· 2021. 8. 20. · united states district court district of columbia small business in...

UNITED STATES DISTRICT COURTDISTRICT OF COLUMBIA

SMALL BUSINESS INTRANSPORTATION COALITION,

Plainffi

v

U.S. DEPT. OF TRANSPORTATION

and

PETE BUTTIGIEG,in his ofJicialcapacity as Secretary of the Department

of Transportation

and

F'E,DERAL MOTOR CARRIERSAFETY ADMINISTRATION

and

MEERA JOSHI, in her official capucity

as Acting Administrator of the Federal

M ot o r C ar r ier S afety Adminis tr atio n,

Defendants t

MOTION FOR LEAVE TO AMENDCOMPLAINT

crvll, ACTION NO. 20-883(CKK)

F'

AMEND TO AINT AND MOTION FOR VE TO FILE AAMENDED COMPLAINT

Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, Plaintiff the Small

Business in Transportation Coalition, by and through the undersigned.counsel, bring the

following petition for Reconsideration of Order Directing No More Amendments to Complaint

1 plaintiff names Pete Buttigieg, Secretary of the Department of Transportation and Meera Joshi, Acting

Administrator of the Federal Motor Carrier Safety Administration as Defendants in this Second Amended

Complaint because they were in their respective positions when the actions the Plaintiff complains about occurred'2 plaintiff previously filed an amended complaint erroneously entitled Second Amended Complaint. ln actuality,

although this was the second iteration of the complaint, it should,have been labeled First Amended Complaint.

t

Case 1:20-cv-00883-CKK Document 42 Filed 08/20/21 of 86

and move for leave to amend their complaint for a second time. As grounds therefore, Plaintiff

provides as follows3:

The original Complaint was filed by the Plaintifl on behalf of its 15,000 members on

April 1, 2020, and alleged the Defendants, individually andlor collectively failed to adhere to

" procedures required by law. Specifically, Plaintiff alleged that Defendants a violated the

Administrative procedures Act (APA) 5 U.S.C. $ 553, 701-706. Plaintiff also alleged Defendant

FMCSA violated 49 U.S.C. $ 31315(b)(1)bV failing to grant or deny Plaintiffls Electronic

Logging Device ("ELD") Exemption Application within 180 days after the filing date, failing to

grant or deny plaintiff s Transportation Intermediary Broker Bond Exemption Application within

180 days, and failing to grant or deny Plaintiff s Hours of Service Exemption Application

relating to the City of Midland, Texas within 1 80 days from the date of filing. Plaintiff also

alleged Defendant FMCSA violated 49 U.S.C. $ 31315(b)(6)(a) by failing to publish in the

Federal Register its Transportation Intermediary Broker Bond Exemption Application upon

receipt of said application, and by failing to publish in the Federal Register Plaintiff s Hours of

service Exemption Application relating to the City of Midland, Texas upon receipt of said

application.

Plaintiff also alleged Defendants acted in an arbitrary and capricious manner by

withholding action on plaintiff s various exemption applications without authority and without

cause and acted in a discriminatory manner against the Plaintifr-. Plaintiff further alleged the

3 plaintiff's counsel informed Defendants' counsel of Plaintiff's intent to file the foregoing Petition for

Reconsideration and Motion to Amend Complaint and asked if Defendants' counsel would consent to the filing'

Defendants'counsel stated that he would speak with the Department of Transportation to see if they would agree,

but at the time of this filing, counsel did not respond to Plaintiff's request. See Loc. Civ. R. 5.4(m).4 Defendants in the original complaint were the U.S. Department of Transportation, Elaine L. Chao, in her official

capacity as Secretary of the Department of Transportation, the Federal Motor Carrier Safety Administration and

Jim Mullen, in his official capacity as Acting Administrator of the Federal Motor Carrier Safety'Administration.

2


Defendants acted unlawfully in withholding and unreasonably delaying action on Plaintiffls

various exemption applications in that Defendants purposely failed to adhere to Congressionally

mandated regulations

Finally, Plaintiff alleged Defendants violated its First Amendment rights under the

." Constitution to petition the government for redress of grievances by purposely treating Plaintiff

differently than other similarly situated organizations are treated. Plaintiff s members wqre

injured by Defendants' inaction and violation of the law because their peiitions were ignored and

not considered in violation of Federal law.

In its first amended complaint, Plaintiff added a count of failirrg to adhere to procedures

required by law and allege that Defendant FMCSA violated 49 U.S.C. $ 31136(a) (2)b1failing to

suspend or amend the Hours of Service regulations to account for the unforeseen disruptions to

the flow of commercial motor vehicle traffic by protests taking place around the country; and

that the Defendant secretary of the Department of Transportation failed to enforce the Hobbs Act

to protect commercial motor vehicle drivers who were physically attacked, beaten and often

killed by protestors around the country. Additionally, Plaintiff added a count relating to.then-

recently discovered information alleging that an employee of FMCSA, Joseph Delorenzo,

Acting Associate Administrator of Enforcement, told a trucking association member that SBTC

Executive Director James Lamb's petitions will never be heard by FMCSA because FMCSA

does not like him.

Plaintiff moved for leave to file an amended complaint alleging that Defendant FMCSA

violared 49 U.S.C. $ 31315(b)(7) bV failing to grant or deny the Plaintiff s Class Hours of

Service Exemption Application for Drivers Traveling in Interstate Cornmerce with Domestic

Animals within 180 days after the filing date of such application. Additionally, Plaintiff

3


proposed to add language to Counts III (Arbitrary and Capricious Action) and Count IV (Action

Unlawfully Withheld or Unreasonable Delayed) relating to this violation.

The Plaintiff now seeks leave to amend its Complaint for a second timebecause once

again the Defendarrts have failed to adhere to 49 U.S.C. $ 30162. On December 13,2019 the

" SBTC petitioned the previous Secretary of the Department of Transportation for Motor Vehicle

Safety Standards and Enforcement, pursuant to 49 U.S.C. $ 30162. The petitioned was required

to be processed within 120 days by either commencing a proceeding or publishing a denial in the

Federal Register. Plaintiff s belief is that the petition has yet to be acted upon and no adverse

decision has been published in the Federal Register as required by said statute.. Additionally, on

March 8,2021, the SBTC resubmitted this petition to the incoming Secretary and simultaneously

made a request for an Office of Inspector General (OIG) audit of FMCSA's compliance with

MAP-21, insofar as the Secretary was required to develop a bona fide ELD Certification"

Program and did not, choosing instead to allow ELD manufacturers to "self-certifu.". This

second petition was also required to be processed by Defendants within 120 days. That petition

was also not acted upon within the 120-day statutory time frame and no denial has been

published in the Federal Register in violation of Plaintiff s right to due pro""rr.

Plaintiff now seeks to amend Count II of its previous Amended Complaint relating to

Plaintiff s Class Exemption for Drivers Traveling in Interstate Commerce with Domestig

Animals Application because subsequent to the filing of the Amended Complaint, the

Defendants acted on Plaintiff s petition and there is no longer relief needed

Plaintiff now also seeks to remove Count III of its previous Amended Complaint relating

to Plaintiff s petition that FMCSA amend the Hours of Service regulations to account for the

time lost by commercial motor vehicle drivers as result of the then-spontaneous, unan:rounced

4


protests around the country that were disrupting the flow of commercial motor vehicle traffic.

Plaintiff believes this was a temporary situation that no longer exists.

Plaintiff also seeks to amend Counts I, IV and V of its previous Amended Complaint as

those counts related to Plaintiff s petition that FMCSA amend the Hours of Service regulations

'" to account for the time lost by commercial motor vehicle drivers as result of the then-

spontaneous, unannounced protests around the country that were disrupting the flow of

commercial motor vehicle traffic and its Hours of Service Exemption Application request as to

truck travel through the City of Midland, Texas.

Additionally, the Plaintiff now seeks to clarify and amend the relief it is seeking from the

Court. The Plaintiff seeks to withdraw the following requests as noted in our previous Amended

Complaint:

"f. Order the Defendants to amend the Hours of Service regulations to account for the disruptions

to the flow of commercial motor vehicle traffic caused by protests around the country pursuant to

4e u.S.C. $ 31136(a)(2)."

This was a request made as a result of a temporary social unrest situation that no longer exists.

Therefore, this relief is no longer needed.

"g. Order the Defendants to immediately take action to allow drivers to carry legally registered

firearms to protect themselves and their cargo from the physical attacks by.protestors and

criminals pursuant to 49 U.S.C. $ 31136(aX4)."

This was a request made during a temporary social unre$t situation that no longer exists.

Therefore, this relief is no longer needed.

5


"h. Order the Defendants to immediately publish the SBTC's HOS EiemptionApplication as to

interstate truck travel through the City of Midland, Texas in the Federal Register, engage in the

notice and comment period, and render a decision within 180 days pursuant to 49 U.S.C. $

313ls(b)(6XA)."

" On Augu st 6,202l,Plaintiff officially withdrew its HOS Exemption Application relating to the

City of Midland, Texas because Plaintiff s membership is no longer interested in pursuing this'

issue. Therefore, this relief is no longer needed.

"i. Order the Defendants to render a decision on SBTC's Class Exemption for Drivers Traveling

in Interstate Commerce with Domestic Animals Application and publish said decision in the

Federal Register."

The Defendants rendered a decision on Plaintiffs Class Exemption for Drivers Traveling in

Interstate Commerce with Domestic Animals Application and published said decision in the

Federal Register. Therefore, this relief is no longer needed.

In its Minute Order of Septemb er 24,2020, the Court ordered that the Amended

Complaint shall be the final operative Complaint. The Plaintiff hereby petitions the Court to

reconsider that Order and allow the Plaintiff leave to again amend its complaint to withdraw

Counts II and III, and amend Counts I, IV and V of its Amended Complaint, to withdraw the

relief requested in Paragraphs f. through i, of its Amended Complaint and to include this most'

recent violation of law because the most recent violation of law alleged by the Plaintiff is related

to the prer.ious allegations and happened after the Court made its ruling disallowing funher

amendments in this case.

6


ARGUMENT

Rule 15(a) provides that leave to amend shall be freely given when justice requires.

"Leave to amend a complaint should be freely given in the absence of undue delay, bad faith,

undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility."

'" Richardsonv. [JnitedStates,l93 F.3d 545,548-549 (D.C. Cir. 1999). The United States

Supreme Court has declared that "this mandate is to be heeded." Fomqnv. Davis,371 U.S. 178,

152 (T962): Davis v. Liberty Mut. Ins. Co.,871F.2d 1134,1136 (D.C. Cir. 1989). Thus, the

burden is on the opposing party to show that there is reason to deny leave. In re Vitamins

Antitrust Litigation,2lT F.R.D .30,32 (D.D.C. 2003). The Supreme Court explained that "if the

underlying facts or circumstances.relied upon by a plaintiff may be aproper source of relief, he

ought to be afforded the opportunity to test his claim on the merits." Foman,371 U.S. at 182.

The law is well seffled that leave to amend a pleading should be denied only where there

is undue delay, bad faith or a dilatory motive, repeated failure to cure deficiencies by previous

amendments, undue prejudice, or futility of amendment. Firestone v. Firestone,T6 F.3d 1205"'

IZ0B (D.C . Cfu. t996). The grant or denial of leave to amend is committed to the sound

discretion of the district court. Andersonv. USAA Cqs. Ins 18, F.R.D. 307,310 (D.D.C. 2003).

Here, there is no undue delay, bad faith, a dilatory motive; there is no repeated failure to cure

deficiencies by previous amendment, no undue prejudice and no futility of amendment. The

Plaintiff makes its motion for leave to amend its complaint now because the Defendants have

once again failed to abide by the law, and as a result, Plaintiff s membership is'harmed and

injured. Plaintiff does not believe the Court, in ordering no more amendments, meant to qeate a

forward-looking moratorium of Defendant's obligation to follow the law and grant impunity.

7


Similarly, Plaintiff does not wish to jamb the courts and consume more valuable judicial

resources with a new yet related complaint to achieve justice.

1 Plaintiff is Entitled to Amend its Complaint Because There Has Not Been an Undue

Delay.

Plaintiff has not delayed in bringing this motion for leave to amend its qomplaint. The

United States Court of l,ppeals for the District of Columbia has held that "delay, without a

showing of prejudice, is not a sufficient ground for denying the motion ." Harrison v. Rubin,l74

F.3d24g,253 (D.C. Cir.1999); see also Atchinsonv. District of Columbia,73F.3d4l8,126

(D.C. C1y..1996) (holding that in order to determine the severity of the delay, the court considers

any resulting prejudice the delay may cause). Plaintiff s proposed amendment adds a count of '

Failure to Adhere to Procedures Required By Law, because once again, the Defendants, through

a pattem and practice, violated the law by not considering the Plaintiff s Decembe t 13,2019 and

March 8,z)2|petitions in a timely and lawful manner. Comes now, your Plaintiff, a month after

the Defendant's latest violation asking this honorable Court to now hold Defendants liable

through declaratory judgment for this latest violation, which just happened as of July 9,2021.lt

should be noted that the Plaintiff contends, and will prove through future discovery, that the

Defendants treat the Plaintiff differently than other similarly situated organizations, thus they

purposefully discriminate against the Plaintiff and its membership. Finally, becguse this case is

still in its early stage of litigation, there is no risk of unduly delaying discovery or delaying trial.

2. Plaintiff is Entitled to Amend its Complaint Because Defendants Will Not Be

Preiudiced

Defendants will not be prejudiced by Plaintiff s second amended complaint. The "liberal

concepts of notice pleading" is to make the defendant aware of the facts." Harrison,lT4 F -3d at

8


253. (Emphasis added) (quoting Hansonv. Hoffman,628F.2d42,53 (D.C.Cir. 1980)). The

addition of a count in the complaint that is substantially the same as previous allegations - that

the Defendants failed to act in accordance with Congressionally mandated statutes - does not

substantially change the theory on which the case has been proceeding, since the second

" amended complaint will continue to allege violations of the Administtative Procedure Act (APA)

5 U.S.C. $;$ 553, 701,-7k6as alleged in the original complaint. See Diourabchi v- Self,240

F.R.D. 5, 13 (D.D.C. 2006) ("Where the amendment substantially changes the theory on which

the case has been proceeding and is proposed late enough so that the opponent would be required

to engage in significant new preparation the court may deem it prejudicial.")

3 Plaintiff is Entitled to Amend its Complaint Because its Amendments Would Not Be

Futile.

Plaintiff s proposed amendments are not "futile." A District court may deny a motion to

amend a complaint as futile if the proposed claim would not survive a motion to dismiss."

Hettingav. United States,677 F.3d471,480 (D.C. Cir.2012) (citing James Madison Ltd bv Hecht

v. Ludtvig, 32 F'.3d 1085, 1099 (D.C. Cir. 1996)). In order to survive a motion to dismiss, a

complaint must have facialplausibility allowing the court to draw reasonable inferences that the

defendant is liable for the alleged misconduct. Ashffaft v. Iqbal,556 U.S. 662 QA}g)' The court

must construe the complaint in favor of the Plaintiff and grant the plaintiff the benefit of all

inferences derived from the facts. Schuler v. United States,6lT F.2d 605, 608 (D.C. Cir. 1979).

In the original complaint, the Plaintiff alleged that the Defendants failed to act in

accordance with Congressionally mandated statutes. The Defendants moved to dismiss the

complaint and claimed that the District Court did not have jurisdiction pursuant to the Hobbs

Act,28 U.S.C. 5 2342. Plaintiff argued in its opposition to Defendants' motion to dismiss that the

Hobbs Act is not applicable to the facts of the case because Plaintiff is not asking the court to

9


enjoin, set aside, suspend, or challenge the validity of the final orders of the agency nor relevant

statutes; plaintiff is arguing that Defendants did not comply with the Congressionally mandated

statutes that lawfully regulate the agency's conduct and afford petitioners and applicants due

process rights. Likewise, in its second amended complaint, Plaintiff is not asking the court to

.. enjoin, set aside, suspend, or challenge the validity of 49 U.S.C. 30162; rather,.Plairrtiff is

alleging that the Defendants did not comply with the Congressionally mandated statutes codified

at 49 U.S.C .30162, which is merely a procedural rather than substantive matter.

CONCLUSION

For the foregoing reasons and in the interest ofjustice, Plaintiff requests that the Court grant its

petition for reconsideration of order directing no more amendments to complaint and motion for

leave to file a second amended complaint.

Date: August20,202l Respectfully submitted,

/s/ Laurence L. SocciLaurence L. Socci, Esq.

D.C. Bar No. 241318The Socci Law Firm, PLLCP.O. Box 14051

Washington, DC 20044(202) 262-s843laurerece "

socci@soccilawfinn. cona

Counselfor Plaintiff

10




PlainffiSECOND AMENDED COMPLAINT

v,

U.S. DEPT. OF TRANSPORTATION crv[ ACTION NO. 20-883(CKK)

and

PETE BUTTIGIEG, in his officialcapacity as Secretary of the Department

of Transportation

and

F'EDERAL MOTOR CARRIERSAFETY ADMINISTRATION

and

MEERA JOSHI, in her official caPacitY

as Acting Administrator of the FederalMotor Carrier S afety Administration,

Defendants

SECOND AMENDED COMPLAINT'

1. Plaintiff, the Small Business in Transportation Coalition ("SBTC"), by and through the

undersigned Counsel, files this Second Amended Complaint against Defendants United States

Department of Transportation ("the Department"), Secretary Pete Buttigieg ("Secretxy"),

Federal Motor Carrier Safety Administration ("FMCSA") and Meera Joshi, Acting

1 plaintiff previously filed an amended complaint erroneously entitled Second Amended Complaint. ln actuality,

although this was the second iteration of the complaint, it should have been labeled First Amended Complaint.

t


Administrator ("Administrator"). collectively, "the Defendants," and hereby aliege the

following

JURISDICTION

2. This action arises under the Administrative Procedure Act (APA) 5 U.S.C. $$ 553, 701-

706. This Court has subject matter over this aciion because it is a cause arising under federal law.

28 U.S.C. $1331. In addition, this Court has the authority to issue dec.laratory relief sought

pursuant to 28 U.S.C. 52201.

3. This action is not asking this Court to determine the validity of any relevant statutes,

regulations, or final orders of the.agency. Rather, this action is asking this Court to determine

whether or not the Defendants acted lawfully under the relevant statutes or regulations.

4. This is an action against officers and agencies of the United States. Therefore, venue is'

proper in this Court under 28 U.S.C. $ 1391(e). Venue and personal juisdiction are also proper in

this Court because Defendants the Department and the FMCSA reside in this judicial district.

Defendants pete Buttigieg and Meera Joshi perform their official duties in this judicial district,

and the events giving rise to this action took place in this judicial district.

THE PARTIES

5. The SBTC is a 501(c)(6) trucking industry trade group representing interstate truckers '

and motor carriers, among other small players in the transportation industry. SBTC brings this

Second Amended Complaint on behalf of its members.

6. The SBTC has standing to bring this Second Aniended Complaint against Defendants

because (1) the individual members of the SBTC are injured by the actions of the Defendants, (2)

2


the interest this lawsuit is trying to protect is germane to the SBTC's purpose, and (3) neither the

claim asserted, nor the relief requested requires participation of individual members of the SBTC

in the Complaint.

7. The United States Department of Transportation is a Federal Cabinet department of the

- U.S" government concerned with regulating transportation in the United States.

g. Secretary Pete Buttigieg is the Secretary of the United States Departmeirt of

Transportation and is in charge of administering the rules and regulations of the Department and

has delegated authority to the FMCSA in accordance with 49 U.S. Code $ 322'

g. The Federal Motor Carrier Safety Administration is an agsncy within the Department that

regulates the trucking industry in the United States.

10. Acting Administrator Meera Joshi is the administrator of the EMCSA and is in charge of

administering its rules and regulations.

FACTUAL ALLEGATIONS

11. The SBTC challenges the FMCSA's summary and unlawful delay in the decision of the

SBTC's Electronic Logging Device ("ELD") Exemption Application, which SBTC filed on

behalf of its membership on August 09,2019, FMCSA's summary and unlawful delay in the

publication and decision of the SBTC's Transportation Intermediary Bond Exemption

Application, which SBTC filed on behalf of its membership on September 1 0,2019, FMCSA's

summary and unlawful delay in the publication and decision of the SBTC's Class Exemption

Application for Drivers Traveling in Interstate Commerse with Domestic Animals, which SBTC

filed on behalf of its membership on March 2,2020,FMCSA's summary and unlarnf,rl delay in

the publication and decision of the SBTC's Petition for Motor Vehicle Safety Standards and

3


Enforcement which SBTC filed on behalf of its membership on December 13,2019, FMCSA's

summary and unla'*f,rl delay in the publication and decision of the SBTC's Petition for Motor

Vehicle Safety Standards and Enforcement which SBTC filed on behalf of its membership on

March g,2OZL All of these delays violate the APA because Congress has enacted a statute that

." expressly requires the FMCSA to take specific actions on petitions and applications similar to

those submitted by the SBTC, by a specific date.

lZ. On August 0g,20lg,the SBTC filed an ELD Exemption Application on behalf of its

members with the FMCSA, in a letter addressed to FMCSA Administrator Ray Martinez. see

EXHIBIT A.

13. The FMCSA failed to immediately publish the notice in the Federal Register upon receipt

and render a decision in the Federal Register regarding the SBTC's ElD Exemption Application

within 180 days.

14. On September 10, Z}lg,the SBTC filed a resubmission of Transportation Intermediary

Bond Exemption Application pursuant to 49 U.S.C. $ 31315(b)(3) and 49 CFR 381.317, which

was required to be published in the Federal Register "upon receipt" purstnnt to 49 U.S.C.

631315. See EXHIBIT B.

15. The SBTC's Transportation Intermediary Bond Exemption Application was filed in a

letter to FMCSA Administrator Ray Martinezvia U.S. mail and via email'

1 6. On Octobe r 29 , 2019, the FMCSA posted a Notice in the Federal Register requesting

public commelts on the SBTC's ELD Exemption Application on behalf of its members. Public

comments were due by Novembet29,2019-

4


17. On December 30, 2019, LaTonya Mimms, FMCSA Chief of Driver and Carrier

Operation sent an email to SBTC Executive Director James Lamb inforrr,.ing him that "The

Federal Register Notice for the subject request (SBTC's Transportation Intermediary Bond

Exemption Application) has been drafted and is currently under departmental review. The notice

.. along with the corresponding application will be published within the 180-day period."

18. The FMCSA failed to immediately publish the notice in the Federal Register upon receipt

and render a decision in the Federal Register regarding the SBTC's Transportation Intermediary

Bond Application within 180 days.

lg. On March 02,2020, SBTC filed a Class Exemption Application for Drivers Traveling in

Interstate Commerce with Domestic Animals, pursuant to 49 U.S.C. 3 1315 and 49 C.F.R.

381.310. See Exhibit C.

20. Defendant Secretary of Transportation has a duty to grant or deny an exemption

application within 1 80 days of its filing pursuant to 49 U.S.C. $ 3 13 1 5(bX7), which states in

relevant part: "The Secretary shall grant or deny an exemption request after athorough review of

its safety implications, but in no case later than 180 days after the filing of such request;"

(Emphasis added).

21. The FMCSA failed to render a decision in the Federal Register regardirig the SBTC's

Class Exemption Application for Drivers Traveling in Interstate Commerce with Domestic

Animals, within 180 days.

22. Plaintiff now seeks to amend its Complaint for a second time because once again the

Defendants have violated due process in that they have twice failed to adhere to 49 U.S.C. $

30t62.

5


23. On December 13, 20lg,the SBTC petitioned the previous Secretary of the Department of

Transportation for Motor Vehicle Safety Standards and Enforcement, pursuant to 49 U'S'C' $

30 162. See Exhibit D.

24. The petitioned was required to be processed within 120 days by either commenclng a

'" proceeding or publishing a denial in the Federal Register. Plaintiff s belief is that the petition has

yet to be acted upon and no adverse decision has been published in the Federal Register as

required by said statute.

25. On March g,Z)zl,the SBTC resubmitted this petition to the incoming Secretary and

simultaneously made a request for an Office of Inspector General (OIG) audit of FMCSA's

compliance with MAP-21, insofar as the Secretary was required to develop a bona fide ELD

Certification program and did not, choosing instead to allow ELD manufacturers to "self-

certiff.". See Exhibit E.

26. This second petition was also required to be processed by Defendants within 120 days.

That petition was also not acted upon within the 120-day statutory time frame and no denial has

been published in the Federal Register in violation of Plaintiff s right to due process.

27. FMCSA's failure to make timely decisions on the SBTC's ELD Exemption Application,

the SBTC's Transportation Intermediary Bond Exemption Application, and SBTC's Class

Exemption Application for Drivers Traveling in Interstate Commerce with Domestic Animals,

and publish those decisions in the Federal Register within 180 days violates 49 U.S. Code

$3 1 3 I 5(bX7), which states:

(7) Applications to be Dealt With Promptbt - The Secretary

shall grant or deny an exemption request after a thorough

review of its safety implications, bat in no casd latet than

180 clays after theJiling of sach request- (Emphasis added)'

6


28. As of the filing of the original complaint, it had been well over 7 months since the SBTC

filed its ELD Exemption Application and the FMCSA had not rendered a decision on the

application and filed that decision in the Federal Register. Only when the origiiral complaint was

filed with this Court did the Defendants act.

29. As of tlie filing of the original compliant, it had been over 180 days since the SBTC filed

its Transportation Intermediary Bond Exemption Application to the FMCSA and the FMCSA

had still not published the notice of the application nor rendered and published a decision on the

application. Only when the original complaint was filed with this Coyt did the Defendants act to

publish notice it had received this exemption application. It has now been23 months since this

application was filed and there is still no decision even though the comment period closed over

14 months ago.

30. As of the filing of the first amended complaint, it had been well over 180 days since the

SBTC filed its Class Exemption Application for Drivers Traveling in Interstate Commerce with

Domestic Animals, and the Defendants had yet to render a decision on it. Only when the

amended complaint was filed with this Court did the Defendants act.

31. The Secretary's failure to make timely decisions on the SBTC's December 13,2019

Petition for Motor Vehicle Safety Standards and Enforcement, and SBTC's March 8,2021

petition for Motor Vehicle Safety Standards and Enforcement violates 49 U.S. Code $ 30162,

which states:

7

(d)Actions of Secretary.-


The Secretary shall grant or deny a petition not later than 120 days after the petition is

filed. If a petition is granted, the secretary shall begin the proceeding promptly. If a

petition is denied, the Secretary shall puhlish the reasons for the denial in the Federal

Register.

" 32. It is the SBTC's belief that every other ELD exemption application that has been

submitted to the FMCSA for consideration and published in the Federal Register by other

trucking associations, was decided upon within 6 months fi'om the date of filing, as per 49 U'S'

Code $3131s(bx7).

33. The FMCSA purposely and intentionally discriminated against the SBTC and its

members by treating it differently than every other trucking association that filed an ELD

Exemption Application.

34. In delaying and refusing to render and publish in the Federal Register a decision

regarding the SBTC,s ELD Exemption Application, the SBTC's Transportation Intermediary

Bond Exemption Application, and the SBTC's Class Exemption Application for Drivers

Traveling in Interstate Commerce with Domestic Animals, FMCSA failed to complete notice

and comment rulemaking within the specific time period of 180 days prescribed by Congress,

failed to provide a reasonable justification for its delay, acted arbitrarily and capriciously and in a

pattern and practice in excess of statutory justification, authority, or limitations or short of

statutory right, and withheld or uffeasonably delayed agency action, all in'violation of the

Administrative Procedure Act, 5 U.S.C. $ 552, et. seq'

8


CAUSES OF ACTION

COUNT IFailure Adhere To res Req Bv Law

35. Paragraphs 1 through 34 of this Complaint are incorporated herein by reference.

36. The APA provides a general cause of action for parties adversely affected or aggrieved

by agency action for which there is no other adequate remedy in court. 5 U.S.C. $$ 702-704.

37. Under the APA, a reviewing court shall "compel agency actioJr unlawfully withheld or

unreasonably delayed." 5 U.S.C. $706 (1).

38. The APA requires all agencies to give "(g)eneral notice of proposed rule-making" and

provide "interested persons an opportunity to participate in the rule making through submission

of written data, views, or arguments with or without opportunity for oral presentation." 5 U.S.C

$ ss3(b), (c).

39. The FMCSA violated 49 U.S.C. $ 31315(b)(7)by failing to grant or deny the SBTC's

ELD Exemption Application request within 180 days after the filing date of such request.

(Emphasis added.)

40. The FNICSA violated 49 U.S.C. $ 31315(b)(6)(A) by failing to publish in the Federal

Register the SBTC's Transportation Intermediary Bond Exemption Application request "g@

@I" of said exemption request and commence a notice and comment period' (Emphasis

added.)

9


41. The FMCSA violated 49 U.S.C. $ 31315(b)(7)by failing to gqant or deny the SBTC's

Transportation Intermediary Bond Exemption Application request within 180 tlavs after the

filing date of such request. (Emphasis added.)

42. The FIyICSA violated 49 U.S.C. $ 31315(b)(7) bV failing to grant or deny the SBTC's

^" Class Exemption Application for Drivers Traveling in Interstate,Commerce with Domestic

Animals request within 180 davs after the filing date of such request. (Emphasis added.)

43. As a result of FMCSA's failure to adhere to procedures required by law, the SBTC's

members suffered a direct injury.

44.

COUNT IIArbitrary and Capricious Action

Paragraphs 1 through 43 of this Complaint are incorporated herein by reference.


by agency action for which there is no other adequate remedy in court. 5 U.S.C. 5 702-704.

46. Under the APA, a reviewing court shall "hold unlawful and set aside agency action,

findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law ... [and] in excess of statutory jurisdiction, authority, or limitations,

or short of statutory right." 5 u.s.c. $ 706(2xA), (C).

47. When delaying, modifuing, amending, and/or repealing a duly promulgated rule, the

agency must identiff its authority or basis to do so.

48. By failing to acknowledge and to act on SBTC's ELD Exemption Application and its

Transportation Intermediary Bond Exemption Application, and failing to render a decision its

Class Exemption for Drivers Traveling in Interstate Commerce with Domestic Animals

10


Application within the 180 day statutory period and the SBTC's December 13,'2019 & March 8,

2021Petitions for Motor Vehicle Safety Standards and Enforcement with 120 days, the

Defendants violated the Administrative Procedure Act by treating SBTC and its members in an

arbitrary and capricious manner.

49. 49 U.S.C. $135a1(a) provides that:

(a) "the Secretary or the Board, as applicable, shall exempt a-person, class of persons,

or a transaction or service from the application, in whole or in part, of a provision of this

part, or use this exemption authority to modifi the application of a provision of this part-as

it applies to such person, class, transaction, or service, when the Secretary or Board

finds that the application of that provision-

(t) is not necessary to carry out the transportationpolicy ofsection 13101;

(2) is not needed to protect shippers from the abuse of market power or tltat the

transaction or service is of limited scope; and

(3) is in the public interest. (Emphasis added.)

50. The Defendants have no authority to delay decisions on exem.ption applications beyond

the 180-day statutory requirement, yet it has done so in the case of the SBTC's'ELD Exemption

Application and its Transportation Intermediary Bond Exemption Application but not in the case

of other trade groups' exemption applications.

51. The Defendants have no authority to withhold publication of exernption applications in

the Federal Register upon receipt of such exemption applications nor do they have authority to

ignore the 120 day requirement in 49 U.S. Code $ 30162.

52. The Defendants abused their discretion and acted in excess of statutory jurisdiction,

authority, or limitations, or shon of statutory right during the course of implementing the

enabling legislation that directs the agency to issue exemption applications under specific

circumstances and when it failed to render a decision on the SBTC's ELD Exemption

1t


Application and its Transportation Intermediary Bond Exemption Application requests within the

time period set forth in 49 U.S.C. $ 31315(b)(7)'


authority, or limitations, or short of statutory right when it failed to publish the SBTC's

'" Transportation Intermediary Bond Exemption in the Federal Register in accordance with 49

u.s.c. $ 3131s(b)(6) (A).


authority, or limitations, or short of statutory right when it failed to publish the SBTC's Class

Exemption Application for Drivers Traveling in Interstate Commerce with Domestic Animals, in

the Federal Register in accordance with 49 U.S C. $ 31315(b)(6) (A).


authority, or limitations, or short of statutory right when it failed to process the.SBTC's

December 13 , 20lg & March 8, 2021 Petitions for Motor Vehicle Safety Standards and

Enforcement with 120 days


members suffered a direct injurY.

57. As the Plaintiff regularly interacts with Defendants and makes applications and petitions

the Defendants on behalf of its members, the Defendants should be enjoined from engaging in

further arbitrary and capricious handling of Plaintiff s applications and petitions.

COUNT IIIAction Unlawfullv Withheld Or Unreasonablv Delaved

58. Paragraphs 1 through 60 are incorporated herein by reference.

12



by agency action for which there is no adequate remedy in court. 5 U.S.C. 5 702-704.

60. The FMCSA unlawfully withheld or unreasonably delayed its decision on the SBTC's

ELD Exemption Application, within the time period set forth in 49 U.S.C. $ 31315(bX7).

61. The FMCSA unlawfully wittrheld or unreasonably delayed its publication of the SBTC's

Transportation Intermediary Bond Exemption Application in the Federal Register in accordance

with 4e u.S.C. $ 31315(b)(6) (A)


members suffered a direct injury.

63. The FMCSA should be enjoined from engaging any further in unlawfully withholding

decision or unreasonably delaying action on Plaintiff s applications and petitions.

COUNT IV

F

64

of 42 U.S. C. $ 1983

Paragraphs 1 through 63 are incorporated herein by reference

65. 42 U.S.C. 1983 states:

"Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within thejurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress, except that inany action brought against a judicial officer for an act or omission taken in such

officer's judiciat capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable. For the

putposes of this section, any Act of Congress applicable exclusively to the

13


District of Columbia shall be considered to be a statute of the District ofColumbia."

The First Amendment to the united States constitution states:

"Congress shall make no law respecting an establishment of religion or

prohibiting the free exercise thereof; or abridging the freedom of speech,

br of the press, or the right of the people to peaceably assemble, and to

petition the Government for a redress of grievances." (Emphasis added.)

67. The Administrative Procedure Act5 U.S.C $702 provides that o'a person suffering legal

wrong because of agency action, or adversely affected of aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review thereof."

68. FMCSA through its officers and employees, has a duty as a federal agency to treat all

organizations that petition it for redress with the attention and consideration of any petition

submitted by an organization whose members are covered by and subject to FMCSA regulations.

69. Time and time agan,the FMCSA, through its agents and employees treats the Small

Business in Transportation Coalition, and its 15,000 members differently than it treats other

similarly situated trucking association, whose members are subject to FMCSA regulations.

70. As a result of FMCSA's discriminatory actions against the SBTC and its members, in

violation of the l't Amendment of the U.S. Constitution and 42 U.S.C. $ 1983, SBTC members

are not given the same opportunity to petition the FMCSA on issues and regulations that affect

them as members of other similarly situated trucking associations.

71. On January 8, 2018, SBTC Executive Director James Lamb's personal attorney James

Bopp deposed retired FMCSA Investigator Robert Lee Thomasson in another matter. Mr. Bopp

quoted Mr. Thomasson referring to James Lamb as stated on page 134 which shows FMCSA has

t4

66.


a deep hatred for Lamb and has been disappointed and frustrated because they have failed to find

something they can prosecute him on:

0l:48.57 4 a -- "and has been on our radar for

01:48:59 5 years."

01:48:59 6 And then the next sentence, "He stays

01:49:01 7 on -- "he stays on just on the edge but we have

01:49:05 8 not yet found prosecutable data; OIG is very much

0l.49 14 9 in the looP."

01:49:15 10 A Yes, sir. See Exh:!b;!!E.

72. In the Spring of 2)Z},Plaintiff received information that an employee of FMCSA, Joseph

Delorenzo, Acting Associate Administrator of Enforcement, told a trucking association member

that SBTC Executive Director James Lamb's petitions will never be heard by FMCSA because

FMCSA does not like him.

73. In Decemb er of 2O16,Lamb's attorneys filed a Freedom of Information request to

investigate the nature of FMCSA's discriminatory practices against Lamb. FMCSA still has not

complied with their request despite inquiries from Congressman Ted Deutch and Senator Marco

Rubio

FMCSA should be enjoined from engaging in further discrimination against Plaintiff, its74

officers, and Directors

15


PRAYER FOR RELIEF

Wherefore, SBTC respectfully prays this Court to

a. Declare the Defendants' failure to render a decision on the SBTC's ELD Exemption

Application within 180 days unlawtul in violation of the APA and 49 U.S.C $ 31315(bX7);

b. Declare the Defendants' failure to publish the SBTC's Transportation Intermediary Bond

Exemption Application "upon receipt" an unlawful violation of the APA and 49 U.S.C' $

31315(bX6)(A);

c. Declare the Defendants' failure to render a decision on the SBTC's Transportation

Intermediary Bond Exemption Application within 180 days unlawfulin violation of the APA and

4e u.s.c $ 3131s(b)(7):

d. Declare the Defendants' failure to render a decision on the SBTC's Class Exemption

Application for Drivers Traveling in Interstate Commerce with Domestic Animals within 180

days unlawtul in violation of the APA and 49 U.S.C $ 31315(b)(7);

e. Declare the Defendants' failure to make timely decisions on the SBTC's December 13,

2019 petition fbr Motor Vehicle Safety Standards and Enforcement violates 49 U.S. Code

$ 30162.

f. Declare the Defendants' failure to make timely decisions on the March 8,2021Petition

for Motor Vehicle Safety Standards and Enforcement violates 49 U.S. Coile $ 30162.

g. Declare the Defendants' purposeful discrimination of SBTC and its membership a

violation of 42 U.S.C. $ 1983 and the First Amendment to the U.S. Constitution.

16


h. Enjoin the Defendants from further violating the APA, 49 U.S.C. $ 31315(b)(6XA) and

49 U.S.C. $31315(b)(7) by failing to publish in the Federal Register exemption applications

o1pon receipt," failing to commence the required notice and comment period through publication

in the Federal Register, failing to render decisions on said applications within 180 days. .

i. Enjoin the Defendants from turther violating the APA, 49 U.S.C. $ 31315(b)(6)(A) and

49 U.S. Code g 3ol62by failing to process petitions for Motor Vehicle Safety Standards and

Enforcement within 120 days.

j. Enjoin the Defendants from discriminating against SBTC, its officers, and directors and

order Defendants to give SBTC and its members the same level of access to petition the FMCSA

on issues and regulations that affect them and equal protection of the law.

k. Award all costs and expenses of bringing this action, in:luding attomeys' fees and costs;

l. Grant any other relief this court deems.iust and proper

Respectfully submitted,

/s/ Laurence L. Socci

Laurence L. Socci, Esq.

D.C. BarNo.:241318P.O. Box 14051Washington, DC 20044(202) 262-s843laurence.socci@socci lawfi rm.comAttomey for SBTC

and

t7




Plaintiff

v.

MOTION FOR LEAVE TOAMENDCOMPLAINT

U.S. DEPT. OF TRANSPORTATION, et al. cr v. ACTION NO. 20-883(CKK)

CERTIFICATE OF SERVICE

I hereby certiff that on this 20th day of August,202l I served a true and correct copy of the

foregoing Petition for Reconsideration and Motion for Leave to Amend Complaint been made

upon counsel of record for the Defendants, through the Court's ECF system.

Respectfully submitted,

/s/ Laurence L. SocciLaurence L. Socci, Esq.

D.C. Bar No.: 241318

The Socci Law firm, PLLCP.O. Box 14051Washington, DC 20044(202) 262-s843traurence. soaci@soccilawfi rrn.cona

Attorney for Plainriff


frIT

Ito5"o€

Srrell Buslneas In Tl a;n a po ftatt an G aa lttlo n

August 9,2019

"The Honorable Raymond fi/lartinez, AdministratorFederal JtI otor Carrier Safety Ad m in istration1200 New JerseY Avenue SEWashington, DC 20590

Re: Docket No. FMCSA-2018-0180; RESUBMISSION OF ELD EXEMPTION

APPLICATION PURSUANT TO 49 US. Code S31315(bX3) & 49 CFR 381.317;

REQUIRED TO BE PUBLISHED IN THE FEDERAL REGISTER "UPON RECEIPT"

PURSUANT TO 49 U.S. CODE S 31315

Dear [Vlr. [Vlartinez,

pursuant to 49 U.S. Code S 31315(bX3) and 49 CFR 381.317, the Small Business in

Transportation Coalition hereby resubmits to you --pursuant to your authority delegated

by the Secretary of Transportation -its ELD Exemption Application in the matter of

Docket No. FMCS A-2018-0180. We offer this letter, which we contend "reasonably

address(es) the reasons for denial." We hereby request reconsideration of said denial.

Background

The SBTC first submitted its ELD Exemption Application on November 20, 2017 (Exhibit

A). FMCSA rejected said application, without publication in the Federal Reqistef, by

letter of January 5,2018 (Exhibit B) stating our original submission did not conform to

the requirements of 4g CFR 381.310. Thereafter, SBTC resubmitted the application on

February 1,2A1g (Exhibit c) 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 (Exhibit D) asking for the agiency to promulgate

rules for the submission of class exemptions; that the FMCSA on its website, pursuant

to its FAST Act obligations, recorded receipt of this application as of June 14,2018

(Exhibit E); but noted, strangely, that a response to SBTC acknowledging receipt was*N/A" in this instance despite FAST Act requirements to the contrary.

17751. (Eye) Street, NW, Suite 1150, Washington, DC 20006

(202) 7 3 1 -52 2 3 wwrrv. T rucke rs. com S u p oo rt@T ru cke rs. co m

Via Express U.S. tVlail & EmailAttachments bY HardcoPY OnlY


EXEMPTION APPLICATION REQUIRED TO BE PIJBLISHED IN THE FEDERAL

REG'STER "IJPON RECEIPT" PIJRSIJANT TO 49 U,S. CODE S 3'3'5

The Honorable RaYmond Martinez

August 9, 2019

Page 2 ot 11

^'We contend that by publishing the application in the Federal Reqister thereafter on June

S,z116-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.

We request these documents all be incorporated into this application by reference,

including, but not limited to, the original request for the exemption'

Federal Lawsuit

SBTC filed a Federal Lawsuit

V. U.S. DEPARTMENT OF TRANSPORTATION Et AI iN DiStriCt Of COIUMbiA DiStTiCt

court (1.2019cv0131 1) on May 6, 2O1g seeking the court to compel agency action on

the ELD Exemption Application after more than twice the 180 day period Congress

requires FMCSA to decide on these matters had elapsed. Thereafter, FMCSA finally

ruled on this matter on July 17,2A19, we contend, haphazardly. We note a competitor

trade group's (OOIDA) application filed one day after ours on November 21,2017 was

processed by the agency within 180 days.

The FMCSA Decision

,For thereasons given below, FMCSA denies fhe SB TC application for exemption- The

SBfC application does not meet the regutatory standards for an exemption- SBTC

faited to provide "[t]he name of the individuat or motor carrier that would be responsible

for the use or operation of CMVs" under the exemption [49 CFR 381.310(b)(2)]. SB fC

did not provide the name of a single motor carrier. SBfC failed to "[p]rovide[] an

estimate of the totat number of drivers and CMVs that would be operated under the

terms and conditions of the exemption" [g 381.310(c)(3)]. tnstead, SB TC said "we defer

to FMCSA ta determine the totat number of drivers and CMVs that would be operated

under the exemption." SBfC failed to "[e]xptain[] how you would ensure that you could

achieve a level of safety that is equivalent to, or greater than, the level of safety that

woutd be obtained by comptying with the regutation" [$ 381.310(c)(5)]. The application

said "we betieve the level of safety is already assured by the pre-existing Hours of

Service rule as opposed to this ELD enforcement mechanism rule.

B N


EXEMPTION APPLICATION REQUIRED TO BE PIJBLISHED IN THE FEDERAL

REGTSTER "|JPON RECEIPT" P|RSLJANTTO 49 IJ.S. CODE S3lSlS


August 9, 2019

Page3of11" Nord,d SB TC meet the statutory requirement in 49 U.S.C. 31315(b)(5)(D) to describe

,,[t]he specific countermeasures the person woutd undeftake to ensure an equivalent or

greater tevet of safety than woutd be achieved absent the requested exemption'" SBfC

proposed no countermeasures at all'

For att of these reasons, FMCSA denies SBf$'s request for exemption'"

Now, SBTC to ' onab Address the for nial'

FMCSA Ctaim One: "The SBIC application does not meet the regulatory

standards for an exemption. SB7C faited to provide "[t]he name of the individual

or motor carrier that would be resp onsible for the use or operation of cMVs"

under the exemption [49 CFR g81.g1\(b)(2)]. SBIC did not provide the name of a

single motor carrier."

FM arm As previously stated herein, this issue was

previously invoked bY the agency in its January 5, 2018 rejection letter; SBTC

responded to this issue in its Febru ary 1,2018 supplement to its November 20,2017

application; Ftt/CSA conceded that SBTC had addressed this matter as the application

was thereafter deemed worthY of P ublication in the Federal Reqister. Had this still been

a bona fide issue for FMCSA, FMCSA would have rejected the application yet again'

FMCSA',s claim, here, neglects to acknowledge the fact that this is an application for a

class exemption... that FMCSA has failed to promulgate procedural rules for the

submission of class exemptions such as this one applied for by a trade group' and that

the name of a specific motor carrier is not applicable to class exemptions submitted by

trade groups. The agency is holding apples accountable for rules set for oranges'

FMCSA is simply misguided in relying on a regulation grounded in a statute that deals

with its authority to issue individual drivers'hearing and vision type applications for

exemption. class exemptions are not the same as individual exemptions' The law

recognizes that not all exemption applications are the same and specifically makes this

distinction by references class exemptions. FMCSA never promulgated such regulations

for this category of regulations and it is trying to make the glove fit an oversized hand'


EXEMPTION APPLICANAN REQUIRED TO BE PUBI-ISHED IN THE FEDERAL

REGTSTER "IJPON RECEIPT" PURSUANT TO 49 U.S. CODE S 31315

The Honorable Raymond Martinez

August 9, 2019

Page 4ot 11

' This response as a basis to reject our application by FIVICSA is arbitrary and capricious,

frustrates what should be a legitimate application process, and suggests that a tradegroup may !!.rcI submit a class exemption application under the agency's rules

because it is not an individual motor carrier. This response is also discriminatory as this

requirement was not imposed upon OOIDA in the matter of their ELD Class Exemption

Application that, again, was filed on November 21,2017, the day after we submitted

ours.1 SBTC has properly identified and defined the class in terms of all interstate motor

carriers with 50 or less employees.2 ln pointing this out, SBTC has already reasonably

addressed this point.

FMCSA Claim Two: SBIC failed to "[p]rovide[] an estimate of the total number ofdrivers and CMVs that would be operated under the terms and conditions of theexemption'IS 351.310(c)(3)]. lnstead, SBTC said "we defer to FMCSA todetermine the total number of drivers and CMVs that would be operated under theexemption."

SBTC Response to FMCSA Claim Two: As indicated in our original application,

because this is not an application by a single carrier that would know the number of

employee drivers it has, but a trade sroup. SBTC properly deferred to the agency,

which is the custodian of I\ICS-150 industry data. SBTC as a trade group does not

possess these data and cannot possibly be expected to furnish same as a condition for

approval.

Even if SBTC filed a FOIA request for said data in November of 2017, FMCSA does not

process such requests in a timely manner. For instance, the undersigned is stillwaitingas of mid-20'19 for the agency to respond to a FOIA request submitted in 2016. lt is

unreasonable to expect SBTC to furnish such industry-wide data known only to the

agency; again, this rule is intended to apply to an individual carrier that would have

access to its own employee numbers and it is wrongly being misapplied here.

' FMCSI decided the OOIDA application within L80 days as requirefl by law. Our application went more than a year

without a decision necessitatingthe filing of a Federal Lawsuit in May 2019 to compelagency action. This decision

was nothing more than a shoddy attempt to posture in defense of that suit and show compliance with the law to a

Federal Judge. SBTC believes but not for that lawsuit, this matter would still be pending.2

"Employees" was thereafter clarified in a meeting between SBTC Lobbyist Laurence Socci and Associate

Administrator Larry Minor to mean Driver employees during the pendency of this proceeding.


EXEMPTION APPLICATION REQUIRED TO BE PTTBLISHED IN THE FEDERAL

REGTSTER "lJPoN RE}EIPT" PTJRSIJANT TO 49 U.S. CODE S 31315


August 9, 2019

Page5of11"'

Furthermore, FMCSA's own rulemaking record shows it already possesses and is well

aware of these types of data. As indicated in Exhibit A, on December 16, 2015, FMCSA

referenced the steps it had taken to minimize adverse economic impacts on small

entities lsee: https:4r,rrn'w*qpo'qov/tdsvs/pkg/F&20 'As

we noted in our origtnar application, a reading of the FMcsA analysis suggests that

FMCSA has essentially ignored and disregarded the impact of the ELD rule on the

smallest of industry players in an overbroad assessment that places one-man interstate

owner-operators into the same category as other "small businesses" within the trucking

industry. For instance. in referencing North American lndustry Classification System

(.NAICS') codes 484110 through 484230 (Freight Trucking), the FIVICSA makes no

distinction whatsoever between businesses with annual revenues of $27-5 million and

mere one-man operators of commercial motor vehicles. That is, FIVICSA stated:

,,Of the poputation of motor carriers that FMCSA regulates, 99 percent are considered

smatt entities undersBA',s definition. Because smattbusrnesses constitute a large part

of the demographic the Agency regulates, providing exemptions to smallbusrness fo

permit noncompliance with safety regutations rs nof feasible and not consistent with

good pubtic policy. The safe operation of CMVs on the Nation's highways depends on

compliance with att of FMCSA',s safefy regulations. Accordingly, the Agency will not

allow any motor carriers to be exempt from coverage of the rule based solely on a

sfafus as a small entity. Fufthermore, exempting smatlbusrnesse s from coverage would

be inconsistent with tlte explicit statutory mandate contained in MAP-21-"

Notwithstanding passenger carriers, we note here that truckinfo.net

(frttps:llvwwv.truqkif'fo.neffi ) estimates that there are 1'2 mil|ion

trucking companies in the U.S. and of that figure, 97o/o opetate 20 or fewer trucks, while

g0% operate 6 or fewer trucks. We could extrapolate from this to infer numbers of

drivers. However, we are not aware of exact statistics that estimate how many

companies operate with 50 of fewer drivers per se. Logic would dictate that it is

probably somewhere in between the 97o/o refened to by truckinfo.net and the 99% put

forth by FMCSA above. But that still does not address "total number of drivers and

CMVs.,, How many drivers work for carriers between 20 trucks and 50 trucks remain an

FMCSA secret FMCSA does not seem willing to share. Just because a carrier has, say,

only one truck, does not necessarily mean it does not have more than one driver.


EXEMPTION APPLICATION REQUIRED TO BE PTIBLISHED IN THE FEDERAL

REG,STER ',UP,N RE}EIPT,, PURSImNT To 49 U,s. coDE s 3,3,5


August 9, 2019

Page6of1l''

This response as a basis to reject our application by FMCSA is also arbitrary and

capricious, frustrates what should be a legitimate application process, and suggests that

a trade group may !!rcI submit a class exemption application because it is not an

individual motor carrier and does not have unfettered access to exact wide-spread

industry data in the custody and control of FMCSA. This response is also discriminatory

as this rule was not imposed upon OOIDA in the matter of their ELD Class Exemption

Application that was filed on November 21,2017, the day after we submitted ours'

Nonetheless, SBTC believes that it has now further identified the percentage of carriers

that would be affected by the class exemption herein. But we do not know of a way to

accurately extrapolate the number of drivers that would be impacted by this class

exemption from the estimated 3.5 million truck drivers in the United States, without

further data in the custody and control of FMCSA and we again defer to FMCSA to

assess the "total number of drivers and CtVlVs" as it usually does when engaging in

rulemaking." ln pointing this out, SBTC has reasonably addressed this point'

FMCSA Claim Three: SBTG failed to "[etxplain[t 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" [s 381'310(c](5)l'

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."

SBTC Response to FMCSA Claim Three: Again, this claim places the onus on "you" as

in ,you individual carrier, you,' as opposed to a 501(cX6) trade group acting on behalf of

its constituency.

However, we will offer information that we have already supplied the agency elsewhere

that was not previously attached to our application that we believe shows that ELDs

have caused reckless speeding and pose national security threats that are resulting

consequences contrary to the agency's mission an.d Congressional mandate to ensure

public safetY.


EXEMPTION APPLICANAN REQIIIRED TO BE PUBLISHED IN THE FEDERAL



August 9, 2019

Page 7 ol 11

" SBTC contends FMCSA must look carefully at the unintended consequences of the

ELD rule when deciding whether or not to grant the exemption. we would suggest

FMCSA should grant the exemption at least temporarily if for no other reason than to

press the pause button while it studies these unintended consequences and their

adverse effects on safety. We contend this would indeed achieve a greater level of

overall safety than the current status quo. Our previous pleas to the agency to this effect

have fallen upon deaf ears. we ask the agency to lend us their ears now'

The true problem, here, is that the biggest carriers in the industry pay drivers by the mile

and the agency governs driving by the clock. We offer the attached articles, comment,

and poll results (Exhibit F), which assert that FMCSA should address the underlvins

premise that has caused some drivers to cheat on paper logs in the past and/or

-ecklessly speed. And we suggest that even if speed governors are enacted as a matter

of law or regulation, this will not address the problem of speeding in school and

construction zones. Regulation is not the real answer to the safety problems of driver

fatigue and speeding. A paradigm shift in the method of driver compensation is'

The relentless tightening of the noose on drivers with ELDs and speed limiters to the

degree that they are overly stressed about the ability to make money and feed their

families is simply not in the public interest. lt causes drivers to act erraticallv due to

emotional distress, which translates into such drivers being a downright nervous

wreck menace on the road, and we believe it adversely affects industry's already-

abysmal retention rates. This is neither in accordance with the National Transportation

policy nor in the best economic interest of consumers dependant on a healthy supply

chain nor Public safetY-

We also point to the national securitv threat in Exhibit F posed by telematic devices'

FMCSA Glaim Four: Nor did SBTC meet the statutory requirement in 49 U'S'C'

31315(bX$XD) 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.


EXEMPTION APPLICATION REQUIRED TO BE PUBLISHED IN THE FEDERAL

REG'STER "IJPON RECEIPT" PTJRSIJANT TO 49 U.S, CODE S 3'3'5


August 9, 2019

Page8ofl1'"sBTc

Response to FMCSA Claim Four: This is simply false and leaves us wondering if

the decision-maker even read ort uppti.ation or if it was merely rubber-stamped' sBTc

suggested a return to paper logs as a countermeasure. we echo that countermeasure

here.

paper logs were deemed sufficient to ensure adequate levels of safety for generations,

more than 80 years. And the FMCSA has already issued numerous exemptions that

require carriers to revert to tracking their hours of service using paper logs in lieu of

ELDs; specifically, in the area of transportation of livestock' To suggest that it is

somehow "Safe" ior transporters of pigs to revert back to paper logs, but it is not safe for

transporters of general commodities to use paper logs as a countermeasure simply

defies logic. The commodity does not dictate what is safe. what's good for the goose" '

The fact that FMcsA missed this countermeasure in our application proves our point

that this application was issued in haste despite the enormous amount of time that

passed since it was filed and that it was not given due consideration; obviously, this

application and the comments in support (over 90% of nearly 2,000 comments filed)

were simply skimmed over and this application was arbitrarily denied on a whim

contrary to the spirit of the Administrative Procedure Act and Administrative Law'

It is clear that after failing to issue a determination all this time, nearly a year after the

180 day processing deadline expired, the only reason this denialwas hurriedly issued

was to report that FMCSA finally complied with the law to a Federal Judge'

FMCSA Decision Failed to Give Due Consideration and Failed to Address Matters

Required to be Addressed bY Law

FMCSA's decision fails to address its own statutory obligations under 49 USC 13541,

the actual applicable statute here, to show we are wrong when we assert that the ELD

rule is not necessary to carry out the transportation policy of section 13101 ; is not

needed to protect shippers from the abuse of market power or that the transaction or

service is of limited scope; and that the exemption is in the public interest. On that last

item, we have repeatedly asserted that ELDs have caused excessive speeding, which

results in far more deaths ELDs would ever save by combating fatigue.





August 9, 2019

Page9of1l"'Absent such a showing, the law actually requires FMCSA to issue the exemption given

the word ,,shall" in the enabling statute. As you have made no showing to the contrary,

we contend you must issue the exemption as a matter of law.

Resubmission Process

FMCSA has promulgated a rule which affords an applicant the right to resubmit an

exemption aPPlication if denied:

S 381.317 May I resubmit my apptication for exemption if it is denied?

tf the Administrator denies your application for exemption and you can reasonably

address the reasons for denial, you may resubmit your application following the

procedures ,n $ 381.310-

This rule essentially restarts the application process as per the reference to $ 387'370,

which then invokes, $ 387-315(a)-

s 3s7.3r5 What wiil the FMCSA do after the agency receives my application for an

exemption?

(a) The Federal Motor Canier Safety Administration witt review your application'and

prepare, for the Administratofs signature, a FederalRegrsfer notice requesting public

comment on your apptication for an exemption. The notice will give the public an

opportunity to revie,w your request and your safety assess/ne nt or analysis (required by

s 381.310) and any other relevant infarmation known to the agency-

This rule therefore requires FNICSA to now republish this application in the Federal

Register and again open this matter up for public notice and comment'

Furthermore, Federal Law codified at 49 U.S. Code S 3131s(bXO) also requires FI\ICSA

to now publish the application in the Federal Reqister "upon receipt:"

(6)Notice and comment--

(A)Upon receiPt of a request--


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August 9, 2019

Page {0 of 1,|

'" Upon receipt of an exemption request, the Secretary shalt publish in the Federal

Register (or, in the case of a request for an exemption from the physical qualification

standards for commerciat motor vehicte drivers, post on a web sife esfab/rshed by the

Secretary to imptement the requiremenfs of section 31149) a notice explaining the

request that has been filed and shalt give the pubtic an opportunity to inspect the safety

analysis and any other relevant information known to the Secretary and to comment on

the request. This subparagraph does not require the release of information protected by

law from pubtic dr'sc/osure (emphasis added).

And, the statute requires FMCSA to rule on the application within 180 days:

49 u.s. code s 31315(b)((7)Applications to be dealt with promptly -The Secretary shalt grant or deny an exemption request after a thorough review of its

safety implications, but in no case later than 180 days after the filing date of such

request.

SBTC therefore requests that FMCSA process this resubmitted application in

accordance with the law.

Court SuPervision

As FMCSA has a history and pattern of failing to publish the SBTC's applications for

exemptions in the Federal Reoister "upon receipt" as is required by Federal Law on two

prior occasions, and the SBTC is currently suing FMCSA in Federal court over

FMCSA,s failure to comply with the aforementioned statute, SBTC intends to request

court supervision over this process to ensure FMCSA complies with procedural

requirements of the aforementioned statute.

ln closing, FMCSA clearly failed to afford us the diligent consideration that was due.

FMCSA has maliciously and unethically relied on the same rule it used to kick back our

November ZO,2017 submission; its reliance on this rule is specious and misguided at

best. FMCSA either knows -or should know -a trade group cannot possible comply

with a rule that pertains to individual drivers and carriers.


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" And FMCSA alone bears the responsibility for its failure to promulgate rules for class

exemptions as previously directed by Congress. lt cannot now transfer and project

responsibility for its failure to do so onto the sBTc with impunity.

Lasfly, we offer the attached January 2OlS letter from FMCSA to sBA (Exhibit G), which

was written in response to our complaint to sBA, which shows the agency was in fact

pre-disposed to denying our application before it ever even published it in the Federal

Reqister and opened it up for comment. That is, we were summarily dismissed before

the proceeding ever began, making this whole proceeding, including the collection of

nearly 2,000 comments from industry, one big misleading sham' This letter shows the

agency fraudulenfly led the industry to believe it would listen to their comments if they

took the time to write in, when in fact this matter was decided way before the first

person filed a comment. In other words, this whole process was rigged from the onset'

ln summary, the sBTc finds the FMCSA's handling of its ELD exemption application'.'

from start to finish... totally and absolutely corrupt in each and every respect' clearly, a

fair and impartial "do-over" is warranted in this instance, one which results in the

granting of the application to make the industry whole and properly reconciles the

principles of public safety, national security, productivity and justice'

Sincerely,

/s/JAMES LAMB, President

Small Business in Transportation Coalition ("SBTC")

www.Tnuckers.com


EXHIBITi,oIog E

$mall Buelneaa In

September 10, 2019

"" The Honorable Raymond Martinez, AdministratorFederal ltlotor Carrier Safety Administration1200 New JerseY Avenue SEWashington, DC 20590

Tlanaprtatlon Gaalltlon

Via Express U.S. tMail & EmailAttachments bY HardcoPY OnlY

Re: Docket No. FMCSA-2013-0513; RESUBMlssloN oF TRANSP-ORTATION

lNTERMEDlARYBoNDExEMPTlol.rffiURSUANTTo49U.S.code(srers(bx3) & 49 cFR 381.517; REQUIRED TO BE PUBLISHED lN THE FEDERAL

Ree tSreH ,;Upott RECEIPT" PURSUANT TO 49 U.S. CODE S 31315

Dear [/r. llartinez,

Pursuant to 49 U.S. Code S 31315(bX3) and 49 CFR 381.317, the small Business in

fiansportation Coalition ("SBTC') hereby resubmits to you -pursuant to your authority

o"l"gut"o by the Secretary of Transportition -tne nssociation of,lndePendent Property

Broklrs & Agents, ("AlpBA') Broker Bond Exemption Application.' in the matter of

Docket ruo. rucsA-zot g-obt 3. we offer this letter, which we contend "reasonably

address(es) the reasons for denial." We hereby request reconsideration of said denial.

Background

The AIPBA submitted its Exemption Application on August 14,2013 incorporated-here

by reference (fxnrOitn)' fnnCbn denied said applicat'ron through a late decision3

, The AtpBl small broker group merged with the broader SBTC small carrier, trucker and broker group in 2016'

2 We note here FMCSA did not hold AIPBA accountable for compliance with 49 CFR 381'310 on this class

exemption applicatlon as it did SBTC on the ELD class exemption application (Docket No' FMCSA-2018-0180) and

accepted the application without the carrier-specific details required by 49 cFR 381'310'

, Although FMCSA is required by Federal Law to rule on exemption applications within 180 days, which,

in this case, was mid-Februa ry of 2ot4, FMCSA issued the decision more than one year late at the end of

March 2015 despite there being a mere 8l- comments in the docket to review: "49 U'S' Code

$ 31315(b)((7)Applications to be dealt with promptly.- The.secretary shall grant or deny an exemption

request after a thorough review of its safety implications, but in no case later than 180 days after the

filing date of such request'"

17751. (Eye) Street, NW, Suite 1150, Washington, DC 20006

(202) 7 3 1 -822 3 www. Tru cke rs. com S u p po rt@T ru cke rs' com


published in the Federal Reqistqr_on [Vtarch 31,2015 (Exhibit B) stating: (1\ "49

u.s.c. 1ss41 aoes@cse the authority to essentially nullify a statutory

provision by exempting"tne entire c/ass of persons subiect to the provision;" and (2)

even if it did have the lawful authority:

"AlpBA,s exemption apptication does not meet the factors provided in section

15541 Aecais[ l0 the'new $75,OOO bond requirement is necessaly to carry out

the Nationatfraniportation Poticy at 49 U.S.C. 13101, (2) there has been no

showing that the $75,000 requirement "is not needed to protecf shrppers from the

abuse of mi*et power"'and (3) the requested exemption is not in the public

interest."

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Congress raised the broker bond through tne

Ceniurv Act ("MAp-21") from $10,000 to $ZS,OOO, which forced 4Oo/o of the industry at

the t'rne ort-of-business in Decemb er of 2013 and directed FMCSA to report to

congress every four years on the impact of that new $75,000 bond by assessing the

"appropriateness" of this bond amount.

Twice now in 20144 and again in 20185, the agency has skirted this issue in its reports

to Congress, suggesting the agency's understanding is that no one in the industry really

cares about the broker 6onO anymore and that somehow alleviates their responsibility to

comply with a Congressional mindate and report on the appropriateness of the $75,000

,*ornt. Here is the exact provision FlvlcsA is unlawfully disregarding:

,,SEC. 32104. FINANCIAL RESPONSIBILITY REQIJIREMENTS. NOt IATET

than 6 months after the date of enactment of this Act, and every 4 years

thereafter, the secretary shatt- (1) issue a report on the appropriateness

of- (A) the current miiimum financial responsibitity requirements under

secfions 3113g and 31139 of titte 49, lJnited Sfafes Code; and (B) the current

bond and insurance requirements undersecflons 13904(f), 13903, and 13906

of titte 49, united Sfafes Code; and (2) submit the reportissued under

o https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Financial-Responsibility-Requirements-Report-Enclosure-Fl N AL-April%202014.pdf

s https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/mission/policy/397671'/financial-responsibilityreport-final-march-2018.Pdf


EXEMPTION APPLICATION REQUIRED TO BE PUBLISHED IN THE FEDERA'L

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September 10,2O19

Page 3 of 16

paragraph (1) to the committee on commerce, science, and Transportation

of the Senate and the Committee on Transportation and lnfrastructure of the

H o u se of RePres e ntative s. "

As pointed out by AIPBA, we note here that during previous 2010 household goods

broker bond rulemaking, the agency concluded bonds over $25,000 would have "anti-

competitive" effects that would adversely affect small businesses'"

b ra 7 r

bv si plv calli q them ,rd ,t "dispatc services" with impun iw.

SBTC therefore petitioned FMCSA on October 4,2018 (Exhibit C).to change the

Lgulatory definiiion of broker in the hopes FMCSA will enforce unlavuful property

or[terage activities. FMCSA has indicated it plans to entertain our request but has

undertaken taken no such rulemaking to date''

SBTC believes this clarification is necessary before it can engage in private causes of

"&ion against unlicensed entities that are unlawfully arranging for motor carrier

transportation, which are authorized by TVIAP-21'

Federal Lawsuit

SBTC filed a Federal Lawsuit B

in District of Columbia District

ourt to comPel agency action on

two other exemption applications. This third SBTC exemption application relates to this

6 Docket No. FMCSA-2004-17008; https://www.federalregister.gov/docum entsl201,ol]-1J2912070-29873/brokers-

of-household-goods-tra nsportation-by-motor-vehiclei it i, w"tt estJlistred that a failure to act on a petition for rulemaking is a discrete agency action subject to judicial

review if unreasonably delayed. see, e.g., ln re Am. Rivers & ldaho Rivers United, 372F'3d 413,418 (D'C' Cir' 2004)

(holding that agency was obliged by the APA to respond to regulatory petitions, even for a discretionary action'

within a reasonable time); see generally Jason A. schwartz & Richard L. Revesz, Petitions for Rulemaking: Final

Report to the Administrative conference of the united statesl5-17 (Nov. 5, 2014),

https://www.acus.gov/report/petitions-rulemaking-final-report ("[C]ourts have nearly unanimously found that

agency responses (or lack thereof) to petitions for iulemakings are reviewable under the APA'") (citing 5 U's'c' SS

7O1-7061.

v. U.S. DEPARTMENT OF TRANSPORTATION et al

Court (1'.2019cv01311) on May 6, 2019 seeking the C


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September 10, 2019

Page 4 of 16

lawsuit insofar as sBTc has already experienced three unlawful delays in the

publication of its exemption applicaiions in the Federal Register during the past two

years.

sBTC's Interest in the AIPBA Application for Exemption

On behalf of its small broker members:

Under the current regulatory climate, unlicensed entities, including motor carriers and

dispatch services, arL permitted to engage in unfair competition because FMCSA has

not enforced the Orokei licensing reqrirement and has allowed unlicensed entities

arranging for transportation to operaie with impunity. Ftr/CSA promised to crack down

on unlawful operations through a "comprehensive enforcement program" on September

i,'ztii6, ri*-v*i= ago as of-last week but has failed to make good on this promise.

we are therefore now asking for all small property brokers and freight forwarders as

defined by the SBA for freight transportation arrangement (NAICS tggg 488510) with

revenues-under $15 million be made exempt for 5 years to give FMCSA more time to

develop its ,,comprehensive enforcement piogram" to enforce the licensing and bonding

requirement.

On behalf of its small carrier ancl owner'operator members:

During the Great Recession of 2017-2018, many of sBTC',s small carriers and owner-

op"rrio, members survived this difficult time by securing a broker license and brokering

t*,gni to themselves and outsource to other cirriers. This enabled them to 'cut out the

middle man., The raising of the property broker bond to $75,000 effectively eliminated

this revenue-enhancement mechanisrnand forced small carriers and owner-operators

to work with the ra;pe brokers represented by the Transportation lntermediaries

Association (TlA).'-

higher bonded to FTC and

about TIA's

Talk of "consolidating" the brokerage industry dates back to 20LL'

which had the effect of smaller brokers having to become agents of larger

DOJ

lobbying on antitrust grounds, citing the sham exemption to the Noerr-Pennington Doctrine (i.e. raising the bond



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With fears of yet another recession on the horizon, now is the time for FMCSA to grant

this exemption as it is in the public interest to ensure an uninterrupted supply chain'

Despite arguments made by other trucker-only and carrier-only trade groups which ,

refuse to look at the big picture and think outslde the box, we made a pitch for lowering

the bond to our small carrier and owner operator members (Exhibit D).so they are not

reliant on -and at the mercy of- big brokers. Rather than have no choice but to secure

loads from large brokers, SBTC believes that small carriers should have the right to add

small brokerage components to their existing operations. The current bond level

impedes this.

comes Now. SBTG to '.Reasgneb_lv Address.th.e RgaFpIrF f.or De.nial',

FMcsAClaimone:..49U.S.C.rss@SAtheauthoritytoessentiallynullify a statutory provision by exempting the entire class of persons subject to the

provision;

SBTC Response to FlvlCSA Claim One:

Weunderstandthmthismatter.lnreconciIingonestatutettIAP-21,against another, +e UIS.C. 1g541, we understand FTMCSA adopted the position that

MAP-21 prevents FMCSA from approving a blanket class exemption application for all

brokers and forwarders under the theory;rne Constitution does not authorize members

of the executive branch to enact, amend, or repeal Statutes." {citing Terran v' Secretarv

of Health and Human Services, 195 F.3d 1302,1312 (Fed' Cir' 1999))'

But we ask the agency to acknowledge the fact that congress has passed enabling

legislation to grant noi only individual-exemptions, but specifically, class exemptions in

non-blanket instances.

(a) tn General.-tn any matter subiect to iulisdiction under this part, the'Secretary

or the Boar}, as appticable, shall exempt a person, cla9s 9f persgns'

or a transaction or service fro'm the application, in whole or in part, of a provision

of this part, or use fhls exemption authority to modify the application of a

was not about fighting fraud as TIA suddenly purported, but in furtherance of the consolidation scheme to create

an oligopoly and fight competition. FTC passed on pursuing the matter and DoJ began a "review'" FMCSA then

maliciously asked FTC to make a case against the undersigned's private business activity, who was then-President

of AlpBA, in retaliation for two lawsuits AIPBA brought against FMCSA over the $75,000 bond requirement'



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provision of this part as it applies to such person, c/ass, transaction, or selvice,

when fhe Secreiary o, Boa,rd finds that the apptication of that provision- i

(1) is not necessary to carry out the transportation policy of section 13101;

iZ) is not needed to proteci shippers from th9 abuse of market power or that the

transaction or seruice is of limited scope; and(3) is in the public interest (emphasis added)'

ln looking at the MAP-21 statute, we note congress does not expressly remove said

exemptioi authoriiyon tn" matter of the brokei/fonrvarder bond. Had Congress intended

to resirict the agenty from issuing class exemptions from the $75,000 intermediary

bond, it would nar" LOO"d specific language to that effect to the law' But it did not'

MAP-21 states with respect to property brokers:

Minimum financiat security--Each broker subiect to

the requirements of this section shall provide financial

securiy of $75,A00 for purposes of fhr's subsection, regardless

of the number of branch offices orsa/es agents of the broker'

And with respect to freight forwarders:

M i n i m u m f i n a n ci al se c u rity. -E ach f re i g ht fo nu a rde rsubject to the requirements of this section shall provide

ftnancial security of $75,000, regardless of the number ofbranch offices or sa/es agents of the freight forwarder.

So, we are left with the fact that Congress does afford the agency the flexibility to grant

class exemptions to some extent.

The only actual restriction in place deals with insurance and bonds are not insurance.

AIpBA irticulated this in its original application and addresses this again in our

conclusion.

SBTC contends the whole purpose of having regulatory agency engage in rulemaking

and be given discretion Oy'Congress to granl such exemptions from its rules is to rely

on an ,[en.y't specialized t<nowleOge, insight and expertise in a given field like

transportation. Again, FMCSA snowed it poisesses such specialized knowledge, insight



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September 10,2019

Page 7 ot16

and expertise when it suggested that bonds over $25,000 would have anti-competitive

effects that would adversely affect small businesses in 2010'

SBTC has therefore showed that Congress has in fact passed enabling legislation

allowing agencies to grant waivers and exemptions, including class exemptions and

FMCSA his class exemption authority to address the current request'

Furthermore, since FMCSA denied this exemption, the Administrative Conference of the

United states ("ACUS"), an independent federal agency charged with convening expent

representatives from the public and private sectors to recommend improvements to

administrative process and procedure, has issued the following guidelines on how an

agency should address requests for exemptions.ll

ACUS Recommendation 2017'7 adopted on December 15, 2017, states:

lndividuats and entities regulated by federat agencies must adhere to program-specific

requirements prescribed by statute or regulation. Sometimes, however, agencies

prospectively'excuse indiiiduats or entities from statutory or regulatory requirements'through waiiers or exemptions.zu The authority to waive or exempt regulated parties

from"specific tegal requiiements affords agencies much-needed flexibility to respond to

situations in wiicn generalty applicable laws are a poor fit for a given situation.{!lEmergencies or o{her unforeseen circurnstances may atso rend2r compliance with

statutory or regulatory requirernents impossible or impracticabte,[3J ln such instances,

requiriig striciadheience to tegat requirements may not be desirable.[!l This is

pa'rticulZrty true when the recifient oi a waiver ar exernption lerygnstrates that it intends'to

engage in conduct that witt otlterwise further the agency's legitimate goals.

Yet, waiving or exempting a regulated party from a statutory or regulatory requ-irement

also raises-importani questioni about predictabitity, fairness, and protection.of the

public. For in'stance, when an agency decides to waive legal requirements for some but'not

all regutated paiies, tne decision to grant a waiver or exemption may cre.ate the

appearanc*or perhaps even reality-of irregularity, bias, or unfairness. WaivinE or

dieipting a regilated party from aiegat reqiiremsnt, therefore, demands that agencies

simuttan|ousty consider regulatory flexibility, on the one hand, and consistent, non'

arbitrary administration of the law, on the ather.

t1 https://www.acus.gov/recommendation/regulatory-waivers-and-exemptions


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Agencies' authority to waive or exempt regulated parties from legal requirements may

also intersect with other principles of adrninistrative taw. When agencies frequently

issue waivers or exempiions because a regulation is outdated or ineffective, for

example, arnending oi rescinding the regutation m4/ b9 ygre appropriate in some

circumstances, deipite the necessary resource costs.ffi Such revisions can enhance

efficiency and transparency. The requisite notice-and-comment procedures can also

foster pibtic participation and inforned decision making'

The folowing recommendations offer best practices and factors for agencies to consider

regarding thbir waiver and exemption practices and procedures. They are not intended

to-disturb or otherwise timit agencies' broad discretion to elect haw to hest use their

limited resources.

RECOMMENDATION

Scope of Waiver and Exemption Authority

l. When permitted by law, agencies shoutd consider creating mechanisms that would

allow reEutited parties to apti for waivers or exemptions by demonstryling conduct that

wilt achieve the same purpos6 as fultcampliance with the relevant statutory or regulatory

requirement.

Z. When consistent with the statutory scheme, agencies should endeavor to draft

regulations so that waivers and exemptions witl not be routinely necessary. Wfien an

a{ency has approved a targe number of simitar waivers or exemptions, the agency

should consider revising thb regutation accordingty. lf eliminating the need for waivers or

exernptions requires stitutory ieform, Congress shoutd consider appropriate legislation.

Exercising Waiver or Exemption Authority

A. Agencies shoutd endeavor, to the extent practicabte, to establish standards and

procedures for seeking and approving waivers and exemptians.

4. Agencies shoutd appty the sane treatment to similarly situated parties when

approiing waive rs and exemptio ns, abse nt exte n uati ng ci rcu mstances.

O. Agencies shoutd clearty announce the duration, even if indefinrte, over which a

waiver or exemPtion ertends.

Transparency and Pubtic lnput in Seeking and Atpproving Waivers and Exemptions

6. Agencies shoutd consider soliciting pubtic comments before establishing standards

and prooedures for seeking and approving waivers and exemptions.


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T. Agencies shoutd endeavor, to the ertent practicable, ta make standards and

proruiur"" for seeking and approving waivers and exemptions available to the public.

g. Agencies shoutd consider soticiting pubtic comrnents before approving waivers or

exemptions.

g. Agencies should provide written explanations for individualwaiver or exemption

decisions and make them pubticly available to the extent practicable and consistent with

tegal or poticy concerns, s'uch as privacy. Further, lglnljes should consider providing

iritten explinations of iepresentative instances to hetp itlustrate the types of activities

tikely to qualify for a waiver or exemption.

gJ Agencies may also retrospectively dectine to brinE an enforcernent action once a legal

iiotiion has already occurred. This recommendation, however, is confined to the agency

practice of prospeciively waiving or exempting reEulated parties from legal requirements-

[!]The terrns "waiver" and "exemption" carry variaus meanings in agency practice' For the

fi,rposes of this recommendation, when Congress has expressly authorized an agency to excuse'a

regulated party from a tegat requirement, the term "waiver" is used. lf an agency is implicitly

autiorized Oy iongress foixcuse a regulated pafiy fram a legat requirement, "exemption" is

used. These definitions stem from the-report undertying this recornmendation- See Aaron L.

Nietson, Waivers, Exemptions, and ProsecutoriatDiscretian: An Examination of Agency

Nonenforcement Practices (Nov. 1, 2A1n (eport to the Admin. Conf . of the U'S'),

https!/acus.aovheportkeaUlatorV-waivers-and:exemptiqn$:fin4.l-feport, Some ag.encies'may alsopresidential detegations under Article ll of

the Constitution. inat cateEory of waiveis and exemptions is autside the scope of this

recomrnendation.

[p! See, for example, the $tafford Act, 42 U.S.C. S 5141, authorizing any federal agenry charged

fritn me adtninistiation of a federalassistance program in a presidentially declared major disaster

ii*iiii o, waive administrative conditions for aslistance if requested to do so by state or local

authorities.

{!! Of course, agencies cannot issue waiver$ or exemptions unless authorized by law, and even

Then authorize-d by law, agencie.s rilUst not issue them in an arbitrary fashion'

E/See Admin. Conf. of the U.5., Recommendation 2014-5, Fletrospective Review of Agency

Ri,l"s, f[ S, Vg Fed. Reg. 75,1 14, 75,116 (Dec. 17, 2014) (identi$ing petitions from stakeholder

gtoupit ana members 6f tne puOtic and poor compliance rates as factors to consider in identifying

legutations that may benefit trom amendment or rescission)'

Gitation: Admin. Conf. of the lJ.S., Recornmendation 20'17-7, Regulatory Waivers and

Exemptions , 82 Fed. Req. 61.728. 61"V42 (Dec. 29, 2A17).



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,, As measured by total revenues, but excluding funds received in trust for an unaffiliated third party, such as

bookings or sales subject to commissions. The commissions received are included as revenue'

Here, we suggest that given a regulatory climate in which' (1) FMCSA has failed since

2}13to report on the a-ppropriateness of tne bonding requiremel!?t. directed by

Congress so that Congress might act to lower the bond; (2) FMCSA has failed since

211ito proceed with iis promiJes to commence a "comprehensive enforcement

progrrr" to deal with illegal intermediaries; and (3) FMCSA has failed to commence

rulehaking since our 2018 request to codify past ICC rulings that make it clear that

unlicensed "dispatch services'i are, in effeci, unfairly competing by operating as illegal

intermediaries without a bond at all, small brokers and fonruarders trying to operate

lawfully and small carriers and independent owner-operators wishing to add brokerage

.orpon"nts to their existing businesses are at a distinct and unfair disadvantage when

having to post $75,000 in financial security.

we believe ACUS would suggest, here, that an exemption is appropriate along the lines

of ,,much-needed flexibility to respond to situations in which generally applicable laws

are a poor fit for a given situation" ... and that the climate we cite constitutes,,...rnfor"seen circlmstances (that) may also render compliance with statutory or

regulatory requirements impossible or impracticable..." and that "requiring strict

aOherenie to legal requirements may not be desirable "

SBTC believes no small transportation intermediary entity should have to be bonded

until and unless all small intermediary entities are required to be bonded; that the

requirement to blbonded be clearly defined by FMCSA as a matter of a proper

definition of the term "broker;" and that the nonoing requirement be enforced against all

intermediaries in a fair and even fashion. Until FtvlCSA levels the playing field,

enforcement against some transportation intermediaries --but not others --constitutes an

unlawfully arbitrary and capricious regulatory scheme'

Whereas AIPBA sought for the FIVCSA to "permanently exempt all-property brokers and

freight fonryarders trom the $75,000 broker bond provision of MAP-21 . . . .", comes now,

tne-sarc to request a temporary 5 year exemption from the bonding requirement, one

that is limited to small brffiE5',ro(ers and fonruarders with annual revenues under

diS Of O *ittion'Thicn, agarr', is the small business threshold set by the Small


EXEMPTION APPLICANAN REQIJIRED TO BE PTJBLISHED IN THE FEDERAL

REG/STER ''IJPON RECEIPT" PIJRSIJANT TO 49 U,S. CODE S 3'3'5


September 10, 2019

Page 11 of 16

Business Administration for entities involved with "Freight Transportation Arrangement"

(NAICS Code 488510).13

SBTC contends that by narrowing the class to small business entities, it is requesting a

bona fide, lawful exemption from the bonding statute as opposed to asking for the

nullification of an act oi Congress. As large intermediaries would still be required to

"omprv with the bonding req-uirement, this revised application for exemption cannot be

now reasonably construed as asking FMCSA to nultify an act of Congress outright and

we have reasonably addressed the FTMCSA's concern'

Like AIPBA in its original application, SBTC again points to how FMCSA previously

expressed concern about the anti-competitive impact of bonds over $25,000 on small

entities back in November 2010. Specifically, FIVICSA at the time stated:

,,commenters that favored increasing the amount of the surety bond or trust fund

did not provide adequate justification for an increase above $25,000, especially

in light of the number of imatt0usiness household goodstrokers.and the

pot6ntial impact of significantly increasing the amount of financial responsibility

beyond a level adiusted for inflation."

This is now FMCSA's chance to utilize its regulatory expertise and exemption authority

Ouly granted by Congress to press the pause button and address a bona fide grievance

the licensed small business intermediary community has and reverse anti-competitive

effects FMCSA knows the $75,000 bond has caused, but has just not revealed to

Congress yet.

FMCSA Claim Two: "AlPBA's exemption application does not meet the factors

provided in section 13541 because (1) the new ${5_,!00 bond requirement is necessary

io.rrry out the National Transportation Policy at 49 U.S.C'13101, (2) there has been no

showing that the $75,000 requirement "is not needed to protect shippers from the abuse

of markLt power" ,nO 1S; the requested exemption is not in the public interest."

13 https :l/www.sba.eeylsites/defa u lt/fi les/Si ze Sta nda rds Ta b le' pdf


EXEMPTION APPLICATION REQUIRED TO BE PTJBLISHED IN THE FEDERAL

REG/STER ''IJPON RECEIPT" PTJRSIJANT TO 49 U,S. CODE S 3'3'5


September 10,2019

Page 12 ot 16

SBTC Response to FMCSA Claim Two:

Here, the agency addresses the three statutory factors, but does so in an arbitrary and

capricious manner. lt appears the agency wanted to deny the application, presumably,

because it has been captured by big business interests, and it determined the only way

it could do so is if it pu5iisneO a stat,ement that says: (1) the new $75,000 bond

requirement is necessary to carry out the National Transportation Policy at 49

U.S.C.13101 , (2) there has been no showing that the $75,000 requirement "is not

needed to protect shippers from the abuse of market power" and (3) the requested

exemption is not in the public interest.

But the agency does not offer any rationale or explanation besides these mere

statements to indicate whv the nlw $75,000 bond requirement is necessary to carry out

the National Transporti-m policy at 49 U.S.C.13101 ; or W it believes there has been

no showing that the $75,000 requirement "is not needed to protect shippers from the

abuse of market power" when nipgn clearly showed the bond, in practice, essentially

exists to guarantee payment to carriers, noi shippers, and how more competition -notless-actually protectishippers from abuse of market power; or bg exactly the

requested exemption is not in the public interest'

ln fact, it has made no showing to these effects whatsoever. Perhaps it did not do so as

this comment was an aside to the main reason of denial it offered, namely, that Ftt/CSA

did not have the authority to nullify an act of Congress'

Absent such a showing, the law actually requires FTMCSA to issue the exemption given

the word "shall" in the-enabling statute. As you have made no showing to the contrary,

we contend you must now iss-ue the exem[tion as a matter of law in accordance with

the originat snowiig-made by AIPBA in the original application which we affirm here.

Resubmission ProcessFMCSA has promulgated a rule which affords an applicant the right to resubmit an

exemption application if denied.

S 351.317 May t resubmit my application for exemption if it is denied?

tf tne Adminislrator denies your application for exemption and you can reasonably

address the reasons for de-nial, you may resubmit your application following the

procedures ,n $ 381.310.


EXEMPTION APPLICATION REQUIRED TO BE P'IBLISHED IN THE FEDERAL

REGTSTER "IJPON RECEtPT',PURSI,IANTTO 49 U.S. CODE 531315


September 10,2019

Page 13 of 16

This rule essentially restarts the application process as per the reference to $ 387'370,

which then invokes, $ 387.315(a).

$ 3S7.375 What witt the FMCSA do after the agency receives my application for an

exemption?(a) Tie Federat Motor Carrier Safety Administration witt review your application and

pi"pur", for the Administrator's sigiature, a Federal Register notice .requesting public

'camment on your apptication for an exemption. The notice will give the public an

opportunity to reviei your request and your safety assessrne nt or analysis (required by

S 381.310) and any other relevant information known to the agency.

This rule therefore requires FIVICSA to now republish this application in the Federal

Reqister and again open this matter up for public notice and comment.

Furthermore, Federal Law codified at 49 U.S. Code S 3131s(bXO) also requires FMCSA

to now publish the application in the Federal Reqister "upon receipt:"

(6)N otice and comment.-(A)Upon receipt of a request.-

lJpon receipt of an exemption request, the Secretary shall publish i1th.e Federal

@nthecaseofarequestforanexemptionfromthephysical.qualificationstahdards for commercial motor vehicle drivers, post on a web sife esfab/ished by the

Secretary to implement the requiremenfs of section 31149) a notice explaining the

request inrt nas been fited and shatl give the pubtic an opportunity to inspect the safety

an'atysis and any other relevant information known to the $ecretary and to comment an

the iequest. This subparagraph does not require the retease of information protected by

law from pubtic disclosure (emphases added).

And, the statute requires FNICSA to rule on the application within 180 days:

49 u.s. code s 31315(b)((7)Apptications to be dealt with promptly.-The Secretary shatl graii or deny an exemption request after a thorough review of its

safety implications, 6ut in no case later than 180 davs after the filing date of such

request (emphasis added).

SBTC therefore requests that FMCSA process this resubmitted application in

accordance with the law.



REG'STER "IJPON RECEIPT" PIJRSIJANT TO 49 U,S, CODE S 31315


September 10, 2019

Page 14 of 16

Court SupervisionAs FMCSA has a history and pattern of failing to publish the SBTC's applications for

exemptions in the Fedeial Reqister "upon receipt" as is reqllred by Federal Law on

three prior occasions, anO tfre SATC is currently suing FMCSA in Federal Court over

FttICSA's failure to comply with the aforementioned statute, SBTC intends to request

court supervision over this process to ensure FIr/CSA complies with procedural

requirements of the aforementioned statute.

ConclusionFinally, FMCSA needs to address the fact that 10,000 small business intermediaries,

includ-ing members of the minority brokerage community, were revoked in the first two

weeks o1 December of 2013 and there are anti-competitive obstacles to entry currently

in place due to a bond obviously set too high for over 40% of the brokerage industry to

handle in 2013. FMCSA has never reported this to Congress. lt is now time to do so.

By FMCSA'3 own admission in its denial of the AIPBA application, whereas AIPBA

offered that g,800 intermediaries were revoked in the first two weeks of December 2013

as a direct result of enforcement of a $75,000 minimum bond, FMCSA acknowledges in

your decision that 8,962 intermediaries were indeed lost during the entire month of

December 2O1 S,the difference representing a relatively small amount of intermediaries

that were reinstated in the last two weeks of that month and other new non-small

business broker applicants IVIAP-21 sparked as indicated below-

While FMCSA points to a small increase over the year that followed, it neglects to

acknowledge that a significant part of that increase is due to the fact that IVIAP-21

reinforced the need for large carriers to obtain broker licenses when.they arrange

transportation (formerly asserted to be unregulated as a matter of "interlining") when the

carrier does not take possession of the property at least at some point in the shipment'

The current broker census therefore cannot be fairly attributed to a return of these small

business brokers that were utterly decimated in December 2013... many of whom

continue to operate unlicensed with no bond under the guise of being "dispatchers."



REG'STER "IJPON RECEIPT' PI]RSIJANT TO 49 U,S, CODE S 3'3'5


September 10,20{9

Page 15 of 16

The agency properly notes in the denial that the statute states as follows:

Section 1g541(a) of title 49 of the United States Code (49 U.S.C . 13541) requires

the Secretary of Transportation (Secretary) to exempt a person, CLASS OF

pERSONS, or a transaction or service from the application, in whole or in part, of

a provision of 49 U.S.C., Subtitle lV, Part B (Chapters 131-149), orto use the

exemption authority to modify the application of a provision of 49 U.S'C.

Chapters 1g1-14g as it applies to such person, CLASS, transaction, or service

when the Secretary finds that the application of the provision (emphases added).

. Is not necessary to carry out the transportation policy of 49 U.S.C' 13101

. ls not needed to protecishippers from the abuse of market power or that the

transaction or service is of limited scope; and. ls in the public interest.

And while the AgencY states:

,,The exemption authority provided by section 13541"may not be used to relieve a

person from the application of, and compliance with, any law, rule, regulation, standard,

or order pertaining to cargo loss and damage [or] insurance'.. ." 49 U'S.C ' 13541(eX1)'"

... it would appear FIVICSA has danced around this issue in your decision. lf you were to

proclaim bonds are insurance as a matter of law, then this would give rise to the issue

of how financial institutions can continue to issue non-insurance BMC-85 trust fund

instruments without being duly licensed insurance providers'

We note you spoke to this point in a footnote within you April 2014 Report to Congress

thttp./lwww.fmcsa.dot.qov/sites/frncsa.dot.qovlfilesldog /Financial-Rasponsibilitv-

Req u i re me nts - Re p o rt- E n qlos u re F I NAI=-Ap ri ! 910 ?0 2 0 :1 4. pdt)



REG'STER ''IJPON RECEIPT" PURSIJANT TO 49 U.S, CODE S3'3'5

The Honorable Raymond Martinez

September 10,2019

Page 16 of 16

when you stated

"The term "financialresponsrb ility" used here refers to insurance. More

specificatly, it means tiability coverage for bodily injury or property damage in the

case of freight and passenge r motor carriers as well as freight foruarders. When

it comes to brokers and freight forwarders, insurance also means coverage for

ctaims against unpaid freight charges. The terms "financialresponsrb ility" and

"insrtrance" are used interchangeably throughout this report."

Nonetheless, as AIPBA pointed out in its application, Congress makes the proper

distinction where FMCSA does not.

SBTC is proud to zealously defend the interests of its small business broker and

fonruarder members in this matter. We believe we make a good case for why the

exemption should now be granted by FMCSA and that the three statutory factors have

been addressed to support exemption. And we contend our argument is in line with

FMCSA's own rationale and concern about anti-competitive impact of raising the bond

beyond $25,000 during bona fide household goods broker rulemaking between 2007

and 2010. We further believe completion is good for everyone involved including our

carrier members, shippers and the consumer public. We therefore believe there is now

no rational basis for FIVICSA to deny this exemption application and we look forward to

your timely approval of this request.

Sincerely,

/s/JAIt/ ES LAM B, PresidentSmall Business in Transportation Coalition ("SBTC")


EXHIBIT

Ct,sIo6

Smalt Busineae In TtanaPodation Goaffitfian

lVlarch 2,2020 Via Elaine Chao@dot gov & US lVail

"'The Honorable Elaine ChaoSecretary of TransPortation1200 New JerseY Avenue SEWashington, DC 20590

RE: GLASS EXEMPTION APPLIGATION FOR DRIVERS TRAVELING IN

INTERSTATE COMMERCE WITH DOMESTIC ANIMALS PURSUANT TO 49 U.S.C'

S sr31S & 49 cFR 381.3{0; REQUIRED TO BE PROCESSED WITHIN 180 DAYS

Dear SecretarY Chao:

This is a class exemption application for property-carrying drivers of commercial motor

vehicles traveling in interstate commerce with domestic animals pursuant to 49 U.S.C'

S Crars & 49 CfYn agt.310, which, as you know, must be processed within 180 days.

BACKG ROUNDDuring the course of its research, the SBTC has learned that sixty-seven percent of

U.S. households, or about 85 million families, own a pet, according to the 2019'2020

National Pet Owners Survey conducted by the American Pet Products Association

(APPA) ln terms of trends, we note there h as been a 56 percent increase of such

ownersh ip in U S. households since 1988, the first year the survey was conducted

According to a recent Harris Polll:

"More than three in five Americans (62%) have at least one pet in their

household, with ownership highest among the two youngest generations fesfed

(65% among Miltennials,'71% among Gen X). What's more, nearly all pet owners

igso/o, up 4"points from 2012 and 7 points since the question was first asked in

2007) c'onsider their pets to be members of the family"'"

1775 l. (Eye) Street, NW, Suite 1 150, Washington, DC 20006

202-587 -27 51 www. Tru cke rs. com S u ppo rt@Tru ckers com

1 The following research report,reference:

ueeedes*treas1

technical paper, and/or other publication/document is hereby incorporated by


The Honorable Elaine ChaoMarch 2,2020Page 2 of 10

When it comes to the trucking industry, the same holds true. ln fact, trucking media

such as FleetOwner.com2 have well-articulated that more than 60% of truck drivers are

pet owners, with 40% of drivers taking their pets on the road.

TheOaklandpress.com3 offers up the main reasons why drivers take pets with them on

the road, citing.

,,. Companionship: Trucking can be a lonely profession, and dogs are great

companions! The presence of an optimistic pup in the front seat can help drivers

, combat feelings of boredom, isolation, and sadness'

. Sfress Retief:Pefs a/so help atleviafe sfress, which can have positive impacts

for physicat health too, like improvements in cholesterol and blood pressure.

. Meet New People: Most people are dog people, even if they're cat people.

Watking your do,g aroundihe rest stop or tocat park is a great way to break the

ice and make ndw friends. Many individuats wiltwant to stop to pet and speak to

your pup, making dog ownership a great way to get some good ol' fashioned

human contact outside the cab.

. Exercise: Speaking of walks, having the responsibility of getting your canine

some exercise is a great way to keep yourself active and healthy too-

. protection: As friendty as they are, dogs can also $erue as fantastic alert

sysfems, with highly sensitive ears and-protective instincts that make them likely

to bark a warning to you if they sense a threat'

. No More Dog-Sitters: Finally, taking your dog on the rogd witlt you means you

never have to*leave them at-home with sameone e/se. We get attached to our

pets, but if you're witting to adequatety prepare for having a canine in the cab,

you never have to be separated again..."

2 The following research report, techrrical paper, and/or other publication/document is hereby incorporated by

reference: htlps:/lwww.fleetowner.corn/trucks-at-work/article/21692179/truckins-mav-be-soins-to-the-doss-and-cats-and-fish

3 The following research report, technical paper, and/or other publication/document is hereby incorporated by

reference: https:i/www.theoaklandpress.com/lifestvles/pets/truckers-take-their-best-friends-on-the-road-with-them/article 899c3052-9766-11e9-9c2f-l.fd0ab45cabc. htnnl



The industry recognizes the need for drivers to have their pets with them on the road.

AllTrucking.com e-ven publishes a Top 5 List of pet-friendly carriers.a JB Hunt and

Knight Transportation are among them. Some carriers, like Werner Enterprises, formally

rec5gnize drivers' desire to travel with their pets and notice their employees of their pro-

.- pet poticies in their Employee Handbooks.5

CURRENT FEDERAL EXEMPTIONS/RULEMAKING IN PLACE OR PENDING

First, we point to the National Pork Producers Council's Electronic Logging Deyicg -1'ELb'; exemption application, which was filed under FMCSA Docket No. 2017-0297

(attached hereto as "Exhibit A").

That group pointed to how the ELD mandate caused disruptions for livestock haulers

and iiendangered the health and welfare of millions of animals transported daily'

While we note that this application technically remains pending, we point to the statutory

exemption that superseded this application and effectively made it moot We believe the

same logic that went into the passage of Sec. 132 of Title I of Division L of the

"Consoli-dated Appropriations Act" in 2018, which prohibits enforcement of the

requirement for ih rlo by livestock transporters, also applies to our exemption request.

We reference the FI\4CSA's own Power Point presentation here6, and its reference to

the statutory exemption on its website.

Second, we note there is a pendin g 2019 exemption application by the- National

Catflemen's Beef Association under Docket Number FTUCSA-2O18-0334 ("Exhibit B").

Here, the group requests.

"...an exemption, for a period of five years,2 from the HOS requirements that: (1)

limit the maximum driving hours for property-carrying drivers to 11 (45 C F R S

39S.3(a)(3)); and (2) limiithe total consecutive on-duty hours for those drivers to

14 (45 C.i.R. S 39S.3(a)(2)) We request approvalto, after 10 consecutive hours

off duty, (1) drive through the 16th consecutive hour after coming on duty, and (2)

drive a total of 15 hours during that 16-hour period (sic)"'


reference: http:/lwww.alltruckine.com/article/top-5-trLlckine-cornpanies-that-allow-pets/

sThe following research report, technical paper, and/or other publication/document is hereby incorporated by

reference: https://clrivers.werner.com/Docurnents/Driver%20|'Nan.dbook%20March%202017.pdf

6The following research report, technical paper, and/or other publication/document is hereby incorporated by

reference: https://www.fmcsa.dot.eov/sltes/fi'ncsa.dot"Eov/files/docs/regulations/hoLlrs-serv!ce/405336/ae-powerpoi nt-presentation-final'pdf



They point to how they carry livestock over long distances, again cite concerns about

the health and welfare of thb livestock that livestock haulers haul, and the risks and

burdens the current HOS pose for these animals. They also suggest their fatigue

management techniques employees that consider the fact they transport animals

.. transc-end the general advantages obtained by the Hos rule.

Third, FMCSA has announced in the Federal RegisterT a crime prevention initiative

aimed at studying the prevalence, seriousness, and nature of the problem of

harassment and issaults against minority and female trucllers, many of whom keep

dogs in their truck for self-piotection. We would recommend as part of their study the

,g6n.y examine the use of dogs by female and minority truckers for self-protection. We

ale therefore posting this exemption request to that docket as a comment in furtherance

of this suggestion anO would hope the agency would look at crimes against all truckers.

Comes, now... the SBTC to request the United States Department of Transportation

(.USDOT") better accommodate truckers and their pets by granting relief from the rigid

hours of service regulations in two respects.

THE SBTC PET EXEMPTION APPLICATION

The SBTC hereby requests on behalf of the class duly defined as all property-carrying8

operators of commercial motor vehicles ("CNIVs') operating in interstate commerce who

operate such vehicles whenever accompanied by any domestic animal, the following

two exemptions each for five Years:

(1) Exemption from the Electronic Logging Device ("ELD") requirement codified al49C.F.R. S 395.8(a) provided that such drivers track their compliance with the hours

of service 1"HOS;; regulations using paper record of duty status logs; and

(2) Exemption from the HOS requirements that. (1) limit the maxim_um driving hours

for property-carrying drivers to 11 hours (49 C.F.R. S 395.3(a)(3)); and (2) limit

the total consecrtive on-duty hours for those drivers to 14 hours (49 C'F.R. S

3g5.3(a)(2)) We request approval, after 10 consecutive hours off duty, to (1)

drive through the 16th consecutive hour after coming on duty, and (2) drive a

total of 13 hours during that 16-hour period.


reference: https://www.sovinfo.sov/content/pkq/FR-2020-02-28/pdf/2020-04100'pdf

8 Throughout this document, "property" should be read to include drivers operating CMVs on behalf of common

and contract motor carriers of household goods as well'



We would like to remind the agency that we previously filed notice that the agency's

regulations do not appear to cover class exemption applications an!-t!at we previously

pe-titioned the agency to promulgate same pursuant to 49 C.F-R. S 389.31' The agency

acknowledged sameon irn" B,-2018 but did not engage in such rulemaking within the

.. statutory t 6O-Oay period that is required under the Fixing America's Surface" Transportation 1'tRSl; Acte. We therefore offer the information required by 49 C:F R S

3g1.310 with the understanding that it is sBTC',s position that said regulation applies to

individual drivers and carriers but not trade groups filing class exemption applications.

Therefore, my narne, job title, mailing address, and daytime telephone number:

JAtvlES LAMB, SBTC Executive Director

17751. (Eye) Street NW, Suite 1150, Washington, DC 20006

(202) 587-2751

The name of the individual or motor carrier that would be responsible for the use or

operation of CMVs:

Various individuals and motor carriers

principal place of business for the motor carrier (street address, city, State, and zip

code):

Various places of business for various carriers

The USDOT identification number for the motor carrier:

Various USDOT numbers for various carriers

Estimate of the total number cf drivers and Ctt/lVs that would be operated undeitheterms and conditions of the exemption.

According to industry statistics, there are approximately 3.5 million truck drivers in the

United states. so, 40% of that number is 1,400,000 drivers.

ln terms of how carriers that employ members of the proposed exempt class would

ensure that they could achieve a level of safety that is equivalent to, or greater than, the

level of safety tirat would be obtained by complying with the regulations and our

assessment as to the safety impacts the exemptions may have... given the fact that

paper logs were in existenie and were deemed sufficient to track HOS compliance for

decades, dating back to the 1930's, by USDOT and the lnterstate Commerce

Commission 1"iCC"; before it; given we are asking for a mere 2 hour extension which

conforms to existing adverse driving conditions rule already deemed safe by the

https: //www.fmcsa,dot.eov/resu lations/petitions



agency; and given the FIr/CSA has already granted numerous ELD exemptions, we

believe the agency will concur that these requests would have minimal safety impacts.

Furthermore, we point to how it is already the wisdom of Congress --and now Federal

law --to grant relief to carriers of livestock through the statutory exemption because of

these animals' special needs. Our rationale, here, in asking for these exemptions is

nearly identical to Congress' rationale in passing said law; that is, it makes no difference

whether the animal is cargo or a passenger companion of the driver, the needs of an

animal on the road remain the same.

ln terms of the impacts the industry could experience if the exemption is not granted by

the FIr/CSA, we believe 1.4 million animals are suffering right now due to the ELD

requirement and the rigid HOS regulations and would continue to suffer without such

relief. lt is for this reason, we are enlisting the support of animal rights groups and

encouraging them to comment on this application once the application is published in

the Federal Register.

We also would contend that a decision to deny our exemption from ELDs when

Congress has already enacted a comparable statutory exemption for livestock haulers

would entail an arbitrary and capricious action on the part t)f the agency that would not

be lawful, would be contrary to Congress' stated intent and public policy, and would not

withstand judicial scrutiny. We contend all animals deserve equal protection of the laws.

We also incorporate by reference our rationale in our previous ELD Exemption

apptications under Ooltet No, Ftt/CS A-2018-0180 and Docket No. FI\4CSA-2019-0239.

ln terms of the reasons this five-year exemption is needed. "

Currenly, due to the patchwork of various state laws, the lack of a national concealed

carry firearms permit reciprocity law that would othenruise provide uniformity to enable

inteistate CI\XV operators to carry firearms nationwide for self-protection, as well as

carrier, shipper and receiver anti-weapons policies, drivers are in harm's way and

unable to sufficiently protect themselves while on the road.

ln fact, according to media reportslo from December 2019 on the latest data released by

the Bureau of Libor Statistics (.BLS"), attached here as "Exhibit C", truck driving

remains one of the top ten most dangerous occupations in the United States. Ranking in

currently at 6th most dangerous, the job of trucker is dangerous because of inherent

risks asiociated with driving a truck on the highways for eleven hours at a time.


reference: https://www,cnbc.com/2019/12127lthe-10-most-dangerous-iobs-in-arnerica-accordinE-to-bls-data,html



But their job also takes truckers through and into some of the most dangerous parts of

the couniry. This results in horror stories reported multiple times each week.

5BTC has, over the past year. inundated FtucsA, usDoT and congress with

.. complaints about how the National Highway Traffic Safety Administration's ("NHTSA)

October ZOlg data release shows we are currently at a 30-year high on highway

fatalities for occupants of large trucks. But another statistic --also alarmingly high- that

we have articulated to the federal government the past 6 years is the unusually high

rate of drivers murdered on the job. While the media have made the likes of Jason

Rivenburg,, anffiEl Boeglinlz famous, there are 40 others murdered each year

that go unnoticed. That is dangerously close to a rate of one murder a week.

As we have stated repeatedly in the past, BLS data show lhat 42 workers in interstate

transportation are murdered on average each year. Attached as "Exhibit D" is the data

table for BLS Workplace Homicides from 201 1 to 201713 Line 1271 shows data for the

category of "Transportation and Warehousing". lf you add these up, its 291 people

murdered over these past 7 years. ...or currently an average of 42 per year'

We would ask the FMCSA to note that concern about the safety of occupants of large

trucks should be part of the overall mission of the Federal Motor Carrier SafeW

Administration. The agency seems to have lost sight of that portion of its mission.

Dogs are currenily the main way drivers protect themselves while on the road. Once it is

und'erstood why O-ogs are needed in trucks as a method of protection for the driver, we

then move on to thJ arguments of how they should be treated once on board' And we

heavily rely on the arguments put forth by the National Pork Producers Council and the

National Cattlemen's-Beef Association, arguments that already have been deemed

worthy by the Federal government insofar as a statutory ELD exemption is concerned.

We ask that you note that the current model of pay-by-the-mile is inconsistent with the

regulate-by-the-clock hours of service safety standard; that is, drivers are pressured --

and at times even unlawfully coerced --by dispatchers, shippers, receivers and brokers

to push the limits and remain productive due to the 11 hour and 14 hour rules. With the

onset of ELDs, drivers are now'racing the clock' more than ever. As FIVICSA knows, we

believe this has induced many drivers to recklessly speed, thereby endangering their

fellow drivers and the motoring public.

" httB : / fu ww &megownplp-rc_eneetwls'aspl4-=jjl$E

tz httns:lldubaiscauntvh,erald.camiblf er dinand-trucker-ipltrtd-znurderedin-detrp4.

" httagll,www kls "Rav / ltf I o



Drivers with pets are therefore in a precarious position of needing to address the needs

of --and properly care for-- their animals on board and keep the powers that be happy.

Whereas dispatchers would have a driver stop only once for 30 minutes in an 1 1-hour

run, animals need more time than that to feed, drink, urinate, defecate, and exercise'

lndeed, people for the Ethical Treatment of Animats eEf H has published a guide for

travelling wiih animalsl4. That guide encourages dog owners who take their dogs on the

road to "Stop to walk dogs often."

We note with respect to anti-idling laws, many states' law enforcement officers will look

the other way when there is an animal in the vehicle and outdoor temperatures require

the animal receive a climate controlled-environment to ensure its wellness; they

appreciate the precarious position a driver is in to try to respect both animal cruelty law-s

and anti-idling laws simultaneously. And whereas the EPA cites municipal ordinancesl5

that seek to plotect both humans and animals from fumes outside a truck, we would

suggest the USOOT should be just as concerned about the wellness of animals inside

the truck. We would suspect groups like PETA and the Hurnane Society would agree.

lf 1.4 million drivers take their pets on the road, then it logically follows that 1.4 million

animals are currenly being transported as passenger companions. Like the Nationalpork producers Council successfully argued to Congress, we, too, believe the current

HOS regulations and the ELD mandate pose threats to --and endanger the health and

welfare of-- these animals transported daily. Drivers that have such animals on board

have the added responsibility of tending to their animals' health, safety and wellness

needs in addition to looking out for pubiic safety. They need extra flexibility to be able to

reconcile all of these demands and interests... much like FMCSA tries to balance all

stakeholders' interests when promulgating rules.

Drivers need to deal with the i,"npact of hot and cold weather conditions on their pets in

order to prevent sickness and injury to these animals. Drivcrs need to drive slower-rather than race the clock-when animals are on board to prevent injuries, especially

when negotiating rough roads so they need more than the normal hours of service to

completJtheir runs. wnen drivers have an extended day beyond the 14-hour rule, they

can take more breaks, feed, relieve and exercise their pets, and reduce the likelihood

that they will drive fatigued. This additional two hours will reduce the current trend in

large truck occupant fitalities, improve overall safety, which is clear'ly in the public

14The following research report, technical paper, and/or other puhlication/document is hereby incorporated by

reference: https://www.peta.orsllivins/animal-cornpanions/tips-traveline-dogs/

1s The following research report, technical paper, and/or other publication/document is hereby incorporated by

reference: https://www.epa.eov/sites/production/files/docunrents/CornpilacionofStateldlinEReeuNations.0df



interest, and save the lives of thousands of animals not currently being included in the

large truck occupant fatality statistic by NHTSA. We suggest animals count too.

We believe that ELDs have done nothing to improve safety and that a return to a more

." cost-effective method of tracking hours of service is in order as that is in the best

interest of both truckers' pets and public safety. ELDs have routinely failed these last

two years with at least two major outages being reported and they are nothing but an

expensive, confusing, and technologically complicated burden on drivers and their pets.

ln closing, ELDs and the 11 and 14 hour rules are simply incompatible with the needs of

the trucking industry's drivers that take pets with them on the road for companionship

and self-prbtection. We contend FMCSA has an obligation to finally consider pets too as

"stakeholders" during decision-making processes and give precedence to their needs.

lf our exemptions are granted, drivers with pets would revert to paper logs as an

alternate method of complianie to ensure and achieve maximum safety. They would

continue to abide by the 6Ot7O and the 34-hour restart rules until and unless amended

by FI14CSA in the course of its HOS reform rulemaking currently in progress.

We suggest that for most drivers who have and travel with pets, they consider the pet to

be members of their family. These drivers are a unique subset of the overall driverpopulation because to many of them, these animals are equivalent to their sons and

daughters. ln fact, for many... these pets are the onlv family they have. With that said,

thesL are the types of drivers who are already likely to be extra careful when operating

their vehicles because they have not only their own lives in their hands, but that of theirpet "family" members. We would suggest that they are as careful as they drive with theirpets... as you would be driving you son or daughter to soccer practice. They are already

iess inclined to drive fatigued or recklessly speed... out of iove, care and concern for

their pet companion along for the ride. F[\4CSA should reward these drivers for theirsafe operation by extending their day so they can take multiple rests for the comfort and

convenience of their pets and to avoid fatigue. Please eliminate the ELD requirement forthem as it only causes them anxiety.

Lastly, we suggest that these two exemption requests should be approved because

they are in the public interest, in the interest of the health and wellndss of 1.4 million

animals on the road, and the rules in question are neither necessary to carry out the

transportation policy of 49 U.S.C. 13101 nor necessary to protect shippers from abuse

of market power.

On behalf of our members, America's truck drivers on the road with their pets, and theirpets themselves who othenruise have no one to speak for t,tem, I thank you for your

consideration of this exemption request.



Sincerely,

". /S/ JAITTES LAIVIB

Executive Director

cc: tVlr. ttlullen, Mr. [Vlinor and Mr. Socci


EXHIBITi^o5Do

firnalt tsuslneaa ln Tran*Porta$an Caatttlan

December 13,2019 Via [email protected] & US IMail

" The Honorable Elaine ChaoSecretary of TransPortation1200 New JerseY Avenue SEWashington, DC 20590

RE: PETITION FOR MOTOR VEHICLE SAFETY STANDARDS AND ENFORCEMENTpURSUANT TO 49 U.S. Code S 30162 REQUIRED TO BE PROCESSED WITHIN 120

DAYS.

Dear Secretary Chao:

As you know, Federal Law (49 U.S.C. S 30162) permits interested persons to petition^

you to commence proceedings to prescribe "motor vehicle safety standards." We

hereby file this letter as such a petition and offer this letter and {acts that we believe

establish that a motor vehicle safety standard or order is necessary'

49 U.S.C. S 30102 defines "motor vehicle safety standard" as "a minimum standard for

motor vehicle or motor vehicle equipment performance'"

The tMovinq Ahead for in the 21't turv Act ("NIAP-21) directed You to take

certain actions with respect to electronic logging devices ("ELDs"), includ ing but not

limited to promulgating regulations:

,,...requiring a commercial motor vehicle involved in interstate commerce and

operated by a driver subject to the hours of service and the record of duty sfafus

requirements under parl 395 of titte 49, Code of Federal.Regulations, be

equipped with an electronic logging device to improve compliance by an operator

of a vehicte with hours of service regulations prescribed by th.e Secretary;"

tvlAP-21 further required that your regulations:

"...require an electronic togging device- "(i) to accurately record commercial

driver hours of service; "(ii) to record the tooation of a commercial motor vehicle;

1775 l. (Eye) Street, NW, Suite 1 150, Washington, DC 20006

202-587 -27 5 1 www. Tru cker s. com S u p port@Tru cke rs' com


The Honorable Elaine Chao

Decernber 13, 2019

Page 2 of 8

,,(iii) to be tamper resistant; and "(iv) to be synchronized to the operation of the

vehicle engine or be capable of recognizing when the vehicle is being operated;,'(B) allow law enforcement fo access the data contained in the device during a

roadside inspection; and "(c) appty to a commercial motorvehicle beginning on

the date that is 2 years after the date that the regutations are published as a final

rLtle."

[MAP-21 also directed "Performance and Design" standa.rds:

"The regglations prescribed under subsection (a) shall establish

performance standards- "(A) defining a standardized user interface to

aid vehicte operator compliance and law enforcement review; "(B)

estabtishing a secureprocess for standardized- "(i) and unique vehicle

operator identification; "(ii) data access; "(iii) data transfer for vehicle

operators between motor vehictes; "(iv) data storage for a motor carrier;

and "(v) data transfer and transportability for law enforcement officials;

"(C) establishing a standard security level for an electronic logging, device

and related components to be tamper resistant by using a methodology.

endorsed by a nationally recognized standards organization; and "(D)

identifying each driver subject to the hours of service and record of duty

sfafus requirements under paft 395 of title 49, Code of Federal

Regulations."

Finally, in terms of the enforcement of these standards, tvlAP-21 imposed an affirmative

duty on you to promulgate certification criteria and a process for certification:

c ERTI F t cAT t o N cRtTERtA.- " (1 ) /N GENERA L.-The reg ul ation s prescribed

by the Secretary under this section shatl establish the criteria and a process for

the certification of electronic togging devices to ensure that the device meets the

pefformance requirements under this section.

An ELD falls under the definition of "motor vehicle safety standard" insofar as an ELD is

commercial "motor vehicle equipment" mandated by law'



December 13,2019

Page 3 of 8

It appears our previous requests to the Federal Government to suspend the ELD rule' due to new data showing a 30 year high in large truck fatality rates and delay the

December 16th transition to ELDs have fallen upon deaf ears. We presume your

Department and the Commercial Vehicle Safety Alliance ("CVSA") are proceeding with

hard ELD enforcement. Accordingly, on behalf of its membership and the small carrier

industry in general, the Small Business in Transportation Coalition ("SBTC') hereby

requests an order be issued which: (1) enforces IVIAP-21 and d'irects that all ELD

products actually be certified by the Federal tVotor Carrier Safety Administration

("FIVCSA") in accordance with the directive and standards set forth in IVAP-21; and (2)

declares a moratorium on ELD enforcement until a bona fide certification process is in

place that allows carriers to properly vet ELD products as intended by Congress.

We ask for this process as a replacement of FIr/CSA's current "self-certification"

procedure, which, we contend, (1) skirts the Unitefl States Department of

Transportation's ("USDOT") responsibility under |\AAP-21to develop a bona fide

certification process; and (2) recklessly allows unencrypted and othenivise deficient ELD

products to be used in Commercial lVotor Vehicles due to the self-certification contrary

to the intent of Congress.

We would also like to unequivocally state again, here, that the ELD mandate was never

properly mandated by FMCSA. We wish to remind you that a yeil ago, we wrote to

FMCSA regarding their failure to adhere to 49 CFR Appendix A to Subpart B of Part

395" Functional Soecifications for All El oooino Devices E LDs). That ls, weL

reminded them that FTVCSA committed during rulema king to making certain ELD-

related information read ily available to the industry and public online at the onset ofthe need for filing Freedom of lnformation Act or other data49 CFR Appendix A to Subpart B of Part 395. Functional

implementation withoutrequests. We pointed to

for LDs as followsic n

5.3. Publicly Available lnformationExcept for the information tisted under paragraphs 5.7. 1(b)(2), (4), and (5) and

5.2.1(b)(g) of this appendix, FMCSA wilt make the information in sections 5.?

"1 and 5.2.1 for eacn certified ELD pubticty available on a Wib sife to allowmotor carriers to determine which products have been properly registeredand certified as ELDs compliant with this appendix (emphasis added).

We noted that 5.1.1. states:


The I'{onorable EIaine Chao

December 13, 2019

Page 4 of 8

5.1.1. Registering Online(a) An ELD provider developing an ELD technology must register online at asecure F/,ICSA Web site where the ELD provider can securely cefiify that itsELD is compliant with this appendix.(b) Provider's registration must include the following information:(1) Company name of the technology provider/manufacturer.(2) Name of an individual authorized by the provider to verify that the ELD iscomptiant with this appendix and to certify it under section 5.2 of this appendix(3) Address of the registrant.(4) Emailaddress of the registrant.(5) Telephone number of the registrant.

And we pointed out that 5.2.1 states:

5.2. 1 . Online Certification(a) An ELD provider registered online as descnbed in section 5.1 .1 of thisappendix must disclose the information in paragraph (b) of this section abouteach ELD model and version and certify that the particular ELD is compliant with

the requirements of this appendix.(b) The online process will only allow a provider to camplete certification if theprovider successfully discloses all of the following required information:(1) Name of the product.(2) hlodel number of the product.(3) Software version of the product.

@) An ELD identifier, uniquety identifying the certified model and version of theELD, assigned by the ELD provider in accordance with secfron 7.1 5 of thisappendix.(5) Picture and/or screen shot of the product.(6) lJser's manual describing how to operate the ELD.(7) Description of the supported and certified data transfer rnechanisms and step-by-step instructions for a driver to produce and transfer the ELD records to anauthorized safety official.(B) Summary description of ELD matfunctions.'(Si)

Procedure to vatidate an Et-D authentication value as described in section 7.1

4 of this appenCix.(10) Certifying statement describing how the product was fesfed to comply withF\ICSA regulations.



December 13,2019

Page 5 of 8

We further noted that Ftr/CSA had --as of a year ago -published in furtherance thereof

a page at https://csa.fmcsa.dot.gov/ELD/List which only covered the following items:

(1) Name of the Product.(2) Atlodel number of the Product.l$ sottware version of the product-'1i1

nn ELD identifier, uniquely identifying the certified model and version of the'ELD,

assigned by the ELD provider in accordance with section 7.1 5 of this

aPPendix.(5) Picture and/or screen shot of the product.

and:

(1) Company name of the technotogy provider/manufacturer.(4) Emailaddress of the registrant.(5) Telephone number of the registrant.

We alerted FI\ICSA to the fact that the following seven data columns that are required to

be published on the website appeared to have been omitted by FIVCSA:

Name of an individual authorized by the provider to verify that the ELD is

compliant with this appendix and to certify it under secfion 5.2 of this appendix-

Address of the registrant.

User's manual describing how to operate the ELD.

Description of the supported and certified data transfer mechanisms and step-by-

step instructions for a driver to produce and transfer the ELD records to an

authorized safety official.

Summary description of ELD malfunctions.

Procedure to validate an ELD authentication value as described in section 7.1 4

of this appendix.

Certifying statement describing how the product was tested to comply with

F\/ICSA regulations.



December 13,2019

Page 6 of 8

Also, we remind you that last year, we advised FTMCSA that certain ELD manufacturers

were misleading ihe industry to believe that their ELD products were "FIVCSA-Certified"' when the Small Business in Transportation Coalition ("SBTC") & FI\4CSA both knew this

not to be true because of FIVCSA's "self-certification" policy, which we contend shirked

their responsibility under the Congressional directive. FTMCSA did not address this with

us and ignored this Problem.

We still contend that Ftt/CSA failed to adhered to its promise to publish the missing

information referenced above for at least eight months after the ELD rule took effect in

2017, and that FMCSA thereby neglected to enable the industry to properly vet ELD

products made available by ELD manufacturers, including being aware of very

important information like a "summary description of malfunctions." Without this due

noiice, FN/CSA therefore failed to properly implemented the ELD rule.

F ELD

was not oerlv imolemented and that FMCSA fai to provide ind with ther

olEL tt ion

ln our recent comment to the agency in furtherance of Hours of Service reform

rulemaking, we pointed to the national securitv risks inherent in self-certification:

"SBTC was the only trucking association to tell to Congress fhaf the trucking

industry knows very well that there is the potential for criminals and others

inctuding terrorists to hack into trucks'telematic devices anrl breach drivers'

btuetooth and wi-fi connections to take over the controls of trucks' acceleratorsremotely. They know this because fhe FAICSA's parent agency USDOT and the

FBt issied a warning to this effect in 2016. And University of Michigan

researchers reported they had accomptished this for real not too long ago- They

actualty hacked in and made a truck accelerate on a highway to the amazement -

-and sheer terror-- of its driver.

We ask F;ICSA to imagine a HAZlttlAT truck being forced remotely into

accelerating into a school bus fitled with kids, or a hospital or nursing home, or a

major city's water suPPlY.

By opting to attow ELD manufacturers to "self-certify" we believe Fh/tCSA skirted

their obtigations under A/\AP-2|, jeopardized national security, and you have

allowed the market to be ftooded with unsecured devices that are not encrypted.

Quite frankly, some of them malfunction and solze don't work at all. We remind



Decernber 13,2019

Page 7 of 8

Fh/tCSA here of our request to immediately suspend ELDs due to this natianal"security concern and of our pending c/ass exemption application.

And white some ELD manufacturers are out inappropriately peddling theirproducts as being "FAlCSA-certified," in reality... F^/ICSA has not certified any ofthem. Not a one. FAIICSA merety requires these manufacturers register theirproducts and "self-certfu."

We fin,J this ironic, when we think about how these are tracking devices that are

intended to prevent truck drivers from, "self-certifying" their hours of seruice

compliance on Paqer logs."

We continue to believe FI1/CSA's failure to develop a certification program to protect the

industry and public from telematic devices susceptible to hacking... is reason enough^to

press the Congressional pause button on ELD enforcennent until the agency has time to

thoroughly research telematic vulnerabilities and develop a bor'la fide telematiccertification program as originally directed by Congress. Our previous request to

FTMCSA to do so also went ignored and unanswered'

Please note Federal Law (49 U.S.C. S 30162) requires you to take certain action upon

receiving this petition. Specifically, the law states:

"The Secretary shatt grant or deny a petition not later than 120 days after the

petition is filed. tf a petition is granted, the Secretary shall begin the proceeding

promptty. lf a petition is denied, the Secretary shall publish the reasons for the

denial in the Federal Register."

While we request that you please process this petition in accorilance with law, given the

Omnitracs failure last month showing the need for USDOT oversight and certification of

ELD products... and the December 16th transition date fast approaching, we believe an

immediate e rqencv moratorium on enforcement is in order forthwith.

Thank you for your consideration.



December 13,2019

Page 8 of 8

Sincerely,

/si JAITIES LAtvlB

Executive Director

cc: N/r. Laurence Socci, Esq.

tt/r. [t/inor; [Vr" Fromm; tt/r. t\4tlllen;


tBITth.qDI6

Sffia$ Eusinpse tn Wan*parta$an Csaff$an

[\Iarch 8,2021 Via cartos.monje.(Qdg!,gov a US lVlail

"" The Honorable Pete ButtigiegSecretary of Transportation'1200 New Jersey Avenue SEWashington, DC 20590

Re: (1) SBTC's 2,019 PETITION FOR MOTOR VEHICLE SAFETY STANDARDS AND

ENFORCEMENT PURSUANT TO 49 U.S. CODE S 30162, WHICH WAS REQUIRED

BY STATUTE TO BE PROCESSED WITHIN 120 DAYS BUT WAS IGNORED BY

USDOr; AND (2) REOUEST FOR OIG AUDIr OF FMCSA COMPLIANCE rylTEM4P'21 INSOFAR AS THE SECRETARY WAS REQUIRED TO DEVELOP A BONA FIDE

ELD CERTIFICATION PROGRAM.

Dear Secretary Buttigieg :

Congratulations on your confirmation as the new Secretary of Transportation.

By way of introduction and background, the Small Business in Transportation Coalition

("SBTC") is a 501(cXO) non-profit transportation industry trade group operating through

www.truckers.com, which promotes and protects the interests of small businesses in the

industry. We encourage ethical business practices and support teamwork, cooperation,

transparency, and partnerships among truckers, carriers, brokers, forwarders &

shippers who seek to do business with the utmost integrity. By way of personal'

introduction, I am a former tVlotor Carrier lnvestigator with the New York State

Department of Transportation who was charged with motor carrier safety enforcement.

On December'13, 2019, the SBTC petitioned your predecessor for MOTOR VEHICLE

sAFETy STANDARDS AND ENFORCEMENT PURSUANT TO 49 U.S. Code S 30162.

That Petition went unanswered. As you may know, SBTC has pending legislation

against the Department due to the Federal N/otor Carrier Safety Administration's

(FIMCSA) failure to process exemption applications in accordance with the law. The

SBTC now requests that you please reconsider our petition below.

17751. (Eye) Street, NW, Suite 1150, Washington, DC 20006202-587 -27 51 www. Tru ckers. com S u pport@Tru cke rs. com


The Honorable Pete Buttigieg

March 8,2021

Page 2 of IFederal Law (49 U.S.C. S 30162) permits interested persons to petition the Secretary to

commence proceedings to prescribe "motor vehicle safety standards." We hereby file'

. this letter as such a petition and offer this letter and facts that we believe establish that a

motor vehicle safety standard or order is necessary.

49 U.S.C. S 30102 defines "motor vehicle safety standard" as "a minimum standard for

motor vehicle or motor vehicle equipment performal'lce'"

The tVloving Ahead for Progress in the 2l"tCenturv Act ('tvlAP-21) directed you to take

certain actions with respect to electronic logging devices ("ELDS"), including but not

Iimited to promulgating regulations:

"...requiring a commercial motor vehicle involved in interstate commerce and

operated by a driver subject to the hours of seruice and the record of duty sfafus

requirements under part 395 of titte 49, Code of Federal Regulations, be

equipped with an electronic logging device to improve compliance by an operator

of a vehicte with hours of seruice regulations prescribed by the Secretary;"

IVAP-21 further required that your regulations:

"...require an electronic togging device- "(i) to accurately record commercial

driver hours of seruice; "(ii) to record the location of a commercial motor vehicle;

"(iii) to be tamper resistant; and "(iv) to be synchronized to the operation of the

vehicle engine or be capabte of recognizing when the vehicle is being operated;

"(B) allow law enforcement fo access the data contained in the device during a

roadside inspection; and "(C) apply to a commercial motor vehicle beginning on

the date that is 2 years after the date that the regutations are published as a final

rLtle."

MAP-21 also directed "Performance and Design" standards:

"The regutations prescribed under subsection (a) shalt establish performance

standards- "(A) defining a standardized user interface to aid vehicle operator

comptibnce and law enforcement review; "(B) estabtishing a secure process for

standardized- "(i) and unique vehicle operator identification; "(ii) data access; "(iii)

data transfer for vehicle operators between motor vehicles; "(iv) data storage for a

motor carrier; and "(v) data transfer and transportability for law enforcement officials;


The l'lonorable Pete Buttigieg

March 8,2021

Page 3 of 9

"(C) estabtishing a standard security levelfor an electronic logging device

and related componenfs fo be tamper resistant by using a methodology

endorsed by a nationally recognized standards organization; and "(D)

identifying each driver subject to the hours of seruice and record of duty

sfafus requirements under part 395 of title 49, Code of Federal

Regulations."

Finally, in terms of the enforcement of these standards, IVAP-21 imposed an affirmative

duty on you to promulgate certification criteria and a process for certification:

c ERTI F t CAT1 O N CRITER: A.- " (1 ) t N G EN ERAL.-T\e regul ations prescribed

by the Secretary under this section shatt estabtish the criteria and a process fof

the certification of electronic logging devices to ensure that the device meets the

performance requirements under this section.

An ELD falls under the definition of "motor vehicle safety standard" insoiar as an ELD is

commercial "motor vehicle equipment" mandated by law.

Our previous requests to the Federal Government to suspend the ELD rule due to then

new data showing a 30 year high in large truck fatality rates and delay the December

161h 2O1g transition to ELDs fell upon deaf ears. lnstead, the Secretary Chao

Department and the Commercial Vehicle Safety Alliance ("CVSA') implemented hard

ELD enforcement. We are now at a 31 year high. Accordingly, on behalf of its

membership and the small carrier industry in general, the Small Business in

Transportation Coalition ("SBTC") now repeats its 2019 request for an order to be

issued which: (1) enforces TVIAP-21 and directs that all ELD products actually be

certified by the Federal N/otor Carrier Safety Administration ("Flt/CSA") in accordance

with the directive and standards set forth in t\4AP-21; and (2) declares a moratorium on

ELD enforcement until a bona fide certification process is in place that allows carriers to

properly vet ELD products as intended by Congress.

We again ask for this process as a replacement of FIMCSA's current "self-certification"

procedure, which, we contend, (1)skirts the United States Department of

Transportation's ("USDOT") responsibility under IVIAP-21 to develclp a bona fide

certification process; and (2) recklessly allows non tamper-proof, unencrypted, and

othenruise deficient ELD products to be used in Commercial tVotor Vehicles due to the

self-certification contrary to the intent of Congress.


The I'lonorable Pete Buttigieg

March 8,2A21

Page 4 of 9

We would also like to unequivocally state again, here, that the ELD mandate was never

properly mandated by FMCSA .ln 2018, we wrote to Ftt/CSA regarding their failure to

.. adhere to 49 CFR Apr:endix A to Subpart B of Patt 395, Functio nal Specifications for All

Electroni Devices

That is, we reminded them that FtvlCSA committed during rulemaking to making certain

ElD-related information readily available to the industry and public online at the -onset of

implementation without the need for filing Freedom of lnformation Act or other data

requests. We pointe6 1s 49 CFR Appendix A to Subpart B of Part 395, Functional

Specifications for All Electronic Loqqinq Devices (ELDs) as follows:

5.3. Publicly Available lnformationExcept forihe information listed under paragraphs 5. /.1{b)(2), (4), and (5) and

S.Z.i(b)(g) of this appendix, FMCSA wilt make the information in sections 5-{.l and 5.2.1 for each certified ELD pubticly available an a Web sife fo allowmotor carriers ta determine which products have been properly registeredand certified as ELDs compliant with this appendix (ernphasis added).

We noted that 5.1.1. states

5.1 .1 . Registering Online(a) An et} proviAer developing an ELD technology must register online at a'secure

Fh/tCSA Web site where the ELD provider can securely certify that itsELD is compliant with this appendix.(b) Provider's registration must include the following inforrnation:(1) Company name of the technology provider/manufacturer.'1i1

Na*" oi an individuat authorized by the provider to verify !ha! the ELD is

compliant with this appendix and to certify it under section 5.2 of this appendix(3) Address of the registrant.(4) Emailaddress of the registrant.(5) Telephone number of the registrant.

And we pointed out that 5.2.1 states:

5.2.1 . Online Ceftification(a) An ELD provider registered online as descnbed in section 5.1 .1 of this

appendix must disclose the information in paragraph (b) of thr's secfion aboutea,ch ELD model and version and ceftify that the particular ELD is compliant with

the requirements of this appendix.(b) The online process witl onty allow a provider to complete certification if the

provider successfulty disctoses all of the following required information:



March 8,2021

Page 5 of 9

(1) Name of the product.(2) Alodel number of the Product.(3) Software version of the product.'d)

An ELD identifier, uniquely identifying the certified model and version of the

ELD, assigned by the ELD provider in accordance with section 7.1 5 of this

aPPendix.(5) Picture and/or screen shot of the product.(6) lJser's manual describing how to operate the ELD.'(7)

Description of the supported and certified data transfer mechanrsms and step-

by-step instructions for a driver to produce and transfer the ELD records to an

authorized safetY offi cial.(8) Summary description of ELD malfunctions.'1Si)

ProceduVe to validate an ELD authentication value as described in section 7.1

4 of this appendix.(10) Certitying statement describing how the product was tesfed to comply with

FAICSA regulations.

We further noted that FMCSA had -as of a 2018 -published in furtherance thereof apage at https://csa.fmcsa.dot.goviELD/List, which only covered the following items:

(1) Name of the product.(2) Atlodel number of the product.(3) Software version of the product.'giy

en ELD identifier, uniquely identifying the certified model and version'of the

ELD, assigned by the ELD provider in accordance with section 7.1 5 of this

appendix.(5) Picture and/or screen shot of the product.

and

(1) Company name of the technology provider/manufacturer.(4) Emailaddress of the registrant.(5) Telephone number of the registrant-

We alerted FIVICSA to the fact that the following seven data columns that are required to

be published on the website appeared to have been ornitted by FMCSA:

Name of an individual authorized by the provider to verify that the ELD iscompliant with this appendix and to certify it under section 5.2 of this appendix.


The Hsnorable Pete Buttigieg

March 8,2CI21

Page 6 ot 9

Address of the registrant.

User's manual describing how to operate the ELD'

Description of the supported and cetlified data transfer mechanisms and step-by-

step instructions for a driver to produce and transfer the ELD records to an

authorized safetY official.

Summary description of ELD malfunctions.

procedure to validate an ELD authentication value as described in section 7.1 4

of this appendix.

Certifying statement describing how the product was fesfed to comply with

FAICSA regulations.

Also in 2}1g,we advised FI\4CSA that certain ELD manufacturers were misleading the

industry to believe that their ELD products were "FIVCSA-Certified" when the SBTC &

FMCSA both knew this not to be true because of FTVCSA's "self-certification" policy,

which we contend shirked their responsibility under the Congressional directive. FIVICSA

did not address this with us and ignored this problem.

We still contend that FMCSA failed to adhered to its promise to publish the missing

information referenced above for at least eight months after the ELD rule took effect in

2017, and that FMCSA thereby neglected to enable the industry to properly vet"ELD

products made available by ELD manufacturers, including being awale of very

important information like a "summary description of malfunctions." Without this due

noii.", FTVCSA therefore failed to properly implemented the ELD rule.

FMC or res our co that the rn

properlv im mented a that FMCSA failed to p industrv th thewas ninform it needed to make qood choi when selecti q El-D equlpnne nt at the

onset of the ELD impl ion compliance oeriod.

ln our comment to the agency a while back in furtherance of Hours of Service reform

rulemaking, we pointed to tfre national securitv risks inherent in self-certification:

"SBIC was the only trucking association to tell to Congress fhaf the trucking

industry knows very well that there is the potential for criminals and others

including terrorists to hack into trucks'telematic devices and breach drivers'


The Hononable Pete Buttigieg

March 8,2021

Page 7 of 9

bluetooth and wi-fi connections fo take over the controls of trucks' accelerators

remotely. They know this because fhe FfirlCSA's parent agency USDOT and the

FBt issued a warning to this effect in 2016. And University of Atlichigan

researchers reporieA mey had accomptished this for real not too long ago. They

actually hacke'd in and made a truck accelerate on a highway to the amazement -

-and sheer terror-- of its driver.

We ask Fh/tCSA to imagine a HAZAt|AT truck being forced remotely into

accelerating into a school bus fitled with kids, or a hospital or nursing home, or a

major city's water suPPlY-

By opting to allow ELD manufacturers to "self-certify" we believe FA/ICSA skirted

tieii oOfigations under h/lAP-zl, jeopardized national security, and you have

attowed ihe rnarket to be ftooded with unsecured devices fhaf are not encrypted"

Quite frankly, some of them malfunction and some don't work at all. We remind

FA/1CSA heie of our request to immediatety suspend ELDs due to this national

security concern and of our pending c/ass exemption application.

And white some ELD manufacturers are out inappropriately peddling theirproducts as being "FhilCSA-certified," in reality... FAICSA has not certified any ofthem. Not a one.-FATICSA merely requires these manufacturers register theirprod ucts and "self-ce rtifY."

We find this ironic, when we think about how these are tracking devices that are

intended to prevent truck drivers from, "self-certifying" their hours of seruice

compliance on Pa7er logs."

We continue to believe FIr/CSA's failure to develop a certification program to protect the

industry and public from telematic devices susceptible to hacking... is reason enough to

press tire pause button on ELD enforcement until the agency has time to thoroughly

research telematic vulnerabilities and develop a bona fide telematic certification

program as originally directed by Congress. Our previous request to Ftt/CSA to do so

alsdwent ignoied and unanswered. We now ask either you or Congress copied here .

now do so

We would also like to note here that Ft\4CSA's self.certification of ELD products has

drawn the criticism of the Federal Bureau of lnvestigation in addition to the SBTC

insofar as hacking is concerned. lndeed, in its attached July 21,2020 bulletin, the

Bureau stated:


The l'lonorable Pete Buttigieg

lMarch A,2021

Page 8 of 9

"Cybet criminals could exptoit vutnerabitities in electronic logging devices (ELDs),

which became required equipment in most commercialtrucking operations as of

16 December 2019 due to a federal regulatory mandate. Although the mandate

seeks to provide safety and efficiency benefits, it does not contain cybersecurity

requirements for manufacturers or suppliers of ELDs, and there is no

requirement for third-party vatidation or testing prior to the ELD self-certification

process. Ihis poses a risk to businesses because ELDs create a bridge between

previou sly u n con nected system s criticat to trucki ng operation s. Companies

choosing an ELD can mitigate their cyber risk by following best practices tailored

to ELDs. This inctudes asking the ELD's supptier specific questions, some ofwhich are identified in this PlN."

And most recently, it was reported on l/arch 1,2021 by Freight Waves

thttps://www.freightwaves.com/news/investiqative:-keeptruckin-fiqhts-ntsb-bid-to-remove-its-eldtechnoloqv-in-wake-of-crash) that one National Transportation Safety

Board member had this to say about "self-certification:

httichael Graham, NISB board member, said during the Westfield Transport

hearing that FhttCSA's reviewprocess for ELDs was "perilously close to very little

or no certificatian" at all.

"lt Works, and it wOrkS beCause I Say it Works," Graham Said. "That's nOt a Very

robust system."

please note Federal Law (49 U.S.C. S 30162) requires you to take certain action upon

receiving this petition. Specifically, the law states:

"The Secretary shalt grant or deny a petition not later than 120 days after the

petition is fited. tf a petition is granted, the Secretary shall begin the proceeding

promptly. tf a petition is denied, the Secretary shall publish the reasons for the

deniat in the Federal Register."

While we request that you please process this petition in accordance with law, given the

COVID-1g pandemic and the unique once-in-a-century challenges faced by truckers

over the past year, the Omnitracs failure in 2019, and the concerns expressed by the

FBI and NTSB which clearly show there is a need for USDOT oversight and certification

of ELD products, we request an Office of the USDOT lnspector General Audit into



March 8,2021

Page 9 of 9

FtvlCSA,s implementation of the tvlAP-21 requirement that the Secretary develop a bona

fide ELD certification Program.

'" We also believe an nationwi emerqency moratorium ELD

enfo ment for all rners is in order until such time as a bona fide risk-free ELD

certification program is properly developed and implemente d by FII/CSA in the interests

of public safety and national security and that a return to paper logs, albeit temporary,

be authorized. Given the agricultural exemption already granted by Congress, we

believe Congress has already established firm public policy that paper logs are safe and

sufficient for these carriers and in the public interest.

Thank you for your consideration.

Sincerely,

/s/ JAN/ES LANIB

SBTC Executive Director

lMr. Laulrence Socci, Esq. (via email)

lvls. Meera Joshi, FNICSA Acting Administrator (via email)

tvlr. Eric.J.Soskin, USDOT OIG

lt/r. Robert Sumwalt, NTSB Chairnnan (via US [t/lail)

All tVlembers of Congress (via hand-delivery)


EXHIBIT

T UNITED STATES DISTRICT COURT

2 SOUTHERN DISTRICT OF FLORIDA

3 X

4 FEDERALTRADE COMMISSION, :

5 Plaintiff,:

5v : Case No

7 DOTAUTHORITY.COM, lNC., : 0:16-cv-62186-WJZ

8 et al.,

Defendants

10

1.1

9

12 Videotaped Deposition of

rCase 1:20-cv-00883-CKK Document 42 Filed 08/20/21 of 86

1,6

13 ROBERT LEE THOMASSON, JR.

'1,4 Washington, D.C.

15 Monday, January 8,2018

10:13 a.m

17

18

19

20 Job No.:172713

21 Pages:t-21"1

22 Reported by: Marney Alena Mederos, RPR, CRR


01,:48:49 1 re-established is DOTAuthority.com, "has roughly

01:48:53 2 10 active domains" --

01:48:563 A Yes,sir.

01-:48:57 4 a -- "and has been on our radar for

01:48:59 5 years."

01:48:59 6 And then the next sentence, "He stays

01:49:01 7 on -- "he stays on just on the edge but we have

0L:49:05 8 not yet found prosecutable data; olG is very much

Ot:49:14 9 in the looP."

01:49:15 10 A Yes, sir.

01:49:15 11 a Okay. "He" in that sentence is

Ot:49:17 12 referring to Lamb, the owner of Example 1,


01,:49:20 13 DOTAuthority.com, correct?

01,:49,211-4 A That's correct.

01,:49:21.1.5 a Okay. And so you are saying that what

01.:49:2616 he is doing -- there is nothing illegal about what

01:49:30 17 he was doing?

01:49:31 L8 A No, sir, that's not what I'm saying.

01:49:33 19 a You're saying he's on the edge. You

01:49:35 20 didn't say he went over the edge. You said he's

01:49:39 21, on the edge.

01.:49:4022 MR. McNULTY: Objection. Leading.


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