81 FR 43701 - Hours of Service (HOS) of Drivers; American Pyrotechnics Association (APA); Granting of Exemption From the 14-Hour Rule
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration Federal Register Volume 81, Issue 128 (July 5, 2016)
Federal Motor Carrier Safety Administration
Federal Register Volume 81, Issue 128 (July 5, 2016)
| Page Range | 43701-43705 | |
| FR Document | 2016-15797 |
[Federal Register Volume 81, Number 128 (Tuesday, July 5, 2016)] [Notices] [Pages 43701-43705] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-15797] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2007-28043] Hours of Service (HOS) of Drivers; American Pyrotechnics Association (APA); Granting of Exemption From the 14-Hour Rule AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of final disposition. ----------------------------------------------------------------------- SUMMARY: FMCSA announces the granting of an exemption for 51 member companies of the American Pyrotechnics Association (APA) from the hours-of-service (HOS) regulation prohibiting drivers of commercial motor vehicles (CMVs) from driving after the 14th hour after coming on duty. Fifty-one APA members currently hold such exemptions. APA requests discontinuance of the exemption for 4 carriers, and new exemptions for 4 carriers, with the total therefore remaining at 51. The ``Fixing America's Surface Transportation Act'' (FAST Act) extended the HOS exemptions in effect on the date of enactment of that Act to 5 years from the date of issuance. Because the FAST Act also authorized new exemptions for a period of up to 5 years, the Agency grants 4-year exemptions to 4 additional fireworks companies, ensuring that all 51 exemptions will terminate on July 8, 2020. 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 [[Page 43702]] 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. FOR FURTHER INFORMATION CONTACT: For information concerning this notice, contact Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: (202) 366-4325. Email: [email protected]. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826. 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 381.315(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, and explain its terms and conditions. The exemption may be renewed (49 CFR 381.300(b)). Section 5206(a)(3) of the FAST Act amended 49 U.S.C. 31315 to permit FMCSA to grant exemptions for up to 5 years from the date of issuance, instead of the previous two years [section 31315(b)(2)]. This statutory provision will be codified in 49 CFR part 381 in a forthcoming rulemaking. Section 5206(b)(2)(A) of the FAST Act also extended all HOS exemptions in effect on the date of enactment to a period of 5 years from the date of issuance. FMCSA announced the extension of the HOS fireworks exemption in a Federal Register notice published on May 9, 2016 [81 FR 28115]. III. APA Application for Exemption The HOS rule in 49 CFR 395.3(a)(2) prohibits the driver of a property-carrying CMV from driving 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 an exemption for 51 member companies for the 2015 and 2016 Independence Day periods [80 FR 37040, June 29, 2015]. APA has requested new exemptions for four carriers and discontinuance of the exemptions for four carriers,\1\ maintaining the total at 51. As mentioned above, the 51 exemptions granted to APA members in 2015 (now reduced to 47 exemptions) were extended, pursuant to section 5206(b)(2)(A) of the FAST Act, through the annual Independence Day periods ending on July 8, 2020. The exemptions for the 4 new APA carriers 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. It should also be noted that section 5206(b)(2)(A) of the FAST Act extends HOS exemptions in effect on the date of enactment ``for a period of 5 years from the date such exemption was granted'' (emphasis added). FMCSA believes that the intent of the statute was to extend the effective period of an exemption from 2 to 5 years, on the assumption that exemptions begin upon issuance and remain in effect (in most cases) for 2 consecutive years. Since the 2015 fireworks exemption involved 2 separate periods, both ending after ``the date such exemption was granted,'' the Agency believes the FAST Act amendment is best interpreted as extending the end date of the fireworks exemption-- namely July 8 of each year--through 2020. Like the other 47 APA companies that operated under the 2015 exemption, the 4 additional companies would be subject to all of the terms and conditions of the exemption. --------------------------------------------------------------------------- \1\ Colonial Fireworks, DOT 177274; Fireworks West Internationale, DOT 245423; USA Halloween Planet Inc. dba USA Fireworks, DOT 725457; Western Fireworks Inc., DOT 838585. --------------------------------------------------------------------------- The original APA application for relief from the 14-hour rule was submitted in 2004; a copy is in the docket. That application fully describes 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 members 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 exemption for an additional four member companies 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 exemption, 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 47 APA member companies currently exempt, as well as the four carriers seeking an exemption for the first time, are listed in an appendix to this notice. The four new carriers are identified with an asterisk. A copy of the request for the exemption is included in the docket referenced at the beginning of this notice. IV. Method To Ensure an Equivalent or Greater Level of Safety The APA believes that the new exemptions would not adversely affect the safety of the fireworks transportation [[Page 43703]] provided by these motor carriers. 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 unused fireworks (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 would be required to notify FMCSA within five business days of any accident (as defined in 49 CFR 390.5) involving the operation of any of 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 asserted 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 drivers of property-carrying CMVs. V. Public Comments On May 9, 2016, FMCSA published notice of this application and requested public comments (81 FR 28115). Two comments were submitted, both opposing the exemption. The first was from an individual who objected to the exemption in principle, stating ``I find it hypocritical of the FMCSA to consider exemptions to the hours of service regulations for any special interests.'' The second comment, from the Advocates for Highway and Auto Safety (Advocates), listed objections to 19 of the 51 carriers. Of these 19, two were among the four carriers proposed to be added to this exemption. In most cases, Advocates pointed out the carrier had out-of-service (OOS) rates well above the national averages. Advocates also described violations that were found during roadside inspections of the carriers. Further, they asserted that FMCSA had not conducted thorough safety-record checks of the carriers because the OOS rates and inspection violations were not mentioned in the May 9, 2016, Federal Register notice (81 FR 28115). FMCSA Response Section 5206(b)(2)(A) of the FAST Act extended HOS exemptions in effect on the date of enactment ``for a period of 5 years from the date such exemption was granted.'' Therefore, the exemptions of the 47 carriers that were included in the previous exemption period have been statutorily extended until July 8, 2020 [81 FR 28115]. Prior to the time exemption applications are announced in the Federal Register, FMCSA checks basic elements of safety records for any factors that would disqualify the carrier, such as being under an Imminent Hazard Order. Other elements of the safety records are checked during the comment period of the notice. The information provided by Advocates for each carrier was also identified by FMCSA during the comment period and has been considered in this final determination for the four new applicant-carriers. With regard to safety statistics, none of the 51 carriers granted exemptions in 2015 (which were extended by the FAST Act) or the 4 carriers proposed for exemption in 2016, was under an OOS or Imminent Hazard 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. A few ``acute critical'' violations attributed to 3 of the carriers occurred months after the Independence Day holiday, when the carriers were not operating under the exemption. Because of the small numbers of inspections on record for most of these carriers, the OOS rates cited by Advocates do not constitute a statistically reliable basis for a comparison with national averages. For example, a carrier having only three inspections, one of which included a driver OOS violation, would have a driver OOS rate of 33% compared to the national average of approximately 5%. Under those circumstances, FMCSA would not consider the apparent high OOS rate to be particularly significant. Carrier Pyrotecnico LLC, USDOT 548303, was identified as not having a valid registration with FMCSA. However, investigation of the carrier's MCS-150B registration documents indicated that the carrier's officials had mistakenly used the same USDOT number when intending to apply for new registration of a different carrier. The carrier is reportedly undertaking a correction of the records. The Agency considers Pyrotecnico LLC, USDOT 526749, to be registered and included in the exemptions extended by the FAST Act. In light of the above, FMCSA believes that the fireworks carriers previously granted HOS exemptions remain likely, as before, to achieve a level of safety equivalent to or greater than the level that compliance with the 14-hour rule would ensure. Similarly, the Agency has concluded that the 4 APA members applying for the same HOS exemption would likely meet the same standard and has decided to grant them a 4-year exemption from the 14-hour rule. VI. 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 47 motor carriers already covered by the exemption, and drivers employed by 4 motor carriers that were not included for the 2015 period. The four carriers are 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 would be 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. Drivers operating under the exemption must carry a copy of this Federal Register notice or equivalent signed letter from FMCSA, and provide it to enforcement officers upon request. The carriers and drivers must comply with all other applicable requirements of the Federal Motor Carrier Safety [[Page 43704]] 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 would be 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 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 number, e. Vehicle number and State license number, f. Number of individuals suffering physical injury, g. Number of fatalities, h. The police-reported cause of the accident, i. Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations, and j. The total driving time and the total on-duty time of the CMV driver at the time of the accident. 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 are subject to FMCSA monitoring while operating under this exemption. Issued on: June 27, 2016. T.F. Scott Darling, III, Acting Administrator. Appendix to Notice of Application for Approval of Motor Carriers To Utilize American Pyrotechnics Association's (APA) Exemption From the 14-Hour Rule During 2016 Independence Day Celebrations ---------------------------------------------------------------------------------------------------------------- Motor carrier Street address City, state, zip code DOT No. ---------------------------------------------------------------------------------------------------------------- 1. American Fireworks Company........... 7041 Darrow Road.......... Hudson, OH 44236.......... 103972 2. American Fireworks Display, LLC...... P.O. Box 980.............. Oxford, NY 13830.......... 2115608 3. AM Pyrotechnics, LLC................. 2429 East 535th Rd........ Buffalo, MO 65622......... 1034961 4. Arthur Rozzi Pyrotechnics............ 6607 Red Hawk Ct.......... Maineville, OH 45039...... 2008107 5. Atlas PyroVision Entertainment Group, 136 Old Sharon Rd......... Jaffrey, NH 03452......... 789777 Inc. 6. Central States Fireworks, Inc........ 18034 Kincaid Street...... Athens, IL 62613.......... 1022659 7. East Coast Pyrotechnics, Inc......... 4652 Catawba River Rd..... Catawba, SC 29704......... 545033 8. Entertainment Fireworks, Inc......... 13313 Reeder Road SW...... Tenino, WA 98589.......... 680942 9. Falcon Fireworks..................... 3411 Courthouse Road...... Guyton, GA 31312.......... 1037954 10. Fireworks & Stage FX America........ 12650 Hwy 67S. Suite B.... Lakeside, CA 92040........ 908304 11. Fireworks by Grucci, Inc............ 20 Pinehurst Drive........ Bellport, NY 11713........ 324490 12. * Flashing Thunder Fireworks dba 700 E Van Buren Street.... Mitchell, IA 50461........ 420413 Legal Aluminum King Mtg. 13. J&J Computing dba Fireworks 174 Route 17 North........ Rochelle Park, NJ 07662... 2064141 Extravaganza. 14. Gateway Fireworks Displays.......... P.O. Box 39327............ St Louis, MO 63139........ 1325301 15. Great Lakes Fireworks............... 24805 Marine.............. Eastpointe, MI 48021...... 1011216 16. Hamburg Fireworks Display, Inc...... 2240 Horns Mill Road SE... Lancaster, OH............. 395079 17. Hawaii Explosives & Pyrotechnics, 17-7850 N. Kulani Road.... Mountain View, HI 96771... 1375918 Inc. 18. Hollywood Pyrotechnics, Inc......... 1567 Antler Point......... Eagan, MN 55122........... 1061068 19. Homeland Fireworks, Inc............. P.O. Box 7................ Jamieson, OR 97909........ 1377525 20. Island Fireworks Co., Inc........... N1597 County Rd VV........ Hager City, WI 54014...... 414583 21. J&M Displays, Inc................... 18064 170th Ave........... Yarmouth, IA 52660........ 377461 22. Lantis Fireworks, Inc............... 130 Sodrac Dr., Box 229... N. Sioux City, SD 57049... 534052 23. Legion Fireworks Co., Inc........... 10 Legion Lane............ Wappingers Falls, NY 12590 554391 24. Miand Inc. dba Planet Productions P.O. Box 294, 3999 Hupp Kingsbury, IN 46345....... 777176 (Mad Bomber). Road. 25. Martin & Ware Inc. dba Pyro City P.P. Box 322.............. Hallowell, ME 04347....... 734974 Maine & Central Maine Pyrotechnics. 26. Melrose Pyrotechnics, Inc........... 1 Kinsgubury Industrial Kingsbury, IN 46345....... 434586 Park. 27. Precocious Pyrotechnics, Inc........ 4420-278th Ave NW......... Belgrade, MN 56312........ 435931 28. * Pyro Shows, Inc................... 115 N 1st Street.......... LaFollette, TN 37766...... 456818 29. Pyro Shows of Texas, Inc............ 6601 9 Mile Azle Rd....... Fort Worth, TX 76135...... 2432196 30. * Pyro Engineering Inc., dba/Bay 400 Broadhollow Rd. Ste #3 Farmindale, NY 11735...... 530262 Fireworks. 31. Pyro Spectaculars, Inc.............. 3196 N Locust Ave......... Rialto, CA 92376.......... 029329 32. Pyro Spectaculars North, Inc........ 5301 Lang Avenue.......... McClellan, CA 95652....... 1671438 33. Pyrotechnic Display, Inc............ 8450 W. St. Francis Rd.... Frankfort, IL 60423....... 1929883 34. Pyrotecnico (S. Vitale Pyrotechnic 302 Wilson Rd............. New Castle, PA 16105...... 526749 Industries, Inc.). 35. Pyrotecnico, LLC.................... 60 West Ct................ Mandeville, LA 70471...... 548303 36. Pyrotecnico FX...................... 6965 Speedway Blvd. Suite Las Vegas, NV 89115....... 1610728 115. 37. Rainbow Fireworks, Inc.............. 76 Plum Ave............... Inman, KS 67546........... 1139643 38. RES Specialty Pyrotechnics.......... 21595 286th St............ Belle Plaine, MN 56011.... 523981 39. Rozzi's Famous Fireworks, Inc....... 11605 North Lebanon Rd.... Loveland, OH 45140........ 0483686 40. * Sky Wonder Pyrotechnics, LLC...... 3626 CR 203............... Liverpool, TX 77577....... 1324580 41. Skyworks, Ltd....................... 13513 W. Carrier Rd....... Carrier, OK 73727......... 1421047 [[Page 43705]] 42. Sorgi American Fireworks Michigan, 935 Wales Ridge Rd........ Wales, MI 48027........... 2475727 LLC. 43. Spielbauer Fireworks Co, Inc........ 220 Roselawn Blvd......... Green Bay, WI 54301....... 046479 44. Spirit of 76........................ 6401 West Hwy 40.......... Columbia, MO 65202........ 2138948 45. Starfire Corporation................ 682 Cole Road............. Carrolltown, PA 15722..... 554645 46. Vermont Fireworks Co., Inc./ 2235 Vermont Route 14 East Montpelier, VT 05651. 310632 Northstar Fireworks Co., Inc.. South. 47. Western Display Fireworks, Ltd...... 10946 S. New Era Rd....... Canby, OR 97013........... 498941 48. Western Enterprises, Inc............ P.O. Box 160.............. Carrier, OK 73727......... 203517 49. Wolverine Fireworks Display, Inc.... 205 W Seidlers............ Kawkawlin, MI............. 376857 50. Young Explosives Corp............... P.O. Box 18653............ Rochester, NY 14618....... 450304 51. Zambelli Fireworks MFG, Co., Inc.... P.O. Box 1463............. New Castle, PA 16103...... 033167 ---------------------------------------------------------------------------------------------------------------- * Not included in 2015 list of approved carriers. [FR Doc. 2016-15797 Filed 6-29-16; 4:15 pm] BILLING CODE 4910-EX-P
![Federal Register / Vol. 81, No. 128 / Tuesday, July 5, 2016 / Notices 43701
The two inspections of Ace Pyro on not being subject to any ‘‘imminent DEPARTMENT OF TRANSPORTATION
record occurred on different vehicles in hazard’’ or other out-of-service (OOS)
2015. In both instances, there were OOS orders issued by FMCSA. Each driver Federal Motor Carrier Safety
problems with brakes and on one a covered by the exemption is required to Administration
driver with an improper class of CDL. maintain a valid CDL with the
[Docket No. FMCSA–2007–28043]
Because Ace Pyro had no negative appropriate endorsements, not be
information in our review of its safety subject to any suspension of driving Hours of Service (HOS) of Drivers;
records that would warrant an privileges, and meet all physical American Pyrotechnics Association
unsatisfactory safety rating, FMCSA qualifications required by 49 CFR part (APA); Granting of Exemption From
does not consider these two inspections 391. the 14-Hour Rule
to be a clear indicator of overall safety
Preemption AGENCY: Federal Motor Carrier Safety
problems with this carrier.
The Agency believes that the In accordance with 49 U.S.C. Administration (FMCSA), DOT.
applicants operating under the 31313(d), as implemented by 49 CFR ACTION: Notice of final disposition.
exemption will likely achieve a level of 381.600, during the period this
safety that is equivalent to, or greater SUMMARY: FMCSA announces the
exemption is in effect, no State shall
than, the level of safety achieved granting of an exemption for 51 member
enforce any law or regulation applicable
without the exemption [49 CFR companies of the American
to interstate commerce that conflicts
381.305(a)]. FMCSA therefore grants the Pyrotechnics Association (APA) from
with or is inconsistent with this
requested exemptions for 5 years. the hours-of-service (HOS) regulation
exemption with respect to a firm or
prohibiting drivers of commercial motor
VII. Terms and Conditions of the person operating under the exemption.
vehicles (CMVs) from driving after the
Exemption States may, but are not required to,
14th hour after coming on duty. Fifty-
adopt the same exemption with respect
Period of the Exemption one APA members currently hold such
to operations in intrastate commerce.
exemptions. APA requests
The exemption from the requirements FMCSA Accident Notification discontinuance of the exemption for 4
of 49 CFR 395.3(a)(2) is effective for the carriers, and new exemptions for 4
periods of June 28–July 8, 2016 through Exempt motor carriers are required to carriers, with the total therefore
2020. notify FMCSA within 5 business days of remaining at 51. The ‘‘Fixing America’s
Extent of the Exemption any accident (as defined by 49 CFR Surface Transportation Act’’ (FAST Act)
390.5) involving the operation of any of extended the HOS exemptions in effect
The exemption is restricted to the its CMVs while under this exemption. on the date of enactment of that Act to
drivers employed by the applicants. The The notification must include the 5 years from the date of issuance.
drivers are exempt from the following information: Because the FAST Act also authorized
requirements of 49 CFR 395.3(a)(2). This
a. Exemption Identity: ‘‘Illumination new exemptions for a period of up to 5
regulation prohibits a driver from
Fireworks’’ or ‘‘Ace Pyro’’ years, the Agency grants 4-year
driving a CMV after the 14th hour after
b. Name of operating motor carrier exemptions to 4 additional fireworks
coming on duty and does not permit off-
and USDOT number, companies, ensuring that all 51
duty periods to extend the 14-hour
exemptions will terminate on July 8,
limit. Drivers covered by the exemption c. Date of the accident, 2020. FMCSA has determined that the
may exclude off-duty and sleeper-berth
d. City or town, and State, in which terms and conditions of the exemption
time of any length from the calculation
the accident occurred, or closest to the ensure a level of safety equivalent to, or
of the 14-hour limit. The exemption is
accident scene, greater than, the level of safety achieved
contingent on each driver driving no
e. Driver’s name and driver’s license without the exemption.
more than 11 hours in the 14-hour
period after coming on duty, as number and State of issuance, DATES: These exemptions from 49 CFR
extended by any off-duty or sleeper- f. Vehicle number and State license 395.3(a)(2) are effective from June 28
berth time. The exemption is further plate number, through July 8, at 11:59 p.m. local time,
contingent on each driver having a each year through 2020.
g. Number of individuals suffering ADDRESSES:
minimum of 10 consecutive hours off
physical injury, Docket: For access to the docket to
duty prior to beginning a new duty
period. Drivers operating under the h. Number of fatalities, read background documents or
exemption must carry a copy of this i. The police-reported cause of the comments, go to www.regulations.gov at
Federal Register notice or equivalent accident, any time or visit Room W12–140 on the
signed letter from FMCSA, and provide ground level of the West Building, 1200
j. Whether the driver was cited for
it to enforcement officers upon request. New Jersey Avenue SE., Washington,
violation of any traffic laws or motor
The carriers and drivers must comply DC, between 9 a.m. and 5 p.m., ET,
carrier safety regulations, and
with all other applicable requirements Monday through Friday, except Federal
of the Federal Motor Carrier Safety k. The driver’s total driving time and holidays. The on-line Federal Docket
Regulations (49 CFR parts 350–399) and total on-duty time period prior to the Management System (FDMS) is
Hazardous Materials Regulations (49 accident. available 24 hours each day, 365 days
CFR parts 105–180). each year. If you want acknowledgment
sradovich on DSK3GDR082PROD with NOTICES
Accidents would be reported via
email to MCPSD@DOT.GOV. that we received your comments, please
Other Conditions include a self-addressed, stamped
Issued on: June 27, 2016.
The exemption is contingent upon envelope or postcard or print the
each carrier maintaining USDOT T.F. Scott Darling, III, acknowledgement page that appears
registration, a Hazardous Materials Acting Administrator . after submitting comments on-line.
Safety Permit (if required), minimum [FR Doc. 2016–15798 Filed 6–29–16; 4:15 pm] Privacy Act: In accordance with 5
levels of public liability insurance, and BILLING CODE 4910–EX–P U.S.C. 553(c), DOT solicits comments
VerDate Sep<11>2014 17:27 Jul 01, 2016 Jkt 238001 PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 E:\FR\FM\05JYN1.SGM 05JYN1](https://thefederalregister.org/doc/81_FR_43829/page/1.svg)
![43702 Federal Register / Vol. 81, No. 128 / Tuesday, July 5, 2016 / Notices
from the public to better inform its which exemption is granted. The notice years, on the assumption that
rulemaking process. DOT posts these must also specify the effective period of exemptions begin upon issuance and
comments, without edit, including any the exemption, and explain its terms remain in effect (in most cases) for 2
personal information the commenter and conditions. The exemption may be consecutive years. Since the 2015
provides, to www.regulations.gov, as renewed (49 CFR 381.300(b)). fireworks exemption involved 2
described in the system of records Section 5206(a)(3) of the FAST Act separate periods, both ending after ‘‘the
notice (DOT/ALL–14 FDMS), which can amended 49 U.S.C. 31315 to permit date such exemption was granted,’’ the
be reviewed at www.dot.gov/privacy. FMCSA to grant exemptions for up to 5 Agency believes the FAST Act
FOR FURTHER INFORMATION CONTACT: For years from the date of issuance, instead amendment is best interpreted as
information concerning this notice, of the previous two years [section extending the end date of the fireworks
contact Ms. Pearlie Robinson, FMCSA 31315(b)(2)]. This statutory provision exemption—namely July 8 of each
Driver and Carrier Operations Division; will be codified in 49 CFR part 381 in year—through 2020. Like the other 47
Office of Carrier, Driver and Vehicle a forthcoming rulemaking. Section APA companies that operated under the
Safety Standards; Telephone: (202) 366– 5206(b)(2)(A) of the FAST Act also 2015 exemption, the 4 additional
4325. Email: MCPSD@dot.gov. If you extended all HOS exemptions in effect companies would be subject to all of the
have questions on viewing or submitting on the date of enactment to a period of terms and conditions of the exemption.
material to the docket, contact Docket 5 years from the date of issuance. The original APA application for
Services, telephone (202) 366–9826. FMCSA announced the extension of the relief from the 14-hour rule was
HOS fireworks exemption in a Federal submitted in 2004; a copy is in the
SUPPLEMENTARY INFORMATION:
Register notice published on May 9, docket. That application fully describes
I. Public Participation 2016 [81 FR 28115]. the nature of the pyrotechnic operations
Viewing Comments and Documents of the CMV drivers during a typical
III. APA Application for Exemption Independence Day period.
To view comments, as well as The HOS rule in 49 CFR 395.3(a)(2) As stated in the 2004 request, the
documents mentioned in this preamble prohibits the driver of a property- CMV drivers employed by APA
as being available in the docket, go to carrying CMV from driving after the members are trained pyro-technicians
www.regulations.gov and insert the 14th hour after coming on duty who hold commercial driver’s licenses
docket number, ‘‘FMCSA–2007–28043’’ following 10 consecutive hours off duty. (CDLs) with hazardous materials (HM)
in the ‘‘Keyword’’ box and click The APA, a trade association endorsements. They transport fireworks
‘‘Search.’’ Next, click ‘‘Open Docket representing the domestic fireworks and related equipment by CMVs on a
Folder’’ button and choose the industry, was granted an exemption for very demanding schedule during a brief
document listed to review. If you do not 51 member companies for the 2015 and Independence Day period, often to
have access to the Internet, you may 2016 Independence Day periods [80 FR remote locations. After they arrive, the
view the docket online by visiting the 37040, June 29, 2015]. APA has drivers are responsible for set-up and
Docket Management Facility in Room requested new exemptions for four staging of the fireworks shows.
W12–140 on the ground floor of the The APA states that it is seeking an
carriers and discontinuance of the
DOT West Building, 1200 New Jersey exemption for an additional four
exemptions for four carriers,1
Avenue SE., Washington, DC 20590, member companies because compliance
maintaining the total at 51. As
between 9 a.m. and 5 p.m., e.t., Monday with the current 14-hour rule in 49 CFR
mentioned above, the 51 exemptions
through Friday, except Federal holidays. 395.3(a)(2) would impose a substantial
granted to APA members in 2015 (now
economic hardship on numerous cities,
II. Legal Basis reduced to 47 exemptions) were
towns and municipalities, as well as its
FMCSA has authority under 49 U.S.C. extended, pursuant to section
member companies. To meet the
31136(e) and 31315 to grant exemptions 5206(b)(2)(A) of the FAST Act, through
demand for fireworks without the
from certain parts of the Federal Motor the annual Independence Day periods
exemption, APA states that its member
Carrier Safety Regulations. FMCSA must ending on July 8, 2020. The exemptions
companies would be required to hire a
publish a notice of each exemption for the 4 new APA carriers will also
second driver for most trips. The APA
request in the Federal Register (49 CFR expire on July 8, 2020. Although this is
advises that the result would be a
381.315(a)). The Agency must provide less than the 5-year exemption period
substantial increase in the cost of the
the public an opportunity to inspect the authorized by 49 U.S.C. 31315(b)(2), as
fireworks shows—beyond the means of
information relevant to the application, amended by section 5206(a)(3) of the
many of its members’ customers—and
including any safety analyses that have FAST Act, FMCSA believes that the
that many Americans would be denied
been conducted. The Agency must also interests of the APA members and the
this important component of the
provide an opportunity for public Agency would best be served by
celebration of Independence Day. The
comment on the request. harmonizing, as far as possible, the
47 APA member companies currently
The Agency reviews the safety expiration dates of all such fireworks-
exempt, as well as the four carriers
analyses and the public comments, and related exemptions. It should also be
seeking an exemption for the first time,
determines whether granting the noted that section 5206(b)(2)(A) of the
are listed in an appendix to this notice.
exemption would likely achieve a level FAST Act extends HOS exemptions in
The four new carriers are identified
of safety equivalent to, or greater than, effect on the date of enactment ‘‘for a
with an asterisk. A copy of the request
the level that would be achieved by the period of 5 years from the date such
for the exemption is included in the
current regulation (49 CFR 381.305). exemption was granted’’ (emphasis
sradovich on DSK3GDR082PROD with NOTICES
docket referenced at the beginning of
The decision of the Agency must be added). FMCSA believes that the intent
this notice.
published in the Federal Register (49 of the statute was to extend the effective
CFR 381.315(b)) with the reason for the period of an exemption from 2 to 5 IV. Method To Ensure an Equivalent or
grant or denial, and, if granted, the Greater Level of Safety
1 Colonial Fireworks, DOT 177274; Fireworks
specific person or class of persons West Internationale, DOT 245423; USA Halloween
The APA believes that the new
receiving the exemption, and the Planet Inc. dba USA Fireworks, DOT 725457; exemptions would not adversely affect
regulatory provision or provisions from Western Fireworks Inc., DOT 838585. the safety of the fireworks transportation
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![Federal Register / Vol. 81, No. 128 / Tuesday, July 5, 2016 / Notices 43703
provided by these motor carriers. during roadside inspections of the MCS–150B registration documents
According to APA, its member- carriers. Further, they asserted that indicated that the carrier’s officials had
companies have operated under this FMCSA had not conducted thorough mistakenly used the same USDOT
exemption for 10 previous safety-record checks of the carriers number when intending to apply for
Independence Day periods without a because the OOS rates and inspection new registration of a different carrier.
reported motor carrier safety incident. violations were not mentioned in the The carrier is reportedly undertaking a
Moreover, it asserts, without the extra May 9, 2016, Federal Register notice (81 correction of the records. The Agency
time provided by the exemption, safety FR 28115). considers Pyrotecnico LLC, USDOT
would decline because APA drivers 526749, to be registered and included in
FMCSA Response
would be unable to return to their home the exemptions extended by the FAST
base after each show. They would be Section 5206(b)(2)(A) of the FAST Act Act.
forced to park the CMVs carrying extended HOS exemptions in effect on In light of the above, FMCSA believes
unused fireworks (HM 1.1G, 1.3G and the date of enactment ‘‘for a period of that the fireworks carriers previously
1.4G products) in areas less secure than 5 years from the date such exemption granted HOS exemptions remain likely,
the motor carrier’s home base. As a was granted.’’ Therefore, the exemptions as before, to achieve a level of safety
condition of holding the exemption, of the 47 carriers that were included in equivalent to or greater than the level
each motor carrier would be required to the previous exemption period have that compliance with the 14-hour rule
notify FMCSA within five business days been statutorily extended until July 8, would ensure. Similarly, the Agency has
of any accident (as defined in 49 CFR 2020 [81 FR 28115]. concluded that the 4 APA members
390.5) involving the operation of any of Prior to the time exemption applying for the same HOS exemption
its CMVs while under this exemption. applications are announced in the would likely meet the same standard
To date, FMCSA has received no Federal Register, FMCSA checks basic and has decided to grant them a 4-year
accident notifications, nor is the Agency elements of safety records for any exemption from the 14-hour rule.
aware of any accidents reportable under factors that would disqualify the carrier,
terms of the prior APA exemptions. such as being under an Imminent VI. Terms and Conditions of the
In its exemption request, APA Hazard Order. Other elements of the Exemption
asserted that the operational demands of safety records are checked during the
Period of the Exemption
this unique industry minimize the risks comment period of the notice. The
of CMV crashes. In the last few days information provided by Advocates for The exemption from 49 CFR
before July 4, these drivers transport each carrier was also identified by 395.3(a)(2) is effective from June 28
fireworks over relatively short routes FMCSA during the comment period and through July 8, at 11:59 p.m. local time,
from distribution points to the site of has been considered in this final each year through 2020 for the 51
the fireworks display, and normally do determination for the four new carriers identified in this notice.
so in the early morning when traffic is applicant-carriers. Terms and Conditions of the Exemption
light. At the site, they spend With regard to safety statistics, none
considerable time installing, wiring, and of the 51 carriers granted exemptions in The exemptions from 49 CFR
safety-checking the fireworks displays, 2015 (which were extended by the 395.3(a)(2) will be limited to drivers
followed by several hours off duty in the FAST Act) or the 4 carriers proposed for employed by the 47 motor carriers
late afternoon and early evening prior to exemption in 2016, was under an OOS already covered by the exemption, and
the event. During this time, the drivers or Imminent Hazard Order, had any drivers employed by 4 motor carriers
are able to rest and nap, thereby alerts in the Safety Management System that were not included for the 2015
reducing or eliminating the fatigue (SMS), or was under investigation by period. The four carriers are identified
accumulated during the day. Before the Pipeline and Hazardous Materials by an asterisk in the appendix table of
beginning another duty day, these Safety Administration. All had this notice. Section 395.3(a)(2) prohibits
drivers must take 10 consecutive hours ‘‘satisfactory’’ safety ratings based on a driver from driving a CMV after the
off duty, the same as other drivers of compliance reviews, and all had valid 14th hour after coming on duty and
property-carrying CMVs. Hazardous Materials Safety Permits. A does not permit off-duty periods to
few ‘‘acute critical’’ violations attributed extend the 14-hour limit. Drivers
V. Public Comments to 3 of the carriers occurred months covered by this exemption may exclude
On May 9, 2016, FMCSA published after the Independence Day holiday, off-duty and sleeper-berth time of any
notice of this application and requested when the carriers were not operating length from the calculation of the 14-
public comments (81 FR 28115). Two under the exemption. Because of the hour limit. This exemption is contingent
comments were submitted, both small numbers of inspections on record on each driver driving no more than 11
opposing the exemption. The first was for most of these carriers, the OOS rates hours in the 14-hour period after
from an individual who objected to the cited by Advocates do not constitute a coming on duty, as extended by any off-
exemption in principle, stating ‘‘I find it statistically reliable basis for a duty or sleeper-berth time in accordance
hypocritical of the FMCSA to consider comparison with national averages. For with this exception. The exemption
exemptions to the hours of service example, a carrier having only three would be further contingent on each
regulations for any special interests.’’ inspections, one of which included a driver having a full 10 consecutive
The second comment, from the driver OOS violation, would have a hours off duty following 14 hours on
Advocates for Highway and Auto Safety driver OOS rate of 33% compared to the duty prior to beginning a new driving
(Advocates), listed objections to 19 of national average of approximately 5%. period. Drivers operating under the
sradovich on DSK3GDR082PROD with NOTICES
the 51 carriers. Of these 19, two were Under those circumstances, FMCSA exemption must carry a copy of this
among the four carriers proposed to be would not consider the apparent high Federal Register notice or equivalent
added to this exemption. In most cases, OOS rate to be particularly significant. signed letter from FMCSA, and provide
Advocates pointed out the carrier had Carrier Pyrotecnico LLC, USDOT it to enforcement officers upon request.
out-of-service (OOS) rates well above 548303, was identified as not having a The carriers and drivers must comply
the national averages. Advocates also valid registration with FMCSA. with all other applicable requirements
described violations that were found However, investigation of the carrier’s of the Federal Motor Carrier Safety
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![Federal Register / Vol. 81, No. 128 / Tuesday, July 5, 2016 / Notices 43705
APPENDIX TO NOTICE OF APPLICATION FOR APPROVAL OF MOTOR CARRIERS TO UTILIZE AMERICAN PYROTECHNICS ASSO-
CIATION’S (APA) EXEMPTION FROM THE 14-HOUR RULE DURING 2016 INDEPENDENCE DAY CELEBRATIONS—Contin-
ued
Motor carrier Street address City, state, zip code DOT No.
42. Sorgi American Fireworks Michigan, LLC .......................... 935 Wales Ridge Rd .............. Wales, MI 48027 ..................... 2475727
43. Spielbauer Fireworks Co, Inc ............................................. 220 Roselawn Blvd ................. Green Bay, WI 54301 ............. 046479
44. Spirit of 76 .......................................................................... 6401 West Hwy 40 ................. Columbia, MO 65202 .............. 2138948
45. Starfire Corporation ............................................................ 682 Cole Road ........................ Carrolltown, PA 15722 ............ 554645
46. Vermont Fireworks Co., Inc./Northstar Fireworks Co., Inc. 2235 Vermont Route 14 South East Montpelier, VT 05651 ..... 310632
47. Western Display Fireworks, Ltd .......................................... 10946 S. New Era Rd ............ Canby, OR 97013 ................... 498941
48. Western Enterprises, Inc .................................................... P.O. Box 160 .......................... Carrier, OK 73727 .................. 203517
49. Wolverine Fireworks Display, Inc ....................................... 205 W Seidlers ....................... Kawkawlin, MI ......................... 376857
50. Young Explosives Corp ...................................................... P.O. Box 18653 ...................... Rochester, NY 14618 ............. 450304
51. Zambelli Fireworks MFG, Co., Inc ...................................... P.O. Box 1463 ........................ New Castle, PA 16103 ........... 033167
* Not included in 2015 list of approved carriers.
[FR Doc. 2016–15797 Filed 6–29–16; 4:15 pm] FTA is allocating funds consistent with Table of Contents
BILLING CODE 4910–EX–P the requirements of the Appropriations I. Allocation of Hurricane Sandy Recovery
Act, the FTA Emergency Relief Program Funding
49 U.S.C. 5324, the Final Rule for the II. Procedure for Reallocation of Resilience
DEPARTMENT OF TRANSPORTATION Emergency Relief Program, 49 CFR part Funds for Disaster Recovery
602, published in the Federal Register III. Award Administration
Federal Transit Administration on October 7, 2014 (78 FR 23806), and
all previously announced FTA policies I. Allocation of Hurricane Sandy
Fourth Allocation of Public
and procedures for Hurricane Sandy Recovery Funding
Transportation Emergency Relief
Emergency Relief funding.
Funds in Response to Hurricane Sandy The FTA Emergency Relief (ER)
In addition, this notice establishes a
AGENCY: Federal Transit Administration procedure for recipients to request the Program provides FTA with the
(FTA), DOT. reallocation of funding previously authority to reimburse emergency
allocated for resilience projects to fund response and recovery costs for public
ACTION: Notice.
eligible disaster recovery expenses in transportation systems, including costs
SUMMARY: The Federal Transit excess of the total amount of funding for projects to protect systems in danger
Administration (FTA) announces the available from previous allocations, of future damage (resilience projects),
allocation of $834,612,566 through the insurance payments, and the expected after an emergency or major disaster.
Public Transportation Emergency Relief local cost share. Funds reallocated The Disaster Relief Appropriations Act
Program (Emergency Relief Program, under this procedure must be used for provides $10.9 billion for FTA’s
Catalogue of Federal Domestic disaster recovery expenses or be Emergency Relief Program for recovery,
Assistance #20.527) for recovery returned to FTA upon completion of the relief, and resilience efforts in areas
projects to three FTA recipients with recovery effort. Reallocation requests are affected by Hurricane Sandy. However,
estimated damages that exceed the subject to the terms and conditions as a result of the Balanced Budget and
amounts of funding previously made specified in this notice and must be Emergency Deficit Control Act of 2011
available: The Metropolitan approved by FTA. (Pub. L. 112–25) for fiscal year (FY)
Transportation Authority of New York, Unless specifically revised by this 2013, approximately five percent, or
the New Jersey Transit Corporation, and notice, all previously published almost $545 million of the $10.9 billion,
the Port Authority of New York and program policies and requirements was subject to sequestration and is
New Jersey. Funds allocated in this associated with Hurricane Sandy unavailable for Hurricane Sandy
notice are in addition to funds allocated recovery and rebuilding funding remain disaster relief, leaving approximately
on March 29, 2013 (78 FR 19357), May in effect. $10.349 billion available. In addition,
29, 2013 (78 FR 32296), and November $185 million was transferred to the
FOR FURTHER INFORMATION CONTACT: Federal Railroad Administration (FRA)
5, 2014 (79 FR 65762), and brings the
Contact the appropriate FTA Regional leaving a balance of $10.164 billion.
total amount of Hurricane Sandy
Office found at http://www.fta.dot.gov FTA has allocated the available funding
Emergency Relief funds allocated by
for application-specific information and in multiple tiers for emergency
FTA to date to $10.088 billion. Of that
other assistance needed in preparing an response, recovery and rebuilding,
amount, $5,196,184,125 has been
FTA grant application. For program- locally-prioritized resilience projects,
allocated for emergency response,
specific questions, please contact Adam competitively selected resilience
recovery, and rebuilding projects and
Schildge, Office of Program projects, and through direct transfers to
$4,891,883,625 has been allocated for
Management, 1200 New Jersey Ave. SE., other DOT offices.
resilience projects, which are designed
Washington, DC 20590, phone: (202)
to protect transit systems in the
sradovich on DSK3GDR082PROD with NOTICES
366–0778, or email, Purpose of allocation Amount allocated
Hurricane Sandy disaster area from
Adam.Schildge@dot.gov. For legal
damages associated with future storms.
questions, contact Helen Serassio, Office Response, Recovery
With this notice, FTA has now fully and Rebuilding (in-
of Chief Counsel, same address, phone:
allocated all of the funding made cluding $834 million
(202) 366–1974, or email,
available under the Disaster Relief in this notice) ............. $5,196,184,125
Helen.Serassio@dot.gov.
Appropriations Act of 2013 Locally-Prioritized Resil-
(Appropriations Act, Pub. L. 113–2). SUPPLEMENTARY INFORMATION: ience .......................... 1,300,000,000
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Document Created: 2016-07-01 23:50:04
Document Modified: 2016-07-01 23:50:04
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of final disposition. | |
| 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. | |
| Contact | For information concerning this notice, contact Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: (202) 366-4325. Email: [email protected] If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826. | |
| FR Citation | 81 FR 43701 |
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