[Federal Register Volume 74, Number 98 (Friday, May 22, 2009)]
[Notices]
[Pages 24069-24072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12057]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]


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

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

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

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SUMMARY: FMCSA announces its decision to renew the exemption of the 
American Pyrotechnics Association (APA) from FMCSA's regulation that 
drivers of commercial motor vehicles (CMVs) may not drive after the 
14th hour after coming on duty. The exemption for 61 motor carriers and 
approximately 3,000 CMV drivers is applicable during the periods June 
28-July 8, 2009, and June 28-July 8, 2010, inclusive. Drivers who 
operate CMVs in conjunction with staging fireworks shows celebrating 
Independence Day will be allowed to exclude off-duty and sleeper-berth 
time of any length from the calculation of the 14 hours. These drivers 
will continue to be subject to the 11-hour driving time limit, and the 
60- and 70-hour on-duty limits. FMCSA believes that with the terms and 
conditions in place, APA members will maintain a level of safety that 
is equivalent to, or greater than, the level of safety that would be 
obtained by complying with the regulation.

DATES: This renewed exemption is effective during the periods of June 
28, 2009, through July 8, 2009, inclusive, and June 28, 2010, through 
July 8, 2010, inclusive. The exemption expires 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 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 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

    Under 49 U.S.C. 31315 and 31136(e), FMCSA may renew an exemption 
from the hours of service (HOS) requirements in 49 CFR 395.3(a)(2) for 
a 2-year period 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.'' The procedures for 
requesting an exemption (including renewals) are prescribed in 49 CFR 
part 381. FMCSA has evaluated the APA application for a renewal on its 
merits and decided to renew the exemption for the 61 companies 
requested for a two-year period. The list of APA member companies 
covered by the exemption from 49 CFR 395.3(a)(2) is included as an 
Appendix to this Notice.

APA Application for Exemption Renewal

    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 renewal 
of an exemption from this subsection. A copy of the request for renewal 
is included in the docket referenced at the beginning of this notice. A 
copy of APA's original request for exemption, submitted in December 
2004, is also in the docket.
    As stated in APA's 2004 request for exemption, the CMV drivers 
employed by APA members are trained pyrotechnicians, and hold a 
commercial driver's license (CDL) with hazardous materials (HM) 
endorsement. They transport fireworks and equipment by CMV on a very 
demanding schedule during a brief Fourth of July period, often to 
remote locations. After they arrive, the APA drivers set up and stage 
fireworks shows.
    In 2007, FMCSA granted this exemption to certain APA members for 
property-carrying CMV transportation associated with the Independence 
Day fireworks displays in 2007 and 2008. The exemption was limited to 
the period from June 28 to July 6, inclusive, in 2007 and 2008 (72 FR 
28755, May 22, 2007).
    APA is seeking renewal of this exemption for the 2009 and 2010 
Independence Day periods because compliance with the current 14-hour 
rule by its members would impose a substantial economic hardship on 
numerous cities, towns and municipalities, as well as its member 
companies. To meet the demand for fireworks under the current HOS 
rules, APA 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 that many Americans would be denied this important component of the 
celebration of Independence Day.

[[Page 24070]]

    APA is requesting that the renewed exemption extend 4 days after 
Independence Day in 2009 and 2010, instead of the 2 days as in past 
years. This is to take into consideration that Independence Day is on a 
weekend in 2009 and 2010, which causes some communities to schedule 
their fireworks displays on different dates. This also provides for 
``rain dates'' that may be scheduled.

Method To Ensure an Equivalent or Greater Level of Safety

    APA believes that renewal of the exemption will not adversely 
affect the safety of the fireworks transportation provided by these 
motor carriers. According to the APA, its member motor carriers have 
operated under this exemption for four previous Independence Day 
periods without a reported motor carrier safety incident. Moreover, it 
asserts, without the extra duty-period 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.
    In its original exemption request, APA argued that the operational 
demands of this unique industry minimize the risks of CMV crashes. In 
the last few days before the Independence Day holiday, 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 shoot. During this time, the drivers are 
able to rest and nap, thereby reducing or eliminating the fatigue 
accumulated during the day. After the shoot, they drive the CMV 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. FMCSA 
believes that these APA operations, conducted under the terms and 
conditions of this limited exemption, will provide a level of safety 
that is equivalent to, or greater than, the level of safety achieved 
without the exemption.

Terms and Conditions of the Exemption

Period of the Exemption

    The exemption from the requirements of 49 CFR 395.3(a)(2) is 
effective June 28 through July 8, 2009, inclusive, and from June 28 
through July 8, 2010, inclusive. The exemption expires on July 9, 2010.

Extent of the Exemption

    This exemption is restricted to drivers employed by the 61 
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 currently 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 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 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 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 or entity operating under 
the exemption.

FMCSA Notification

    Exempt motor carriers must 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

    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. Exempt motor carriers and drivers are subject 
to FMCSA monitoring while operating under this exemption.

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 renewal of its 
exemption from the requirements of 49 CFR 395.3(a)(2). FMCSA will 
review all comments received and determine whether the renewal of the 
exemption is consistent with the requirements of 49 U.S.C. 31315 and 
31136(e). Comments received after the comment closing date will be 
filed in the public docket and will be considered to the extent 
practicable.
    FMCSA believes the requirements for a renewal of an exemption under 
49 U.S.C. 31315 and 31136(e) can be satisfied by initially granting the 
renewal and then requesting and subsequently evaluating comments 
submitted by interested parties.
    Interested parties or organizations possessing information that 
would otherwise show that any or all of these APA member companies are 
not achieving the requisite statutory level of safety should 
immediately notify FMCSA. The Agency will evaluate any information 
submitted and, if safety is being compromised or if the continuation of 
the exemption is inconsistent with 49 U.S.C. 31315(b)(4) and 31136(e), 
FMCSA will immediately take steps to revoke the exemption of the 
company or companies and drivers in question.

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

[[Page 24071]]



Appendix to Notice of Renewal of American Pyrotechnics Association (APA)
  Exemption From the 14-Hour HOS Rule During 2009 and 2010 Independence
                            Day Celebrations
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          Motor carrier                     Address            DOT No.
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Alonzo Fireworks Display, Inc....  12 County Rd 75,               420639
                                    Mechanicsville, NY
                                    12118.
American Promotional Events,       555 North Gilbert              564520
 Inc.--West/TNT Fireworks.          Street, Fullerton, CA
                                    92833.
American Promotional Events,       4511 Helton Drive,            0121384
 Inc.--East Coast/TNT Fireworks.    Florence, AL 35630.
American Promotional Events--      2120 Milwaukee Way,            013086
 Northwest/TNT Fireworks.           Tacoma, WA 98421.
Arrowhead Fireworks Co., Inc.....  3625 Normanna Rd.,             125673
                                    Duluth, MN 55803.
Atlas Enterprises Inc............  6601 Nine Mile Azle Rd.,      0116910
                                    Fort Worth, TX 76135.
Atomic Fireworks.................  3660 W. Sunshine,              130200
                                    Springfield, MO.
Atomic Fireworks.................  999 Sumter Highway,            446835
                                    Bishopville, SC.
Atomic Fireworks.................  P.O. Box 190, South            095166
                                    Pittsburg, TN.
B.J. Alan Company................  555 Martin Luther King,        262140
                                    Jr Blvd., Youngstown,
                                    OH 44502.
Central States Fireworks, Inc....  18034 Kincaid Street,         1022659
                                    Athens, IL 62613.
Colonial Fireworks Company.......  5225 Telegraph Road,           177274
                                    Toledo, OH 43612.
Falcon Fireworks.................  3411 Courthouse Road,         1037954
                                    Guyton, GA 31312.
Fireworks & Stage FX America.....  P.O. Box 488, Lakeside,        908304
                                    CA 92040.
Fireworks by Grucci, Inc.........  1 Grucci Lane,                 324490
                                    Brookhaven, NY 11719.
Fireworks Productions, Inc.......  P.O. Box 294, Maryland         464796
                                    Line, MD.
Garden State Fireworks, Inc......  383 Carlton Road,              435878
                                    Millington, NJ 07946.
Galaxy Fireworks, Inc............  204 E. MLK Jr Blvd.,           809731
                                    Tampa, FL 33603.
Gateway Fireworks Displays.......  P.O. Box 39327, St            1325301
                                    Louis, MO 63139.
Global Pyrotechnics Solutions,     10476 Sunset Drive,           1183902
 Inc.                               Dittmer, MO 63023.
Hamburg Fireworks Display, Inc...  4300 Logan Lancaster           395079
                                    Rd., Lancaster, OH.
Ingram Enterprises dba Fireworks   6597 W. Independence          0268419
 over America.                      Drive, Springfield, MO
                                    65802.
International Fireworks Mfg. Co..  242 Sycamore Road,             385065
                                    Douglasville, PA 19518.
Island Fireworks Company.........  N735 825th St., Hager          414583
                                    City, WI 54014.
J&M Displays, Inc................  18064 170th Ave.,              377461
                                    Yarmouth, IA 52660.
Jake's Fireworks/Fireworks         2311 A West 4th St.,           449599
 Spectacular.                       Pittsburg, KS 66762.
July 4 Ever......................  382 Rock Cut Rd.,              803442
                                    Walden, NY 12586.
Kellner's Fireworks, Inc.........  478 Old Rte 8,                 481553
                                    Harrisville, PA.
Lantis Fireworks and Lasers......  P.O. Box 491, Draper, UT       195428
                                    84202.
Lantis Fireworks, Inc............  130 Sodrac Dr., N Sioux        534052
                                    City, SD 57049.
Legion Fireworks Co., Inc........  10 Legion Lane,                554391
                                    Wappingers Falls, NY
                                    12590.
Lew's Fireworks, Inc.............  45788 U.S. Hwy 212,            333792
                                    Watertown, SD 57201.
Mad Bomber/Planet Productions....  P.O. Box 294, Kingsbury,       777176
                                    IN 46345.
Melrose Display Company..........  7620 Little Mount Rd.,         434586
                                    Taylorsville, KY 40071.
Melrose North Pyrotechnics.......  9405 River Rd., SE.,           434586
                                    Clear Lake, MN 55319.
Melrose Pyrotechnics, Inc........  P.O. Box 302, Kingsbury,       434586
                                    IN 46345.
Melrose South Pyrotechnics.......  4652 Catawga River Rd.,        545033
                                    Catawga, SC 29704.
Montana Display, Inc.............  9480 Inspiration Drive,       1030231
                                    Missoula, MT 59808.
Precocious Pyrotechnics, Inc.....  4420 278th Ave., NW.,          435931
                                    Belgrade, MN 56312.
Pyro Engineering Inc., dba/Bay     110 Route 110, Suite           530262
 Fireworks.                         102, Huntington
                                    Station, NY 11746.
Pyro Shows, Inc..................  701 W. Central Ave.,           456818
                                    LaFollette, TN 37766.
Pyro Spectaculars, Inc...........  3196 N. Locust Ave.,           029329
                                    Rialto, CA 92376.
Pyrotechnics by Presutti, Inc....  P.O. Box 42, St                 51974
                                    Clairsville, OH 43950.
Pyrotecnico......................  302 Wilson Rd., New            526749
                                    Castle, PA 16105.
Pyrotecnico of Louisiana, LLC....  60 West Ct., Mandeville,       548303
                                    LA 70471.
RES Specialty Pyrotechnics.......  21595 286th St., Belle         523981
                                    Plaine, MN 56011.
Rich Brothers Company............  700 S. Marion Rd., Sioux       001356
                                    Falls, SD 57106.
Rozzi's Famous Fireworks, Inc....  11605 North Lebanon Rd.,      0483686
                                    Loveland, OH 45140.
Skyworks, Ltd....................  13513 W. Carrier Rd.,         1421047
                                    Carrier, OK 73727.
Spielbauer Fireworks Co, Inc.....  220 Roselawn Blvd.,            046479
                                    Green Bay, WI 54301.
Stonebraker-Rocky Mountain         5650 Lowell Blvd., Unit       0029845
 Fireworks Co.                      E, Denver, CO 80221.
Thunder Fireworks................  5207 187th St., E,             463284
                                    Tacoma, WA 98446.
Vermont Fireworks Co., Inc./       2235 Vermont Route 14          310632
 Northstar Fireworks Co., Inc.      South, East Montpelier,
                                    VT 05651.
Wald & Co., Inc..................  P.O. Box 319, Greenwood,       087079
                                    MO 64034.
Walt Disney Entertainment........  5700 Maple Road, Lake          148477
                                    Buena Vista, FL 32830.
Western Enterprises, Inc.........  P.O. Box 160, Carrier,         203517
                                    OK 73727.
Western Fireworks, Inc...........  14592 Ottaway Rd., NE.,        838585
                                    Aurora, OR 97002.
Winco Fireworks Int. LLC.........  1992 NW Hwy 50, Lone           259688
                                    Jack, MO.
Wolverine Fireworks Display, Inc.  205 W. Seidlers,               376857
                                    Kawkawlin, MI.
Young Explosives Corp............  P.O. Box 18653,                450304
                                    Rochester, NY.
Zambelli Fireworks MFG Co., Inc..  P.O. Box 1463, New             033167
                                    Castle, PA 16103.
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[[Page 24072]]

[FR Doc. E9-12057 Filed 5-21-09; 8:45 am]
BILLING CODE 4910-EX-P