[Federal Register Volume 70, Number 126 (Friday, July 1, 2005)]
[Notices]
[Pages 38242-38246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13110]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2005-21104]


Hours of Service of Drivers; American Pyrotechnics Association 
Application for an Exemption From the 14-Hour Rule During Independence 
Day Celebrations

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Grant of application for exemption.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) grants 
the American Pyrotechnics Association's (APA) application for an 
exemption from the prohibition against driving a commercial motor 
vehicle (CMV) after the 14th hour of coming on-duty. The exemption is 
applicable for a period beginning 7 days prior to, and 2 days 
immediately following Independence Day. Fireworks personnel who operate 
CMVs for the companies listed in this notice, in conjunction with 
staging fireworks shows celebrating Independence Day, are allowed to 
exclude off-duty and sleeper berth time of any length in the 
calculation of the 14-hours. However, drivers are not allowed to drive 
after accumulating a total of 14-hours of on-duty time, following 10 
consecutive hours off duty, and continue to be subject to the 11-hour 
driving time limits, and the 60- and 70-hour weekly limits. After 
reviewing the comments received in response to the May 6, 2005, notice 
requesting public comment on the APA application, FMCSA has determined 
the exemption would achieve a level of safety equivalent to what would 
be provided by compliance with the 14-hour rule as it applies to other 
drivers of property-carrying vehicles.

DATES: The exemption is effective June 28, 2005, and is applicable from 
June 28 (12:01 a.m.) through July 6, 2005 (11:59 p.m.), and from June 
28 (12:01 a.m.) through July 6, 2006 (11:59 p.m.). The exemption 
expires on July 7, 2006.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments received, go to http://dms.dot.gov and/or Room 
PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, 
SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also 
available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Robert F. Schultz, Jr., Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations, MC-PSD, (202) 366-4009, Federal Motor Carrier Safety 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Background

    Section 4007 of the Transportation Equity Act for the 21st Century 
(Pub. L. 105-178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315 
and 31136(e) to provide FMCSA with authority to grant exemptions from 
its safety regulations. On December 8, 1998, the Federal Highway 
Administration's Office of Motor Carriers, the predecessor to FMCSA, 
published an interim final rule implementing section 4007 (63 FR 
67600). On August 20, 2004, FMCSA published a Final Rule (69 FR 51589) 
on this subject. Under 49 CFR part 381, FMCSA must publish a notice of 
each exemption request in the Federal Register. The agency must provide 
the public with 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 must then examine the safety analyses and the public 
comments, and determine whether the exemption would achieve a level of 
safety equivalent to, or greater than, the level that would be achieved 
by complying with the current regulation (49 CFR 381.305). The Agency's 
decision must be published in the Federal Register (49 CFR 381.315(b)). 
If the agency denies the request, it must state the reason for doing 
so. If the decision is to grant the exemption, the notice must specify 
the person or class of persons receiving the exemption, and the 
regulatory provision or provisions from which an exemption is being

[[Page 38243]]

granted. The notice must also specify the effective period of the 
exemption (up to two years), and explain the terms and conditions of 
the exemption. The exemption may be renewed (49 CFR 381.300(b)).

APA's Application for an Exemption

    APA requested an exemption from FMCSA's prohibition against drivers 
of property-carrying CMVs operating such vehicles after the 14th hour 
of coming on duty [49 CFR 395.3(a)(2)]. APA requested that fireworks 
personnel covered by the exemption be allowed to exclude off-duty and 
sleeper berth time of any length in the calculation of the 14-hour 
rule. Drivers would not be allowed to drive after the accumulation of 
14 hours of on-duty time, following 10 consecutive hours off duty. The 
exemption would be applicable to approximately 3,000 drivers 
responsible for operating about 3,000 commercial motor vehicles. A copy 
of the application for an exemption, which includes a list of all the 
motor carriers that would be covered by it, is included in the docket 
referenced at the beginning of this notice.
    APA, a trade association representing the domestic fireworks 
industry, argues that full compliance with the current hours-of-service 
regulations during the brief period surrounding Independence Day would 
impose a substantial economic hardship on its members that operate 
fireworks for the public. This period is the busiest time of the year 
for these companies. APA members are hired to conduct multiple 
fireworks shows in celebration of Independence Day, during a compressed 
timeframe.
    The drivers are trained pyrotechnicians, each holding a commercial 
driver's license (CDL) with a hazardous materials endorsement. These 
drivers transport fireworks and equipment to remote locations to meet 
demanding schedules. APA indicated that under the previous hours-of-
service requirements in effect prior to the implementation of FMCSA's 
April 28, 2003, final rule (68 FR 22456), the pyrotechnicians could 
meet their schedules without exceeding the limits, and without 
experiencing any crashes or hazardous materials incidents. By contrast, 
under the new regulations, the pyrotechnicians cannot meet typical 
holiday schedules, and fireworks companies would be forced to hire a 
second driver for most trips. Or, fireworks companies would be forced 
to decrease significantly their engagements. APA argues both options 
are economically detrimental for its members, and would deny many 
Americans the primary component of their Independence Day celebration.

Discussion of Public Comments

    On May 6, 2005, FMCSA requested public comment from all interested 
persons on the APA application for an exemption (70 FR 24160). The 
comment period ended on June 6, 2005. FMCSA received comments from five 
individuals (Steven L. Cox, George M. Florer, Debbie I. Keeler, Steve 
Reeves, Barb Sachau) and the Public Utilities Commission of Ohio 
(PUCO). All of the commenters were opposed to granting the exemption.
    Generally, commenters believe the 14-hour provision of the hours-
of-service requirements is a good rule based on sound reasoning because 
it prevents employers from extending the workday. Some of the 
commenters believe granting the APA exemption application would 
encourage other special interests groups to request the same exemption.
    Two commenters suggest the APA request is motivated for economic 
reasons. One of these commenters indicated the exemption would enable 
motor carriers to deliver fireworks to retail stores without complying 
with the hours-of-service rules. The other indicated that the exemption 
supports APA members' goals of making more money.
    PUCO indicated that highway travel dangers increase around 
Independence Day. PUCO believes the days before and after Independence 
Day make up the third busiest highway travel period of the year 
surpassed only by travel around Thanksgiving and Christmas. PUCO argues 
that the level of traffic congestion during the holidays means there is 
less of a margin for driver error and a greater potential for crashes 
and injuries. PUCO considers Independence Day as a time to focus on 
highway safety through more rigorous enforcement of motor carrier 
safety regulations. The State agency believes the increased threat 
posed by the hazardous materials (fireworks) being transported by APA 
means that CMV drivers should be alert, and that enforcement of the 14-
hour rule should be emphasized rather than diminished.

FMCSA Response

    FMCSA understands the concerns raised by the commenters but has 
concluded that the 9-day exemption requested by APA is not likely to 
decrease safety.
    Pyrotechnicians rarely drive the full 11 hours allowed by the 
current regulations, but in the rush to prepare for Independence Day 
they may need to be on duty more than 14 consecutive hours and to drive 
at the end of that tour of duty. Without an exemption, these 
pyrotechnician/drivers would be stranded, often with a CMV partially 
loaded with fireworks, at the site of a forthcoming shoot; conversely, 
the fireworks company could employ a second driver, operating on a 
later schedule, to return the vehicle to a secure location within the 
14-hour limit. The first option poses certain risks to public safety 
and the second would significantly increase the costs and logistical 
complexity of a shoot.
    APA points out that ``there were no accidents or incidents 
involving display personnel operating under the waiver'' FMCSA granted 
APA members for Independence Day fireworks displays in 2004. The 
operational demands of this unique industry appear to minimize the risk 
of CMV crashes. In the last few days before the holiday, drivers spend 
their driving time transporting fireworks relatively short distances, 
from the nearest distribution point to the site of the shoot. Most of 
their on-duty time, however, is devoted to the intricate and 
potentially dangerous task of installing, wiring, and double-checking 
fireworks displays. According to APA, pyrotechnicians drive to the site 
of the shoot in the early morning and return late in the evening, thus 
avoiding much of the heavy traffic typical of the holiday. After 
setting up the fireworks display in daylight, in order to reduce the 
possibility of mistakes, the pyrotechnician/drivers typically have 
several hours off duty in the late afternoon and early evening, just 
before the shoot. This enables them to rest or nap, reducing or 
eliminating the fatigue caused by the day's activities, and making 
their return trip later that evening, after the shoot, safer than would 
otherwise be expected. The caution typically exercised by 
pyrotechnicians handling explosives may also carry over into their 
driving style, minimizing the risk of crashes, though this is 
admittedly conjectural.
    In addition to driving at off-peak hours and having an opportunity 
for substantial rest periods during their tours of duty, 
pyrotechnicians who drive back to a hotel or motel in the 15th or 16th 
hours after coming on duty will be required to take 10 consecutive 
hours off duty, like other drivers. An opportunity for 8 consecutive 
hours of sleep should eliminate the possibility of cumulative fatigue 
the next day. Although FMCSA believes the 14-hour limit is generally 
conducive to safety, the current HOS regulations allow some kinds of 
short-haul drivers a 16-hour driving window once a week, providing 
certain conditions are met. The safety

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record of these drivers does not appear to have suffered as a result of 
the 16-hour provision. Because pyrotechnician/drivers operate like 
short-haul drivers (relatively little driving, a variety of work), 
FMCSA has concluded that the 9-day exemption requested by APA is not 
likely adversely to affect motor carrier safety.
    In response to concerns about the exemption being used to support 
the delivery of fireworks for retail outlets, FMCSA believes APA's 
application accurately describes the reason the organization requested 
the exemption from the 14-hour rule. The exemption is intended to 
provide an alternative to the 14-hour provision for pyrotechnicians 
involved in the transportation and operation of fireworks for 
Independence Day shows. Neither the APA application, nor the terms and 
conditions associated with the exemption cover the transportation of 
fireworks to retail outlets to support consumer purchases of fireworks. 
The fireworks in question are for use by trained pyrotechnicians in 
fireworks shows, and are not intended for purchase by individual 
consumers.
    As for PUCO's concerns, FMCSA believes that the mitigating factors 
discussed above are likely to ensure that the exemption granted today 
does not have a harmful effect on highway safety.

FMCSA Decision

    In consideration of the public comments and the agency's response 
to those comments, FMCSA grants the APA exemption. The drivers employed 
by the companies, firms, and entities listed in the appendix to this 
notice are granted relief from the requirements of 49 CFR 395.3(a)(2) 
under the terms and conditions listed below.

Terms of the Exemption

Period of the Exemption

    The exemption from the requirements of 49 CFR 395.3(a)(2) [the 14-
hour rule] is effective June 28, 2005, and is applicable from June 28 
(12:01 a.m.) through July 6, 2005 (11:59 p.m.), and from June 28 (12:01 
a.m.) through July 6, 2006 (11:59 p.m.). The exemption expires on July 
7, 2006.

Extent of the Exemption

    This exemption is restricted to drivers employed by the companies, 
firms and entities listed in the appendix to this notice. The drivers 
are entitled to a limited exemption from the requirements of 49 CFR 
395.3(a)(2). This regulation, 49 CFR 395.3(a)(2), currently prohibits a 
driver from driving after the 14th hour of coming on duty and does not 
permit off-duty periods to extend the 14-hour limit. Drivers covered by 
this exemption may exclude off-duty and sleeper berth time of any 
length from the calculation of the 14-hour limit. This exemption is 
contingent on each driver driving no more than 11 hours in a 14-hour 
period. The exemption is further contingent on each driver having a 
full 10 hours off duty following 14 hours on duty prior to beginning a 
new driving period. The drivers must comply with all other requirements 
of 49 CFR part 395.

Preemption

    During the period the exemption is in effect, no State shall 
enforce any law or regulation that conflicts with or is inconsistent 
with this exemption with respect to a person operating under the 
exemption.

Notification to FMCSA

    Each company, firm and entity listed in the appendix to this notice 
must notify FMCSA within 5 business days of any of the following:
    1. An accident (as defined in 49 CFR 390.5), involving any of the 
motor carrier's CMVs, operating under the terms of this exemption. The 
notification must include the following information:
    a. Date of the accident,
    b. City or town, and State, in which the accident occurred, or 
closest to the accident scene,
    c. Driver's name and license number,
    d. Vehicle number and State license number,
    e. Number of individuals suffering physical injury,
    f. Number of fatalities,
    g. The police-reported cause of the accident, and
    h. Whether the driver was cited for violation of any traffic laws, 
or motor carrier safety regulations.
    2. The total driving time and the total on-duty time period prior 
to the accident.

Termination

    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. 
FMCSA will immediately revoke the exemption for failure to comply with 
its terms and conditions. Each motor carrier and each driver may be 
subject to periodic monitoring by FMCSA during the period the 
exemption.

    Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.73.

    Issued on June 28, 2005.
Annette M. Sandberg,
Administrator.
BILLING CODE 4910-EX-P

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[FR Doc. 05-13110 Filed 6-28-05; 4:36 pm]
BILLING CODE 4910-EX-C