[Federal Register Volume 78, Number 155 (Monday, August 12, 2013)]
[Rules and Regulations]
[Pages 48817-48820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19402]


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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; response to public comments.

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SUMMARY: FMCSA responds to the public comments to its June 5, 2012, 
notice of regulatory guidance concerning the hours-of-service 
requirements for oilfield operations, and the Agency announces its 
decision to retain the 2012 guidance. On June 5, 2012, FMCSA updated 
its April 4, 1997, regulatory guidance to explain the applicability of 
the ``Oilfield operations'' exceptions in 49 CFR 395.1(d) to the 
``Hours of Service [HOS] of Drivers'' regulations, and requested 
comments on the additional language. FMCSA also held three ``listening 
sessions'' in Pennsylvania, Colorado, and Texas to accept public 
comments for the docket. Following a review of all comments, the Agency 
has determined that no further elaboration on the regulatory guidance 
is needed, at this time, and the Agency will continue to monitor the 
use of the two HOS oilfield exceptions in 49 CFR 395.1(d). The Agency 
also calls attention to 49 CFR part 381, which provides procedures for 
persons to apply for individual or class exemptions from certain 
regulations provided the exemption would achieve a level of safety that 
is equivalent to, or greater than, the level of safety that would be 
achieved absent the exemption. Therefore, motor carriers that believe 
the current oilfield operations exceptions do not provide sufficient 
relief for their operations should consider submitting an application 
for an exemption to the Agency describing an alternative that would 
ensure the requisite level of safety.

DATES: This regulatory guidance was effective June 5, 2012, as 
announced in the Federal Register on June 5, 2012 (77 FR 33098).

ADDRESSES: 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, USDOT Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, 
except Federal holidays.

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, 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

[[Page 48818]]

standards and, after the national registry maintained by FMCSA 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 1.87(i)] and the MCSA [Sec.  1.87(f)].

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, which was based on economic 
hardships, 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 suppliers and operators that provided 
specialized oilfield equipment requiring special training. The ICC 
approved a 24-hour restart provision for operators of this equipment. 
This provision allowed drivers to restart the 70-hours of on-duty time 
(in 8 consecutive days) during which driving was allowed. The record 
also indicates that this 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, the restart was 
to be available to two groups of drivers--operators of specialized 
oilfield equipment requiring special training and drivers exclusively 
transporting oilfield equipment. [Ex Parte No. MC-40 (Sub-No.1), 89 
M.C.C. 28-30, 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 regulatory 
language mentioned specially designed vehicles or specially trained 
drivers, although the ICC's March 29 report discussed both.
    Approximately 5 months after granting the 24-hour restart, the ICC 
granted without comment the ``waiting time'' exception now codified 
atSec.  395.1(d)(2), using the ``specially constructed'' and 
``specially trained'' phrases (27 FR 8119; August 15, 1962). Although 
the ICC provided no discussion of the reasons for the ``waiting time'' 
exception, the Federal Register notice included a long list of 
petitions from industry groups and equipment manufacturers that were 
filed after the March 29 decision. The petitions themselves, filed more 
than 50 years ago, are no longer available, and the ICC was terminated 
in December 1995 [Pub. L. 104-88, 109 Stat. 803, Dec. 29, 1995].
    The oilfield ``waiting time'' exception (referring to specially 
constructed vehicles and specially trained drivers) was codified in 49 
CFR 195.2 as part of the definition of ``on duty time.'' [Sec.  
195.2(a)(9)]. The 24-hour restart exception, referring to the broader 
group servicing the oilfield sites, was codified in 49 CFR 195.3, which 
governed ``Maximum driving and on-duty time'' [Sec.  195.3(d)].
    In a 1992 technical amendment published in the Federal Register as 
part of a broader final rule, the 24-hour restart and waiting-time 
provisions were transferred to become today's Sec.  395.1(d)(1) and (2) 
[57 FR 33638; July 30, 1992].
    On April 4, 1997 (62 FR 16420), the Federal Highway Administration 
(FHWA)--the Agency responsible for motor carrier safety until the 
establishment of FMCSA--published ``Regulatory Guidance for the Federal 
Motor Carrier Safety Regulations'' which provided interpretive guidance 
material for the Federal Motor Carrier Safety Regulations. The FHWA 
consolidated previously issued interpretations and regulatory guidance 
materials and developed concise interpretive guidance in question and 
answer form for each part of the FMCSRs. The 1997 notice included 
several questions and answers concerning oilfield operations.

Reason for This Notice

    A significant increase in oil and gas drilling operations in many 
States has resulted in a major increase in CMV traffic to move oilfield 
equipment, and transport large quantities of supplies, especially water 
and sand, to the sites. The operators of many of these vehicles and law 
enforcement officials have raised questions about the applicability of 
Sec.  395.1(d).
    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 consecutive 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 
reducing the hours that they would have available to drive a CMV within 
the HOS-rule limits. This exception is often referred to as the 
``oilfield waiting time'' provision.
    On June 5, 2012, FMCSA updated its regulatory guidance on these 
oilfield provisions in the Federal Register (77 FR 33098). Updates were 
made to Questions 6 and 8 to 49 CFR 395.1, which had been published on 
April 4, 1997. Although the updated guidance was effective upon 
publication, FMCSA announced that it would accept comments to the 
public docket until August 6, 2012, to ``. . . determine whether any 
further clarification of these regulatory provisions is necessary'' (77 
FR 33099).
    The Agency later extended the public comment period until October 
5, 2012, to include comments made at public ``listening sessions'' to 
be held in August and September (Denver, CO, August 17; Coraopolis, PA, 
August 21; Dallas, TX, September 27) (77 FR 46640, August 6, 2012). 
Approximately 15 people spoke at each of the listening sessions. 
Transcripts of these sessions have been filed in docket FMCSA-2012-0183 
at www.regulations.gov.

General Comments

    Written comments to the docket were filed by 81 individuals or 
associations. In some instances, the same comments were presented at 
one or more of the listening sessions. Of the 81 comments, seven were 
filed by the American Trucking Associations, Inc. (ATA) and State-level 
motor carrier associations. Nine comments were filed by other major 
trade associations such as the American Petroleum Institute (API), 
National Association of Manufacturers (NAM), International Association 
of Drilling Contractors (IADC), and similar organizations. About 29 
comments were identifiable with individual motor

[[Page 48819]]

carriers, well site operators, and equipment suppliers. One comment was 
filed by the Advocates for Highway and Auto Safety (Advocates), a 
public safety advocacy organization. In addition, letters co-signed by 
14 U.S. senators and 63 congressmen were submitted to the docket, 
expressing concerns similar to those of other parties in written and 
verbal comments. The remaining comments were filed by drivers or could 
not otherwise be classified.

Administrative Procedure Act (APA)

Comments
    Many of the commenting associations claimed that the revisions to 
Questions 6 and 8 to 49 CFR 395.1 were a major departure from long-
standing Agency interpretations, and that their content was contrary to 
49 CFR 395.1(d). At least, they argued, the revised regulatory guidance 
should have been subjected to the full ``notice and comment'' 
provisions of the APA.
FMCSA Response
    As explained in the Agency's 2012 Federal Register notice, FMCSA 
amended Questions 6 and 8 because of reports it had received that Sec.  
395.1(d) was being inconsistently enforced in States with substantial 
oil and gas drilling operations. A significant increase in such 
operations in many States has generated major increases in CMV traffic 
to move drilling equipment and related supplies, such as water and 
sand, to the well sites.
    Prior to the recent surge, oil and gas production was conducted at 
isolated locations without the heavy traffic in vehicles hauling sand 
and water that is required by hydraulic fracturing (or ``fracking'') 
operations. Traditional production methods appear to have created no 
particular need for enforcement activity and thus generated little or 
no controversy. As drilling operations began in States having little 
prior experience with oil and gas exploration and the volume of traffic 
to and from fracking sites increased, State and local officials 
received more and more reports of safety problems. Enforcement efforts 
intensified, leading to inquiries about the status of sand and water 
delivery trucks under Sec.  395.1(d).
    Contrary to the assertion of some commenters, there has been no 
``long standing'' interpretation that operators of water and sand 
delivery trucks are eligible for the ``waiting time'' provision. The 
ICC's 1962 decisions did not address the issue at all. However, the 
party that submitted the inquiry now listed as Question 10 in the 
Agency's guidance, which deals explicitly with the transportation of 
sand and water and was published in 1997, clearly assumed that such 
operations are part of the ``servicing of the field operations of the 
natural gas and oil industry,'' and inquired whether the 24-hour 
restart provision in Sec.  395.1(d)(1) would apply under certain 
conditions.
    FMCSA agreed with the submitter that drivers used exclusively to 
transport sand and water to service field operations were eligible for 
the restart exception, and replied accordingly [62 FR 16370, 16420, 
April 4, 1997]. The statement in Question 6--also adopted in 1997--that 
``[w]ater servicing companies, whose operations are exclusive to 
servicing the natural gas and oil industry, are also covered by the 
provisions of Sec.  395.1(d),'' must be read in conjunction with the 
more explicit discussion of such companies in Question 10, where their 
eligibility for the 24-hour restart is affirmed (i.e., Sec.  
395.1(d)(1)).
    Nothing in these Questions and Answers suggests that drivers of 
trucks delivering sand and water are eligible for the waiting time 
exception (i.e., Sec.  395.1(d)(2)), nor has FMCSA ever issued guidance 
to that effect. Because interpretations of Sec.  395.1(d) did not 
specifically address the applicability of the waiting time provision to 
operators of vehicles such as sand and water delivery trucks, the 
States appear to have evolved inconsistent enforcement practices. In 
other cases a lack of enforcement of the Sec.  395.1(d) provisions may 
have given carriers and drivers the misimpression that their 
assumptions about applicability were accurate.
    The regulatory guidance issued in 2012 is the first specifically 
clarifying that trucks delivering supplies (including sand and water) 
and equipment to the well sites are not eligible for the ``waiting 
time'' provision of Sec.  395.1(d)(2). The guidance is consistent with 
the regulation itself and prior guidance, and does not represent a 
change in the enforcement policies of many (though not all) States. 
Thus, the guidance was not a reversal of any long-standing 
interpretation or policy. Only in those States that allowed the sand 
and water trucks to utilize the ``waiting time'' exception, without any 
basis in regulatory language or FMCSA guidance, would carriers and 
drivers have perceived this national clarification as a change.
    Comments to the docket and at the listening sessions made it clear 
that prior discussions of the Sec.  395.1(d) provisions had not been 
precise enough to clarify which of the two separate sub-section 
exceptions (``24-hour restart'' and ``waiting time'') were being 
addressed. For example, inquiries about mechanical modifications of 
sand and water delivery trucks centered around whether the 
modifications helped to prove that the vehicle was used ``exclusively'' 
in oilfield operations and therefore eligible for the ``24-hour 
restart'' provision of Sec.  395.1(d)(1). It may not have been clear to 
all commenters that these discussions were not about eligibility for 
the ``waiting time'' exception, which is different than that for the 
``24 hour restart.''

Changes Needed in the Regulation

Comments
    Many commenters asked FMCSA to ``rescind'' the 2012 guidance and 
undertake a full rulemaking to revise Sec.  395.1(d). They offered a 
variety of suggestions as to the provisions of a revised regulatory 
section.
FMCSA Response
    Rescission of the 2012 guidance--even if justified, which is not 
the case, as the above discussion demonstrates--would result in 
inconsistent compliance and enforcement. It would be unclear, pending 
the completion of a notice-and-comment procedure, whether or not 
operators of sand and water delivery trucks would be eligible for the 
Sec.  395.1(d)(2) ``waiting time'' provision, potentially leading to a 
return to inconsistent enforcement.
    FMCSA does not believe that a rulemaking process is necessary. A 
fair reading of the Agency's prior guidance in this area demonstrates 
that the 2012 revision simply clarified a point that had been implicit 
in FMCSA's Questions and Answers for more than 15 years.

Cost and Economic Impact Issues

Comments
    Numerous commenters stated that compliance with the 2012 regulatory 
guidance would result in significant cost increases for them to hire 
additional drivers who would be needed to cover the hours currently 
worked by drivers incorrectly using the ``waiting time'' exception to 
exceed the 14-hour ``driving window'' established by Sec.  395.3.
FMCSA Response
    It is possible that some motor carriers that have not been fully 
complying with the Sec.  395.1(d) provisions may need to employ 
additional drivers if existing schedules have generated overly-long 
periods of wakefulness for some drivers. In comments to the docket and 
at the listening sessions, some drivers and

[[Page 48820]]

carriers acknowledged that deliveries of sand and water may be delayed 
at the well sites, resulting in a duty day well beyond 14 hours.
    Section 395.3(a)(2) is specifically intended to prevent driving a 
CMV after the 14th hour after the driver came on duty, whatever his or 
her intervening activities. The HOS rules issued in the last decade 
included substantial evidence supporting the need to limit excessive 
hours of driving and work, which can lead to fatigued driving. The 
rationale for the 14-hour driving window applies with particular force 
to drivers using the ``waiting time'' exception in Sec.  395.1(d)(2). 
There is no indication that the ``waiting time'' exception in Sec.  
395.1(d)(2) was ever intended to allow driving after long periods of 
time had elapsed since the start of the duty day. The history of the 
oilfield regulatory language, as explained in the Background section of 
this notice, makes it clear that Sec.  395.1(d)(2) was intended for use 
by persons who are primarily specialized equipment operators but who 
occasionally drive a CMV, as opposed to individuals whose primary job 
is to drive delivery vehicles, even if those vehicles might have simple 
modifications to help them make deliveries in rough oilfield terrain.
    If some motor carriers had to hire additional drivers to operate 
within the Sec.  395.1(d) provisions, that would merely place them on 
par (``level the playing field'') with motor carriers that have been in 
compliance all along.

Road and Well-Site Safety Issues

Comments
    Several commenters claimed that a lack of safety evidence exists to 
justify what they deemed to be a major regulatory change.
FMCSA Response
    Because the 2012 notice changed neither the regulation nor the 
substance of the Agency's regulatory guidance, no statistical 
evaluation of the clarified guidance was needed, as would be required 
in a notice-and-comment rulemaking. Allowing drivers of trucks making 
routine deliveries of sand and water to oilfields to utilize the 
``waiting time'' exception would enable them to resume driving 
immediately after waiting for many hours and then unloading, which has 
never been the case with operators of specialized equipment who drive 
only occasionally, despite the ``waiting'' time exception. Any such 
reading of Sec.  395.1(d) is neither consistent with the history of the 
oilfield exceptions nor justified by modern research on fatigue.

Future Activity

    FMCSA believes the 2012 amendment of the regulatory guidance has 
resolved most of the confusion regarding applicability of Sec.  
395.1(d) to oilfield operations. As with any regulation, unique 
situations may arise that require further regulatory guidance of an 
informal or formal nature, and FMCSA will consider those scenarios on a 
case-by-case basis.
    The Agency will continue to monitor use and impacts of this HOS 
exception within the substantial constraints of existing data 
collection systems of records.

Consideration of Regulatory Alternatives: 49 CFR Part 381 Exemptions

    FMCSA acknowledges the concerns of the commenters and participants 
in the three listening sessions. While the guidance is consistent with 
the underlying regulations, the Agency believes there are options 
available to the oil and natural gas industries that could be used to 
address their needs for hours-of-service flexibility.
    FMCSA calls attention to the provisions of 49 CFR Part 391, 
``Subpart C--Procedures for Applying for Exemptions.'' Sections 
381.300-.381.331 explain a procedure through which any affected persons 
or classes of persons may apply for an exemption from the HOS rules, 
among others, if the applicant can justify that operation under the 
proposed exemption would ``. . . achieve a level of safety that is 
equivalent to, or greater than, the level of safety that would be 
obtained by complying with the regulations . . .'' [Sec.  381.310 
(b)(5)]. Exemptions may be granted for a maximum 2-year period and may 
be renewed. Therefore, motor carriers that believe the current oilfield 
operations exceptions do not provide sufficient relief for their 
operations should consider submitting an application for an exemption 
to the Agency describing an alternative that would ensure the requisite 
level of safety.
    The Agency emphasizes the exemption process is an effective process 
for addressing issues concerning specific motor carriers and in some 
instances, segments of the industry. The process includes an 
opportunity for notice-and-comment to ensure transparency and public 
participation as the Agency considers an exemption application from an 
individual carrier, group of carriers, or an association submitting the 
request on behalf of the industry.
    The Agency invites interested parties to visit www.regulations.gov 
for previously published Federal Register notices concerning exemptions 
to see examples of how the Agency notifies the public about the 
exemption applications, complete copies of the exemption applications, 
the types of public comments received in response to the notices, and 
the Agency's response to the public comments and final decisions.

    Issued on: August 5, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-19402 Filed 8-9-13; 8:45 am]
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