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Archive for the ‘Transportation’ Category

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

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

By: 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

By: 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.

Driver Risk Management Systems (DRMs) May Be Double-Edged Sword in Trucking Accident Litigation

Posted on: September 2nd, 2016

By: Barry Brownstein

What if you could watch a trucking accident that is the subject of complex litigation that could result in millions of dollars in damages? What if you could watch the driver’s conduct minutes or seconds before the accident occurred?

Video cameras and Driver Risk Management Systems (“DRMs”) have been installed in almost a half-million trucks around the United States. Major trucking companies, like Swift and Volpe Express Inc., have installed cameras in thousands of trucks to protect themselves from accident litigation. Now, with the installation of DRMs, cameras not only record what is in front of the moving truck, but also the driver controlling the truck in motion. Most cameras used in trucks are triggered by sudden changes in speed or other movement that may be an accident in progress. Some systems can even notify a driver when they are driving dangerously or burning too much fuel. Also, most cameras record in roughly ten-second increments after being triggered. By recording both the road and the driver, cameras and DRMs have become very useful for lawyers who represent transportation companies in complex and costly trucking accident litigation.

Cameras and DRMs allow an attorney and the transportation company to know what may have caused an accident that is the subject of litigation. The front-facing cameras can record swerving, illegal turns and lane changes, rate of speed, and the conduct of other drivers on the road. The driver-facing cameras, or DRMs, record the driver’s behavior, which can display signs of intoxication, sleeping, texting, and other dangerous driving habits that lead to accidents. With accident and driver footage, the lawyer and client have more information available to evaluate the case. Most importantly, the footage may show evidence of who is at fault, which is crucial in defending transportation companies from false accusations of dangerous driving. Studies also show that when drivers know they are being monitored, they avoid bad driving habits, which in turn could reduce the transportation company’s exposure to liability.

Being able to watch a recording of an accident and the truck driver involved as the accident occurred may seem too good to be true, and it could be. The benefits of installing truck camera systems could change the way accident claims are litigated, but the camera systems also raise other concerns. First, the installation of recording devices in long-haul rucks raises privacy concerns. Truck drivers spend a large part of their lives in their trucks. The drivers eat, sleep and talk to friends and family on the phone in their trucks. Some drivers believe the cameras are more for spying on the transportation employees rather than monitoring the safety of the driving. While DRMs, like Lytx and SmartDrive, claim that the cameras are not constantly recording and never viewed live, drivers are still skeptical about wide-spread system installations. In addition, there are concerns as to what exactly may be used while representing a client and who gets to view the recordings.

The concerns associated with truck cameras are similar to those involved in taxi cab cameras that have been being discussed since 2010. It should be noted that how taxi cab videos are used in litigation is highly regulated. Laws regulate how long an in-car camera can record once it is triggered. Also, all jurisdictions require that the recordings be given to the opposing party’s counsel during discovery, which could lead an injured party to file further claims against the transportation company. These are concerns that may affect the use of cameras and DRMs in long-haul trucks if the trend continues to grow.