[Federal Register Volume 60, Number 126 (Friday, June 30, 1995)]
[Rules and Regulations]
[Pages 34188-34191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16139]



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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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