FMCSA Says HOS Exception Doesn’t Apply to Oil-Field Drivers Hauling Sand, Water

This story appears in the Aug. 19 print edition of Transport Topics.

The Federal Motor Carrier Safety Administration refused last week to make changes to a regulatory guidance document it published last year allowing some specialty truck drivers at oil and gas exploration sites to extend their workdays.

FMCSA said the hours-of-service exception cannot be used by drivers hauling sand and water.

In the Aug. 12 notice published in the Federal Register, FMCSA said that after opening the issue to public comment and holding hearings, it will not change its interpretation that the waiting-time exception for oil-field workers can apply only to specially trained drivers with specially constructed equipment.

“Following a review of all comments, the agency has determined that no further elaboration on the regulatory guidance is needed, at this time,” FMCSA said in its notice.

Under a 1962 regulation, some truck drivers who serve oil- and gas-drilling operations can record the time they wait at the well sites as “off-duty” for the purpose of hours-of-service. That also allows them to pause the 14-hour maximum driving window for as long as they are waiting.

The waiting time can last for hours, and drivers frequently sleep, eat or watch television while waiting.

The agency announced the controversial guidance in June 2012, saying that an increase in gas and oil drilling had caused confusion among law enforcement and carriers as to who can use the waiting-time exception (6-11, p. 3).

FMCSA said at the time that the exception would only be available to drivers requiring “extensive” training to drive trucks that are “specially constructed for use at oil and gas sites.” That excluded trucks such as those carrying sand and water, essential supplies for the hydraulic fracturing process.

The trucking industry blasted the new guidance and asked that FMCSA withdraw it and go through the formal rulemaking process, which would include a proposal that is open to public comment.

In its Aug. 12 notice, FMCSA rejected arguments that the guidance constitutes a major change worthy of the rulemaking process. It acknowledged that the guidance could increase costs for carriers but responded that it “would merely place them on par (“level the playing field”) with motor carriers that have been in compliance all along.”

Two members of Congress from Oklahoma sponsored legislation this year to open the oil field exception to all truckers involved in the drilling process. Their bills have not been brought up for votes, but they said they will continue their advocacy.

Sen. Jim Inhofe (R-Okla.) said he was disappointed in FMCSA’s decision last week.

“The same problem still exists of truck drivers in the oil and gas industry being bogged down by confusing and unnecessary regulations,” Inhofe said in a statement.

Inhofe vowed to meet with Obama administration officials in an effort to change the decision. “I feel confident they will recognize the double standard for these truckers is something that we must address and work through to make our busy roads safer with less truck traffic and the industry more efficient.”

Rep. Markwayne Mullin (R-Okla.) also vowed to keep the pressure on federal officials, saying he already has met with FMCSA Administrator Anne Ferro about it. “Hopefully, we can continue working together moving forward.”

American Trucking Associations had criticized FMCSA’s decision not to go through the formal rulemaking process. Boyd Stephenson, ATA’s director of hazardous materials policy, suggested that FMCSA base its oil field exception on whether truckers have an opportunity to rest while waiting at the well site, not what kind of truck they drive.

“We’re disappointed,” Stephenson said. “They had an opportunity to address it based on a safety perspective. Instead, they ended up just sitting with what they’re got, based just on timing, but no safety or fatigue concerns.”

ATA’s proposal would allow all truck drivers serving a well site to use the waiting-time exception if the drivers could use either sleeper berths or other sleeping facilities at the sites.

FMCSA recommended that carriers who want to use the exception but cannot should petition for an exemption to the hours-of-service rule. “Motor carriers that believe the current oil field 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,” FMCSA said.