Trucking Group Continues Fight For ELD Exemption Accusing FMCSA of “Fraud”

Washington D.C. – The Small Business in Transportation Coalition (SBTC) has once again petitioned the Federal Motor Carrier Safety Administration (FMCSA) for an exemption from the electronic logging devices (ELD) mandate.

In a scathing rebuttal to the FMCSA’s July 16, 2019 denial of the SBTC’s request for a permanent exemption from the ELD mandate for independent contractors and small carriers with less than 50 employees, SBTC’s new request blasts the agency for its previous handling of its application, calling it “fraudulent.”

 

In an 11-page letter addressed to FMCSA Administrator Ray Martinez accompanying the resubmitted application, the SBTC states:

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.

In its denial, the FMCSA said the SBTC’s application for exemption “does not meet the regulatory standards for an exemption.”

The agency cited four key areas of data it claimed was missing from the application, and therefore, was insufficient.

In the SBTC’s response, the group asserts that as a trade group which represents an entire class of members, it cannot comply with providing the data FMCSA is asking for, writing:

The FMCSA either knows — or should know — a trade group cannot possible comply with a rule that pertains to individual drivers and carriers.

It’s a standard the SBTC says was not used when evaluating similar exemption requests by other trucking groups.

 

Specifically, the SBTC points to the agency’s processing of an ELD exemption request filed by the Owner Operator Independent Drivers Association (OOIDA) in 2018.

The FMCSA ultimately denied OOIDA’s request, but the SBTC contends the two trade groups were treated differently.

In OOIDA’s case, the FMCSA published and made a determination on the request within 180 days which is required by federal law under the Administrative Procedures Act (APA).

That was not the case in the agency’s handling of the SBTC’s exemption request.


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SBTC vs FMCSA Lawsuit Update

Transportation Nation Network (TNN) first reported the SBTC filed a lawsuit against the FMCSA in U.S. District Court on May 6, 2019 alleging the agency was in violation of the APA for failing to make a determination on its ELD exemption request within the required 180 days.

 

At the time the suit was filed, the agency had delayed in issuing its decision for almost 11 months.

In an interview on Friday with James Lamb, president of the SBTC, he told TNN the FMCSA appears to have been caught “red handed.”

“We have the smoking gun,” he said. “They really have no defense.”

According to Lamb, the FMCSA has yet to even offer a defense.

He says the agency has since filed two separate extensions in the case, with the most recent being on August 7, 2019.

The SBTC quickly filed a motion for default judgement the next day.

 

Lamb said the FMCSA’s extension requests could be the result of incompetence, though he fears it could be worse than that.

“I suspect more sinister motives are at work,” he commented.

A judge has yet to rule on either motion in the ongoing case.

“It Was A Sham”

Lamb told TNN he believes the SBTC will prove its first ELD exemption request was pre-determined by the USDOT before the comment period even began; therefore, the FMCSA essentially perpetrated a fraud on the trucking industry.

Here’s the timeline.

Records show the SBTC submitted its first exemption request on November 20, 2017.

The FMCSA responded in a letter dated January 5, 2018 informing the SBTC its request had been rejected because it was “incomplete.”

 

Further, the letter notified the group it could amend the request.

You can read the letter HERE.

The SBTC then filed the amended exemption request on February 1, 2018.

What Lamb contends he didn’t know when the group filed its second exemption application was that the first request had actually been rejected on the merits, not simply because it was “incomplete.”

“USDOT already had quashed this in January 2018 before the FMCSA asked for comments in June 2018,” Lamb alleged.

 

In support of this claim, he provided TNN with a letter sent to the Small Business Administration (SBA) by the USDOT on January 17, 2018.

In it, Paul Geier, Assistant General Counsel for Litigation and Enforcement with the USDOT, responded to an inquiry made by the SBA about the SBTC exemption request.

The purpose of Geier’s letter was to inform the SBA that the SBTC’s first exemption request had been rejected.

Geier wrote:

On January 5, 2018, Mr. Lamb’s request for exemption from the ELD rule on behalf of certain motor carriers was rejected by FMCSA because it failed to satisfy several specificity requirements of 49 CFR § 381.310.

Geier goes on to rebut a series of arguments made by the SBTC in its first ELD exemption request.

 

Lamb says Geier did not copy the SBTC on his letter to the SBA, so he did not receive Geier’s letter via the SBA until February 7, 2018…six days after submitting the second application.

Further, he asserts the SBTC was led to believe its amended application would be considered “in good faith.”

However, he argues the Geier letter proves that was never going to happen.

“The Geier letter shows the mother agency had already made up its mind. They knew this was a futile dog and pony show when they published the application June 5, 2018,” Lamb asserted.

“They never intended to approve this and made 1,900 people comment for nothing. It was therefore a sham.”

You can read Geier’s letter along with the SBA’s letter HERE.

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SBTC Argues ELD Exemption Must Be Granted

Lamb and the SBTC argue their newly submitted exemption request must be granted because the FMCSA has yet to demonstrate how the ELD mandate meets the required tests under 49 U.S. Code § 13541

Lamb contends the mandate: 1) is not necessary to enforce hours of service (HOS) regulations, 2) nor is it needed to protect shippers from the abuse of market power, and 3) is not in the public interest.

 

In fact, the SBTC asserts the mandate has only made U.S. roadways more dangerous for the motoring public and truckers.

The SBTC writes:

We have repeatedly asserted that ELDs have caused excessive speeding, which results in far more deaths ELDs would ever save by combating fatigue.

Further, the SBTC demanded the FMCSA grant its exemption request because the agency has failed, thus far, to demonstrate how the ELD mandate has improved highway safety.

According to federal law, the SBTC’s ELD exemption request must now be published into the Federal Register and a determination made within 180 days.

 

TNN asked the FMCSA for comment about the lawsuit at the time it was filed.

An agency spokesperson said policy does not allow for comments about ongoing litigation.

TNN will continue to follow any new developments.

Click HERE to read the SBTC’s 11-page letter.

 


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Get all the latest SBTC news HERE.

Get all the latest FMCSA news HERE.

 


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