[Federal Register Volume 84, Number 29 (Tuesday, February 12, 2019)]
[Notices]
[Pages 3533-3536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01994]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]


Hours of Service (HOS) of Drivers; American Pyrotechnics Assn. 
(APA); Request To Add New Members to Current APA Exemption

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

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to grant an exemption to three 
additional member companies of the American Pyrotechnics Association 
(APA)--Artisan Pyrotechnics Inc., Montana Display Fireworks, Inc., and 
ZY Pyrotechnics, LLC dba Skyshooter Displays, Inc.--from the 
prohibition on driving commercial motor vehicles (CMVs) after the 14th 
hour after the driver comes on duty. During the 2017 Independence Day 
period 51 APA members held such an exemption, effective during the 
period June 28 through July 8 each year through 2020. APA advised FMCSA 
of the

[[Page 3534]]

discontinuance of the exemption for one carrier; with the addition of 
the three new members the total increases to 53. The exemption granted 
to the three carriers will terminate at the same time as the other 50 
exempted carriers. FMCSA has determined that the terms and conditions 
of the exemption ensure a level of safety equivalent to, or greater 
than, the level of safety achieved without the exemption.

DATES: These exemptions from 49 CFR 395.3(a)(2) are effective from June 
28 through July 8, at 11:59 p.m. local time, each year through 2020.

ADDRESSES: 
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line Federal Docket Management System 
(FDMS) is available 24 hours each day, 365 days each year. If you want 
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgment 
page that appears after submitting comments on-line.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Ms. LaTonya Mimms, Chief, FMCSA Driver 
and Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Email: [email protected]. If you have questions 
on viewing or submitting material to the docket, contact Docket 
Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, ``FMCSA-2007-28043'' in the ``Keyword'' box and 
click ``Search.'' Next, click ``Open Docket Folder'' button and choose 
the document listed to review. If you do not have access to the 
internet, you may view the docket online by visiting the Docket 
Management Facility in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 
a.m. and 5 p.m., E.T., Monday through Friday, except Federal holidays.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor Carrier Safety 
Regulations. 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. 
The Agency must also provide an opportunity for public comment on the 
request.
    The Agency reviews the safety analyses and the public comments, and 
determines whether granting the exemption would likely achieve a level 
of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (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 the grant or denial, and, if granted, 
the specific person or class of persons receiving the exemption, and 
the regulatory provision or provisions from which exemption is granted. 
The notice must also specify the effective period of the exemption (up 
to 5 years), and explain the terms and conditions of the exemption. The 
exemption may be renewed (49 CFR 381.300(b)).

III. APA Application for Exemption

    The HOS rule in 49 CFR 395.3(a)(2) prohibits the driver of a 
property-carrying CMV from driving after the 14th hour after coming on 
duty following 10 consecutive hours off duty. During the 2017 
Independence Day period 51 APA members held such an exemption, 
effective during the period June 28 through July 8 each year through 
2020. APA has requested additional exemptions for Artisan Pyrotechnics 
Inc., DOT# 1898096, Montana Display Fireworks, Inc., DOT# 1030231, and 
ZY Pyrotechnics, LLC dba Skyshooter Displays, Inc., DOT# 2149202, and 
the discontinuance of an exemption for Island Fireworks, DOT# 414583, 
increasing the total to 53. Like the other 50 member companies, the 
three new companies would be subject to all the terms and conditions of 
the multi-year APA exemption that terminates on July 8, 2020. Although 
this is less than the 5-year exemption period authorized by 49 U.S.C. 
31315(b)(2), FMCSA believes that the interests of the APA members and 
the Agency would best be served by harmonizing, as far as possible, the 
expiration dates of all such fireworks-related exemptions. On June 21, 
2018, FMCSA granted waivers to these three APA members to allow them to 
participate in the 2018 Independence Day celebration.
    The initial APA application for relief from the 14-hour rule was 
submitted in 2004; a copy is in the docket. That application fully 
describes the nature of the pyrotechnic operations of CMV drivers 
during a typical Independence Day period.
    As stated in the 2004 request, the CMV drivers employed by APA 
member companies are trained pyro-technicians 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 additional exemption for the 
three new member companies because compliance with the current 14-hour 
rule in 49 CFR 395.3(a)(2) would impose a substantial economic hardship 
on numerous cities, towns and municipalities, as well as its member 
companies. To meet the demand for fireworks without the exemption, APA 
states that its member companies 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.
    On June 21, 2018, FMCSA granted waivers to APA on behalf of Artisan 
Pyrotechnics Inc., Montana Display Fireworks, Inc., and ZY 
Pyrotechnics, LLC dba Skyshooter Displays, Inc., to allow these 
carriers to participate in the 2018 Independence Day celebration. The 
waiver also allowed the Agency time to complete the exemption process.

IV. Method To Ensure an Equivalent or Greater Level of Safety

    The APA believes that the exemption would not adversely affect the 
safety of the fireworks transportation provided by this motor carrier. 
According to APA, its member-companies have operated under this 
Independence Day exemption for the past 10 years without a reported 
motor carrier safety incident. Moreover, it asserts that, without the

[[Page 3535]]

extra 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 will be required 
to notify FMCSA within 5 business days of any accident (as defined in 
49 CFR 390.5) involving the operation of any of 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 exemption.
    In its exemption request, APA asserts that the operational demands 
of this unique industry minimize the risks of CMV crashes. In the last 
few days before July 4, 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.

V. Public Comments

    On June 8, 2018, FMCSA published notice of this application and 
requested public comments (83 FR 26742). The only comment submitted was 
not relevant to this notice.

VI. FMCSA Response

    FMCSA has determined that granting an exemption to Artisan 
Pyrotechnics Inc., Montana Display Fireworks, Inc., and ZY 
Pyrotechnics, LLC dba Skyshooter Displays, Inc., will achieve a level 
of safety equivalent to or greater than the level that compliance with 
the 14-hour rule would ensure. Prior to publishing the Federal Register 
notice announcing the receipt of APA's application to add these three 
carriers to the current list of carriers operating under the exemption, 
FMCSA ensured that each motor carrier possessed an active USDOT 
registration, minimum required levels of insurance, and was not subject 
to any ``imminent hazard'' or other out-of-service (OOS) orders. The 
Agency conducted a comprehensive investigation of the safety 
performance history on each of the motor carriers listed in the 
appendix table during the review process. As part of this process, 
FMCSA reviewed its Motor Carrier Management Information System safety 
records, including inspection and accident reports submitted to FMCSA 
by State agencies.
    With regard to safety statistics, none of the carriers, including 
the 3 new carriers proposed for exemption, was under an imminent hazard 
or OOS order, had any alerts in the Safety Management System (SMS), or 
was under investigation by the Pipeline and Hazardous Materials Safety 
Administration. All had ``satisfactory'' safety ratings based on 
compliance reviews, and all had valid Hazardous Materials Safety 
Permits.

VII. Terms and Conditions of the Exemption

Period of the Exemption

    The exemption from 49 CFR 395.3(a)(2) is effective from June 28 
through July 8, at 11:59 p.m. local time, each year through 2020 for 
the 53 carriers identified in this notice.

Terms and Conditions of the Exemption

    The exemption from 49 CFR 395.3(a)(2) will be limited to drivers 
employed by the 50 motor carriers already covered by the multi-year 
exemption, and drivers employed by the three additional carriers 
identified by an asterisk in the appendix table of this notice. Section 
395.3(a)(2) 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 
exception. 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

    In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 
381.600, during the period this exemption is in effect, no State shall 
enforce any law or regulation applicable to interstate commerce that 
conflicts with or is inconsistent with this exemption with respect to a 
firm or person operating under the exemption. States may, but are not 
required to, adopt the same exemption with respect to operations in 
intrastate commerce.

FMCSA Notification

    Exempt motor carriers are required to notify FMCSA within 5 
business days of any accidents (as defined by 49 CFR 390.5) involving 
the operation of any of their CMVs while under this exemption. The 
notification must be by email to [email protected] and include the 
following information:
    a. Name of the Exemption: ``APA''
    b. Date of the accident,
    c. City or town, and State, in which the accident occurred, or 
which is closest to the scene of the accident,
    d. Driver's name and driver's license State, number, and class,
    e. Co-Driver's name and driver's license State, number, and class,
    f. Vehicle company number and power unit license plate State and 
number,
    g. Number of individuals suffering physical injury,
    h. Number of fatalities,
    i. The police-reported cause of the accident,
    j. Whether the driver was cited for violation of any traffic laws, 
or motor carrier safety regulations, and
    k. The total driving time and the total on-duty time of the CMV 
driver at the time of the accident.
    In addition, if there are any injuries or fatalities, the carrier 
must forward the police accident report to [email protected] as soon as 
available.

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 would 
be subject to FMCSA monitoring while operating under this exemption.

    Issued on: February 1, 2019.
Raymond P. Martinez,
Administrator.

[[Page 3536]]



 Appendix to Notice of Application for Approval of Motor Carriers To Utilize American Pyrotechnics Association's
                   (APA) Exemption From the 14-Hour Rule During Independence Day Celebrations
                                         [June 28 through July 8, 2020]
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              Motor carrier                     Street address           City, state, zip code        DOT No.
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1. American Fireworks Company...........  7041 Darrow Road..........  Hudson, OH 44236..........          103972
2. American Fireworks Display, LLC......  P.O. Box 980..............  Oxford, NY 13830..........         2115608
3. AM Pyrotechnics, LLC.................  2429 East 535th Rd........  Buffalo, MO 65622.........         1034961
4. Arthur Rozzi Pyrotechnics............  6607 Red Hawk Ct..........  Maineville, OH 45039......         2008107
5. Artisan Pyrotechnics, Inc *..........  82 Grace Road.............  Wiggins, MS 39577.........         1898096
6. Atlas PyroVision Entertainment Group,  136 Old Sharon Rd.........  Jaffrey, NH 03452.........          789777
 Inc.
7. Central States Fireworks, Inc........  18034 Kincaid Street......  Athens, IL 62613..........         1022659
8. East Coast Pyrotechnics, Inc.........  4652 Catawba River Rd.....  Catawba, SC 29704.........          545033
9. Entertainment Fireworks, Inc.........  13313 Reeder Road SW......  Tenino, WA 98589..........          680942
10. Falcon Fireworks....................  3411 Courthouse Road......  Guyton, GA 31312..........         1037954
11. Fireworks & Stage FX America........  12650 Hwy. 67S, Suite B...  Lakeside, CA 92040........          908304
12. Fireworks by Grucci, Inc............  20 Pinehurst Drive........  Bellport, NY 11713........          324490
13. Flashing Thunder Fireworks dba Legal  700 E Van Buren Street....  Mitchell, IA 50461........          420413
 Aluminum King Mtg.
14. J&J Computing dba Fireworks           174 Route 17 North........  Rochelle Park, NJ 07662...         2064141
 Extravaganza.
15. Gateway Fireworks Displays..........  P.O. Box 39327............  St Louis, MO 63139........         1325301
16. Great Lakes Fireworks...............  24805 Marine..............  Eastpointe, MI 48021......         1011216
17. Hamburg Fireworks Display, Inc......  2240 Horns Mill Road SE...  Lancaster, OH.............          395079
18. Hawaii Explosives & Pyrotechnics,     17-7850 N Kulani Road.....  Mountain View, HI 96771...         1375918
 Inc.
19. Hollywood Pyrotechnics, Inc.........  1567 Antler Point.........  Eagan, MN 55122...........         1061068
20. Homeland Fireworks, Inc.............  P.O. Box 7................  Jamieson, OR 97909........         1377525
21. J&M Displays, Inc...................  18064 170th Ave...........  Yarmouth, IA 52660........          377461
22. Lantis Fireworks, Inc...............  130 Sodrac Dr., Box 229...  N Sioux City, SD 57049....          534052
23. Legion Fireworks Co., Inc...........  10 Legion Lane............  Wappingers Falls, NY 12590          554391
24. Miand Inc. dba Planet Productions     P.O. Box 294, 3999 Hupp     Kingsbury, IN 46345.......          777176
 (Mad Bomber).                             Road, R31.
25. Martin & Ware Inc. dba Pyro City      P.O. Box 322..............  Hallowell, ME 04347.......          734974
 Maine & Central Maine Pyrotechnics.
26. Melrose Pyrotechnics, Inc...........  1 Kingsbury Industrial      Kingsbury, IN 46345.......          434586
                                           Park.
27. Montana Display Fireworks, Inc *....  9480 Inspiration Road.....  Missoula, MT 59808........         1030231
28. Precocious Pyrotechnics, Inc........  4420-278th Ave. NW........  Belgrade, MN 56312........          435931
29. Pyro Shows, Inc.....................  115 N 1st Street..........  LaFollette, TN 37766......          456818
30. Pyro Shows of Alabama, Inc..........  3325 Poplar Lane..........  Adamsville, AL 35005......         2859710
31. Pyro Shows of Texas, Inc............  6601 9 Mile Azle Rd.......  Fort Worth, TX 76135......         2432196
32. Pyro Engineering Inc., dba/Bay        400 Broadhollow Rd., Ste.   Farmingdale, NY 11735.....          530262
 Fireworks.                                #3.
33. Pyro Spectaculars, Inc..............  3196 N Locust Ave.........  Rialto, CA 92376..........          029329
34. Pyro Spectaculars North, Inc........  5301 Lang Avenue..........  McClellan, CA 95652.......         1671438
35. Pyrotechnic Display, Inc............  8450 W St. Francis Rd.....  Frankfort, IL 60423.......         1929883
36. Pyrotecnico (S. Vitale Pyrotechnic    302 Wilson Rd.............  New Castle, PA 16105......          526749
 Industries, Inc.).
37. Pyrotecnico FX......................  6965 Speedway Blvd., Suite  Las Vegas, NV 89115.......         1610728
                                           115.
38. Rainbow Fireworks, Inc..............  76 Plum Ave...............  Inman, KS 67546...........         1139643
39. RES Specialty Pyrotechnics..........  21595 286th St............  Belle Plaine, MN 56011....          523981
40. Rozzi's Famous Fireworks, Inc.......  11605 North Lebanon Rd....  Loveland, OH 45140........         0483686
41. Sky Wonder Pyrotechnics, LLC........  3626 CR 203...............  Liverpool, TX 77577.......         1324580
42. Skyworks, Ltd.......................  13513 W Carrier Rd........  Carrier, OK 73727.........         1421047
43. Sorgi American Fireworks Michigan,    935 Wales Ridge Rd........  Wales, MI 48027...........         2475727
 LLC.
44. Spielbauer Fireworks Co., Inc.......  220 Roselawn Blvd.........  Green Bay, WI 54301.......          046479
45. Spirit of 76........................  6401 West Hwy. 40.........  Columbia, MO 65202........         2138948
46. Starfire Corporation................  682 Cole Road.............  Carrolltown, PA 15722.....          554645
47. Vermont Fireworks Co., Inc./          2235 Vermont Route 14       East Montpelier, VT 05651.          310632
 Northstar Fireworks Co., Inc.             South.
48. Western Display Fireworks, Ltd......  10946 S New Era Rd........  Canby, OR 97013...........          498941
49. Western Enterprises, Inc............  P.O. Box 160..............  Carrier, OK 73727.........          203517
50. Wolverine Fireworks Display, Inc....  205 W Seidlers............  Kawkawlin, MI.............          376857
51. Young Explosives Corp...............  P.O. Box 18653............  Rochester, NY 14618.......          450304
52. Zambelli Fireworks MFG, Co., Inc....  P.O. Box 1463.............  New Castle, PA 16103......          033167
53. ZY Pyrotechnics, LLC dba Skyshooter   1014 Slocum Road..........  Wapwallopen, PA 18660.....         1030231
 Displays, Inc *.
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* Not included in 2017-2020 list of approved carriers.

[FR Doc. 2019-01994 Filed 2-11-19; 8:45 am]
 BILLING CODE 4910-EX-P