Commercial Driver's License; Waiver for Pyrotechnics Industry; Request for Comments

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 383

[FHWA Docket No. MC-95-16]

Commercial Driver's License; Waiver for Pyrotechnics Industry;

Request for Comments

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of petition; request for comment.

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SUMMARY: The FHWA is requesting public comment on a petition submitted

by the pyrotechnics industry on March 6, 1995, for relief from the

requirements of the commercial driver's license regulations (CDL) (49

CFR Part 383). The FHWA is proposing to authorize waivers for certain

drivers transporting fireworks to displays during the period of

Independence Day celebrations from the CDL testing and licensing

standards. The drivers to be covered by these waivers are part-time

drivers who have an otherwise valid driver's license, as well as

licenses or permits issued by applicable State or local agencies

certifying that they are approved pyrotechnic operators. A waiver

issued by a State under this proposal would only authorize the

transportation of less than 500 pounds of fireworks classified as DOT

Class 1.3G explosives, from June 30 through July 6 of each year,

provided that the vehicles operated have gross vehicle weight ratings

(GVWR) of less than 10,001 pounds and are operated within 300 miles of

the sites of origin. The FHWA requests public comment on whether, if

granted, the proposed grant of waiver authority would be contrary to

the public interest or diminish the safe operation of commercial motor

vehicles.

DATES: Comments must be received on or before June 9, 1995.

ADDRESSES: All signed, written comments should refer to the docket

number that appears at the top of this document and should be submitted

to the Federal Highway Administration, Room 4232, Office of Chief

Counsel, HCC-10, 400 Seventh Street SW., Washington, DC 20590-0001.

All comments received will be available for examination at the above

address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,

except Federal holidays. Commenters who want to be notified that the

FHWA received their comments should include a self-addressed,

stamped postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Redmond, Office of Motor

Carrier Standards, (202) 366-4001, or Mr. Raymond W. Cuprill, Office of

the Chief Counsel, HCC-20, (202) 366-0834, Federal Highway

Administration, Department of Transportation, 400 Seventh Street, SW.,

Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15

p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

The Commercial Driver's License (CDL) regulations, issued pursuant

to the Commercial Motor Vehicle Safety Act of 1986 (Title XII, Pub. L.

99-570, 100 Stat. 3207, 3207-170) (49 U.S.C. 31502), are found at 49

CFR Part 383 (1994). Section 383.23 of the regulations sets forth the

general rule that no person shall operate a commercial motor vehicle

(CMV) unless such person: (1) Has taken and passed a knowledge test

and, if applicable, a driving test, which meets Federal standards, and

(2) possesses a CDL, which is evidence of having passed the required

tests. These Federal standards ensure that drivers of a CMV: (1) Have a

single driver's license and a single driving record, (2) are tested for

the knowledge and skills needed to drive a vehicle representative of

the vehicle that they will be licensed to drive, and (3) are

disqualified from driving a CMV when convicted of certain criminal or

traffic violations. Drivers operating commercial motor vehicles that

haul hazardous materials are also required to take and pass specialized

tests for specific endorsements to their licenses.

The term ``commercial motor vehicle'' is defined to include, a

motor vehicle:

(1) With a gross combination weight rating of 26,001 or more pounds

inclusive of a towed unit with a GVWR of more than 10,000 pounds; or

(2) With a GVWR of 26,001 or more pounds; or

(3) Designed to transport 16 or more passengers, including the

driver; or

(4) Used in the transportation of quantities of hazardous materials

which require the vehicle to be placarded under the Hazardous Materials

Transportation Regulations (49 CFR part 172, subpart F). 49 CFR 383.5

(1994). [[Page 24821]]

CDL Waivers

Section 12013 of the Commercial Motor Vehicle Safety Act of 1986

(the Act) authorizes the Secretary of Transportation to waive any class

of drivers or vehicles from any or all of the provisions of the Act or

the implementing regulations if the Secretary determines that the

waiver is not contrary to the public interest and does not diminish the

safe operation of commercial motor vehicles. The regulatory procedures

governing the issuance of waivers are found at 49 CFR 383.7 (1994).

The FHWA has granted a CDL waiver to military personnel operating

military vehicles and has authorized the States to waive certain

farmers, firefighters and operators of emergency equipment in

implementing the CDL regulations. See 53 FR 37313, September 26, 1988.

In addition, the agency also authorized the States to waive, at their

option, employees of farm-related service industries (custom

harvesters, retail outlets and suppliers, agri-chemical businesses, and

livestock feeders) from the CDL knowledge and skill testing

requirements, and issue these employees restricted CDLs for a seasonal

period or periods not to exceed a total of 180 days in any 12-month

period, subject to certain conditions. See 57 FR 13650, April 17, 1992.

Petition

The American Pyrotechnics Association, a non-profit group

representing the pyrotechnics industry, has petitioned the FHWA to

reconsider its previous determinations,1 and grant a CDL waiver to

part-time drivers involved in fireworks displays. Petitioner asserts

that the requested waiver would only be available to part-time

employees who drive small vehicles containing limited quantities of

fireworks over short distances within a period of seven days. All

permanent fireworks employees have obtained CDLs as part of their job

requirements. Moreover, all part-time employees falling within this

proposed waiver would be required to complete fireworks-specific

training pursuant to 49 CFR 172.700 et seq.

\1\The FHWA had denied a petition for a CDL waiver filed by the

American Pyrotechnics Association. In the Matter of American

Pyrotechnics Association, Petition No. 91-03, May 3, 1991. See also,

Administrator Larson's letter dated July 5, 1991, denying the

American Pyrotechnics Association's request for reconsideration.

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Petitioner argues that the waiver is necessary because, since

implementation of the CDL rule in 1992, the fireworks industry has

faced serious problems in delivering small fireworks displays to

customers located in remote areas. In order to respond to thousands of

requests by Fourth of July celebrants, such as small townships, the

companies must rely on part-time drivers who not only drive to the

display sites, but also handle and discharge the fireworks. Most such

technicians work full-time at other jobs, but return each year to the

fireworks industry because of their interest in fireworks displays and

the opportunity to earn extra money. Petitioner claims that these

individuals would not go through the trouble and expense of obtaining a

CDL, which would require preparation for irrelevant endorsement

examinations that cover all hazardous materials, in part because they

do not receive sufficient compensation to make the effort worthwhile.

Moreover, these are not professional commercial drivers transporting

hazardous materials, but persons who derive their livelihood from other

professions, typically school teachers, and are involved in the

fireworks business for several days every year. Due to the extensive

use of such seasonal employees by the fireworks industry to meet the

peak demands of the Fourth of July season, Petitioner asserts that the

proposed waiver would alleviate the need for those employees to obtain

a CDL, while still requiring that they meet extensive Federal safety

and local licensing requirements specific to the transport and handling

of fireworks.

In addition, the transportation of fireworks for displays in small

communities is provided by vehicles, generally having a GVWR of less

than 10,001 pounds, for which a CDL would not be required but for the

hazardous nature of the cargo. The vehicles are largely pickup trucks

and vans for which no special vehicle operation skills are required.

Consequently, the Petitioner has narrowed the waiver request to include

only the following:

1. Part-time drivers, to be defined as drivers over 21 years of age

working no more than seven days per year in the pyrotechnics industry;

2. Drivers must be operating under the appropriate license or

approval as a pyrotechnic operator issued by State or local authority

having jurisdiction in accordance with State fireworks law;

3. Drivers will operate within a 300 mile radius of the driver's

work reporting location;

4. Vehicles must have a GVWR less than 10,001 pounds;

5. Vehicles must be carrying 500 or less pounds of Class 1.3G

explosives;

6. Driver must carry documentation certifying that he/she has

received fireworks-specific transportation safety training required

under 49 CFR Part 172, subpart H; and

7. Driver must carry a certificate indicating that his/her driving

record has been investigated by the fireworks company offering the

fireworks for transportation, and the driver has not been found guilty

of a ``serious traffic violation'' as defined in 49 CFR Part 383 during

the preceding 12 months.

Copies of this and previous petitions filed by the American

Pyrotechnics Association and other members of the pyrotechnics industry

are being included in the docket established by this notice and may be

examined by the public.

Proposed Waiver

In order to provide relief to the pyrotechnics industry, the FHWA

is proposing to authorize limited waivers to be granted by States, at

their discretion, from the CDL testing and licensing standards, without

jeopardizing Federal funds. These waivers could be granted to certain

part-time drivers involved in the transportation of fireworks to

pyrotechnic display sites, and would relieve those drivers from the

requirement to obtain a hazardous materials endorsement and

consequently from any requirement to obtain a CDL.

The proposed waiver authority would be subject to the following

conditions:

(1) Drivers covered--Applicants must be 21 years of age and hold a

valid operator's license, and drive solely on a part-time basis for the

pyrotechnics industry. The term ``part-time driver'' as used herein,

refers to drivers working for the pyrotechnics industry for no more

than 7 consecutive days per year (June 30 through July 6) and involved

in the transportation of fireworks to be used in pyrotechnics displays.

Applicants must also hold a State or local permit or license issued by

State or local authority having jurisdiction in accordance with State

fireworks law and must carry documentation certifying that he/she has

received fireworks-specific transportation safety training pursuant to

49 CFR 172.700 et seq. The State or local permit or license and the

certificate of training will substitute for an otherwise required CDL

during the period of the waiver, in order to allow State enforcement of

the CDL requirements.

(2) Duration--Waivers from the CDL requirements would only be valid

for the period from June 30 through July 6.

(3) Materials--Waivers would authorize the transportation of only

500 or less pounds of fireworks classified as DOT Class 1.3G

explosives. [[Page 24822]]

(4) Vehicles--Waivers would be limited to the operation of Group C

vehicles, as defined in 49 CFR 383.91, provided that the vehicle

operated has a GVWR of less than 10,001 pounds.

(5) Area--Waivers would be granted to operate the vehicles

described above within a 300-mile radius from the driver's work

reporting location. Neighboring States may recognize such waivers

provided the driver and the vehicle are operating within the 300-mile

radius.

(6) Convictions--Waivers would only be granted to drivers who have

not been convicted of a ``serious traffic violation'' as defined in 49

CFR 383.5, in any type of motor vehicle during the preceding 12 month

period.

The Petitioner claims that the conditions and restrictions imposed

on the grant of waiver authority will ensure that the safe operation of

CMVs is not diminished. Drivers participating in the waiver program

would be part-time non-professional drivers, operating vehicles that

would not be considered CMVs except for the nature of the cargo. These

drivers would be required to have a good driving record and would be

licensed, knowledgeable and trained in the handling of the hazardous

materials to be carried. It also appears that the waiver restrictions

related to driver documentation, duration, and area of operation

(mileage) will ensure that implementation, regulation and enforcement

of the waivers' requirements by the States is not unduly burdensome.

Moreover, the final decision on whether to implement a waiver program

will rest with the States.

Request for Public Comment

The FHWA is requesting specific views, information, and data that

it should consider when determining whether or not the proposed waiver

would be contrary to the public interest or would diminish the safe

operation of CMVs. Commenters are strongly encouraged to provide any

additional facts or views pertaining to the proposed waiver.

(Title XII of Pub. L. 99-570, 100 Stat. 3207-170; 49 U.S.C. 31502;

49 U.S.C. 31136; 49 CFR 1.48; 49 CFR 383.7; 23 U.S.C. 315)

Issued on: May 4, 1995.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 95-11469 Filed 5-9-95; 8:45 am]

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