[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]


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

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: 
[email protected]. 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 
[email protected].

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


