E7-12572. Hours of Service (HOS) of Drivers; American Pyrotechnics Association (APA) Application for an Exemption From the 14-Hour Rule During Independence Day Celebrations

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Grant of application for exemption.

SUMMARY:

The Federal Motor Carrier Safety Administration (FMCSA) grants the American Pyrotechnics Association's (APA) application for an exemption from the prohibition against driving a commercial motor vehicle (CMV) after the 14th hour of coming on duty. The exemption is applicable for a period beginning 7 days prior to, and 2 days immediately following Independence Day in 2007 and 2008. Fireworks personnel who operate CMVs for the nine companies listed in this notice, in conjunction with fireworks shows celebrating Independence Day, are allowed to exclude off-duty and sleeper-berth time of any length in the calculation of the 14 hours. However, drivers are not allowed to drive after accumulating a total of 14 hours of on-duty time, following 10 consecutive hours off duty, and continue to be subject to the 11-hour driving time limit and the 60- and 70-hour weekly limits. No substantive comments were received in response to the Agency's May 30, 2007 notice requesting public comment on the APA application. The FMCSA has determined that the granting of the exemption would achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.

DATES:

The exemption is effective June 28, 2007, and is applicable from June 28 (12:01 a.m.) through July 6, 2007 (11:59 p.m.), and from June 28 (12:01 a.m.) through July 6, 2008 (11:59 p.m.). The exemption expires on July 6, 2008.

ADDRESSES:

Docket: For access to the docket to read background comments or comments received, go to http://dms.dot.gov and/or Room W12-140, Ground Floor of West Building, U.S. Department of Transportation (DOT), 1200 New Jersey Ave., SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act: Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review the DOT's complete Privacy Act Statement in the Federal Register (65 FR 19477; April 11, 2000). This statement is also available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Thomas Yager, Chief, 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 with authority to grant exemptions from its safety regulations. On August 20, 2004, FMCSA published a Final Rule (69 FR 51589) on this subject. Under 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 with 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 must then examine the safety analyses and the public comments, and determine whether the exemption would 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 Agency's decision must be published in the Federal Register (49 CFR 381.315(b)). If the Agency denies the request, it must state the reason for doing so. If the decision is to grant the exemption, the notice must specify the person or class of persons receiving the exemption and the regulatory provision or provisions from which an exemption is being granted. The notice must also specify the effective period of the exemption (up to two years) and explain the terms and conditions of the exemption. The exemption may be renewed.

APA's Application for an Exemption

APA requested an exemption from FMCSA's prohibition against drivers of property-carrying CMVs operating such vehicles after the 14th hour of coming on duty [49 CFR 395.3(a)(2)]. APA requested that fireworks personnel covered by the exemption would be allowed to exclude off-duty and sleeper-berth time of any length from the calculation of the 14-hour rule. Drivers would not be allowed to drive after the accumulation of 14 hours of on-duty time following 10 consecutive hours off duty. The exemption would be applicable to nine carriers employing approximately 100 drivers responsible for operating about 100 CMVs. A copy of the application for an exemption, which includes a list of all of the motor carriers that would be covered by it, is included in the docket referenced at the beginning of this notice.

On May 22, 2007, FMCSA published a notice in the Federal Register (72 FR 28755) granting a renewal of an identical exemption from APA for 70 of its member companies. The original exemption expired on July 7, 2006, and APA had requested a renewal for those original companies.

On May 30, 2007, FMCSA published a notice in the Federal Register (72 FR 30047) announcing APA's application for exemption for nine of its member carriers, and requesting public comment.

APA, a trade association representing the domestic fireworks industry, asserts that full compliance with the current hours-of-service (HOS) regulations during the brief period surrounding Independence Day imposes a substantial economic hardship on its members that operate fireworks for the public. This period is the busiest time of the year for these companies. APA members are engaged to stage multiple shows in celebration of Independence Day, during a compressed timeframe.

The member-company drivers that would be covered by the exemption are trained pyrotechnicians, each holding a commercial driver's license with a hazardous materials endorsement. These drivers transport fireworks and equipment to remote locations under demanding schedules. During the week before Independence Day, these companies are engaged to stage multiple shows in a very compressed period of time. To meet the press of business in this 1-week period under the current HOS rules, companies would be required to hire a second driver for most trips. This would result in a substantial increase in the cost of these shows, and as a result, many shows would be cancelled. Alternatively, APA members would be forced to significantly decrease their engagements. In either case, these companies would have to decrease the number of shows they provide, thereby denying many Americans a primary component of their Independence Day celebration.

APA believes that granting of the requested exemption will not adversely affect the safety of the motor carrier transportation provided by its member companies. An identical exemption has been in effect, including renewal, since 2004 for approximately 70 other APA member carriers. There have been no reported crashes or incidents involving these carriers. According to the APA, the exemption will enhance safety by decreasing the number of CMVs stationed with HM 1.3 and 1.4 products aboard at locations throughout the country. Under the exemption, CMVs will be able to return to their home base, which is a secured area for these types of products.

In its prior comparable exemption requests, APA stated they believe that the operational demands of this unique industry minimize the risks of CMV crashes. In the last few days before the Independence Day holiday, drivers spend their driving time transporting fireworks relatively short distances from the nearest distribution point to the site of the fireworks display. Most of their on-duty time, however, is devoted to installing, wiring, and double-checking fireworks displays. Pyrotechnicians drive to the site of the fireworks display in the early morning and return late in the evening, thus avoiding much of the heavy traffic typical of the holiday. After setting the fireworks display in daylight in order to reduce the possibility of mistakes, the pyrotechnicians/drivers typically have several hours off duty in the late afternoon and early evening, just before the shoot. This enables them to rest or nap, reducing or eliminating the fatigue caused by the day's activities, and making their return trip later that evening safer.

In addition to driving at off-peak hours and having an opportunity for substantial rest periods during their tour of duty, pyrotechnicians who drive back to a hotel or motel in the 15th or 16th hours after coming on duty will be required to take 10 consecutive hours off-duty, like other drivers.

Discussion of Public Comments

On May 30, 2007, FMCSA requested public comment from all interested persons on the APA application for an exemption for these nine member companies (72 FR 30047). The comment period closed on June 14, 2007. There were no substantive comments filed in response to this notice.

FMCSA Decision

The FMCSA has determined that the granting of this exemption would achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. An identical exemption has been in effect, including renewal, since 2005 for approximately 70 other APA member carriers. There have been no reported crashes or incidents involving these carriers while operating under the exemption. No comments have been received concerning adverse impacts on safety in response to FMCSA's May 30, 2007 notice announcing this exemption application. Although FMCSA believes the 14-hour limit is generally conducive to safety, the current HOS regulations allow certain short-haul drivers a 16-hour driving “window” once a week, providing specified conditions are met. Because pyrotechnician-drivers operate like short-haul drivers (relatively little driving, a variety of work), FMCSA has concluded that the 9-day yearly exemption requested by APA is not likely to adversely affect motor carrier safety.

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 June 28, 2007, and is applicable from June 28 (12:01 a.m.) through July 6, 2007 (11:59 p.m.) and from June 28 (12:01 a.m.) through July 6, 2008 (11:59 p.m.). The exemption expires on July 7, 2008.

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 entitled to a limited exemption from the requirements of 49 CFR 395.3(a)(2). This regulation, 49 CFR 395.3(a)(2), currently 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. 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 hours off duty following 14 hours on duty prior to beginning a new driving period. The drivers must comply with 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 member company, 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 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, 2007.

Larry W. Minor,

Acting Associate Administrator for Policy and Program Development.

Appendix to Notice of Application for Exemption by American Pyrotechnics Association From the 14-Hour Rule During 2007 and 2008 Independence Day Celebrations

List of APA Members Covered by Exemption From 14-hour Rule in Hours of Service for Drivers Regulation

Company name	Address	City, State ZIP	DOT No.
Alpha-Lee Enterprises, Inc.	4111 FM 2351	Friendswood, TX 77546	1324580A
American Fireworks Company	7041 Darrow Road	Hudson, OH 44236	103972
Cartwright Fireworks, Inc.	1608 Keely Road	Franklin, PA 16323	882283
Entertainment Fireworks, Inc	P.O. Box 7160	Olympia, WA 98507-7160	680942
Fireworks Productions of Arizona, Ltd	17034 S. 54th Street	Chandler, AZ 85226	948780
Great Lakes Fireworks	24805 Marine	Eastpointe, MI 48021	1011216
Rainbow Fireworks, Inc.	76 Plum Ave.	Inman, KS 67546	1139643
Skyworks, Ltd.	13513 W. Carrier Road	Carrier, OK 73727	1421047
Stellar Fireworks, Inc.	4440 Southeast Blvd.	Wichita, KS 67210	1349562