[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: [email protected]. 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 [email protected].
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