@SecElaineChao @DOTInspectorGen: Here's How We Know the FMCSA has Rigged the SBTC's ELD Exemption Application. Again.

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UPDATE: SBTC LAUNCHES PETITION TO "IMPEACH" & DEFUND FMCSA

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THE EXEMPTION APPLICATION PROCESS PURPORTS TO BE FAIR IN ACCORDANCE WITH THE ADMINISTRATIVE PROCEDURE ACT (APA)

Exemption applications are authorized by Federal law pursuant to 49 U.S. Code § 31315. The Secretary has further promulgated regulations codified at 49 CFR 381 that govern the exemption application process. Although both the law and the regulations state the Secretary will accept "class exemptions," the Secretary has never promulgated regulations dealing with class exemptions. The Secretary's regulations only deal with applications submitted by individual CMV drivers and carriers. Generally, applicants are required to be afforded fairness and due process under the Administrative Procedure Act.

SBTC ELD EXEMPTION APPLICATION ROUND ONE

The SBTC first submitted its ELD Exemption Application on November 20, 2017. FMCSA rejected said application, without publication in the Federal Register, by letter of January 5, 2018 stating our original submission did not conform to the requirements of 49 CFR 381.310 (funny how they didn't hold OOIDA accountable to this regulation when they submitted their exemption application they day after we did). Thereafter, SBTC resubmitted the application on February 1, 2018 addressing the requirements that call for carrier-specific information as best it could; SBTC noticed FMCSA that it is unreasonable to expect that a trade group filing a class exemption can address all aspects of these procedural requirements. We note SBTC even went as far as to petition the FMCSA for rulemaking on this issue thereafter on June 8, 2018 asking for the agency to promulgate rules for the submission of class exemptions. FMCSA on its website, pursuant to its FAST Act obligations, recorded receipt of this application as of June 14, 2018, but noted, strangely, that a response to SBTC acknowledging receipt was “N/A” in this instance despite FAST Act requirements to the contrary. 

We contend that by publishing the application in the Federal Register thereafter on June 5, 2018--rather than return the application again, the FMCSA conceded that we had substantially complied with 49 CFR 381.310, to the extent that such compliance is possible, given the fact that we are a trade group submitting a class exemption and the rule is clearly geared toward individual drivers/carriers.

FMCSA'S DENIAL REGURGITATED ONE SAFETY ADVOCATE'S COMMENT

On July 17, 2019, FMCSA denied the SBTC's ELD Exemption application. The FMCSA stated:

―For the reasons given below, FMCSA denies the SBTC application for exemption. The SBTC application does not meet the regulatory standards for an exemption. SBTC failed to provide ―[t]he name of the individual or motor carrier that would be responsible for the use or operation of CMVs‖ under the exemption [49 CFR 381.310(b)(2)]. SBTC did not provide the name of a single motor carrier. SBTC failed to ―[p]rovide[] an estimate of the total number of drivers and CMVs that would be operated under the terms and conditions of the exemption‖ [§ 381.310(c)(3)]. Instead, SBTC said ―we defer to FMCSA to determine the total number of drivers and CMVs that would be operated under the exemption.‖ SBTC failed to ―[e]xplain[] how you would ensure that you could achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the regulation‖ [§ 381.310(c)(5)]. The application said ―we believe the level of safety is already assured by the pre-existing Hours of Service rule as opposed to this ELD enforcement mechanism rule.

Nor did SBTC meet the statutory requirement in 49 U.S.C. 31315(b)(5)(D) to describe ―[t]he specific countermeasures the person would undertake to ensure an equivalent or greater level of safety than would be achieved absent the requested exemption.‖ SBTC proposed no countermeasures at all.

For all of these reasons, FMCSA denies SBTC's request for exemption.

In addition to denying the SBTC fairness and due process (given a lack of bona fide rules that apply to class exemptions), wanton disregard for the essence of the application, which specifically called for a return to paper logs as a "countermeasure," it appears this denial simply regurgitated one July 5, 2018 comment posted to the docket, which was submitted by a safety advocate. Quite frankly, we are not even sure that the person who wrote the decision, apparently in haste to show a Federal judge a decision was finally rendered after FMCSA violated the 180 day statutory requirement to issue a determination, actually even read the SBTC's application (SBTC filed a Federal Lawsuit SMALL BUSINESS IN TRANSPORTATION COALITION v. U.S. DEPARTMENT OF TRANSPORTATION et al in District of Columbia District Court (1:2019cv01311) on May 6, 2019 seeking the Court to compel agency action on the ELD Exemption Application after more than twice the 180 day statutory period FMCSA has to decide on these matters had elapsed. Thereafter, FMCSA finally ruled on this matter on July 17, 2019, we contend, haphazardly).

Disturbingly, we discovered after we resubmitted our application on February 1, 2018, that USDOT had already ruled --through its Counsel's office --on the substance of the Exemption application in this letter to the Small Business Administration on January 17, 2018 (a letter that we were not copied on and did not get our hands on until after February 1, 2018). This was an arbitrary and capricious handling of our application by USDOT's lawyers especially given the fact that we had been invited to resubmit by the FMCSA Deputy Administrator on January 5, 2018.

So, when FMCSA represented to the public in June of 2018 that it would be accepting and considering comments from the public on the application, in reality, the application was not really going to be given fair consideration and comments were not actually going to be considered in good faith as FMCSA purported because a determination on the application had already been made by USDOT counsel without public input. The USDOT therefore put the cart before the horse and the FMCSA fraudulently led members of the industry to believe that if they commented, their comments would be considered... when the whole process was really just one big, deceptive farce... and a waste of time and government resources (that's your cue to open an investigation, Inspector General Scovel). Just how much were government employees paid to read those 1,900 comments that were accepted on an application that was already decided on before the comment period was even opened? And how many Federal officials were involved in writing and approving the FMCSA's decision on the application? If this is not corruption, fraud, mismanagement, waste and abuse, we do not know what is, Madam Secretary. Maybe its just the left hand doesn't know what the right hand is doing at USDOT.

You can read more about this sham here in trucking media.

SBTC ELD EXEMPTION APPLICATION ROUND TWO

On August 9, 2019, SBTC resubmitted its application pursuant to 49 U.S. Code § 31315(b)(3) & 49 CFR 381.317. FMCSA finally published the resubmitted application and opened the comment period on October 29, 2019. Today is November 25, 2019. The comment period closes November 29, 2019.

Pursuant to 49 CFR § 395.8(a), those motor carriers currently using AOBRDs are required to switch to ELDs on or before December 16, 2019.

SBTC has asked both the Secretary and the President to delay the December 16th transition date. Among other issues, we argue that it is bad form to force drivers to purchase ELDs between now and December 16th when theoretically, the possibility exists that up to 97% of trucking companies that would qualify for the proposed exemption could still be declared exempt as a result of the current application in progress.

The only reason NOT to delay December 16th at this point is if ONCE AGAIN, FMCSA has already made a determination on the application before the comment period is even over. Or maybe before it even started. In which case, this second round is RIGGED also. That would be the SECOND TIME they did this! Are you starting to see a pattern here yet, Mr. Scovel?

At best, there is an appearance of impropriety here that calls for the immediate delay of the December 16th transition date as there is no way a decision on the exemption application will be rendered before then (don't forget, it took FMCSA a year, last time). Otherwise, FMCSA is making a complete mockery of due process and the law. Remember, we did not just resubmit in late October. We resubmitted in early August. The agency had 11 weeks to deal with this and chose to kick the can down the road until now.

Under the APA and the general principles of Administrative Law, Government cannot do this as it is offensive to due process. We therefore call on the Secretary one last time to do the right thing here and delay the December 16th transition before Wednesday close of business, so we don't have to disturb a Federal Judge as he enjoys his Thanksgiving dinner. If you do, Madam Secretary, you'll be doing the industry and the American people a big favor as we are otherwise headed toward a capacity crisis that is likely to upset the US economy and cause significant hardships this holiday season.

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