Commercial Transportation

• Publication year: 2020

Commercial Transportation

Madeline E. McNeeley

Yvonne S. Godfrey

T. Peyton Bell

Elizabeth M. Brooks

Stephen G. Lowry

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Commercial Transportation

by Madeline E. McNeeley,^* Yvonne S. Godfrey,^** T. Peyton Bell,^*** Elizabeth M. Brooks,^**** and Stephen G. Lowry^*****

I. Introduction

Commercial transportation involves all of the significant forms of passenger and freight transportation across the United States. This Article surveys significant judicial, regulatory, and legislative developments in commercial-transportation law in the Eleventh Circuit during the period from January 1, 2019 through December 31, 2019. The first three areas discussed here are subject to heavy federal regulation due to their far-reaching effects on interstate commerce: trucking and other commercial motor vehicles, aviation, and railroads. This Article also touches on two additional issues: passenger transportation for hire (i.e., livery and rideshare services) and the development of autonomous-vehicle technology. While these issues are regulated primarily at the state and local levels, they interact with federal law in important ways, and autonomous-vehicle technology is poised to face ever more extensive federal regulation as it permeates throughout ground-based commercial transportation.

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II. Trucking and Other Commercial Motor Vehicles

The United States Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) was established on January 1, 2000,¹ to regulate commercial motor vehicles by "consider[ing] the assignment and maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in motor carrier transportation."² More specifically, the FMCSA is charged with enforcing federal laws and regulations, and particularly the Federal Motor Carrier Safety Regulations (FMCSRs).³ The FMCSRs "are applicable to all employers, employees, and commercial motor vehicles that transport property or passengers in interstate commerce."⁴

In addition to complying with the FMCSRs, commercial motor vehicle operators must comply with state and local laws and regulations, including obtaining and maintaining a commercial driver's license (CDL).⁵ Although issued by individual states, CDLs are regulated nationwide by the Motor Carrier Safety Improvement Act of 1999.⁶

A. Regulation

Most of the regulatory developments in 2019 affecting commercial motor vehicles (CMVs) addressed driver qualification and training requirements. On October 31, 2019, the FMCSA finalized a rule prohibiting states from "issuing, renewing, upgrading, or transferring a hazardous materials endorsement on a CDL [commercial driver's license] unless TSA [conducts a security assessment and] has determined that the holder of the CDL does not pose a security risk."⁷ Similarly, a new rule went into effect on September 23, 2019,⁸ that enables the 2018 "No Human Trafficking on Our Roads Act."⁹ Pursuant to the Act and the amended regulation, any individual who uses a CMV

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in committing a felony involving a severe form of human trafficking is banned for life from ever again operating a CMV.¹⁰ The rule takes its definition of "severe forms of [human] trafficking" from the existing definition codified in the Trafficking Victims Protection Act at 22 U.S.C. § 7102(H).¹¹ On May 6, 2019, the entry-level driver training (ELDT) regulations, called the "Minimum Training Requirements for Entry-Level Commercial Motor Vehicle operators,"¹² were amended.¹³ The amendment to the training adopts a new Class A CDL curriculum that reduces the training time and costs for commercial drivers who already have a Class B CDL.¹⁴ Finally, the FMCSA issued a rule extending the date for mandatory compliance with the 2016 rule requiring states to request information from the Commercial Driver's License Drug and Alcohol Clearinghouse about individuals before completing CDL transactions.¹⁵ Mandatory compliance was due to begin on January 6, 2020, but the FMCSA delayed that deadline to January 6, 2023, while providing that states may begin voluntarily complying as early as January 6, 2020.¹⁶

In other developments, the FMCSA amended provisions to its hours-of-service (HoS) requirements for drivers of property-carrying commercial motor vehicles.¹⁷ In particular, the amendment removed a requirement that a thirty-four-hour restart include two periods between 1:00 a.m. and 5:00 a.m. and limited use of a restart to once every 168 hours.¹⁸ Another final rule took effect on october 15, 2019, regarding the lease of passenger-carrying CMVs and the interchange of passenger-carrying CMVs between motor carriers.¹⁹ The rule, established in 49 C.F.R. § 390.403,²⁰ narrowed the definition of "lease" in the federal regulations by excluding certain contracts and other

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agreements between motor carriers of passengers that have active passenger-carrier operating authority registrations with FMCSA, thus reducing the number of passenger carriers and passenger-carrying CMV trips that are subject to the requirement of entering into a lease and interchange agreement.²¹ This same rule suspended 49 C.F.R. § 390.5²² indefinitely.²³

B. Recent Cases

The United States Court of Appeals for the Eleventh Circuit published an opinion in 2019 addressing a litigant's standing to sue the federal government—here, the FMCSA. In Flat Creek Transportation, LLC v. Federal Motor Carrier Safety Administration,²⁴ a commercial trucking company sued the FMCSA alleging it "had unfairly targeted [the trucking company] for compliance reviews and used an unsound methodology."²⁵ The appellate court held the company's allegations did not satisfy the injury-in-fact requirement for standing under Article III of the U.S. Constitution.²⁶

The FMCSA uses a rating methodology to quantify carriers' safety-fitness performance.²⁷ Included in this assessment is a review of seven metrics: "(1) unsafe driving, (2) fatigued driving, (3) driver fitness, (4) controlled-substance and alcohol usage, (5) vehicle maintenance, (6) hazardous-material compliance, and (7) crash history."²⁸ If a non-passenger carrier has not received an onsite investigation and scores high in two out of the seven categories, it receives a "High Risk" designation, which can lead to more in-depth investigations and compliance reviews.²⁹ Here, Flat Creek claimed it received false and misleading scores and was subject to "an unusually high number of [compliance review] interventions," because the FMCSA was prejudiced against it.³⁰ Importantly, however, after the FMCSA's compliance reviews, the carrier never had a review that resulted in less than a "Satisfactory" rating—the highest possible rating.³¹ The carrier filed a

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declaratory judgment action seeking injunctive relief to prevent FMCSA from conducting more investigations and compliance reviews of it.³²

The Eleventh Circuit determined that the carrier had suffered no injury-in-fact, as required for Article III standing, because its final reviews all resulted in a "Satisfactory" rating.³³ Flat Creek additionally argued that FMCSA would use future reviews as a pretext to fabricate regulatory violations and shut down its operations, but the court determined the risk of Flat Creek being designated a "High Risk" carrier in a future assessment and subjected to increased likelihood of performance reviews was too conjectural and hypothetical to constitute an injury.³⁴ The court also held the threat of a future "High Risk" designation was not sufficiently imminent, as FMCSA regulations prohibited the agency from even conducting another assessment for another eighteen months after its most recent onsite inspection.³⁵ Because there was no concrete and imminent injury, the carrier lacked Article III standing and the federal courts lacked jurisdiction to address its claims.³⁶

Although no other notable opinions were published in 2019 related to commercial motor vehicles, the Middle District of Georgia issued an unpublished opinion relevant to determining whether and how to impose sanctions for spoliation of evidence. In Allen v. Sanchez,³⁷ an individual whose vehicle was struck by a truck driver sent a spoliation letter to the trucking company shortly after the wreck directing it to preserve driver logs, inspection reports, and other evidence. The plaintiffs then requested those documents during discovery, but the defendant failed to produce them and made only a partial production after the plaintiffs filed a motion for sanctions.³⁸ The district court found that the defendant had, indeed, spoliated the evidence.³⁹ To determine whether sanctions were warranted, the court went on to apply a five-factor test:

(1) whether the movant was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the alleged spoliator acted in

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good or bad faith; and (5) the potential for abuse if expert testimony about the evidence is not excluded.⁴⁰

The court found the first three factors were established as a matter of law and the fifth factor was not at issue in this situation, but concluded the question of whether the defendants acted in bad faith was a question of fact for the jury.⁴¹ The court ruled that the jury would be tasked with determining whether the defendant acted in bad faith when it spoliated the evidence and that such spoliation can give rise to a rebuttable presumption that the evidence was harmful to the defendant's position.⁴²

III. Aviation

Federal courts and statutes shape most of the legal landscape regarding commercial aviation, even at the state level. Regulations promulgated by the Federal Aviation Administration (FAA),⁴³ as well as international treaties,⁴⁴ provide the structure for almost every aspect of commercial aviation and preempt state or local attempts that may conflict or be...