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Notice

Hours of Service (HOS) of Drivers; American Pyrotechnics Assn. (APA) Application for Exemption From the 14-Hour Rule; Request To Add New Member to Current APA Exemption

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AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of final disposition.

SUMMARY:

FMCSA announces its decision to grant an exemption to the American Pyrotechnics Association's (APA) new member-company, Pyro Shows of Alabama, Inc., from the prohibition on driving commercial motor vehicles (CMVs) after the 14th hour after the driver comes on duty. During the 2016 Independence Day period 51 APA members held such an exemption, effective during the period June 28 through July 8 each year through 2020. APA advised FMCSA of the discontinuance of the exemption for one carrier; with the addition of the new member the total remains at 51. The exemption granted to Pyro Shows of Alabama, Inc. will terminate at the same time as the other 50 exempted carriers. 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 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.

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FOR FURTHER INFORMATION CONTACT:

Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 614-942-6477. Email: MCPSD@dot.gov. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826.

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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 Start Printed Page 31684381.315(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 (up to 5 years), and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

APA Application for Exemption

The HOS rule in 49 CFR 395.3(a)(2) prohibits the driver of a property-carrying CMV from driving a commercial motor vehicle (CMV) 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 exemptions for 51 member companies through the annual Independence Day periods ending on July 8, 2020 [81 FR 43701, July 5, 2016]. APA has requested an additional exemption for Pyro Shows of Alabama Inc. (USDOT 2859710) and the discontinuance of an exemption for Pyrotechnico, LLC, also known as Wild Dragon Fireworks (USDOT 548303), maintaining the total at 51. Like the other carriers currently operating under the exemption, Pyro Shows of Alabama's exemption 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. Like the other 50 member-companies, this additional member company would be subject to all of the terms and conditions of the exemption.

The initial APA application for relief from the 14-hour rule was submitted in 2004; a copy is in the docket. That application fully described 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 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 additional exemption for Pyro Shows of Alabama, Inc. 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 exemptions, 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 50 APA member companies currently exempt (as well as Pyro Shows of Alabama, seeking an exemption for the first time) are listed in an appendix to this notice. Pyro Shows of Alabama is 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 exemption would not adversely affect the safety of the fireworks transportation provided by this motor carrier. 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 will 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.

Public Comments

On May 15, 2017, FMCSA published notice of this application and requested public comments (82 FR 22375). One comment was submitted by an individual who objected to the exemption, stating “Thank you. I am dead set against this especially with one of the last lines of this article, stating it would mean having to hire 2 drivers. Point being? Hire a second driver and quit it.”

FMCSA Response

FMCSA has determined that granting an exemption to Pyro Shows of Alabama, Inc. will achieve a level of safety equivalent to or greater than the level that compliance with the 14-hour rule would ensure. Prior to publishing the Federal Register notice announcing the receipt of APA's application to add Pyro Shows of Alabama to the current list of carriers operating under the exemption, FMCSA ensured that the motor carrier possessed an active USDOT registration, minimum required levels of insurance, and was not subject to any “imminent hazard” or other out-of-service (OOS) orders. The Agency conducted a comprehensive investigation of the safety performance history on each of the motor carriers listed in the appendix table during the review process. As part of this process, FMCSA reviewed its Motor Carrier Management Information System safety records, including inspection and accident reports submitted to FMCSA by State agencies.

With regard to safety statistics, none of the carriers, including Pyro Shows of Alabama, was under an imminent Start Printed Page 31685hazard or OOS 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.

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 50 motor carriers already covered by the exemption, and drivers employed by Pyro Shows of Alabama, which is 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 is 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 are 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 be by email to MCPSD@DOT.GOV and 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 State, number, and class,

e. Co-Driver's name and driver's license State, number, and class,

f. Vehicle company number and power unit license plate State and number,

g. Number of individuals suffering physical injury,

h. Number of fatalities,

i. The police-reported cause of the accident,

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

k. The total driving time and the total on-duty time of the CMV driver at the time of the accident.

In addition, if there are any injuries or fatalities, the carrier must forward the police accident report to MCPSD@DOT.GOV as soon as available.

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 would be subject to FMCSA monitoring while operating under this exemption.

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Issued on: June 29, 2017.

Randi F. Hutchinson,

Chief Counsel.

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Appendix to Notice of Application for Approval of Motor Carriers To Utilize American Pyrotechnics Association's (APA) Exemption From the 14-Hour Rule During 2017 Independence Day Celebrations

Motor carrierStreet addressCity, state, zip codeDOT No.
1  American Fireworks Company7041 Darrow RoadHudson, OH 44236103972
2  American Fireworks Display, LLCP.O. Box 980Oxford, NY 138302115608
3  AM Pyrotechnics, LLC2429 East 535th RdBuffalo, MO 656221034961
4  Arthur Rozzi Pyrotechnics6607 Red Hawk CtMaineville, OH 450392008107
5  Atlas PyroVision Entertainment Group, Inc136 Old Sharon RdJaffrey, NH 03452789777
6  Central States Fireworks, Inc18034 Kincaid StreetAthens, IL 626131022659
7  East Coast Pyrotechnics, Inc4652 Catawba River RdCatawba, SC 29704545033
8  Entertainment Fireworks, Inc13313 Reeder Road SWTenino, WA 98589680942
9  Falcon Fireworks3411 Courthouse RoadGuyton, GA 313121037954
10 Fireworks & Stage FX America12650 Hwy 67S. Suite BLakeside, CA 92040908304
11 Fireworks by Grucci, Inc20 Pinehurst DriveBellport, NY 11713324490
12 Flashing Thunder Fireworks dba Legal Aluminum King Mtg700 E Van Buren StreetMitchell, IA 50461420413
13 J&J Computing dba Fireworks Extravaganza174 Route 17 NorthRochelle Park, NJ 076622064141
14 Gateway Fireworks DisplaysP.O. Box 39327St Louis, MO 631391325301
15 Great Lakes Fireworks24805 MarineEastpointe, MI 480211011216
16 Hamburg Fireworks Display, Inc2240 Horns Mill Road SELancaster, OH395079
17 Hawaii Explosives & Pyrotechnics, Inc17-7850 N. Kulani RoadMountain View, HI 967711375918
18 Hollywood Pyrotechnics, Inc1567 Antler PointEagan, MN 551221061068
19 Homeland Fireworks, IncP.O. Box 7Jamieson, OR 979091377525
20 Island Fireworks Co., IncN1597 County Rd VVHager City, WI 54014414583
21 J&M Displays, Inc18064 170th AveYarmouth, IA 52660377461
22 Lantis Fireworks, Inc130 Sodrac Dr., Box 229N. Sioux City, SD 57049534052
23 Legion Fireworks Co., Inc10 Legion LaneWappingers Falls, NY 12590554391
24 Miand Inc. dba Planet Productions (Mad Bomber)P.O. Box 294, 3999 Hupp Road R31Kingsbury, IN 46345777176
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25 Martin & Ware Inc. dba Pyro City Maine & Central Maine PyrotechnicsP.P. Box 322Hallowell, ME 04347734974
26 Melrose Pyrotechnics, Inc1 Kinsgubury Industrial ParkKingsbury, IN 46345434586
27 Precocious Pyrotechnics, Inc4420-278th Ave NWBelgrade, MN 56312435931
28 Pyro Shows, Inc115 N 1st StreetLaFollette, TN 37766456818
29 *Pyro Shows of Alabama, Inc3325 Poplar LaneAdamsville, AL 350052859710
30 Pyro Shows of Texas, Inc6601 9 Mile Azle RdFort Worth, TX 761352432196
31 Pyro Engineering Inc., dba/Bay Fireworks400 Broadhollow Rd. Ste #3Farmindale, NY 11735530262
32 Pyro Spectaculars, Inc3196 N Locust AveRialto, CA 92376029329
33 Pyro Spectaculars North, Inc5301 Lang AvenueMcClellan, CA 956521671438
34 Pyrotechnic Display, Inc8450 W. St. Francis RdFrankfort, IL 604231929883
35 Pyrotecnico (S. Vitale Pyrotechnic Industries, Inc.)302 Wilson RdNew Castle, PA 16105526749
36 Pyrotecnico FX6965 Speedway Blvd. Suite 115Las Vegas, NV 891151610728
37 Rainbow Fireworks, Inc76 Plum AveInman, KS 675461139643
38 RES Specialty Pyrotechnics21595 286th StBelle Plaine, MN 56011523981
39 Rozzi's Famous Fireworks, Inc11605 North Lebanon RdLoveland, OH 451400483686
40 Sky Wonder Pyrotechnics, LLC3626 CR 203Liverpool, TX 775771324580
41 Skyworks, Ltd13513 W. Carrier RdCarrier, OK 737271421047
42 Sorgi American Fireworks Michigan, LLC935 Wales Ridge RdWales, MI 480272475727
43 Spielbauer Fireworks Co, Inc220 Roselawn BlvdGreen Bay, WI 54301046479
44 Spirit of 766401 West Hwy 40Columbia, MO 652022138948
45 Starfire Corporation682 Cole RoadCarrolltown, PA 15722554645
46 Vermont Fireworks Co., Inc./Northstar Fireworks Co., Inc2235 Vermont Route 14 SouthEast Montpelier, VT 05651310632
47 Western Display Fireworks, Ltd10946 S. New Era RdCanby, OR 97013498941
48 Western Enterprises, IncP.O. Box 160Carrier, OK 73727203517
49 Wolverine Fireworks Display, Inc205 W SeidlersKawkawlin, MI376857
50 Young Explosives CorpP.O. Box 18653Rochester, NY 14618450304
51 Zambelli Fireworks MFG, Co., IncP.O. Box 1463New Castle, PA 16103033167
* Not included in 2016 list of approved carriers.
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[FR Doc. 2017-14262 Filed 7-3-17; 8:45 am]

BILLING CODE 4910-EX-P