United States Court of Appeals
                        For the First Circuit


No. 20-1125

                        SORREDA TRANSPORT, LLC,

                              Petitioner,

                                  v.

   UNITED STATES DEPARTMENT OF TRANSPORTATION; UNITED STATES,

                             Respondents.


                 PETITION FOR REVIEW OF AN ORDER OF THE
              FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION


                                Before*

                        Lynch, Circuit Judge,
                     and Saris,** District Judge.


     Keith A. Mathews and Associated Attorneys of New England on
brief for petitioner.
     Joy   K.  Park,   Senior  Trial   Attorney,  Department   of
Transportation, Heather Eilers-Bowser, Chief Counsel, Charles J.
Fromm, Deputy Chief Counsel, Sue Lawless, Assistant Chief Counsel
for Litigation, Cynthia Campise, Trial Attorney, Federal Motor
Carrier Safety Administration, Steven G. Bradbury, General
Counsel, Paul M. Geier, Assistant General Counsel for Litigation
and Enforcement, and Peter J. Plocki, Deputy Assistant General
Counsel for Litigation and Enforcement, on brief for respondents.

     *  While this case was submitted to a panel that included
Judge Torruella, he did not participate in the issuance of the
panel's opinion. The remaining two panelists therefore issued the
opinion pursuant to 28 U.S.C. § 46(d).
     **   Of the District of Massachusetts, sitting by designation.
November 9, 2020
              LYNCH,   Circuit     Judge.      Sorreda        Transport,     LLC

("Sorreda") challenges a final decision of the Federal Motor

Carrier Safety Administration ("the FMCSA"), an agency within the

United States Department of Transportation that regulates the

trucking industry in the United States.            The FMCSA determined that

Sorreda's business safety rating is "unsatisfactory."                  Sorreda

argues that the FMCSA's investigation and resulting decision was

arbitrary and capricious under the Administrative Procedure Act

("the APA"), 5 U.S.C. § 706(2)(A), and so the agency's decision

should be set aside.          The FMCSA's findings are supported by

substantial evidence and its determination that Sorreda's business

safety   rating     was    unsatisfactory    was    neither    arbitrary     nor

capricious under the applicable regulations.             We deny the petition

for review.

                                      I.

              Sorreda is a small, interstate trucking company owned by

Evangeline Sebor and located in Bedford, New Hampshire.                   In May

2019, the FMCSA initiated a compliance review of Sorreda after

receiving two complaints through its consumer complaint database.

The   FMCSA    completed    its   investigation     in   August   2019,    which

included a two-day investigation at Sorreda's place of business

and additional requests and subpoenas for records.                In September

2019, the FMCSA issued a notice informing Sorreda of its proposed

unsatisfactory rating, which resulted from an acute violation in


                                     - 3 -
one safety factor (General) and critical violations in two other

safety factors (Driver and Operational).

             Specifically, the FMCSA investigators found that (1)

Sorreda had falsified a road test for one of its drivers (General),

see 49 C.F.R. §§ 390.35, 391.51(a), (2) it had not obtained several

drivers' motor vehicle records within the timeframe required by

regulation       and   had     failed     to    maintain      medical     examiner's

certificates in several of its drivers' qualification files as

required by regulation (Driver), see

(b)(7), and (3) it had failed to maintain and to retain accurate

and true time records for several of its drivers and had failed to

install an electronic logging device to record those entries as

required    by    regulation     (Operational).          See

    The critical violations as to the second and third

safety factors resulted in unsatisfactory safety ratings for those

two factors, and unsatisfactory safety ratings in two factors

automatically results in an overall unsatisfactory safety rating.

B.III.A(b).              A motor carrier with a final safety

rating of unsatisfactory is prohibited from operating a commercial

motor vehicle in interstate or intrastate commerce unless it takes

corrective       action   to    improve    its      overall    safety     rating    to

conditional      or    satisfactory      or    it   successfully        appeals    its

proposed unsatisfactory rating through an administrative review




                                        - 4 -
with   the    FMCSA.       See   49     U.S.C.   § 31144(c),   (e);   49   C.F.R.

§§ 385.13(a), 385.15, 385.17.

             Sorreda chose not to take immediate corrective action

and instead appealed the proposed unsatisfactory rating to the

FMCSA.    In November 2019, the FMCSA issued a final order denying

Sorreda's petition for administrative review and concluding that

Sorreda had failed to prove by a preponderance of the evidence

that the FMCSA had erred in assigning it an unsatisfactory rating.

             Sorreda filed a timely petition for review in this Court

pursuant to 28 U.S.C. §§ 2342(3)(A), 2343-44.

                                          II.

             A "court must uphold a decision of the FMCSA unless it

is 'arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.'"             Darrell Andrews Trucking, Inc. v.

Fed. Motor Carrier Safety Admin., 

, 1124 (D.C. Cir.

2002) (quoting 5 U.S.C. § 706(2)(A)); cf. Flock v. U.S. Dep't of

Transp., 

, 54-55 (1st Cir. 2016).              "The scope of review

under the 'arbitrary and capricious' standard is narrow and a court

is not to substitute its judgment for that of the agency."                 Motor

Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 

, 43 (1983); see also

examine      the     relevant    data     and    articulate    a   satisfactory

explanation        for   its   action    including   a   'rational    connection

between the facts found and the choice made.'" (quoting Burlington


                                         - 5 -
Truck Lines v. United States, 

, 168 (1962))).                    We

accept an agency's findings so long as they are supported by

substantial evidence in the record as a whole.               See Vieques Air

Link, Inc. v. U.S. Dep't of Lab., 

, 104 (1st Cir. 2006)

("[W]e 'accept the findings and inferences drawn by the ALJ,

whatever they may be, unless they are irrational,' and respect his

or her 'prerogative in the first instance to . . . make credibility

assessments     . . . ."   (all   but    first   alteration     in   original)

(quoting Bath Iron Works Corp. v. U.S. Dep't of Lab., 

,

56 (1st Cir. 2003))); see also 5 U.S.C. § 706(2)(E).

           Sorreda first argues that the FMCSA inappropriately

found that Sorreda had failed to obtain and to maintain motor

vehicle records in several of its drivers' qualification files.

Sorreda concedes, however, that it did not obtain the required

motor vehicle records and place them in the driver qualification

files for at least two of its drivers within the thirty-day period

required   by    regulation.       See     49    C.F.R.     §§ 391.23(a)-(b),

391.51(a), (b)(2).

           Furthermore,     the   agency   was    correct    that    the   plain

language of the "good faith" exception to the motor vehicle record

requirement does not apply to Sorreda's situation because the motor

vehicle records for the two drivers at issue did in fact exist and

were eventually received by Sorreda, just not within the timeframe

set by regulation.     See

that "[i]f no


                                   - 6 -
motor vehicle record is received from the State or States required

to submit this response, the motor carrier must document a good

faith effort to obtain such information, and certify that no record

exists for that driver in that State or States" (emphasis added)).

It does not matter that the agency chose to charge Sorreda with a

critical violation (§ 391.51(b)(2)) rather than a lesser available

non-critical violation (§ 391.23(b)).   Placing the motor vehicle

record in and maintaining the motor vehicle record in the driver's

qualification file are separate regulatory requirements, and we

typically do not question the agency's enforcement discretion.

See Heckler v. Chaney, 

, 831 (1985) ("[A]n agency's

decision not to prosecute or enforce, whether through civil or

criminal process, is a decision generally committed to an agency's

absolute discretion."); Mass. Pub. Interest Rsch. Grp., Inc. v.

U.S. Nuclear Regul. Comm'n, 

, 19 (1st Cir. 1988); see

also 5 U.S.C. § 701(a)(2) (providing that "agency action . . .

committed to agency discretion by law" is unreviewable under the

APA).

          Sorreda next argues that the FMCSA acted arbitrarily in

finding that Sorreda had failed to maintain the required medical

examiner's certificates in several of its drivers' qualification

files.   See 49 C.F.R. § 391.51(a), (b)(7).    It argues that the

agency erred in crediting the FMCSA investigators' version of




                              - 7 -
events rather than Sorreda's.1 We respect the agency's credibility

determination and conclude that it is supported by substantial

evidence in the record.         Both investigators attested that medical

examiner's certificates were missing from several of the drivers'

physical qualification files that Sebor had provided.                      They also

attested   that,       while    Sebor      had   shown    the   investigators     an

unauthenticated        photograph       of   one   of     the   driver's     medical

examiner's certificates on her cell phone, she at no time during

the   compliance       review   mentioned        she    maintained    that    driver

qualification information electronically.                 They further attested

that they requested copies of the medical examiner's certificates

from Sebor and she never provided them.                  The failure to provide

evidence   at    the    time    of   the     compliance    review    that    Sorreda

maintained      medical    examiner's        certificates       in   the    drivers'

qualification files was sufficient to find that it had violated

§ 391.51(b)(7).2




      1   The investigators state that they had requested the
missing medical examiner's certificates but never received them,
while Sorreda asserts that Sebor had offered to provide copies of
the missing medical examiner's certificates to the investigators
but they refused the offer.
      2   It is irrelevant that Sorreda submitted the medical
examiner's certificates as part of its administrative appeal of
the FMCSA's decision because that does not prove they were
maintained in the drivers' qualification files at the time of the
compliance review.


                                        - 8 -
           Finally, Sorreda argues that the FMCSA arbitrarily found

it had violated 49 C.F.R. § 395.8(a)(1)(i) by failing to install

or requiring drivers to record their duty status on an electronic

logging device.      Sorreda argues that it was exempt from this

requirement under the "short-haul exemption."           See

qualify for this exemption from § 395.8, the motor carrier must

satisfy    several   requirements,     including        "maintain[ing]   and

retain[ing] for a period of 6 months accurate and true time records

showing" the drivers' hours of duty.

the compliance review, FMCSA investigators examined a sample of

sixty driver time records and found that all sixty time records

were not true and accurate.       These records pertained to three

drivers.    On appeal the FMCSA considered only the twenty-four

violations related to one driver, Matthew White, whom Sorreda fired

for violation of various policies after only three months of

employment.   Because these twenty-four violations constituted at

least ten percent of the sixty documents reviewed, the FMCSA found

they were sufficient to establish a "pattern of noncompliance"

with § 395.8(a)(1)(i), resulting in an "unsatisfactory" rating.

See

B.II(g)–(h), B.II.C(b) (defining "pattern of

noncompliance with a critical regulation").              The FMCSA did not

address the accuracy of the other two drivers' records.

           Sorreda   concedes   that   one   of   its    drivers   submitted

inaccurate records of his duty status numerous times, which was


                                 - 9 -
sufficient to find that Sorreda did not qualify for the short-haul

exemption and so was required to have its drivers record their

duty status on an electronic logging device.         Sorreda cannot avoid

its obligation to comply with the FMCSA's safety regulations by

shifting the blame to its employee for its noncompliance.            See In

re Berg Grain & Produce, Inc., Docket No. FMCSA-2010-0278, 

, at *3-4 (Nov. 5, 2015).       Nor does it matter that the FMCSA

could have charged Sorreda with a different regulatory violation

for "mak[ing] a false report in connection with a duty status."

49 C.F.R. § 395.8(e).    Sorreda still violated § 395.8(a)(1)(i) and

this enforcement decision was within the agency's discretion.           See

; Mass. Pub. Interest Research Grp., 

.

          The FMCSA's findings and conclusions are supported by

substantial   evidence   in   the    record   and   its   decision   denying

Sorreda's petition for review is not arbitrary or capricious.3

          Petition for review denied.




     3    This does not mean that Sorreda's business is shut down
permanently. It can still rectify the identified deficiencies in
its safety standards and request a change in its safety rating at
any time pursuant to 49 C.F.R. § 385.17.


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