[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Notices]
[Pages 37876-37880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16192]


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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: The FMCSA announces the renewal of the exemption of specified 
members of the American Pyrotechnics Association (APA) from FMCSA's 
prohibition on driving commercial motor vehicles (CMVs) after the 14th 
hour after the driver comes on duty. The exemption granted to 53 motor 
carriers and approximately 3,000 CMV drivers is applicable during the 
periods June 28-July 8, 2011, and June 28-July 8, 2012, inclusive. The 
requested renewal of a prior exemption for one motor carrier is not 
being granted. Drivers who operate applicable 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 14-hour cumulative on-duty limit, the 11-hour driving time 
limit, and the 60- and 70-hour weekly on-duty limits. The FMCSA 
believes that with the terms and conditions of this exemption in 
effect, designated APA-member motor carriers will maintain a level of 
safety that, at a minimum, is equivalent to 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 (12:01 a.m.) through July 8, 2011 (11:59 p.m.) and from June 28 
(12:01 a.m.) through July 8, 2012 (11:59 p.m.). Comments must be 
received on or before July 28, 2011.

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 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 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.

[[Page 37877]]

    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 published in the Federal Register 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. 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: 

APA Application for Exemption Renewal

    The hours-of-service (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. Under 49 U.S.C. 
31315 and 31136(e), FMCSA may renew an exemption from the 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.
    The APA, a trade association representing the domestic fireworks 
industry, had previously requested and received an exemption from this 
HOS subsection for certain motor carrier members. The APA has applied 
for renewal of that exemption. 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 2004 request for waiver or exemption is also in 
the docket. The FMCSA has evaluated the APA application for renewal on 
its merits and decided to renew the exemption for 53 companies for a 
two-year period, and not renew the exemption requested for one company. 
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.
    As stated in APA's 2004 request for waiver or exemption, the CMV 
drivers employed by APA-member companies are trained pyrotechnicians, 
and hold commercial driver's licenses (CDLs) with hazardous materials 
(HM) endorsements. They transport fireworks and equipment by CMV on a 
very demanding schedule during a brief Independence Day period, often 
to remote locations. After they arrive, the APA drivers are responsible 
for set-up and staging of the fireworks shows.
    In 2009, FMCSA granted a limited exemption to 14 new APA-member 
motor carriers (74 FR 29266, June 19, 2009) and renewed 61exemptions 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 exemption was limited to the period from June 28 to July 8, 
inclusive, in 2009 and 2010. Previously, the Agency had granted a 
waiver to APA for a similar exception for the 2004 Independence Day 
period, and two-year exemptions for the 2005-2006 and 2007-2008 
periods. The Agency is not aware of any adverse safety events related 
to APA operations during these Independence Day periods.
    The APA is seeking renewal of the 2009 exemptions for the 2011 and 
2012 Independence Day periods because it argues that 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 claim they would be required to 
hire a second driver for most trips. The APA argues that the result 
would be a substantial increase in the cost of the fireworks shows--
beyond the means of many of its members' customers--and that many 
Americans would be denied this important component of the celebration 
of Independence Day.

Method To Ensure an Equivalent or Greater Level of Safety

    The APA believes that renewal of the exemption will not adversely 
affect the safety of the fireworks transportation provided by these 
motor carriers. According to APA, its member motor carriers have 
operated under this exemption for seven 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. As a condition of holding the exemption, 
each motor carrier is required to notify FMCSA within 5 business days 
of any accident (as defined in 49 CFR 390.5) involving the operation of 
any its CMVs while under this exemption. To date, FMCSA has received no 
accident notifications, nor is the Agency aware of any accidents 
reportable under terms of the exemption.
    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 event. During this time, the drivers are 
able to rest and nap, thereby reducing or eliminating the fatigue 
accumulated during the day. 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, at a minimum, is equivalent to the level of safety 
achieved without the exemption.

Advocates for Highway and Auto Safety (Advocates) June 5, 2009, 
Comments

    During the exemption renewal process in 2009, FMCSA's June 19, 
2009, notice did not acknowledge or respond to comments submitted by 
Advocates. Although Advocates timely filed its comments on June 5, 
prior to the June 8 deadline for responding to the Agency's May 22 
notices (74 FR 24066 and 74 FR 24069), those comments were not 
available at http://www.regulations.gov, the Web site at which docket 
comments are posted, until after the comment period had closed. By the 
time the personnel responsible for managing this Web site for all 
Federal regulatory matters had posted Advocates' comments to the 
electronic docket, FMCSA staff had prepared its draft notice of final

[[Page 37878]]

disposition. Because of the time constraints for issuing a decision in 
time for the 2009 Independence Day celebration, FMCSA issued the notice 
of final disposition on June 19, 2009 (74 FR 29264), without the 
Advocates' comments.
    In consideration of the administrative delay in the posting of the 
Advocates' comments to the docket, FMCSA published a notice requesting 
public comment on March 25, 2011, pertaining to the safety impact of 
the exemption prior to consideration of any subsequent requests for 
renewal of the exemption (76 FR 16852). The deadline for submitting 
comments was April 25, 2011. As of June 20, 2011, no comments had been 
submitted to the public docket. However, because the Agency did not 
specifically address Advocates' comments in 2009, we will do so now.

FMCSA Response to Advocates' 2009 Comments

    Advocates argue that the Agency is relying on uncorroborated 
statements about APA members' work schedules and safety management 
controls. The Agency acknowledges that it does not, as a matter of 
routine practice, review data on the actual schedules drivers are 
working during the period of the exemption. However, the participating 
carriers are generally required under 49 CFR 395.8 to retain records of 
duty status information for a period of 6 months from the date the 
records are generated, as is the case for all interstate drivers 
subject to the recordkeeping provisions of the HOS rules. Therefore, in 
the event of a crash or unintentional release or detonation of 
hazardous materials, the carriers would be required to produce, upon 
demand, records to document the actual work and rest hours of the 
drivers in question, which would enable the Agency to assess the 
likelihood of fatigue being a factor in the adverse event. Also, the 
Agency retains full regulatory jurisdiction to conduct investigations 
of allegations of violations of the Federal safety or hazardous 
materials regulations by these carriers, including allegations of 
violations of the terms and conditions of the exemption.
    With regard to participating carriers' safety management controls, 
the Agency routinely reviews the safety performance records of all 
carriers prior to granting an exemption. Any carrier with safety 
management deficiencies that would call into question its ability to 
operate safety under the terms and conditions of the exemption is 
excluded from operating under the exemption. Carriers that have 
violation rates that meet or exceed the thresholds under the Agency's 
Compliance, Safety, Accountability (CSA) Safety Measurement System are 
subject to enforcement interventions to address the deficiencies in 
their safety management controls.
    As for Advocates' charge that the exemption process is a procedural 
and substantive abuse of regulatory authority, the Agency's actions are 
consistent with the statutory authority provided under 49 U.S.C. 31315 
concerning waivers, exemptions and pilot programs. The notice-and-
comment process associated with exemption applications is consistent 
with notice-and-comment rulemaking procedures. In both cases, FMCSA 
offers for public comment a matter being considered for action, and the 
final action taken by the Agency must consider the public comments 
received. The Agency provides a formal written response to substantive 
concerns raised by the commenters via a Federal Register notice to 
bring to closure the matter before the Agency. The Agency may agree or 
disagree with commenters. Any decision to move forward with the 
exemption is not an abuse of authority, but an exercise of judgment 
based on the information in the public record.
    In that regard, the Agency does not consider the granting of APA's 
exemption application or requests for renewal to represent a ``major 
departure'' from the HOS regulations, as argued by Advocates. While the 
participating carriers would be provided with limited relief from 49 
CFR 395.3(a)(2), which prohibits a property-carrying CMV driver from 
driving after the 14th hour after coming on duty following 10 
consecutive hours off duty, drivers will be prohibited from driving at 
any time after accumulating 14 hours of on-duty time. Therefore, 
drivers would not be allowed to drive CMVs in interstate commerce after 
accumulating 14 hours of on-duty time, following 10 consecutive hours 
off-duty. The participating drivers will continue to be subject to the 
11-hour driving time limit following 10 consecutive hours off duty, and 
the 60- and 70-hour weekly on-duty limits. The FMCSA believes that with 
the terms and conditions of this exemption in effect, APA-member motor 
carriers 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.

Non-Renewal of a Prior Exemption

    During its review of the safety history of applicants for this 
exemption, FMCSA examined records of the Pipeline and Hazardous 
Materials Safety Administration (PHMSA), which has jurisdiction over 
certain aspects of the transportation of hazardous materials, as 
specified in the Hazardous Materials Regulations (HMR) (49 CFR parts 
105-185). PHMSA records indicate that one of the APA-member applicants 
for this exemption--Melrose Pyrotechnics, Inc. (Melrose), PO Box 302, 
Kingsbury, IN 46345, USDOT 434586--was investigated on November 23, 
2009, and that PHMSA investigators discovered five violations regarding 
the shipment of hazardous materials, one of which was coded as ``high 
severity'' (Case 09436056). This resulted in an enforcement action that 
included a total of $24,800 in penalties. In view of this unfavorable 
safety information, FMCSA is not granting APA's request to include 
Melrose among the exempted motor carriers.

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, 2011, inclusive, and from June 28 
through July 8, 2012, inclusive. The exemption expires on July 8, 2012, 
at 11:59 p.m.

Extent of the Exemption

    This exemption is restricted to drivers employed by the 53 
companies, firms and entities listed in the appendix to this notice. 
The drivers will be given a limited exemption from the requirements of 
49 CFR 395.3(a)(2). This regulation 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 carriers and drivers must comply with all other 
requirements of the Federal Motor Carrier Safety Regulations (49 CFR 
parts 350-399) and Hazardous Materials Regulations (49 CFR parts 105-
180).

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

[[Page 37879]]

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

    The 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. 
The 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 the renewal of APA's exemption from the 
requirements of 49 CFR 395.3(a)(2). The 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.
    Interested parties or organizations possessing information that 
would 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: June 22, 2011.
Anne S. Ferro,
Administrator.

  Appendix to Notice of Renewal of American Pyrotechnics Association (APA) Exemption From the 14-Hour HOS Rule
                               During 2011 and 2012 Independence Day Celebrations
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              Motor carrier                         Address 1                    Address 2             DOT No.
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1. Alonzo Fireworks Display, Inc.........  12 County Rd 75............  Mechanicsville, NY 12118...       420639
2. American Fireworks Company............  7041 Darrow Road...........  Hudson, OH 44236...........       103972
3. Arrowhead Fireworks Co., Inc..........  3625 Normanna Rd...........  Duluth, MN 55803...........       125673
4. Atlas Enterprises Inc.................  6601 Nine Mile Azle Rd.....  Fort Worth, TX 76135.......      0116910
5. Atlas Pyrovision Productions, Inc.....  136 Old Sharon Road........  Jaffrey, NH 03452..........       789777
6. B.J. Alan Company.....................  555 Martin Luther King, Jr   Youngstown, OH 44502-1102..       262140
                                            Blvd.
7. Cartwright Fireworks, Inc.............  1608 Keely Road............  Franklin, PA 16323.........       882283
8. Central States Fireworks, Inc.........  18034 Kincaid Street.......  Athens, IL 62613...........      1022659
9. Colonial Fireworks Company............  5225 Telegraph Road........  Toledo, OH 43612...........       177274
10. Entertainment Fireworks, Inc.........  PO Box 7160................  Olympia, WA 98507-7160.....       680942
11. Falcon Fireworks.....................  3411 Courthouse Road.......  Guyton, GA 31312...........      1037954
12. Fireworks & Stage FX America.........  PO Box 488.................  Lakeside, CA 92040.........       908304
13. Fireworks by Grucci, Inc.............  1 Grucci Lane..............  Brookhaven, NY 11719.......       324490
14. Fireworks Productions of Arizona, Ltd  17034 S 54th Street........  Chandler, AZ 85226.........       948780
15. Fireworks West Internationale........  3200 West 910 North........  Logan, UT 84321............       245423
16. Garden State Fireworks, Inc..........  383 Carlton Road...........  Millington, NJ 07946.......       435878
17. Gateway Fireworks Displays...........  PO Box 39327...............  St Louis, MO 63139.........      1325301
18. Global Pyrotechnics Solutions, Inc...  10476 Sunset Drive.........  Dittmer, MO 63023..........      1183902
19. Great Lakes Fireworks................  24805 Marine...............  Eastpointe, MI 48021.......      1011216
20. Hamburg Fireworks Display Inc........  4300 Logan Lancaster Rd....  Lancaster, OH..............       395079
21. Hollywood Pyrotechnics, Inc..........  1567 Antler Point..........  Eagan, MN 55122............      1061068
22. Ingram Enterprises dba Fireworks over  6597 W Independece Drive...  Springfield, MO 65802......      0268419
 America.
23. Island Fireworks Company.............  N735 825th St..............  Hager City, WI 54014.......       414583
24. J&M Displays, Inc....................  18064 170th Ave............  Yarmouth, IA 52660.........       377461
25. Jake's Fireworks/Fireworks             2311 A West 4th St.........  Pittsburg, KS 66762........       449599
 Spectacular.
26. Johnny Rockets Fireworks Display Co..  4410 N. Hamilton...........  Chicago, IL 60625..........      1263181
27. Kellner's Fireworks Inc..............  478 Old Rte 8..............  Harrisville, PA............       481553
28. Lantis Productions dba Lantis          PO Box 491.................  Draper, UT 84202...........       195428
 Fireworks and Lasers.
29. Legion Fireworks Co., Inc............  10 Legion Lane.............  Wappingers Falls, NY 12590.       554391
30. Mad Bomber/Planet Productions........  PO Box 294.................  Kingsbury, IN 46345........       777176
31. Montana Display Inc..................  9480 Inspiration Drive.....  Missoula, MT 59808.........      1030231
32. Precocious Pyrotechnics, Inc.........  4420-278th Ave NW..........  Belgrade, MN 56312.........       435931
33. Pyro Engineering Inc., dba/Bay         110 Route 110, Suite 102...  Huntington Station, NY            530262
 Fireworks.                                                              11746.
34. Pyro Shows Inc.......................  701 W. Central Ave.........  LaFollette, TN 37766.......       456818
35. Pyro Spectacluars, Inc...............  3196 N Locust Ave..........  Rialto, CA 92376...........       029329
36. Pyrotecnico..........................  302 Wilson Rd..............  New Castle, PA 16105.......       526749
37. Pyrotecnico of Louisiana, LLC........  60 West Ct.................  Mandeville, LA 70471.......       548303

[[Page 37880]]

 
38. Rainbow Fireworks, Inc...............  76 Plum Ave................  Inman, KS 67546............      1139643
39. RES Specialty Pyrotechnics...........  21595 286th St.............  Belle Plaine, MN 56011.....       523981
40. Rich Brothers Company................  700 S Marion Rd............  Sioux Falls, SD 57106......       001356
41. Rozzi's Famous Fireworks, Inc........  11605 North Lebanon Rd.....  Loveland, OH 45140.........      0483686
42. Skyworks, Ltd........................  13513 W. Carrier Rd........  Carrier, OK 73727..........      1421047
43. Spielbauer Fireworks Co, Inc.........  220 Roselawn Blvd..........  Green Bay, WI 54301........       046479
44. Stonebraker-Rocky Mountain Fireworks   5650 Lowell Blvd, Unit E...  Denver, CO 80221...........      0029845
 Co.
45. Vermont Fireworks Co., Inc./Northstar  2235 Vermont Route 14 South  East Montpelier, VT 05651..       310632
 Fireworks Co., Inc.
46. Wald & Co., Inc......................  PO Box 319.................  Greenwood, MO 64034-0319...       087079
47. Walt Disney Parks and Resorts US Inc.  Box 10000..................  Lake Buena Vista, FL 32830.      1025131
48. Western Enterprises, Inc.............  PO Box 160.................  Carrier, OK 73727..........       203517
49. Winco Fireworks Int. LLC.............  1992 NW Hwy 50.............  Lone Jack, MO..............       259688
50. Wolverine Fireworks Display, Inc.....  205 W Seidlers.............  Kawkawlin, MI..............       376857
51. Victory Fireworks Inc................  579 Vincent Lane...........  Ellsworth, WI 54011........       539751
52. Young Explosives Corp................  P.O. Box 18653.............  Rochester, NY..............       450304
53. Zambelli Fireworks MFG, Co., Inc.....  PO Box 1463................  New Castle, PA 16103.......       033167
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[FR Doc. 2011-16192 Filed 6-27-11; 8:45 am]
BILLING CODE 4910-EX-P