those are available and i call the first case in the morning number eight sixteen six zero three two four owner operator independent drivers and says he ation very says united states department of transportation and will take f good morning may please the court my name is paul d cullen jr i represent the owner operator independent drivers association it's a trade association of one hundred fifty thousand small business truckers about jurisdiction of this matter and then going to the two independent bases over with which the court may overturn the agency's order at issue here which is to grant operating authority for to mexico two to allowing the court to enjoin set aside or suspend and to determine the validity in this case of the decision of the an order of the department of transportation  court in its recent request for an additional letter brief asked about the question of the petitioners petition for reconsideration of the agency level of its denial of our protest of that authority and they refused to even consider that wasn't really going on that in considered at all that's correct and our petition for reconsideration was to demonstrate the record that we had made and fulfillment of its requirements both the government and the petitioners letters describe that the petition the petition for reconsideration was timely filed we get to whether it was allowed through different ways the government says it is has an heretick authority to accept a petition for reconsideration petitioners point to three regulations which we believe allow for the to the petitioners to ask for reconsideration the the regulation of forty nine c f r three sixty five point three zero one this is an application proceeding in an application by a mexico downside of medicare for authority all application proceedings are governed by the f m c as it is rules of practice at part three eighty six of this chapter in part three eighty six point three six or provides for reconsideration theirs and we also suggest that part really six point three four allow for motions not otherwise covered by these rules and under both of those rules are petition for reconsideration at the at the agency was permitted but so you say you dispute the agency's original position it's letter that motions for reconsideration are not provided for yes we do and the agency perhaps concedes that in its letter to the court saying that  petition for reconsideration is timely fowles the agency has inherent authority to entertain that petition and also that the toll for filing under twenty eight u s c twenty three forty four the sixty days it was told when we filed our petition assuming argue render that a motion for reconsideration is not provided for do you have any authority to decide that it would extend do not cite to such a case i say it's the regulations which provide for reconsideration of that in the rules of practice and forty nine  rules of practice part three eighty six of this chapter in part really six section set three d six point six four provides for reconsideration with and twenty days and we filed our motion for reconsideration that they were not going to rule on motion for reconsideration because they don't allow them that is what they said in their letter but they have apparently changed their position in their briefs before the court you you're talking about tonight when a third letter of them you let me letters of march twenty third sort of march with or maybe you're talking about something else i am talking about that have under their rules clear bright under three to six point six four to ask for reconsideration they do not cite to any legal basis for denying us the right to ask for provides for reconsideration but three eighty six point six four has not been applied to  protest the part three hundred six point six four is not the language of it is not restricted to any particular type of order by the agency in fact three sixty five point three  one specifically says that three eighty six point six four applies to application proceedings which includes a right to protest why wouldn't that be to construe it this way protest there is no i understand the court's inference there but there but the three sixty five point three zero one says all application proceedings we rea matter in the normal course of business is that the agency accepts the application in the filing fee for u s carriers and very few you know that there are very rare protests and say i  redress the agency obvious error in stating that you hadn't served your petition properly and you know and verified it they were just wrong and they had to admit it right  so they may have refused to reconsider but they also had to admit that it wasn't flawed on a procedural basis which which is something you would have had to overcome if you had filed a petition for review immediately when a petition their lack of attention to our application when they petition for reconsideration is filed then the sixty day period or appealing the original  order is told and and is the original order denying the protest that is what is under review at the court let me let's move on to the merits since we've been eating up all your time  what is your strongest argument to say that think you have to show that the denial of our the granta this petition was arbitrary and capricious down to you and not in accordance with not in accordance with the law and what is what are your strongest arguments on that point there are two main ways in which they did not comply with the law the first is their failure to comply with the pilot program requirement of congress in the two thousand and seven act commonly referred to in the briefs as section six nine zero one requiring that the agency perform a pilot program under forty nine u s c three one three one five  and that requirement for a pilot program requires that they test the safety of mexican motor carriers that ask them to look to gather reasonable sample of data that make the stickley valid findings in the inspector general and the d o t f m c s a zone motor carrier safety advisory committee pointed out as we catalog in our brief that the data when there was an insufficient number of participants to the program the data collected was on representative of the universe of carriers who will be invited to have to apply for authority program i would say that they found that the agency otherwise complied with the requirements of oversight of the carriers who did  apply for a license to drive within the united states and then what would happen by virtue of the pilot program in other words per se gomez did not participate in the pilot program and you know what the implication of the pilot program for such a non participant that's exactly the fact pattern here of the two motor carriers hotwired post the pilot program and the pilot program or according to the two thousand forms of compliance with the safety rules well i understand that but i mean do these people have to fulfill exactly the same safety standards as the american truckers they do not  what we have just strongly to was is is that they were not held to the same standard number one among them as is my second issue the second legal basis and that is if i'm c s a is accepting  compliance with r c the l statute r r statute requires remote truck drivers on our highways to have a steady elf issued by a state in compliance with standards set by the operate under largely the same regulatory regime that they operated under during the pilot program which actually goes far beyond what u s and canadian carriers are are required to do there continues to be a very extensive pre authorization safety either which goes significantly beyond what u s and canadian carriers need to do we inspect every truck we inspect and the company's safety protocols we inspect their records  actually being followed we look at the driver's licenses the driver's records which i could drivers english proficiency we run them through department of homeland security databases we check the drug testing facility we accept public comments in case the public know something about the carrier that we do not we verify their insurance and verify that their trucks have modern safety features and that is just to get started and then after eighteen months these carriers go through a full compliance review and again unlike u and canadian carriers they have to be at the highest level in that compliance or about the pilot program requirements and the rupee carmen's following the pilot program so the pilot program tested the requirements that exist that continue to exist under the agency's regulations and will are are applied to all carriers going forward that's what makes this different from the kind of pilot program in the regulation that they they cite in their brief that requires a am that that talks about pilot programs where there is temporary regulatory relief this is not such a pilot program so that that that regulation is about the sample size where this temporary regular tory relief we require certain sample size because we need to be able to extrapolate if we get rid of a regulation what will happen here we were testing the very same regulations that are going to apply to mexico going forward and what the inspector general found is that we confirmed that the participants operated safely and the agency has the monitoring and forcemeat in place through this extensive regulatory regime to make sure that the companies that they actually authorize are safe and to the enforcement to make sure that anybody who is unsafe loses their operating story of the i that he had significant concern with a sample size and the agency said we didn't expect participation following the pilot program to be very large it is it remains extremely small but the question what the i should also say is that the agency has the monitoring enforcement in place to make sure that the trucks out truly operating in the united states are doing so so that i mean you're using the pilot program it seems to me is the gateway for jose gomez and mont come up to the border and say no i'm you know taking whatever it is up to ohio tomorrow and what do you do about point your honor i also an application i suppose if that company has not been through the extensive individual drivers so we look at both the company and we make sure the vidual drivers pass an english proficiency exam are properly licensed and go through directives leaders looking at paperwork so where possible per the statute we actually send people into mexico to make sure that the company is doing everything that it is supposed to do but there's the d c circuit held this sample size requirement is a sample size requirement for the pilot program plan that comes from the text of the statute the sector actual include the following elements in the pilot program plan and it makes sense that congress set it up this way in the situation where there were these large retaliatory terror spending these two point four billion dollars in tariffs and under nafta that really hurting u s businesses that make congress made she said let's do this pilot program let's make sure that we have the monitoring and foresman in place that the people actually operating here are operating safely and then we can go forward get rid of the tariffs they have a report and they can decide if they want to do something different this is an area in which congress has been very active and then you know let's let the pilot program go forward and get rid of these tariffs this is congress allowed the power program to go forward after mexico imposed the tariffs and in fact twenty nine members of congress wrote a letter to the agency saying please move forward with this because it's cost tens of thousands of jobs and billions of dollars in lost revenue the for whom well the administrative record that's it said right four zero for twenty four through twenty five it's a it's a lot of letters for from people from the u s businesses who felt that they were hurt by these tariffs and were asking the agency we don't understand mexico impose tariffs on what american goods are american trucking companies and american goods that go across industries agriculture manufacturing and why because their trucks were not allowed to go to operate freely in the u s what exactly ok exactly this is enough to matter that had to be ruled by nafta arbitral panels so this was ruled out right after arbitration panel back in two thousand and one mexico suspended the sanctions while we were moving forward then congress removed funding for the pilot program in i believe those two thousand and nine ended the prior pilot program that mexico imposes sanctions which at they again suspended when we as began the second well program i challenging the you know the final result of the pilot program no jurisdiction of the hobbs act is direct in the court of appeals but they did file a suit in the d c circuit challenging the pilot program i understand that but it seems to me challenging the planet at its inception is is clearly a different thing from when it's completed so i think they would have had the ability to do that grant operating a story to a particular carrier we think that question is is easily settled on the merits this pilot program requirement was a procedural quire and it culminated in a report to congress with mr agency had the authority to consider this we hadn't said we wouldn't do it and we think generally it is in everybody's interest for people to bring these concerns to the agency first before they take them to the court of appeals motions for reconsideration time when there's not a provision or motions for reconsideration i don't have a published cite for that your honor but the d c circuit does it routinely we in our brief cited a case involving the post a regulatory commission which similarly does not have regulations governing motions for reconsideration of course we don't think that the regulation applies to the decision on the protest but because we do have inherent in s serious question about it your honor as as a general matter we think that the agency has the authority to consider this and that therefore and hence they wouldn't do it so therefore we think there's jurisdiction of course there would be some benefit to the government if you decided this under stiction we just don't think that's the best answer you can sign of the denial of the protester you concern with by we understand their challenge to be not to the particular carrier i don't think there have been any safety concerns raised about these particular carriers we understand their challenge or for approving them exactly so we understand the challenge to go to the agency is soroti to authorize these these carriers and of course in in a similar case of the ninth circuit the the part of the teamsters they challenge the actual grant have filed a few of the actual granted operating sortie that we do think that's a better way to do it but these are obviously very closely related decisions and we see them really all in this case the protest decision as the final step in the road in deciding whether or not to approve california's unitas in this particular case the status of the the ninth circuit case the ninth circuit heard argument  march so that cases is pending of course you know i just find this excuse me the new five here in your brief i just find very l bus the decision on a protest must be based on the statutory factors applied to an individual carrier not of the agency's a action adopting a broad program such as the mexican truck program accordingly there is no basis for the agency repeatedly to consider petitioners broader argument so how can you ask us to rule on the merits of the statute says  if f m c s a could only rule on the statutory criteria well generally there's a high bar for removing jurisdiction for the court to say that the agency is acting if the agency really did not have authority to authorize these particular carriers we do think that this court could review that on a petition for review of a grant of operating thirty first we think that that question is pretty straightforward now in this case of course they didn't care to sion for he of the grant of operating story and that puts us in an unusual position abt me we did view these as sufficiently closely related we understood that they were challenging the merits in this court we thought that that under the unusual circumstances of this case that that decision the protest was the final step in the road of deciding whether or not to authorize this this particular carrier so the court has everything it needs before it to decide this matter but we also understand that you could view the is as not sufficiently related that a challenge to the to the not sufficiently related that you can reach both and in that case then we do think that the proper thing to do would be what the teamsters did in the ninth circuit and challenge the the actual grant of operating authority have certainly the protest itself is it before the agency has limited the safety of that particular carrier and there are no concerns about the safety of the particular carrier in this case if this petition for a review of that final final was a set up that was published in the federal register a petition for review of that and that's the way pilot programs typically work the review is on the front end of how the pilot program is designed at the agency needs to make changes and it changes the regulations can then be reviewed you know when when the regulations change but of course here we are testing the actual regulatory regime that has been in place since two thousand and three and will  existing law already required the agency to grant operating us already to these carriers if they met the safety requirements once the pilot program was complete we we think that's that everything that was required and of course that we do think that makes a lot of sense here where there are these retaliatory terrorist pending under nafta and congress has been very active congress has the information we reported to congress about the sample size they had the i g report about sample size if congress feels like something different needs to happen congress could of course step in and do that but under the current regulations and statute once we completed the pilot program months not years because and i found that it seemed to me it all took place within two thousand and fifteen maybe and in truth because march of two thousand and six you approved the permits in december of two thousand fifteen but i thought it applied within six or eight months before that i think that's correct your honor of course the i g looked at our pre authorization safety audit process they looked at what the agency was doing and they didn't not identify con there were a few concerns at the outset the agency remedy it but by the end of the pilot program the i g said that there were no concerns about the agency doing what it was supposed to do that the the monitoring and force me in place to make sure that the trucks that are actually here operating were operating safely so you think of authority is not something that's before the court brought along with them with the protests concerned here are you saying that the aren't even issue these kind of permanent operations to mexican because that's not something that we're supposed to determine because it seems like that's being argued also in addition to the denial of the protests so we we do think that under the very unusual circumstances in this case where the final action was the denial of the protest that you can look at whether the agency had the authority to do what it did in this case  authority to deny it or the authority to even grant the completion of the pilot program and to authorize these trucks to these mexican trucks to come here is the issue before the court also whether the agency has the authority to authorize us down at mexico downs how the letter carriers we do think is before this court we do think that's a fairly straightforward question it's only limited to whether the agency satisfied the statutory requirements i see that i'm i'm getting close to the end of my time if there are any questions on the driver's license issue i'd be happy to address those of course we do think that there are very good reasons that thirteen nine zero two and that section says that the agency grants authority if a motor carriers willing and able to comply with all of our rules and regulations and yet in this pilot program and in their policy that they've decided upon after the pilot program they are accepting noncompliance with the c b l statutes to operate on our road to must have a merit less complained that the d c circuits decision was constrained to the pilot program it said for the pilot program it was interpreted in the pilot program mandate in section six nine zero one and said in the this context for the pilot program mexican drivers may use their their mexican commercial driver's license and  n the rationale i believe i believe that's a very generous reading of the statute when the statute six no one simply requires the agency to describe the us rules for wh at compliance with mexican rules and in lieu of and that's a notification requirement we did not read six nine zero one we disagree at least to the extent of the pilot program with the d c circuit opinion that this that this appropriations bill granted an exemption to a to a statute parallel precisely what they say is the driver's association have us find that these are worthless surplus reading all of the statutes together as we must we think a more sensible conclusion is that congress decided that mexico domiciled truckers with mexican commercial driver's licenses could drive on u or we did not think they're pure placid we thought that that they are not notice requirements as part of the pilot program that the agency is required to give notice of their green exemptions and we were reading the part of the d c circuit subpoena and says we therefore have united states approved driver's license yes certified or under the pilot program scheme under thirteen under under three one three one  does cite to the pilot program statute that the agency must follow in the how a pilot program operates is to test an alternate form of compliance and then the report required under that statute makes recommendations to congress as to whether or not the statute should be amended because they have successfully tested whether or not some other form of compliance would provide the same level of safety decision was mentioned and under nafta we made no provision no promise to grant exemptions to any of our laws and that laughter allows us to maintain and enforce all of our safety laws we