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

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
5 July 2016

[Federal Register Volume 81, Number 128 (Tuesday, July 5, 2016)]
[Notices]
[Pages 43699-43701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15798]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0111]


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

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

ACTION: Notice of final disposition; granting of renewal.

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SUMMARY: FMCSA announces its decision to grant exemption renewals to 
Illumination Fireworks, LLC and ACE Pyro, LLC (the applicants) from the 
prohibition on driving commercial motor vehicles (CMVs) after the 14th 
hour after coming on duty. The applicants requested the exemption 
renewals for the period of June 28-July 8, for the next 5 years (2016-
2020 inclusive). The applicants were previously granted exemptions 
during the Independence Day periods of 2014 and 2015. The 5-year 
renewals will cover the drivers of approximately 50 CMVs employed by 
the applicants to stage fireworks shows celebrating Independence Day. 
The Agency has determined that the terms and conditions of the limited 
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 periods of June 28 
through July 8, 2016 through 2020.
    Docket: For access to the docket to read background documents or 
comments, 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 FDMS is available 24 hours each 
day, 365 days each year

FOR FURTHER INFORMATION CONTACT: For information concerning this 
notice, 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. If you have 
questions on viewing or submitting material to the docket, contact 
Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, ``FMCSA-2014-0111'' in the ``Keyword'' box and click 
``Search.'' Next, click ``Open Docket Folder'' button and choose the 
document listed to review. If you do not have access to the Internet, 
you may view the docket online by visiting the Docket Management 
Facility in Room W12-140 on the ground floor of the DOT West Building, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., e.t., Monday through Friday, except Federal holidays.

II. Legal Basis

    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).

[[Page 43700]]

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)).

III. Application for Exemptions

    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. The 
applicants represent two fireworks display companies that were 
previously granted exemptions during the Independence Day periods of 
June 28-July 8, 2014 and 2015. The applicants' initial exemption 
application for relief from the 14-hour rule, submitted in 2014 and in 
docket FMCSA-2014-0111, fully describes the CMV operations of fireworks 
companies during the extended July 4 holiday.
    The applicants requested a renewal of their exemptions for the 
period of June 28-July 8, for the next 5 years (2016-2020 inclusive). 
Section 5206(a)(2) of the ``Fixing America's Surface Transportation 
Act'' (FAST Act) [Pub. L. 114-94, 129 Stat. 1312, Dec. 4, 2015] amended 
49 U.S.C. 31315(b) to permit exemptions for no longer than 5 years from 
their dates of inception.
    As stated in the applicants' request, their CMV drivers hold 
commercial driver's licenses (CDLs) with hazardous materials 
endorsements and transport Division 1.3G and 1.4G fireworks to set up 
fireworks shows for Independence Day. The applicants state that 
compliance with the 14-hour rule would impose economic hardship on 
cities, municipalities, and themselves because two drivers would be 
required, significantly increasing the cost of the fireworks display.
    The applicants assert that without the extra duty-period provided 
by the exemption, safety would decline as firework drivers would be 
unable to return to their home base following each show, should they 
have unused fireworks 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 carrier's home base.

IV. Method To Ensure an Equivalent or Greater Level of Safety

    As a condition for maintaining the exemption, each motor carrier 
would be required to notify FMCSA within 5 business days of any crash 
(as defined in 49 CFR 390.5) involving the operation of any CMVs under 
this exemption. The applicants advise they have never been involved in 
a crash.
    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 2015 Independence Day season, the farthest Illumination 
Fireworks traveled from its home base was 150 miles. At the site, 
drivers spend considerable time installing, wiring, and checking the 
safety of fireworks, followed by several hours of duty in the late 
afternoon and early evening prior to the event. Before beginning 
another duty day, these drivers must take 10 consecutive hours off 
duty, the same as other CMV drivers.

V. Public Comments

    On March 16, 2016, FMCSA published notice of this application, and 
asked for public comment (81 FR 14208). One comment was received; 
Advocates for Highway and Auto Safety (Advocates) opposed the 
exemption.
    Advocates said it ``objects to the granting of the present 
exemption on the same policy and safety grounds detailed in prior 
comments regarding similar applications for exemption filed by the 
American Pyrotechnics Association and the original application filed by 
the applicants.'' Advocates pointed out that Illumination Fireworks' 
out-of-service (OOS) rate for vehicles was 61 percent above the 
national average; for drivers more than 5 times the national average; 
and for hazardous materials nearly 6.5 times the national average. It 
also noted that Illumination Fireworks was cited for three violations 
on June 28, 2014, the first day of the previous exemption; two of the 
violations resulted in OOS orders. Similarly, Advocates described ACE 
Pyro's vehicle OOS rate as double the national average and its driver 
OOS rate as more than 3.5 times the national average. Advocates stated 
that, ``Motor carriers of hazardous materials with less than exemplary 
safety records, such as these petitioners, should not be granted an 
exemption from the federal safety and hours of service requirements 
that have been specifically adopted to ensure operating safety on our 
public roads and highways.''
    All comments are available for review in the docket for this 
notice.

VI. FMCSA Response to Public Comments and Agency Decision

    The Agency comprehensively investigates the safety history of each 
applicant during the review process. Prior to publishing a Federal 
Register notice announcing the receipt of an exemption request, FMCSA 
ensures 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 rating of the carrier in the Agency's 
Safety Management System (SMS) is considered. FMCSA has reviewed these 
safety records, including inspection and accident reports, for the 
applicants. The Agency also requested and received a records review of 
each carrier from the Pipeline and Hazardous Materials Safety 
Administration (PHMSA). None of these records reflected decisive 
negative information about the applicants' safety performance or 
status. Each applicant has a ``satisfactory'' safety rating.
    The OOS records of Illumination Fireworks and ACE Pyro, as 
described by the Advocates, are not representative of the safety record 
of these carriers. Because of the small numbers of inspections on 
record for the applicants, the OOS rates are not a valid basis for 
comparison with industry-wide averages. For example, a carrier having 
only three inspections, with one of those including a driver OOS 
violation, would have a driver OOS rate of 33% compared to the National 
average for inspected drivers of approximately 5%. Under those 
circumstances, FMCSA would not consider the apparently high OOS rate to 
be particularly significant.
    The June 28, 2014 inspection of Illumination cited by Advocates 
occurred nearly 2 years ago. The OOS violations included a problem with 
the hazardous materials (HM) shipping papers and a driver with an 
improper class of CDL. Although serious, neither of these violations 
posed an imminent hazard since one was a paperwork violation and the 
driver cited for the other held a CDL with a hazardous materials 
endorsement. FMCSA considers 2 years of data when evaluating safety 
records. This inspection will no longer be within the 2-year period by 
the time this year's exemption period begins.

[[Page 43701]]

    The two inspections of Ace Pyro on record occurred on different 
vehicles in 2015. In both instances, there were OOS problems with 
brakes and on one a driver with an improper class of CDL. Because Ace 
Pyro had no negative information in our review of its safety records 
that would warrant an unsatisfactory safety rating, FMCSA does not 
consider these two inspections to be a clear indicator of overall 
safety problems with this carrier.
    The Agency believes that the applicants operating under the 
exemption 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)]. FMCSA therefore grants the requested exemptions for 5 
years.

 VII. Terms and Conditions of the Exemption

Period of the Exemption

    The exemption from the requirements of 49 CFR 395.3(a)(2) is 
effective for the periods of June 28-July 8, 2016 through 2020.

Extent of the Exemption

    The exemption is restricted to the drivers employed by the 
applicants. The drivers are exempt 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 exemption 
may exclude off-duty and sleeper-berth time of any length from the 
calculation of the 14-hour limit. The exemption is 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. The 
exemption is further contingent on each driver having a minimum of 10 
consecutive hours off duty prior to beginning a new duty period. 
Drivers operating under the exemption must carry a copy of this Federal 
Register notice or equivalent signed letter from FMCSA, and provide it 
to enforcement officers upon request. 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 exemption is 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) orders issued by 
FMCSA. Each driver covered by the exemption is required to maintain a 
valid CDL with the appropriate endorsements, not be subject to any 
suspension of driving privileges, and meet all physical qualifications 
required by 49 CFR part 391.

Preemption

    In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 
381.600, during the period this exemption is in effect, no State shall 
enforce any law or regulation applicable to interstate commerce that 
conflicts with or is inconsistent with this exemption with respect to a 
firm or person operating under the exemption. States may, but are not 
required to, adopt the same exemption with respect to operations in 
intrastate commerce.

FMCSA Accident Notification

    Exempt motor carriers are required to notify FMCSA within 5 
business days of any accident (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 Identity: ``Illumination Fireworks'' or ``Ace Pyro''
    b. Name of operating motor carrier and USDOT number,
    c. Date of the accident,
    d. City or town, and State, in which the accident occurred, or 
closest to the accident scene,
    e. Driver's name and driver's license number and State of issuance,
    f. Vehicle number and State license plate 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 driver's total driving time and total on-duty time period 
prior to the accident.
    Accidents would be reported via email to MCPSD@DOT.GOV.

    Issued on: June 27, 2016.
 T.F. Scott Darling, III,
 Acting Administrator .
[FR Doc. 2016-15798 Filed 6-29-16; 4:15 pm]
 BILLING CODE 4910-EX-P