[Federal Register Volume 78, Number 125 (Friday, June 28, 2013)]
[Notices]
[Pages 39057-39061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15608]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]


Hours of Service of Drivers; Renewal and Expansion of American 
Pyrotechnics Association Exemption From the 14-Hour Rule During 
Independence Day Celebrations

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 the granting of an exemption of 55 member-
companies of the American Pyrotechnics Association (APA) from FMCSA's 
regulation prohibiting drivers of commercial motor vehicles (CMVs) from 
driving after the 14th hour after coming on duty. The FMCSA renews the 
exemption for 45 APA member-companies and grants 10 additional carriers 
coverage by the exemption, which is applicable during the periods June 
28-July 8, 2013, and June 28-July 8, 2014, inclusive. The requested 
renewal of the exemption for one motor carrier is being denied. 
Additionally, the APA advised FMCSA of the removal from the original 
renewal application of two companies that are no longer in business or 
no longer members of the APA. The original application was for 58 
carriers; two were removed by APA and one denied by FMCSA, leaving 55 
carriers being granted the exemption. Drivers who operate these 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 a prohibition from driving after accumulating 
14 hours on duty, the 11-hour driving time limit, and the 60- and 70-
hour limits. FMCSA believes that with the terms and conditions in 
place, 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.

DATES: This exemption is effective during the periods of June 28 (12:01 
a.m.) through July 8, 2013 (11:59 p.m.)

[[Page 39058]]

and from June 28 (12:01 a.m.) through July 8, 2014 (11:59 p.m.).

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations, Telephone: 202-366-4325. Email: [email protected].

SUPPLEMENTARY INFORMATION:

APA Application for Exemption

    The hours-of-service (HOS) rule in 49 CFR 395.3(a)(2) prohibits a 
property-carrying CMV driver from driving a CMV 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 grant 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, applied for an exemption in 2004. Various APA members have 
held 2-year exemptions during Independence Day periods from 2005 
through 2012. The last exemption, for 45 of its members, expired on 
July 9, 2012. The current application covers 45 members that previously 
held exemptions and 10 additional member-companies. The original 
application was for 58 carriers with two removed by APA and one denied 
by FMCSA; 55 carriers are being granted the exemption.
    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 during a typical Independence Day period.
    The CMV drivers employed by APA member-companies are trained 
pyrotechnicians who hold commercial driver's licenses (CDLs) with 
hazardous materials (HM) endorsements. They transport fireworks and 
related equipment by CMVs on a very demanding schedule during a brief 
Independence Day period, often to remote locations. After they arrive, 
the drivers are responsible for set-up and staging of the fireworks 
shows.
    The APA states that it is seeking an HOS exemption for the 2013 and 
2014 Independence Day periods because compliance with the current 14-
hour rule in 49 CFR 395.3(a)(2) 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 shows under the current HOS rules, APA member-companies state 
that they would be required to hire a second driver for most trips. The 
APA advises 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. The 55 APA member-
companies within the scope of this exemption approval are listed in an 
appendix to this notice. A copy of the request for the exemption is 
included in the docket referenced at the beginning of this notice.

Method To Ensure an Equivalent or Greater Level of Safety

    The APA believes that renewal of the exemption for previously 
exempt carriers and the granting of relief for new carriers will not 
adversely affect the safety of the fireworks transportation provided by 
these motor carriers. According to APA, its member-companies have 
operated under this exemption for eight 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 or other safe location 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 would be 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 
prior APA exemptions.
    In its exemption request, APA asserted that the operational demands 
of this unique industry minimize the risk of CMV crashes. In the last 
few days before the 4th of July, 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.

Public Comments

    On May 7, 2013, FMCSA published notice of this application, and 
asked for public comment (78 FR 26690). One set of comments was 
received. Advocates for Highway and Auto Safety (Advocates) opposed the 
exemption from the HOS regulations. Their comments are available for 
review in the docket for this notice.
    Advocates objected to this exemption on various grounds: (1) 
Advocates opposes the issuance of any HOS exemptions, especially 
``blanket'' exemptions; (2) the carriers for which this exemption is 
requested have had out-of-service (OOS) orders issued during past 
exemption periods, have OOS rates above National averages, and may be 
``on alert'' in one or more violation categories under FMCSA's Safety 
Measurement System; (3) the exemption is unnecessary because the APA 
has had 8 years during which to develop alternative operational methods 
that would not require an exemption; (4) claims that the exemption 
allows safer storage of hazardous materials are questionable; (5) 
Advocates objects to the length of time FMCSA has taken from receipt of 
the application to issue this disposition notice; and (6) FMCSA did not 
adequately investigate and announce the applicant-carriers' safety 
records when it published the notice of APA's exemption application.

FMCSA Response

    Prior to publishing the Federal Register notice announcing the 
receipt of the APA exemption request, FMCSA ensured that the motor 
carriers involved have a current USDOT registration, Hazardous 
Materials Safety Permit (if required), minimum required levels of 
insurance, and are not subject to any ``imminent hazard'' or other OOS 
orders. The Agency comprehensively investigated the safety history of 
each applicant during the review process. FMCSA has reviewed its safety 
records, including inspection and accident reports, for each applicant 
motor carrier. The Agency also requested and received

[[Page 39059]]

a records review of each carrier from the Pipeline and Hazardous 
Materials Safety Administration (PHMSA).
    Because each company is listed in the notice seeking public 
comment, and each company's safety performance record is reviewed by 
the Agency, there is no merit to Advocates' argument. FMCSA views 
Advocates' comments about blanket exemptions versus individual 
exemptions as a distinction without a substantive difference. Each 
carrier is listed and subject to the notice-and-comment process, and 
any individual carrier could be denied based on public comments and/or 
FMCSA's assessment. Therefore, the only entity potentially adversely 
affected by a lengthy process would be an applicant. FMCSA recognizes 
no potential harm to the public due to the current process. To the 
contrary, processing an application of this type too far in advance of 
the relevant event could result in the status of the applicants having 
changed between the time of the records review and the effective date 
of the exemption.
    With regard to Advocates' suggestion that APA members should have 
developed alternative means to comply with the HOS regulations without 
an exemption, FMCSA does not believe reasonable alternatives are 
necessarily available in many locations. Such alternatives would 
include locating additional drivers with CDLs and HM endorsements. This 
is difficult for part-time, holiday-specific work. CDL holders with HM 
endorsements are likely to be in high demand, given the Transportation 
Security Administration requirements for a security threat analysis for 
such drivers. And, as indicated in this notice and APA's application, 
potential alternatives could drive the cost of the fireworks displays 
beyond the financial capabilities of many communities.
    With regard to the security of alternative storage locations 
following a fireworks ``shoot,'' many sites do not provide security 
following a display and may require all vehicles to depart the area. 
Arrangements can be made for the next community at which a display is 
planned to begin their access and security upon the planned arrival of 
the fireworks team.

FMCSA Decision

    The FMCSA has evaluated APA's application, the safety records of 
the companies to which the exemption would apply, and the public 
comments. The Agency believes that APA member-companies will likely 
achieve a level of safety that is equivalent to, or greater than, the 
level of safety achieved without the exemption [49 CFR 381.305(a)], and 
grants the requested exemption to the 55 APA member-companies listed in 
an appendix to this notice.
    The exemption requested for one carrier is denied: Arthur Rozzi 
Pyrotechnics (Rozzi), Maineville, OH, USDOT 2008107. Rozzi is subject 
to an open investigation and enforcement action by PHMSA, involving 
violations of the Hazardous Materials Regulations. Under the 
circumstances, it would be inappropriate to grant Rozzi an exemption.

Terms and Conditions of the Exemption

Period of the Exemption

    The requested exemption from the requirements of 49 CFR 395.3(a)(2) 
is effective during the periods of June 28 (12:01 a.m.) through July 8, 
2013 (11:59 p.m.) and from June 28 (12:01 a.m.) through July 8, 2014 
(11:59 p.m.). The exemption will expire on July 8, 2014, at 11:59 p.m. 
local time.

Extent of the Exemption

    This exemption is restricted to the 55 motor carriers listed in the 
appendix to this notice and their CMV drivers. The drivers are provided 
a limited exemption from the requirements of 49 CFR 395.3(a)(2). This 
regulation prohibits a driver from driving a CMV 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 the 14-hour period after coming on duty as extended by 
any off-duty or sleeper-berth time in accordance with this exemption. 
The exemption is further contingent on each driver having a minimum of 
10 consecutive hours off duty prior to beginning a new duty period. The 
carriers and drivers must comply with all other applicable requirements 
of the Federal Motor Carrier Safety Regulations (49 CFR parts 350-399) 
and Hazardous Materials Regulations (49 CFR parts 105-180).

Other Conditions

    This exemption is contingent upon each carrier maintaining USDOT 
registration, a Hazardous Materials Safety Permit (if required), 
minimum levels of public liability insurance, and not being subject to 
any ``imminent hazard'' or other out-of-service (OOS) order issued by 
FMCSA. Each driver covered by the exemption must maintain a valid CDL 
with required endorsements, not be subject to any OOS order or 
suspension of driving privileges, and meet all physical qualifications 
required by 49 CFR part 391.

Preemption

    During the periods the exemption is in effect, no State may 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)).

FMCSA Accident 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.

    Issued on: June 25, 2013.
T.F. Scott Darling,
Chief Counsel.

[[Page 39060]]



  Appendix to Notice of Renewal and Expansion of American Pyrotechnics Association (APA) Exemption for 55 Motor
              Carriers From the 14-Hour HOS Rule During 2013 and 2014 Independence Day Celebrations
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            Motor Carrier                      Street Address             City, State & Zip Code       DOT No.
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1. Alonzo Fireworks Display, Inc.....  846 Stillwater Bridge Rd.....  Schaghticoke, NY 12154.......       420639
2. American Fireworks Company........  7041 Darrow Road.............  Hudson, OH 44236.............       103972
3. American Fireworks Display, LLC...  P.O. Box 980.................  Oxford, NY 13830.............      2115608
4. AM Pyrotechnics, LLC..............  2429 East 535th Rd...........  Buffalo, MO 65622............      1034961
5. Atlas Enterprises Inc.............  6601 Nine Mile Azle Rd.......  Fort Worth, TX 76135.........      0116910
6. Atlas Pyrovision Productions, Inc.  136 Old Sharon Rd............  Jaffrey, NH 03452............       789777
7. B.J. Alan Company.................  555 Martin Luther King, Jr     Youngstown, OH 44502-1102....       262140
                                        Blvd.
8. Central States Fireworks, Inc.....  18034 Kincaid Street.........  Athens, IL 62613.............      1022659
9. Colonial Fireworks Company........  5225 Telegraph Road..........  Toledo, OH 43612.............       177274
10. East Coast Pyrotechnics, Inc.....  4652 Catawba River Rd........  Catawba, SC 29704............       545033
11. Entertainment Fireworks, Inc.....  13313 Reeder Road SW.........  Tenino, WA 98589.............       680942
12. Falcon Fireworks.................  3411 Courthouse Road.........  Guyton, GA 31312.............      1037954
13. Fireworks & Stage FX America.....  12650 Hwy 67S. Suite B.......  Lakeside, CA 92040...........       908304
14. Fireworks by Grucci, Inc.........  1 Grucci Lane................  Brookhaven, NY 11719.........       324490
15. Fireworks Extravaganza...........  174 Route 17 North...........  Rochelle Park, NJ 07662......      2064141
16. Fireworks West Internationale....  910 North 3200 West..........  Logan, UT 84321..............       245423
17. Garden State Fireworks, Inc......  383 Carlton Road.............  Millington, NJ 07946.........       435878
18. Gateway Fireworks Displays.......  P.O. Box 39327...............  St Louis, MO 63139...........      1325301
19. Great Lakes Fireworks............  24805 Marine.................  Eastpointe, MI 48021.........      1011216
20. Hamburg Fireworks Display Inc....  2240 Horns Mill Road SE......  Lancaster, OH................       395079
21. Hawaii Explosives & Pyrotechnics,  17-7850 N. Kulani Road.......  Mountain View, HI 96771......      1375918
 Inc.
22. Hi-Tech FX, LLC..................  18060 170th Ave..............  Yarmouth, IA 52660...........      1549055
23. Hollywood Pyrotechnics, Inc......  1567 Antler Point............  Eagan, MN 55122..............      1061068
24. Homeland Fireworks, Inc..........  P.O. Box 7...................  Jamieson, OR 97909...........      1377525
25. Island Fireworks Co., Inc........  N1597 County Rd VV...........  Hager City, WI 54014.........       414583
26. J&M Displays, Inc................  18064 170th Ave..............  Yarmouth, IA 52660...........       377461
27. Lantis Fireworks, Inc............  130 Sodrac Dr., Box 229......  N. Sioux City, SD 57049......       534052
28. Lantis Productions dba Lantis      799 N. 18150 W...............  Fairfield, UT 84013..........       195428
 Fireworks and Lasers.
29. Legion Fireworks Co., Inc........  10 Legion Lane...............  Wappingers Falls, NY 12590...       554391
30. Mad Bomber/Planet Productions....  P.O. Box 294, 3999 Hupp Road   Kingsbury, IN 46345..........       777176
                                        R31.
31. Martin & Ware Inc. dba Pyro City   P.P. Box 322.................  Hallowell, ME 04347..........       734974
 Maine & Central Maine Pyrotechnics.
32. Melrose Pyrotechnics, Inc........  1 Kingsbury Industrial Park..  Kingsbury, IN 46345..........       434586
33. Precocious Pyrotechnics, Inc.....  4420-278th Ave NW............  Belgrade, MN 56312...........       435931
34. Pyro Engineering Inc., dba/Bay     400 Broadhollow Rd. Ste        Farmindale, NY 11735.........       530262
 Fireworks.                             3.
35. Pyro Shows Inc...................  701 W. Central Ave...........  LaFollette, TN 37766.........       456818
36. Pyro Spectacluars, Inc...........  3196 N Locust Ave............  Rialto, CA 92376.............       029329
37. Pyro Spectaculars North, Inc.....  5301 Lang Avenue.............  McClellan, CA 95652..........      1671438
38. Pyrotechnic Display, Inc.........  8450 W. St. Francis Rd.......  Frankfort, IL 60423..........      1929883
39. Pyrotecnico (S. Vitale             302 Wilson Rd................  New Castle, PA 16105.........       526749
 Pyrotechnic Industries, Inc.).
40. Pyrotecnico, LLC.................  60 West Ct...................  Mandeville, LA 70471.........       548303
41. Pyrotecnico FX...................  6965 Speedway Blvd. Suite 115  Las Vegas, NV 89115..........      1610728
42. Rainbow Fireworks, Inc...........  76 Plum Ave..................  Inman, KS 67546..............      1139643
43. RES Specialty Pyrotechnics.......  21595 286th St...............  Belle Plaine, MN 56011.......       523981
44. Rozzi's Famous Fireworks, Inc....  11605 North Lebanon Rd.......  Loveland, OH 45140...........      0483686
45. Skyworks, Ltd....................  13513 W. Carrier Rd..........  Carrier, OK 73727............      1421047
46. Spielbauer Fireworks Co, Inc.....  220 Roselawn Blvd............  Green Bay, WI 54301..........       046479
47. Starfire Corporation.............  682 Cole Road................  Carrolltown, PA 15722........       554645
48. Stonebraker-Rocky Mountain         5650 Lowell Blvd, Unit E.....  Denver, CO 80221.............      0029845
 Fireworks Co.
49. Vermont Fireworks Co., Inc./       2235 Vermont Route 14 South..  East Montpelier, VT 05651....       310632
 Northstar Fireworks Co., Inc.
50. Western Display Fireworks, Ltd...  10946 S. New Era Rd..........  Canby, OR 97013..............       498941
51. Western Enterprises, Inc.........  P.O. Box 160.................  Carrier, OK 73727............       203517
52. Western Fireworks, Inc...........  14592 Ottaway Road NE........  Aurora, OR 97002.............       838585
53. Wolverine Fireworks Display, Inc.  205 W Seidlers...............  Kawkawlin, MI................       376857
54. Young Explosives Corp............  P.O. Box 18653...............  Rochester, NY 14618..........       450304
55. Zambelli Fireworks MFG, Co., Inc.  P.O. Box 1463................  New Castle, PA 16103.........       033167
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[FR Doc. 2013-15608 Filed 6-26-13; 8:45 am]
BILLING CODE 4910-EX-P