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Archive for the ‘Transportation’ Category

Debate Over the ELD Mandate Intensifies

Posted on: October 6th, 2017

By: Parker M. Green

The debate over mandatory ELDs continues to intensify as the December 18th compliance deadline approaches. With less than 75 days until the deadline (FMG’s compliance countdown), some truck drivers are now resorting to desperate measures to voice their displeasure over the federal mandate. The best example occurred in Sacramento, CA earlier today. According to news reports, a line of commercial trucks formed a blockade across all lanes of traffic on Highway 99, which prevented other vehicles from getting around. Some of the truck drivers even completely stopped in the middle of Highway 99. The involved truck drivers call their protest “Operation Black and Blue,” which they describe as a nationwide effort by commercial drivers. It remains to be seen whether their form of protest spreads to other metropolitan areas and highways.

For additional information on the ELD mandate, please refer to the law journal article that Parker Green co-authored with fellow FMG attorneys Wayne Melnick and Matt Grattan here.  If you have any questions or would like more information, please contact Parker M. Green at [email protected].

U.S. House of Representatives Preparing to Vote on a Proposed 2-year Delay of the ELD Mandate

Posted on: September 6th, 2017

 

By: Parker M. Green

elog[1]The House could vote on a proposed 2-year delay of the ELD Mandate as soon as this afternoon. U.S. Rep. Brian Babin (R-TX) introduced the proposal – known as the “ELD Extension Act of 2017” – over the summer to postpone the December 18th compliance deadline until 2019. The proposal would amend a 2018 fiscal budget and effectively deny funding for the new ELD regulations. If adopted, the House would add the proposal to a fiscal 2018 funding bill before it proceeds to the Senate for further consideration.

The proposed delay of the ELD Mandate’s compliance deadline has been a source of contentious debate for several years. Proponents of a 2-year delay include the Owner Operator Independent Drivers Association (“OOIDA”), which argues that large sectors of the transportation industry would benefit from the extra time to implement compliant ELD systems. The key opponents of the proposal – namely the FMCSA and American Trucking Association – claim that the industry was provided more than enough time to prepare, implement, and comply with the ELD Mandate under the existing deadline.

As it stands today, the industry still faces a December 18, 2017 compliance deadline with ELD Mandate, which is barely more than 100 days away according to our countdown clock. Recent efforts to delay implementation of mandatory ELDs are poised to make the run-up to December 18th interesting. However, Congress must still act with uncharacteristic speed and efficiency for any delay of the ELD Mandate to become a reality.

For any questions, please feel free to contact Parker Green at [email protected].

Efforts to Postpone ELD Mandate Build Momentum

Posted on: July 20th, 2017

By: Parker M. Green

Legislative efforts are underway that could end up delaying the December 18, 2017 compliance deadline with the electronic logging device (“ELD”) mandate. The transportation law practice group recently created a countdown clock to the compliance deadline, which has been a source of contentious debate in the transportation industry for several years.  Now, with only 150 days until the deadline, Congress has given ELD opponents a sign of hope.

First, the U.S. House Appropriations Committee issued a report on Monday directing the Federal Motor Carrier Safety Administration (FMCSA) to “analyze whether a full or targeted delay in ELD implementation and enforcement would be appropriate and, if so, what options DOT has within its statutory authority to provide temporary regulatory relief until all ELD implementation challenges can be resolved.” The Committee passed the directive, which has been sent to the full House for consideration. As a result, the FMCSA must now provide Congressional appropriations committees with a full report on its findings within the next 60 days.  A full text of the Committee’s directive is available here

Then, only 1 day after the directive, U.S Rep. Brian Babin (R-TX) introduced the “ELD Extension Act of 2017” to the House of Representatives. The proposed bill would delay the ELD mandate’s compliance deadline by two years, or until December 2019. The bill has been referred to the Transportation & Infrastructure Committee, which represents an initial step in what is usually a prolonged legislative process. Nevertheless, the proposed bill coupled with the Committee’s directive signal growing momentum in favor of postponing the December 18, 2017 compliance deadline, if not repealing the Congressional ELD mandate in its entirety. Congress must act unusually fast– i.e., enact necessary legislation in less than 90-120 days – to officially postpone the ELD deadline.  That window would be cut in half if the FMCSA takes the full 60 days allotted for providing its “full report” on targeted and/or full delays of the ELD mandate.  Needless to say, Congress rarely (if ever) moves with the speed and efficiency required to enact legislation within those time constraints.

For any questions please contact Parker Green at [email protected].

Federal Mandate for Electronic Logging Devices Upheld in U.S. Court of Appeals’ Ruling

Posted on: November 3rd, 2016

semitrucksBy: Parker M. Green

The Federal Motor Carrier Safety Administration’s mandate requiring most commercial truck drivers to use electronic logging devices (ELD) survived its strongest legal challenge to date when the 7th Circuit Court of Appeals voted unanimously to uphold the regulation.  As a result, the transportation industry still faces a December 18, 2017 compliance deadline with the ELD mandate.  In order to comply, any driver who currently records their duty status with paper logs must install and adopt ELDs to record hours-of-service.

The 7th Circuit’s decision comes after the Owner Operator Independent Drivers Association (“OOIDA”) filed a petition seeking to have the FMCSA’s mandate for installation and use of ELDs overturned.  OOIDA presented five arguments for vacating the mandate: (1) ELDs will not record enough information automatically; (2) the ELD mandate fails to sufficiently protect drivers from harassment; (3) the benefits of the ELD mandate will not outweigh its costs; (4) the ELD mandate fails to protect the confidentiality of personal data collected by ELDs; and (5) the mandate violates the Fourth Amendment prohibition against unreasonable searches and seizures, i.e., a commercial driver’s right to privacy.  The 7th Circuit rejected OOIDA’s arguments and upheld the FMCSA’s mandate in its entirety.

As to the argument that the FMCSA’s new mandate violates commercial drivers’ rights under the Fourth Amendment, the 7th Circuit specifically held the commercial trucking industry is a “pervasively regulated industry,” and the ELD mandate (1) was informed by a substantial government interest, (2) warrantless inspections were necessary to further the regulatory scheme of the proposed regulations, and (3) the inspection program permitted under the ELD mandate provided a constitutionally adequate substitute for a warrant.  See, New York v. Burger, 482 U.S. 692, 702-03 (1987).

As such, the 7th Circuit determined the ELD mandate is not “arbitrary or capricious, nor does it violate the Fourth Amendment,” and upheld the FMCSA’s proposed regulations.  OOIDA still has the option to appeal the 7th Circuit’s ruling to the United States Supreme Court.  However, in light of the 7th Circuit’s opinion (click here), the FMCSA’s mandate for ELDs appears as if it is here to stay.  That means nearly all transportation providers have until December 18, 2017 to begin using qualified ELDs to record their compliance with the FMCSA’s hours-of-service regulations.  As the compliance deadline draws closer, transportation providers and insurers must also prepare for the liability and evidentiary implications of ELDs proliferating through the industry.

Several members of Freeman Mathis & Gary, LLP’s transportation law practice group published an article in the Georgia Defense Lawyers Association’s 2016 Law Journal introducing many of the potential legal implications to the defense of personal injury claims. The law journal article is available at the following address:  2016 GDLA Law Journal. On November 10, 2016, this author will also participate in a panel discussion on the ELD mandate during the Georgia Motor Trucking Association’s annual Fleet Expo.  For additional information on the panel discussion, please refer to the GMTA’s announcement on the Fleet Expo.

U.S. DOT Issues Guidelines for Self-Driving Vehicles

Posted on: September 27th, 2016

Red Sport carBy: Wes Jackson

On Tuesday, the U.S. Department of Transportation ushered in the long-anticipated future of transportation with guidelines for “autonomous vehicles,” or self-driving cars (available here). The policy guidance focuses primarily on “highly automated vehicles,” (“HAVs”) or those that have automated systems that actually monitor the driving environment as opposed to merely conducting some part of the driving task (such as a cruise control function). The DOT’s executive summary of the policy states that the policy “sets out an ambitious approach to accelerate the HAV revolution.”

One of the main takeaways from the guidelines is the “15 Point Safety Assessment” for manufacturers, which covers traditional automobile safety considerations like “Crashworthiness” along with new considerations unique to driverless or highly automated vehicles, such as “Object and Event Detection and Response” and “Post-Crash Behavior.” The Safety Assessment also includes an “Ethical Considerations” assessment, which will address the ethical implications that arise from programming a vehicle to make choices, for example, between the safety of its occupants or another car’s occupants. Aside from these safety guidelines, the policy also introduces a Model State Policy which, if widely adopted by the states, will lead to uniform nation-wide regulations of HAVs and avoid state-level regulatory inconsistencies that could delay widespread utilization of new automated vehicle technology.

It may go without saying, but the promise of driverless vehicles will be the biggest change in personal transportation since the invention of the motor carriage itself. But the new technology will not only change how (or if) we drive—it will also transform the existing legal framework for assigning liability when accidents occur. While it may be years before driverless cars hit the road, auto insurers, commercial carriers, and other industry participants should begin assessing how HAVs will impact the industry and steer their businesses accordingly.