Hours of Service of Drivers: Application of Illumination Fireworks, LLC and ACE Pyro LLC, for Exemption From the 14-Hour Rule During Independence Day Celebrations

Anne S. Ferro
Federal Motor Carrier Safety Administration
June 27, 2014

[Federal Register Volume 79, Number 124 (Friday, June 27, 2014)]
[Notices]
[Pages 36579-36581]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-15043]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0111]


Hours of Service of Drivers: Application of Illumination 
Fireworks, LLC and ACE Pyro LLC, for Exemption From the 14-Hour Rule 
During Independence Day Celebrations

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

ACTION: Notice of final disposition; grant of applications for 
exemptions.

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SUMMARY: FMCSA announces its decision to grant exemptions to 
Illumination Fireworks, LLC and ACE Pyro, LLC (the applicants) from the 
requirement that drivers of commercial motor vehicles (CMVs) must not 
drive following the 14th hour after coming on duty. The exemptions will 
apply solely to the operation of 50 CMV drivers employed by the 
applicants in conjunction with staging fireworks shows celebrating 
Independence Day during the periods June 28-July 8, 2014, inclusive. 
During this period, the CMV drivers employed by the applicants will be 
allowed to exclude off-duty and sleeper-berth time of any length from 
the calculation of the 14 hours. These drivers will not be allowed to 
drive after accumulating a total of 14 hours of on-duty time, following 
10 consecutive hours off duty, and would continue to be subject to the 
11-hour driving time limit, and the 60- and 70-hour on-duty limits. The 
Agency has determined that the terms and conditions of the limited 1-
year exemptions will ensure a level of safety equivalent to, or greater 
than, the level of safety achieved without the exemptions.

[[Page 36580]]


DATES: The exemptions are effective during the periods of June 28 
(12:01 a.m.) through July 8, 2014 (11:59 p.m.).

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 202-366-4325. Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

    The hours-of-service (HOS) rule in 49 CFR 395.3(a)(2) prohibits a 
property-carrying CMV driver from driving a CMV after the 14th hour 
after coming on duty following 10 consecutive hours off duty. FMCSA has 
authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from 
certain parts of the Federal Motor Carrier Safety Regulations. FMCSA 
must publish a notice of each exemption request in the Federal Register 
(49 CFR 381.315(a)). The Agency must provide the public an opportunity 
to inspect the information relevant to the application, including any 
safety analyses that have been conducted. The Agency must also provide 
an opportunity for public comment on the request.
    The Agency reviews safety analyses and public comments submitted, 
and determines whether granting the exemption would likely achieve a 
level of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (49 CFR 381.305). The decision of 
the Agency must be published in the Federal Register (49 CFR 
381.315(b)) with the reasons for denying or granting the application 
and, if granted, the name of the person or class of persons receiving 
the exemption, and the regulatory provision from which the exemption is 
granted. The notice must also specify the effective period and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

Request for Exemption

    Illumination Fireworks, LLC (USDOT 2326703) and ACE Pyro, LLC 
(USDOT 1352892) are fireworks display companies that employ CMV drivers 
who hold commercial driver's licenses with hazardous materials 
endorsements to transport Division 1.3G and 1.4G fireworks in 
conjunction with the setup of firework shows for Independence Day. The 
applicants seek exemptions from the 14-hour rule in 49 CFR 395.3(a)(2) 
so that drivers would be allowed to exclude off-duty and sleeper-berth 
time of any length from the calculation of the 14 hours. The applicants 
state that the basis for their request is the existing FMCSA exemption 
granted to the American Pyrotechnics Association (APA) under Docket No. 
FMCSA-2007-28043, which exempts comparable fireworks companies from the 
14-hour rule.
    The applicants further state they are seeking HOS exemptions for 
the 2014 and 2015 Independence Day periods because compliance with the 
14-hour rule would impose economic hardship on cities, municipalities, 
and themselves. Complying with the existing regulations means most 
shows would require two drivers, significantly increasing the cost of 
the fireworks display.
    The applicants assert that without the extra duty-period provided 
by the exemption, safety would decline because firework drivers would 
be unable to return to their home base after each show should they have 
fireworks remaining after the display. They would be forced to park the 
CMVs carrying Division 1.3G and 1.4G products in areas less secure than 
the motor carriers' home base.

Method To Ensure an Equivalent or Greater Level of Safety

    As a condition for maintaining the exemptions, each motor carrier 
would be required to notify FMCSA within 5 business days of any 
accident (as defined in 49 CFR 390.5) involving the operation of any 
CMVs under this exemption. The applicants advise they have never been 
in an accident. As additional support for the requested exemptions, the 
applicants contend that the nature and duties of APA CMV operators is 
exactly the same as the CMV operators it employs and they feel strongly 
that there will not be any decline in safety.
    In the exemption request, the applicants assert that the 
operational demands of this unique industry minimize the risks of CMV 
crashes. In the last few days before the Independence Day holiday, 
these drivers transport fireworks over relatively short routes from 
distribution points to the site of the fireworks display, and normally 
do so in the early morning when traffic is light. The applicants noted 
that during the 2013 Independence Day season, the furthest Illumination 
Fireworks or ACE Pyro CMV traveled from its home base was 150 miles, 
which involves a very small amount of driving compared to the distance 
traveled by companies covered by the APA exemption. At the site, they 
spend considerable time installing, wiring, and safety-checking the 
fireworks displays, followed by several hours of duty in the late 
afternoon and early evening prior to the event. During this time, the 
drivers are able to rest and nap, thereby reducing or eliminating the 
fatigue accumulated during the day. Before beginning another duty day, 
these drivers must take 10 consecutive hours off duty, the same as 
other CMV drivers.
    A copy of the application for the exemptions is available for 
review in the docket for this notice.

Public Comments

    On May 13, 2014, FMCSA published notice of this application, and 
asked for public comment (79 FR 27364). Three comments were received to 
the public docket. Mr. Thomas Ingraldi did not oppose or support the 
exemption. He stated that:

    The overall log rules are not the problem. Only one rule hampers 
production and serves no purpose. This rule was to create circadian 
rhythms in drivers and failed miserably. That rule is the 14 hour 
clock. Remove that one rule and production increases because we can 
drive and sleep as our body needs not as the clock dictates.

    Another respondent, S. Johnson opposed the exemption and stated, 
``There is NO reason the celebrations cannot be performed within the 
current driving and on duty regulations. No worker should perform over 
14 hours per day. If additional hours are required, a second crew 
should be hired.''
    The Advocates for Highway and Auto Safety (Advocates) also opposed 
the exemption. Advocates contends that its arguments against the 
granting of the present exemption are almost identical to those 
provided in prior comments regarding similar applications for exemption 
filed by the American Pyrotechnics Association (APA). Because the 
present application relies almost entirely upon the APA exemption 
application process as a foundation for its application, Advocates sees 
no need to restate the arguments in their entirety.
    Advocates further stated its concern with the safety record of ACE 
Pyro LLC's referring to the carrier's driver, vehicle, and hazardous 
materials out-of-service rates which have been above National averages. 
Advocates requested FMCSA exclude ACE Pyro LLC from the exemption if 
the agency decides to grant the exemption based on its questionable 
safety record. All comments are available for review in the docket for 
this notice.

FMCSA Response to Public Comments and Agency Decision

    Prior to publishing the Federal Register notice announcing the 
receipt

[[Page 36581]]

of the applicants exemption request, FMCSA ensured that the motor 
carriers involved have a current USDOT registration, Hazardous 
Materials Safety Permit (if required), minimum required levels of 
insurance, and are not subject to any ``imminent hazard'' or other OOS 
orders. The Agency conducted a comprehensive investigation of the 
safety performance history of each applicant during the review process. 
As part of this process, FMCSA reviewed its Motor Carrier Management 
Information System (MCMIS) safety records, including inspection and 
accident reports submitted to FMCSA by State agencies, for each 
applicant motor carrier. The Agency also requested and received a 
records review of each carrier from the Pipeline and Hazardous 
Materials Safety Administration (PHMSA). Upon completion of this 
comprehensive review, the Agency concludes that the applicants will 
likely achieve a level of safety that is equivalent to, or greater 
than, the level of safety achieved without the exemption [49 CFR 
381.305(a)], and grants the requested exemptions covering the 
operations of 50 CMV drivers employed by the applicants. However, the 
Agency limits the exemption to 2014 given the concerns expressed by the 
Advocates.

Terms and Conditions of the Exemption

Period of the Exemption

    The exemptions from the requirements of 49 CFR 395.3(a)(2) are 
effective during the period of June 28 (12:01 a.m.) through July 8, 
2014 (11:59 p.m.), inclusive.

Extent of the Exemptions

    The drivers employed by the applicants are provided a limited 
exemption from the requirements of 49 CFR 395.3(a)(2). This regulation 
prohibits a driver from driving a CMV after the 14th hour after coming 
on duty and does not permit off-duty periods to extend the 14-hour 
limit. Drivers covered by the exemptions may exclude off-duty and 
sleeper-berth time of any length from the calculation of the 14-hour 
limit. The exemptions are contingent on each driver driving no more 
than 11 hours in the 14-hour period after coming on duty as extended by 
any off-duty or sleeper-berth time in accordance with this exemption. 
The exemptions are further contingent on each driver having a minimum 
of 10 consecutive hours off duty prior to beginning a new duty period. 
The carriers and drivers must comply with all other applicable 
requirements of the Federal Motor Carrier Safety Regulations (49 CFR 
parts 350-399) and Hazardous Materials Regulations (49 CFR parts 105-
180).

Other Conditions

    The exemptions are contingent upon each carrier maintaining USDOT 
registration, a Hazardous Materials Safety Permit (if required), 
minimum levels of public liability insurance, and not being subject to 
any ``imminent hazard'' or other out-of-service (OOS) order issued by 
FMCSA. Each driver covered by the exemptions must maintain a valid CDL 
with the required endorsements, not be subject to any OOS order or 
suspension of driving privileges, and meet all physical qualifications 
required by 49 CFR part 391.

Preemption

    During the periods the exemptions are in effect, no State may 
enforce any law or regulation that conflicts with or is inconsistent 
with the exemptions with respect to a person or entity operating under 
the exemptions (49 U.S.C. 31315(d)).

FMCSA Accident Notification

    Exempt motor carriers must notify FMCSA within 5 business days of 
any accidents (as defined by 49 CFR 390.5) involving the operation of 
any of its CMVs while under this exemption. The notification must 
include the following information:
    a. Date of the accident,
    b. City or town, and State, in which the accident occurred, or 
which is closest to the scene of the accident,
    c. Driver's name and driver's license number,
    d. Vehicle number and State license number,
    e. Number of individuals suffering physical injury,
    f. Number of fatalities,
    g. The police-reported cause of the accident,
    h. Whether the driver was cited for violation of any traffic laws, 
or motor carrier safety regulations, and
    i. The total driving time and the total on-duty time of the CMV 
driver at the time of the accident.

Termination

    The FMCSA does not believe the two motor carriers and 50 drivers 
covered by the exemptions will experience any deterioration of their 
safety record. However, should this occur, FMCSA will take all steps 
necessary to protect the public interest, including revocation of the 
exemptions. The FMCSA will immediately revoke the exemptions for 
failure to comply with its terms and conditions.

    Issued on: June 20, 2014.
Anne S. Ferro,
 Administrator.
[FR Doc. 2014-15043 Filed 6-26-14; 8:45 am]
BILLING CODE 4910-EX-P