[Federal Register Volume 76, Number 58 (Friday, March 25, 2011)]
[Notices]
[Pages 16852-16854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7009]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2007-28043]
Hours of Service (HOS) of Drivers; Assessing the Safety Impact of
the Exemption From the 14-Hour Provision of the Hours of Service Rule
for Certain Pyrotechnics Operations During Independence Day
Celebrations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice; request for comments.
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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://
[[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: [email protected].
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 Sec. 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 Sec.
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
[[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]
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