[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]
BILLING CODE 4910-22-P
