Hours of Service (HOS) of Drivers; American Pyrotechnics Association (APA); Granting of Exemption From the 14-Hour Rule |
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
5 July 2016
[Federal Register Volume 81, Number 128 (Tuesday, July 5, 2016)]
[Notices]
[Pages 43701-43705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15797]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2007-28043]
Hours of Service (HOS) of Drivers; American Pyrotechnics
Association (APA); Granting of Exemption From the 14-Hour Rule
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: FMCSA announces the granting of an exemption for 51 member
companies of the American Pyrotechnics Association (APA) from the
hours-of-service (HOS) regulation prohibiting drivers of commercial
motor vehicles (CMVs) from driving after the 14th hour after coming on
duty. Fifty-one APA members currently hold such exemptions. 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 HOS exemptions in effect on the date of enactment of that Act to 5
years from the date of issuance. Because the FAST Act also authorized
new exemptions for a period of up to 5 years, the Agency grants 4-year
exemptions to 4 additional fireworks companies, ensuring that all 51
exemptions will terminate on July 8, 2020. FMCSA has determined that
the terms and conditions of the exemption ensure a level of safety
equivalent to, or greater than, the level of safety achieved without
the exemption.
DATES: These exemptions from 49 CFR 395.3(a)(2) are effective from June
28 through July 8, at 11:59 p.m. local time, each year through 2020.
ADDRESSES:
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 Federal Docket Management System
(FDMS) is available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments
[[Page 43702]]
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
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 [section 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. FMCSA announced the
extension of the HOS fireworks exemption in a Federal Register notice
published on May 9, 2016 [81 FR 28115].
III. 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 new
exemptions for four carriers and discontinuance of the exemptions for
four carriers,\1\ maintaining the total at 51. As mentioned above, the
51 exemptions granted to APA members in 2015 (now reduced to 47
exemptions) were 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 will also 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 APA
companies that operated under the 2015 exemption, the 4 additional
companies would be subject to all of the terms and conditions of the
exemption.
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\1\ Colonial Fireworks, DOT 177274; Fireworks West
Internationale, DOT 245423; USA Halloween Planet Inc. dba USA
Fireworks, DOT 725457; Western Fireworks Inc., DOT 838585.
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The original 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
members are trained pyro-technicians 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
four 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 four
carriers seeking an exemption for the first time, are listed in an
appendix to this notice. The four 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.
IV. 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
[[Page 43703]]
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 unused fireworks (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 five business days of any accident (as defined in 49 CFR
390.5) involving the operation of any of 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 asserted 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 drivers of property-carrying CMVs.
V. Public Comments
On May 9, 2016, FMCSA published notice of this application and
requested public comments (81 FR 28115). Two comments were submitted,
both opposing the exemption. The first was from an individual who
objected to the exemption in principle, stating ``I find it
hypocritical of the FMCSA to consider exemptions to the hours of
service regulations for any special interests.'' The second comment,
from the Advocates for Highway and Auto Safety (Advocates), listed
objections to 19 of the 51 carriers. Of these 19, two were among the
four carriers proposed to be added to this exemption. In most cases,
Advocates pointed out the carrier had out-of-service (OOS) rates well
above the national averages. Advocates also described violations that
were found during roadside inspections of the carriers. Further, they
asserted that FMCSA had not conducted thorough safety-record checks of
the carriers because the OOS rates and inspection violations were not
mentioned in the May 9, 2016, Federal Register notice (81 FR 28115).
FMCSA Response
Section 5206(b)(2)(A) of the FAST Act extended HOS exemptions in
effect on the date of enactment ``for a period of 5 years from the date
such exemption was granted.'' Therefore, the exemptions of the 47
carriers that were included in the previous exemption period have been
statutorily extended until July 8, 2020 [81 FR 28115].
Prior to the time exemption applications are announced in the
Federal Register, FMCSA checks basic elements of safety records for any
factors that would disqualify the carrier, such as being under an
Imminent Hazard Order. Other elements of the safety records are checked
during the comment period of the notice. The information provided by
Advocates for each carrier was also identified by FMCSA during the
comment period and has been considered in this final determination for
the four new applicant-carriers.
With regard to safety statistics, none of the 51 carriers granted
exemptions in 2015 (which were extended by the FAST Act) or the 4
carriers proposed for exemption in 2016, was under an OOS or Imminent
Hazard Order, had any alerts in the Safety Management System (SMS), or
was under investigation by the Pipeline and Hazardous Materials Safety
Administration. All had ``satisfactory'' safety ratings based on
compliance reviews, and all had valid Hazardous Materials Safety
Permits. A few ``acute critical'' violations attributed to 3 of the
carriers occurred months after the Independence Day holiday, when the
carriers were not operating under the exemption. Because of the small
numbers of inspections on record for most of these carriers, the OOS
rates cited by Advocates do not constitute a statistically reliable
basis for a comparison with national averages. For example, a carrier
having only three inspections, one of which included a driver OOS
violation, would have a driver OOS rate of 33% compared to the national
average of approximately 5%. Under those circumstances, FMCSA would not
consider the apparent high OOS rate to be particularly significant.
Carrier Pyrotecnico LLC, USDOT 548303, was identified as not having
a valid registration with FMCSA. However, investigation of the
carrier's MCS-150B registration documents indicated that the carrier's
officials had mistakenly used the same USDOT number when intending to
apply for new registration of a different carrier. The carrier is
reportedly undertaking a correction of the records. The Agency
considers Pyrotecnico LLC, USDOT 526749, to be registered and included
in the exemptions extended by the FAST Act.
In light of the above, FMCSA believes that the fireworks carriers
previously granted HOS exemptions remain likely, as before, to achieve
a level of safety equivalent to or greater than the level that
compliance with the 14-hour rule would ensure. Similarly, the Agency
has concluded that the 4 APA members applying for the same HOS
exemption would likely meet the same standard and has decided to grant
them a 4-year exemption from the 14-hour rule.
VI. Terms and Conditions of the Exemption
Period of the Exemption
The exemption from 49 CFR 395.3(a)(2) is effective from June 28
through July 8, at 11:59 p.m. local time, each year through 2020 for
the 51 carriers identified in this notice.
Terms and Conditions of the Exemption
The exemptions from 49 CFR 395.3(a)(2) will be limited to drivers
employed by the 47 motor carriers already covered by the exemption, and
drivers employed by 4 motor carriers that were not included for the
2015 period. The four carriers are identified by an asterisk in the
appendix table of this notice. 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 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 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. Drivers operating under the exemption must carry a copy
of this Federal Register notice or equivalent signed letter from FMCSA,
and provide it to enforcement officers upon request. The carriers and
drivers must comply with all other applicable requirements of the
Federal Motor Carrier Safety
[[Page 43704]]
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 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.
The FMCSA will immediately revoke the exemption for failure to comply
with its terms and conditions. Exempt motor carriers and drivers are
subject to FMCSA monitoring while operating under this exemption.
Issued on: June 27, 2016.
T.F. Scott Darling, III,
Acting Administrator.
Appendix to Notice of Application for Approval of Motor Carriers To Utilize American Pyrotechnics Association's
(APA) Exemption From the 14-Hour Rule During 2016 Independence Day Celebrations
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Motor carrier Street address City, state, zip code DOT No.
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1. American Fireworks Company........... 7041 Darrow Road.......... Hudson, OH 44236.......... 103972
2. American Fireworks Display, LLC...... P.O. Box 980.............. Oxford, NY 13830.......... 2115608
3. AM Pyrotechnics, LLC................. 2429 East 535th Rd........ Buffalo, MO 65622......... 1034961
4. Arthur Rozzi Pyrotechnics............ 6607 Red Hawk Ct.......... Maineville, OH 45039...... 2008107
5. Atlas PyroVision Entertainment Group, 136 Old Sharon Rd......... Jaffrey, NH 03452......... 789777
Inc.
6. Central States Fireworks, Inc........ 18034 Kincaid Street...... Athens, IL 62613.......... 1022659
7. East Coast Pyrotechnics, Inc......... 4652 Catawba River Rd..... Catawba, SC 29704......... 545033
8. Entertainment Fireworks, Inc......... 13313 Reeder Road SW...... Tenino, WA 98589.......... 680942
9. Falcon Fireworks..................... 3411 Courthouse Road...... Guyton, GA 31312.......... 1037954
10. Fireworks & Stage FX America........ 12650 Hwy 67S. Suite B.... Lakeside, CA 92040........ 908304
11. Fireworks by Grucci, Inc............ 20 Pinehurst Drive........ Bellport, NY 11713........ 324490
12. * Flashing Thunder Fireworks dba 700 E Van Buren Street.... Mitchell, IA 50461........ 420413
Legal Aluminum King Mtg.
13. J&J Computing dba Fireworks 174 Route 17 North........ Rochelle Park, NJ 07662... 2064141
Extravaganza.
14. Gateway Fireworks Displays.......... P.O. Box 39327............ St Louis, MO 63139........ 1325301
15. Great Lakes Fireworks............... 24805 Marine.............. Eastpointe, MI 48021...... 1011216
16. Hamburg Fireworks Display, Inc...... 2240 Horns Mill Road SE... Lancaster, OH............. 395079
17. Hawaii Explosives & Pyrotechnics, 17-7850 N. Kulani Road.... Mountain View, HI 96771... 1375918
Inc.
18. Hollywood Pyrotechnics, Inc......... 1567 Antler Point......... Eagan, MN 55122........... 1061068
19. Homeland Fireworks, Inc............. P.O. Box 7................ Jamieson, OR 97909........ 1377525
20. Island Fireworks Co., Inc........... N1597 County Rd VV........ Hager City, WI 54014...... 414583
21. J&M Displays, Inc................... 18064 170th Ave........... Yarmouth, IA 52660........ 377461
22. Lantis Fireworks, Inc............... 130 Sodrac Dr., Box 229... N. Sioux City, SD 57049... 534052
23. Legion Fireworks Co., Inc........... 10 Legion Lane............ Wappingers Falls, NY 12590 554391
24. Miand Inc. dba Planet Productions P.O. Box 294, 3999 Hupp Kingsbury, IN 46345....... 777176
(Mad Bomber). Road.
25. Martin & Ware Inc. dba Pyro City P.P. Box 322.............. Hallowell, ME 04347....... 734974
Maine & Central Maine Pyrotechnics.
26. Melrose Pyrotechnics, Inc........... 1 Kinsgubury Industrial Kingsbury, IN 46345....... 434586
Park.
27. Precocious Pyrotechnics, Inc........ 4420-278th Ave NW......... Belgrade, MN 56312........ 435931
28. * Pyro Shows, Inc................... 115 N 1st Street.......... LaFollette, TN 37766...... 456818
29. Pyro Shows of Texas, Inc............ 6601 9 Mile Azle Rd....... Fort Worth, TX 76135...... 2432196
30. * Pyro Engineering Inc., dba/Bay 400 Broadhollow Rd. Ste #3 Farmindale, NY 11735...... 530262
Fireworks.
31. Pyro Spectaculars, Inc.............. 3196 N Locust Ave......... Rialto, CA 92376.......... 029329
32. Pyro Spectaculars North, Inc........ 5301 Lang Avenue.......... McClellan, CA 95652....... 1671438
33. Pyrotechnic Display, Inc............ 8450 W. St. Francis Rd.... Frankfort, IL 60423....... 1929883
34. Pyrotecnico (S. Vitale Pyrotechnic 302 Wilson Rd............. New Castle, PA 16105...... 526749
Industries, Inc.).
35. Pyrotecnico, LLC.................... 60 West Ct................ Mandeville, LA 70471...... 548303
36. Pyrotecnico FX...................... 6965 Speedway Blvd. Suite Las Vegas, NV 89115....... 1610728
115.
37. Rainbow Fireworks, Inc.............. 76 Plum Ave............... Inman, KS 67546........... 1139643
38. RES Specialty Pyrotechnics.......... 21595 286th St............ Belle Plaine, MN 56011.... 523981
39. Rozzi's Famous Fireworks, Inc....... 11605 North Lebanon Rd.... Loveland, OH 45140........ 0483686
40. * Sky Wonder Pyrotechnics, LLC...... 3626 CR 203............... Liverpool, TX 77577....... 1324580
41. Skyworks, Ltd....................... 13513 W. Carrier Rd....... Carrier, OK 73727......... 1421047
[[Page 43705]]
42. Sorgi American Fireworks Michigan, 935 Wales Ridge Rd........ Wales, MI 48027........... 2475727
LLC.
43. Spielbauer Fireworks Co, Inc........ 220 Roselawn Blvd......... Green Bay, WI 54301....... 046479
44. Spirit of 76........................ 6401 West Hwy 40.......... Columbia, MO 65202........ 2138948
45. Starfire Corporation................ 682 Cole Road............. Carrolltown, PA 15722..... 554645
46. Vermont Fireworks Co., Inc./ 2235 Vermont Route 14 East Montpelier, VT 05651. 310632
Northstar Fireworks Co., Inc.. South.
47. Western Display Fireworks, Ltd...... 10946 S. New Era Rd....... Canby, OR 97013........... 498941
48. Western Enterprises, Inc............ P.O. Box 160.............. Carrier, OK 73727......... 203517
49. Wolverine Fireworks Display, Inc.... 205 W Seidlers............ Kawkawlin, MI............. 376857
50. Young Explosives Corp............... P.O. Box 18653............ Rochester, NY 14618....... 450304
51. Zambelli Fireworks MFG, Co., Inc.... P.O. Box 1463............. New Castle, PA 16103...... 033167
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* Not included in 2015 list of approved carriers.
[FR Doc. 2016-15797 Filed 6-29-16; 4:15 pm]
BILLING CODE 4910-EX-P