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Notice

Hours of Service (HOS) of Drivers; Granting of Exemption; American Pyrotechnics Association (APA)

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Information about this document as published in the Federal Register.

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AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of final disposition; granting of application for exemption.

SUMMARY:

FMCSA announces its decision to grant the American Pyrotechnics Association (APA) exemption for 14 member motor carriers from FMCSA's regulation that drivers of commercial motor vehicles (CMV) may not drive after the 14th hour after coming on duty.

DATES:

This exemption is effective during the periods of June 28, 2009, through July 8, 2009, and June 28, 2010, through July 8, 2010, inclusive.

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FOR FURTHER INFORMATION CONTACT:

Mr. Thomas L. Yager, Chief, FMCSA Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations; Telephone: 202-366-4325, E-mail: MCPSD@dot.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption from the hours of service (HOS) requirements in 49 CFR 395.3(a)(2) for up to two years if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption” (49 CFR 381.305(a)). APA, a trade association representing the domestic fireworks industry, applied for a limited exemption from the HOS rules on behalf of 14 of its member motor carriers for a eleven-day period surrounding Independence Day in 2009, and a similar period in 2010, as previously announced in the Federal Register (74 FR 24066, May 22, 2009). (On May 22, 2009, the Agency also renewed the identical exemption for 61 additional APA-member motor carriers (74 FR 24069)). A copy of this application for exemption is included in the docket referenced at the beginning of this notice, and a list of the 14 APA-member companies being exempted from 49 CFR 395.3(a)(2) is included as an Appendix to this notice.

The HOS rules prohibit a property-carrying CMV driver from driving after the 14th hour after coming on duty following 10 consecutive hours off duty (49 CFR 395.3(a)(2)). During the periods June 28—July 8, 2009, and June 28—July 8, 2010, inclusive, the companies named in the Appendix, and CMV drivers employed by them, will be exempt from section 395.3(a)(2) if they are operating in conjunction with the staging of fireworks shows celebrating Independence Day. These CMV drivers hold a commercial driver's license with hazardous materials endorsement. They are also trained pyrotechnicians. They transport fireworks, and set-up and stage fireworks shows.

The exemption permits CMV drivers engaged in these operations to exclude off-duty and sleeper-berth time of any length from the calculation of the 14-hour on-duty period. These drivers must continue to obtain 10 consecutive hours off duty prior to the 14-hour period, and observe the 11-hour driving time limit, as well as the 60- and 70-hour on-duty limits.

APA sought this exemption because compliance by its members with the current 14-hour rule would impose a substantial economic hardship on numerous cities, towns and municipalities, as well as its member companies, with regard to their Independence Day celebrations. APA maintains that the operational demands of this unique industry minimize the risk of CMV crashes. It also maintains that renewal of the exemption will not adversely affect the safety of the fireworks transportation provided by these motor carriers, and actually improve safety in the storage of hazardous materials.

Public Comment

On May 22, 2009, FMCSA published a notice in the Federal Register (74 FR 24066) announcing APA's application for exemption for these 14 member motor carriers, and requesting public comment. The comment period closed on June 8, 2009. There were no comments filed in response to the May 22, 2009, notice.

FMCSA Decision

The FMCSA decision to grant the request for exemption from 49 CFR 395.3(a)(2) is based on the merits of the application for exemption. The Agency believes that these APA operations, conducted under the terms and conditions of this limited exemption, will achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent the exemption. The identical limited exemption has been in effect during Independence Day periods since 2005 for designated APA-member motor carriers conducting these operations. There have been no reported crashes or incidents involving these carriers while operating under the 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 following terms and conditions:

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 from June 28 (12:01 a.m.) through July 8, 2009 (11:59 p.m.) and from June 28 (12:01 a.m.) through July 8, 2010 (11:59 p.m.).

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 provided a Start Printed Page 29267limited exemption from the requirements of 49 CFR 395.3(a)(2). This regulation 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. These drivers must continue to obtain 10 consecutive hours off duty prior to the 14-hour period, and remain subject to the 11-hour driving time limit, the 60- and 70-hour on-duty limits, and 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 (49 U.S.C. 31315(d)).

Notification to FMCSA

Under the exemption, each APA member company, firm and entity listed in the appendix to this notice must notify FMCSA within 5 business days of any 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,

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

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

Termination

FMCSA does not believe the motor carriers and drivers covered by this exemption will experience any deterioration of their safety record. However, should this occur, FMCSA will take all steps necessary to protect the public interest, including revocation of the exemption. FMCSA will immediately revoke the exemption for failure to comply with its terms and conditions. Each motor carrier and each driver may be subject to periodic monitoring by FMCSA during the period of the exemption.

Start Signature

Issued on: June 12, 2009.

Larry W. Minor,

Associate Administrator for Policy and Program Development.

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Appendix to the Notice of Application of American Pyrotechnics Association (APA) For a Limited HOS Exemption for 14 Motor Carriers during the 2009 and 2010 Independence Day Celebrations

Motor carrierAddressDOT #
1Alpha-Lee Enterprises, Inc.4111 FM 2351Friendswood, TX 775461324580
2American Fireworks Company7041 Darrow RoadHudson, OH 44236103972
3Atlas Pyrovision Productions, LLCP.O. Box 498Jaffrey, NH 03452789777
4Cartwright Fireworks, Inc.1608 Keely RoadFranklin, PA 16323882283
5DDT, LLC—All American Transport, LLC4503 E. 460Pryor, OK 743611606354
6Entertainment Fireworks, Inc.P.O. Box 7160Olympia, WA 98507-7160680942
7Fireworks Productions of Arizona, Ltd.17034 S 54th StreetChandler, AZ 85226948780
8Fireworks West Internationale3200 West 910 NorthLogan, UT 84321245423
9Great Lakes Fireworks24805 MarineEastpointe, MI 480211011216
10Hollywood Pyrotechnics, Inc.1567 Antler PointEagan, MN 551221061068
11Johnny Rockets Fireworks Display Co.4410 N. HamiltonChicago, IL 606251263181
12Night Magic, Inc.P.O. Box 294Kingsbury, IN 46345557323
13Rainbow Fireworks, Inc.76 Plum Ave.Inman, KS 675461139643
14Victory Fireworks Inc.579 Vincent LaneEllsworth, WI 54011539751
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[FR Doc. E9-14465 Filed 6-18-09; 8:45 am]

BILLING CODE 4910-EX-P