[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Notices]
[Pages 30232-30235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12760]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 9 
designated APA-member motor carriers in conjunction with staging 
fireworks shows celebrating Independence Day during the periods June 
28--July 8, 2011, and June 28--July 8, 2012, inclusive. During these 
two periods, the approximately 375 CMVs and drivers employed by these 9 
APA-member motor carriers would be allowed to exclude off-duty and 
sleeper-berth time

[[Page 30233]]

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: Comments must be received on or before June 14, 2011. This 
exemption would be effective during the periods of June 28, 2011, 
through July 8, 2011, inclusive, and June 28, 2012, through July 8, 
2012, inclusive. The exemption would expire on July 9, 2012.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2007-28043 by any of the following 
methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. In the ENTER KEYWORD OR ID box enter FMCSA-2007-
28043 and click on the tab labeled SEARCH. On the ensuing page, click 
on any tab labeled SUBMIT A COMMENT on the extreme right of the page 
and a page should open that is titled ``Submit a Comment.'' You may 
identify yourself under section 1, ENTER INFORMATION or you may skip 
section 1 and remain anonymous. You enter your comments in section 2, 
TYPE COMMENT & UPLOAD FILE. When you are ready to submit your comments, 
click on the tab labeled SUBMIT. Your comment is then submitted to the 
docket; and you will receive a tracking number.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: West Building, Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC, 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 ADDRESSES 
heading above and 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 also 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 at any time, and in 
the ENTER KEYWORD OR ID box enter FMCSA-2007-28043 and click on the tab 
labeled SEARCH.
    Privacy Act: Anyone is able to 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 DOT's 
complete Privacy Act Statement in the Federal Register published on 
January, 17, 2008 (73 FR 3316) or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
    Public Participation: The http://www.regulations.gov Web site is 
generally available 24 hours each day, 365 days each year. You can 
obtain electronic submission and retrieval help and guidelines under 
the ``help'' section of the http://www.regulations.gov Web site and 
also at the DOT's http://docketsinfo.dot.gov 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.

FOR FURTHER INFORMATION CONTACT: Ms. Christine Hydock, 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 the exemption 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 9 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 9 APA motor carriers within the 
scope of this exemption request is included as an appendix to this 
notice.
    APA has also applied for renewal of the exemption granted in 2009 
(74 FR 29264, June 19, 2009). The renewal would cover 54 of the 61 
member motor carriers listed in the 2009 exemption notice. Information 
regarding that request will be published in a separate Federal Register 
notice.
    The initial APA exemption application for relief from the 14-hour 
rule was submitted in 2004; a copy of the application is in the 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 a 
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 driver is responsible for set-up 
and staging of the fireworks shows.
    In 2009, FMCSA granted this same limited exemption to 14 new APA-
member motor carriers (74 FR 29266, June 10, 2009) and renewed 61 
exemptions of APA-member motor carriers (74 FR 29264, June 19, 2009) 
for their CMV transportation of fireworks for Independence Day displays 
in 2009 and 2010. 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

[[Page 30234]]

exemption for 9 additional motor carriers.
    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 11-day periods. According to the APA, the companies that 
have operated under the exemption, and subsequent renewals, for the 
past six years have done so with no reports of incidents of any kind. 
As a condition of holding the exemption, each motor carrier is required 
to notify FMCSA within 5 business days of any accident (as defined by 
49 CFR 390.5) involving the operation of any of its CMVs while under 
this exemption. To date, FMCSA has received no incident notifications.
    In addition, the exemption will enhance safety by decreasing the 
number of CMVs stationed with 1.1G, 1.3G and 1.4G fireworks aboard at 
locations throughout the country. Under the exemption, drivers will be 
able to safely return the CMVs to their home base, next display 
location or proper storage facility, which are all properly secured 
areas for 1.1G, 1.3G and 1.4G fireworks as required by the Bureau of 
Alcohol, Tobacco, Firearms and Explosives, and state and local 
regulations. APA states 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 event. During this 
time, the CMV drivers are able to rest and nap, thereby reducing or 
eliminating the fatigue accumulated during the day. After the event, 
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 which is the 
same requirement imposed on other CMV drivers.
    APA also argues that the heavy training requirements imposed on 
their CMV drivers add to the level of safety achieved. These drivers 
are comprehensively trained on proper handling and use of these 
products, and receive the training and qualifications required by the 
Department of Transportation. Each driver goes through an extensive 
training and apprentice program for up to two years before transporting 
and operating a fireworks display. In addition, all companies 
requesting the exemption have agreed to provide to their drivers 
operating under the exemption additional training on the importance of 
proper rest periods during the work day, including naps and breaks by 
other means.
    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.

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, 2011, inclusive, 
and from June 28 through July 8, 2012, inclusive. The requested 
exemption would expire on July 9, 2012.

Extent of the Exemption

    This exemption would be restricted to drivers employed by the 9 
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 the Federal Motor Carrier Safety 
Regulations) (49 CFR parts 350-399).

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

    Although FMCSA previously requested public comment on the safety 
impact of similar APA requests [i.e., for a limited exemption from the 
requirements of 49 CFR 395.3(a)(2) for the 2005-2006, 2007-2008, 2009-
2010 Independence Day celebrations and in a notice published on March 
25, 2011 (76 FR 16852)], the Agency is required by 49 U.S.C. 
31315(b)(4) and 31136(e) to request public comment on all applications 
for exemption.

[[Page 30235]]

    Due to the fact that this exemption application is specific to the 
Independence Day celebrations, FMCSA must obtain, and complete its 
review of, comments in time to issue a final determination before the 
4th of July holiday. This is not to say that the Agency has prejudged 
the outcome of this process, but approval of the application is one 
possible result. Granting the exemption after the long holiday weekend 
would reduce its value considerably. FMCSA is therefore adopting a 
comment period of 21 days instead of the 30 days normally provided. We 
do not believe this imposes any particular hardship on potential 
commenters, since this application involves the same issues as those 
raised by similar exemption applications submitted by the pyrotechnic 
industry in previous years. Commenters who have an interest in such 
matters are likely to be familiar with the issues and arguments 
surrounding a fireworks exemption, and will be able to formulate their 
responses within a 21-day comment period.
    Therefore FMCSA, in accordance with 49 U.S.C. 31315(b)(4) and 
31136(e), requests public comments on APA's recent request for 
exemption from the 14-hour rule for the 9 motor carriers listed in the 
appendix to this notice. FMCSA will consider all comments received by 
close of business on June 14, 2011. 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 19, 2011.
Pamela M. Pelcovits,
 Director, Office of Policy Plan and Regulations.

     Appendix to the Notice of Application of American Pyrotechnics
   Association (APA) for a Limited HOS Exemption for 9 Motor Carriers
         During the 2011 and 2012 Independence Day Celebrations
------------------------------------------------------------------------
          Motor Carrier                     Address            DOT No.
------------------------------------------------------------------------
1. AM Pyrotechnics, LLC..........  2429 East 535th Rd.,          1034961
                                    Buffalo, MO 65622.
2. Arthur Rozzi Pyrotechnics.....  6607 Red Hawk Ct.,            2008107
                                    Maineville, OH 45039.
3. East Coast Pyrotechnics, Inc..  4652 Catawba River Rd.,        545033
                                    Catawba, SC 29704.
4. Fireworks Extravaganza........  58 Maple Lane,                2064141
                                    Otisville, NY 10963.
5. Hi-Tech FX, LLC...............  1135 Ave. I, Fort             1549055
                                    Madison, IA 52627.
6. North Central Industries, Inc.  1500 E. Washington,          00165755
                                    Muncie, IN 47305.
7. Pyro Spectaculars North, Inc..  5301 Lang Avenue,             1671438
                                    McClellan, CA 95652.
8. Pyrotechnic Display, Inc......  8450 W. St. Francis Rd.,      1929883
                                    Frankfort, IL 60423.
9. Western Display Fireworks, Ltd  10946 S. New Era Rd.,          498941
                                    Canby, OR 97013.
------------------------------------------------------------------------

[FR Doc. 2011-12760 Filed 5-23-11; 8:45 am]
BILLING CODE 4910-EX-P