[Federal Register Volume 74, Number 117 (Friday, June 19, 2009)]
[Notices]
[Pages 29266-29267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14465]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28043]


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

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

ACTION: Notice of final disposition; granting of application for 
exemption.

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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.

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: 
<a href="/cdn-cgi/l/email-protection#0c414f5c5f484c686378226b637a"><span class="__cf_email__" data-cfemail="65282635362125010a114b020a13">[email protected]</span></a>.

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

[[Page 29267]]

limited 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.

    Issued on: June 12, 2009.
Larry W. Minor,
Associate Administrator for Policy and Program Development.

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
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                                      Motor carrier           Address                              DOT <greek-i>
----------------------------------------------------------------------------------------------------------------
1................................  Alpha-Lee            4111 FM 2351.......  Friendswood, TX             1324580
                                    Enterprises, Inc..                        77546.
2................................  American Fireworks   7041 Darrow Road...  Hudson, OH 44236...          103972
                                    Company.
3................................  Atlas Pyrovision     P.O. Box 498.......  Jaffrey, NH 03452..          789777
                                    Productions, LLC.
4................................  Cartwright           1608 Keely Road....  Franklin, PA 16323.          882283
                                    Fireworks, Inc..
5................................  DDT, LLC--All        4503 E. 460........  Pryor, OK 74361....         1606354
                                    American
                                    Transport, LLC.
6................................  Entertainment        P.O. Box 7160......  Olympia, WA 98507-           680942
                                    Fireworks, Inc..                          7160.
7................................  Fireworks            17034 S 54th Street  Chandler, AZ 85226.          948780
                                    Productions of
                                    Arizona, Ltd..
8................................  Fireworks West       3200 West 910 North  Logan, UT 84321....          245423
                                    Internationale.
9................................  Great Lakes          24805 Marine.......  Eastpointe, MI              1011216
                                    Fireworks.                                48021.
10...............................  Hollywood            1567 Antler Point..  Eagan, MN 55122....         1061068
                                    Pyrotechnics, Inc..
11...............................  Johnny Rockets       4410 N. Hamilton...  Chicago, IL 60625..         1263181
                                    Fireworks Display
                                    Co..
12...............................  Night Magic, Inc...  P.O. Box 294.......  Kingsbury, IN 46345          557323
13...............................  Rainbow Fireworks,   76 Plum Ave........  Inman, KS 67546....         1139643
                                    Inc..
14...............................  Victory Fireworks    579 Vincent Lane...  Ellsworth, WI 54011          539751
                                    Inc..
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[FR Doc. E9-14465 Filed 6-18-09; 8:45 am]
BILLING CODE 4910-EX-P


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