[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Notices]
[Pages 37880-37882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16195]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]


Hours of Service (HOS) of Drivers; Granting of Exemption; 
American Pyrotechnics Association (APA)

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

ACTION: Notice of final disposition; granting of application for 
exemption.

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SUMMARY: FMCSA announces its decision to grant the application for 
exemption from the American Pyrotechnics Association (APA) on behalf of 
9 member motor carriers seeking relief from FMCSA's hours-of-service 
(HOS) regulation that prohibits driving of commercial motor vehicles 
(CMV) after the 14th hour after the driver comes on duty [49 CFR 
395.3(a)(2)].

DATES: This exemption is effective during the periods of June 28, 2011, 
through July 8, 2011, and June 28, 2012, through July 8, 2012, 
inclusive.

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

    Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption 
from the HOS requirements in 49 CFR 395.3(a)(2) for up to two years 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 U.S.C. 31315(b)(1)).
    The initial APA application for waiver or exemption 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 
pyrotechnicians and hold commercial driver's licenses with hazardous 
materials endorsements. They transport fireworks and related equipment 
by CMV on a very demanding schedule, often to remote locations. After 
they arrive, the APA drivers are responsible for set-up and staging of 
the fireworks shows.
    Previously, the Agency had granted a waiver to APA for a similar 
exemption for the 2004 Independence Day period, and two-year exemptions 
for the 2005-2006 and 2007-2008 periods. In 2009, FMCSA granted the 
same 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.
    APA is currently seeking relief for 9 APA-member companies from 
FMCSA's HOS regulation for the 2011 and 2012 Independence Day periods. 
A list of the 9 APA-member companies being exempted from 49 CFR 
395.3(a)(2) is included as an Appendix to this notice.
    The HOS rules prohibit a property-carrying CMV driver from driving 
after the 14th hour after coming on duty following 10 consecutive hours 
off duty (49 CFR 395.3(a)(2)). During the periods June 28--July 8, 
2011, and June 28--July 8, 2012, inclusive, the companies named in the 
Appendix, and CMV drivers employed by them, will be exempt from section 
395.3(a)(2) if they are operating in conjunction with the staging of 
fireworks shows celebrating Independence Day.
    The exemption permits CMV drivers engaged in these operations to 
exclude off-duty and sleeper-berth time of any length from the 
calculation of the 14-hour on-duty period. These drivers must continue 
to obtain 10 consecutive hours off duty prior to the 14-hour period, 
and observe the 11-hour driving time limit, as well as the 60- and 70-
hour on-duty limits.
    APA sought 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 its members' customers--and would 
deny many Americans this

[[Page 37881]]

important component of their Independence Day celebration.
    APA maintains that the operational demands of this unique industry 
minimize the risk of CMV crashes. It also maintains that renewal of the 
exemption will not adversely affect the safety of the fireworks 
transportation provided by these motor carriers, and will actually 
improve safety in the storage of hazardous materials.

Public Comment

    On May 24, 2011, FMCSA published a notice in the Federal Register 
(76 FR 30232) announcing APA's application for exemption for these 9 
member motor carriers, and requesting public comment. The comment 
period closed on June 14, 2011. As of June 20, no comments were filed 
in response to the May 24 notice.

FMCSA Decision

    In considering this application for exemption, the Agency reviewed 
its records for any unfavorable safety information regarding the 
applicants' motor carrier operations. The Agency also reviewed 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). FMCSA and PHMSA records 
contained no significant unfavorable safety information regarding these 
9 motor carriers.
    The FMCSA decision to grant the request for exemption from 49 CFR 
395.3(a)(2) is based on the merits of the application. The Agency 
believes that these APA operations, conducted under the terms and 
conditions of this limited exemption, will achieve a level of safety 
that, at a minimum, is equivalent to the level that would be achieved 
absent the exemption. The identical limited exemption has been in 
effect during Independence Day periods since 2005 for designated APA-
member motor carriers conducting these operations. There have been no 
reported accidents or incidents involving these carriers while 
operating under the exemption. 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 from 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.).

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 provided a limited exemption from the requirements of 49 CFR 
395.3(a)(2). This regulation 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. These drivers must continue to obtain 10 consecutive 
hours off duty prior to the 14-hour period, and remain subject to the 
11-hour driving time limit, the 60- and 70-hour on-duty limits, and 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 motor carrier, 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 APA member-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, 2011.
Anne S. Ferro,
Administrator.

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

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          Motor carrier                     Address            DOT No.
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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.
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[FR Doc. 2011-16195 Filed 6-27-11; 8:45 am]
BILLING CODE 4910-EX-P