Hours of Service of Drivers: Application for Exemption; American Pyrotechnics Association

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0140]

Hours of Service of Drivers: Application for Exemption; American Pyrotechnics Association

ACTION:

Notice of final disposition.

SUMMARY:

FMCSA announces its decision to grant the American Pyrotechnics Association (APA) an exemption from the hours-of-service (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 requested the exemption for APA member companies currently holding an exemption from the HOS 14-hour rule during the Independence Day season. These member companies will continue to use paper records of duty status (RODS) in lieu of an ELD during the designated Independence Day periods. FMCSA has determined that the terms and conditions of the exemption ensure a level of safety equivalent to, or greater than, the level of safety achieved without the exemption.

DATES:

The exemption is effective from June 28 through July 8, at 11:59 p.m. local time, in 2019 and 2020.

ADDRESSES:

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 Federal Docket Management System (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. LaTonya Mimms, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: (202) 366-9220, 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-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.

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: 202-366-4225. Email:

MCPSD@dot.gov.

If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826.

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 (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)).

III. Request for Exemption

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.

The Agency published a notice of APA's exemption application on April 24, 2018 (83 FR17877). APA sought a limited exemption from the ELD requirements to allow member companies currently holding an exemption from the 14-hour rule to continue to maintain paper RODs in lieu of ELDs. Various APA members have held 2-year exemptions during Independence Day periods from 2005 through 2014. On May 9, 2016, the current exemption for APA members was extended to July 8, 2020, pursuant to section 5206(b)(2)(A) of the Fixing America's Surface Transportation (FAST) Act (81 FR 28115).

APA asserted that granting this exemption would be 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 ELD systems for use for only a short period every year.

APA explained that its members rely upon intermittent casual drivers periodically throughout the year and particularly during the busy Independence Day season when the 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 less than 30 days at a time. However, most rental companies require a minimum rental period of 14 to 21 days, although APA member companies may only use the trucks in commerce for up to 11 days. The mix of vehicles rented includes pick-up trucks, cargo vans, city vans and straight trucks with a GVW of less than 26,000 pounds. The industry relies heavily upon short-term rental trucks to transport and deliver 98% of the 16,000 Independence Day fireworks displays nationwide. This exemption would only apply when the carriers designated in the APA HOS exemption, including revisions, are operating within the specified Independence Day periods.

IV. Public Comments

The Agency received 27 comments in response to the application published on April 24. The Owner-Operator Independent Drivers Association (OOIDA) and 20 individuals supported the exemption. The Advocates for Highway and Auto Safety (Advocates) and four individuals opposed it. One individual took no position on the exemption request.

OOIDA stated that “the current ELD marketplace does not adequately support the needs of the entire trucking industry. Since the December 2017 implementation, professional drivers have shared the real-world problems they have experienced because of malfunctioning devices, lack of connectivity in rural areas, and false claims made by ELD vendors. For these reasons, along with APA's prior exemption history, FMCSA should grant the exemption request.”

The Advocates said “the application does not meet the statutory and regulatory requirements for the exemption. The application fails to consider practical alternatives, justify the need for the exemption, provide an analysis of the safety impacts the requested exemption may cause, and provide information on the specific countermeasures to be undertaken to ensure that the exemption will achieve an equivalent or greater level of safety than would be achieved absent the exemption.”

V. FMCSA Decision

FMCSA has determined that granting an ELD exemption to APA for a limited period of 11 days during Independence Day celebrations will achieve a level of safety equivalent to or greater than the level that compliance with the ELD rule would ensure. Prior to publishing the

Federal Register

notice announcing the receipt of APA's application request for the exemption, FMCSA ensured that each APA member currently holding a limited exemption from the 14-hour rule 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 investigation of the safety performance history of each of those motor carriers. 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.

With regard to safety statistics, none of the carriers was under an imminent hazard or OOS order, had any alerts in the Safety Management System (SMS), or was under investigation by the Pipeline and Hazardous Materials Safety Administration. All had “satisfactory” safety ratings based on compliance reviews, and all had valid Hazardous Materials Safety Permits.

VI. Terms and Conditions of the Exemption

Period of the Exemption

The exemption from 49 CFR 395.8(a)(1)(i) is effective from June 28 through July 8, at 11:59 p.m. local time, in 2019 and 2020, for the 53 carriers identified in the appendix to this notice.

Terms and Conditions of the Exemption

This exemption from the ELD provisions in 49 CFR 395.8(a)(1)(i) is restricted to drivers employed by the APA motor carriers already covered by the multi-year exemption from the Agency's 14-hour rule listed in the appendix table of this notice. Drivers covered by the exemption may continue to use paper logs to record their record of duty status instead of using an ELD. Motor 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 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 Notification

Exempt motor carriers are required to notify FMCSA within 5 business days of any accidents (as defined by 49 CFR 390.5) involving their CMVs operating under this exemption. The notification must be by email to

MCPSD@DOT.GOV

and include the following information:

a. Name of the Exemption: “APA ELD”

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.

Termination

The FMCSA does not believe the motor carriers and drivers covered by this exemption will experience any deterioration of their safety record. However, should this occur, FMCSA will take all steps necessary to protect the public interest, including revocation of the exemption. The FMCSA will immediately revoke the exemption for failure to comply with its terms and conditions. Exempt motor carriers and

drivers are subject to FMCSA monitoring while operating under this exemption.

Issued on: February 8, 2019.

Raymond P. Martinez,

Administrator.

Appendix to Notice of Application for Approval of Motor Carriers To Utilize American Pyrotechnics Association's (APA) Exemption From the ELD Rule in Hours of Service for Drivers Regulations for Independence Day Periods

[June 28 through July 8, 2020]

Motor carrier

Street address

City, state, zip code

DOT No.

1. American Fireworks Company

7041 Darrow Road

Hudson, OH 44236

103972

2. American Fireworks Display, LLC

P.O. Box 980

Oxford, NY 13830

2115608

3. AM Pyrotechnics, LLC

2429 East 535th Rd

Buffalo, MO 65622

1034961

4. Arthur Rozzi Pyrotechnics

6607 Red Hawk Ct

Maineville, OH 45039

2008107

5. Artisan Pyrotechnics, Inc

82 Grace Road

Wiggins, MS 39577

1898096

6. Atlas PyroVision Entertainment Group, Inc

136 Old Sharon Rd

Jaffrey, NH 03452

789777

7. Central States Fireworks, Inc

18034 Kincaid Street

Athens, IL 62613

1022659

8. East Coast Pyrotechnics, Inc

4652 Catawba River Rd

Catawba, SC 29704

545033

9. Entertainment Fireworks, Inc

13313 Reeder Road SW

Tenino, WA 98589

680942

10. Falcon Fireworks

3411 Courthouse Road

Guyton, GA 31312

1037954

11. Fireworks & Stage FX America

12650 Hwy 67S., Suite B

Lakeside, CA 92040

908304

12. Fireworks by Grucci, Inc

20 Pinehurst Drive

Bellport, NY 11713

324490

13. Flashing Thunder Fireworks dba Legal Aluminum King Mfg

700 E Van Buren Street

Mitchell, IA 50461

420413

14. J&J Computing dba Fireworks Extravaganza

174 Route 17 North

Rochelle Park, NJ 07662

2064141

15. Gateway Fireworks Displays

PO Box 39327

St Louis, MO 63139

1325301

16. Great Lakes Fireworks

24805 Marine

Eastpointe, MI 48021

1011216

17. Hamburg Fireworks Display, Inc

2240 Horns Mill Road SE

Lancaster, OH

395079

18. Hawaii Explosives & Pyrotechnics, Inc

17-7850 N. Kulani Road

Mountain View, HI 96771

1375918

19. Hollywood Pyrotechnics, Inc

1567 Antler Point

Eagan, MN 55122

1061068

20. Homeland Fireworks, Inc

P.O. Box 7

Jamieson, OR 97909

1377525

21. J&M Displays, Inc

18064 170th Ave

Yarmouth, IA 52660

377461

22. Lantis Fireworks, Inc

130 Sodrac Dr., Box 229

N. Sioux City, SD 57049

534052

23. Legion Fireworks Co., Inc

10 Legion Lane

Wappingers Falls, NY 12590

554391

24. Miand Inc. dba Planet Productions (Mad Bomber)

PO Box 294, 3999 Hupp Road R31

Kingsbury, IN 46345

777176

25. Martin & Ware Inc. dba Pyro City Maine & Central Maine Pyrotechnics

P.P. Box 322

Hallowell, ME 04347

734974

26. Melrose Pyrotechnics, Inc

1 Kingsbury Industrial Park

Kingsbury, IN 46345

434586

27. Montana Display Fireworks, Inc

9480 Inspiration Road

Missoula, MT 59808

1030231

28. Precocious Pyrotechnics, Inc

4420-278th Ave NW

Belgrade, MN 56312

435931

29. Pyro Shows, Inc

115 N 1st Street

LaFollette, TN 37766

456818

30. Pyro Shows of Alabama, Inc

3325 Poplar Lane

Adamsville, AL 35005 55063

2859710

31. Pyro Shows of Texas, Inc

6601 9 Mile Azle Rd

Fort Worth, TX 76135

2432196

32. Pyro Engineering Inc., dba/Bay Fireworks

400 Broadhollow Rd., Ste #3

Farmingdale, NY 11735

530262

33. Pyro Spectaculars, Inc

3196 N Locust Ave

Rialto, CA 92376

029329

34. Pyro Spectaculars North, Inc

5301 Lang Avenue

McClellan, CA 95652

1671438

35. Pyrotechnic Display, Inc

8450 W. St. Francis Rd

Frankfort, IL 60423

1929883

36. Pyrotecnico (S. Vitale Pyrotechnic Industries, Inc.)

302 Wilson Rd

New Castle, PA 16105

526749

37. Pyrotecnico FX

6965 Speedway Blvd. Suite 115

Las Vegas, NV 89115

1610728

38. Rainbow Fireworks, Inc

76 Plum Ave

Inman, KS 67546

1139643

39. RES Specialty Pyrotechnics

21595 286th St

Belle Plaine, MN 56011

523981

40. Rozzi's Famous Fireworks, Inc

11605 North Lebanon Rd

Loveland, OH 45140

0483686

41. Sky Wonder Pyrotechnics, LLC

3626 CR 203

Liverpool, TX 77577

1324580

42. Skyworks, Ltd

13513 W. Carrier Rd

Carrier, OK 73727

1421047

43. Sorgi American Fireworks Michigan, LLC

935 Wales Ridge Rd

Wales, MI 48027

2475727

44. Spielbauer Fireworks Co, Inc

220 Roselawn Blvd

Green Bay, WI 54301

046479

45. Spirit of 76

6401 West Hwy 40

Columbia, MO 65202

2138948

46. Starfire Corporation

682 Cole Road

Carrolltown, PA 15722

554645

47. Vermont Fireworks Co., Inc./Northstar Fireworks Co., Inc

2235 Vermont Route 14 South

East Montpelier, VT 05651

310632

48. Western Display Fireworks, Ltd

10946 S. New Era Rd

Canby, OR 97013

498941

49. Western Enterprises, Inc

PO Box 160

Carrier, OK 73727

203517

50. Wolverine Fireworks Display, Inc

205 W Seidlers

Kawkawlin, MI

376857

51. Young Explosives Corp

P.O. Box 18653

Rochester, NY 14618

450304

52. Zambelli Fireworks MFG, Co., Inc

PO Box 1463

New Castle, PA 16103

033167

53. ZY Pyrotechnics, LLC dba Skyshooter Displays, Inc

1014 Slocum Road

Wapwallopen, PA 18660

1030231

[FR Doc. 2019-02661 Filed 2-15-19; 8:45 am]

BILLING CODE 4910-EX-P