Although the Commercial Driver's License (CDL) program in 49 CFR 
part 383 is not covered by the MCSAP regulations, the States are 
required by 49 U.S.C. 31314 (as implemented by 49 CFR part 384) to 
comply with the requirements of Part 383 in order to avoid the 
withholding of certain Federal-aid highway funds. Consistent with 
FMCSA's previous practice, States must adopt the amendment made by this 
rule by March 14, 2016.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Driver and Carrier 
Operations, (202) 366-4325 or MCPSD@dot.gov, Federal Motor Carrier 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001. Office hours are from 
7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION: 

Table of Contents

Executive Summary
Acronyms and Abbreviations
Legal Basis for the Rulemaking
Background
Current Rules and MAP-21 Exemptions: Comparison and Discussion
Section-by-Section Analysis of the Final Rule
Regulatory Analyses

Executive Summary

Purpose of the Rule and Summary of Major Provision

    This rule promulgates Congressionally-mandated exemptions from the 
Federal Motor Carrier Safety Regulations (FMCSRs) for certain 
agricultural operations.
    Section 32101(d) of MAP-21, implemented as 49 CFR 395.1(k), expands 
an hours-of-service (HOS) exemption for farm-related operations during 
the planting and harvesting season (as defined by each State) that has 
been in effect since 1995. Under the new provision, drivers 
transporting agricultural commodities within a 150 (instead of 100) 
air-mile radius of the farm or source of the commodities are exempt 
from the HOS rules. Also exempt are retailers delivering farm supplies 
for agricultural purposes within a 150 (instead of 100) air-mile radius 
of their distribution point to a farm or other place where the supplies 
will be used, and wholesalers delivering farm supplies within the same 
radius to a retailer, farm, or place where they will be used.
    Section 32934 of MAP-21 created a new set of exemptions for 
``covered farm vehicles'' (CFVs) and their drivers. The definition of a 
CFV is discussed in the Background section below. Briefly, CFVs and 
their drivers are exempt from the commercial driver's license (CDL) and 
drug and alcohol testing regulations; the medical qualification 
requirements; the hours of service limits; and vehicle inspection, 
repair and maintenance rules. Vehicles transporting placardable 
quantities of hazardous materials are not eligible for these 
exemptions. The States will have to adopt these exemptions into their 
own laws and regulations within 3 years in order to avoid the 
withholding of certain Federal grant funds.

Costs and Benefits

    The benefits of the rule will take the form of reduced expenditures 
in the agricultural sector. Neither the benefits nor the costs of the 
exemptions can be estimated at this time. There will also be costs 
associated with re-training Federal and State enforcement personnel on 
the sometimes intricate details of the exemptions.

Acronyms and Abbreviations

CDL Commercial Driver's License
CFV Commercial Farm Vehicle
CMV Commercial Motor Vehicle
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
HM Hazardous Materials
HOS Hours of Service
MAP-21 Moving Ahead for Progress in the 21st Century Act
MCSAP Motor Carrier Safety Assistance Program
NHS National Highway System

Legal Basis for the Rulemaking

    This rule is based on sections 32101(d) and 32934 of the Moving 
Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 
126 Stat. 405, 778, 830, July 6, 2012).
    Section 32101(d) expanded both the scope and the geographical reach 
of an hours-of-service (HOS) exemption enacted by Sec. 345(a)(1) of the 
National Highway System (NHS) Designation Act of 1995 [Pub. L. 104-59, 
109 Stat. 568, 613, Nov. 28, 1995] and redesignated as Sec. 229 of the 
Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Pub. L. 106-159, 
113 Stat. 1748, 1773, Dec. 9, 1999] by Sec. 4115 of the Safe 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) [Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-
1744, Aug. 10, 2005]. As so redesignated, section 229 of MCSIA was 
amended by sections 4130-4132 of SAFETEA-LU [119 Stat. 1743-1744].
    Section 345(a)(1) of the NHS Designation Act created an exemption 
from the HOS regulations for drivers transporting agricultural 
commodities or farm supplies for agricultural purposes within a 100 
air-mile radius of the source of the commodities or the distribution 
point for the farm supplies, provided the transportation occurred 
during the planting and harvesting seasons, as determined by each 
State. Pursuant to the legislative history of the provision, FMCSA 
interpreted Sec. 345(a)(1) as exempting only drivers transporting farm 
supplies from a farm retailer to the ultimate consumer, typically a 
farmer.
    Section 32101(d) supersedes that interpretation by expanding the 
exemption to include drivers

[[Page 16190]]

transporting farm supplies from a wholesale or retail distribution 
point to a farm or other location where the supplies are intended to be 
used, and from a wholesale distribution point to a retail distribution 
point. It also extended the geographical radius of the exemption from 
100 to 150 air-miles.
    Section 32934 of MAP-21 created a series of exemptions from the 
Federal Motor Carrier Safety Regulations (FMCSRs) for ``covered farm 
vehicles'' (CFVs), as defined therein and explained in the Background 
section below. Briefly, a CFV and its driver are exempt from any 
requirement relating to (1) commercial driver's licenses (CDLs) or drug 
and alcohol testing established under 49 U.S.C. chapter 313; (2) 
medical certificates established under 49 U.S.C. chapter 311, 
subchapter III, or 49 U.S.C. chapter 313; and (3) HOS and vehicle 
inspection, repair, and maintenance established under 49 U.S.C. chapter 
311, subchapter III, or 49 U.S.C. chapter 315.
    FMCSA must consider the ``costs and benefits'' of a rule before 
adopting it (49 U.S.C. 31136(c)(2)(A) and 31502(d)).
    This rule simply adopts jurisdictional limitations enacted by 
Congress, and FMCSA therefore finds ``good cause'' under 5 U.S.C. 553 
to promulgate this rule as a final rule because prior notice and 
comment would be ``unnecessary'' under the circumstances. The Agency 
also finds ``good cause'' to make the rule effective upon publication 
because it ``relieves a restriction'' [49 U.S.C. 553(d)(1)].

Background

    FMCSA and its predecessor agencies exercised their discretion to 
adopt a number of exemptions related to agricultural operations. 
Congress has also enacted statutory exemptions concerning agricultural 
operations. To understand the impact of the amendments promulgated in 
this final rule, the exemptions already in effect--both discretionary 
and statutory--must first be described. We will then compare the MAP-21 
provisions to the current exemptions.
    To be eligible for MCSAP grants, participating States agree to 
adopt as State law motor carrier safety statutes and regulations that 
are ``compatible'' with FMCSA's regulations. For State regulations 
applicable to interstate commerce, ``compatible'' means identical to or 
having the same effect as the Federal standards; for regulations 
applicable to intrastate commerce, ``compatibility'' includes limited 
variation from Federal standards (as specified in 49 CFR 350.341). To 
retain MCSAP funding, participating States are required to adopt not 
only Federal regulatory requirements but also Federal exemptions, both 
discretionary and statutory. Similar rules apply to the CDL 
regulations, as explained in the DATES section above. States 
participating in MCSAP and the CDL program must adopt all of the 
exemptions promulgated today within 3 years of the effective date of 
this rule, or they will be ineligible to receive certain Federal funds.

Current Discretionary Exemptions

Part 383
    The regulations in 49 CFR Part 383 (Commercial Driver's License 
Standards; Requirements and Penalties) include a number of exemptions. 
The applicability provisions in Sec.  383.3 allow, but do not require, 
the States to exempt from the mandate to obtain a CDL, operators of a 
farm vehicle that would otherwise qualify as a ``commercial motor 
vehicle'' requiring a CDL, provided the farm vehicle is (1) controlled 
and operated by a farmer, including operation by employees or family 
members; (2) used to transport either agricultural products, farm 
machinery, farm supplies, or both, 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 [49 CFR 
383.3(d)(1)]. Because the term ``farmer'' is not defined in part 383, 
the definition in 49 CFR 390.5 applies:\1\ ``Farmer'' means any person 
who operates a farm or is directly involved in the cultivation of land, 
crops, or livestock which (1) are owned by that person or (2) are under 
the direct control of that person. Similarly, because the term 
``operators of a farm vehicle'' used in Sec.  383.3(d)(1) is not 
defined in Sec.  383.5, the nearest equivalent term--``farm vehicle 
driver,'' as defined in Sec.  390.5--is applicable. A ``farm vehicle 
driver'' is a person who drives only a commercial motor vehicle that 
is--(1) controlled and operated by a farmer as a private motor carrier 
of property; (2) being used to transport either (a) agricultural 
products or (b) farm machinery, farm supplies, or both, to or from a 
farm; (3) not being used in the operation of a for-hire motor carrier; 
(4) not carrying hazardous materials of a type or quantity that 
requires the commercial motor vehicle to be placarded in accordance 
with Sec.  177.823 of title 49, Code of Federal Regulations, and (5) 
being used within 150 air-miles of the farmer's farm [49 CFR 390.5].
---------------------------------------------------------------------------

    \1\ Pursuant to the introductory clause of Sec.  390.5, the 
definitions in that section apply ``Unless specifically defined 
elsewhere in this subchapter'' (i.e., subchapter B of chapter III of 
subtitle B of title 49, Code of Federal regulations, which covers 49 
CFR Parts 350-399). Because ``farmer'' is not defined in Part 383, 
the definition of that term in Sec.  390.5 is therefore applicable.
---------------------------------------------------------------------------

    It is important to note that, although the exemption authorized by 
Sec.  383.3(d)(1) and the definition of a ``farm vehicle driver'' in 
Sec.  390.5 are very similar, they are not identical. While Sec.  
383.3(d)(1) makes no mention of placardable quantities of hazardous 
materials (HM)--and thus appears to allow agricultural drivers 
transporting HM an exemption from the CDL requirement--the definition 
of a ``farm vehicle driver'' in Sec.  390.5 excludes drivers who meet 
the other 4 elements of that definition if they are carrying 
placardable quantities of HM. In other words, ``operators of a farm 
vehicle'' under Sec.  383.3(d)(1), whom FMCSA treats as equivalent to 
``farm vehicle drivers'' under Sec.  390.5, are not eligible for the 
CDL exemption if they transport placardable quantities of HM.
    A driver who is not required to hold a CDL as a result of Sec.  
383.3(d)(1) is also exempt from the FMCSA drug and alcohol testing 
regulations [see 49 CFR 382.103(a)(1)].
    Section 383.3(e) allows Alaska to issue restricted CDLs to 
applicants who do not comply with the test procedures in Subpart H of 
Part 383. This partial exemption is utilized by few, if any, drivers 
for agricultural operations.
    Section 383.3(f) allows States, under certain conditions, to issue 
restricted CDLs to employees of 4 farm-related service industries, 
specifically (1) agri-chemical businesses; (2) custom harvesters; (3) 
farm retail outlets and suppliers; and (4) livestock feeders.
Part 391
    The driver qualification rules in 49 CFR part 391 (Qualifications 
of Drivers and Longer Combination Vehicle (LCV) Driver Instructors) 
also include discretionary exemptions.
    Section 391.2 sets forth 3 agriculture-related exemptions. (It 
should be noted, however, that drivers otherwise exempt under Sec.  
391.2 remain subject to the rules in Sec.  391.15(e) dealing with 
disqualification for violating a prohibition on texting while driving a 
CMV.)
    Section 391.2(a) exempts from the rules in Part 391 the driver of a 
CMV controlled and operated by a person engaged in custom harvesting, 
provided the CMV is used to transport (1) farm machinery, supplies, or 
both, to or from a farm for custom-harvesting operations on a farm; or 
(2) custom-harvested crops to storage or market.
    Section 391.2(b) exempts from the rules in Part 391 the driver of a 
CMV controlled and operated by a beekeeper engaged in the seasonal 
transportation

[[Page 16191]]

of bees. The exemption does not apply to a beekeeper's transportation 
of honey.
    Section 391.2(c) exempts from the rules in Part 391 a ``farm 
vehicle driver,'' as defined in Sec.  390.5, who drives a straight 
truck (but not an articulated vehicle). As indicated above, a ``farm 
vehicle driver'' is a person who drives only a CMV that is--(1) 
controlled and operated by a farmer as a private motor carrier of 
property; (2) being used to transport either (a) agricultural products 
or (b) farm machinery, farm supplies, or both, to or from a farm; (3) 
not being used in the operation of a for-hire motor carrier; (4) not 
carrying hazardous materials of a type or quantity that requires the 
commercial motor vehicle to be placarded in accordance with Sec.  
177.823 of title 49, Code of Federal Regulations, and (5) being used 
within 150 air-miles of the farmer's farm.
    Although the broad exemption in Sec.  391.2(c) for drivers of 
straight trucks is not applicable to drivers of articulated vehicles, 
Sec.  391.2(c) cross-references Sec.  391.67, which sets forth a 
shorter list of exemptions available to farm vehicle drivers of 
articulated CMVs. Section 391.67 exempts a ``farm vehicle driver,'' as 
defined in Sec.  390.5, who is also at least 18 years of age and drives 
an articulated CMV, from certain general qualification standards in 
Sec.  391.11, specifically Sec.  391.11(b)(1), (6), and (8); this 
driver is also exempt from Subparts C, D, and F of Part 391.
Part 395
    The HOS regulations in 49 CFR Part 395 include a variety of 
exceptions that could apply to agricultural operations, though the 
provisions described below were not intended specifically for that 
purpose.
    Section 395.1(e)(1) allows drivers operating within a 100 air-mile 
radius of their normal work-reporting location to dispense with normal 
records of duty status (RODS, often called logs), provided they meet 
certain other requirements.
    Section 395.1(e)(2) allows drivers operating vehicles that do not 
require a CDL within a 150 air-mile radius of their normal work 
reporting location to drive within a 16 hour window after coming on 
duty (instead of the normal 14-hour driving window) 2 days per week, 
providing other limits and recordkeeping requirements are met.
    Section 395.1(h) includes special HOS limits for drivers operating 
in Alaska.
    Section 395.1(i) includes special HOS exemptions for drivers 
operating in Hawaii.

Current Statutory Exemptions

    NHS Designation Act. Section 345(a)(1) of the NHS Designation Act 
provided that the regulations regarding maximum driving and on-duty 
time prescribed by the Department of Transportation under 49 U.S.C. 
31136 and 31502 do not apply to drivers transporting agricultural 
commodities or farm supplies for agricultural purposes in a State if 
such transportation is limited to an area within a 100 air mile radius 
of the source of the commodities or the distribution point for the farm 
supplies and the transportation takes place during the planting and 
harvesting seasons within that State, as determined by the State. The 
terms ``agricultural commodities'' and ``farm supplies for agricultural 
purposes'' were defined by section 4130(c) of SAFETEA-LU and enacted as 
section 229(e) of MCSIA.
    The agricultural exemption from the hours-of-service (HOS) 
regulations is codified in 49 CFR 395.1(k) and the statutory 
definitions of ``agricultural commodities'' and ``farm supplies for 
agricultural purposes'' are codified in Sec.  395.2.
    MAP-21. MAP-21 includes two different provisions applicable to 
agricultural operations. Section 32101(d) enacted amendments to the HOS 
exemption originally adopted in the NHS Designation Act, while Sec. 
32934 promulgated a set of exemptions that covered many provisions of 
the FMCSRs.
    Section 32101(d). Section 32101(d) amended the NHS Designation Act 
exemption in two ways. First, it extended the geographical reach of the 
exemption from 100 to 150 air-miles of the source of the agricultural 
commodities or the distribution point of farm supplies for agricultural 
purposes. Second, it extended the exemption to wholesalers of farm 
supplies. As amended, the 150 air-mile radius is now measured from a 
wholesale to a retail distribution point, or from a wholesale or retail 
distribution point to a farm or other place where the supplies are 
intended to be used.
    Section 32934. The exemptions created by Sec. 32934 are available 
only to ``covered farm vehicles'' (CFVs) and their operators. The CFV 
definition is complex, and the resulting exemptions sometimes overlap 
or conflict with previous exemptions. The inconsistencies will be 
discussed below.
    In order to make the implementing regulations more readable, FMCSA 
has rephrased them. The statutory definition of a ``covered farm 
vehicle'' is provided at Sec. 32934(c) of MAP-21.
    A ``covered farm vehicle'' (CFV), as defined in Sec. 32934, is a 
straight truck or articulated vehicle (e.g., a large pickup, a truck 
pulling a trailer, sometimes a standard tractor semitrailer 
combination) registered in a State that is used by the owner or 
operator of a farm or ranch (or an employee or family member of a farm 
or ranch owner or operator) to transport agricultural commodities, 
livestock, machinery or supplies, provided the truck has a license 
plate or other designation issued by the State of registration that 
allows law enforcement personnel to identify it as a farm vehicle. 
Although a CFV may not be used in for-hire motor carrier operations, a 
share-cropper's use of a vehicle to transport the landlord's share of 
the crops may not be treated as a for-hire operation. If the CFV has a 
gross vehicle weight (GVW) or gross vehicle weight rating (GVWR), 
whichever is greater, of 26,001 pounds or less, it may take advantage 
of the CFV exemption described below while operating anywhere in the 
United States. A CFV with a GVW or GVWR, whichever is greater, above 
26,001 pounds, may travel anywhere in the State of registration or 
across State borders within 150 air miles of the home farm or ranch--
but the vehicle would lose its status as a CFV and the corresponding 
exemptions if it exceeded these geographical limits. In large States 
like Texas or California, the operator of a CFV with a GVW or GVWR 
above 26,001 pounds will be able to travel much more than 150 air-miles 
within the State. However, if the CFV crosses a State line, its exempt 
operations under this MAP-21 provision are limited to a 150 air-mile 
radius from the home farm or ranch.
    While Sec. 32934 identifies the Federal rules from which CFVs and 
their drivers are exempt, it does so in statutory terms that would be 
unfamiliar to most drivers and motor carriers, and difficult to use for 
compliance or enforcement. FMCSA has therefore chosen to promulgate the 
regulatory equivalents of the statutory terms.

Current Rules and MAP-21 Exemptions: Comparison and Discussion

Part 383

    The option granted the States in 49 CFR 383.3(d)(1) to exempt 
certain operators of a farm vehicle from the CDL and drug and alcohol 
testing regulations is very similar, but not identical, to the CDL 
exemption created by MAP-21. While the exemption in Sec.  383.3(d)(1) 
is available to the operator of a farm vehicle controlled and operated 
by a

[[Page 16192]]

farmer, the CFV definition includes a ranch owner. Similarly, Sec.  
383.3(d)(1) is limited to farmers transporting agricultural products, 
farm machinery or farm supplies, while the CFV definition also includes 
livestock. The exemption allowed by Sec.  383.3(d)(1), although 
narrower than the MAP-21 exemption, is currently in effect in most (if 
not all) States and immediately available to designated farmers. 
Removing that exemption and requiring States to adopt the new exemption 
would include a 3 year implementation period during which there may be 
periods that farmers are not, in State statutes, provided any 
exemption. FMCSA is therefore retaining Sec.  383.3(d)(1) at this time.
    The restricted CDLs allowed in Alaska [Sec.  383.3(e)] and for 
certain farm-related service industries [Sec.  383.3(f)] have been 
partially overtaken by MAP-21. Drivers of CFVs in Alaska and livestock 
feeders anywhere who meet the conditions set forth in the definition of 
a CFV in 49 CFR 390.5 would be completely exempt from the CDL 
requirement--and thus from drug and alcohol testing, which is otherwise 
applicable to these limited exemptions in Part 383. However, drivers 
for agri-chemical businesses, custom harvesters, and farm retail 
outlets and suppliers would not qualify for the CFV exemptions because 
drivers of CFVs, by definition, must be farm owners or operators, or 
their employees or family members. Sections 383.3(e) and (f) are being 
retained because they remain available to drivers of vehicles that do 
not qualify as CFVs.

Part 391

    Section 391.2(a), which provides an exception from Part 391 for 
custom harvesters, is also being retained because those operations do 
not meet the MAP-21 definition of a CFV, particularly the requirement 
that the vehicle be operated by the owner or operator of a farm or 
ranch. Custom harvesters move from one farm to another to harvest grain 
but are not the owner or operator of a particular farm. In any case, 
Sec.  391.2(a) is broader than Sec. 32934, which provides an exemption 
only from Subpart E (Physical Qualifications and Examinations) of Part 
391, not from all of Part 391.
    Section 391.2(b), which provides an exception from Part 391 for a 
beekeeper using a CMV for the seasonal transportation of bees, is also 
retained. Like custom harvesters, beekeepers do not meet the definition 
of a CFV because they rarely operate a farm or ranch; they typically 
place beehives on marginal farm or ranch land owned or operated by 
someone else. Section 391.2(b) also provides an exception, not just 
from Subpart E of Part 391, but from the entire Part.
    Section 391.2(c) provides an exception from all of Part 391, apart 
from the rules on texting, for a ``farm vehicle driver'' (as defined in 
Sec.  390.5) of a straight truck. On the other hand, Sec. 32934(a)(3) 
of MAP-21 exempts CFV drivers only from ``any requirement relating to 
medical certificates,'' which corresponds to Subpart E of Part 391. 
Section 391.2(c) is substantially broader than Sec. 32934 and is 
therefore being retained. Many ``farm vehicle drivers'' of straight 
trucks could qualify as CFV drivers, and vice versa, but the two 
provisions are not identical. For example, drivers of articulated CFVs 
or CFVs operating beyond a radius of 150 air-miles from the home farm 
or ranch would not qualify for the exemption in Sec.  391.2(c) because 
only straight trucks are eligible and then only when used within 150 
air-miles of the farmer's farm.
    Section 391.2(c) also refers to Sec.  391.67, which provides a more 
limited, but still extensive, set of exceptions for ``farm vehicle 
drivers'' of articulated vehicles. Under Sec.  391.67, a ``farm vehicle 
driver'' who is at least 18 years old and drives an articulated CMV is 
not subject to Subparts C, D, and F of Part 391. Subpart C covers 
employment applications (Sec.  391.21), investigations of drivers' 
safety performance history for the prior 3 years (Sec.  391.23), the 
annual review of a driver's record with the state driver licensing 
agency (Sec.  391.25), and the requirement for drivers to submit 
annually, and for carriers to review, a list of all traffic convictions 
during the preceding year (Sec.  391.27). Subpart D requires motor 
carriers to subject newly-hired drivers to road tests (Sec.  391.31), 
though certain equivalents are also acceptable (Sec.  391.33). Subpart 
F requires motor carriers to maintain a qualification file on each 
driver it employs (Sec.  391.51) as well as the records relating to its 
safety performance history investigations undertaken pursuant to Sec.  
391.23 (Sec.  391.53). Any motor carrier that uses an instructor to 
train longer combination vehicle (LCV) drivers must maintain a 
qualification file on each instructor (Sec.  391.55). Finally, Sec.  
391.67 excepts covered farm vehicle drivers from Sec.  391.11(b)(1), 
requiring them to be at least 21 years old (Sec.  391.67(a)). While 
MAP-21 exempts the driver of a CFV from ``any requirement relating to 
medical certificates'' [Sec. 32934(a)(3)], which corresponds to Subpart 
E of Part 391, Sec.  391.67 excepts farm vehicle drivers of articulated 
vehicles from many requirements except those relating to medical 
qualifications. Section 391.67 is thus quite different from the CFV 
exemption. Determining the applicability of these exceptions and 
exemptions will require a careful factual evaluation of the operations 
in question.

Part 395

    Sections 395.1(e)(1) and (2) are currently available to many kinds 
of commercial motor vehicle drivers. Some of them may be farm or ranch 
operators--one of the elements in the definition of a CFV--but many are 
drivers for general trucking operations that are not eligible for the 
CFV exemption.
    Drivers in Alaska and Hawaii who are currently operating under 
Sec.  395.1(h) and (i) may continue to do so, but some of them may now 
be eligible for the MAP-21 exemptions.

Section-by-Section Description of Final Rule

    Part 382 is amended by adding ``covered farm vehicle'' drivers to 
the list of exceptions from the drug and alcohol testing requirements 
in Sec.  382.103(d). This amendment has preemptive effect pursuant to 
49 U.S.C. 31306(g), which provides that ``[a] State or local government 
may not prescribe or continue in effect a law, regulation, standard, or 
order that is inconsistent with the regulations prescribed under this 
section. Although States must comply with this rule, the change to Part 
382 is self-executing in the sense that a person exempt from the 
requirement to obtain a CDL, as provided by this rule, is also exempt 
from drug and alcohol testing, since testing is required only for CDL 
holders.
    Part 383 is amended by adding paragraph (h) to Sec.  383.3 
explaining that the CDL requirements do not apply to a CFV driver.
    Part 390 is amended by adding the definition of a ``covered farm 
vehicle'' to the list of definitions in Sec.  390.5. The exemptions for 
``covered farm vehicles'' and their drivers are codified as Sec.  
390.39(a). Section 390.39(b)(1) explains that MCSAP funds may not be 
withheld merely because a State exempts CFVs from State requirements 
relating to the operation of that vehicle. Section 390.39(b)(2) 
explains that CFVs transporting placardable quantities of hazardous 
materials (HM) are not eligible for the exemptions in Sec.  390.39(a). 
This provision is based on FMCSA's interpretation of Sec. 32934(b)(2) 
of MAP-21. As promulgated by Sec.  390.39(b)(1) of this rule, Sec. 
32934(b)(1) of MAP-21 clearly prohibits the withholding of MCSAP funds 
from

[[Page 16193]]

States that exempt CFVs ``from any State requirement relating to the 
operation of that vehicle'' (emphasis added). However, because Sec. 
32934(b)(2) makes Sec. 32934(b)(1) inapplicable to CFVs transporting 
placardable quantities of HM, it thus authorizes FMCSA to withhold 
MCSAP funds from States that exempt such CFVs ``from any State 
requirement relating to the operation of that vehicle,'' including the 
exemptions otherwise available to CFVs under Sec. 32934(a).
    Part 391 is amended by adding paragraph (d) to the general 
exceptions in Sec.  391.2. Paragraph (d) describes the exemptions 
applicable to drivers of ``covered farm vehicles.''
    Part 395 is amended by revising the provision on ``agricultural 
operations'' in Sec.  395.1(k) to include the changes made by Sec. 
32101(d) and by adding new Sec.  395.1(s) to exempt drivers of 
``covered farm vehicles'' from the HOS regulations.
    Part 396 is amended by adding paragraph (c) to Sec.  396.1, Scope, 
to exempt drivers of ``covered farm vehicles'' from the regulations on 
inspection, repair, and maintenance.

Regulatory Analyses

Regulatory Planning and Review

    FMCSA has determined that this action is not a ``significant 
regulatory action'' under Executive Order 12866, as supplemented by 
Executive Order 13563 (76 FR 3821, January 18, 2011), and DOT 
regulatory policies and procedures (44 FR 1103, February 26, 1979). 
Neither the benefits nor the costs of this rule can be reliably 
estimated. The benefits consist of reductions in the expenditures that 
parts of the agricultural sector of the economy would otherwise incur 
in order to comply with regulatory requirements from which MAP-21 
provides exemptions. Both the current costs of those regulatory 
requirements and the value of the exemptions are unknown. In fact, the 
number of drivers who will qualify for the exemptions is itself 
unknown. Neither the benefits nor the costs of the exemptions can be 
estimated at this time. However, the benefits of the rule will take the 
form of reduced expenditures in the agricultural sector and there will 
be some costs associated with re-training Federal and State enforcement 
personnel on the sometimes intricate details of the exemptions.
    Nonetheless, the Agency does not believe that the economic costs of 
the rule would exceed the $100 million annually, and Congressional or 
public interest in the rule is likely to focus on demands for its 
immediate publication so that the exemptions can be utilized. This rule 
has not been reviewed by the Office of Management and Budget (OMB).

Regulatory Flexibility Act

    The requirements of the Regulatory Flexibility Act (RFA) do not 
apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt 
a rule without prior notice and comment. Because this rule promulgates 
jurisdictional limitations enacted by Congress, as explained in the 
Legal Basis section above, FMCSA has determined that it has good cause 
to adopt the rule without notice and comment. An RFA analysis is 
therefore not required. This final rule also complies with the 
President's memorandum of January 18, 2011, entitled ``Regulatory 
Flexibility, Small Business, and Job Creation'' (76 FR 3827).

Federalism (Executive Order 13132)

    A rule has federalism implications if it has a substantial direct 
effect on State or local governments and would either preempt State law 
or impose a substantial direct cost of compliance on the States. FMCSA 
analyzed this rule under E.O. 13132 and has determined that it has no 
federalism implications.

Unfunded Mandates Reform Act of 1995

    This rule does not impose an unfunded Federal mandate, as defined 
by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), 
that will result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $143.1 
million (which is the value of $100 million in 2010 after adjusting for 
inflation) or more in any 1 year.

Executive Order 12988 (Civil Justice Reform)

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA analyzed this action under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. The 
Agency has determined that this rule will not create an environmental 
risk to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    FMCSA reviewed this rule in accordance with Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it does not effect a taking of 
private property or otherwise have taking implications.

Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a privacy impact assessment (PIA) of a regulation that affects 
the privacy of individuals. This rule will not require the collection 
of any personally identifiable information.
    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency which receives records contained in a system 
of records from a Federal agency for use in a matching program. FMCSA 
has determined this rule will not result in a new or revised Privacy 
Act System of Records for FMCSA.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. This rule does not require a new information collection. 
However the rule reduces by an unknown amount the information 
collection burden for driver physical qualifications under Part 391, 
HOS under Part 395, and inspection, repairs and maintenance under Part 
396.

National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this rule in accordance with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
FMCSA's NEPA Implementing Procedures and Policy for Considering 
Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR 
9680). FMCSA's Order states that ``[w]here FMCSA has no discretion to 
withhold or condition an action if the action is taken in accordance 
with specific statutory criteria and FMCSA

[[Page 16194]]

lacks control and responsibility over the effects of an action, that 
action is not subject to this Order.'' Id. at chapter 1(D) (69 FR 
9684). Because Congress limited the Agency's normal safety jurisdiction 
through the MAP-21 exemptions promulgated today, this rulemaking falls 
under chapter 1(D). Therefore, no further analysis is necessary.
    In addition to the NEPA requirements to examine impacts on air 
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401 et seq.) 
also requires FMCSA to analyze the potential impact of its actions on 
air quality and to ensure that FMCSA actions conform to State and local 
air quality implementation plans. This non-discretionary action is 
expected to fall within the CAA de minimis standards and is not subject 
to the Environmental Protection Agency's General Conformity Rule (40 
CFR parts 51 and 93).

Executive Order 13211 (Energy Effects)

    FMCSA has analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution or Use. The Agency has determined that it is not a 
``significant energy action'' under that Executive Order because it is 
not economically significant and is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

List of Subjects

49 CFR Part 382

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Drug testing, Highway safety, Motor carriers, Penalties, Safety, 
Transportation.

49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Commercial 
driver's license, Commercial motor vehicles, Drug abuse, Highway 
safety, Motor carriers, Motor vehicle safety.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 391

    Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor 
carriers, Reporting and recordkeeping requirements, Safety, 
Transportation.

49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.

49 CFR Part 396

    Highway safety, Motor carriers, Motor vehicle safety, Reporting and 
recordkeeping requirements.

    For the reasons stated in the preamble, FMCSA amends 49 CFR Parts 
382, 383, 390, 391, 395, and 396 in title 49, Code of Federal 
Regulations, chapter III, subchapter B, as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

0
1. The authority citation for Part 382 is revised to read as follows:

    Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec. 
32934 of Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

0
2. Amend Sec.  382.103 by adding paragraph (d)(4) to read as follows:


Sec.  382.103  Applicability.

* * * * *
    (d) * * *
    (4) Who operate ``covered farm vehicles,'' as defined in 49 CFR 
390.5.

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

0
3. The authority citation for Part 383 is revised to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 
214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 
4140 of Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 
112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

0
4. Amend Sec.  383.3 by adding paragraph (h) to read as follows:


Sec.  383.3  Applicability.

* * * * *
    (h) Exception for drivers of ``covered farm vehicles.'' The rules 
in this part do not apply to a driver of a ``covered farm vehicle,'' as 
defined in Sec.  390.5 of this chapter.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
5. The authority citation for Part 390 is revised to read as follows:

    Authority: 49 U.S.C. 504, 508, 31132, 31133, 31136, 31144, 
31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677-1678; 
sec. 212, 217, 229, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; 
sec. 229, Pub. L. 106-159 (as transferred by sec. 4114 and amended 
by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743-
1744); sec. 4136, Pub. L. 109-59, 119 Stat. 114, 1745; sections 
32101(d) and 34934, Pub. L. 112-141, 126 Stat. 405, 778, 830; and 49 
CFR 1.87.


0
6. Amend Sec.  390.5 by adding a definition of ``Covered farm vehicle'' 
in alphabetical order to read as follows:


Sec.  390.5  Definitions.

* * * * *
    Covered farm vehicle--
    (1) Means a straight truck or articulated vehicle--
    (i) Registered in a State with a license plate or other designation 
issued by the State of registration that allows law enforcement 
officials to identify it as a farm vehicle;
    (ii) Operated by the owner or operator of a farm or ranch, or an 
employee or family member of a an owner or operator of a farm or ranch;
    (iii) Used to transport agricultural commodities, livestock, 
machinery or supplies to or from a farm or ranch; and
    (iv) Not used in for-hire motor carrier operations; however, for-
hire motor carrier operations do not include the operation of a vehicle 
meeting the requirements of paragraphs (1)(i) through (iii) of this 
definition by a tenant pursuant to a crop share farm lease agreement to 
transport the landlord's portion of the crops under that agreement.
    (2) Meeting the requirements of paragraphs (1)(i) through (iv) of 
this definition:
    (i) With a gross vehicle weight or gross vehicle weight rating, 
whichever is greater, of 26,001 pounds or less may utilize the 
exemptions in Sec.  390.39 anywhere in the United States; or
    (ii) With a gross vehicle weight or gross vehicle weight rating, 
whichever is greater, of more than 26,001 pounds may utilize the 
exemptions in Sec.  390.39 anywhere in the State of registration or 
across State lines within 150 air miles of the farm or ranch with 
respect to which the vehicle is being operated.
* * * * *

0
7. Add new Sec.  390.39 to subpart B to read as follows:


Sec.  390.39  Exemptions for ``covered farm vehicles.''

    (a) Federal requirements. A covered farm vehicle, as defined in 
Sec.  390.5, including the individual operating that vehicle, is exempt 
from the following:
    (1) Any requirement relating to commercial driver's licenses in 49 
CFR Part 383 or controlled substances and alcohol use and testing in 49 
CFR Part 382;
    (2) Any requirement in 49 CFR Part 391, Subpart E, Physical 
Qualifications and Examinations.
    (3) Any requirement in 49 CFR Part 395, Hours of Service of 
Drivers.
    (4) Any requirement in 49 CFR Part 396, Inspection, Repair, and 
Maintenance.

[[Page 16195]]

    (b) State requirements--(1) In general.--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.
    (2) Exception.--Paragraph (b)(1) of this section does not apply 
with respect to a covered farm vehicle transporting hazardous materials 
that require a placard.
    (c) Other exemptions and exceptions.--The exemptions in paragraphs 
(a) and (b) of this section are in addition to, not in place of, the 
agricultural exemptions and exceptions in Sec. Sec.  383.3(d)(1), 
383.3(e), 383.3(f), 391.2(a), 391.2(b), 391.2(c), 391.67, 395.1(e)(1), 
395.1(e)(2), 395.1(h), 395.1(i), and 395.1(k) of this chapter. Motor 
carriers and drivers may utilize any combination of these exemptions 
and exceptions, providing they comply fully with each separate 
exemption and exception.

PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE 
(LCV) DRIVER INSTRUCTORS

0
8. The authority citation for Part 391 is revised to read as follows:

    Authority: 49 U.S.C. 504, 508, 31133, 31136, and 31502; sec. 
4007(b) of Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114 of Pub. 
L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113 
Stat. 1748, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; 
and 49 CFR 1.87.

0
9. Amend Sec.  391.2 by adding paragraph (d) to read as follows:


Sec.  391.2  General exceptions.

* * * * *
    (d) Covered farm vehicles. The rules in part 391, Subpart E--
Physical Qualifications and Examinations--do not apply to drivers of 
``covered farm vehicles,'' as defined in 49 CFR 390.5.

PART 395--HOURS OF SERVICE OF DRIVERS

0
10. The authority citation for Part 395 is revised to read as follows:

    Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132, 
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. 
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 
Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; 
and 49 CFR 1.87.

0
11. Amend Sec.  395.1 by revising paragraph (k) and adding a new 
paragraph (s) to read as follows:


Sec.  395.1  Scope of rules in this part.

* * * * *
    (k) Agricultural operations. The provisions of this part shall not 
apply during planting and harvesting periods, as determined by each 
State, to drivers transporting
    (1) Agricultural commodities from the source of the agricultural 
commodities to a location within a 150 air-mile radius from the source;
    (2) Farm supplies for agricultural purposes from a wholesale or 
retail distribution point of the farm supplies to a farm or other 
location where the farm supplies are intended to be used within a 150 
air-mile radius from the distribution point; or
    (3) Farm supplies for agricultural purposes from a wholesale 
distribution point of the farm supplies to a retail distribution point 
of the farm supplies within a 150 air-mile radius from the wholesale 
distribution point.
* * * * *
    (s) Covered farm vehicles. The rules in this part do not apply to 
drivers of ``covered farm vehicles,'' as defined in 49 CFR 390.5.

PART 396--INSPECTION, REPAIR, AND MAINTENANCE

0
12. The authority citation for Part 396 is revised to read as follows:

    Authority: 49 U.S.C. 504, 31133, 31136, 31151, and 31502; sec. 
32934, Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

0
13. Amend Sec.  396.1 by adding a new paragraph (c) to read as follows:


Sec.  396.1  Scope.

* * * * *
    (c) This part does not apply to ``covered farm vehicles,'' as 
defined in 49 CFR 390.5, or to the drivers of such vehicles.

    Issued under the authority delegated in 49 CFR 1.87 on: March 8, 
2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-05897 Filed 3-13-13; 8:45 am]
BILLING CODE 4910-EX-P