Hours of Service (HOS) of Drivers; American Pyrotechnics Ass'n. (APA) Application for Exemption From the 14-Hour Rule; Extension of Current APA Exemption Period |
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Larry W. Minor
Federal Motor Carrier Safety Administration
9 May 2016
[Federal Register Volume 81, Number 89 (Monday, May 9, 2016)]
[Notices]
[Pages 28115-28118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10820]
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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 Ass'n.
(APA) Application for Exemption From the 14-Hour Rule; Extension of
Current APA Exemption Period
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of application for and extension of exemption; request
for comments.
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SUMMARY: The American Pyrotechnics Association (APA), on behalf of its
member companies, has requested additions to and deletions from the
list of motor carriers previously granted exemptions for the 2015 and
2016 Independence Day fireworks shows. Fifty-one APA members currently
hold such exemptions from the prohibition on driving commercial motor
vehicles (CMVs) after the 14th hour after the driver comes on duty. APA
requests discontinuance of the exemption for 4 carriers, and new
exemptions for 4 carriers, with the total therefore remaining at 51.
The ``Fixing America's Surface Transportation Act'' (FAST Act) extended
the expiration date of hours-of-service (HOS) exemptions in effect on
the date of enactment of the FAST Act to 5 years from the date of
issuance. This notice therefore extends to July 8, 2020, the exemption
for the 47 APA members approved in 2015 that wish to retain the
exemption. Finally, FMCSA seeks comment on the applications of 4 APA
members not previously exempted from the 14-hour rule. Because the FAST
Act also authorized new exemptions for a period of up to 5 years, the
Agency proposes to grant these 4 motor carriers exemptions that would
run through July 8, 2020, and terminate at the same time as the other
47 exemptions. 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: June 8, 2016.
ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket ID FMCSA-2007-28043 using any of the
following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow
the online instructions for submitting comments.
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 or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
Fax: 1-202-493-2251.
Each submission must include the Agency name and the docket number
for this notice. Note that DOT posts all comments received without
change to www.regulations.gov, including any personal information
included in a comment. Please see the Privacy Act heading below.
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 FDMS is available 24 hours each
day, 365 days each year. If you want acknowledgment that we
[[Page 28116]]
received your comments, please include a self-addressed, stamped
envelope or postcard or print the acknowledgement 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: For information concerning this
notice, contact Ms. Pearlie Robinson, FMCSA Driver and Carrier
Operations Division; Office of Carrier, Driver and Vehicle Safety
Standards; Telephone: (202) 366-4325. Email: MCPSD@dot.gov. If you have
questions on viewing or submitting material to the docket, contact
Docket Services, telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
FMCSA encourages you to participate by submitting comments and
related materials.
Submitting Comments
If you submit a comment, please include the docket number for this
notice (FMCSA-2007-28043), indicate the specific section of this
document to which the comment applies, and provide a reason for
suggestions or recommendations. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so the Agency can contact you if it has questions
regarding your submission.
To submit your comment online, go to www.regulations.gov and put
the docket number, ``FMCSA-2007-28043'' in the ``Keyword'' box, and
click ``Search.'' When the new screen appears, click on ``Comment
Now!'' button and type your comment into the text box in the following
screen. Choose whether you are submitting your comment as an individual
or on behalf of a third party and then submit. If you submit your
comments by mail or hand delivery, submit them in an unbound format, no
larger than 8\1/2\ by 11 inches, suitable for copying and electronic
filing. If you submit comments by mail and would like to know that they
reached the facility, please enclose a stamped, self-addressed postcard
or envelope.
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, and
explain its terms and conditions. The exemption may be renewed (49 CFR
381.300(b)).
Section 5206(a)(3) of the FAST Act amended 49 U.S.C. 31315 to
permit FMCSA to grant exemptions for up to 5 years from the date of
issuance, instead of the previous two years [Sec. 31315(b)(2)]. This
statutory provision will be codified in 49 CFR part 381 in a
forthcoming rulemaking. Section 5206(b)(2)(A) of the FAST Act also
extended all HOS exemptions in effect on the date of enactment to a
period of 5 years from the date of issuance.
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. The APA, a trade
association representing the domestic fireworks industry, was granted
an exemption for 51 member companies for the 2015 and 2016 Independence
Day periods [80 FR 37040, June 29, 2015]. APA has requested
discontinuing the exemptions for 4 carriers,\1\ and adding 4 new
carriers, maintaining the total at 51. The 51 exemptions granted to APA
members in 2015 (now reduced to 47 exemptions) are extended, pursuant
to section 5206(b)(2)(A) of the FAST Act, through the annual
Independence Day periods ending on July 8, 2020. The exemptions for the
4 new APA carriers, if granted, would expire on July 8, 2020. Although
this is less than the 5-year exemption period authorized by 49 U.S.C.
31315(b)(2), as amended by section 5206(a)(3) of the FAST Act, 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. It should also be noted that
section 5206(b)(2)(A) of the FAST Act extends HOS exemptions in effect
on the date of enactment ``for a period of 5 years from the date such
exemption was granted'' (emphasis added). FMCSA believes that the
intent of the statute was to extend the effective period of an
exemption from 2 to 5 years, on the assumption that exemptions begin
upon issuance and remain in effect (in most cases) for 2 consecutive
years. Since the 2015 fireworks exemption involved 2 separate periods,
both ending after ``the date such exemption was granted,'' the Agency
believes the FAST Act amendment is best interpreted as extending the
end date of the fireworks exemption--namely July 8 of each year--
through 2020. Like the other 47 member-companies that operated under
the 2015 exemption, the 4 additional member companies would be subject
to all of the terms and conditions of the exemption.
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\1\ Colonial Fireworks, DOT 177274; Fireworks West
Internationale, DOT 245423; USA Halloween Planet Inc. dba USA
Fireworks, DOT 725457; Western Fireworks Inc., DOT 838585.
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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 the 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
[[Page 28117]]
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 exemption for an additional 4
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. The 47 APA member companies currently exempt, as well as the 4
carriers seeking an exemption for the first time, are listed in an
appendix to this notice. The 4 new carriers are identified with an
asterisk. 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 the new exemptions would 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 10 previous Independence Day periods without a
reported motor carrier safety incident. Moreover, it asserts, without
the 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 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 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.
Terms and Conditions of the Exemption
Period of the Exemption
The requested exemption from 49 CFR 395.3(a)(2) would be effective
from June 28 through July 8, at 11:59 p.m. local time, each year
through 2020.
Terms and Conditions of the Exemption
During the 2016 Independence Day period, the exemption from 49 CFR
395.3(a)(2) would be limited to drivers employed by the 47 motor
carriers already covered by the exemption, plus (if approved) the 4
carriers now seeking an exemption. The four carriers that were not
included for the 2015 period are identified by an asterisk. 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 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 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 would be 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 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 their CMVs while under this exemption. The
notification must 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 number,
e. Vehicle number and State license number,
f. Number of individuals suffering physical injury,
g. Number of fatalities,
h. The police-reported cause of the accident,
i. Whether the driver was cited for violation of any traffic laws,
or motor carrier safety regulations, and
j. 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, if granted, would experience any deterioration of
their safety record. However, should this occur, FMCSA would 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: May 2, 2016.
Larry W. Minor,
Associate Administrator for Policy.
Appendix to Notice of APA Application for Exemption From the 14-Hour
Rule During 2016-2020 Independence Day Celebrations; Extension of
Current Exemption
[[Page 28118]]
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City, state,
Motor carrier Street address zip code DOT No.
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1... American 7041 Darrow Hudson, OH 103972
Fireworks Road. 44236.
Company.
2... American P.O. Box 980... Oxford, NY 2115608
Fireworks 13830.
Display, LLC.
3... AM Pyrotechnics, 2429 East 535th Buffalo, MO 1034961
LLC. Rd. 65622.
4... Arthur Rozzi 6607 Red Hawk Maineville, OH 2008107
Pyrotechnics. Ct. 45039.
5... Atlas PyroVision 136 Old Sharon Jaffrey, NH 789777
Entertainment Rd. 03452.
Group, Inc.
6... Central States 18034 Kincaid Athens, IL 1022659
Fireworks, Inc. Street. 62613.
7... East Coast 4652 Catawba Catawba, SC 545033
Pyrotechnics, River Rd. 29704.
Inc.
8... Entertainment 13313 Reeder Tenino, WA 680942
Fireworks, Inc. Road SW. 98589.
9... Falcon Fireworks 3411 Courthouse Guyton, GA 1037954
Road. 31312.
10.. Fireworks & 12650 Hwy 67S. Lakeside, CA 908304
Stage FX Suite B. 92040.
America.
11.. Fireworks by 20 Pinehurst BellPort, NY 324490
Grucci, Inc. Drive. 11713.
12.. * Flashing 700 E Van Buren Mitchell, IA 420413
Thunder Street. 50461.
Fireworks dba
Legal Aluminum
King Mtg.
13.. J&J Computing 174 Route 17 Rochelle Park, 2064141
dba Fireworks North. NJ 07662.
Extravaganza.
14.. Gateway P.O. Box 39327. St Louis, MO 1325301
Fireworks 63139.
Displays.
15.. Great Lakes 24805 Marine... East Pointe, MI 1011216
Fireworks. 48021.
16.. Hamburg 2240 Horns Mill Lancaster, OH.. 395079
Fireworks Road SE.
Display, Inc.
17.. Hawaii 17-7850 N. Mountain View, 1375918
Explosives & Kulani Road. HI 96771.
Pyrotechnics,
Inc.
18.. Hollywood 1567 Antler Eagan, MN 55122 1061068
Pyrotechnics, Point.
Inc.
19.. Homeland P.O. Box 7..... Jamieson, OR 1377525
Fireworks, Inc. 97909.
20.. Island Fireworks N1597 County Rd Hager City, WI 414583
Co., Inc. VV. 54014.
21.. J&M Displays, 18064 170th Ave Yarmouth, IA 377461
Inc. 52660.
22.. Lantis 130 Sodrac Dr., N. Sioux City, 534052
Fireworks, Inc. Box 229. SD 57049.
23.. Legion Fireworks 10 Legion Lane. Wappingers 554391
Co., Inc. Falls, NY
12590.
24.. Miand Inc. dba P.O. Box 294, Kingsbury, IN 777176
Planet 3999 Hupp Road 46345.
Productions R31.
(Mad Bomber).
25.. Martin & Ware P.P. Box 322... Hallowell, ME 734974
Inc. dba Pyro 04347.
City Maine &
Central Maine
Pyrotechnics.
26.. Melrose 1 Kinsgubury Kingsbury, IN 434586
Pyrotechnics, Industrial 46345.
Inc. Park.
27.. Precocious 4420-278th Ave Belgrade, MN 435931
Pyrotechnics, NW. 56312.
Inc.
28.. * Pyro Shows, 115 N 1st LaFollette, TN 456818
Inc. Street. 37766.
29.. Pyro Shows of 6601 9 Mile Fort Worth, TX 2432196
Texas, Inc. Azle Rd. 76135.
30.. * Pyro 400 Broadhollow Farmindale, NY 530262
Engineering Rd. Ste #3. 11735.
Inc., dba/Bay
Fireworks.
31.. Pyro 3196 N Locust Rialto, CA 029329
Spectaculars, Ave. 92376.
Inc.
32.. Pyro 5301 Lang McClellan, CA 1671438
Spectaculars Avenue. 95652.
North, Inc.
33.. Pyrotechnic 8450 W. St. Frankfort, IL 1929883
Display, Inc. Francis Rd. 60423.
34.. Pyrotecnico (S. 302 Wilson Rd.. New Castle, PA 526749
Vitale 16105.
Pyrotechnic
Industries,
Inc.).
35.. Pyrotecnico, LLC 60 West Ct..... Mandeville, LA 548303
70471.
36.. Pyrotecnico FX.. 6965 Speedway Las Vegas, NV 1610728
Blvd. Suite 89115.
115.
37.. Rainbow 76 Plum Ave.... Inman, KS 67546 1139643
Fireworks, Inc.
38.. RES Specialty 21595 286th St. Belle Plaine, 523981
Pyrotechnics. MN 56011.
39.. Rozzi's Famous 11605 North Loveland, OH 0483686
Fireworks, Inc. Lebanon Rd. 45140.
40.. * Sky Wonder 3626 CR 203.... Liverpool, TX 1324580
Pyrotechnics, 77577.
LLC.
41.. Skyworks, Ltd... 13513 W. Carrier, OK 1421047
Carrier Rd. 73727.
42.. Sorgi American 935 Wales Ridge Wales, MI 48027 2475727
Fireworks Rd.
Michigan, LLC.
43.. Spielbauer 220 Roselawn Green Bay, WI 046479
Fireworks Co, Blvd. 54301.
Inc.
44.. Spirit of 76.... 6401 West Hwy Columbia, MO 2138948
40. 65202.
45.. Starfire 682 Cole Road.. Carrolltown, PA 554645
Corporation. 15722.
46.. Vermont 2235 Vermont East 310632
Fireworks Co., Route 14 South. Montpelier, VT
Inc./ Northstar 05651.
Fireworks Co.,
Inc.
47.. Western Display 10946 S. New Canby, OR 97013 498941
Fireworks, Ltd. Era Rd.
48.. Western P.O. Box 160... Carrier, OK 203517
Enterprises, 73727.
Inc.
49.. Wolverine 205 W Seidlers. Kawkawlin, MI.. 376857
Fireworks
Display, Inc.
50.. Young Explosives P.O. Box 18653. Rochester, NY 450304
Corp. 14618.
51.. Zambelli P.O. Box 1463.. New Castle, PA 033167
Fireworks MFG, 16103.
Co., Inc.
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* New applicants for exemption
[FR Doc. 2016-10820 Filed 5-6-16; 8:45 am]
BILLING CODE 4910-EX-P