Hours of Service (HOS) of Drivers; Renewal of American Pyrotechnics Association (APA) Exemption From the 14-Hour Rule during Independence Day Celebrations

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]

Hours of Service (HOS) of Drivers; Renewal of American Pyrotechnics Association (APA) Exemption From the 14-Hour Rule during Independence Day Celebrations

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of renewal of exemption; request for comments.

SUMMARY:

FMCSA announces its decision to renew the American Pyrotechnics Association (APA) exemption from FMCSA's regulation that drivers of commercial motor vehicles (CMVs) may not drive after the 14th hour of coming on duty. The exemption for 70 motor carriers and approximately 3,000 drivers is applicable for a period beginning 7 days prior to and 2 days immediately following Independence Day in 2007 and 2008. Drivers who operate 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 not be allowed to drive after

accumulating a total of 14 hours of on-duty time, following 10 consecutive hours off duty, and will continue to be subject to the 11-hour driving time limit, and the 60- and 70-hour on-duty limits. The terms and conditions of the current exemption will remain in place for a second two-year period. FMCSA believes that with the terms and conditions in place, APA 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 renewed exemption is effective from June 28 through July 6, 2007, and from June 28 through July 6, 2008. The exemption expires on July 7, 2008. Comments must be received on or before June 21, 2007.

ADDRESSES:

You may submit comments to the DOT Docket Management System (DMS), referencing Docket Number FMCSA-2007-XXXXX, using any of the following methods:

•

Web Site: http://dmses.dot.gov.

Follow the instructions for submitting comments on the DOT electronic docket site.

•

Fax:

1-202-493-2251.

•

Mail:

Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.

•

Hand Delivery:

Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

•

Federal eRulemaking Portal:

Go to

http://www.regulations.gov.

Follow the online instructions for submitting comments.

Instructions:

All submissions must include the Agency name and docket numbers for this notice. Note that all comments received will be posted without change to

http://dms.dot.gov,

including any personal information provided. Please see the Privacy Act heading

FOR FURTHER INFORMATION CONTACT

.

Docket:

For access to the docket to read background documents or comments received, go to

http://dms.dot.gov

at any time or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. 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 on-line.

Privacy Act:

Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the

Federal Register

published on April 11, 2000 (65 FR 19477; Apr. 11, 2000). This information is also available at

http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, MC-PSD, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. Telephone: 202-366-4009. E-mail:

MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

Under 49 U.S.C. 31315 and 31136(e), FMCSA may renew an exemption from the hours of service (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. FMCSA has evaluated the American Pyrotechnics Association (APA) application for a renewal on its merits and decided to renew the exemption for the 70 companies requested for a two-year period. The list of APA member companies covered by the exemption from 49 CFR 395.3(a)(2) is included as an Appendix to this Notice.

APA Application for an Exemption Renewal

APA applied for the renewal of an exemption from the HOS rules, specifically 49 CFR 395.3(a)(2), which prohibits drivers from operating property-carrying CMVs after the 14th hour of coming on duty. APA requested that drivers covered by the exemption be allowed to exclude off-duty and sleeper-berth time of any length from the calculation of the 14-hour rule. Drivers would not be allowed to drive after the accumulation of 14 hours of on-duty time following 10 consecutive hours off duty. The exemption would be applicable to 70 motor carriers and approximately 3,000 drivers responsible for operating about 3,000 CMVs. APA is seeking a renewal of this exemption because full compliance with the 14-hour rule imposes a substantial economic hardship on their member companies. A copy of the request for a renewal is included in the docket referenced at the beginning of this notice.

APA, a trade association representing the domestic fireworks industry, asserts that full compliance with the current HOS regulations during the brief period surrounding Independence Day imposes a substantial economic hardship on its members that operate fireworks for the public. According to their original exemption request submitted in December 2004, APA member-company drivers are trained pyrotechnicians, each holding a commercial driver's license (CDL) with a hazardous materials (HM) endorsement. These drivers transport fireworks and equipment to remote locations under demanding schedules. During the week before Independence Day, APA members are engaged to stage multiple shows in a very compressed period of time. To meet the surge of business in this 1-week period under the current HOS rules, companies would be required to hire a second driver for most trips. This would result in a substantial increase in the cost of these shows, and as a result, many shows would be cancelled. Alternatively, APA members would be forced to significantly decrease their engagements. In either case, APA members would have to decrease the number of shows they provide, thereby denying many Americans a primary component of their Independence Day celebration.

Method To Ensure an Equivalent or Greater Level of Safety

APA believes that the renewal of the exemption will not adversely affect the safety of the motor carrier transportation provided by their member companies. These companies operated under the existing exemption for two years with no reports of incidents of any kind. Moreover, according to the APA, the exemption will enhance safety by decreasing the number of CMVs stationed with HM 1.3 and 1.4 products aboard at locations throughout the country. Under the exemption, CMVs will be able to return to their home base, which is a secured area for these types of products.

In their original exemption request, APA stated they believe that the operational demands of this unique industry minimize the risks of CMV crashes. In the last few days before the Independence Day holiday, drivers spend their driving time transporting fireworks relatively short distances from the nearest distribution point to the site

of the fireworks display. Most of their on-duty time, however, is devoted to installing, wiring, and double-checking fireworks displays. Pyrotechnicians drive to the site of the fireworks display in the early morning and return late in the evening, thus avoiding much of the heavy traffic typical of the holiday. After setting the fireworks display in daylight in order to reduce the possibility of mistakes, the pyrotechnicians/drivers typically have several hours off duty in the late afternoon and early evening, just before the shoot. This enables them to rest or nap, reducing or eliminating the fatigue caused by the day's activities, and making their return trip later that evening safer.

In addition to driving at off-peak hours and having an opportunity for substantial rest periods during their tour of duty, pyrotechnicians who drive back to a hotel or motel in the 15th or 16th hours after coming on duty will be required to take 10 consecutive hours off-duty, like other drivers. Although FMCSA believes the 14-hour limit is generally conducive to safety, the current HOS regulations allow certain short-haul drivers a 16-hour driving “window” once a week, providing specified conditions are met. Because pyrotechnician-drivers operate like short-haul drivers (relatively little driving, a variety of work), FMCSA has concluded that the 9-day yearly exemption requested by APA is not likely to adversely affect motor carrier safety.

Request for Comments

In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comments on APA's request for a renewal of its exemption from the requirements of 49 CFR 395.3(a)(2). FMCSA will review all comments received and determine whether the renewal of the exemption is consistent with the requirements of 49 U.S.C. 31315 and 31136(e). Comments received after the comment closing date will be filed in the public docket and will be considered to the extent practicable.

FMCSA believes the requirements for a renewal of an exemption under 49 U.S.C. 31315 and 31136(e) can be satisfied by initially granting the renewal and then requesting and subsequently evaluating comments submitted by interested parties. As indicated earlier, the Agency previously published a notice announcing its decision to exempt these APA member companies (and drivers) from the HOS rules in 49 CFR 395.3(a)(2). The decision to renew the exemption for these companies and drivers was based on the merits of the APA application, and only after careful consideration of the comments submitted in response to the May 6, 2005 notice (70 FR 24160).

Interested parties or organizations possessing information that would otherwise show that any or all of these APA member companies are not achieving the requisite statutory level of safety should immediately notify FMCSA. The Agency will evaluate any information submitted and, if safety is being compromised or if the continuation of the exemption is inconsistent with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA will immediately take steps to revoke the exemption of the company or companies and driver(s) in question.

Terms of the Exemption

Period of the Exemption

The exemption from the requirements of 49 CFR 395.3(a)(2) (the 14-hour rule) is effective June 28, 2007, and is applicable from June 28 through July 6, 2007, and from June 28 through July 6, 2008. The exemption expires on July 7, 2008.

Extent of the Exemption

This exemption is restricted to drivers employed by the companies, firms and entities listed in the appendix to this notice. The drivers are entitled to a limited exemption from the requirements of 49 CFR 395.3(a)(2). This regulation, 49 CFR 395.3(a)(2), currently prohibits a driver from driving after the 14th hour of 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 a 14-hour period. The exemption is further contingent on each driver having a full 10 hours off duty following 14 hours on duty prior to beginning a new driving period. The drivers must comply with all other requirements of 49 CFR part 395.

Preemption

During the period the exemption is in effect, no state shall enforce any law or regulation that conflicts with or is inconsistent with this exemption with respect to a person operating under the exemption.

Notification to FMCSA

Each company, firm and entity listed in the appendix to this notice must notify FMCSA within 5 business days of any of the following:

1. An accident (as defined in 49 CFR 390.5), involving any of the motor carrier's CMVs, operating under the terms of 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 closest to the accident scene,

c. Driver's name and 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, and

h. Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations.

2. The total driving time and the total on-duty time period prior to the accident.

Termination

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. FMCSA will immediately revoke the exemption for failure to comply with its terms and conditions. Each motor carrier and each driver may be subject to periodic monitoring by FMCSA during the period of the exemption.

Issued on: April 20, 2007

Rose A. McMurray,

Chief Safety Officer, Assistant Administrator.

Appendix to Notice of Renewal of American Pyrotechnics Association (APA) Exemption from the 14-Hour Rule during Independence Day Celebrations

List of Apa Members Covered by Exemption From 14 Hour Rule in Hours of Service for Drivers Regulation

Company name

Address

Address 2

DOT #

Add Fire, Inc

11370 NE 8 Ave

Miami, FL 33161

481513

Alonzo Fireworks Display, Inc

12 County Rd 75

Mechanicsville, NY 12118

420639

American Promotional Events, Inc—West/TNT Fireworks

555 North Gilbert Street

Fullerton, CA 92833

564520

American Promotional Events of Texas, LP/TNT Fireworks

1101 114th Street

Lubbock, TX 79423

1144209

American Promotional Events, Inc—East Coast/TNT Fireworks

4511 Helton Drive

Florence, AL 35630

0121384

American Promotional Events—Northwest/TNT Fireworks

2120 Milwaukee Way

Tacoma, WA 98421

013086

Arrowhead Fireworks Co., Inc

3625 Normanna Rd

Duluth, MN 55803

125673

Atlas Enterprises Inc

6601 Nine Mile Azle Rd

Fort Worth, TX 76135

0116910

Atomic Fireworks

3660 W. Sunshine

Springfield, MO

130200

Atomic Fireworks

999 Sumter Highway

Bishopville, SC

446835

Atomic Fireworks

P.O. Box 190

South Pittsburg, TN

095166

B.J. Alan Company

555 Martin Luther King, Jr Blvd

Youngstown, OH 44502-1102

262140

Central States Fireworks, Inc

18034 Kincaid Street

Athens, IL 62613

1022659

Ches-Lee Enterprises, Inc

P.O. Box 64

Bastrop, TX 78602

533725

Colonial Fireworks Company

5225 Telegraph Road

Toledo, OH 43612

177274

Falcon Fireworks

3411 Courthouse Road

Guyton, GA 31312

1037954

Fireworks & Stage FX America

P.O. Box 488

Lakeside, CA 92040

908304

Fireworks by Grucci, Inc

1 Grucci Lane

Brookhaven, NY 11719

324490

Fireworks of Alabama

3325 Poplar Lane

Adamsville, AL 35005

579933

Fireworks Productions, Inc

P.O. Box 294

Maryland Line, MD

464796

Garden State Fireworks, Inc

383 Carlton Road

Newington, NJ 07946

435878

Galaxy Fireworks, Inc

204 E MLK Jr Blvd

Tampa, FL 33603

809731

Gateway Fireworks Displays

P.O. Box 39327

St Louis, MO 63139

1325301

Global Pyrotechnics Solutions, Inc

10476 Sunset Drive

Dittmer, MO 63023

1183902

Hamburg Fireworks Display Inc

4300 Logan Lancaster Rd

Lancaster, OH

395079

Ingram Enterprises dba Fireworks over America

6597 W Independence Drive

Springfield, MO 65802

0268419

International Fireworks Mfg. Co.

242 Sycamore Road

Douglasville, PA 19518

385065

Island Fireworks Company

N735 825th St

Hager City, WI 54014

414583

J&M Displays, Inc

18064 170th Ave

Yarmouth, IA 52660

377461

Jake's Fireworks, Inc

2311 A West 4th St

Pittsburg, KS 66762

449599

July 4 Ever

382 Rock Cut Rd

Walden, NY 12586

803422

Kellner's Fireworks Inc

478 Old Rte 8

Harrisville, PA

481553

Kuhn Fireworks Display Co.

2240 Homebrook Trail SW

Pequot Lakes, MN 56472

1057310

Lantis Fireworks and Lasers

P.O. Box 491

Draper, UT 84202

195428

Lantis Fireworks, Inc

130 Sodrac Dr

N Sioux City, DK 57049

534052

Legion Fireworks Co., Inc

10 Legion Lane

Wappingers Falls, NY 12590

554391

Lew's Fireworks, Inc

45788 U.S. Hwy 212

Watertown, SD 57201

333792

Mad Bomber/Planet Productions

P.O. Box 418

Kingsbury, IN 46345

777176

Melrose Display Company

7620 Little Mount Rd

Taylorsville, KY 40071

434586

Melrose North Pyrotechnics

9405 River Rd SE

Clear Lake, MN 55319

434586

Melrose Pyrotechnics, Inc

P.O. Box 302

Kingsbury, IN 46345

434586

Melrose South Pyrotechnics

4652 Catawga River Rd

Catawga, SC 29704

545033

Montana Display Inc

9480 Inspiration Drive

Missoula, MT 59808

1030231

Precocious Pyrotechnics, Inc

4420-278th Ave NW

Belgrade, MN 56312

435931

Premier Pyrotechnics Inc

25255 Hwy K

Richland, MO 65556

0853895

Pyro Engineering Inc, dba/Bay Fireworks

110 Route 110, Suite 102

Huntington Station, NY 11746

530262

Pyro Shows Inc

701 W. Central Ave

LaFollette, TN 37766

456818

Pyro Spectaculars, Inc

3196 N Locust Ave

Rialto, CA 92376

029329

Pyro Services, Inc dba, Pyrotechnics by Lamb & Choice Express

P.O. Box 1931

Kilgore, TX 75663

1264631

Pyrotechnics by Presutti, Inc

P.O. Box 42

St Clairsville, OH 43950

51974

Pyrotecnico

302 Wilson Rd

New Castle, PA 16105

526749

Pyrotecnico of Louisiana, LLC

60 West Ct

Mandeville, LA 70471

548303

Red Rocket Fireworks Co. Inc

311 Evergreen

Strafford, MO 65757

239756

RES Specialty Pyrotechnics

21595 286th St

Belle Plaine, MN 56011

523981

Rich Brothers Company

700 S Marion Rd

Sioux Falls, SD 57106

001356

Rozzi's Famous Fireworks, Inc

11605 North Lebanon Rd

Loveland, OH 45140

0483686

Salish Fireworks

10041 S March Pt Rd

Anacortes, WA 98221

678702

Skypainter Fireworks Intl. Inc

1714 Prince Philip Street

Clearwater, FL 33755

1079555

Spielbauer Fireworks Co, Inc

220 Roselawn Blvd

Green Bay, WI 54301

046479

Stonebraker-Rocky Mountain Fireworks Co.

5650 Lowell Blvd, Unit E

Denver, CO 80221

0029845

Thunder Fireworks

5207-187th St E

Tacoma, WA 98446

463284

Vermont Fireworks Co., Inc/Northstar Fireworks Co., Inc

2235 Vermont Route 14 South

East Montpelier, VT 05651

310632

Wald & Co., Inc

P.O. Box 319

Greenwood, MO 64034-0319

087079

Walt Disney Entertainment

5700 Maple Road

Lake Buena Vista, FL 32830

148477

Western Enterprises, Inc

P.O. Box 160

Carrier, OK 73727

203517

Western Fireworks, Inc

14592 Ottaway Rd. NE

Aurora, OR 97002

838585

Winco Fireworks Int. LLC

1992 NW Hwy 50

Lone Jack, MO

259688

Wolverine Fireworks Display, Inc

205 W Seidlers

Kawkawlin, MI

376857

Young Explosives Corp

P.O. Box 18653

Rochester, NY

450304

Zambelli Fireworks MFG, Co., Inc

P.O. Box 1463

New Castle, PA 16103

033167

[FR Doc. E7-9841 Filed 5-21-07; 8:45 am]

BILLING CODE 4910-EX-P