FMCSA Slapped With “Discrimination” Lawsuit, Accused Of Favoring ATA, TCA, OOIDA
Washington D.C. – A trucking trade group has filed a lawsuit alleging the Federal Motor Carrier Safety Administration (FMCSA) is “intentionally discriminating” against it and is in violation of federal law for its handling of two recently submitted rules exemption applications.
The 15,000-member Small Business in Transportation Coalition (SBTC) filed the suit in U.S. District Court on Monday, May 6, in conjunction with the beginning of U.S. Small Business Week.
President of the SBTC, James Lamb, tells Transportation Nation Network (TNN) the group took this step as a means to “regulate the regulators.”
“The point of this lawsuit is to remind the FMCSA the industry is not going to tolerate them acting as if they are above the law,” Lamb said. “They are discriminating against certain trade groups which is arbitrary and capricious behavior.”
Also named as defendants are FMCSA Administrator Ray Martinez, the U.S. Department of Transportation (USDOT) and USDOT Secretary Elaine Chao.
About The Complaint
SBTC’s complaint alleges the FMCSA violated, and continues to be in violation of, the Administrative Procedures Act (APA), which requires the agency to take specific actions along a mandated timeline when it receives exemption applications.
The first of the exemption applications at issue was submitted by the SBTC on February 1, 2018, after the FMCSA required the group to amend its earlier submission of the same application from November 20, 2017.
In it, the SBTC requested a permanent exemption from the electronic logging devices (ELD) mandate for independent contractors and small carriers with less than 50 employees.
The APA requires the FMCSA to publish the application into the Federal Register “upon receipt.” However, the agency did not publish the ELD exemption application until June 5, 2018, after which point a public comment period ensued.
After one extension of the comment period and nearly 2,000 comments submitted, the FMCSA closed it on July 16, 2018.
To this date, the agency has yet to grant or deny the exemption request despite the fact the APA requires the agency to do so within 180 days.
The SBTC complaint asserts:
FMCSA’s failure to make a decision on the SBTC’s ELD Exemption Application and publish that decision in the Federal Register violates 49 U.S. Code §31315(b)(7), which states: “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 of such request.”
In addition, the suit alleges the FMCSA “intentionally discriminated against the SBTC and it’s members by treating it differently than every other trucking association that filed an ELD Exemption Application.”
The second APA violation, the suit alleges, is the agency’s refusal thus far to publish an SBTC hours of service (HOS) rules exemption application it submitted “on behalf of SBTC members, as well as all other truck and bus drivers who operate in interstate transportation and pass through the City of Midland, Texas.”
TNN first reported in August 2018 on the controversy surrounding Midland’s local ordinance which bans commercial trucks from parking on city streets and private commercial property.
Truckers who are found in violation of the ordinance can be fined up to $500.
In response, the SBTC filed a class action HOS exemption request on February 12, 2019.
SBTC’s complaint asserts Larry W. Minor, Associate Administrator for Policy with the FMCSA, responded in an email to SBTC on February 18, 2019.
In Minor’s alleged reply, included in the SBTC complaint, he writes:
“We acknowledge the complaint against the City of Midland but do not believe the complaint should be construed to serve as an application for an exemption. The exemption statute and implementing regulations clearly require that you present an alternative to the regulations from which you seek relief. And you should present your assessment how the alternative would achieve the requisite level of safety.”
On February 19, 2019, SBTC President James Lamb wrote an email in response to Minor disagreeing with his analysis and stating that “the FMCSA does not have the legal authority to unilaterally determine what is an exemption application and what is not.”
Further, the suit claims Lamb urged the agency to publish the HOS exemption request application.
As a result of the agency’s decision not to publish the SBTC HOS exemption application, the complaint argues that the agency,
1.) failed to engage in notice and comment rulemaking,
2.) failed to provide a justification for its inaction,
3.) acted arbitrarily and capriciously and in excess of statutory justification, authority, or limitations or short of statutory right, and
4.) withheld or unreasonably delayed agency action
The SBTC is asking the court to declare the FMCSA in violation of the APA and “compel” the agency to act on its submitted applications.
Further, the SBTC is asking the court to order the FMCSA not to violate the APA in any future actions.
The complaint is also asking the court to award the SBTC all costs associated with bringing the suit.
“They Play Their Favorites”
In an interview this week with SBTC president, James Lamb, he spoke out about the case and pulled no punches as to why he believes the FMCSA is not following federal law when it comes to SBTC’s exemption requests.
“They (FMCSA) have adopted an attitude of ‘there is certain people in the industry they like and certain people they don’t like,'” Lamb stated. “They have their favorites and they play their favorites.”
He continued, “They seem to think they can ignore us or anyone they don’t consider to be a prime player.”
“It’s A New Game Now”
Lamb argued that the agency is struggling to adapt to the changing landscape in the trucking community.
He said as grassroots driver-advocacy groups like TruckerNation, the United States Transportation Alliance (USTA), and the SBTC continue to gain membership, the agency can no longer simply “ignore” the voices of many in the trucking community.
“It’s a new game now. It’ not just the American Trucking Associations (ATA), the Truckload Carriers Association (TCA) and the Owner Operator Independent Drivers Association (OOIDA). There are new groups now,” Lamb commented.
Further, he asserted this latest lawsuit against the FMCSA is for the protection and betterment of all trucking trade groups.
“We are intending to protect the interests of the industry, but also rights of other trade groups,” Lamb stated.
TNN reached out to the FMCSA for comment, but agency policy does not allow for comments about ongoing litigation.
TNN will continue to follow this story and bring you any new developments.
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