[Federal Register Volume 88, Number 35 (Wednesday, February 22, 2023)]
[Notices]
[Pages 10962-10963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03564]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2022-0172]


Hours of Service: Exemption Application From Flat Top Transport, 
LLC

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation.

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

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SUMMARY: FMCSA announces its decision to deny Flat Top Transport's 
request for an exemption from the hours-of-service (HOS) regulations. 
Flat Top Transport requested a four-month exemption for ``immediate and 
emergency delivery of dry and bulk food grade products to locations 
that supply stores and distribution centers nationally.'' FMCSA 
analyzed the application and public comments and determined that the 
exemption would not achieve a level of safety that is equivalent to, or 
greater than, the level that would be achieved absent such exemption.

FOR FURTHER INFORMATION CONTACT: Ms. Bernadette Walker, Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards, FMCSA; (202) 385-2415; or [email protected]. 
If you have questions on viewing or submitting material to the docket, 
contact Dockets Operations at (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

    To view comments, go to www.regulations.gov, insert the docket 
number ``FMCSA-2022-0172'' in the keyword box, and click ``Search.'' 
Next, sort the results by ``Posted (Newer-Older),'' choose the first 
notice listed, ``View Related Comments.''
    To view documents mentioned in this notice as being available in 
the docket, go to www.regulations.gov, insert the docket number, 
``FMCSA-2022-0172'' in the keyword box, click ``Search,'' and chose the 
document to review.
    If you do not have access to the internet, you may view the docket 
online by visiting Dockets Operations 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., ET, Monday through Friday, except 
Federal holidays. To be sure someone is there to help you, please call 
(202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant 
exemptions from Federal Motor Carrier Safety Regulations (FMCSRs). 
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 
provide an opportunity for public comment on the request.
    The Agency reviews safety analyses and public comments submitted 
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 Agency must 
publish its decision in

[[Page 10963]]

the Federal Register (49 CFR 381.315(b)) with the reasons for denying 
or granting the application and, if granted, the name of the person or 
class of persons receiving the exemption and the regulatory provision 
from which the exemption is granted. The notice must specify the 
effective period and explain the terms and conditions of the exemption. 
The exemption may be renewed (49 CFR 381.300(b)).

III. Background

Current Regulatory Requirements

    To reduce the possibility of driver fatigue, FMCSA's HOS 
regulations in 49 CFR part 395 limit the time drivers of commercial 
motor vehicles (CMVs) may drive. The HOS regulations in 49 CFR 
395.3(a)(1) prohibit an individual from driving again after 11 hours 
driving or 14 hours on duty until they have been off duty for a minimum 
of 10 consecutive hours, or the equivalent of at least 10 consecutive 
hours off duty. Under 49 CFR 395.3(a)(2)--commonly referred to as the 
14-hour ``driving window''--a driver has 14 consecutive hours in which 
to drive up to 11 hours after being off duty for 10 or more consecutive 
hours. Section 395.3(b)(1) prohibits drivers for a motor carrier that 
does not operate CMVs every day of the week from driving a CMV after 
being on duty for 60 hours during any 7 consecutive days, and section 
395.3(b)(2) prohibits drivers for a motor carrier that operates CMVs 
every day of the week from driving a CMV after being on duty for 70 
hours in any 8 consecutive days.

Applicant's Request

    Flat Top Transport seeks a four-month exemption from the HOS 
regulations in 49 CFR part 395. Flat Top Transport requests the 
exemption to provide ``immediate and emergency delivery of dry and bulk 
food grade products to locations that supply stores and distribution 
centers nationally.'' Flat Top states that ``the products being 
delivered are under strict time constraints and the number of available 
trucks is limited. Due to railroads being limited and a truck driver 
shortage, the inflation rates of parts and services, the time 
constraints of hours of service are causing many food producing factors 
to shut down until the products arrive.''
    Flat Top Transport describes itself as a small trucking company 
with between 9 and 10 drivers which delivers products such as food 
grade flour, corn meal, and salts used to produce cereals, baked goods, 
canned goods, and meat processing. In its application, Flat Top did not 
identify any alternative compliance measures that it would undertake to 
achieve an equivalent level of safety as complying with the existing 
HOS regulations.

IV. Public Comments

    On September 1, 2022, FMCSA published notice of Flat Top 
Transport's application for exemption and requested public comment (86 
FR 50426). The Agency received 11 comments. North American Millers' 
Association, Schell Transport, Michael Bechara, Dana Burchell, Rich 
Dickerson, and two anonymous commenters favored the exemption 
application. Schell Transport commented, ``I am in favor of HOS relief 
to help with food supply chain issues.'' Two commenters, Remmel 
Transport, LLC and Tracy Hall, offered no position either for or 
against the request, submitting general comments instead. Remmel 
Transport commented, ``There needs to be exemption for all fleets 
operating under 30 trucks.'' The Commercial Vehicle Safety Alliance 
(CVSA) and AWM Associates, LLC opposed the exemption. CVSA commented 
that ``supply chain delays do not constitute an emergency situation 
that would necessitate temporary relief from hours-of-service 
regulations.''

V. FMCSA Safety Analysis and Decision

    FMCSA continues to monitor unique challenges motor carriers and 
drivers experience while transporting freight on our Nation's highways 
and works to ensure that safety is not compromised. Supply chain issues 
alone, however, do not provide a sufficient basis to exempt motor 
carriers transporting dry bulk food grade products from the HOS 
regulations. Under 49 CFR 381.310(c)(1), applicants are required to 
explain how they would achieve a level of safety that is equivalent to 
or greater than, the level of safety that would be obtained by 
complying with the regulations. Flat Top offered no basis on which 
FMCSA could conclude that granting an exemption from the HOS 
regulations would provide an equivalent level of safety.

    For the above reasons, Flat Top Transport, LLC's exemption 
application is denied.
Robin Hutchinson,
Administrator.
[FR Doc. 2023-03564 Filed 2-21-23; 8:45 am]
BILLING CODE 4910-EX-P