Hours of Service (HOS) of Drivers; Application for Renewal of American Pyrotechnics Association Exemptions From the 14-Hour Rule and the Electronic Logging Device Rule During Independence Day Celebrations

Hours of Service (HOS) of Drivers; Application for Renewal of American Pyrotechnics Association Exemptions From the 14-Hour Rule and the Electronic Logging Device Rule During Independence Day Celebrations

Publication: Federal Register
Agency: Federal Motor Carrier Safety Administration
Byline: Robin Hutcheson
Date: 28 December 2022
Subject: American Government

, Safety, Trucking

[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Notices]
[Pages 79935-79938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28234]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2021-0052]

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

ACTION: Notice of final disposition; granting of application for
exemptions.

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SUMMARY: FMCSA announces its decision to grant exemptions for 32 member
companies of the American Pyrotechnics Association (APA) from certain
hours of service (HOS) regulations during designated Independence Day
periods. The exemptions will allow drivers for these companies to
exclude off-duty and sleeper berth time of any length from the
calculation of the 14-hour limit and to use paper records of duty
status (RODS) in lieu of electronic logging devices (ELDs). FMCSA has
analyzed the application for exemptions and the public comments
submitted and has determined that the exemptions, subject to the terms
and conditions imposed, will likely achieve a level of safety that is
equivalent to or greater than the level of safety that would be
achieved through compliance with the regulations.

DATES: These exemptions are effective for the period June 28 through
July 8, at 11:59 p.m. local time, each year from 2023 through 2024.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone: (202) 366-4225. Email:
pearlie.robinson@dot.gov. If you have questions on viewing or
submitting material to the docket, contact Dockets Operations, (202)
366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

To view comments, go to www.regulations.gov, insert the docket
number (``FMCSA-2021-0052'') in the keyword box, and click ``Search.''
Next, sort the results by ``Posted (Newer-Older),'' choose the first
notice listed, and click ``View Related Comments.''
To view documents mentioned in this notice as being available in
the docket, go to www.regulations.gov, insert the docket number
``FMCSA-2021-0052'' in the keyword box, click ``Search,'' and chose the
document to review.
If you do not have access to the internet, you may view the docket
online by visiting Dockets Operations 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., ET, Monday through Friday, except
Federal holidays. To be sure someone is there to help you, please call
(202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

II. Legal Basis

FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant
exemptions from 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
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 Agency must
publish its decision 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 specify the effective period and explain the terms and
conditions of the exemption. The exemption may be renewed (49 CFR
381.300(b)).

III. Background

Current Regulatory Requirements

The HOS regulation in 49 CFR 395.3(a)(2) prohibits the driver of a
property-carrying commercial motor vehicle (CMV) from driving after the
14th hour after coming on duty following 10 consecutive hours off duty.
Drivers required to prepare RODS must do so using ELDs under 49 CFR
395.8(a)(1)(i). However, under 49 CFR 395.8(a)(1)(iii)(A)(1), a motor
carrier may allow its drivers to record their duty status manually,
rather than use an ELD, if the driver is operating a CMV ``[i]n a
manner requiring completion of a record of duty status on not more than
8 days within any 30-day period.''

[[Page 79936]]

Applicant's Requests

APA reports that over 16,000 fireworks displays are conducted
annually. Although most of the displays are conducted on July 4 each
year, it is impossible to deliver and shoot all of the fireworks
displays on the Fourth of July holiday. Thus, the fireworks displays
are spread out over a period of 11 days.
APA requests renewal of its HOS exemptions from the 14-hour rule in
49 CFR 395.3(a)(2) and the ELD rule in 49 CFR 395.8(a)(1)(i) for 42 of
60 companies included in the 2021 HOS exemptions, which expired on July
8, 2021 [86 FR 34834]. The APA also requests the exemptions on behalf
of 3 additional companies not included in the 2021 HOS exemptions. A
copy of the request and additional correspondence modifying the request
are in the docket at the beginning of this notice.
APA member companies have held waivers or exemptions during
Independence Day periods each year since 2005. Copies of the initial
request for an exemption, subsequent renewal requests, and all public
comments received may be reviewed at www.regulations.gov under docket
numbers FMCSA-2005-21104, FMCSA-2007-28043, FMCSA-2018-0140, and FMCSA-
2021-0052.
On June 16, 2022, FMCSA granted APA a waiver from the 14-hour and
ELD regulations, effective June 28, 2022, through July 8, 2022. Prior
to issuing the waiver, the Agency conducted a safety analysis of the 45
carriers included in APA's request. The Agency determined that 38
carriers were eligible for the waiver. The waiver allowed these
carriers to operate with the requested relief for 11 days during the
2022 Independence Day period and provided the Agency with sufficient
time to process APA's exemption request. A copy of the waiver is
located at www.regulations.gov under docket number FMCSA-2021-0052.

IV. Equivalent Level of Safety

Since 2005, FMCSA has determined that the level of safety
associated with the transportation of fireworks would likely be
equivalent to, or greater than, the level of safety obtained by
complying with the 14-hour rule. In 2019, FMCSA reached the same
conclusion when it granted APA relief from the ELD requirement. APA
believes an equivalent level of safety will be achieved because the
fireworks are transported over relatively short routes from
distribution points to the site of the fireworks display, and normally
in the morning when traffic is light. APA also believes that fatigued
driving is reduced or eliminated because drivers spend considerable
time installing, wiring, and safety-checking the fireworks displays at
the site, followed by several hours off duty in the late afternoon and
early evening prior to the event. During this off-duty time, the
drivers are allowed to rest or take a nap. Additionally, these drivers
would continue to use paper RODS in lieu of an ELD during the
designated Independence Day periods. APA asserts that the scheduled off
duty time and use of RODS will ensure that fatigued driving is managed.

V. Public Comments

On July 8, 2022, FMCSA published notice of APA's application and
requested public comments (87 FR 40874). The Agency received one
comment. AWM Associates, LLC, stated that FMCSA should deny the
exemption because the requested timeframe of 11 days is unreasonable.
AWM Associates noted that drivers are not required to use an ELD if
they use paper logs no more than 8 days during any 30-day period and
questioned why APA member companies would need an exemption from the
14-hour rule after July 5.

VI. FMCSA Response

Based on the information APA provided, FMCSA determines that the
requested period of 11 days is reasonable. APA explained in its
application that fireworks displays are spread out over a period of 11
days because it would be impossible to deliver and shoot all 16,000
professional fireworks displays on July 4. To cover the 11-day period
without the exemptions, APA states that its members would have to hire
additional drivers with commercial driver's licenses (CDLs) and
hazardous material endorsements for a very brief period. APA explains
that it would be difficult or impossible to find enough qualified
drivers for this part-time, holiday-specific work, and the increased
cost could be passed along to the cities, towns and municipalities that
contract these shows.

VII. FMCSA Safety Analysis and Decision

FMCSA has evaluated APA's application and the safety records of the
45 companies to which the exemptions would apply and grants the
exemptions to 32 APA member companies. FMCSA believes that these 32 APA
member companies will likely achieve a level of safety equivalent to or
greater than the level of safety achieved without the exemption.
Prior to publishing the Federal Register notice announcing receipt
of APA's application to renew its HOS exemptions, FMCSA ensured that
each motor carrier possessed an active USDOT registration, minimum
required levels of insurance, and was not subject to any ``imminent
hazard'' or other out-of-service (OOS) orders. The Agency conducted a
comprehensive review of the safety performance history on each of the
motor carriers listed in the appendix table during the review process.
As part of this process, FMCSA reviewed its Motor Carrier Management
Information System safety records, including inspection and crash
reports submitted to FMCSA by State agencies. The motor carriers have
``satisfactory'' safety ratings issued by FMCSA and valid Hazardous
Materials Safety Permits. In addition, the Pipeline and Hazardous
Materials Safety Administration reviewed its investigative records. The
member carriers may be subject to investigations prior to future
renewal of the exemptions.
FMCSA denies the exemptions for 13 APA member companies. FMCSA
found that 12 member companies have vehicle and/or HM OOS rates higher
than the national average as of August 9, 2022. The 13th member company
was excluded because the company does not have a Hazardous Materials
Safety Permit. Under these circumstances, FMCSA believes it would be
inappropriate at this time to grant exemptions to these companies.

A. Grant of Exemptions

FMCSA grants the exemptions for a period June 28 through July 8 for
two years subject to the terms and conditions of this decision and the
absence of public comments that would cause the Agency to terminate the
exemption under Section F below. The exemptions from 49 CFR 395.3(a)(2)
and 49 CFR 395.8(a)(1)(i) are effective for the period June 28 through
July 8 each year from 2023 through 2024.

B. Applicability of Exemptions

The exemptions are limited to drivers employed by the 29 motor
carriers previously covered by the exemptions, and drivers employed by
the 3 additional carriers identified by an asterisk in the appendix
table of this notice. Drivers covered by these exemptions will be able
to exclude off-duty and sleeper-berth time of any length from the
calculation of the 14-hour limit. Drivers will be able to use

[[Page 79937]]

paper RODs in lieu of ELDs to record their HOS.

C. Terms and Conditions

When operating under these exemptions, motor carriers and drivers
are subject to the following terms and conditions:
1. Drivers must not drive more than 11 hours after accumulating 14
hours on duty prior to beginning a new driving period.
2. Drivers must have 10 consecutive hours off duty following 14
hours on duty prior to beginning a new driving period.
3. Drivers must use paper RODS and supporting documents, maintain
RODS and supporting documents for 6 months from the date the record is
prepared, and make RODS and supporting documents accessible to law
enforcement upon request.
4. Drivers and carriers subject to the ELD requirements before June
28 must continue to use ELDs and comply with all ELD requirements,
including maintaining ELD data for 6 months from the date the
electronic record is generated and making ELD data accessible to law
enforcement upon request.
5. Drivers must maintain a valid CDL with a hazardous materials
endorsement and not be subject to an out-of-service order or loss of
driving privileges.
6. Motor carriers must maintain a Hazardous Materials Safety Permit
and Satisfactory safety rating assigned by FMCSA under the procedures
in 49 CFR part 385.
7. Motor carriers must ensure their CMVs are properly marked as
required by 49 CFR 390.21(a)-(d). Motor carriers operating rented CMVs
may not rely on the marking provisions of 49 CFR 390.21(e).
8. Motor carriers must ensure they comply with the requirements for
shipping papers, package marking, labeling, and placarding in 49 CFR
part 172.
9. Drivers and motor carriers covered by the exemptions must comply
with all other applicable provisions of the Federal Motor Carrier
Safety Regulations (49 CFR parts 350-399) (FMCSRs) and Hazardous
Materials Regulations (49 CFR parts 105-180) (HMRs).
10. Prior to the beginning of each period of operations during the
exemption, FMCSA will ensure that each motor carrier possesses an
active USDOT registration, minimum required levels of insurance, and
was not subject to any ``imminent hazard'' or other out-of-service
(OOS) orders. FMCSA will also conduct a comprehensive review of the
safety performance history on each of the motor carriers listed in the
appendix table during the review process. As part of this process,
FMCSA will review its Motor Carrier Management Information System
safety records, including inspection and crash reports submitted to
FMCSA by State agencies.
11. Motor carriers may be investigated to evaluate compliance with
the terms and conditions of this exemption, in addition to the FMCSRs
and HMRs.

D. 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.

E. Notification to FMCSA

Motor carriers using exempt drivers must notify FMCSA within five
business days of any crashes (as defined by 49 CFR 390.5) involving the
operation of any its CMVs while operating under these exemptions. The
notification must include the following information:
a. Identifier of the Exemptions: ``APA'';
b. Date of the crash;
c. City or town, and State, in which the accident occurred, or
which is closest to the scene of the crash;
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 crash;
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 crash.
Reports filed under this provision shall be emailed to
MCPSD@DOT.GOV.

F. Termination

FMCSA does not believe the motor carriers or drivers covered by
these exemptions will experience any deterioration of their safety
record. The exemptions will be rescinded if: (1) motor carriers and
drivers operating under the exemptions fail to comply with the terms
and conditions of the exemptions; (2) the exemptions have resulted in a
lower level of safety than was maintained before the exemptions were
granted; (3) the annual investigation yields unsatisfactory results; or
(4) continuation of the exemptions would not be consistent with the
goals and objectives of 49 U.S.C. 31136(e) and 31315.

Robin Hutcheson,
Administrator.

Appendix to Notice of Applications for Renewal of APA Exemptions From
the 14-Hour and ELD HOS Rules for Independence Day Periods

June 28, 2022 Through July 8, 2024 for 32 Motor Carriers
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City, state, zip
Motor carrier Street address code DOT No.
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1................................ American Fireworks 105 County Route 7.. McDonough, NY 13801. 2115608
Display, LLC.
2................................ AM Pyrotechnics, LLC 2429 East 535th Rd.. Buffalo, MO 65622... 1034961
3................................ Arthur Rozzi 6607 Red Hawk Ct.... Maineville, OH 45039 2008107
Pyrotechnics.
4................................ Artisan 82 Grace Road....... Wiggins, MS 39577... 1898096
Pyrotechnics, Inc.
5................................ Celebration 7911 7th Street..... Slatington, PA 18080 1527687
Fireworks, Inc..
6................................ * CP Transport, LLC. 6377 Hwy. 62 NE..... Lanesville, IN 47136 3076205
7................................ Dominion Fireworks, 669 Flank Road...... Petersburg, VA 23805 540485
Inc.
8................................ Falcon Fireworks.... 3411 Courthouse Road Guyton, GA 31312.... 1037954
9................................ Fireworks & Stage FX 12650 Hwy 67S. Suite Lakeside, CA 92040.. 908304
America. B.
10............................... Fireworks by Grucci, 20 Pinehurst Drive.. Bellport, NY 11713.. 324490
Inc.

[[Page 79938]]

11............................... Aluminum King Mfg., 700 E Van Buren Mitchell, IA 50461.. 420413
Ltd. dba Flashing Street.
Thunder Fireworks
Thunder Fireworks.
12............................... Great Lakes 24805 Marine........ Eastpointe, MI 48021 1011216
Fireworks.
13............................... Hollywood 1567 Antler Point... Eagan, MN 55122..... 1061068
Pyrotechnics, Inc.
14............................... Johnny Rockets 3240 Love Rock...... Steger, IL 60475.... 1263181
Fireworks Display
Company.
15............................... Las Vegas Display 4325 West Reno Ave.. Las Vegas, NV 89118. 3060878
Fireworks, Inc.
16............................... Legion Fireworks 10 Legion Lane...... Wappingers Falls, NY 554391
Co., Inc. 12590.
17............................... *Pyro Productions 2083 Helms Road..... Rehobeth, AL 36301.. 3723192
Inc.
18............................... *Pyro Shows East 4652 Catawba River Catawba, SC 29704... 3709087
Coast. Road.
19............................... Pyro Shows of 3325 Poplar Lane.... Adamsville, AL 35005 2859710
Alabama, Inc.
20............................... Pyro Shows of Texas, 6601 9 Mile Azle Rd. Fort Worth, TX 76135 2432196
Inc.
21............................... Pyro Spectaculars, 3196 N Locust Ave... Rialto, CA 92376.... 029329
Inc.
22............................... Pyro Spectaculars 5301 Lang Avenue.... McClellan, CA 95652. 1671438
North, Inc.
23............................... Pyrotecnico 299 Wilson Rd....... New Castle, PA 16105 526749
Fireworks Inc.
24............................... RES Specialty 21595 286th St...... Belle Plaine, MN 523981
Pyrotechnics dba 56011.
RES Pyro.
25............................... Rozzi's Famous 118 Karl Brown Way.. Loveland, OH 45140.. 0483686
Fireworks, Inc.
26............................... Santore's World 846 Stillwater Schaghticoke, NY 2574135
Famous Fireworks, Bridge Road. 12154.
LLC.
27............................... Southern Sky 6181 Denham Rd...... Sycamore, GA 31790- 3168056
Fireworks, LLC. 2603.
28............................... Spielbauer Fireworks 1976 Lane Road...... Green Bay, WI 54311. 046479
Co, Inc.
29............................... Vermont Fireworks 2235 Vermont Route East Montpelier, VT 310632
Co., dba. 14 South. 05651.
Northstar Fireworks
Co., Inc.
30............................... Western Display 10946 S. New Era Rd. Canby, OR 97013..... 498941
Fireworks, Ltd.
31............................... Wolverine Fireworks 205 W Seidlers...... Kawkawlin, MI....... 376857
Display, Inc.
32............................... Young Explosives 2165 New Michigan Rd Canandaigua, NY 450304
Corp. 14618.
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[FR Doc. 2022-28234 Filed 12-27-22; 8:45 am]
BILLING CODE 4910-EX-P