[Federal Register Volume 72, Number 124 (Thursday, June 28, 2007)]
[Notices]
[Pages 35538-35541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12572]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28090]


Hours of Service (HOS) of Drivers; American Pyrotechnics 
Association (APA) 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 in 2007 and 2008. Fireworks 
personnel who operate CMVs

[[Page 35539]]

for the nine companies listed in this notice, in conjunction with 
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 limit and 
the 60- and 70-hour weekly limits. No substantive comments were 
received in response to the Agency's May 30, 2007 notice requesting 
public comment on the APA application. The FMCSA has determined that 
the granting of the exemption would achieve a level of safety that is 
equivalent to, or greater than, the level that would be achieved absent 
such exemption.

DATES: The exemption is effective June 28, 2007, and is applicable from 
June 28 (12:01 a.m.) through July 6, 2007 (11:59 p.m.), and from June 
28 (12:01 a.m.) through July 6, 2008 (11:59 p.m.). The exemption 
expires on July 6, 2008.

ADDRESSES: Docket: For access to the docket to read background comments 
or comments received, go to http://dms.dot.gov and/or Room W12-140, 
Ground Floor of West Building, U.S. Department of Transportation (DOT), 
1200 New Jersey Ave., SE., 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 the DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477; April 11, 2000). This statement is also 
available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver 
and Carrier Operations Division, Office of Bus and Truck Standards and 
Operations: Telephone: 202-366-4009. E-mail: [email protected].

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 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 (49 
CFR 381.315(a)). 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 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 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.

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 would be allowed to exclude off-duty 
and sleeper-berth time of any length from 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 nine carriers employing 
approximately 100 drivers responsible for operating about 100 CMVs. A 
copy of the application for an exemption, which includes a list of all 
of the motor carriers that would be covered by it, is included in the 
docket referenced at the beginning of this notice.
    On May 22, 2007, FMCSA published a notice in the Federal Register 
(72 FR 28755) granting a renewal of an identical exemption from APA for 
70 of its member companies. The original exemption expired on July 7, 
2006, and APA had requested a renewal for those original companies.
    On May 30, 2007, FMCSA published a notice in the Federal Register 
(72 FR 30047) announcing APA's application for exemption for nine of 
its member carriers, and requesting public comment.
    APA, a trade association representing the domestic fireworks 
industry, asserts that full compliance with the current hours-of-
service (HOS) regulations during the brief period surrounding 
Independence Day imposes 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 engaged to stage 
multiple shows in celebration of Independence Day, during a compressed 
timeframe.
    The member-company drivers that would be covered by the exemption 
are trained pyrotechnicians, each holding a commercial driver's license 
with a hazardous materials endorsement. These drivers transport 
fireworks and equipment to remote locations under demanding schedules. 
During the week before Independence Day, these companies are engaged to 
stage multiple shows in a very compressed period of time. To meet the 
press of business in this 1-week period under the current HOS rules, 
companies would be required to hire a second driver for most trips. 
This would result in a substantial increase in the cost of these shows, 
and as a result, many shows would be cancelled. Alternatively, APA 
members would be forced to significantly decrease their engagements. In 
either case, these companies would have to decrease the number of shows 
they provide, thereby denying many Americans a primary component of 
their Independence Day celebration.
    APA believes that granting of the requested exemption will not 
adversely affect the safety of the motor carrier transportation 
provided by its member companies. An identical exemption has been in 
effect, including renewal, since 2004 for approximately 70 other APA 
member carriers. There have been no reported crashes or incidents 
involving these carriers. According to the APA, the exemption will 
enhance safety by decreasing the number of CMVs stationed with HM 1.3 
and 1.4 products aboard at locations throughout the country. Under the 
exemption, CMVs will be able to return to their home base, which is a 
secured area for these types of products.
    In its prior comparable exemption requests, APA stated they believe 
that the operational demands of this unique industry minimize the risks 
of CMV crashes. In the last few days before the Independence Day 
holiday, drivers spend their driving time transporting fireworks 
relatively short distances from the nearest distribution point to the 
site of the fireworks display. Most of their on-duty time, however, is 
devoted to installing, wiring, and double-checking

[[Page 35540]]

fireworks displays. Pyrotechnicians drive to the site of the fireworks 
display in the early morning and return late in the evening, thus 
avoiding much of the heavy traffic typical of the holiday. After 
setting the fireworks display in daylight in order to reduce the 
possibility of mistakes, the pyrotechnicians/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 safer.
    In addition to driving at off-peak hours and having an opportunity 
for substantial rest periods during their tour 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.

Discussion of Public Comments

    On May 30, 2007, FMCSA requested public comment from all interested 
persons on the APA application for an exemption for these nine member 
companies (72 FR 30047). The comment period closed on June 14, 2007. 
There were no substantive comments filed in response to this notice.

FMCSA Decision

    The FMCSA has determined that the granting of this exemption would 
achieve a level of safety that is equivalent to, or greater than, the 
level that would be achieved absent such exemption. An identical 
exemption has been in effect, including renewal, since 2005 for 
approximately 70 other APA member carriers. There have been no reported 
crashes or incidents involving these carriers while operating under the 
exemption. No comments have been received concerning adverse impacts on 
safety in response to FMCSA's May 30, 2007 notice announcing this 
exemption application. Although FMCSA believes the 14-hour limit is 
generally conducive to safety, the current HOS regulations allow 
certain short-haul drivers a 16-hour driving ``window'' once a week, 
providing specified conditions are met. Because pyrotechnician-drivers 
operate like short-haul drivers (relatively little driving, a variety 
of work), FMCSA has concluded that the 9-day yearly exemption requested 
by APA is not likely to adversely affect motor carrier safety.
    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 following terms and conditions:

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, 2007, and is applicable from 
June 28 (12:01 a.m.) through July 6, 2007 (11:59 p.m.) and from June 28 
(12:01 a.m.) through July 6, 2008 (11:59 p.m.). The exemption expires 
on July 7, 2008.

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 (49 U.S.C. 31315(d)).

Notification to FMCSA

    Under the exemption, each APA member company, firm and entity 
listed in the appendix to this notice must notify FMCSA within 5 
business days of any 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,
    h. Whether the driver was cited for violation of any traffic laws, 
or motor carrier safety regulations, and
    i. The total driving time and 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 of the 
exemption.

    Issued on: June 22, 2007.
Larry W. Minor,
Acting Associate Administrator for Policy and Program Development.

Appendix to Notice of Application for Exemption by American 
Pyrotechnics Association From the 14-Hour Rule During 2007 and 2008 
Independence Day Celebrations

      List of APA Members Covered by Exemption From 14-hour Rule in Hours of Service for Drivers Regulation
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               Company name                           Address                  City, State ZIP          DOT No.
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Alpha-Lee Enterprises, Inc...............  4111 FM 2351................  Friendswood, TX 77546......    1324580A
American Fireworks Company...............  7041 Darrow Road............  Hudson, OH 44236...........      103972
Cartwright Fireworks, Inc................  1608 Keely Road.............  Franklin, PA 16323.........      882283
Entertainment Fireworks, Inc.............  P.O. Box 7160...............  Olympia, WA 98507-7160.....      680942
Fireworks Productions of Arizona, Ltd....  17034 S. 54th Street........  Chandler, AZ 85226.........      948780
Great Lakes Fireworks....................  24805 Marine................  Eastpointe, MI 48021.......     1011216

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Rainbow Fireworks, Inc...................  76 Plum Ave.................  Inman, KS 67546............     1139643
Skyworks, Ltd............................  13513 W. Carrier Road.......  Carrier, OK 73727..........     1421047
Stellar Fireworks, Inc...................  4440 Southeast Blvd.........  Wichita, KS 67210..........     1349562
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 [FR Doc. E7-12572 Filed 6-27-07; 8:45 am]
BILLING CODE 4910-EX-P