Hours of Service (HOS) of Drivers; Assessing the Safety Impact of the Exemption From the 14-Hour Provision of the Hours of Service Rule for Certain Pyrotechnics Operations During Independence Day Celebrations

Anne S. Ferro
Federal Motor Carrier Safety Administration
Federal Register
March 25, 2011

[Federal Register: March 25, 2011 (Volume 76, Number 58)]
[Notices]               
[Page 16852-16854]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr11-136]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]

 
Hours of Service (HOS) of Drivers; Assessing the Safety Impact of 
the Exemption From the 14-Hour Provision of the Hours of Service Rule 
for Certain Pyrotechnics Operations During Independence Day 
Celebrations

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

ACTION: Notice; request for comments.

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SUMMARY: FMCSA requests public comment from all interested parties on 
the impact of the Agency's previous decision granting certain members 
of the American Pyrotechnics Association (APA) an exemption from the 
current HOS prohibition against driving a commercial motor vehicle 
(CMV) after the 14th hour of coming on duty (i.e., the 14-hour 
Provision), provided their drivers did not operate CMVs after 
accumulating 14 hours on duty. The exemption covers certain 
pyrotechnics carriers and drivers for a period that begins 7 days prior 
to Independence Day and ends 2 days immediately following that holiday. 
The Agency initially granted a waiver from the 14-hour Provision in 
2004, and granted an exemption from the 14-hour Provision in 2005 with 
subsequent renewals in 2007 and 2009. FMCSA requests public comment on 
the safety impact of the exemption during the Independence Day periods 
of 2004 through 2010.

DATES: Comments must be received on or before April 25, 2011.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2007-28043 by any of the following 
methods:
    Web site: Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
    Fax: 1-202-493-2251.
    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., Washington, DC, 20590 between 9 a.m. 
and 5 p.m. e.t., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and 
docket number. For detailed instructions on submitting comments and 
additional information on the exemption process, see the Public 
Participation heading below. Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading 
below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov, and follow the 
online instructions for accessing the dockets, or visit the U.S. 
Department of Transportation Docket Management Facility at the street 
address listed above between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement for the Federal Docket Management System 
published in the Federal Register on January 17, 2008 (73 FR 3316), or 
you may visit http://

[[Page 16853]]

edocket.access.gpo.gov/2008/pdfE8-794.pdf.
    Public Participation: The Federal eRulemaking Portal is available 
24 hours each day, 365 days each year. You can obtain electronic 
submission and retrieval help and guidelines under the ``help'' section 
of the Federal eRulemaking Portal Web site. If you want us to notify 
you that we received your comments, please include a self-addressed, 
stamped envelope or postcard, or print the acknowledgement page that 
appears after submitting comments online. Comments received after the 
comment closing date will be included in the docket and will be 
considered to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Thomas Yager, FMCSA Driver and Carrier 
Operations Division; Office of Bus and Truck Standards and Operations; 
Telephone: 202-366-4325. E-mail: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION: 

Background

    Section 4007 of the Transportation Equity Act for the 21st Century 
(Pub. L. 105-178, 112 Stat. 107, 401-404, 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. Pursuant to that rule, FMCSA must 
publish a notice of each exemption request in the Federal Register (49 
CFR part 381). 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 (49 CFR 381.315(a)). The 
Agency must also provide an opportunity for public comment on the 
request. Id.
    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, 
381.310(c)(5)). 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 (49 CFR 381.315(c)(2)). 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 (49 CFR 
381.315(c)(1)). The notice must also specify the effective period of 
the exemption (up to two years), and explain the terms and conditions 
of the exemption. Id. The exemption may be renewed (49 CFR 381.300(b)).

APA's Independence Day Operations and the Exemption from 49 CFR 
395.3(a)(2)

    APA is a trade association that represents the domestic fireworks 
industry. Its members have been providing fireworks-related services 
for many years.
    The CMV drivers employed by APA members transport fireworks over 
relatively short distances from distribution points to the sites of 
Independence Day fireworks displays. These trips normally take place in 
the early morning when motor vehicle traffic is light. APA members' 
drivers are also trained pyrotechnicians, and at the display site, they 
set up and safety-check the fireworks. In the late afternoon and early 
evening prior to the fireworks event, these drivers have time off duty 
in which to rest or nap. After the event, the drivers load the CMV and 
perform additional driving tasks. This final movement of the day takes 
place late in the evening on roads relatively free of heavy motor 
vehicle traffic. Before beginning the next duty day, these drivers must 
take at least 10 consecutive hours off-duty, in accordance with the HOS 
rules applicable to all drivers of property-carrying CMVs (49 CFR 
395.3(a)).
    In 2003, FMCSA amended its HOS rules for CMV drivers (68 FR 22456, 
April 28, 2003), adopting a rule that prohibited interstate drivers of 
property-carrying CMVs from driving after the end of the 14th hour 
after they came on duty following 10 consecutive hours off duty (49 CFR 
395.3(a)(2)). This 14-hour provision impacted the operations of APA's 
members with respect to the services they provide for Independence Day 
celebrations because drivers could no longer drive after the 14th hour 
of coming on duty, following 10 consecutive hours off duty.
    Under the previous HOS rules, drivers were not limited by a block 
of time within which all driving had to be completed. Driving was 
prohibited after drivers accumulated 15-hours of on-duty time 
(including any driving time) but the prohibition against driving was 
not linked to the beginning of the work day. Rest breaks or off-duty 
periods during the workday enabled drivers to operate their CMVs after 
the fireworks events. However, under the 2003 final rule, driving after 
the 14th hour from the beginning of the work day was prohibited; rest 
breaks or off-duty periods could no longer be used to extend the 
timeframe during which driving could occur.
    Through the exemption process under 49 CFR part 381, APA requested 
that fireworks personnel be allowed to exclude off-duty and sleeper 
berth time of any length in the calculation of the 14-hour rule. APA 
believes that full compliance with the current HOS 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 certain APA 
members because the companies are hired to conduct multiple fireworks 
shows in celebration of Independence Day, during a compressed 
timeframe. Without the exemption, pyrotechnicians cannot meet typical 
holiday schedules, and fireworks companies would be forced to hire a 
second driver for most trips or, significantly decrease 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.
    APA first applied for relief from Sec.  395.3(a)(2) for the 2004 
Independence Day celebrations. FMCSA granted APA a waiver on behalf of 
its members. A copy of the 2004 waiver is in the docket referenced at 
the beginning of this notice.
    The following year, the APA submitted an application for an 
exemption that would cover two consecutive Independence Day 
celebrations--2005 and 2006. FMCSA published a notice in the Federal 
Register announcing the application and seeking public comment on it 
(70 FR 24160; May 6, 2005). After the close of the comment period, 
FMCSA published a notice of its final decision on July 1, 2005. The 
Agency granted an exemption from the 14-hour Provision under Sec.  
395.3(a)(2)) to designated APA-member motor carriers and their CMV 
drivers for two 9-day periods during the 2005 and 2006 Independence Day 
holidays, subject to specific terms and conditions of the exemption (70 
FR 38242, July 1, 2005).
    On June 28, 2007, FMCSA published an exemption applicable to 
certain APA members operating property-carrying CMVs in furtherance of 
fireworks displays for two 9-day periods during the 2007 and 2008 
Independence Day holidays (72 FR 35538). And, on June

[[Page 16854]]

19, 2009, FMCSA published a notice granting a similar exemption to 
certain APA members for two 9-day periods during the 2009 and 2010 
Independence Days (74 FR 29264).
    In each case, FMCSA found that the terms and conditions of the 
exemption would ensure that APA members' operations were likely to 
achieve a level of safety equivalent to, or greater than, the level of 
safety the operations would obtain in the absence of the exemption.
    Annually, the exemption has permitted approximately 3,000 CMV 
drivers employed by APA members to exclude off-duty and sleeper-berth 
time of any length from their calculations of compliance with the 14-
hour provision following 10 consecutive hours off duty. For all 
operations not subject to the exemption, the drivers and motor carriers 
remain subject to the 11-hour driving time limit, the 60-hour (or 70-
hour) on-duty limit, and all other HOS rules. The exemption from 49 CFR 
395.3(a)(2) has been limited to a roster of APA-member motor carriers, 
and to a period of 9 consecutive days each year. During these 9 days, 
driving outside of the 14-hour driving window would be allowed, 
provided the driver did not operate CMVs after accumulating 14 hours on 
duty.

Advocates for Highway and Auto Safety (Advocates) June 5, 2009, 
Comments

    During the exemption renewal process in 2009, FMCSA's June 19, 
2009, notice did not acknowledge or respond to comments submitted by 
Advocates. Although Advocates timely filed its comments on June 5, 
2009, prior to the June 8, 2009, deadline for responding to the 
Agency's May 22, 2009, notices (74 FR 24066 and 74 FR 24069) those 
comments were not available at http://www.regulations.gov, the web site 
at which docket comments are posted, until June 10, 2009. By the time 
the personnel responsible for managing this web site for all Federal 
regulatory matters had posted Advocates' comments to the electronic 
docket, FMCSA staff had prepared its draft notice of final disposition 
and submitted it to FMCSA's senior leadership for approval. The notice 
of final disposition was subsequently issued on June 12, 2009, and 
published on June 19, 2009.
    FMCSA reviews all public comments as of the filing deadline for 
purposes of analyzing comments. However, as in this case, because of 
the time constraints for issuing a decision in time for the 2009 
Independence Day Celebration, there was no review of Advocates' 
comments posted at http://www.regulations.gov two days after the 
deadline. In consideration of the administrative delay in the posting 
of Advocates' comments to the public docket, FMCSA now requests public 
comment on the safety impact of the exemption prior to consideration of 
any subsequent requests for renewal of the exemption.
    Interested parties may view the APA applications for the exemptions 
and the exemption renewals, the public comments the Agency received, 
including the Advocates comments dated June 5, 2009, and FMCSA's 
Federal Register notices by following the instructions under the 
heading ``Docket'' above: For the 2005 exemption, please refer to 
Docket FMCSA-2005-21104, and for the 2007 and 2009 exemptions, refer to 
Dockets FMCSA-2007-28090 and FMCSA-2007-28043, respectively.

Request for Comments

    FMCSA requests public comment from all interested parties on the 
impact the exemptions have had on the safety performance of the drivers 
and carriers covered by the exemption. Interested parties are 
encouraged to submit any information concerning crashes and any 
fatalities, injuries and property damage associated with those crashes 
that occurred during the periods the exemptions were in place. FMCSA 
will review all comments received and consider them in the decision-
making process should the APA apply for a renewal of the exemption.

    Issued on: March 21, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-7009 Filed 3-24-11; 8:45 am]
BILLING CODE 4910-EX-P