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December 12, 2023 The Chair’s Corner

Current Legal Issues in the Trucking Industry

Henry Hamilton III
The year 2024 promises to be an eventful one for the trucking industry.

The year 2024 promises to be an eventful one for the trucking industry.

grandriver via Getty Images

In this issue, we tackle the ever-growing and immensely complex world of transportation law, with a particular focus on commercial motor vehicles. Transportation is integral to the nation’s economic prosperity. Without the safe and efficient transportation of goods, the nation’s economy comes to a grinding halt.

In the 2019 film The Irishman, Al Pacino, who plays Jimmy Hoffa, exclaims, “If you got it, a truck brought it to you.” He is right. If you eat it, drink it, drive it, watch it, or exercise on it, it was very likely delivered by truck.

The American Trucking Associations reported that in 2022, the trucking industry moved 11.46 billion tons of freight and generated $940.8 billion in gross freight revenues (Truck Freight Tonnage and Revenues Rise in 2022, According to Report, Am. Trucking Ass’ns (July 19, 2023)). Trucking revenues accounted for 80.7 percent of the nation’s freight bill (id.). Approximately 8.4 million people are employed in trucking-related jobs, which include 3.54 million professional truck drivers (id.). So, as you can see, trucking is big stuff.

We are experiencing revolutionary change in the trucking industry. From 2011 to 2020, the number of registered trucks increased from 10,270,693 to 13,479,382, a 31 percent increase (Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Transp., Traffic Safety Facts: 2020 Data (Apr. 2022)). With the steady increase of trucks on the road, regulators seek to better control the environmental impact of vehicle emissions and increase safety on America’s roadways. States seek regulatory changes to promote the safety of their citizens while at the same time being careful not to overregulate the thriving trucking industry. State legislatures, working with the trucking industry, also seek to make trucking companies and drivers less liable for negligence and wrongdoing. Everywhere, folks are trying to determine how technological advances will impact how our goods are delivered, how the employees/contractors who make these deliveries perform their jobs, and how citizens are protected on the nation’s roads.

If your practice involves regulatory compliance, business law, litigation, employment law, environmental law, or personal injury, it’s to your advantage to become familiar with these changes.

Federal and State Regulations

At the federal level, the trucking industry is generally regulated by three federal entities: the U.S. Department of Transportation (DOT), the Federal Motor Carrier Safety Administration (FMCSA), and the National Highway Traffic Safety Administration (NHTSA). Recent developments by these entities include increased fuel efficiency standards, changes to the electronic logging devices (ELDs) and hour-of-service (HOS) regulations, more aggressive advocacy for speed-limiting control devices and maximum speed limits for truckers, and proposed rules for automated braking and driving systems. Yes, we are moving closer and closer to the day when trucks may drive themselves. Who do you sue for damages arising from an accident involving a driverless truck? The trucking company? The software developer? These developments are more fully discussed in the pages that follow.

There has been increased activity at the state level as well. In July 2020, 15 states agreed to work toward ensuring that 100 percent of truck sales are zero-emission vehicles by 2050. Earlier this year, California became the first state in the nation, and perhaps the first jurisdiction in the world, to mandate the complete phasing out of sales of traditional combustion trucks. Under California regulation, all sales of traditional combustion trucks will cease by 2035.

Additionally, in 2019, California passed a law making it more likely for truck drivers to be classified as employees rather than independent truck drivers. The law “requires companies that hire independent contractors to reclassify them as employees unless they meet certain conditions” (Allison D.H. Soares & Lauren Suarez, Gig Worker or Employee? A $35 Business License Could Save Your Client Thousands of Dollars in Tax Fines and Interest, GPSolo eReport (Sept. 28, 2023)). At least 15 states have followed California’s lead in this area.

In October 2022, the U.S. Department of Labor announced similar plans to revise the department’s guidance on determining who is an employee or independent contractor under the Fair Labor Standards Act. Public comment ended in December 2022. The White House Office of Management and Budget is currently reviewing the Final Rule. Whether increasing numbers of the nation’s 3.54 million truck drivers are classified as independent truck drivers or employees could have a huge impact on drivers, the industry, and attorneys practicing tax law, employment law, workers’ compensation, and personal injury law, at the very least.

Safety Concerns

Major injuries and fatalities remain at the forefront of concerns. From 2011 to 2020, the number of persons injured in large truck crashes increased by 67 percent, from 88,000 (2011) to 147,000 (2020) (Fed. Motor Carrier Safety Admin., U.S. Dep’t of Transp., Large Truck and Bus Crash Facts 2020 (Sept. 2022)). In 2020, there were approximately 415,000 police-reported crashes involving large trucks; 4,444 involved fatalities, and 101,000 were considered “injury crashes” (id.).

The reaction to the increase in fatalities and injuries from crashes involving trucks has been mixed. At least one state has taken action to limit the ability of crash victims to recover damages arising from truck crashes. This year, the State of Iowa passed legislation capping at $5 million a crash victim’s right to recover noneconomic damages as the result of an accident involving a trucking company. At the same time, under its Emergency Disaster Authority, Iowa continues to waive weight restrictions for certain trucks on Iowa’s highways, even trucks carrying hazardous materials.

National regulators have been more proactive in attempting to reduce fatal accidents. In June 2023, the NHTSA and the FMCSA announced plans to require automatic emergency braking (AEB) systems on trucks. “An AEB system uses multiple sensor technologies and sub-systems that work together to sense when the vehicle is in a crash imminent situation and automatically applies the vehicle brakes if the driver has not done so or automatically applies more braking force to supplement the driver’s applied braking” (Heavy Vehicle Automatic Emergency Braking; AEB Test Devices, 88 Fed. Reg. 43,174 (July 6, 2023)). The NHTSA projects that this proposed rule, if finalized, would save at least 360 lives a year and reduce injuries by at least 24,000 annually (Press Release, Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Transp., NHTSA Proposes Automatic Emergency Braking Requirements for New Vehicles (May 31, 2023)).

In August 2023, the FMCSA announced it was interested in researching new methodologies to determine when a motor carrier is not fit to operate commercial motor vehicles (Safety Fitness Determinations, 88 Fed. Reg. 59,489 (Aug. 29, 2023)).

The Road Ahead

The year 2024 promises to be an eventful one for the trucking industry. Expect to hear discussions and/or resolutions on a variety of subjects ranging from automatic braking systems, caps on trucker liability for negligence, electronic logging devices, maximum speed limit devices, pressures to decrease emissions, and a variety of employment law developments. These developments will undoubtedly impact attorneys in a variety of law practices. ABA GPSolo is thankful for this month’s contributors and the resources they have committed to keep us abreast of these developments. Enjoy this issue. And, of course, I wish everyone safe travels on the nation’s highways. Keep on trucking.

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Henry Hamilton III is Chair of the GPSolo Division. He is a federal administrative law judge. The views and opinions expressed are his own and are not to be interpreted to be the views or opinions of any past, present, or future employer.