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

T. F. Scott Darling III
Federal Motor Carrier Safety Administration
June 26, 2015

[Federal Register Volume 80, Number 123 (Friday, June 26, 2015)]
[Notices]
[Pages 36894-36896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15723]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0111]


Hours of Service of Drivers: Renewal of Illumination Fireworks, 
LLC and ACE Pyro, LLC Exemptions 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.

-----------------------------------------------------------------------

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 a CMV following the 14th hour after coming on duty. The FMCSA 
renews the exemptions for drivers of approximately 50 CMVs employed by 
the applicants in conjunction with staging fireworks shows celebrating 
Independence Day during the period June 28-July 8, 2015, 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 will 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.

DATES: These exemptions are effective during the period of June 28 
(12:01 a.m.) through July 8, 2015 (11:59 p.m.).

FOR FURTHER INFORMATION CONTACT: Mrs. Pearlie Robinson, Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 202-366-4325, Email: MCPSD@dot.gov, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001.
    Docket: For access to the docket to read background documents or 
comments submitted to notice requesting public comments on the 
exemption application, go to www.regulations.gov at any time or visit 
Room W12-140 on the ground level of the West Building, 1200 New Jersey 
Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., ET, Monday 
through Friday, except Federal holidays. The on-line Federal document 
management system is available 24 hours each day, 365 days each year. 
The docket number is listed at the beginning of this notice.

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 (FMCSRs). 
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

    The initial exemption application from Illumination Fireworks, LLC 
(USDOT 2326703) and ACE Pyro, LLC (USDOT 1352892) (the applicants) for 
relief from the HOS rule was submitted in 2014; a copy is in the 
docket. That document fully described the nature of operations 
encountered by CMV drivers employed by the applicants. On June 28, 
2014, the Agency granted the applicants' exemptions from the HOS 
regulation that prohibits drivers from operating property-carrying CMVs 
after the 14th hour after coming on duty. The exemption expired on July 
8, 2014.
    On October 14, 2014, FMCSA published notice of the applicants' 
renewal request (79 FR 61687). The applicants are fireworks display 
companies that employ CMV drivers who hold commercial driver's licenses 
(CDLs) with hazardous materials (HM) endorsements to transport Division 
1.3G and 1.4G explosives (fireworks) in conjunction with the setup of 
fireworks 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 they are seeking 
HOS exemptions for the 2015 Independence Day period 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 fireworks 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 explosives 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 
will 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.
    In the exemption request, the applicants asserted 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 2014 Independence Day season, the furthest Illumination 
Fireworks or ACE Pyro CMVs traveled from their home bases was 150 
miles, which involves a very

[[Page 36895]]

small amount of driving. 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

    Two comments were received in response to the October 14 notice. 
The Advocates for Highway and Auto Safety (Advocates) and Ms. Lisa 
Kupsey opposed the application.
    The Advocates said 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 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.''
    Ms. Kupsey commented
    ``Is this business that necessary that it has to allow its 
employees to be `exempt'? Probably not.''
    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 of the applicants' exemption request, FMCSA ensured that the 
motor carriers involved have a current USDOT registration, Hazardous 
Materials Safety Permit, minimum required levels of insurance, and were 
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 
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).
    FMCSA reviewed the comments and concluded that the information 
provided by Ms. Kupsey did not address this notice.
    With regards to Advocates' suggestion that the applicants should 
have alternative means to comply with the HOS regulations without an 
exemption, FMCSA does not believe reasonable alternatives are 
necessarily available in many locations. Such alternatives would 
include locating additional drivers with CDLs and HM endorsements. This 
is difficult for part-time, holiday-specific work. CDL holders with HM 
endorsements are likely to be in high demand, given the Transportation 
Security Administration requirements for such drivers. And, as 
indicated in this notice and the application, potential alternatives 
could drive the cost of fireworks displays beyond the financial 
capabilities of many communities.
    The FMCSA has evaluated the application, the safety records of the 
companies to which the exemption would apply, and the comments. The 
Agency believes 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 the CMV drivers 
employed by the applicants.

Terms and Conditions of the Exemptions

Period of the Exemptions

    These exemptions are effective during the period of June 28 (12:01 
a.m.) through July 8, 2015 (11:59 p.m.).

Extent of the Exemptions

    The drivers employed by the applicants are provided an 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 FMCSRs (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, 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. Drivers operating under an exemption must carry a copy of 
the exemption document onboard the vehicle for review by any law 
enforcement officer.

Preemption

    During the period 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 by email to MCPSD@DOT.GOV 
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. Exemption Identifier: ``ILLUM/ACE''
    b. Name and USDOT number of the motor carrier,
    c. Date of the accident,
    d. City or town, and State, in which the accident occurred, or 
which is closest to the scene of the accident,
    e. Driver's name and driver's license number,
    f. Vehicle number and State license number,
    g. Number of individuals suffering physical injury,
    h. Number of fatalities,
    i. The police-reported cause of the accident,
    j. Whether the driver was cited for violation of any traffic laws, 
or motor carrier safety regulations, and
    k. 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 approximately 
50 drivers covered by the exemptions will experience any deterioration 
of their

[[Page 36896]]

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 8, 2015.
T. F. Scott Darling III,
Chief Counsel.
[FR Doc. 2015-15723 Filed 6-25-15; 8:45 am]
 BILLING CODE 4910-EX-P