Federal Register / Vol. 76, No. 157 / Monday, August 15, 2011 / Rules and Regulations 50433 

(g) Absent an explicit agreement 

between operators to permit more 

closely spaced operations, U.S. 

authorized 17/24 GHz BSS space 

stations and U.S. authorized DBS space 

stations with co-frequency assignments 

may not be licensed to operate at 

locations separated by less than 

0.2 degrees in orbital longitude. 

(h) All operational 17/24 GHz BSS 

space stations must be maintained in 

geostationary orbits that: 

(1) Do not exceed 0.075° of 

inclination. 

(2) Operate with an apogee less than 

or equal to 35,806 km above the surface 

of the Earth, and with a perigee greater 

than or equal to 35,766 km above the 

surface of the Earth (i.e., an eccentricity 

of less than 4.7 × 10¥4). 

(i) U.S. authorized DBS networks may 

claim protection from space path 

interference arising from the reverseband operations of U.S. authorized 

17/24 GHz BSS networks to the extent 

that the DBS space station operates 

within the bounds of inclination and 

eccentricity listed below. When the 

geostationary orbit of the DBS space 

station exceeds these bounds on 

inclination and eccentricity, it may not 

claim protection from any additional 

space path interference arising as a 

result of its inclined or eccentric 

operations and may only claim 

protection as if it were operating within 

the bounds listed below: 

(1) The DBS space station’s orbit does 

not exceed 0.075° of inclination, and 

(2) The DBS space station’s orbit 

maintains an apogee less than or equal 

to 35,806 km above the surface of the 

Earth, and a perigee greater than or 

equal to 35,766 km above the surface of 

the Earth (i.e., an eccentricity of less 

than 4.7 × 10¥4). 

[FR Doc. 2011–20593 Filed 8–12–11; 8:45 am] 

BILLING CODE 6712–01–P 

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. 

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 sharecropping 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 


srobinson on DSK4SPTVN1PROD with RULES
50434 Federal Register / Vol. 76, No. 157 / Monday, August 15, 2011 / Rules and Regulations 

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 factspecific 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 


srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 157 / Monday, August 15, 2011 / Rules and Regulations 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 


srobinson on DSK4SPTVN1PROD with RULES