Commercial Driver's License; Waiver for Pyrotechnics Industry

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 383

[FHWA Docket No. MC-95-16]

Commercial Driver's License; Waiver for Pyrotechnics Industry

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The FHWA is issuing its decision generally denying a waiver

from the commercial driver's license (CDL) regulations (49 CFR Part

383) to certain drivers employed by the pyrotechnics industry. The FHWA

is granting alternate relief which would enable a willing State to

substitute, in very limited circumstances, demonstrated training for

the requirement of a written hazardous materials endorsement

examination. The American Pyrotechnics Association submitted a petition

on March 6, 1995, requesting waivers from the CDL testing and licensing

standards for certain drivers transporting fireworks to displays during

the period of Independence Day celebrations. Under the notice of

petition, request for comments, issued May 10, 1995 (60 FR 24820),

part-time drivers who have an otherwise valid driver's license and a

good driving record, as well as licenses or permits issued by

applicable State or local agencies certifying that they are approved

pyrotechnic operators, would have been eligible for a waiver from the

CDL standards. As proposed, States would have been authorized to issue

waivers for 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 transporting such fireworks had a

gross vehicle weight rating (GVWR) of less than 10,001 pounds and were

operated within 300 miles of the site of origin. The FHWA requested

public comment on whether, if granted, the proposed waiver would be

contrary to the public interest or diminish the safe operation of

commercial motor vehicles. The comment period closed on June 9, 1995.

Based upon the information submitted by commenters, and a late rebuttal

to the adverse comments presented on behalf of the petitioners, the

FHWA has concluded that it does not have the requisite empirical

evidence available to make the safety finding necessary to grant a full

waiver from the CDL provisions. Nevertheless, the FHWA will allow

States to substitute an alternate demonstration of knowledge for

certain hazardous materials endorsement testing provisions, provided

that drivers availing themselves of this relief obtain an otherwise

valid CDL and have completed appropriate hazardous materials training

that meets the standards adopted by the Research and Special Programs

Administration (RSPA) at 49 CFR 172.704. Consequently, the petition is

denied except to this very limited extent.

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

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

Allison Smith, 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 (CMVSA) (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 each driver of a

CMV: (1) has a single driver's license and a single driving record, (2)

is tested for the knowledge and skills needed to drive a vehicle

representative of the vehicle that he/she will be licensed to drive,

and (3) is disqualified from driving a CMV when convicted of certain

criminal offenses or traffic violations. Drivers operating CMVs that

haul hazardous materials requiring placarding are also required to take

and pass a specialized knowledge test to obtain a hazardous materials

endorsement 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).

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

authority to issue waivers has been delegated to the FHWA at 49 CFR

1.48 (1994).

Petition

The American Pyrotechnics Association, a non-profit group

representing the pyrotechnics industry, petitioned the FHWA to

reconsider its previous determinations,1 and grant a

[[Page 34189]]

CDL waiver to part-time drivers involved in fireworks displays. This

petition was submitted on March 6, 1995. Petitioner asserted 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 will continue to be required to possess CDLs as part of their

basic job qualifications. Moreover, all part-time employees falling

within this proposed waiver would have been required to complete

fireworks specific training pursuant to 49 CFR 172.704.

\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.

Both of these documents are available for inspection and copying

from the docket file MC-95-16.

Petitioner argued that the waiver is necessary because the

fireworks industry has faced serious problems in delivering small

fireworks displays to customers located in remote areas since

implementation of the CDL rule in 1992. 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

claimed that these individuals would not go through the trouble and

expense of obtaining a CDL, which required 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

asserted 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, Petitioner asserted that 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.

Proposed Waiver

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

proposed to authorize a limited waiver to be granted by States, at

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

jeopardizing Federal funds. The proposed waiver authority would have

been available to drivers 21 years of age who 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 in the notice,

referred 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.

Drivers would also have been required to hold the appropriate license

and approval as a pyrotechnic operator issued by State or local

authority having jurisdiction in accordance with State law and to carry

documentation certifying that he/she has received fireworks-specific

transportation safety training pursuant to 49 CFR 172.704. A waiver

would not have been available to drivers 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.

A waiver from the CDL requirements would only have been valid for

the period from June 30 through July 6; would have authorized the

transportation of only 500 or less pounds of fireworks classified as

DOT Class 1.3G explosives; and would have been limited to the operation

of Group C vehicles (GVWR of less than 10,001 pounds), as defined in 49

CFR 383.91.

Waivers would have been granted for vehicle operation within a 300-

mile radius from the driver's work reporting location. Neighboring

States would have discretion to recognize such waivers provided the

driver and the vehicle were operating within the 300-mile radius. The

final decision on whether to implement a waiver program would have

rested with the individual States.

Docket Comments

The FHWA received over 450 responses to its request for public

comment. The agency received over 400 letters from part-time drivers

for the pyrotechnics industry who would presumably qualify for the

waiver as described in the notice of petition. These comments were in

support of the agency's proposal. For the most part, these comments

were form letters requiring only that the writers fill in the blanks

with information regarding what State they were licensed in, how many

years they had been driving for the pyrotechnics industry, and what

their full-time occupation was. These letters failed to provide any

specific information or data that the agency 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.

The FHWA also received 20 letters from pyrotechnic fireworks

companies. These letters also were, for the most part, form letters

that voiced strong support for the proposed waiver, but failed to

respond to the agency's specific inquiry whether the proposed waiver

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

operation of CMVs. These letters, and one from an industry association,

the Pyrotechnics Guild International, reiterated the oppressiveness of

the Federal regulation on their industry and the high cost to part-time

drivers of obtaining a CDL, but failed to provide any empirical

evidence establishing the actual safety of the proposed waiver.

The West Virginia Department of Transportation stated that the

waiver would not significantly affect highway safety, noting that the

vehicles covered are small trucks and vans that do not require special

training to operate. However, they did express concern over the waiver

of drug and alcohol testing requirements.

Commenters opposed to the waiver included nine State Departments of

Transportation, Motor Vehicles, Police, the American Trucking

Associations, Inc., and the National Association of Independent

Insurers.

The Michigan Department of State Police, Motor Carrier Division,

Hazardous Materials Section, opposed the waiver of these drivers for

several reasons. They objected to the waiver from the requirements for

alcohol and controlled-substances testing, and stated that the fact

that these individuals were part-time drivers of hazardous materials

was all the more reason to require them to meet the CDL standards. The

States of Indiana and Wisconsin reiterated this comment. The Michigan

Department of State Police also pointed out that the size of the

vehicle is not the key issue, but rather the load that is being

transported. ``Explosion from a load of fireworks is the same, from a

response point of view, whether in a pick-up truck or a tractor-

trailer.''

The Maryland Motor Vehicle Administration (MMVA), in its opposing

comments, noted that the time

[[Page 34190]]

period for the waiver is usually a holiday week-end with heavier than

normal week-end traffic. They also asserted that the limited time

period for the waiver is potentially confusing for law enforcement, and

that there is no difference in the level of danger imposed by 500

pounds of explosives during the waiver period than there is at any

other time during the year. The States of Indiana, Tennessee, South

Carolina, and Wisconsin had similar comments. The MMVA also noted that

this is the third year that these drivers have been required to obtain

CDLs with a hazardous materials endorsement, thus the industry can no

longer claim surprise at the requirement. The Idaho Transportation

Department, in its comments, notes that the question of compensation

does not justify a waiver of the CDL requirements. Moreover, the

pyrotechnics industry's assertion that its drivers must pass a

hazardous materials test covering all hazardous materials, when they in

fact transport only one type, could also be advanced by those drivers

who solely transport fertilizer, propane, or any other single type of

hazardous material. Arguably, those drivers could also demand a waiver

from the CDL standards.

The American Trucking Associations, Inc. (ATA), also provided

comments in opposition to the waiver. The ATA asserted that the FHWA

had not met the statutory two-pronged test required before the agency

can issue a waiver [49 U.S.C. 31136(e)]. Absent that finding, the ATA

stated that issuing a waiver would be unlawful. The Association also

found the proposed waiver irrational from a safety perspective, noting

that transportation of 500 pounds of explosives within a 300-mile

radius over a seven day period could add up to thousands of miles and

numerous movements. Moreover, the ATA found it irrational to issue

waivers to inexperienced drivers who only operate on a part-time basis.

Finally, the ATA strenuously opposed the waiver of alcohol and

controlled substances testing.

The National Association of Independent Insurers (NAII) opposed the

proposal for similar reasons. ``Our concern is that if the petition is

granted, operators who have not proven their competency, knowledge, or

experience will be transporting highly hazardous incendiary materials

with low flash points, on the national highway system. By petitioner's

own admission, these drivers are seasonal part-timers rather than

highway professionals. NAII is of the opinion that no exceptions should

ever be made in the driver qualification requirements for the hauling

of hazardous materials. Not only are the lives of the drivers hauling

the pyrotechnics at risk, but the general public is also needlessly

exposed.''

The American Pyrotechnics Association filed reply comments to the

docket on June 20, 1995. Although these comments were filed after the

docket closed, it is FHWA policy to give consideration to comments it

can reasonably review and analyze before a decision is made. The APA

took issue with the assertion that the ``freight industry'' stood ready

to deliver fireworks materials, and contended that that alternative is

just not practically available. The petitioners also stressed its

position that the requirement to pass a largely irrelevant test placed

a substantial burden in preparation time on people who were committing

themselves to employment for only a few days a year for a few hundred

dollars in compensation. The APA concluded that most of the part-time

employees would simply opt to stay home. The APA reiterated its

argument that the people engaged in the display of fireworks on the 4th

of July are very safety conscious and that it was unaware of ``any

transportation incidents over a twenty-year period involving fireworks

in the size and type of vehicle described in this petition.''

FHWA Response to the Comments

The provisions of the CMVSA outlining the CDL regulations were

specific and prescriptive. Congress, as a means to ensure the safety

and qualification of drivers of commercial vehicles, not only mandated

that minimum Federal testing standards be established for the operation

of CMVs, but also required that each person receiving a CDL pass the

written and driving test for the operation of a CMV which complies with

the minimum Federal standards. Moreover, Congress expressly outlined

requirements for those individuals who transport hazardous materials.

Transporters of hazardous materials are required, by statute, to have a

working knowledge of the hazardous materials regulations, the handling

of hazardous materials, the operation of emergency equipment used in

response to emergencies arising out of the transportation of hazardous

material, and the appropriate response procedures to be followed in

such emergencies. The intent behind these requirements was to maximize

highway safety.

In addition to the enforcement of the CDL requirements, the FHWA is

also charged with the statutory duty to issue a waiver from any of its

requirements only if such waiver is in the public interest and

consistent with the safe operation of commercial motor vehicles. If the

agency cannot make a compelling finding that the statutory requirement

is satisfied, it cannot lawfully issue a waiver.2 Again, the

paramount goal behind this requirement is highway safety.

\2\ See Buck v. U.S. Department of Transportation, U.S. Court of

Appeals for the D.C. Circuit, No 94-1094, decided June 13, 1995.

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The FHWA acknowledges that neither those in favor of the proposed

waiver, nor those opposed, offer any meaningful scientific or other

data regarding accident rates or the safety risk of transporting

limited quantities of hazardous materials by these part-time drivers.

Both experienced and inexperienced operators drive pickup trucks and

vans every day in every location without benefit of a CDL. The nature

of a cargo of fireworks has little, if any, effect on vehicle handling.

Moreover, the likelihood of any explosion from properly packaged

fireworks in highway collisions is minimal and was not even addressed

by any of the commenters, nor was any mention offered of a single

incident where the presence of fireworks in a pickup truck or van was a

contributing or aggravating factor in a highway accident. The United

States Court of Appeals has ruled that prior safe driving history, in

and of itself, is not an adequate basis for making a waiver

determination. The statutory standard, as interpreted by the Court, is

that the agency may grant a waiver only after determining such an

action is consistent with the safe operation of CMVs. [See Advocates

for Highway and Auto Safety v. FHWA, 28 F.3d 1288, 1294 (D.C. Cir.

1994)]. Consequently, the decision of the FHWA must be the one that

most reasonably fulfills that charge.

Grant of Alternate Relief

The FHWA, based upon the information presented in response to the

docket comments, has concluded that some relief from certain testing

requirements is justified in this instance, and therefore will allow

States, at their discretion, to dispense with the requirement that

part-time drivers for the pyrotechnics industry take the FHWA

endorsement test for hazardous materials. In lieu of this testing

requirement, States may only accept the training requirements outlined

in 49 CFR 172.704, if the State believes that this training adequately

prepares drivers meeting the other requirements of the waiver to deal

with fireworks and the potential dangers posed by their transportation

and use.

[[Page 34191]]

These part-time drivers will remain subject to the general knowledge

and skills testing required by the CDL for the class of vehicle they

will be operating, as well as to alcohol and controlled substances

testing. Drivers will not be limited to the 300-mile radius outlined in

the proposed waiver, since they will, for all purposes, hold a valid

CDL without restriction as to distance.

The FHWA has determined that this limited action is consistent with

the two-pronged statutory test required for issuance of a waiver. The

hazardous materials endorsement test currently administered by State

licensing agencies provides no assurances that tested individuals have

acquired any knowledge or skills specific to the handling of fireworks.

In fact, review of samples of such tests revealed an absence of any

material specific to fireworks. The FHWA believes that the training

required under the RSPA regulations would provide sufficient assurances

that the driver has received pertinent instruction in the requirements

of the specific materials he or she is called upon to handle.

Any State opting to use this alternate method of complying with the

hazardous materials endorsement requirement may issue a CDL with the

following limitations clearly imprinted on its face: ``For use as a CDL

only during the period from June 30 through July 6 for purposes of

transporting less than 500 pounds of fireworks classified as DOT Class

1.3G explosives in a vehicle with a GVWR of less than 10,001 pounds.''

The State licensing agency may use other wording to the same effect.

During the time when this limited CDL is in effect, the holder must

comply with all regulations applicable to CDL holders, and will be

subject to all disqualification sanctions. Operation of any vehicle

transporting fireworks at any other time of the year is indicative of

more than the part-time employment which provides the basis for this

relief, and must be accompanied by a valid CDL for which an

unrestricted hazardous materials endorsement has been issued after the

administration of a required hazardous materials endorsement

examination. Drivers will otherwise be required to meet all the testing

and other qualifying requirements for issuance of a CDL, including the

applicable drug and alcohol testing regulations, consistent with the

Congressional intent behind the CMVSA. Drivers will also be required to

demonstrate satisfactory completion of fireworks and/or hazardous

materials specific training to ensure proper handling.

Although this action provides partial relief to part-time drivers

who find much of the material covered on the hazardous materials test

irrelevant to the transportation of fireworks, it continues to ensure

that these drivers are familiar with the proper transportation of

fireworks and hazardous materials. Because the drivers meet the

requisite CDL training and an acceptable level of hazardous materials

and/or fireworks specific training, this relief is not only consistent

with the safe operation of commercial vehicles, but also furthers the

public interest of facilitating the traditional celebration of the

Nation's birthday as safely as in the past.

(Title XII of Pub. L. 99-570, 100 Stat. 3207-17-; 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: June 27, 1995.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 95-16139 Filed 6-27-95; 3:45 pm]

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