Hours of Service of Drivers; Renewal and Expansion of American Pyrotechnics Association Exemption From the 14-Hour Rule During Independence Day Celebrations |
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T.F. Scott Darling
Federal Motor Carrier Safety Administration
June 28, 2013
[Federal Register Volume 78, Number 125 (Friday, June 28, 2013)]
[Notices]
[Pages 39057-39061]
From the Federal Register Online via the Government Printing 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: MCPSD@dot.gov.
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