[Federal Register Volume 77, Number 108 (Tuesday, June 5, 2012)]
[Rules and Regulations]
[Pages 33098-33100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13584]


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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2012-0183]


Hours of Service of Drivers of Commercial Motor Vehicles; 
Regulatory Guidance for Oilfield Exception

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

ACTION: Notice of regulatory guidance; request for public comment.

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

SUMMARY: FMCSA announces its revision of regulatory guidance to clarify 
the applicability of the ``Oilfield operations'' exceptions in 49 CFR 
395.1(d) to the ``Hours of Service of Drivers'' regulations, and 
requests comments on the revision. The regulatory guidance is being 
revised to ensure consistent understanding and application of the 
regulatory exceptions.

DATES: This regulatory guidance is effective June 5, 2012. Comments 
must be received on or before August 6, 2012.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2012-0183 by any of the following 
methods:
     Web site: www.regulations.gov. Follow the instructions for 
submitting comments on the Federal electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, Room W-12-140, 1200 New Jersey Avenue SE., Washington, 
DC, 20590-0001.
     Hand Delivery: Ground Floor, Room W12-140, DOT Building, 
1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. 
e.t., Monday through Friday, except Federal Holidays.
    Instructions: All submissions must include the Agency name and 
docket number. For detailed instructions on submitting comments and 
additional information on the exemption process, see the ``Public 
Participation'' heading below. Note that all comments received will be 
posted without change to www.regulations.gov, including any personal 
information provided. Please see the ``Privacy Act'' heading below.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov at any time or to the 
ground floor, room W12-140, DOT Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
DOT's complete Privacy Act Statement in the Federal Register published 
on December 29, 2010 (75 FR 82133), or you may visit 
www.regulations.gov.
    Public Participation: The www.regulations.gov Web site is generally 
available 24 hours each day, 365 days each year. You can obtain 
electronic submission and retrieval help and guidelines under the 
``help'' section of the www.regulations.gov Web site and also at the 
DOT's http://docketsinfo.dot.gov Web site. If you want us to notify you 
that we received your comments, please include a self-addressed, 
stamped envelope or postcard or print the acknowledgement page that 
appears after submitting comments online.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 1200

[[Page 33099]]

New Jersey Avenue SE., Washington, DC 20590, phone (202) 366-4325, 
email [email protected].

SUPPLEMENTARY INFORMATION:

Legal Basis

    The Motor Carrier Act of 1935 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 (MCSA) confers on the 
Secretary the authority to regulate drivers, motor carriers, and 
vehicle equipment. It requires the Secretary to prescribe safety 
standards for commercial motor vehicles (CMVs). At a minimum, the 
regulations must ensure that (1) 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 the periodic physical examinations 
required of such operators are performed by medical examiners who have 
received training in physical and medical examination standards and, 
after the national registry maintained by the Department of 
Transportation under section 31149(d) is established, are listed on 
such registry; and (4) the operation of CMVs does not have a 
deleterious effect on the physical condition of the operator [49 U.S.C. 
31136(a)]. The Act also grants the Secretary broad power to ``prescribe 
recordkeeping and reporting requirements'' and to ``perform other acts 
the Secretary considers appropriate'' [49 U.S.C. 31133(a)(8) and (10)].
    The Administrator of FMCSA has been delegated the authority to 
carry out the functions vested in the Secretary by the Motor Carrier 
Act of 1935 [49 CFR 1.73(l)] and the MCSA [Sec.  1.73(g)]. The 
provisions affected by this Notice of Regulatory Guidance are based on 
these statutes.

Background

    The Interstate Commerce Commission (ICC), which originally had 
jurisdiction over CMV highway safety, first heard requests for an 
oilfield exemption when the earliest HOS rules were issued in 1939. The 
Commission declined to grant the request, however, stating that ``* * * 
important as these considerations are, they do not overcome our primary 
duty to prescribe maximum hours which will be reasonably safe'' (Ex 
Parte No. MC-2, 11 M.C.C. 206, January 27, 1939).
    In 1962, the ICC revisited the HOS rules. The Commission considered 
testimony from oilfield equipment operators in a discussion of 
specialized oilfield equipment requiring special training, and approved 
a 24-hour restart provision for operators of these vehicles. The record 
indicates that this same restart provision was intended to apply to 
operators employed exclusively in the transportation of equipment for 
use in servicing the well operations. In other words, both descriptive 
clauses were intended to apply to the same group of drivers [Ex Parte 
No. MC-40 (Sub-No.1), 89 M.C.C. 28, March 29, 1962]. This restart 
provision was codified on April 13, 1962 (27 FR 3553) as Sec.  
195.3(d), and later recodified as Sec.  395.1(d)(1). Neither the 
original nor the recodified text mentioned specially designed vehicles 
or specially trained drivers.
    Approximately 5 months following the March 29, 1962, decision to 
grant the 24-hour restart, the ICC also granted without any comment the 
``waiting time'' exception as it now stands, using the ``specially 
constructed'' and ``specially trained'' phrases (27 FR 8119; August 15, 
1962). There was no discussion in the notice, but 27 FR 8119 includes a 
long list of petitions from industry and equipment manufacturers that 
were filed after the March 29 decision. The duties and functions of the 
ICC were terminated in December 1995 (see the ICC Termination Act of 
1995); the petitions themselves, filed nearly 50 years ago, are not 
readily available.
    In the August 15, 1962, Federal Register notice, the oilfield 
``waiting time'' exception (referring to specially constructed vehicles 
and specially trained drivers) was part of the definition of ``on duty 
time'' in (then) 49 CFR 195.2(a)(9). The 24-hour restart exception, 
referring to the broader group servicing the oilfield sites, was placed 
under the section regarding duty time.
    In a ``technical amendment'' published in the Federal Register as 
part of a broader final rule, the 24-hour restart and waiting-time 
provisions were merged to become today's Sec.  395.1(d)(1) and (2) [57 
FR 33638; July 30, 1992].

Reason for This Notice of Regulatory Guidance

    This notice revises regulatory guidance to clarify which CMV 
drivers are subject to the HOS exceptions in 49 CFR 395.1(d), 
``Oilfield operations.'' A significant increase in oil and gas drilling 
operations in many States has resulted in a major increase in CMV 
traffic to move the oilfield equipment, and to transport large 
quantities of supplies, such as water and sand, to the sites. The 
operators of many of these vehicles have raised questions about the 
applicability of Sec.  395.1(d) to them.
    Section 395.1(d) provides two separate exceptions to the HOS rules, 
with the two exceptions applying to different operators. Section 
395.1(d)(1) states that for drivers of CMVs used exclusively in the 
transportation of oilfield equipment, including the stringing and 
picking up of pipe used in pipelines, and servicing of the field 
operations of the natural gas and oil industry, any period of 8 
consecutive days may end with the beginning of any off-duty period of 
24 or more successive hours. This is commonly referred to as a ``24-
hour restart'' of the 70 hours in 8 days total on-duty time limit in 
Sec.  395.3(b).
    Section 395.1(d)(2) states, in part, that in the case of specially 
trained drivers of CMVs that are specially constructed to service oil 
wells, ``on-duty time shall not include waiting time at a natural gas 
or oil well site.'' Under the definition of ``On duty time'' in Sec.  
395.2, drivers who are standing by at an oil well site until their 
services are needed would normally be considered on-duty, thereby 
constraining the hours that they would have available to legally drive 
a CMV within the HOS-rule limits. This exception is often referred to 
as the ``oilfield waiting time'' provision.

Request for Comments

    Refer to the ADDRESSES section above for instructions on submitting 
comments to the public docket concerning this regulatory guidance. The 
FMCSA will consider comments received by the closing date of the 
comment period to determine whether any further clarification of these 
regulatory provisions is necessary.
    For the reasons explained above, FMCSA revises Regulatory Guidance, 
Questions 6 and 8 to 49 CFR 395.1 (62 FR 16420, April 4, 1997) as 
follows:

PART 395--HOURS OF SERVICE OF DRIVERS

Section 395.1(d), ``Oilfield operations.''

    ``Question 6: What does ``servicing'' of the field operations of 
the natural gas and oil industry cover?
    Guidance: The ``24-hour restart'' provision of Sec.  395.1(d)(1) is 
available to drivers of the broad range of commercial motor vehicles 
(CMVs) that are being used for direct support of the operation

[[Page 33100]]

of oil and gas well sites, to include transporting equipment and 
supplies (including water) to the site and waste or product away from 
the site, and moving equipment to, from, or between oil and gas well 
sites. These CMVs do not have to be specially designed for well site 
use, nor do the drivers require any special training other than in 
operating the CMV.
    Question 8: What kinds of oilfield equipment may drivers operate 
while taking advantage of the special ``waiting time'' rule in Sec.  
395.1(d)(2)?
    Guidance: The ``waiting time'' provision in Sec.  395.1(d)(2) is 
available only to operators of those commercial motor vehicles (CMVs) 
that are (1) specially constructed for use at oil and gas well sites, 
and (2) for which the operators require extensive training in the 
operation of the complex equipment, in addition to driving the vehicle. 
In many instances, the operators spend little time driving these CMVs 
because ``leased drivers'' from driveaway services are brought in to 
move the heavy equipment from one site to another. These operators 
typically may have long waiting periods at well sites, with few or no 
functions to perform until their services are needed at an 
unpredictable point in the drilling process. Because they are not free 
to leave the site and may be responsible for the equipment, they would 
normally be considered ``on duty'' under the definition of that term in 
Sec.  395.2. Recognizing that these operators, their employers, and the 
well-site managers do not have the ability to readily schedule or 
control these driver's periods of inactivity, Sec.  395.1(d)(2) 
provides that the ``waiting time'' shall not be considered on-duty 
(i.e., it is off-duty time). During this ``waiting time,'' the 
operators may not perform any work-related activity. To do so would 
place them on duty.
    Examples of equipment that may qualify the operator/driver for the 
``waiting time exception'' in Sec.  395.1(d)(2) are vehicles commonly 
known in oilfield operations as heavy-coil vehicles, missile trailers, 
nitrogen pumps, wire-line trucks, sand storage trailers, cement pumps, 
``frac'' pumps, blenders, hydration pumps, and separators. This list 
should only be considered examples and not all-inclusive. Individual 
equipment must be evaluated against the criteria stated above: (1) 
Specially constructed for use at oil and gas well sites, and (2) for 
which the operators require extensive training in the operation of the 
complex equipment, in addition to driving the vehicle infrequently.
    Operators of CMVs that are used to transport supplies, equipment, 
and materials such as sand and water to and from the well sites do not 
qualify for the ``waiting time exception'' even if there have been some 
modifications to the vehicle to transport, load, or unload the 
materials, and the driver required some minimal additional training in 
the operation of the vehicle, such as running pumps or controlling the 
unloading and loading processes. It is recognized that these operators 
may encounter delays caused by logistical or operational situations, 
just as other motor carriers experience delays at shipping and 
receiving facilities. Other methods may be used to mitigate these types 
of delays, which are not the same types of waiting periods experienced 
by the CMV operators who do qualify for the waiting time exception.''

    Issued on: May 30, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-13584 Filed 6-1-12; 8:45 am]
BILLING CODE 4910-EX-P