[Federal Register Volume 77, Number 108 (Tuesday, June 5, 2012)]
[Rules and Regulations]
[Pages 33098-33100]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13584]
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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; 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 selfaddressed,
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 New Jersey Avenue SE., Washington,
DC 20590, phone (202) 366-4325, email
MCPSD@dot.gov.
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 [§ 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 § 195.3(d), and
later recodified as § 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 § 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 § 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
§ 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 § 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 § 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 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 § 395.1(d)(2)?
Guidance: The "waiting time"
provision in § 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 § 395.2. Recognizing that these
operators, their employers, and the wellsite
managers do not have the ability to
readily schedule or control these
driver's periods of inactivity,
§ 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
§ 395.1(d)(2) are vehicles commonly
known in oilfield operations as heavycoil
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 allinclusive.
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]
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