2011-12760. 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 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: [phone].
• 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: [phone]. E-mail: [e-mail].

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 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.

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., Buffalo, MO 65622	1034961
2. Arthur Rozzi Pyrotechnics	6607 Red Hawk Ct., Maineville, OH 45039	2008107
3. East Coast Pyrotechnics, Inc	4652 Catawba River Rd., Catawba, SC 29704	545033
4. Fireworks Extravaganza	58 Maple Lane, Otisville, NY 10963	2064141
5. Hi-Tech FX, LLC	1135 Ave. I, Fort Madison, IA 52627	1549055
6. North Central Industries, Inc	1500 E. Washington, Muncie, IN 47305	00165755
7. Pyro Spectaculars North, Inc	5301 Lang Avenue, McClellan, CA 95652	1671438
8. Pyrotechnic Display, Inc	8450 W. St. Francis Rd., Frankfort, IL 60423	1929883
9. Western Display Fireworks, Ltd	10946 S. New Era Rd., Canby, OR 97013	498941