Hours of Service (HOS) of Drivers; American Pyrotechnics Assn. (APA); Request To Add New Members to Current APA Exemption; Request for Comments

Larry W. Minor
Federal Motor Carrier Safety Administration
8 June 2018

[Federal Register Volume 83, Number 111 (Friday, June 8, 2018)]
[Notices]
[Pages 26742-26744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12355]


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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); Request To Add New Members to Current APA Exemption; Request for 
Comments

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of application for exemption; request for comments.

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SUMMARY: The American Pyrotechnics Association (APA) has requested an 
exemption for three member companies--Artisan Pyrotechnics Inc., 
Montana Display Fireworks, Inc., and ZY Pyrotechnics, LLC dba 
Skyshooter Displays, Inc.--from the prohibition on driving commercial 
motor vehicles (CMVs) after the 14th hour after the driver comes on 
duty. Fifty APA members currently hold such an exemption during the 
Independence Day period each year, terminating on July 8, 2020. If 
granted, this exemption would terminate at the same time as the other 
50 exempted carriers. 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: Comments are due no later than July 9, 2018.

[[Page 26743]]


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 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: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 202-366-4225. 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 compliance with 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 after the 14th hour after coming on 
duty following 10 consecutive hours off duty. In 2016, 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]. One of the 
51 APA member companies, Island Fireworks, DOT #414583, no longer 
requires the exemption, leaving the total at 50. APA has requested an 
exemption for Artisan Pyrotechnics Inc., DOT #1898096, Montana Display 
Fireworks, Inc., DOT #1030231, and ZY Pyrotechnics, LLC dba Skyshooter 
Displays, Inc., DOT #2149202, which would increase the total to 53. The 
exemption for these 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 
Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94, 129 
Stat. 1312, 1537, Dec. 4, 3015), 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, the three new member 
companies 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 
describes the nature of the pyrotechnic operations of CMV

[[Page 26744]]

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 the 
three new 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 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.

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 11 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 is 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 2018 Independence Day period, the exemption from 49 CFR 
395.3(a)(2) would be limited to drivers employed by the 50 motor 
carriers already covered by the exemption, plus (if approved) the three 
carriers now seeking an exemption. 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 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, 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: June 4, 2018.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2018-12355 Filed 6-7-18; 8:45 am]
 BILLING CODE 4910-EX-P