FMCSA Grants American Pyrotechnics Association Members HOS ELD 14 Hours Seasonal Exemption
The FMCSA Decision
The American Pyrotechnics Association (APA) has requested an exemption for three member companies—Artisan Pyrotechnics Inc., Montana Display Fireworks, Inc., and ZY Pyrotechnics, LLC dba Skyshooter Displays, Inc.—from the prohibition on driving commercial motor vehicles (CMVs) after the 14th hour after the driver comes on duty. Fifty APA members currently hold such an exemption during the Independence Day period each year, terminating on July 8, 2020. If granted, this exemption would terminate at the same time as the other 50 exempted carriers. The APA maintains that the terms and conditions of the limited exemption would ensure a level of safety equivalent to, or greater than, the level of safety achieved without the exemption.
American Pyrotechnics Association Request for 14 Hours Seasonal Exemption
The HOS rule in 49 CFR 395.3(a)(2) prohibits the driver of a property-carrying CMV from driving after the 14th hour after coming on duty following 10 consecutive hours off duty. In 2016, the APA, a trade association representing the domestic fireworks industry was granted exemptions for 51 member companies through the annual Independence Day periods ending on July 8, 2020 [81 FR 43701, July 5, 2016]. One of the 51 APA member companies, Island Fireworks, DOT #414583, no longer requires the exemption, leaving the total at 50. APA has requested an exemption for Artisan Pyrotechnics Inc., DOT #1898096, Montana Display Fireworks, Inc., DOT #1030231, and ZY Pyrotechnics, LLC dba Skyshooter Displays, Inc., DOT #2149202, which would increase the total to 53. The exemption for these APA carriers, if granted, would expire on July 8, 2020. Although this is less than the 5-year exemption period authorized by 49 U.S.C. 31315(b)(2), as amended by section 5206(a)(3) of the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94, 129 Stat. 1312, 1537, Dec. 4, 3015), FMCSA believes that the interests of the APA members and the Agency would best be served by harmonizing, as far as possible, the expiration dates of all such fireworks-related exemptions. Like the other 50 member companies, the three new member companies would be subject to all of the terms and conditions of the exemption.
The initial APA application for relief from the 14-hour rule was submitted in 2004; a copy is in the docket. That application fully describes the nature of the pyrotechnic operations of CMV Start Printed Page 26744drivers during a typical Independence Day period.
As stated in the 2004 request, the CMV drivers employed by APA member companies are trained pyro-technicians who hold commercial driver's licenses (CDLs) with hazardous materials (HM) endorsements. They transport fireworks and related equipment by CMVs on a very demanding schedule during a brief Independence Day period, often to remote locations. After they arrive, the drivers are responsible for set-up and staging of the fireworks shows.
The APA states that it is seeking an additional exemption for the three new member companies because compliance with the current 14-hour rule in 49 CFR 395.3(a)(2) would impose a substantial economic hardship on numerous cities, towns and municipalities, as well as its member companies. To meet the demand for fireworks without the exemptions, APA states that its member companies would be required to hire a second driver for most trips. The APA advises that the result would be a substantial increase in the cost of the fireworks shows—beyond the means of many of its members' customers—and that many Americans would be denied this important component of the celebration of Independence Day.
Method To Ensure an Equivalent or Greater Level of Safety
The APA believes that the exemption would not adversely affect the safety of the fireworks transportation provided by this motor carrier. According to APA, its member companies have operated under this exemption for 11 previous Independence Day periods without a reported motor carrier safety incident. Moreover, it asserts, without the extra time provided by the exemption, 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. As a condition of holding the exemption, each motor carrier is required to notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5) involving the operation of any its CMVs while under this exemption. To date, FMCSA has received no accident notifications, nor is the Agency aware of any accidents reportable under terms of the prior APA exemptions.
In its exemption request, APA asserts that the operational demands of this unique industry minimize the risks of CMV crashes. In the last few days before July 4, these drivers transport fireworks over relatively short routes from distribution points to the site of the fireworks display, and normally do so in the early morning when traffic is light. At the site, they spend considerable time installing, wiring, and safety-checking the fireworks displays, followed by several hours off duty in the late afternoon and early evening prior to the event. During this time, the drivers are able to rest and nap, thereby reducing or eliminating the fatigue accumulated during the day. Before beginning another duty day, these drivers must take 10 consecutive hours off duty, the same as other CMV drivers.
Terms and Conditions of the Exemption
Period of the Exemption
The requested exemption from 49 CFR 395.3(a)(2) would be effective from June 28 through July 8, at 11:59 p.m. local time, each year through 2020.
Terms and Conditions of the Exemption
During the 2018 Independence Day period, the exemption from 49 CFR 395.3(a)(2) would be limited to drivers employed by the 50 motor carriers already covered by the exemption, plus (if approved) the three carriers now seeking an exemption. Section 395.3(a)(2) prohibits a driver from driving a CMV after the 14th hour after coming on duty and does not permit off-duty periods to extend the 14-hour limit. Drivers covered by this exemption would be able to exclude off-duty and sleeper-berth time of any length from the calculation of the 14-hour limit. This exemption would be contingent on each driver driving no more than 11 hours in the 14-hour period after coming on duty, as extended by any off-duty or sleeper-berth time in accordance with this exception. The exemption would be further contingent on each driver having a full 10 consecutive hours off duty following 14 hours on duty prior to beginning a new driving period. 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).
These exemptions are effective from June 28 through July 8, at 11:59 p.m. local time, each year through 2020.