Hours of Service of Drivers; American Pyrotechnics Association Application for an Exemption From the 14-Hour Rule During Independence Day Celebrations, 38242-38246 [05-13110]

Download as PDF 38242 Federal Register / Vol. 70, No. 126 / Friday, July 1, 2005 / Notices Branch Corridor. If a build alternative is selected, and if it is determined to be a viable project, TxDOT shall construct and operate the facility. Issues relative to the project include noise, archaeological sites, historic properties, socio-economic effects, changes to travel patterns, air quality, water quality, floodplains, and wetlands. Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, regional, and local agencies, and to organizations and persons who have previously expressed or are known to have interest in this proposed. In addition to public meetings, a future public hearing will be held. Public notice will be given of the time and place of the meetings and the hearing. The Draft EIS will be available for public and agency review and comments before the hearing. A public scoping meeting in an Open House format with no formal presentation will be conducted on Tuesday, July 26, 2005, between the hours of 4 p.m. and 8 p.m. at the Mesquite Convention Center and Rodeo Center located at 1700 Rodeo Drive, Mesquite, Texas 75149. This will be the first in a series of meetings to solicit public comments on the proposed action as part of the National Environmental Policy Act (NEPA) process. Persons interested in attending this meeting who have special communication or accommodation needs are encouraged to contact the local TxDOT Public Information Office at (214) 320–6100 at least two days prior to the meeting. Because the public meeting will be conducted in English, any request for language interpreters or other special communication needs should also be made at least two days prior to the public meeting. Every reasonable effort will be made to accommodate these needs. To ensure that the full range of issues related to this proposed action are addressed and all significant issues identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA at the address provided above. Additional project information may be obtained by visiting the project’s Web site at http:// www.theeastbranch.org. (Catalogue of Federal Domestic Assistance Programs Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation of VerDate jul<14>2003 18:11 Jun 30, 2005 Jkt 205001 Federal programs and activities apply to this program.) Salvador Deocampo, District Engineer (North), Austin, Texas. [FR Doc. 05–12988 Filed 6–30–05; 8:45 am] BILLING CODE 4910–22–M DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA–2005–21104] Hours of Service of Drivers; American Pyrotechnics Association Application for an Exemption From the 14-Hour Rule During Independence Day Celebrations Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Grant of application for exemption. AGENCY: SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) grants the American Pyrotechnics Association’s (APA) application for an exemption from the prohibition against driving a commercial motor vehicle (CMV) after the 14th hour of coming onduty. The exemption is applicable for a period beginning 7 days prior to, and 2 days immediately following Independence Day. Fireworks personnel who operate CMVs for the companies listed in this notice, in conjunction with staging fireworks shows celebrating Independence Day, are allowed to exclude off-duty and sleeper berth time of any length in the calculation of the 14-hours. However, drivers are not allowed to drive after accumulating a total of 14-hours of on-duty time, following 10 consecutive hours off duty, and continue to be subject to the 11hour driving time limits, and the 60and 70-hour weekly limits. After reviewing the comments received in response to the May 6, 2005, notice requesting public comment on the APA application, FMCSA has determined the exemption would achieve a level of safety equivalent to what would be provided by compliance with the 14hour rule as it applies to other drivers of property-carrying vehicles. DATES: The exemption is effective June 28, 2005, and is applicable from June 28 (12:01 a.m.) through July 6, 2005 (11:59 p.m.), and from June 28 (12:01 a.m.) through July 6, 2006 (11:59 p.m.). The exemption expires on July 7, 2006. ADDRESSES: Docket: For access to the docket to read background documents or comments received, go to http:// dms.dot.gov and/or Room PL–401 on PO 00000 Frm 00153 Fmt 4703 Sfmt 4703 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. Privacy Act: Anyone may search the electronic form of all comments received into any of DOT’s 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, or other entity). You may review DOT’s complete Privacy Act Statement in the Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also available at http://dms.dot.gov. FOR FURTHER INFORMATION CONTACT: Robert F. Schultz, Jr., Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, MCPSD, (202) 366–4009, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590–0001. SUPPLEMENTARY INFORMATION: Background Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105–178, 112 Stat. 107, 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. Under 49 CFR part 381, FMCSA must publish a notice of each exemption request in the Federal Register. 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. The agency must also provide an opportunity for public comment on the request. 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). 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. 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 E:\FR\FM\01JYN1.SGM 01JYN1 Federal Register / Vol. 70, No. 126 / Friday, July 1, 2005 / Notices granted. The notice must also specify the effective period of the exemption (up to two years), and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)). APA’s Application for an Exemption APA requested an exemption from FMCSA’s prohibition against drivers of property-carrying CMVs operating such vehicles after the 14th hour of coming on duty [49 CFR 395.3(a)(2)]. APA requested that fireworks personnel covered by the exemption be allowed to exclude off-duty and sleeper berth time of any length in 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 approximately 3,000 drivers responsible for operating about 3,000 commercial motor vehicles. A copy of the application for an exemption, which includes a list of all the motor carriers that would be covered by it, is included in the docket referenced at the beginning of this notice. APA, a trade association representing the domestic fireworks industry, argues that full compliance with the current hours-of-service 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 these companies. APA members are hired to conduct multiple fireworks shows in celebration of Independence Day, during a compressed timeframe. The drivers are trained pyrotechnicians, each holding a commercial driver’s license (CDL) with a hazardous materials endorsement. These drivers transport fireworks and equipment to remote locations to meet demanding schedules. APA indicated that under the previous hours-of-service requirements in effect prior to the implementation of FMCSA’s April 28, 2003, final rule (68 FR 22456), the pyrotechnicians could meet their schedules without exceeding the limits, and without experiencing any crashes or hazardous materials incidents. By contrast, under the new regulations, the pyrotechnicians cannot meet typical holiday schedules, and fireworks companies would be forced to hire a second driver for most trips. Or, fireworks companies would be forced to decrease significantly their engagements. APA argues both options are economically detrimental for its members, and would deny many VerDate jul<14>2003 18:11 Jun 30, 2005 Jkt 205001 Americans the primary component of their Independence Day celebration. Discussion of Public Comments On May 6, 2005, FMCSA requested public comment from all interested persons on the APA application for an exemption (70 FR 24160). The comment period ended on June 6, 2005. FMCSA received comments from five individuals (Steven L. Cox, George M. Florer, Debbie I. Keeler, Steve Reeves, Barb Sachau) and the Public Utilities Commission of Ohio (PUCO). All of the commenters were opposed to granting the exemption. Generally, commenters believe the 14hour provision of the hours-of-service requirements is a good rule based on sound reasoning because it prevents employers from extending the workday. Some of the commenters believe granting the APA exemption application would encourage other special interests groups to request the same exemption. Two commenters suggest the APA request is motivated for economic reasons. One of these commenters indicated the exemption would enable motor carriers to deliver fireworks to retail stores without complying with the hours-of-service rules. The other indicated that the exemption supports APA members’ goals of making more money. PUCO indicated that highway travel dangers increase around Independence Day. PUCO believes the days before and after Independence Day make up the third busiest highway travel period of the year surpassed only by travel around Thanksgiving and Christmas. PUCO argues that the level of traffic congestion during the holidays means there is less of a margin for driver error and a greater potential for crashes and injuries. PUCO considers Independence Day as a time to focus on highway safety through more rigorous enforcement of motor carrier safety regulations. The State agency believes the increased threat posed by the hazardous materials (fireworks) being transported by APA means that CMV drivers should be alert, and that enforcement of the 14-hour rule should be emphasized rather than diminished. FMCSA Response FMCSA understands the concerns raised by the commenters but has concluded that the 9-day exemption requested by APA is not likely to decrease safety. Pyrotechnicians rarely drive the full 11 hours allowed by the current regulations, but in the rush to prepare for Independence Day they may need to be on duty more than 14 consecutive PO 00000 Frm 00154 Fmt 4703 Sfmt 4703 38243 hours and to drive at the end of that tour of duty. Without an exemption, these pyrotechnician/drivers would be stranded, often with a CMV partially loaded with fireworks, at the site of a forthcoming shoot; conversely, the fireworks company could employ a second driver, operating on a later schedule, to return the vehicle to a secure location within the 14-hour limit. The first option poses certain risks to public safety and the second would significantly increase the costs and logistical complexity of a shoot. APA points out that ‘‘there were no accidents or incidents involving display personnel operating under the waiver’’ FMCSA granted APA members for Independence Day fireworks displays in 2004. The operational demands of this unique industry appear to minimize the risk of CMV crashes. In the last few days before the holiday, drivers spend their driving time transporting fireworks relatively short distances, from the nearest distribution point to the site of the shoot. Most of their on-duty time, however, is devoted to the intricate and potentially dangerous task of installing, wiring, and double-checking fireworks displays. According to APA, pyrotechnicians drive to the site of the shoot in the early morning and return late in the evening, thus avoiding much of the heavy traffic typical of the holiday. After setting up the fireworks display in daylight, in order to reduce the possibility of mistakes, the pyrotechnician/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, after the shoot, safer than would otherwise be expected. The caution typically exercised by pyrotechnicians handling explosives may also carry over into their driving style, minimizing the risk of crashes, though this is admittedly conjectural. In addition to driving at off-peak hours and having an opportunity for substantial rest periods during their tours 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. An opportunity for 8 consecutive hours of sleep should eliminate the possibility of cumulative fatigue the next day. Although FMCSA believes the 14-hour limit is generally conducive to safety, the current HOS regulations allow some kinds of short-haul drivers a 16-hour driving window once a week, providing certain conditions are met. The safety E:\FR\FM\01JYN1.SGM 01JYN1 38244 Federal Register / Vol. 70, No. 126 / Friday, July 1, 2005 / Notices record of these drivers does not appear to have suffered as a result of the 16hour provision. Because pyrotechnician/drivers operate like short-haul drivers (relatively little driving, a variety of work), FMCSA has concluded that the 9-day exemption requested by APA is not likely adversely to affect motor carrier safety. In response to concerns about the exemption being used to support the delivery of fireworks for retail outlets, FMCSA believes APA’s application accurately describes the reason the organization requested the exemption from the 14-hour rule. The exemption is intended to provide an alternative to the 14-hour provision for pyrotechnicians involved in the transportation and operation of fireworks for Independence Day shows. Neither the APA application, nor the terms and conditions associated with the exemption cover the transportation of fireworks to retail outlets to support consumer purchases of fireworks. The fireworks in question are for use by trained pyrotechnicians in fireworks shows, and are not intended for purchase by individual consumers. As for PUCO’s concerns, FMCSA believes that the mitigating factors discussed above are likely to ensure that the exemption granted today does not have a harmful effect on highway safety. In consideration of the public comments and the agency’s response to those comments, FMCSA grants the APA exemption. The drivers employed by the companies, firms, and entities listed in the appendix to this notice are granted relief from the requirements of 49 CFR 395.3(a)(2) under the terms and conditions listed below. 18:11 Jun 30, 2005 Period of the Exemption The exemption from the requirements of 49 CFR 395.3(a)(2) [the 14-hour rule] is effective June 28, 2005, and is applicable from June 28 (12:01 a.m.) through July 6, 2005 (11:59 p.m.), and from June 28 (12:01 a.m.) through July 6, 2006 (11:59 p.m.). The exemption expires on July 7, 2006. 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 FMCSA Decision VerDate jul<14>2003 Terms of the Exemption Jkt 205001 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 PO 00000 Frm 00155 Fmt 4703 Sfmt 4703 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 the exemption. Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.73. Issued on June 28, 2005. Annette M. Sandberg, Administrator. BILLING CODE 4910–EX–P E:\FR\FM\01JYN1.SGM 01JYN1 VerDate jul<14>2003 18:11 Jun 30, 2005 Jkt 205001 PO 00000 Frm 00156 Fmt 4703 Sfmt 4725 E:\FR\FM\01JYN1.SGM 01JYN1 38245 EN01JY05.053</GPH> Federal Register / Vol. 70, No. 126 / Friday, July 1, 2005 / Notices 38246 Federal Register / Vol. 70, No. 126 / Friday, July 1, 2005 / Notices BILLING CODE 4910–EX–C DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration [Docket: RSPA–98–4957] Request for Public Comments and Office of Management and Budget (OMB) Approval of an Existing Information Collection (2137–0584) Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Notice. SUMMARY: This notice seeks public comment on the need for PHMSA to collect paperwork information from state agencies that maintain programs to regulate pipelines. The purpose of the paperwork is to ensure that these states are properly monitoring the operations of pipeline operators in their states, and to determine Federal grant amounts for these states. This notice is published (pursuant to the Paperwork Reduction Act of 1995) to measure the need for the paperwork collection from these state agencies, to find ways to minimize the burden on states that must respond, to find ways to enhance the quality of 18:11 Jun 30, 2005 Jkt 205001 You may submit written comments to the docket by any of the following methods: • Mail: Dockets Facility, U.S. Department of Transportation, Room PL–401, 400 Seventh Street, SW, 20590– 0001. Anyone wanting confirmation of mailed comments must include a selfaddressed stamped postcard. • Hand delivery or courier: Room PL– 401, 400 Seventh Street, SW., Washington, DC. The Dockets Facility is open from 9 am to 5 pm, Monday through Friday, except Federal holidays. • Web site: Go to http://dms.dot.gov, click on ‘‘Comments/Submissions’’ and follow instructions at the site. All written comments should identify the docket number and notice number stated in the heading of this notice. Docket access. For copies of this notice or other material in the docket, you may contact the Dockets Facility by phone (202–366–9329) or visit the facility at the above street address. For Web access to the dockets to read and ADDRESSES: AGENCY: VerDate jul<14>2003 information collected, and to verify the accuracy of the PHMSA’s estimate of the burden (measured in work hours) on the states. This notice also seeks approval from the Office of Management and Budget to renew the existing approval of this paperwork collection. DATES: Comments on this notice must be received by August 1, 2005 to assure consideration. PO 00000 Frm 00157 Fmt 4703 Sfmt 4703 download filed material, go to http:// dms.dot.gov/search. Then type in the last four digits of the docket number shown in the heading of this notice, and click on ‘‘Search.’’ Anyone can search the electronic form of all comments filed in any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted for an association, business, labor union, etc.). You may review DOT’s complete Privacy Act Statement in the April 11, 2000 issue of the Federal Register (65 FR 19477) or go to http://dms.dot.gov. Interested persons are invited to send comments regarding the burden estimated or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency’s functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden. FOR FURTHER INFORMATION CONTACT: Florence Hamn, Office of Pipeline Safety, PHMSA, DOT, 400 Seventh Street, SW., Washington, DC 20590 E:\FR\FM\01JYN1.SGM 01JYN1 EN01JY05.054</GPH> [FR Doc. 05–13110 Filed 6–28–05; 4:36 pm]

Agencies

[Federal Register Volume 70, Number 126 (Friday, July 1, 2005)]
[Notices]
[Pages 38242-38246]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13110]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2005-21104]


Hours of Service of Drivers; American Pyrotechnics Association 
Application for an Exemption From the 14-Hour Rule During Independence 
Day Celebrations

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

ACTION: Grant of application for exemption.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) grants 
the American Pyrotechnics Association's (APA) application for an 
exemption from the prohibition against driving a commercial motor 
vehicle (CMV) after the 14th hour of coming on-duty. The exemption is 
applicable for a period beginning 7 days prior to, and 2 days 
immediately following Independence Day. Fireworks personnel who operate 
CMVs for the companies listed in this notice, in conjunction with 
staging fireworks shows celebrating Independence Day, are allowed to 
exclude off-duty and sleeper berth time of any length in the 
calculation of the 14-hours. However, drivers are not allowed to drive 
after accumulating a total of 14-hours of on-duty time, following 10 
consecutive hours off duty, and continue to be subject to the 11-hour 
driving time limits, and the 60- and 70-hour weekly limits. After 
reviewing the comments received in response to the May 6, 2005, notice 
requesting public comment on the APA application, FMCSA has determined 
the exemption would achieve a level of safety equivalent to what would 
be provided by compliance with the 14-hour rule as it applies to other 
drivers of property-carrying vehicles.

DATES: The exemption is effective June 28, 2005, and is applicable from 
June 28 (12:01 a.m.) through July 6, 2005 (11:59 p.m.), and from June 
28 (12:01 a.m.) through July 6, 2006 (11:59 p.m.). The exemption 
expires on July 7, 2006.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments received, go to http://dms.dot.gov and/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.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's 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, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also 
available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Robert F. Schultz, Jr., Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations, MC-PSD, (202) 366-4009, Federal Motor Carrier Safety 
Administration, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Background

    Section 4007 of the Transportation Equity Act for the 21st Century 
(Pub. L. 105-178, 112 Stat. 107, 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. Under 49 CFR part 381, FMCSA must publish a notice of 
each exemption request in the Federal Register. 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. The agency must also provide an opportunity for public 
comment on the request.
    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). 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. 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

[[Page 38243]]

granted. The notice must also specify the effective period of the 
exemption (up to two years), and explain the terms and conditions of 
the exemption. The exemption may be renewed (49 CFR 381.300(b)).

APA's Application for an Exemption

    APA requested an exemption from FMCSA's prohibition against drivers 
of property-carrying CMVs operating such vehicles after the 14th hour 
of coming on duty [49 CFR 395.3(a)(2)]. APA requested that fireworks 
personnel covered by the exemption be allowed to exclude off-duty and 
sleeper berth time of any length in 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 approximately 3,000 drivers 
responsible for operating about 3,000 commercial motor vehicles. A copy 
of the application for an exemption, which includes a list of all the 
motor carriers that would be covered by it, is included in the docket 
referenced at the beginning of this notice.
    APA, a trade association representing the domestic fireworks 
industry, argues that full compliance with the current hours-of-service 
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 these companies. APA members are hired to conduct multiple 
fireworks shows in celebration of Independence Day, during a compressed 
timeframe.
    The drivers are trained pyrotechnicians, each holding a commercial 
driver's license (CDL) with a hazardous materials endorsement. These 
drivers transport fireworks and equipment to remote locations to meet 
demanding schedules. APA indicated that under the previous hours-of-
service requirements in effect prior to the implementation of FMCSA's 
April 28, 2003, final rule (68 FR 22456), the pyrotechnicians could 
meet their schedules without exceeding the limits, and without 
experiencing any crashes or hazardous materials incidents. By contrast, 
under the new regulations, the pyrotechnicians cannot meet typical 
holiday schedules, and fireworks companies would be forced to hire a 
second driver for most trips. Or, fireworks companies would be forced 
to decrease significantly 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.

Discussion of Public Comments

    On May 6, 2005, FMCSA requested public comment from all interested 
persons on the APA application for an exemption (70 FR 24160). The 
comment period ended on June 6, 2005. FMCSA received comments from five 
individuals (Steven L. Cox, George M. Florer, Debbie I. Keeler, Steve 
Reeves, Barb Sachau) and the Public Utilities Commission of Ohio 
(PUCO). All of the commenters were opposed to granting the exemption.
    Generally, commenters believe the 14-hour provision of the hours-
of-service requirements is a good rule based on sound reasoning because 
it prevents employers from extending the workday. Some of the 
commenters believe granting the APA exemption application would 
encourage other special interests groups to request the same exemption.
    Two commenters suggest the APA request is motivated for economic 
reasons. One of these commenters indicated the exemption would enable 
motor carriers to deliver fireworks to retail stores without complying 
with the hours-of-service rules. The other indicated that the exemption 
supports APA members' goals of making more money.
    PUCO indicated that highway travel dangers increase around 
Independence Day. PUCO believes the days before and after Independence 
Day make up the third busiest highway travel period of the year 
surpassed only by travel around Thanksgiving and Christmas. PUCO argues 
that the level of traffic congestion during the holidays means there is 
less of a margin for driver error and a greater potential for crashes 
and injuries. PUCO considers Independence Day as a time to focus on 
highway safety through more rigorous enforcement of motor carrier 
safety regulations. The State agency believes the increased threat 
posed by the hazardous materials (fireworks) being transported by APA 
means that CMV drivers should be alert, and that enforcement of the 14-
hour rule should be emphasized rather than diminished.

FMCSA Response

    FMCSA understands the concerns raised by the commenters but has 
concluded that the 9-day exemption requested by APA is not likely to 
decrease safety.
    Pyrotechnicians rarely drive the full 11 hours allowed by the 
current regulations, but in the rush to prepare for Independence Day 
they may need to be on duty more than 14 consecutive hours and to drive 
at the end of that tour of duty. Without an exemption, these 
pyrotechnician/drivers would be stranded, often with a CMV partially 
loaded with fireworks, at the site of a forthcoming shoot; conversely, 
the fireworks company could employ a second driver, operating on a 
later schedule, to return the vehicle to a secure location within the 
14-hour limit. The first option poses certain risks to public safety 
and the second would significantly increase the costs and logistical 
complexity of a shoot.
    APA points out that ``there were no accidents or incidents 
involving display personnel operating under the waiver'' FMCSA granted 
APA members for Independence Day fireworks displays in 2004. The 
operational demands of this unique industry appear to minimize the risk 
of CMV crashes. In the last few days before the holiday, drivers spend 
their driving time transporting fireworks relatively short distances, 
from the nearest distribution point to the site of the shoot. Most of 
their on-duty time, however, is devoted to the intricate and 
potentially dangerous task of installing, wiring, and double-checking 
fireworks displays. According to APA, pyrotechnicians drive to the site 
of the shoot in the early morning and return late in the evening, thus 
avoiding much of the heavy traffic typical of the holiday. After 
setting up the fireworks display in daylight, in order to reduce the 
possibility of mistakes, the pyrotechnician/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, after the shoot, safer than would 
otherwise be expected. The caution typically exercised by 
pyrotechnicians handling explosives may also carry over into their 
driving style, minimizing the risk of crashes, though this is 
admittedly conjectural.
    In addition to driving at off-peak hours and having an opportunity 
for substantial rest periods during their tours 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. An opportunity for 8 consecutive 
hours of sleep should eliminate the possibility of cumulative fatigue 
the next day. Although FMCSA believes the 14-hour limit is generally 
conducive to safety, the current HOS regulations allow some kinds of 
short-haul drivers a 16-hour driving window once a week, providing 
certain conditions are met. The safety

[[Page 38244]]

record of these drivers does not appear to have suffered as a result of 
the 16-hour provision. Because pyrotechnician/drivers operate like 
short-haul drivers (relatively little driving, a variety of work), 
FMCSA has concluded that the 9-day exemption requested by APA is not 
likely adversely to affect motor carrier safety.
    In response to concerns about the exemption being used to support 
the delivery of fireworks for retail outlets, FMCSA believes APA's 
application accurately describes the reason the organization requested 
the exemption from the 14-hour rule. The exemption is intended to 
provide an alternative to the 14-hour provision for pyrotechnicians 
involved in the transportation and operation of fireworks for 
Independence Day shows. Neither the APA application, nor the terms and 
conditions associated with the exemption cover the transportation of 
fireworks to retail outlets to support consumer purchases of fireworks. 
The fireworks in question are for use by trained pyrotechnicians in 
fireworks shows, and are not intended for purchase by individual 
consumers.
    As for PUCO's concerns, FMCSA believes that the mitigating factors 
discussed above are likely to ensure that the exemption granted today 
does not have a harmful effect on highway safety.

FMCSA Decision

    In consideration of the public comments and the agency's response 
to those comments, FMCSA grants the APA exemption. The drivers employed 
by the companies, firms, and entities listed in the appendix to this 
notice are granted relief from the requirements of 49 CFR 395.3(a)(2) 
under the terms and conditions listed below.

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, 2005, and is applicable from June 28 
(12:01 a.m.) through July 6, 2005 (11:59 p.m.), and from June 28 (12:01 
a.m.) through July 6, 2006 (11:59 p.m.). The exemption expires on July 
7, 2006.

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 the 
exemption.

    Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.73.

    Issued on June 28, 2005.
Annette M. Sandberg,
Administrator.
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[FR Doc. 05-13110 Filed 6-28-05; 4:36 pm]
BILLING CODE 4910-EX-C