Hours of Service of Drivers of Commercial Motor Vehicles; Regulatory Guidance for Oilfield Exception
Hours of Service of Drivers of Commercial Motor Vehicles; Regulatory Guidance for Oilfield Exception
Anne S. Ferro
Federal Motor Carrier Safety Administration
August 12, 2013
[Federal Register Volume 78, Number 155 (Monday, August 12, 2013)]
[Rules and Regulations]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19402]
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.
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
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
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 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)].
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
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
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
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
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
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
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)
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.
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
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.
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
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
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
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.
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
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
Several commenters claimed that a lack of safety evidence exists to
justify what they deemed to be a major regulatory change.
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.
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
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,
[FR Doc. 2013-19402 Filed 8-9-13; 8:45 am]
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