Hours of Service (HOS) of Drivers; American Pyrotechnics Assn. (APA); Request To Add New Members to Current APA Exemptions; Request for Comments

Larry W. Minor
Federal Motor Carrier Safety Administration
18 April 2019

[Federal Register Volume 84, Number 75 (Thursday, April 18, 2019)]
[Notices]
[Pages 16322-16324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07783]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Dockets No. FMCSA-2007-28043; FMCSA-2018-0140]


Hours of Service (HOS) of Drivers; American Pyrotechnics Assn. 
(APA); Request To Add New Members to Current APA Exemptions; Request 
for Comments

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

ACTION: Notice of application for exemptions; request for comments.

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SUMMARY: FMCSA announces that it has received an application from the 
American Pyrotechnics Association (APA) requesting exemptions from the 
Agency's hours-of-service (HOS) regulations for four new members: 
Celebration Fireworks, Inc., International Fireworks Mfg. Company, 
Inc., Johnny Rockets Display Company, and the Wald & Company All 
American Display Fireworks Company. The first exemption request is from 
the prohibition on driving commercial motor vehicles (CMVs) after the 
14th hour after the driver comes on duty. APA requests this exemption 
to allow drivers employed by the four member companies to exclude off-
duty and sleeper-berth time of any length from the calculation of the 
14-hour limit. The second exemption request is from the HOS regulations 
that require a motor carrier to install and require each of its drivers 
to use an electronic logging device (ELD) to record the driver's HOS. 
APA requests this exemption to allow these same drivers employed by the 
four members to continue to use paper records of duty status (RODS) in 
lieu of an ELD during the designated Independence Day periods. If 
granted, these exemptions would terminate at the same time as the other 
53 exempted APA member carriers. The original terms and conditions of 
the limited exemptions, that ensure a level of safety equivalent to, or 
greater than, the level of safety achieved without the exemption, will 
be upheld by the four new members.

DATES: Comments are due no later than May 20, 2019.

ADDRESSES: You may submit comments bearing the Federal Docket 
Management System (FDMS) Docket ID FMCSA-2007-28043 and FMCSA-2018-0140 
using any of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Each submission must include the Agency name and the docket number 
for this notice. Note that DOT posts all comments received without 
change to www.regulations.gov, including any personal information 
included in a comment. Please see the Privacy Act heading below.
    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. If you want acknowledgment that we received 
your comments, please include a self-addressed, stamped envelope or 
postcard or print the acknowledgement page that appears after 
submitting comments on-line.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

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.

[[Page 16323]]

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 and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

Submitting Comments

    If you submit a comment, please include the docket numbers for this 
notice (FMCSA-2007-28043 and FMCSA-2018-0140), indicate the specific 
section of this document to which the comment applies, and provide a 
reason for suggestions or recommendations. You may submit your comments 
and material online or by fax, mail, or hand delivery, but please use 
only one of these means. FMCSA recommends that you include your name 
and a mailing address, an email address, or a phone number in the body 
of your document so the Agency can contact you if it has questions 
regarding your submission.
    To submit your comment online, go to www.regulations.gov and put 
the respective docket number, ``FMCSA-2007-28043'' or ``FMCSA-2018-
0140'' in the ``Keyword'' box, and click ``Search.'' When the new 
screen appears, click on ``Comment Now!'' button and type your comment 
into the text box in the following screen. Choose whether you are 
submitting your comment as an individual or on behalf of a third party 
and then submit. If you submit your comments by mail or hand delivery, 
submit them in an unbound format, no larger than 8\1/2\ by 11 inches, 
suitable for copying and electronic filing. If you submit comments by 
mail and would like to know that they reached the facility, please 
enclose a stamped, self-addressed postcard or envelope.

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-2007-28043'' or ``FMCSA-2018-0140'' 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 the safety analyses and the public comments, 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 reason for the grant or denial, and, if granted, 
the specific person or class of persons receiving the exemption, and 
the regulatory provision or provisions from which exemption is granted. 
The notice must also specify the effective period of the exemption (up 
to 5 years), and explain the terms and conditions of the exemption. The 
exemption may be renewed (49 CFR 381.300(b)).

Request for Exemptions

    The APA reports that it is a national safety and trade association 
of the U.S. fireworks industry, representing manufacturers, importers, 
distributors, wholesalers, retailers, suppliers and professional 
display companies. APA has over 250 member companies. Along with their 
subsidiaries, APA's member-companies are responsible for nearly 90 
percent of the fireworks manufactured, imported, distributed and 
professionally displayed in the United States.
    APA requested HOS exemptions from the 14-hour rule and the ELD rule 
for four new members: Celebration Fireworks, Inc., DOT #1527687, 
International Fireworks Mfg. Company, Inc., DOT #385065, Johnny Rockets 
Display Company, DOT #1263181, and the Wald & Company All American 
Display Fireworks Company, DOT #87079. The exemptions for these APA 
carriers, if granted, would expire on July 8, 2020. Although this is 
less than the 5-year exemption period authorized by 49 U.S.C. 
31315(b)(2), as amended by section 5206(a)(3) of the Fixing America's 
Surface Transportation (FAST) Act (Pub. L. 114-94, 129 Stat. 1312, 
1537, Dec. 4, 2015), FMCSA believes that the interests of the APA 
members and the Agency would best be served by synchronizing the 
expiration dates of all such fireworks-related exemptions. The four new 
members would be subject to all of the terms and conditions in the 
original exemptions.
    The CMV drivers employed by APA members are trained pyro-
technicians who hold commercial driver's licenses (CDLs) with hazardous 
materials (HM) endorsements. They transport fireworks and related 
equipment by CMVs on a very demanding schedule during a brief 
Independence Day period, often to remote locations. After they arrive, 
the drivers are responsible for set-up and staging of the fireworks 
shows.
    The APA has requested exemptions for the four new member companies 
because compliance with the current 14-hour rule in 49 CFR 395.3(a)(2) 
would impose a substantial economic hardship on numerous cities, towns 
and municipalities, as well as its members. To meet the demand for 
fireworks without the exemptions, APA states that its members would be 
required to hire a second driver for most trips. The APA advises that 
the result would be a substantial increase in the cost of the fireworks 
shows--beyond the means of many of its members' customers--and that 
many Americans would be denied this important component of the 
celebration of Independence Day.
    Additionally, APA is seeking exemptions from the ELD rule in 49 CFR 
395.8(a)(1)(i) for these same members. APA asserts that granting this 
exemption is appropriate because there is no basis to believe that 
continuing to allow paper record keeping for this limited subset of the 
regulated community, and for a limited period of time, would impact 
operational safety in any regard. In addition, due to the unique nature 
of the fireworks industry, requiring the use of ELDs for this limited 
seasonal delivery period would impose a substantial financial burden on 
members because it would require them to purchase/lease systems for use 
for only a short period every year.
    APA explained that members rely upon intermittent casual drivers 
periodically throughout the year and particularly during the busy 
Independence Day season when industry depends upon short-term rental 
trucks. The fireworks industry is unique in that it rents or leases 
approximately 90% of its vehicles throughout the year for fewer than 30 
days at a time. However, most rental companies require a minimum rental 
period of 14 to 21 days when APA members may only use the trucks in 
commerce for up to 11 days. The mix of

[[Page 16324]]

vehicles rented includes pick-up trucks, cargo vans, city vans and 
straight trucks less than 26,000 GVW. The industry relies heavily upon 
short-term rental trucks to transport and deliver 98% of the 16,000 
Independence Day fireworks displays nationwide.
    The APA believes that the exemptions would not adversely affect the 
safety of the fireworks transportation provided by these motor 
carriers. APA's members have operated under the exemption from the 14-
hour rule for 12 previous Independence Day periods without incident. 
Moreover, it asserts, without the extra time provided by the exemption 
from the 14-hour rule, safety would decline because APA drivers would 
be unable to return to their home base after each show. They would be 
forced to park the CMVs carrying HM 1.1G, 1.3G and 1.4G products in 
areas less secure than the motor carrier's home base. Without the 
exemption from the ELD rule, these companies would be required to 
purchase/lease ELD systems for a limited period of 11 days.
    APA asserts that the operational demands of this unique industry 
minimize the risks of CMV crashes. In the last few days before July 4, 
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. At the site, they 
spend considerable time installing, wiring, and safety-checking the 
fireworks displays, followed by several hours off 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.

Method To Ensure an Equivalent or Greater Level of Safety

    Before beginning another duty day, drivers must take 10 consecutive 
hours off duty. Drivers are off duty for several hours in the late 
afternoon and early evenings, prior to an event. Additionally, these 
members would continue to use paper RODS in lieu of an ELD during the 
designated Independence Day periods.

Terms and Conditions of the Exemption

Period of the Exemption

    The requested HOS exemptions from 49 CFR 395.3(a)(2) and 49 CFR 
395.8(a)(1)(i) would be effective from June 28 through July 8, at 11:59 
p.m. local time, each year through 2020.

Terms and Conditions of the Exemptions

    During the 2019 Independence Day period, the exemptions from 49 CFR 
395.3(a)(2) and 49 CFR 395.8(a)(1)(i) would be limited to drivers 
employed by the 53 motor carriers already covered by the exemptions, 
plus (if approved) the four carriers now seeking these exemptions. 
Section 395.3(a)(2) 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. Section 395.8(a)(1)(i) requires drivers of 
motor carriers subject to the rule to use ELDs to record their HOS. 
Drivers covered by these exemptions would be able to exclude off-duty 
and sleeper-berth time of any length from the calculation of the 14-
hour limit. The exemptions would be contingent on the following:
     Drivers do not drive 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 exception.
     Drivers must have 10 consecutive hours off duty following 
14 hours on duty prior to beginning a new driving period.
     Drivers must use paper RODs
     The carriers and drivers must comply with all other 
requirements of the Federal Motor Carrier Safety Regulations (49 CFR 
parts 350-399) and Hazardous Materials Regulations (49 CFR parts 105-
180).

Preemption

    In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 
381.600, during the period these exemptions would be in effect, no 
State shall enforce any law or regulation applicable to interstate 
commerce that conflicts with or is inconsistent with the exemptions 
with respect to a firm or person operating under the exemptions. States 
may, but are not required to, adopt the same exemptions with respect to 
operations in intrastate commerce.

FMCSA Notification

    Exempt motor carriers would be required to notify FMCSA within 5 
business days of any accidents (as defined by 49 CFR 390.5) involving 
the operation of any of their CMVs while under these exemptions. The 
notification must be by email to MCPSD@DOT.GOV and include the 
following information:
    a. Name of the Exemption: ``APA''
    b. Date of the accident,
    c. City or town, and State, in which the accident occurred, or 
which is closest to the scene of the accident,
    d. Driver's name and driver's license State, number, and class,
    e. Co-Driver's name and driver's license State, number, and class,
    f. Vehicle company number and power unit license plate State and 
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.
    In addition, if there are any injuries or fatalities, the carrier 
must forward the police accident report to MCPSD@DOT.GOV as soon as 
available.

    Issued on: April 11, 2019.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2019-07783 Filed 4-17-19; 8:45 am]
 BILLING CODE 4910-EX-P