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]
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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 https://
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
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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 https://
dms.dot.gov and/or Room PL–401 on
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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
https://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
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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
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18:11 Jun 30, 2005
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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
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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
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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
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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
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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 https://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.
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Frm 00157
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download filed material, go to https://
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 https://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
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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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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 https://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
