Hours of Service (HOS) of Drivers; American Pyrotechnics Ass'n. (APA) Application for Exemption From the 14-Hour Rule; Extension of Current APA Exemption Period, 28115-28118 [2016-10820]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 81, Number 89 (Monday, May 9, 2016)]
[Notices]
[Pages 28115-28118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10820]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]


Hours of Service (HOS) of Drivers; American Pyrotechnics Ass'n. 
(APA) Application for Exemption From the 14-Hour Rule; Extension of 
Current APA Exemption Period

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

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

-----------------------------------------------------------------------

SUMMARY: The American Pyrotechnics Association (APA), on behalf of its 
member companies, has requested additions to and deletions from the 
list of motor carriers previously granted exemptions for the 2015 and 
2016 Independence Day fireworks shows. Fifty-one APA members currently 
hold such exemptions from the prohibition on driving commercial motor 
vehicles (CMVs) after the 14th hour after the driver comes on duty. APA 
requests discontinuance of the exemption for 4 carriers, and new 
exemptions for 4 carriers, with the total therefore remaining at 51. 
The ``Fixing America's Surface Transportation Act'' (FAST Act) extended 
the expiration date of hours-of-service (HOS) exemptions in effect on 
the date of enactment of the FAST Act to 5 years from the date of 
issuance. This notice therefore extends to July 8, 2020, the exemption 
for the 47 APA members approved in 2015 that wish to retain the 
exemption. Finally, FMCSA seeks comment on the applications of 4 APA 
members not previously exempted from the 14-hour rule. Because the FAST 
Act also authorized new exemptions for a period of up to 5 years, the 
Agency proposes to grant these 4 motor carriers exemptions that would 
run through July 8, 2020, and terminate at the same time as the other 
47 exemptions. The APA maintains that the terms and conditions of the 
limited exemption would ensure a level of safety equivalent to, or 
greater than, the level of safety achieved without the exemption.

DATES: June 8, 2016.

ADDRESSES: You may submit comments bearing the Federal Docket 
Management System (FDMS) Docket ID FMCSA-2007-28043 using any of the 
following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Each submission must include the Agency name and the docket number 
for this notice. Note that DOT posts all comments received without 
change to www.regulations.gov, including any personal information 
included in a comment. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE., 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line FDMS is available 24 hours each 
day, 365 days each year. If you want acknowledgment that we

[[Page 28116]]

received your comments, please include a self-addressed, stamped 
envelope or postcard or print the acknowledgement page that appears 
after submitting comments on-line.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
notice, contact Ms. Pearlie Robinson, FMCSA Driver and Carrier 
Operations Division; Office of Carrier, Driver and Vehicle Safety 
Standards; Telephone: (202) 366-4325. Email: MCPSD@dot.gov. If you have 
questions on viewing or submitting material to the docket, contact 
Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2007-28043), indicate the specific section of this 
document to which the comment applies, and provide a reason for 
suggestions or recommendations. You may submit your comments and 
material online or by fax, mail, or hand delivery, but please use only 
one of these means. FMCSA recommends that you include your name and a 
mailing address, an email address, or a phone number in the body of 
your document so the Agency can contact you if it has questions 
regarding your submission.
    To submit your comment online, go to www.regulations.gov and put 
the docket number, ``FMCSA-2007-28043'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Comment 
Now!'' button and type your comment into the text box in the following 
screen. Choose whether you are submitting your comment as an individual 
or on behalf of a third party and then submit. If you submit your 
comments by mail or hand delivery, submit them in an unbound format, no 
larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit comments by mail and would like to know that they 
reached the facility, please enclose a stamped, self-addressed postcard 
or envelope.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, ``FMCSA-2007-28043'' in the ``Keyword'' box and 
click ``Search.'' Next, click ``Open Docket Folder'' button and choose 
the document listed to review. If you do not have access to the 
Internet, you may view the docket online by visiting the Docket 
Management Facility in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor Carrier Safety 
Regulations. FMCSA must publish a notice of each exemption request in 
the Federal Register (49 CFR 381.315(a)). The Agency must provide the 
public an opportunity to inspect the information relevant to the 
application, including any safety analyses that have been conducted. 
The Agency must also provide an opportunity for public comment on the 
request.
    The Agency reviews the safety analyses and the public comments, and 
determines whether granting the exemption would likely achieve a level 
of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (49 CFR 381.305). The decision of 
the Agency must be published in the Federal Register (49 CFR 
381.315(b)) with the reason for the grant or denial, and, if granted, 
the specific person or class of persons receiving the exemption, and 
the regulatory provision or provisions from which exemption is granted. 
The notice must also specify the effective period of the exemption, and 
explain its terms and conditions. The exemption may be renewed (49 CFR 
381.300(b)).
    Section 5206(a)(3) of the FAST Act amended 49 U.S.C. 31315 to 
permit FMCSA to grant exemptions for up to 5 years from the date of 
issuance, instead of the previous two years [Sec.  31315(b)(2)]. This 
statutory provision will be codified in 49 CFR part 381 in a 
forthcoming rulemaking. Section 5206(b)(2)(A) of the FAST Act also 
extended all HOS exemptions in effect on the date of enactment to a 
period of 5 years from the date of issuance.

APA Application for Exemption

    The HOS rule in 49 CFR 395.3(a)(2) prohibits the driver of a 
property-carrying CMV from driving after the 14th hour after coming on 
duty following 10 consecutive hours off duty. The APA, a trade 
association representing the domestic fireworks industry, was granted 
an exemption for 51 member companies for the 2015 and 2016 Independence 
Day periods [80 FR 37040, June 29, 2015]. APA has requested 
discontinuing the exemptions for 4 carriers,\1\ and adding 4 new 
carriers, maintaining the total at 51. The 51 exemptions granted to APA 
members in 2015 (now reduced to 47 exemptions) are extended, pursuant 
to section 5206(b)(2)(A) of the FAST Act, through the annual 
Independence Day periods ending on July 8, 2020. The exemptions for the 
4 new APA carriers, if granted, would expire on July 8, 2020. Although 
this is less than the 5-year exemption period authorized by 49 U.S.C. 
31315(b)(2), as amended by section 5206(a)(3) of the FAST Act, FMCSA 
believes that the interests of the APA members and the Agency would 
best be served by harmonizing, as far as possible, the expiration dates 
of all such fireworks-related exemptions. It should also be noted that 
section 5206(b)(2)(A) of the FAST Act extends HOS exemptions in effect 
on the date of enactment ``for a period of 5 years from the date such 
exemption was granted'' (emphasis added). FMCSA believes that the 
intent of the statute was to extend the effective period of an 
exemption from 2 to 5 years, on the assumption that exemptions begin 
upon issuance and remain in effect (in most cases) for 2 consecutive 
years. Since the 2015 fireworks exemption involved 2 separate periods, 
both ending after ``the date such exemption was granted,'' the Agency 
believes the FAST Act amendment is best interpreted as extending the 
end date of the fireworks exemption--namely July 8 of each year--
through 2020. Like the other 47 member-companies that operated under 
the 2015 exemption, the 4 additional member companies would be subject 
to all of the terms and conditions of the exemption.
---------------------------------------------------------------------------

    \1\ Colonial Fireworks, DOT 177274; Fireworks West 
Internationale, DOT 245423; USA Halloween Planet Inc. dba USA 
Fireworks, DOT 725457; Western Fireworks Inc., DOT 838585.
---------------------------------------------------------------------------

    The initial APA application for relief from the 14-hour rule was 
submitted in 2004; a copy is in the docket. That application fully 
describes the nature of the pyrotechnic operations of the CMV drivers 
during a typical Independence Day period.
    As stated in the 2004 request, the CMV drivers employed by APA 
member companies are trained pyro-technicians

[[Page 28117]]

who hold commercial driver's licenses (CDLs) with hazardous materials 
(HM) endorsements. They transport fireworks and related equipment by 
CMVs on a very demanding schedule during a brief Independence Day 
period, often to remote locations. After they arrive, the drivers are 
responsible for set-up and staging of the fireworks shows.
    The APA states that it is seeking an exemption for an additional 4 
member companies because compliance with the current 14-hour rule in 49 
CFR 395.3(a)(2) would impose a substantial economic hardship on 
numerous cities, towns and municipalities, as well as its member 
companies. To meet the demand for fireworks without the exemption, APA 
states that its member companies would be required to hire a second 
driver for most trips. The APA advises that the result would be a 
substantial increase in the cost of the fireworks shows--beyond the 
means of many of its members' customers--and that many Americans would 
be denied this important component of the celebration of Independence 
Day. The 47 APA member companies currently exempt, as well as the 4 
carriers seeking an exemption for the first time, are listed in an 
appendix to this notice. The 4 new carriers are identified with an 
asterisk. A copy of the request for the exemption is included in the 
docket referenced at the beginning of this notice.

Method To Ensure an Equivalent or Greater Level of Safety

    The APA believes that the new exemptions would not adversely affect 
the safety of the fireworks transportation provided by these motor 
carriers. According to APA, its member-companies have operated under 
this exemption for 10 previous Independence Day periods without a 
reported motor carrier safety incident. Moreover, it asserts, without 
the extra time provided by the exemption, safety would decline because 
APA drivers would be unable to return to their home base after each 
show. They would be forced to park the CMVs carrying HM 1.1G, 1.3G and 
1.4G products in areas less secure than the motor carrier's home base. 
As a condition of holding the exemption, each motor carrier would be 
required to notify FMCSA within 5 business days of any accident (as 
defined in 49 CFR 390.5) involving the operation of any its CMVs while 
under this exemption. To date, FMCSA has received no accident 
notifications, nor is the Agency aware of any accidents reportable 
under terms of the prior APA exemptions.
    In its exemption request, APA asserts that the operational demands 
of this unique industry minimize the risks of CMV crashes. In the last 
few days before July 4, these drivers transport fireworks over 
relatively short routes from distribution points to the site of the 
fireworks display, and normally do so in the early morning when traffic 
is light. At the site, they spend considerable time installing, wiring, 
and safety-checking the fireworks displays, followed by several hours 
off duty in the late afternoon and early evening prior to the event. 
During this time, the drivers are able to rest and nap, thereby 
reducing or eliminating the fatigue accumulated during the day. Before 
beginning another duty day, these drivers must take 10 consecutive 
hours off duty, the same as other CMV drivers.

Terms and Conditions of the Exemption

Period of the Exemption
    The requested exemption from 49 CFR 395.3(a)(2) would be effective 
from June 28 through July 8, at 11:59 p.m. local time, each year 
through 2020.
Terms and Conditions of the Exemption
    During the 2016 Independence Day period, the exemption from 49 CFR 
395.3(a)(2) would be limited to drivers employed by the 47 motor 
carriers already covered by the exemption, plus (if approved) the 4 
carriers now seeking an exemption. The four carriers that were not 
included for the 2015 period are identified by an asterisk. Section 
395.3(a)(2) prohibits a driver from driving a CMV after the 14th hour 
after coming on duty and does not permit off-duty periods to extend the 
14-hour limit. Drivers covered by this exemption would be able to 
exclude off-duty and sleeper-berth time of any length from the 
calculation of the 14-hour limit. This exemption would be contingent on 
each driver driving no more than 11 hours in the 14-hour period after 
coming on duty, as extended by any off-duty or sleeper-berth time in 
accordance with this exception. The exemption would be further 
contingent on each driver having a full 10 consecutive hours off duty 
following 14 hours on duty prior to beginning a new driving period. The 
carriers and drivers must comply with all other requirements of the 
Federal Motor Carrier Safety Regulations (49 CFR parts 350-399) and 
Hazardous Materials Regulations (49 CFR parts 105-180).
Preemption
    In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 
381.600, during the period this exemption is in effect, no State shall 
enforce any law or regulation applicable to interstate commerce that 
conflicts with or is inconsistent with this exemption with respect to a 
firm or person operating under the exemption. States may, but are not 
required to, adopt the same exemption with respect to operations in 
intrastate commerce.
FMCSA Notification
    Exempt motor carriers would be required to notify FMCSA within 5 
business days of any accidents (as defined by 49 CFR 390.5) involving 
the operation of any of their CMVs while under this exemption. The 
notification must include the following information:
    a. Name of the exemption: ``APA,''
    b. Date of the accident,
    c. City or town, and State, in which the accident occurred, or 
which is closest to the scene of the accident,
    d. Driver's name and driver's license number,
    e. Vehicle number and State license number,
    f. Number of individuals suffering physical injury,
    g. Number of fatalities,
    h. The police-reported cause of the accident,
    i. Whether the driver was cited for violation of any traffic laws, 
or motor carrier safety regulations, and
    j. The total driving time and the total on-duty time of the CMV 
driver at the time of the accident.
Termination
    The FMCSA does not believe the motor carriers and drivers covered 
by this exemption, if granted, would experience any deterioration of 
their safety record. However, should this occur, FMCSA would take all 
steps necessary to protect the public interest, including revocation of 
the exemption. The FMCSA will immediately revoke the exemption for 
failure to comply with its terms and conditions. Exempt motor carriers 
and drivers would be subject to FMCSA monitoring while operating under 
this exemption.

    Issued on: May 2, 2016.
Larry W. Minor,
Associate Administrator for Policy.

Appendix to Notice of APA Application for Exemption From the 14-Hour 
Rule During 2016-2020 Independence Day Celebrations; Extension of 
Current Exemption

[[Page 28118]]



------------------------------------------------------------------------
                                           City, state,
        Motor carrier    Street address      zip code         DOT No.
------------------------------------------------------------------------
1...  American          7041 Darrow      Hudson, OH               103972
       Fireworks         Road.            44236.
       Company.
2...  American          P.O. Box 980...  Oxford, NY              2115608
       Fireworks                          13830.
       Display, LLC.
3...  AM Pyrotechnics,  2429 East 535th  Buffalo, MO             1034961
       LLC.              Rd.              65622.
4...  Arthur Rozzi      6607 Red Hawk    Maineville, OH          2008107
       Pyrotechnics.     Ct.              45039.
5...  Atlas PyroVision  136 Old Sharon   Jaffrey, NH              789777
       Entertainment     Rd.              03452.
       Group, Inc.
6...  Central States    18034 Kincaid    Athens, IL              1022659
       Fireworks, Inc.   Street.          62613.
7...  East Coast        4652 Catawba     Catawba, SC              545033
       Pyrotechnics,     River Rd.        29704.
       Inc.
8...  Entertainment     13313 Reeder     Tenino, WA               680942
       Fireworks, Inc.   Road SW.         98589.
9...  Falcon Fireworks  3411 Courthouse  Guyton, GA              1037954
                         Road.            31312.
10..  Fireworks &       12650 Hwy 67S.   Lakeside, CA             908304
       Stage FX          Suite B.         92040.
       America.
11..  Fireworks by      20 Pinehurst     BellPort, NY             324490
       Grucci, Inc.      Drive.           11713.
12..  * Flashing        700 E Van Buren  Mitchell, IA             420413
       Thunder           Street.          50461.
       Fireworks dba
       Legal Aluminum
       King Mtg.
13..  J&J Computing     174 Route 17     Rochelle Park,          2064141
       dba Fireworks     North.           NJ 07662.
       Extravaganza.
14..  Gateway           P.O. Box 39327.  St Louis, MO            1325301
       Fireworks                          63139.
       Displays.
15..  Great Lakes       24805 Marine...  East Pointe, MI         1011216
       Fireworks.                         48021.
16..  Hamburg           2240 Horns Mill  Lancaster, OH..          395079
       Fireworks         Road SE.
       Display, Inc.
17..  Hawaii            17-7850 N.       Mountain View,          1375918
       Explosives &      Kulani Road.     HI 96771.
       Pyrotechnics,
       Inc.
18..  Hollywood         1567 Antler      Eagan, MN 55122         1061068
       Pyrotechnics,     Point.
       Inc.
19..  Homeland          P.O. Box 7.....  Jamieson, OR            1377525
       Fireworks, Inc.                    97909.
20..  Island Fireworks  N1597 County Rd  Hager City, WI           414583
       Co., Inc.         VV.              54014.
21..  J&M Displays,     18064 170th Ave  Yarmouth, IA             377461
       Inc.                               52660.
22..  Lantis            130 Sodrac Dr.,  N. Sioux City,           534052
       Fireworks, Inc.   Box 229.         SD 57049.
23..  Legion Fireworks  10 Legion Lane.  Wappingers               554391
       Co., Inc.                          Falls, NY
                                          12590.
24..  Miand Inc. dba    P.O. Box 294,    Kingsbury, IN            777176
       Planet            3999 Hupp Road   46345.
       Productions       R31.
       (Mad Bomber).
25..  Martin & Ware     P.P. Box 322...  Hallowell, ME            734974
       Inc. dba Pyro                      04347.
       City Maine &
       Central Maine
       Pyrotechnics.
26..  Melrose           1 Kinsgubury     Kingsbury, IN            434586
       Pyrotechnics,     Industrial       46345.
       Inc.              Park.
27..  Precocious        4420-278th Ave   Belgrade, MN             435931
       Pyrotechnics,     NW.              56312.
       Inc.
28..  * Pyro Shows,     115 N 1st        LaFollette, TN           456818
       Inc.              Street.          37766.
29..  Pyro Shows of     6601 9 Mile      Fort Worth, TX          2432196
       Texas, Inc.       Azle Rd.         76135.
30..  * Pyro            400 Broadhollow  Farmindale, NY           530262
       Engineering       Rd. Ste #3.      11735.
       Inc., dba/Bay
       Fireworks.
31..  Pyro              3196 N Locust    Rialto, CA               029329
       Spectaculars,     Ave.             92376.
       Inc.
32..  Pyro              5301 Lang        McClellan, CA           1671438
       Spectaculars      Avenue.          95652.
       North, Inc.
33..  Pyrotechnic       8450 W. St.      Frankfort, IL           1929883
       Display, Inc.     Francis Rd.      60423.
34..  Pyrotecnico (S.   302 Wilson Rd..  New Castle, PA           526749
       Vitale                             16105.
       Pyrotechnic
       Industries,
       Inc.).
35..  Pyrotecnico, LLC  60 West Ct.....  Mandeville, LA           548303
                                          70471.
36..  Pyrotecnico FX..  6965 Speedway    Las Vegas, NV           1610728
                         Blvd. Suite      89115.
                         115.
37..  Rainbow           76 Plum Ave....  Inman, KS 67546         1139643
       Fireworks, Inc.
38..  RES Specialty     21595 286th St.  Belle Plaine,            523981
       Pyrotechnics.                      MN 56011.
39..  Rozzi's Famous    11605 North      Loveland, OH            0483686
       Fireworks, Inc.   Lebanon Rd.      45140.
40..  * Sky Wonder      3626 CR 203....  Liverpool, TX           1324580
       Pyrotechnics,                      77577.
       LLC.
41..  Skyworks, Ltd...  13513 W.         Carrier, OK             1421047
                         Carrier Rd.      73727.
42..  Sorgi American    935 Wales Ridge  Wales, MI 48027         2475727
       Fireworks         Rd.
       Michigan, LLC.
43..  Spielbauer        220 Roselawn     Green Bay, WI            046479
       Fireworks Co,     Blvd.            54301.
       Inc.
44..  Spirit of 76....  6401 West Hwy    Columbia, MO            2138948
                         40.              65202.
45..  Starfire          682 Cole Road..  Carrolltown, PA          554645
       Corporation.                       15722.
46..  Vermont           2235 Vermont     East                     310632
       Fireworks Co.,    Route 14 South.  Montpelier, VT
       Inc./ Northstar                    05651.
       Fireworks Co.,
       Inc.
47..  Western Display   10946 S. New     Canby, OR 97013          498941
       Fireworks, Ltd.   Era Rd.
48..  Western           P.O. Box 160...  Carrier, OK              203517
       Enterprises,                       73727.
       Inc.
49..  Wolverine         205 W Seidlers.  Kawkawlin, MI..          376857
       Fireworks
       Display, Inc.
50..  Young Explosives  P.O. Box 18653.  Rochester, NY            450304
       Corp.                              14618.
51..  Zambelli          P.O. Box 1463..  New Castle, PA           033167
       Fireworks MFG,                     16103.
       Co., Inc.
------------------------------------------------------------------------
* New applicants for exemption

[FR Doc. 2016-10820 Filed 5-6-16; 8:45 am]
 BILLING CODE 4910-EX-P