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The FMCSA has forwarded its final rule establishing a national database (hereinafter referred to as “Clearinghouse”) of truck drivers who have failed or refused to take drug and alcohol testing to the White House Office of Management and Budget. This is the final hurdle in the rule approval process, which began in 2014 when the proposed rule was first announced as mandated by the Moving Ahead for Progress in the 21st Century Act (“MAP-21”). Although not mandated until the passage of MAP-21, calls for such a database were made as early as 2001 when a bus crash in New Orleans that claimed the lives of 22 people was attributed to an impaired driver, who managed to drive a CMV despite previous failed drug tests with a former employer.

The rule would revise 49 C.F.R. § 382 to establish the Clearinghouse. It will require employers and medical personnel to report information about current and prospective employees’ positive drug and alcohol tests, as well as any refusals to submit to the testing Clearinghouse. These rules will apply to those who operate CMVs under 49 C.F.R. § 383, as well as their Mexican and Canadian counterparts. The rule will require employers to search the Clearinghouse for positive drug and alcohol test results or refusals to submit to testing both for current employees on an annual basis, and as part of the pre-employment process for prospective employees. Employers cannot, though, run these checks without first obtaining the consent of the driver on whom the employer searches the Clearinghouse. Drivers should be aware any driver who refuses this consent cannot work in any “safety sensitive function.” Employers should also be aware all laboratories who perform DOT drug testing must file an annual summary report identifying the motor carrier employers for whom they have performed testing services to ensure employer compliance.

These requirements will also significantly affect owner-operators and the motor carriers who employ them. The rule imposes the same requirements on the employer of an owner-operator as if the owner-operator was a direct employee of the motor carrier. Independent owner-operators, though, must participate in random drug testing via a consortium or third-party drug test administrator and authorize it to submit information on any of its drivers, including the independent owner-operator themselves, to the Clearinghouse.

Under the proposed rule a driver will receive notification of when information has been entered into the Clearinghouse about them. The driver has the right to review this information and the driver may petition the FMCSA to correct inaccurate information in the Clearinghouse. Drivers will need to submit a petition within 18 months of the alleged error. However, drivers will not be able to challenge the accuracy or validity of any alcohol or controlled substance test. These procedures will only be available for clerical errors, such as attributing a positive test to the wrong driver, incorrect name or CDL number, mis-identification of the type of test performed (i.e., pre-employment screening versus random testing), and other similar inaccuracies. The driver then has to opportunity to request FMCSA to conduct an administrative review if he or she believes any decision was made in error.

Changes may have been made between the proposed version and the final version of the rule. This will remain unclear until the final version is published in the Federal Register following OMB review. Therefore, we recommend staying up to date of any changes between the rules.

These reporting and verification procedures, according to the FMCSA, would place employers in better positions to determine whether current or prospective drivers have been prohibited from operating CMVs under the DOT drug and alcohol program or pose a significant safety risk to the employer and the motoring public. FMCSA estimates the rule will cost the industry approximately $186 million annually. Despite this significant burden, the Clearinghouse will be beneficial by making roads safer by empowering motor carriers with more information regarding prospective employees, giving the carrier the ability to hire the safest drivers and reducing its own risk.

This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

The Fixing America’s Surface Transportation Act (FAST Act) has received a good deal of attention in the trucking industry since its enactment in December 2015 and it is important for the industry to continue to pay attention and think ahead beyond the Act’s 5-year plan.

FAST Act
As most of those reading this know, the FAST Act sets funding authorization levels for the Federal Motor Carrier Safety Administration (FMCSA) through Fiscal Year 2020.  The Act also mandates several rulemakings, reports to Congress, studies, and formation of working groups along with associated deadlines for compliance.

Specifically amongst the items that the FAST Act requires: 20 FMCSA rulemakings, 15 reports to congress, creation of a “Beyond Compliance” program and the establishment of several working groups to assist the agency’s implementation efforts.  Notably, the outcome, content and associated effects on the future of the industry that will stem from these 20 rulemakings, 15 reports, studies, programs, and working groups are unknown at this time.

Reactions to the Fast Act
Given Washington D.C.’s current hostile political atmosphere, the FAST Act was an unexpected bipartisan show of cooperation, and we do not disagree that the Act is progress in the right direction compared to the short-term Band-Aid funding approach that was previously in place since 2009.  However, giving Washington a pat on the back for playing nice with one another does not fill in the blanks for the substantial amount of unknown long-term effects and lack of guidance for future funding.

The 1,300 page Act allows numerous hands into the funding pot without providing a strategy or ample guidance to ensure the industry’s funding outside of the Act’s 5 year plan.  Instead, the Act allows those hands to pull from several short-term and one-time only funding sources which nearly guarantees that Washington will need to revisit this issue in the future.

On the flip side, the ATA and several other industry groups are pleased that the bill takes steps to reform the FMCSA’s CSA safety monitoring system, opens the door for the use of hair testing for federally mandated drug tests, makes it easier for veterans returning from service to enter the trucking industry and sets aside dedicated funds for important highway freight projects.  The ATA also expressed its disappointment in the Act’s failure to bridge the gap between state and federal governments- further deepening the fragmentation of the two entities.

Washington’s Conflicting Views:
For the most part, there are two reoccurring views on the FAST ACT in Washington: 1) the Act is positive for now and will promote growth over the next 5 years; and 2) the Act is insufficient and creates fear for the future.

Positive for the present: “This is a common-sense, bipartisan bill that provides our state and local governments with the certainty they need to begin to plan for long-term projects that bring our aging system into the 21st century.”- Peter DeFazio, D-Ore., House Transportation and Infrastructure Committee Ranking Member

Fear of the future: “The way the bill is paid for is simply irresponsible…..and creates terrible precedent” “Rather than leading, Congress is passing the buck by using a grab bag of budget gimmicks and poaching revenues from unrelated programs for years to come in order to pay for today’s transportation needs…..setting a bad transportation policy that undermines the user-pays principle, which has been the bedrock of investment in our nation’s highway and transit systems for more than half a century. And it sets bad fiscal policy that will actually increase our deficit in the long run.”- Senator Tom Carper, D-Del., senior member of the Environment and Public Works committee

As time progresses and more action is taken pursuant to the Act’s mandates, the long-term effects of the Act will become more clear. We are hopeful this will prompt the legislature to address any issues with future funding as they become evident well before the end of the 2020 fiscal year to avoid reverting to the Band-Aid funding approach.   It is important to watch these issues as they develop instead of being lulled into a false sense of the security that the current funding plan gives, since as of right now, it is not a permanent solution.

As stated above, the Act’s lack of guidance for the future in conjunction with the limited amount of renewable funding and the high degree of separation between state and federal governments create high odds of future industry funding chaos past 2020 if nothing is done in the meantime.   This is why it is more important than ever that the industry educate themselves and make their voices heard prior to the Act’s expiration in 2020.   Here are a few recent happenings below.

Recent Activity Involving “Unknowns”
Beyond Compliance
The Act requires FMCSA to implement a “Beyond Compliance” program no later than 18 months after the enactment of the Act. Through this proposed program, the FMCSA Administrator must allow recognition, either through credit recognized by a new Beyond Compliance Behavior Analysis and Safety Improvement Category
(BASIC), or an improved Safety Measurement System (SMS) percentile, for a motor carrier that:

(1) Installs advanced safety equipment;
(2) uses enhanced driver fitness measures;
(3) adopts fleet safety management tools, technologies, and programs; or
(4) satisfies other standards determined appropriate by the Administrator.

At this point, it appears the agency is considering adding Beyond Compliance as an eighth BASIC.  Regardless of whether it is added as a BASIC or not, those in support believe that Beyond Compliance will encourage industry members to go above and beyond the baseline compliance standards and will lead to an overall industry improvement.  Those opposed believe that the weight of technology as used in the standards listed above, on its own, should not underscore what passes for safety at the FMCSA, but instead, data that has a direct relationship with crashes should be focused on more heavily.

The FAST Act also requires that the Agency provide the opportunity for notice and comment on a process for identifying and reviewing the above- the comment session is open until June 20, 2016 and used to finalize the details of the program.    These comments will be used to finalize and implement the program.

MCSAP Allocation Formula Working Group

The FAST Act calls for the Department of Transportation/FMCSA to establish several working groups to assist the Agency’s implementation efforts.  Specifically, the DOT Secretary is required to establish a MCSAP Allocation Formula working group within 180 days of the Act’s enactment.  The DOT announced the establishment of the group on April 8, 2016- to analyze the requirements and factors for a new allocation formula.  The group has until April 8, 2017 to report its recommendations.

MCSAP is the flagship state grant program of the FMCSA that is used to maintain states’ commercial motor vehicle (CMV) enforcement programs around the country, providing critical support for state-conducted compliance investigations, roadside inspections, new entrant audits and traffic enforcement activities.

Eight of the 10 working group public members are from state CMV safety agencies. The group also includes two members from non-profit organizations representing state CMV enforcement agencies as a whole. FMCSA also appointed a panel of five employees from their agency to review all considerations submitted by the group.  While these are all appointments within the industry and pure motives are to be assumed-this is a very small group to mold the MCSAP’s future allocations and policies.

We are hopeful the Act is amended overtime to provide a sustainable funding structure for the future. In the meantime, industry members should continue to educate themselves and make their voices heard prior to the Act’s expiration in 2020.

Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

Professional truck drivers make up some of the most trained and experienced drivers on America’s highways. The highway is their workplace. But, the trucking industry wants all drivers on the road to develop safe driving habits so that everyone – truck driver or not – will reach their destination safely.

The American Trucking Association’s Share the Road highway safety program has promoted safe driving habits across the nation’s highways since 1986. With Share the Road’s elite team of professional drivers; ATA spreads the trucking industry’s life-saving message to all motorists. Last month, ATA’s Share the Road program took part in the 34th annual Lifesavers Conference to promote safe driving habits. From distracted motorists and pedestrians to new technologies and drugged driving, the Share the Road truck drivers taught safe-driving lessons and new highway safety initiatives and challenges.

On its website, ATA also offers motorists three ways to Share the Road safely. If all drivers practice these safe driving techniques, it will lead to safer roads, fewer accidents, less litigation, and we will all reach our destinations safely.

1. Following Distances: When you’re traveling behind a truck, stay about 20-25 car lengths behind it. This may seem like a lot, but since large trucks obscure visibility far more than smaller vehicles, that much room is needed so that you have enough time to react if road conditions change – such as debris thrown in the road or traffic suddenly stops. A rule of thumb is that if you can see the truck’s side mirrors, you are in a good place and distance.

2. Passing a Truck: When you pass a tractor trailer and you are moving back into its lane, make sure you can see the truck’s headlights in your rear view mirror before you cut back into the lane. This will allow the tractor trailer enough space to slow down or stop if something happens. A fully loaded tractor trailer weighs up to 80,000 pounds and can take a length of a football field to stop. Truck drivers also leave space in front of them in heavy traffic so they have enough stopping distance. The ATA encourages drivers not to fill in that space and take up that safety buffer that the driver is trying to maintain.

3. Distracted Driving: A common cause in today’s motor vehicle accidents is distracted driving, and with last month being Distracted Driving Awareness Month, ATA is calling special attention to all drivers by offering five ways each driver can maintain focus and get home safely.

• “Out of sight, out of mind.” We all want to immediately respond to a call or message, but it is best to keep your phone on silent and out of sight while driving. This will avoid temptation.
• “Never text and drive.” Very few driving habits are worse than texting and driving. According to ATA, taking your eyes off the road to send a one-word text takes at least 5 seconds. If you’re going 60 mph on the highway, your vehicle travels more than the length of a football field in 5 seconds. A lot can happen in that short 5 seconds – an animal can run in front of your car or another driver might change lanes and hit the brakes. The text can wait.
• “Be prepared to drive before getting behind the wheel.” Eat breakfast before you leave for work and read the news once you get to work. Driving is not a time to be multitasking.
• “Properly secure every item in your vehicle.” Don’t place anything on your lap or near the driver’s side floor because items can slide under your brake pedal and prevent you from stopping. You don’t want something to fall to the floor or spill while you’re traveling 60 mph down the highway.
• “Set a good example for young drivers and speak up when uncomfortable.” Young drivers have grown up in this technology-driven age and may not know the distracted driving risks. Talk to young drivers about why it’s important to stay focused and if you’re a passenger in a vehicle and the driver is distracted by their phone, say something or offer to type the text and send it yourself.

You can learn more about ATA’s Share the Road program and safe driving tips at http://www.trucking.org/Share_the_Road.aspx

Read about the Lifesavers Conference at http://lifesaversconference.org/

Anna Newell is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

April Grab Bag

With the busy summer driving season ahead of us, it would be helpful to provide updates on some of the most pressing issues of the day. These topics include the continuing battle in Congress threatening to engulf the 34 hour restart rule and gut hours of service rules to what was the law when Franklin Roosevelt resided in the White House, potential weekly hours increases, and constitutional challenges to mandated electronic logs (e-logs).

Restart Language

First, on Thursday the Senate Appropriations Committee advanced a transportation spending bill by a 30-0 vote. Even though the text of this approved bill has not yet been released, industry insiders have reported that the bill includes language to fix the flawed language from last year’s appropriations bill regarding the 34 hour restart. We have been watching the development of this process since they began last year, including the failed attempt to pass a fix under the FAA funding bill.

For review, Congress suspended the enforcement of certain 2013 proposed hours of service rules that required drivers using the 34 hour restart to reset their weekly hours have two periods between 1 a.m. and 5 a.m. in their extended off-duty period and limited the use of these extended rests to once per week. In doing so, Congress mandated that the FMCSA study the issue of whether drivers under such a regime would display “statistically significant” improvements in safety, driver health and longevity, fatigue, and work schedules over those operating under the current rules. The flaw in this language was that it failed to specify which re-start rules would be struck down if the study failed to show these improvements.

Under the approved bill passed Thursday, the current 34 hour restart would remain in place, if the study fails to show significant improvement. The question, though, of whether the early morning rest periods become mandatory remain an open question pending the results of the study.

Weekly Hours Language

In this same bill, the Senate Appropriations Committee approved hours of service language that drivers would cap time a driver could either drive or work at 73 hours per seven calendar days. This language targets the rest rules in a fiscal 2016 funding law, whose interpretation would lead to caps of 60 hours in seven days and 70 hours in eight days. This language is easily the most controversial of what has been included in this fiscal 2017 appropriations bill, as safety groups are already protesting against the measure.  No language was included in either this language or that of the 34 hour restart regarding federal supremacy over state hours and breaks laws.

E-Log Constitutionality

Recently, the Owner-Operator Independent Drivers Association (OOIDA) filed a lawsuit in the Seventh U.S. Circuit Court of Appeals, whose jurisdiction covers the states of Illinois, Indiana, and Wisconsin, challenging the constitutionality of mandatory use of e-logs. OOIDA claims that the FMCSA does not have sufficient data to show e-logs actually result in the decreased occurrence of accidents, and alleges e-log devices violate a driver’s constitutional protections from unreasonable searches and seizures because it constitutes a form of tracking and no warrant is required to view the information contained on an e-log. Indeed, the OOIDA appears to have an arguable case on the issue of whether mandatory e-logging devices constitute an illegal search.

Just last year, the Supreme Court in Grady v. North Carolina unanimously approved of its holding in United States v. Jones, which held that government installation of a GPS device on a target vehicle and using the device to monitor the vehicle’s movements constituted a “search” under the Fourth Amendment. The Grady Court stated that where the government physically occupied private property for the purpose of obtaining information, it was not necessary to inquire as to whether there was a reasonable expectation of privacy in the vehicle’s movements because the government was obtaining information by physically intruding on a constitutionally protected area. These protections, too, aren’t avoidable by the government on an argument that it is not actually invading the privacy of drivers because it only mandates they have such devices to track their own movements. The Supreme Court has on numerous occasions reaffirmed the spirit of its holding in Katz v. United States, stating that the Fourth Amendment extends even to information obtained without any “technical” trespass.

The issues in the present case filed by OOIDA will likely revolve around this issue and others, including whether drivers have any expectation of privacy to information they already keep mandatory paper logs on.

We will continue to keep you informed of the legal developments surround the hours of service language and constitutionality of mandatory e-logging devices. Be sure to keep up with our blog and follow us to stay updated on these issues and many others.

This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

Brief History of the Rule: The Federal Motor Carrier Safety Administration’s Regulation introduced the 30-minute rest break rule in December 2011, which essentially barred most commercial vehicles from driving more than 8 hours without first taking at least a 30-minute break providing minimal exemptions from the rule other than for drivers transporting explosives and hazardous materials.

To be compliant, the 30-minute rest break must appear in the driver’s logs as “off-duty” or “sleeper berth” meaning that the driver must be free of any work related obligations and cannot perform any other work related tasks regardless of whether such work exists and needs to be done prior to a driver hitting the road. Translation of this rule to most industry members= waste of the time and resources.  

(See:   https://www.fmcsa.dot.gov/regulations/title49/part/395 for full text on this rule)

Since this rule became effective in July 2013, it has been subject to controversy and has created a host of drama between the FMCSA and other industry groups like the American Trucking Association (ATA) and the Commercial Vehicle Safety Alliance’s (CVSA) discussed below.

ATA’s Scuffle with the FMCSA’s Hours-Of-Service Regulations: After the ATA’s petition to the FMCSA challenging the hours-of-service regulations to the FMCSA was denied, the ATA turned to the judicial system for their review. The U.S. Circuit Court of Appeals for the District of Columbia Circuit reviewed the hours-of-service regulations and upheld the regulations in all respects except for the 30-minute break requirement for short-haul drivers. Following the ruling, the FMCSA revised the rule to reflect the court’s decision. However, this was not the end of the disagreements between the FMCSA and the ATA and/or many other industry members. Most recently, on March 28, 2106, the FMCSA announced its denial of the application submitted by the ATA for an exemption from another hours-of-service regulation after granting several similar requests from other industry members.

Exemptions from the 30-minute Rest Break: The 30-minute rest break rule continues to be in the industry’s spotlight- especially relevant is the number of industry members that the FMCSA has deemed exempt from the rule through the avenue provided by the FMCSA’s regulations themselves.

The FMCSR’s (part 381) provides the process for industry members to apply to become exempt from the rule, which some believe the FMCSA is granting much too frequently. To qualify for an exemption from the 30-minute break rule, the FMCSA must deem that an equivalent level of safety can be maintained under the exception amongst other factors.

 CVSA’s Beef with the 30-minute rest break: The CVSA is amongst the industry members not in support the 30-minute rest break rule and have been since its enactment in 2013. In fact, if you flip through the CVSA’s online regulatory updates from 2013 to the present, the 30-minute rest break rule is consistently mentioned and it becomes obvious that the CVSA has been tracking any activity related to this rule. The CVSA maintains and provides access to a list of active exemptions issued by FMCSA as part of their membership with the CVSA- encouraging the industry’s awareness.

The CVSA believes that there is no supporting evidence that the break requirement improves a driver’s overall operational capabilities or increases safety contrary to the claims of the FMCSA; also, the CVSA does not approve of the growing amount of exemptions being granted.

The CVSA recently vocalized their stance on exemptions by filing a formal petition with the FMCSA requesting the rule be deleted. While the petition was filed in late October, it was only recently made public on a new FMCSA website that [I’m sure begrudgingly] complies with a FAST action provision providing that the agency must publish a summary of all petitions that request regulatory action and prioritize the petitions based on the likelihood of safety improvements.  (Link:https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/FMCSA_Petitions_4_1_2016.pdf)

Transport Topics discussed the CVSA’s petition last month in an article, “CVSA Asks Federal Regulators to Rescind HOS Rest-Break Requirement”. The article quotes CVSA Executive Director Collin Mooney stating that the CVSA does not object to these exemptions on an individual basis, but rather they object to the confusion and inconsistency that the numerous and frequent exemptions being granted by the FMCSA is causing the enforcement process. Specifically, the 30-minute rest break creates more difficulty for roadside inspectors and law enforcement officers to verify compliance and that if there has to be a rule it should be applied to everyone across the board. What do you think?

The future of the CVSA’s pending petition is uncertain. Is it fair to expect enforcement on only the decreasing number of non-exempt industry members? Is there potential judicial involvement ahead? Will the outcome be different now that the exemption numbers are growing? Will this lead to reform?

We don’t know, yet. Check our future blog posts for updates on the outcome of the pending CVSA’s petition.

Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

Year three is underway for Trucking Moves America Forward’s (TMAF) industry-wide movement. Since launching in March 2014, the movement has continued to create a positive image for the trucking industry – an industry that is essential to our communities and the nation’s economy.

This past year, TMAF experienced major gains in the amount of donors gained and in the movement’s visibility in the United States. At last week’s Mid-America Trucking Show, Kevin Burch, the TMAF co-chairman and president of Ohio-based Jet Express, highlighted TMAF’s accomplishments as it has ended its second year. Such achievements included:

• More than 100 trailer wraps
• Over 180 donors
• More than 2,000 web subscribers
• Nearly 35,000 YouTube views
• 24 news stories and 26 thought leadership editorials in the media
• A three-fold increase in Facebook likes, with over 8,000 currently
• Double the number of Twitter follows, with over 1,900 currently
• Targeted advertising campaigns, including one aimed at legislatures to push them to pass the highway bill.

Goals going into the third year are to continue to build TMAF’s donor base and expand its reach. For example, the trailer wraps, which Burch describes as “moving billboards,” are seen by as many as 16 million people per city, sending out TMAF’s message each day. This year, TMAF’s goal is to increase the trailer wraps to cover over 200 trailers.

TMAF’s online resources also continue to be a major presence. On its interactive website, www.truckingmoveamerica.com, individuals who sign up can access downloadable videos, advertisements, speeches, press releases, fact sheets and trailer wrap information. The TMAF e-store, www.shiptmaf.com, sells hats, shirts, tumblers and door decals to all who want to support and display TMAF’s branded gear. TMAF also recruits members and donors at trucking industry organizations such as the Mid-American Trucking Show, the Great American Trucking Show, ATA’s Annual Management Conference & Exhibition, TCA’s annual convention, state trucking association events and Great West Casualty Company events.

In TMAF’s recent press release, Burch emphasized that in order to keep TMAF’s image movement going, TMAF needs America’s support. TMAF is a long-term movement with no end date. And as the movement builds, TMAF becomes an even greater voice in supporting the trucking industry throughout the country.

This week Daimler Trucks tested what it hails as the next big step in autonomous driving. However, unlike the VW Bug shaped Google cars that capture headlines, Daimler demonstrated a three-truck platoon in public on the autobahn that is much more radical in its potential impact on the trucking industry.  This demonstration showed the trucks going from manual driving, linking up electronically, and then traveling autonomously as close as 49 feet apart.

“Platooning” links vehicles through computing and communication, allowing vehicles to “speak” with one another on a specific band set aside by Congress in 1999. Through these channels, a vehicle can inform others around it when there are changes in velocity, acceleration, or lane positioning. The platoon process begins with each truck having a driver, and the lead vehicle asks a second vehicle to join and flashes lights visible to all other motorists. Once the second truck has been linked then the process can be repeated for up to ten trucks. Each truck would have access to a video link of the visuals of the lead truck. Once connected, the drivers remove their hands from the wheel and feet from accelerator. While the conditions are ideal for platooning, the driver is to remain focused on surroundings and pilot the vehicle between lanes.

Currently, there are no federal statutes or regulations regarding platooning. However, in 2014 NHTSA released an advance notice of a proposed rulemaking and supported research reports on inter-vehicular communication. This is the opposite approach than that taken by the agency on self-driving vehicle technology, which hasn’t released authority to states to authorize anything more than testing.

Recently several states, including Missouri, have either passed legislation or introduced bills to introduce platooning programs. Under current Missouri law, the traveling distance between trucks must be at least 300 feet.  The proposed legislation would suspend the minimum following distance without substituting a new length on a 200 mile stretch of Interstate 70. This bill, if passed, would open the Missouri highway to platoon piloting programs by spring 2017. A recent Dutch report maintains platooning will be commercially viable globally as early as 2020.

These programs are important in that approximately 30-40% of longhaul fleets’ operating expenses are dedicated to fuel, and initial tests have shown that platooning makes the front truck 4.5% more fuel efficient and the rear truck 10% more fuel efficient, with cost benefits projected at approximately $14,000 per truck per year. The benefits brought by platooning could lead to a significant economic impact. Furthermore, the freeing up of driving tasks could allow a driver to better use his efforts to maintain vigilance of his surroundings and could be critical in avoiding accidents. Platooning may have other side benefits too, such as increasing road space and mitigating of the traffic accordion effect. For example, the same Dutch study estimated two trucks platooning with a nine meter gap at 60 miles per hour would effectively decrease the “size” of the trucks on the road by 46%.

While this technology is still potentially several years down the road for U.S. companies and drivers, the reality is fast approaching. States and companies would be well to encourage research opportunities to develop effective safety and operating techniques so that we can be ready when that time does come.

This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

Beginning in April Roberts Perryman will begin their webinar series. Each webinar will be between 1-1.5 hours and scheduled around noon to help busy folks kill two birds with one hour, lunch & learn.  Stay tuned for the invitation, date and instructions to join the free webinars.  Here are a few of the topics that will be covered:

• Crash Data in the Courtroom: How Technology Can Persuade a Jury
• Plaintiffs’ Attorneys Use of Reptile Theory in the Courtroom
• Jury of Our Peers (video clips of two focus groups, urban & suburban, deliberating the facts of a real case and the surprising results)
• After the Accident
• Trucking on Trial (video clips of three different Safety Directors being deposed – how to handle difficult questions and a difficult plaintiff attorney)

Additionally, if you are interested in on-site presentations, please contact Jennifer Mason, jmason@robertsperryman.com for more information.  Any requests to cover topics in future presentations can be directed to Jennifer as well.

Ted Perryman was appointed to serve on the following ATA Committees by the current Chairman of the ATA, Pat Thomas SVP of State Government Affairs for UPS:

• Communications & Image Policy Committee
• Safety Policy Committee
• Insurance Task Force
• Small Carrier Committee

Jennifer Mason was appointed to the Small Carrier Committee and serves as Ted’s proxy for the other committees. Ted and Jennifer will be attending the ATA Leadership Meeting in Washington DC the first week of May.

Jason Guerra, a partner at Roberts Perryman and Jennifer Mason, Director of Client Relations, are presenting at the Missouri Trucking Association’s 2016 Safety Conference, SuperTech Competition & Expo. Jason will be presenting ‘Trucking on Trial’ (Safety Director depositions).  Jennifer will be presenting, ‘Social Hiring:  Harnessing Social Media to Find and Recruit Drivers’.

Jennifer Mason is the Director of Client Relations at Roberts Perryman.  For more information she can be contacted at jmason@robertsperyman.com

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

Notice of High Risk

Earlier this month, Notice by the FMCSA was given in the Federal Register as to the changes to the definition of a high risk motor carrier and the associated investigation procedures.  The Notice asserts these new and improved changes will allow the Agency to hone their efforts on the carriers with the highest crash risks, stating “once in place, the Safety Fitness Determination (SFD) rule will permit FMCSA to assess the safety fitness of approximately 75,000 companies a month.  By comparison, the agency is only able to investigate 15,000 motor carriers annually [currently] – with less than half of those companies receiving a safety rating.”

Unfortunately, the Agency’s current claims to implement a “new and improved system” that will identify the riskiest carriers trigger memories from 2010 when the FMCSA implemented the CSA with the same enthusiasm, however- whether or not the CSA lived up to its expectations is a post for another day.

Is This Goodbye?

After years of voiced dissatisfaction from lawmakers and industry members alike, the Federal Motor Carrier Safety Administration has finally proposed to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to reform its current Safety Fitness Determination (SFD) rating system- the three-tiered safety rating levels of “satisfactory-conditional-unsatisfactory”, which is used to help target and monitor high risk motor carrier.

Most of you are probably familiar with this tiered rating system and have probably grumbled about at least one of its following debated flaws:

•  Frequency of Review: A motor carrier is only assigned a rating following a comprehensive on-site compliance review- for some motor carriers these happen less than once a year
• Limited Range of Data: The only information used to determine rating is the data gathered during the on-site compliance review. There is no data relating to a motor carrier’s on-the-road driving used to determine the ratings.
• Inapplicable Comparison: In determining a safety rating, motor carriers are compared with other motor carriers’ “norms” who may or may not be a motor carrier that is similarly situated.
• Lack of Authority: Often times motor carriers rated “conditional” can continue to operate in limbo without being monitored or forced to take corrective actions because there is no guiding authority.
• Availability to the Public: A motor carrier with an unsatisfactory rating based on one poor investigation- and no other outside factors- will be available to the public could cause future economic harm.

Anyways, Back to High Risk

Under the FMCSA’s new definition of high risk, the current three-tiered safety rating levels will be replaced with a single SFD: unfit. To be considered unfit renders you a high risk carrier.

A passenger carrier will be classified as unfit if they have not received an onsite investigation in the previous 12 months and if for one month they are at the 90^th percentile of two or more of the following BASICs-that are most related to crash risks:

1. Unsafe Driving;
2. Crash Indicator;
3. HOS Compliance; and/or
4. Vehicle Maintenance

A non-passenger carrier will be classified as unfit if they have not received an onsite investigation in the previous 18 months or if for two consecutive months they are at the 90^th percentile of two or more of the above listed BASICs.

The Future of High Risk

The FMCSA has granted a 60-day extension to May 23, 2016 for comments and to June 23, 2016 for reply comments. (Here is the website if you feel like chiming in: (https://www.federalregister.gov/articles/2016/03/07/2016-04972/notification-of-changes-to-the-definition-of-a-high-risk-motor-carrier-and-associated-investigation#h-8)

We can’t forget that this is still in the Notice stage and it has yet to become an enforceable Final Rule. As far as the future of the policies currently in place stand, it is unclear at this point what will transpire.   The Agency insists that they will continue to evaluate and monitor the poor performers and reprioritizing them “as needed” and also that the “new definition will not impact a carrier’s safety fitness rating, authority to operate, SMS percentiles or how the agency makes its enforcement decisions.” But, we don’t believe that is possible to predict at this point.

Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com

The start of a 2016 – for many individuals – is a time to start eating healthy and moving more. And the trucking industry is no exception. It’s not new news to those in the trucking industry that the job’s long hours of sitting and irregular sleeping habits can take a toll on a driver’s health. A driver’s unhealthy lifestyle habits may impact their overall driving career and play a role in the amount of time spent off work following an on-the-job injury.

So what is the trucking industry doing to prevent its drivers from missing work for health reasons? For starters, the American Trucking Association’s Image & Outreach Program, Healthy Fleet, is a “fun and engaging way to promote Health and Wellness in the trucking industry,” according to the ATA. In 2013, Healthy Trucker Assistance Program launched Healthy Fleet in an attempt to increase truck drivers’ life expectancy and reduce driver obesity by motivating, educating and supporting drivers in their path to a healthier lifestyle on the road. Healthy Fleet hosts challenges throughout the year that are open to the entire trucking industry. Drivers can record their daily steps and compete against other companies, groups or internally amongst their own team. Overall, the program has helped drivers achieve healthier, happier, safer and a more financially rewarding careers in trucking. See www.healthyfleet.com.

At the start of 2016, the Truckload Carriers Association (TCA), which represents nearly 700 companies working in and serving the truckload freight industry across the country, began focusing on driving wellness in order to help companies and drivers attain fitness goals. TCA Wellness, powered by Rolling Strong, is a program tailored to the truck drivers and includes health-check stations and a smartphone app that guides truck drivers about nutrition and exercise while on the road. See www.truckload.org.

TCA Wellness is meant to get truck drivers eating healthy and moving. Why? Because if truck drivers gain weight, develop sleep problems or diabetes, this weakens their ability to work, which results in less money for the driver. For the trucking companies, this means fewer drivers and more money spent on recruiting drivers. If truck drivers remain healthy, experienced drivers are not lost to employers due to health problems.

From a legal standpoint, a trucking company’s health and wellness program may reduce the cost of workers’ compensation. After an on-the-job accident, such as a motor vehicle accident, if a driver is an employee, that driver may file a workers’ compensation claim to pay the medical bills. The benefits may also cover some lost wages if the driver needs to miss work. With health and wellness programs, medical conditions that may otherwise interfere with the employee’s recovery can be prevented or reduced. A healthy truck driver results in less time recovering, which means less time off work and overall less workers’ compensation costs.

Overall, health and wellness programs motivate truck drivers to eat healthy and move more, which helps drivers live a healthier and happier life on the road. This, in turn, creates a positive impact on all aspects of the industry.

Anna Newell is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com