Hours of Service (HOS) of Drivers; American Pyrotechnics Association (APA) Application for an Exemption From the 14-Hour Rule During Independence Day Celebrations

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of application for exemption; request for comments.

SUMMARY:

The Federal Motor Carrier Safety Administration (FMCSA) requests public comment on the American Pyrotechnics Association's (APA) application for an exemption from the prohibition against driving a commercial motor vehicle (CMV) after the 14th hour of coming on duty. The exemption for nine motor carriers would be applicable for a period beginning 7 days prior to, and 2 days immediately following Independence Day in 2007 and 2008. Fireworks personnel who operate CMVs in conjunction with fireworks shows celebrating Independence Day would be allowed to exclude off-duty and sleeper-berth time of any length in the calculation of the 14 hours. Drivers would not be allowed to drive after accumulating a total of 14 hours of on-duty time, following 10 consecutive hours off duty, and would continue to be subject to the 11-hour driving time limit, and the 60- and 70-hour weekly limits. APA believes the exemption would achieve a level of safety equivalent to what would be provided by compliance with the 14-hour rule as it applies to other drivers of property-carrying vehicles.

DATES:

Comments must be received on or before June 14, 2007.

ADDRESSES:

You may submit comments to the DOT Docket Management System (DMS), referencing Docket Number FMCSA-2007-28090, using any of the following methods:

• Web Site: http://dmses.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, Room W12-140, 1200 New Jersey Ave. SE., Washington, DC 20590.
• Hand Delivery: Room W12-140, Ground Floor of West Building, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions must include the Agency name and docket number for this notice. Note that all comments received will be posted without change to http://dms.dot.gov,, including any personal information provided. Please see the Privacy Act heading for further information.

Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or Room W12-140, Ground Floor of West Building, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. 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 on-line.

Privacy Act: Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review the Department of Transportation's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477; Apr. 11, 2000). This statement is also available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, MC-PSD, Federal Motor Carrier Safety Administration, 1200 New Jersey Ave., SE., Washington, DC 20590-0001. Telephone: 202-366-4009. E-mail: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178, June 9, 1998, 112 Stat. 107) amended 49 U.S.C. 31315 and 31136(e) to provide authority to the Federal Motor Carrier Safety Administration (FMCSA) to grant exemptions from the motor carrier safety regulations. The FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The FMCSA must provide the public with an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted, and it must provide an opportunity for public comment on the request.

The FMCSA reviews the safety analyses and the public comments and determines whether granting the exemption would 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 FMCSA's decision must be published in the Federal Register (49 CFR 381.315(b)). If FMCSA denies the application, it must state the reason for doing so. If FMCSA grants the exemption, the notice must specify the person or class of persons receiving the exemption and the regulatory provision or provisions from which exemption is being granted. The notice must also specify the effective period of the exemption (up to 2 years) and explain the terms and conditions of the exemption.

Application for an Exemption

The American Pyrotechnics Association (APA) has requested an exemption for nine member companies from FMCSA's prohibition against drivers of property-carrying CMVs operating such vehicles after the 14th hour of coming on duty (49 CFR 395.3(a)(2)). Fireworks personnel covered by the exemption would be allowed to exclude off-duty and sleeper-berth time of any length from the calculation of the 14-hour rule. Drivers would not be allowed to drive after the accumulation of 14 hours of on-duty time following 10 consecutive hours off duty. This exemption would be applicable to approximately 100 new drivers employed by the motor carriers identified in the appendix to this notice. A copy of the application is included in the docket referenced at the beginning of this notice.

On July 1, 2005, FMCSA published a notice in the Federal Register granting a similar exemption to APA for 72 member companies. The original exemption expired on July 7, 2006, and APA has requested a renewal for those original companies. That application for renewal is being evaluated separately by FMCSA, and notice of it is published elsewhere in today's edition of the Federal Register.

APA, a trade association representing the domestic fireworks industry, asserts that full compliance with the current hours-of-service (HOS) regulations during the brief period surrounding Independence Day imposes a substantial economic hardship on its members that operate fireworks for the public. This period is the busiest time of the year for these companies. APA members are engaged to stage multiple shows in celebration of Independence Day, during a compressed timeframe.

The member-company drivers that would be covered by the exemption are trained pyrotechnicians, each holding a commercial driver's license with a hazardous materials (HM) endorsement. These drivers transport fireworks and equipment to remote locations under demanding schedules. During the week before Independence Day, these companies are engaged to stage multiple shows in a very compressed period of time. To meet the press of business in this 1-week period under the current HOS rules, companies would be required to hire a second driver for most trips. This would result in a substantial increase in the cost of these shows, and as a result, many shows would be cancelled. Alternatively, APA members would be forced to significantly decrease their engagements. In either case, these companies would have to decrease the number of shows they provide, thereby denying many Americans a primary component of their Independence Day celebration.

Method To Ensure an Equivalent or Greater Level of Safety

APA believes that the exemption will not adversely affect the safety of the motor carrier transportation provided by their member companies. Many APA member companies operated under the prior exemption for two years with no reports of incidents of any kind. Moreover, according to the APA, the exemption will enhance safety by decreasing the number of CMVs stationed with HM Division 1.3 and 1.4 products aboard at locations throughout the country. Under the exemption, CMVs will be able to return to their home base, which is a secured area for these types of products.

Request for Comments

In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comments on APA's application for an exemption from the requirements of 49 CFR 395.3(a)(2) for these nine companies. FMCSA will consider all comments received by close of business on June 14, 2007. Comments will be available for examination in the docket listed at the beginning of this notice. The FMCSA will file comments received after the comment closing date in the public docket and will consider them to extent practicable. In addition to late comments, FMCSA will also continue to file in the public docket other relevant information that becomes available after the comment closing date. Interested persons should monitor the public docket for new material.

Appendix to Notice of Application for Exemption by American Pyrotechnics Association From the 14-Hour Rule During 2007 and 2008 Independence Day Celebrations