[Federal Register Volume 84, Number 33 (Tuesday, February 19, 2019)]
[Notices]
[Pages 4896-4898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02661]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0140]


Hours of Service of Drivers: Application for Exemption; American 
Pyrotechnics Association

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to grant the American 
Pyrotechnics Association (APA) an exemption from the hours-of-service 
(HOS) regulations that require a motor carrier to install and require 
each of its drivers to use an electronic logging device (ELD) to record 
the driver's HOS. APA requested the exemption for APA member companies 
currently holding an exemption from the HOS 14-hour rule during the 
Independence Day season. These member companies will continue to use 
paper records of duty status (RODS) in lieu of an ELD during the 
designated Independence Day periods. FMCSA has determined that the 
terms and conditions of the exemption ensure a level of safety 
equivalent to, or greater than, the level of safety achieved without 
the exemption.

DATES: The exemption is effective from June 28 through July 8, at 11:59 
p.m. local time, in 2019 and 2020.

ADDRESSES: 
    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. The on-line Federal Docket Management System 
(FDMS) is available 24 hours each day, 365 days each year. If you want 
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement 
page that appears after submitting comments on-line.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Ms. LaTonya Mimms, Chief, FMCSA Driver 
and Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: (202) 366-9220, Email: [email protected]. If 
you have questions on viewing or submitting material to the docket, 
contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, ``FMCSA-2018-0140'' in the ``Keyword'' box and click 
``Search.'' Next, click ``Open Docket Folder'' button and choose the 
document listed to review. If you do not have access to the internet, 
you may view the docket online by visiting the Docket Management 
Facility 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., e.t., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
notice, 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 
Docket Services, telephone (202) 366-9826.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the 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 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 and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

III. Request for Exemption

    The APA reports that it is a national safety and trade association 
of the U.S. fireworks industry, representing manufacturers, importers, 
distributors, wholesalers, retailers, suppliers and professional 
display companies. APA has over 250 member companies. Along with their 
subsidiaries, APA's member companies are responsible for nearly 90 
percent of the fireworks manufactured, imported, distributed and 
professionally displayed in the United States.
    The Agency published a notice of APA's exemption application on 
April 24, 2018 (83 FR17877). APA sought a limited exemption from the 
ELD requirements to allow member companies currently holding an 
exemption from the 14-hour rule to continue to maintain paper RODs in 
lieu of ELDs. Various APA members have held 2-year 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 (81 FR 28115).
    APA asserted that granting this exemption would be appropriate 
because there is no basis to believe that continuing to allow paper 
record keeping for this limited subset of the regulated community, and 
for a limited period of time, would impact operational safety in any 
regard. In addition, due to the unique nature of the fireworks 
industry, requiring the use of

[[Page 4897]]

ELDs for this limited seasonal delivery period would impose a 
substantial financial burden on members because it would require them 
to purchase/lease ELD systems for use for only a short period every 
year.
    APA explained that its members rely upon intermittent casual 
drivers periodically throughout the year and particularly during the 
busy Independence Day season when the industry depends upon short-term 
rental trucks. The fireworks industry is unique in that it rents or 
leases approximately 90% of its vehicles throughout the year for less 
than 30 days at a time. However, most rental companies require a 
minimum rental period of 14 to 21 days, although APA member companies 
may only use the trucks in commerce for up to 11 days. The mix of 
vehicles rented includes pick-up trucks, cargo vans, city vans and 
straight trucks with a GVW of less than 26,000 pounds. The industry 
relies heavily upon short-term rental trucks to transport and deliver 
98% of the 16,000 Independence Day fireworks displays nationwide. This 
exemption would only apply when the carriers designated in the APA HOS 
exemption, including revisions, are operating within the specified 
Independence Day periods.

IV. Public Comments

    The Agency received 27 comments in response to the application 
published on April 24. The Owner-Operator Independent Drivers 
Association (OOIDA) and 20 individuals supported the exemption. The 
Advocates for Highway and Auto Safety (Advocates) and four individuals 
opposed it. One individual took no position on the exemption request.
    OOIDA stated that ``the current ELD marketplace does not adequately 
support the needs of the entire trucking industry. Since the December 
2017 implementation, professional drivers have shared the real-world 
problems they have experienced because of malfunctioning devices, lack 
of connectivity in rural areas, and false claims made by ELD vendors. 
For these reasons, along with APA's prior exemption history, FMCSA 
should grant the exemption request.''
    The Advocates said ``the application does not meet the statutory 
and regulatory requirements for the exemption. The application fails to 
consider practical alternatives, justify the need for the exemption, 
provide an analysis of the safety impacts the requested exemption may 
cause, and provide information on the specific countermeasures to be 
undertaken to ensure that the exemption will achieve an equivalent or 
greater level of safety than would be achieved absent the exemption.''

V. FMCSA Decision

    FMCSA has determined that granting an ELD exemption to APA for a 
limited period of 11 days during Independence Day celebrations will 
achieve a level of safety equivalent to or greater than the level that 
compliance with the ELD rule would ensure. Prior to publishing the 
Federal Register notice announcing the receipt of APA's application 
request for the exemption, FMCSA ensured that each APA member currently 
holding a limited exemption from the 14-hour rule 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 investigation of the 
safety performance history of each of those motor carriers. 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.
    With regard to safety statistics, none of the carriers was under an 
imminent hazard or OOS order, had any alerts in the Safety Management 
System (SMS), or was under investigation by the Pipeline and Hazardous 
Materials Safety Administration. All had ``satisfactory'' safety 
ratings based on compliance reviews, and all had valid Hazardous 
Materials Safety Permits.

VI. Terms and Conditions of the Exemption

Period of the Exemption

    The exemption from 49 CFR 395.8(a)(1)(i) is effective from June 28 
through July 8, at 11:59 p.m. local time, in 2019 and 2020, for the 53 
carriers identified in the appendix to this notice.

Terms and Conditions of the Exemption

    This exemption from the ELD provisions in 49 CFR 395.8(a)(1)(i) is 
restricted to drivers employed by the APA motor carriers already 
covered by the multi-year exemption from the Agency's 14-hour rule 
listed in the appendix table of this notice. Drivers covered by the 
exemption may continue to use paper logs to record their record of duty 
status instead of using an ELD. Motor 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 this exemption is in effect, no State shall 
enforce any law or regulation applicable to interstate commerce that 
conflicts with or is inconsistent with this exemption with respect to a 
firm or person operating under the exemption. States may, but are not 
required to, adopt the same exemption with respect to operations in 
intrastate commerce.

FMCSA Notification

    Exempt motor carriers are required to notify FMCSA within 5 
business days of any accidents (as defined by 49 CFR 390.5) involving 
their CMVs operating under this exemption. The notification must be by 
email to [email protected] and include the following information:
    a. Name of the Exemption: ``APA ELD''
    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 [email protected] as soon as 
available.

Termination

    The FMCSA does not believe the motor carriers and drivers covered 
by this exemption will experience any deterioration of their safety 
record. However, should this occur, FMCSA will take all steps necessary 
to protect the public interest, including revocation of the exemption. 
The FMCSA will immediately revoke the exemption for failure to comply 
with its terms and conditions. Exempt motor carriers and

[[Page 4898]]

drivers are subject to FMCSA monitoring while operating under this 
exemption.

    Issued on: February 8, 2019.
Raymond P. Martinez,
Administrator.

 Appendix to Notice of Application for Approval of Motor Carriers To Utilize American Pyrotechnics Association's
   (APA) Exemption From the ELD Rule in Hours of Service for Drivers Regulations for Independence Day Periods
                                         [June 28 through July 8, 2020]
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              Motor carrier                     Street address           City, state, zip code        DOT No.
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1. American Fireworks Company...........  7041 Darrow Road..........  Hudson, OH 44236..........          103972
2. American Fireworks Display, LLC......  P.O. Box 980..............  Oxford, NY 13830..........         2115608
3. AM Pyrotechnics, LLC.................  2429 East 535th Rd........  Buffalo, MO 65622.........         1034961
4. Arthur Rozzi Pyrotechnics............  6607 Red Hawk Ct..........  Maineville, OH 45039......         2008107
5. Artisan Pyrotechnics, Inc............  82 Grace Road.............  Wiggins, MS 39577.........         1898096
6. Atlas PyroVision Entertainment Group,  136 Old Sharon Rd.........  Jaffrey, NH 03452.........          789777
 Inc.
7. Central States Fireworks, Inc........  18034 Kincaid Street......  Athens, IL 62613..........         1022659
8. East Coast Pyrotechnics, Inc.........  4652 Catawba River Rd.....  Catawba, SC 29704.........          545033
9. Entertainment Fireworks, Inc.........  13313 Reeder Road SW......  Tenino, WA 98589..........          680942
10. Falcon Fireworks....................  3411 Courthouse Road......  Guyton, GA 31312..........         1037954
11. Fireworks & Stage FX America........  12650 Hwy 67S., Suite B...  Lakeside, CA 92040........          908304
12. Fireworks by Grucci, Inc............  20 Pinehurst Drive........  Bellport, NY 11713........          324490
13. Flashing Thunder Fireworks dba Legal  700 E Van Buren Street....  Mitchell, IA 50461........          420413
 Aluminum King Mfg.
14. J&J Computing dba Fireworks           174 Route 17 North........  Rochelle Park, NJ 07662...         2064141
 Extravaganza.
15. Gateway Fireworks Displays..........  PO Box 39327..............  St Louis, MO 63139........         1325301
16. Great Lakes Fireworks...............  24805 Marine..............  Eastpointe, MI 48021......         1011216
17. Hamburg Fireworks Display, Inc......  2240 Horns Mill Road SE...  Lancaster, OH.............          395079
18. Hawaii Explosives & Pyrotechnics,     17-7850 N. Kulani Road....  Mountain View, HI 96771...         1375918
 Inc.
19. Hollywood Pyrotechnics, Inc.........  1567 Antler Point.........  Eagan, MN 55122...........         1061068
20. Homeland Fireworks, Inc.............  P.O. Box 7................  Jamieson, OR 97909........         1377525
21. J&M Displays, Inc...................  18064 170th Ave...........  Yarmouth, IA 52660........          377461
22. Lantis Fireworks, Inc...............  130 Sodrac Dr., Box 229...  N. Sioux City, SD 57049...          534052
23. Legion Fireworks Co., Inc...........  10 Legion Lane............  Wappingers Falls, NY 12590          554391
24. Miand Inc. dba Planet Productions     PO Box 294, 3999 Hupp Road  Kingsbury, IN 46345.......          777176
 (Mad Bomber).                             R31.
25. Martin & Ware Inc. dba Pyro City      P.P. Box 322..............  Hallowell, ME 04347.......          734974
 Maine & Central Maine Pyrotechnics.
26. Melrose Pyrotechnics, Inc...........  1 Kingsbury Industrial      Kingsbury, IN 46345.......          434586
                                           Park.
27. Montana Display Fireworks, Inc......  9480 Inspiration Road.....  Missoula, MT 59808........         1030231
28. Precocious Pyrotechnics, Inc........  4420-278th Ave NW.........  Belgrade, MN 56312........          435931
29. Pyro Shows, Inc.....................  115 N 1st Street..........  LaFollette, TN 37766......          456818
30. Pyro Shows of Alabama, Inc..........  3325 Poplar Lane..........  Adamsville, AL 35005 55063         2859710
31. Pyro Shows of Texas, Inc............  6601 9 Mile Azle Rd.......  Fort Worth, TX 76135......         2432196
32. Pyro Engineering Inc., dba/Bay        400 Broadhollow Rd., Ste    Farmingdale, NY 11735.....          530262
 Fireworks.                                #3.
33. Pyro Spectaculars, Inc..............  3196 N Locust Ave.........  Rialto, CA 92376..........          029329
34. Pyro Spectaculars North, Inc........  5301 Lang Avenue..........  McClellan, CA 95652.......         1671438
35. Pyrotechnic Display, Inc............  8450 W. St. Francis Rd....  Frankfort, IL 60423.......         1929883
36. Pyrotecnico (S. Vitale Pyrotechnic    302 Wilson Rd.............  New Castle, PA 16105......          526749
 Industries, Inc.).
37. Pyrotecnico FX......................  6965 Speedway Blvd. Suite   Las Vegas, NV 89115.......         1610728
                                           115.
38. Rainbow Fireworks, Inc..............  76 Plum Ave...............  Inman, KS 67546...........         1139643
39. RES Specialty Pyrotechnics..........  21595 286th St............  Belle Plaine, MN 56011....          523981
40. Rozzi's Famous Fireworks, Inc.......  11605 North Lebanon Rd....  Loveland, OH 45140........         0483686
41. Sky Wonder Pyrotechnics, LLC........  3626 CR 203...............  Liverpool, TX 77577.......         1324580
42. Skyworks, Ltd.......................  13513 W. Carrier Rd.......  Carrier, OK 73727.........         1421047
43. Sorgi American Fireworks Michigan,    935 Wales Ridge Rd........  Wales, MI 48027...........         2475727
 LLC.
44. Spielbauer Fireworks Co, Inc........  220 Roselawn Blvd.........  Green Bay, WI 54301.......          046479
45. Spirit of 76........................  6401 West Hwy 40..........  Columbia, MO 65202........         2138948
46. Starfire Corporation................  682 Cole Road.............  Carrolltown, PA 15722.....          554645
47. Vermont Fireworks Co., Inc./          2235 Vermont Route 14       East Montpelier, VT 05651.          310632
 Northstar Fireworks Co., Inc.             South.
48. Western Display Fireworks, Ltd......  10946 S. New Era Rd.......  Canby, OR 97013...........          498941
49. Western Enterprises, Inc............  PO Box 160................  Carrier, OK 73727.........          203517
50. Wolverine Fireworks Display, Inc....  205 W Seidlers............  Kawkawlin, MI.............          376857
51. Young Explosives Corp...............  P.O. Box 18653............  Rochester, NY 14618.......          450304
52. Zambelli Fireworks MFG, Co., Inc....  PO Box 1463...............  New Castle, PA 16103......          033167
53. ZY Pyrotechnics, LLC dba Skyshooter   1014 Slocum Road..........  Wapwallopen, PA 18660.....         1030231
 Displays, Inc.
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[FR Doc. 2019-02661 Filed 2-15-19; 8:45 am]
 BILLING CODE 4910-EX-P