05-13110. Hours of Service of Drivers; American Pyrotechnics Association 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. Fireworks personnel who operate CMVs for the companies listed in this notice, in conjunction with staging 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 limits, and the 60- and 70-hour weekly limits. After reviewing the comments received in response to the May 6, 2005, notice requesting public comment on the APA application, FMCSA has determined the exemption would achieve a level of safety equivalent to what would be provided by compliance with the 14-hour rule as it applies to other drivers of property-carrying vehicles.

DATES:

The exemption is effective June 28, 2005, and is applicable from June 28 (12:01 a.m.) through July 6, 2005 (11:59 p.m.), and from June 28 (12:01 a.m.) through July 6, 2006 (11:59 p.m.). The exemption expires on July 7, 2006.

ADDRESSES:

Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov and/or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 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 DOT's complete Privacy Act Statement in the Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Robert F. Schultz, Jr., Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, MC-PSD, [phone], Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.

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 December 8, 1998, the Federal Highway Administration's Office of Motor Carriers, the predecessor to FMCSA, published an interim final rule implementing section 4007 (63 FR 67600). 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. 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 complying with 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 (49 CFR 381.300(b)).

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 be allowed to exclude off-duty and sleeper berth time of any length in 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 approximately 3,000 drivers responsible for operating about 3,000 commercial motor vehicles. A copy of the application for an exemption, which includes a list of all the motor carriers that would be covered by it, is included in the docket referenced at the beginning of this notice.

APA, a trade association representing the domestic fireworks industry, argues that full compliance with the current hours-of-service regulations during the brief period surrounding Independence Day would impose 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 hired to conduct multiple fireworks shows in celebration of Independence Day, during a compressed timeframe.

The drivers are trained pyrotechnicians, each holding a commercial driver's license (CDL) with a hazardous materials endorsement. These drivers transport fireworks and equipment to remote locations to meet demanding schedules. APA indicated that under the previous hours-of-service requirements in effect prior to the implementation of FMCSA's April 28, 2003, final rule (68 FR 22456), the pyrotechnicians could meet their schedules without exceeding the limits, and without experiencing any crashes or hazardous materials incidents. By contrast, under the new regulations, the pyrotechnicians cannot meet typical holiday schedules, and fireworks companies would be forced to hire a second driver for most trips. Or, fireworks companies would be forced to decrease significantly their engagements. APA argues both options are economically detrimental for its members, and would deny many Americans the primary component of their Independence Day celebration.

Discussion of Public Comments

On May 6, 2005, FMCSA requested public comment from all interested persons on the APA application for an exemption (70 FR 24160). The comment period ended on June 6, 2005. FMCSA received comments from five individuals (Steven L. Cox, George M. Florer, Debbie I. Keeler, Steve Reeves, Barb Sachau) and the Public Utilities Commission of Ohio (PUCO). All of the commenters were opposed to granting the exemption.

Generally, commenters believe the 14-hour provision of the hours-of-service requirements is a good rule based on sound reasoning because it prevents employers from extending the workday. Some of the commenters believe granting the APA exemption application would encourage other special interests groups to request the same exemption.

Two commenters suggest the APA request is motivated for economic reasons. One of these commenters indicated the exemption would enable motor carriers to deliver fireworks to retail stores without complying with the hours-of-service rules. The other indicated that the exemption supports APA members' goals of making more money.

PUCO indicated that highway travel dangers increase around Independence Day. PUCO believes the days before and after Independence Day make up the third busiest highway travel period of the year surpassed only by travel around Thanksgiving and Christmas. PUCO argues that the level of traffic congestion during the holidays means there is less of a margin for driver error and a greater potential for crashes and injuries. PUCO considers Independence Day as a time to focus on highway safety through more rigorous enforcement of motor carrier safety regulations. The State agency believes the increased threat posed by the hazardous materials (fireworks) being transported by APA means that CMV drivers should be alert, and that enforcement of the 14-hour rule should be emphasized rather than diminished.

FMCSA Response

FMCSA understands the concerns raised by the commenters but has concluded that the 9-day exemption requested by APA is not likely to decrease safety.

Pyrotechnicians rarely drive the full 11 hours allowed by the current regulations, but in the rush to prepare for Independence Day they may need to be on duty more than 14 consecutive hours and to drive at the end of that tour of duty. Without an exemption, these pyrotechnician/drivers would be stranded, often with a CMV partially loaded with fireworks, at the site of a forthcoming shoot; conversely, the fireworks company could employ a second driver, operating on a later schedule, to return the vehicle to a secure location within the 14-hour limit. The first option poses certain risks to public safety and the second would significantly increase the costs and logistical complexity of a shoot.

APA points out that “there were no accidents or incidents involving display personnel operating under the waiver” FMCSA granted APA members for Independence Day fireworks displays in 2004. The operational demands of this unique industry appear to minimize the risk of CMV crashes. In the last few days before the holiday, drivers spend their driving time transporting fireworks relatively short distances, from the nearest distribution point to the site of the shoot. Most of their on-duty time, however, is devoted to the intricate and potentially dangerous task of installing, wiring, and double-checking fireworks displays. According to APA, pyrotechnicians drive to the site of the shoot in the early morning and return late in the evening, thus avoiding much of the heavy traffic typical of the holiday. After setting up the fireworks display in daylight, in order to reduce the possibility of mistakes, the pyrotechnician/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, after the shoot, safer than would otherwise be expected. The caution typically exercised by pyrotechnicians handling explosives may also carry over into their driving style, minimizing the risk of crashes, though this is admittedly conjectural.

In addition to driving at off-peak hours and having an opportunity for substantial rest periods during their tours 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. An opportunity for 8 consecutive hours of sleep should eliminate the possibility of cumulative fatigue the next day. Although FMCSA believes the 14-hour limit is generally conducive to safety, the current HOS regulations allow some kinds of short-haul drivers a 16-hour driving window once a week, providing certain conditions are met. The safety record of these drivers does not appear to have suffered as a result of the 16-hour provision. Because pyrotechnician/drivers operate like short-haul drivers (relatively little driving, a variety of work), FMCSA has concluded that the 9-day exemption requested by APA is not likely adversely to affect motor carrier safety.

In response to concerns about the exemption being used to support the delivery of fireworks for retail outlets, FMCSA believes APA's application accurately describes the reason the organization requested the exemption from the 14-hour rule. The exemption is intended to provide an alternative to the 14-hour provision for pyrotechnicians involved in the transportation and operation of fireworks for Independence Day shows. Neither the APA application, nor the terms and conditions associated with the exemption cover the transportation of fireworks to retail outlets to support consumer purchases of fireworks. The fireworks in question are for use by trained pyrotechnicians in fireworks shows, and are not intended for purchase by individual consumers.

As for PUCO's concerns, FMCSA believes that the mitigating factors discussed above are likely to ensure that the exemption granted today does not have a harmful effect on highway safety.

FMCSA Decision

In consideration of the public comments and the agency's response to those comments, FMCSA grants the APA 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 terms and conditions listed below.

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, 2005, and is applicable from June 28 (12:01 a.m.) through July 6, 2005 (11:59 p.m.), and from June 28 (12:01 a.m.) through July 6, 2006 (11:59 p.m.). The exemption expires on July 7, 2006.

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.

Notification to FMCSA

Each company, firm and entity listed in the appendix to this notice must notify FMCSA within 5 business days of any of the following:

1. An 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, and

h. Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations.

2. The total driving time and the 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 the exemption.

Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.73.

Issued on June 28, 2005.

Annette M. Sandberg,

Administrator.