[Federal Register Volume 74, Number 98 (Friday, May 22, 2009)]
[Notices]
[Pages 24066-24069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12056]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]


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

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

ACTION: Notice of application for exemption; request for comments.

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SUMMARY: The American Pyrotechnics Association (APA) has applied for a 
limited exemption from FMCSA's regulation that drivers of commercial 
motor vehicles (CMVs) may not drive after the 14th hour after coming on 
duty. The exemption would apply solely to the operation of CMVs by 14 
designated APA motor carriers in conjunction with staging fireworks 
shows celebrating Independence Day during the periods June 28-July 8, 
2009, and June 28-July 8, 2010, inclusive. During these two periods, 
the approximately 100 CMV drivers employed by these 14 APA motor 
carriers in conjunction with staging fireworks shows would be allowed 
to exclude off-duty and sleeper-berth time of any length from the 
calculation of the 14 hours. These drivers would not be allowed to 
drive after accumulating a total of 14 hours of on-duty time, following 
10 consecutive hours off duty, and would continue to be subject to the 
11-hour driving time limit, and the 60- and 70-hour on-duty limits. 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.

DATES: This exemption would be effective during the periods of June 28, 
2009, through July 8, 2009, inclusive, and June 28, 2010, through July 
8, 2010, inclusive. The exemption would expire on July 9, 2010. 
Comments must be received on or before June 8, 2009.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2007-28043 by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Telefax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590, between 
9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal 
holidays.
    Instructions: All submissions must include the Agency name and 
docket number. For detailed instructions on submitting comments and 
additional information on the exemption process, see the Public 
Participation heading

[[Page 24067]]

below. Note that all comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov, and follow the 
online instructions for accessing the dockets, or go to the street 
address listed above.
    Privacy Act: You may search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
DOT's complete Privacy Act Statement in the Federal Register published 
on April 11, 2000 (65 FR 19476) or you may visit http://DocketInfo.dot.gov.
    Public Participation: The Federal eRulemaking Portal is available 
24 hours each day, 365 days each year. You may obtain electronic 
submission and retrieval help and guidelines under the ``help'' section 
of the Federal eRulemaking Portal Web site. If you want us to notify 
you that we received your comments, please include a self-addressed, 
stamped envelope or postcard, or print the acknowledgement page that 
appears after submitting comments online. Comments received after the 
comment closing date will be included in the docket, and we will 
consider late comments to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas L. Yager, Chief, FMCSA 
Driver and Carrier Operations Division, Office of Bus and Truck 
Standards and Operations: Telephone: 202-366-4325. 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 authority to grant exemptions from its 
motor carrier safety regulations, including the hours-of-service (HOS) 
rules. The procedure for requesting an exemption is prescribed in 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 an opportunity to inspect the information relevant to the 
application, including any safety analyses that have been conducted, 
and to comment on the request. The Agency may grant an exemption for up 
to 2 years.
    The Agency reviews the safety analyses and public comments and may 
grant the exemption if it finds ``such exemption would likely achieve a 
level of safety that is equivalent to, or greater than, the level that 
would be achieved absent such exemption'' (49 CFR 381.305). The 
decision of the Agency must be published in the Federal Register (49 
CFR 381.315(b)) with the reason for denying or, in the alternative, the 
specific person or class of persons receiving the exemption, and the 
regulatory provision or provisions from which the exemption is granted. 
The notice must also specify the effective period of the exemption (up 
to 2 years), and explain the terms and conditions of the exemption.

APA Application for Exemption

    The HOS rules in 49 CFR 395.3(a)(2) prohibit a property-carrying 
CMV driver from driving after the 14th hour after coming on duty 
following 10 consecutive hours off duty. APA, a trade association 
representing the domestic fireworks industry, has applied for an 
exemption from this subsection for 14 of its member motor carriers. A 
copy of the application is included in the docket referenced at the 
beginning of this notice. A list of the 14 APA motor carriers within 
the scope of this exemption request is included as an appendix to this 
notice.
    The initial APA application for this type of exemption was 
submitted in 2004; a copy of it is in this docket. That application 
fully describes the nature of the pyrotechnic operations of the CMV 
drivers employed by APA-member motor carriers during a typical 
Independence Day period. The CMV drivers are trained pyro-technicians 
holding a commercial driver's license (CDL) with hazardous materials 
(HM) endorsement. They transport fireworks and related equipment by CMV 
on a very demanding schedule, often to remote locations. After they 
arrive, the APA drivers set-up and stage fireworks shows.
    In 2007, FMCSA granted this same limited exemption to 70 APA-member 
motor carriers for their CMV transportation of fireworks for 
Independence Day displays in 2007 and 2008 (72 FR 28755, May 22, 2007). 
The Agency is not aware of any adverse safety events related to APA 
operations during these periods. APA has now applied for the same 
limited exemption for 14 additional motor carriers. (APA has also 
applied for renewal of the exemption granted in 2007 for 61 of the 70 
member-companies.)
    APA is seeking this exemption because compliance with the current 
14-hour rule by its members during these two 11-day periods would 
impose a substantial economic hardship on numerous cities, towns and 
municipalities, as well as the APA companies. To meet the demand for 
fireworks under the current HOS rules, APA asserts that its member 
companies would be required to hire a second driver for most trips. The 
result would be a substantial increase in the cost of the fireworks 
shows--beyond the means of many of APA's customers--and would deny many 
Americans this important component of their Independence Day 
celebration.

Method To Ensure an Equivalent or Greater Level of Safety

    APA believes that this exemption would not adversely affect the 
safety of the motor carrier transportation provided by its members 
during the two eleven-day periods. According to the APA, without the 
extra on-duty 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.
    APA has stated its belief that the operational demands of this 
unique industry minimize the risk of a CMV crash. During the exemption 
period, 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 a period of several hours off duty 
in the late afternoon and early evening prior to the shoot. During this 
time, the CMV drivers are able to rest and nap, thereby reducing or 
eliminating the fatigue accumulated during the day. After the shoot, 
they drive the CMVs to the point of origin. This occurs late in the 
evening, and thus avoids heavy traffic. Before beginning another duty 
day, these drivers must take 10 consecutive hours off duty, the same as 
other CMV drivers. APA believes that these operations, conducted under 
the terms and conditions of this limited exemption, would provide a 
level of safety that is equivalent to, or greater than, the level of 
safety achieved without the exemption.

[[Page 24068]]

Terms and Conditions of the Exemption

Period of the Exemption

    APA's request for exemption from the requirements of 49 CFR 
395.3(a)(2) would be effective June 28 through July 8, 2009, inclusive, 
and from June 28 through July 8, 2010, inclusive. The requested 
exemption would expire on July 9, 2010.

Extent of the Exemption

    This exemption would be restricted to drivers employed by the 14 
companies, firms and entities listed in the appendix to this notice. 
The drivers would be entitled to a limited exemption from the 
requirements of 49 CFR 395.3(a)(2), which prohibits a driver from 
driving 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 a 
14-hour on-duty period. The exemption would further be contingent on 
each driver having 10 consecutive 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 periods the exemption would be in effect, no State would 
be permitted to enforce any law or regulation that conflicts with or is 
inconsistent with this exemption with respect to a person or entity 
operating under the exemption.

Notification to FMCSA

    Each company, firm and entity listed in the appendix to this notice 
would be required to notify FMCSA within 5 business days of any 
accidents (as defined by 49 CFR 390.5) involving the operation of any 
of its CMVs while under 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 
which is closest to the scene of the accident,
    c. Driver's name and driver's 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 the total on-duty time of the CMV 
driver at the time of the accident.

Termination

    During the exemption periods, FMCSA would retain the authority to 
take all steps necessary to protect the public interest, including 
revocation of the exemption. Exempt motor carriers and drivers would be 
subject to FMCSA monitoring while operating under this exemption. FMCSA 
would immediately revoke the exemption for failure to comply with its 
terms and conditions.

Request for Comments

    In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA 
requests public comments on APA's request for a limited exemption from 
the requirements of 49 CFR 395.3(a)(2) for the 14 motor carriers listed 
in the appendix to this notice. FMCSA will consider all comments 
received by close of business on June 8, 2009. All comments will be 
available for examination in the docket listed under the ADDRESSES 
section of this notice. The Agency will consider to the extent 
practicable comments received in the public docket after the closing 
date of the comment period.

    Issued on: May 18, 2009.
Larry W. Minor,
Associate Administrator for Policy and Program Development.

     Appendix to the Notice of Application of American Pyrotechnics
   Association (APA) for a Limited HOS Exemption for 14 Motor Carriers
         During the 2009 and 2010 Independence Day Celebrations
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                      Motor carrier           Address          DOT No.
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1................  Alpha-Lee            4111 FM 2351,            1324580
                    Enterpirses, Inc.    Friendswood, TX
                                         77546.
2................  American Fireworks   7041 Darrow Road,         103972
                    Company.             Hudson, OH 44236.
3................  Atlas Pyrovision     P.O. Box 498,             789777
                    Productions, LLC.    Jaffrey, NH 03452.
4................  Cartwright           1608 Keely Road,          882283
                    Fireworks, Inc.      Franklin, PA 16323.
5................  DDT, LLC--All        4503 E. 460, Pryor,      1606354
                    American             OK 74361.
                    Transport, LLC.
6................  Entertainment        P.O. Box 7160,            680942
                    Fireworks, Inc.      Olympia, WA 98507-
                                         7160.
7................  Fireworks            17034 S 54th              948780
                    Productions of       Street, Chandler,
                    Arizona, Ltd.        AZ 85226.
8................  Fireworks West       3200 West 910             245423
                    Internationale.      North, Logan, UT
                                         84321.
9................  Great Lakes          24805 Marine,            1011216
                    Fireworks.           Eastpointe, MI
                                         48021.
10...............  Hollywood            1567 Antler Point,       1061068
                    Pyrotechnics, Inc.   Eagan, MN 55122.
11...............  Johnny Rockets       4410 N. Hamilton,        1263181
                    Fireworks Display    Chicago, IL 60625.
                    Co.
12...............  Night Magic, Inc...  P.O. Box 294,             557323
                                         Kingsbury, IN
                                         46345.
13...............  Rainbow Fireworks,   76 Plum Ave.,            1139643
                    Inc.                 Inman, KS 67546.
14...............  Victory Fireworks    579 Vincent Lane,         539751
                    Inc.                 Ellsworth, WI
                                         54011.
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[FR Doc. E9-12056 Filed 5-21-09; 8:45 am]
BILLING CODE 4910-EX-P