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; grant of exemptions.

SUMMARY:

FMCSA announces its decision to grant, in part, the application of the American Pyrotechnics Association (APA) for renewal of exemptions from certain hours of service (HOS) regulations that expired on July 8, 2020. The request is being made on behalf of 60 APA member companies. 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 (ELD) during the 2021 Independence Day period. FMCSA has analyzed the application for exemptions and the public comments 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 that would be achieved absent such exemptions.

DATES:

These exemptions are effective June 28 through July 8, 2021.

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. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets operations.

FOR FURTHER INFORMATION CONTACT:

Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; (202) 366-4225; MCPSD@dot.gov. 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, click “Browse 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 certain 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). 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 (up to 5 years) 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 rule 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. However, under 49 CFR 395.8(a)(1)(iii)(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.”

Applicant's Requests

APA requests temporary relief from both provisions discussed above because employees for its member companies need to drive CMVs after the end of the 14-hour period and because the proposed exemption period from June 28 through July 8 is 11 days long, which exceeds the exception from the ELD requirement (up to 8 days in a 30 consecutive-day period). APA explains that without the extra time each day provided by the exemption from the 14-hour rule, safety would decline because APA drivers would be unable to return to their home base after each show. They would be forced to park the CMVs carrying HM 1.1G, 1.3G and 1.4G products in areas less secure than the motor carrier's home base. Without the exemption from the ELD rule, these companies would be required to purchase/lease ELD systems for a limited period of 11 days.

APA requests renewal of its HOS exemptions from the 14-hour rule for 58 of 61 member-companies included in the 2016 through 2020 waivers or exemptions and from the ELD rule for the same member companies included in the 2019 through 2020 waivers or exemptions. The HOS exemptions or waivers for 61 of its members expired on July 8, 2020. The current applications cover 58 members that previously held exemptions and 2 additional member companies not previously covered by the exemptions. APA has removed 3 member companies previously included in the 14-hour and ELD relief from the list, leaving 60 of its member companies applying for exemptions from the 14-hour rule and the ELD rule. Copies of the 2021 requests are included in the docket referenced at the beginning of this notice.

Various APA members have held waivers or 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. Copies of the initial request for an exemption from the 14-hour rule, subsequent renewal requests, and all public comments received may be reviewed at www.regulations.gov under docket numbers FMCSA-2005-21104 and FMCSA-2007-28043.

FMCSA granted APA's application for relief from the ELD rule on February 19, 2019, covering the Independence Day celebrations for 2019 and 2020. A copy of that request and the public comments received are located at www.regulations.gov under docket number FMCSA-2018-0140.

V. Method To Ensure an Equivalent or Greater Level of Safety

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 and/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 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. The scheduled off duty time and use of RODS will ensure that fatigued driving is managed.

VI. Public Comments

On May 4, 2021, FMCSA published notice of this application and requested public comments (86 FR 23779). The Agency received three comments, all opposing the exemptions. Miner's Inc. said “No need to extend hours of service. Team drivers can keep the load moving. This can also be used for livestock.” Another commenter, John Koglman, wrote, “14 hr. Mandatory ELD, one or the other. Truckers are not children, no safer highways [since] both rules have been in place. Too much money being allocated for enforcement, not much spent to make truck driving bearable . . .” The third commenter, Joshua Hilton, asked, “What part of shall not be infringed do you not understand?”

VII. FMCSA Response and Decision

FMCSA has determined that granting these exemptions to APA member-companies will likely achieve a level of safety equivalent to or greater than the level that compliance with the HOS rules would ensure. The Agency agrees with the APA that the operational demands of this unique industry minimize the risk of CMV crashes. Generally, the CMV drivers covered by the exemption transport fireworks over relatively short routes from distribution points to the site of the fireworks display, and normally do so in the morning hours when drivers are less likely to encounter heavy traffic and congestion. When the drivers arrive at the work site, they spend most of their time setting up the fireworks displays, followed by several hours off duty in the late afternoon and early evening prior to the event. During the off-duty breaks, drivers are able to rest and nap, thereby reducing the risk of fatigue towards the end of the work shift. Before beginning another duty day, these drivers must take 10 consecutive hours off duty, the same as other CMV drivers. FMCSA notes that the individuals spend very little time driving during any given work shift and they must adhere to the weekly hours-of-service limits which prohibit operating a CMV after accumulating 60 hours on duty within 7 consecutive days, or 70 hours on duty within 8 consecutive days.

FMCSA anticipates, and understands from discussions with APA, that drivers will be unable to exceed the 14-hour limit every night and yet still have time to take 10 consecutive hours off duty. But drivers may work long days followed by short days, alternating back and forth. Such arrangements will likely vary from company to company, depending on event schedules. In any case, drivers and motor carriers operating under the exemption remain subject to the requirement for 10 consecutive hours off duty, and they must maintain records of duty status.

With regard to ELDs, the current regulations include an exception for motor carriers that are required to prepare records of duty status for 8 days or less during a 30 consecutive day period. However, the APA members in question would need relief from the requirements for 11 days. Therefore, the exemption would only provide 3 additional days of relief beyond the existing rule. The Agency does not believe safety will be decreased through the use of paper RODS and supporting documents during the 3 additional days. The carriers will be subject to the current record retention requirement, for the records generated during the timeframe of this exemption and the Agency will have access to the RODS for 6 months from the date the records were prepared including corresponding supporting documents. The carriers also could be subject to civil penalties for failure to maintain the RODS and supporting documents for the entire period of the exemption and 6 months thereafter.

In addition, FMCSA has ensured that each motor carrier possesses an active USDOT registration, minimum required levels of insurance as required by 49 CFR part 387, and is 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 accident reports submitted to FMCSA by State agencies. The motor carriers have “satisfactory” safety ratings and valid Hazardous Materials Safety Permits. The member carriers may be subject to investigations prior to future renewal of the exemption.

FMCSA acknowledges the concerns of commenters and has decided to limit the exemption to the 2021 Independence Day season, rather than granting a multi-year exemption as requested by APA. The Agency will review the impact of the exemption following the 2021 Independence Day Celebration and seek public comment whether similar relief should be granted in future years, if requested by APA.

VIII. Terms and Conditions of the Exemptions

Period of the Exemption

The requested HOS exemptions from 49 CFR 395.3(a)(2) and 49 CFR 395.8(a)(1)(i) are effective from June 28 through July 8, 2021, 11:59 p.m. local time.

Terms and Conditions of the Exemptions

The exemptions are limited to drivers employed by the 58 motor carriers previously covered by the exemptions, and drivers employed by the two 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 paper RODs in lieu of ELDs to record their HOS. The conditions of these are as follows:

• Drivers must not drive more than 11 hours after accumulating 14 hours on duty prior to beginning a new driving period;
• Drivers must have 10 consecutive hours off duty following 14 hours on duty prior to beginning a new driving period;
• Drivers must use paper RODs, maintain RODS for 6 months from the date the record is prepared, and make RODS accessible to law enforcement upon request;
• Drivers subject to the ELD requirements prior to June 28 must continue to use ELDs, maintain ELD data for 6 months from the date the electronic record is generated, and make ELD data accessible to law enforcement upon request; and
• The 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 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.

Notification to FMCSA

Exempt motor carriers are required to notify FMCSA within 5 business days of any accidents (as defined by 49 CFR 390.5) involving the operation of any of their CMVs while under these exemptions. The notification must be made by email to MCPSD@DOT.GOV and include the following information:

a. Identifier of the Exemptions: “APA”;

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.