Hours of Service (HOS) of Drivers; American Pyrotechnics Assn. (APA) Application for Exemption From the 14-Hour Rule; Request To Add New Member to Current APA Exemption |
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Randi F. Hutchinson
Federal Motor Carrier Safety Administration
7 July 2017
[Federal Register Volume 82, Number 129 (Friday, July 7, 2017)]
[Notices]
[Pages 31683-31686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14262]
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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 Assn.
(APA) Application for Exemption From the 14-Hour Rule; Request To Add
New Member to Current APA Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: FMCSA announces its decision to grant an exemption to the
American Pyrotechnics Association's (APA) new member-company, Pyro
Shows of Alabama, Inc., from the prohibition on driving commercial
motor vehicles (CMVs) after the 14th hour after the driver comes on
duty. During the 2016 Independence Day period 51 APA members held such
an exemption, effective during the period June 28 through July 8 each
year through 2020. APA advised FMCSA of the discontinuance of the
exemption for one carrier; with the addition of the new member the
total remains at 51. The exemption granted to Pyro Shows of Alabama,
Inc. will terminate at the same time as the other 50 exempted carriers.
FMCSA has determined that the terms and conditions of the exemption
ensure a level of safety equivalent to, or greater than, the level of
safety achieved without the exemption.
DATES: These exemptions from 49 CFR 395.3(a)(2) are effective from June
28 through July 8, at 11:59 p.m. local time, each year through 2020.
ADDRESSES:
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 Federal Docket Management System
(FDMS) is available 24 hours each day, 365 days each year. If you want
acknowledgment that we 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: Mr. Thomas Yager, Chief, FMCSA Driver
and Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone: 614-942-6477. 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
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
[[Page 31684]]
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 (up
to 5 years), and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).
APA Application for Exemption
The HOS rule in 49 CFR 395.3(a)(2) prohibits the driver of a
property-carrying CMV from driving a commercial motor vehicle (CMV)
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 exemptions for 51 member companies
through the annual Independence Day periods ending on July 8, 2020 [81
FR 43701, July 5, 2016]. APA has requested an additional exemption for
Pyro Shows of Alabama Inc. (USDOT 2859710) and the discontinuance of an
exemption for Pyrotechnico, LLC, also known as Wild Dragon Fireworks
(USDOT 548303), maintaining the total at 51. Like the other carriers
currently operating under the exemption, Pyro Shows of Alabama's
exemption will also 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. Like the other 50 member-companies, this
additional member company would be subject to all of the terms and
conditions of the exemption.
The initial APA application for relief from the 14-hour rule was
submitted in 2004; a copy is in the docket. That application fully
described 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 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 additional exemption for Pyro
Shows of Alabama, Inc. 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 exemptions, 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 50 APA member companies currently exempt (as well as Pyro
Shows of Alabama, seeking an exemption for the first time) are listed
in an appendix to this notice. Pyro Shows of Alabama is 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 exemption would not adversely affect the
safety of the fireworks transportation provided by this motor carrier.
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 will 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.
Public Comments
On May 15, 2017, FMCSA published notice of this application and
requested public comments (82 FR 22375). One comment was submitted by
an individual who objected to the exemption, stating ``Thank you. I am
dead set against this especially with one of the last lines of this
article, stating it would mean having to hire 2 drivers. Point being?
Hire a second driver and quit it.''
FMCSA Response
FMCSA has determined that granting an exemption to Pyro Shows of
Alabama, Inc. will achieve a level of safety equivalent to or greater
than the level that compliance with the 14-hour rule would ensure.
Prior to publishing the Federal Register notice announcing the receipt
of APA's application to add Pyro Shows of Alabama to the current list
of carriers operating under the exemption, FMCSA ensured that the motor
carrier possessed an active USDOT registration, minimum required levels
of insurance, and was not subject to any ``imminent hazard'' or other
out-of-service (OOS) orders. The Agency conducted a comprehensive
investigation of the safety performance history on each of the motor
carriers listed in the appendix table during the review process. As
part of this process, FMCSA reviewed its Motor Carrier Management
Information System safety records, including inspection and accident
reports submitted to FMCSA by State agencies.
With regard to safety statistics, none of the carriers, including
Pyro Shows of Alabama, was under an imminent
[[Page 31685]]
hazard or OOS order, had any alerts in the Safety Management System
(SMS), or was under investigation by the Pipeline and Hazardous
Materials Safety Administration. All had ``satisfactory'' safety
ratings based on compliance reviews, and all had valid Hazardous
Materials Safety Permits.
Terms and Conditions of the Exemption
Period of the Exemption
The exemption from 49 CFR 395.3(a)(2) is effective from June 28
through July 8, at 11:59 p.m. local time, each year through 2020 for
the 51 carriers identified in this notice.
Terms and Conditions of the Exemption
The exemptions from 49 CFR 395.3(a)(2) will be limited to drivers
employed by the 50 motor carriers already covered by the exemption, and
drivers employed by Pyro Shows of Alabama, which is identified by an
asterisk in the appendix table of this notice. 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 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 exception. The
exemption is 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 are 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 be by email to MCPSD@DOT.GOV and 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 State, number, and class,
e. Co-Driver's name and driver's license State, number, and class,
f. Vehicle company number and power unit license plate State and
number,
g. Number of individuals suffering physical injury,
h. Number of fatalities,
i. The police-reported cause of the accident,
j. Whether the driver was cited for violation of any traffic laws,
or motor carrier safety regulations, and
k. The total driving time and the total on-duty time of the CMV
driver at the time of the accident.
In addition, if there are any injuries or fatalities, the carrier
must forward the police accident report to MCPSD@DOT.GOV as soon as
available.
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. Exempt motor carriers and drivers would be
subject to FMCSA monitoring while operating under this exemption.
Issued on: June 29, 2017.
Randi F. Hutchinson,
Chief Counsel.
Appendix to Notice of Application for Approval of Motor Carriers To
Utilize American Pyrotechnics Association's (APA) Exemption From the
14-Hour Rule During 2017 Independence Day Celebrations
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Motor carrier Street address City, state, zip code DOT No.
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1 American Fireworks Company........ 7041 Darrow Road....... Hudson, OH 44236...... 103972
2 American Fireworks Display, LLC... P.O. Box 980........... Oxford, NY 13830...... 2115608
3 AM Pyrotechnics, LLC.............. 2429 East 535th Rd..... Buffalo, MO 65622..... 1034961
4 Arthur Rozzi Pyrotechnics......... 6607 Red Hawk Ct....... Maineville, OH 45039.. 2008107
5 Atlas PyroVision Entertainment 136 Old Sharon Rd...... Jaffrey, NH 03452..... 789777
Group, Inc.
6 Central States Fireworks, Inc..... 18034 Kincaid Street... Athens, IL 62613...... 1022659
7 East Coast Pyrotechnics, Inc...... 4652 Catawba River Rd.. Catawba, SC 29704..... 545033
8 Entertainment Fireworks, Inc...... 13313 Reeder Road SW... Tenino, WA 98589...... 680942
9 Falcon Fireworks.................. 3411 Courthouse Road... Guyton, GA 31312...... 1037954
10 Fireworks & Stage FX America..... 12650 Hwy 67S. Suite B. Lakeside, CA 92040.... 908304
11 Fireworks by Grucci, Inc......... 20 Pinehurst Drive..... Bellport, NY 11713.... 324490
12 Flashing Thunder Fireworks dba 700 E Van Buren Street. Mitchell, IA 50461.... 420413
Legal Aluminum King Mtg.
13 J&J Computing dba Fireworks 174 Route 17 North..... Rochelle Park, NJ 2064141
Extravaganza. 07662.
14 Gateway Fireworks Displays....... P.O. Box 39327......... St Louis, MO 63139.... 1325301
15 Great Lakes Fireworks............ 24805 Marine........... Eastpointe, MI 48021.. 1011216
16 Hamburg Fireworks Display, Inc... 2240 Horns Mill Road SE Lancaster, OH......... 395079
17 Hawaii Explosives & Pyrotechnics, 17-7850 N. Kulani Road. Mountain View, HI 1375918
Inc. 96771.
18 Hollywood Pyrotechnics, Inc...... 1567 Antler Point...... Eagan, MN 55122....... 1061068
19 Homeland Fireworks, Inc.......... P.O. Box 7............. Jamieson, OR 97909.... 1377525
20 Island Fireworks Co., Inc........ N1597 County Rd VV..... Hager City, WI 54014.. 414583
21 J&M Displays, Inc................ 18064 170th Ave........ Yarmouth, IA 52660.... 377461
22 Lantis Fireworks, Inc............ 130 Sodrac Dr., Box 229 N. Sioux City, SD 534052
57049.
23 Legion Fireworks Co., Inc........ 10 Legion Lane......... Wappingers Falls, NY 554391
12590.
24 Miand Inc. dba Planet Productions P.O. Box 294, 3999 Hupp Kingsbury, IN 46345... 777176
(Mad Bomber). Road R31.
[[Page 31686]]
25 Martin & Ware Inc. dba Pyro City P.P. Box 322........... Hallowell, ME 04347... 734974
Maine & Central Maine Pyrotechnics.
26 Melrose Pyrotechnics, Inc........ 1 Kinsgubury Industrial Kingsbury, IN 46345... 434586
Park.
27 Precocious Pyrotechnics, Inc..... 4420-278th Ave NW...... Belgrade, MN 56312.... 435931
28 Pyro Shows, Inc.................. 115 N 1st Street....... LaFollette, TN 37766.. 456818
29 *Pyro Shows of Alabama, Inc...... 3325 Poplar Lane....... Adamsville, AL 35005.. 2859710
30 Pyro Shows of Texas, Inc......... 6601 9 Mile Azle Rd.... Fort Worth, TX 76135.. 2432196
31 Pyro Engineering Inc., dba/Bay 400 Broadhollow Rd. Ste Farmindale, NY 11735.. 530262
Fireworks. #3.
32 Pyro Spectaculars, Inc........... 3196 N Locust Ave...... Rialto, CA 92376...... 029329
33 Pyro Spectaculars North, Inc..... 5301 Lang Avenue....... McClellan, CA 95652... 1671438
34 Pyrotechnic Display, Inc......... 8450 W. St. Francis Rd. Frankfort, IL 60423... 1929883
35 Pyrotecnico (S. Vitale 302 Wilson Rd.......... New Castle, PA 16105.. 526749
Pyrotechnic Industries, Inc.).
36 Pyrotecnico FX................... 6965 Speedway Blvd. Las Vegas, NV 89115... 1610728
Suite 115.
37 Rainbow Fireworks, Inc........... 76 Plum Ave............ Inman, KS 67546....... 1139643
38 RES Specialty Pyrotechnics....... 21595 286th St......... Belle Plaine, MN 56011 523981
39 Rozzi's Famous Fireworks, Inc.... 11605 North Lebanon Rd. Loveland, OH 45140.... 0483686
40 Sky Wonder Pyrotechnics, LLC..... 3626 CR 203............ Liverpool, TX 77577... 1324580
41 Skyworks, Ltd.................... 13513 W. Carrier Rd.... Carrier, OK 73727..... 1421047
42 Sorgi American Fireworks 935 Wales Ridge Rd..... Wales, MI 48027....... 2475727
Michigan, LLC.
43 Spielbauer Fireworks Co, Inc..... 220 Roselawn Blvd...... Green Bay, WI 54301... 046479
44 Spirit of 76..................... 6401 West Hwy 40....... Columbia, MO 65202.... 2138948
45 Starfire Corporation............. 682 Cole Road.......... Carrolltown, PA 15722. 554645
46 Vermont Fireworks Co., Inc./ 2235 Vermont Route 14 East Montpelier, VT 310632
Northstar Fireworks Co., Inc. South. 05651.
47 Western Display Fireworks, Ltd... 10946 S. New Era Rd.... Canby, OR 97013....... 498941
48 Western Enterprises, Inc......... P.O. Box 160........... Carrier, OK 73727..... 203517
49 Wolverine Fireworks Display, Inc. 205 W Seidlers......... Kawkawlin, MI......... 376857
50 Young Explosives Corp............ P.O. Box 18653......... Rochester, NY 14618... 450304
51 Zambelli Fireworks MFG, Co., Inc. P.O. Box 1463.......... New Castle, PA 16103.. 033167
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* Not included in 2016 list of approved carriers.
[FR Doc. 2017-14262 Filed 7-3-17; 8:45 am]
BILLING CODE 4910-EX-P