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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2007-28043]

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

# ACTION:

Notice; request for comments.

# SUMMARY:

                        FMCSA requests public comment from all interested parties on the impact of the Agency's previous decision granting certain members of the American Pyrotechnics Association (APA) an exemption from the current HOS prohibition against driving a commercial motor vehicle (CMV) after the 14th hour of coming on duty (                        *i.e.,*                         the 14-hour Provision), provided their drivers did not operate CMVs after accumulating 14 hours on duty. The exemption covers certain pyrotechnics carriers and drivers for a period that begins 7 days prior to Independence Day and ends 2 days immediately following that holiday. The Agency initially granted a waiver from the 14-hour Provision in 2004, and granted an exemption from the 14-hour Provision in 2005 with subsequent renewals in 2007 and 2009. FMCSA requests public comment on the safety impact of the exemption during the Independence Day periods of 2004 through 2010.                    

# DATES:

Comments must be received on or before April 25, 2011.

# ADDRESSES:

You may submit comments identified by Federal Docket Management System Number FMCSA-2007-28043 by any of the following methods:

*Web site:*                         Federal eRulemaking Portal:                         *http://www.regulations.gov.*                         Follow the online instructions for submitting comments.                    

*Fax:*                         1-202-493-2251.                    

*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., Washington, DC, 20590 between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays.                    

*Instructions:*                         All submissions must include the Agency name and docket number. For detailed instructions on submitting comments and additional information on the exemption process, see the Public Participation heading below. Note that all comments received will be posted without change to                         *http://www.regulations.gov,*                         including any personal information provided. Please see the Privacy Act heading below.                    

*Docket:*                         For access to the docket to read background documents or comments received, go to                         *http://www.regulations.gov,*                         and follow the online instructions for accessing the dockets, or visit the U.S. Department of Transportation Docket Management Facility at the street address listed above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.                    

*Privacy Act:*                         Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement for the Federal Docket Management System published in the                         **Federal Register**                         on January 17, 2008 (73 FR 3316), or you may visit                         *http://      ( print page 16853)    edocket.access.gpo.gov/​2008/​pdfE8-794.pdf.*

*Public Participation:*                         The Federal eRulemaking Portal is available 24 hours each day, 365 days each year. You can obtain electronic submission and retrieval help and guidelines under the “help” section of the Federal eRulemaking Portal Web site. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard, or print the acknowledgement page that appears after submitting comments online. Comments received after the comment closing date will be included in the docket and will be considered to the extent practicable.                    

# FOR FURTHER INFORMATION CONTACT:

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

# SUPPLEMENTARY INFORMATION:

## Background

                    Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107, 401-404, 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. Pursuant to that rule, FMCSA must publish a notice of each exemption request in the                     **Federal Register**                     (49 CFR part 381). 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 (49 CFR 381.315(a)). The Agency must also provide an opportunity for public comment on the request.                     *Id.*

                    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, 381.310(c)(5)). 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 (49 CFR 381.315(c)(2)). 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 granted (49 CFR 381.315(c)(1)). The notice must also specify the effective period of the exemption (up to two years), and explain the terms and conditions of the exemption.                     *Id.*                     The exemption may be renewed (49 CFR 381.300(b)).                

## APA's Independence Day Operations and the Exemption from 49 CFR 395.3(a)(2)

APA is a trade association that represents the domestic fireworks industry. Its members have been providing fireworks-related services for many years.

The CMV drivers employed by APA members transport fireworks over relatively short distances from distribution points to the sites of Independence Day fireworks displays. These trips normally take place in the early morning when motor vehicle traffic is light. APA members' drivers are also trained pyrotechnicians, and at the display site, they set up and safety-check the fireworks. In the late afternoon and early evening prior to the fireworks event, these drivers have time off duty in which to rest or nap. After the event, the drivers load the CMV and perform additional driving tasks. This final movement of the day takes place late in the evening on roads relatively free of heavy motor vehicle traffic. Before beginning the next duty day, these drivers must take at least 10 consecutive hours off-duty, in accordance with the HOS rules applicable to all drivers of property-carrying CMVs (49 CFR 395.3(a)).

In 2003, FMCSA amended its HOS rules for CMV drivers (68 FR 22456, April 28, 2003), adopting a rule that prohibited interstate drivers of property-carrying CMVs from driving after the end of the 14th hour after they came on duty following 10 consecutive hours off duty (49 CFR 395.3(a)(2)). This 14-hour provision impacted the operations of APA's members with respect to the services they provide for Independence Day celebrations because drivers could no longer drive after the 14th hour of coming on duty, following 10 consecutive hours off duty.

Under the previous HOS rules, drivers were not limited by a block of time within which all driving had to be completed. Driving was prohibited after drivers accumulated 15-hours of on-duty time (including any driving time) but the prohibition against driving was not linked to the beginning of the work day. Rest breaks or off-duty periods during the workday enabled drivers to operate their CMVs after the fireworks events. However, under the 2003 final rule, driving after the 14th hour from the beginning of the work day was prohibited; rest breaks or off-duty periods could no longer be used to extend the timeframe during which driving could occur.

Through the exemption process under 49 CFR part 381, APA requested that fireworks personnel be allowed to exclude off-duty and sleeper berth time of any length in the calculation of the 14-hour rule. APA believes that full compliance with the current HOS 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 certain APA members because the companies are hired to conduct multiple fireworks shows in celebration of Independence Day, during a compressed timeframe. Without the exemption, pyrotechnicians cannot meet typical holiday schedules, and fireworks companies would be forced to hire a second driver for most trips or, significantly decrease 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.

APA first applied for relief from § 395.3(a)(2) for the 2004 Independence Day celebrations. FMCSA granted APA a waiver on behalf of its members. A copy of the 2004 waiver is in the docket referenced at the beginning of this notice.

                    The following year, the APA submitted an application for an exemption that would cover two consecutive Independence Day celebrations—2005 and 2006. FMCSA published a notice in the                     **Federal Register**                     announcing the application and seeking public comment on it (70 FR 24160; May 6, 2005). After the close of the comment period, FMCSA published a notice of its final decision on July 1, 2005. The Agency granted an exemption from the 14-hour Provision under § 395.3(a)(2)) to designated APA-member motor carriers and their CMV drivers for two 9-day periods during the 2005 and 2006 Independence Day holidays, subject to specific terms and conditions of the exemption (70 FR 38242, July 1, 2005).                

                    On June 28, 2007, FMCSA published an exemption applicable to certain APA members operating property-carrying CMVs in furtherance of fireworks displays for two 9-day periods during the 2007 and 2008 Independence Day holidays (72 FR 35538). And, on June                           ( print page 16854)                        19, 2009, FMCSA published a notice granting a similar exemption to certain APA members for two 9-day periods during the 2009 and 2010 Independence Days (74 FR 29264).                

In each case, FMCSA found that the terms and conditions of the exemption would ensure that APA members' operations were likely to achieve a level of safety equivalent to, or greater than, the level of safety the operations would obtain in the absence of the exemption.

Annually, the exemption has permitted approximately 3,000 CMV drivers employed by APA members to exclude off-duty and sleeper-berth time of any length from their calculations of compliance with the 14-hour provision following 10 consecutive hours off duty. For all operations not subject to the exemption, the drivers and motor carriers remain subject to the 11-hour driving time limit, the 60-hour (or 70-hour) on-duty limit, and all other HOS rules. The exemption from 49 CFR 395.3(a)(2) has been limited to a roster of APA-member motor carriers, and to a period of 9 consecutive days each year. During these 9 days, driving outside of the 14-hour driving window would be allowed, provided the driver did not operate CMVs after accumulating 14 hours on duty.

## Advocates for Highway and Auto Safety (Advocates) June 5, 2009, Comments

                    During the exemption renewal process in 2009, FMCSA's June 19, 2009, notice did not acknowledge or respond to comments submitted by Advocates. Although Advocates timely filed its comments on June 5, 2009, prior to the June 8, 2009, deadline for responding to the Agency's May 22, 2009, notices (74 FR 24066 and 74 FR 24069) those comments were not available at                     *http://www.regulations.gov*, the web site at which docket comments are posted, until June 10, 2009. By the time the personnel responsible for managing this web site for all Federal regulatory matters had posted Advocates' comments to the electronic docket, FMCSA staff had prepared its draft notice of final disposition and submitted it to FMCSA's senior leadership for approval. The notice of final disposition was subsequently issued on June 12, 2009, and published on June 19, 2009.                

                    FMCSA reviews all public comments as of the filing deadline for purposes of analyzing comments. However, as in this case, because of the time constraints for issuing a decision in time for the 2009 Independence Day Celebration, there was no review of Advocates' comments posted at                     *http://www.regulations.gov*                     two days after the deadline. In consideration of the administrative delay in the posting of Advocates' comments to the public docket, FMCSA now requests public comment on the safety impact of the exemption prior to consideration of any subsequent requests for renewal of the exemption.                

                    Interested parties may view the APA applications for the exemptions and the exemption renewals, the public comments the Agency received, including the Advocates comments dated June 5, 2009, and FMCSA's                     **Federal Register**                     notices by following the instructions under the heading “Docket” above: For the 2005 exemption, please refer to Docket FMCSA-2005-21104, and for the 2007 and 2009 exemptions, refer to Dockets FMCSA-2007-28090 and FMCSA-2007-28043, respectively.                

## Request for Comments

FMCSA requests public comment from all interested parties on the impact the exemptions have had on the safety performance of the drivers and carriers covered by the exemption. Interested parties are encouraged to submit any information concerning crashes and any fatalities, injuries and property damage associated with those crashes that occurred during the periods the exemptions were in place. FMCSA will review all comments received and consider them in the decision-making process should the APA apply for a renewal of the exemption.

Issued on: March 21, 2011.

Anne S. Ferro,

Administrator.

[FR Doc. 2011-7009 Filed 3-24-11; 8:45 am]

BILLING CODE 4910-EX-P