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The Aviation, Innovation, Reform and Reauthorization Act, which seeks to radically transform the FAA and the American aviation landscape, is complicated by several controversial provisions related to the trucking industry as well as a possible correction to a “glitch” in the wording of another trucking-related provision from the 2016 appropriations bill on hours of service rules.

First, the FAA bill has been championed as one avenue of correcting what many view as a mistake in the statutory language pertaining to the hours-of-service rules in the fiscal 2015 funding law. As previously reported by this commentator, this language is susceptible to an interpretation that if regulators are unable to prove the efficacy of the 2013 restart rules, then the entire 34 hour restart provision could be at risk. If the restart rule is eliminated, then there would likely be a rolling recap of weekly work limits of 60 hours in seven days and 70 hours in eight days. We will continue to monitor the process of the amendment of this section. Until then, companies and drivers may continue to operate under the pre-2013 rules regarding the 34 hour restart.

Secondly, the FAA bill includes other trucking-relevant clauses embodied, most importantly, in Section 611. The language of Section 611 states:

A State…may not enact or enforce a law, regulation, or other provision…prohibiting employees whose hours of service are subject to [federal] regulation…from working to the full extent permitted…or imposing any additional obligations on motor carriers…
A State…may not enact or enforce a law, regulation, or other provision…that requires a motor carrier that compensates employees on a piece-rate basis to pay those employees separate or additional compensation, provided that the motor carrier pays the employee a total sum that when divided by the total number of hours worked during the corresponding work period is equal to or greater than the applicable hourly minimum wage of the State…

This language is a strike back by certain trucking lobbying groups against a 2014 ruling by the U.S. Ninth Circuit of Appeals, finding that a California law requiring certain trucker rest and meal breaks did not violate the 1994 FAA Authorization Act. Section 611 would not affect any federal regulation, other than affirming that states and localities could not impose separate obligations of their own, which may in some cases conflict with those of the federal government. For example, consider the confusion that could be caused for drivers if their hours-of-service rules changed simply by driving across the California-Arizona border? Would the rules change upon his departure or arrival? Would it matter what the load was and/or where he or she was going? These are questions that could arise as more and more states and municipalities step in and attempt to regulate trucking where they feel there is a void.

Since the introduction of Section 611, the FAA bill has been put on hold and may not be included in a short term extension of the current FAA authorization. We will continue to monitor the progress of the FAA bill going forward, and will keep you informed as to the fate of Section 611, the hours-of-service fix, as well as monitor for any major local trucking rules changes in the event of the failure of Section 611.

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

New drivers, dust off your notebooks and sharpen your pencils. A new rule proposal from the Federal Motor Carrier Safety Administration is set to be published concerning new driver training. If put into effect, the regulation will provide a standardized driver curricula that must be satisfied to earn the privilege of driving over-the-road.

According to the CCJ, the new driver training standards have cleared the White House and will be officially published, albeit at the DOT’s discretion. The rule will create a cohesive set of standards that new truck drivers will have to surpass in order to obtain a Class A or Class B CDL license. Those who wish to drive passenger carrying vehicles, hazmat, and school buses will have a separate set of curricula.

The Federal Minimum Standards for CMV Entry-Level Driver Training (the “syllabus” if you will) was created by the Entry Level Driver Training Advisory Committee, which is comprised of drivers, motor carrier and operator associations, regulators, and other industry stakeholders who met several times to create the coursework.

The core curricula for the Class A CDL, for example, includes several sections. There is a section that provides a certified curricula for drivers (what I will call the “Classroom Work”) and a Behind-The-Wheel training requirement of 30 hours, a minimum of 10 of those hours spent on non-public roads, and a minimum of 10 hours spent on road trips. The Classroom Work will include written and instructional training on the basic operation of the CMV, the FMCSRs, inspections, road and traffic conditions instruction, driving techniques, safe operating procedures, night driving, speed management, and the list goes on. Students take numerous “units” on all of these subjects and more, with the idea that successfully completing certain units will allow the student to advance into more sophisticated principles and eventually obtain what I would guess to be a doctorate degree on the subject.

Critics voiced concern for the 30 hour requirement for the Class A CDL, citing that setting the initial hours requirements will pave the way for increasing those hours requirements when it has yet to be shown that training by hours-behind-the-wheel will produce a more effective driver than by other performance standards.

From a litigation standpoint, successful training from a “FMCSA-certified” driver training program might help in showing driver qualification and aptitude, but whether it is worth the cost – or should I say tuition – remains to be seen.

This article was written by Lesley Hall, JD, MBA, associate attorney at Roberts Perryman PC. Lesley focuses her practice on Transportation and Logistics as well as Trucking Litigation. Additionally, Lesley is third generation of a trucking family.

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

Every-Day-Industry-News:  The typical seasonal decline in freight shipments is upon us; fuel prices remain attention grabbingly low and; industry members continue the chase to keep up with Washington’s forever-evolving guidelines of the trucking industry.  While the every-day-industry-news is essential to the core of the transportation industry, it does not always spark my imagination.

What does spark my imagination: picture driving on a three lane highway, you are in the middle lane and there are delivery trucks on either side of you- you look over to your right and to your left, and both delivery truck’s driver’s seats are empty-no human driver is anywhere in your sight.  How would you react?   Recently, Google was awarded a patent that could (someday) turn this imagination into a reality.

Potential Industry-Transformation- News:  Self-Driving Delivering Trucks

Earlier this month, Google was awarded a patent that indicates they are eyeing commercial delivery technology, specifically:  autonomous commercial trucks.  This announcement followed the already present publicity associated with Google’s  ongoing development of its self-driving car program (currently being tested in three U.S. cities) and their drone delivery program-“Project Wing”-expected to launch as early as 2017 (think: AmazonPrime, crazy fast drone delivery).

The patent describes a driverless truck filled with patented safety cubicles that users would only need a credit card security code to access the ordered goods.  As for how the truck’s driverless system would work, the patent mentions some of the basic technologies Google has been using in the self-driving cars it’s been testing, such as radar, GPS, video cameras and laser range finders.

This may come as no shock to some since over the past three years, traditional carmakers and tech companies have openly accelerated their efforts to develop and sell self-operating vehicles.  For others, especially current drivers just learning of this technology for the first time, we imagine this news caused angst and/or worry about future job security.

For those in panic mode:  Keep in mind that this is just a patent and therefore may never actually hit the road and there is no guarantee that Google is planning to actually roll out a fleet of delivery trucks- so far Google has not commented on its plans for the patent.   All we know at this point is that Google is looking at a multi-pronged approach for its autonomous delivery plan and their target market appears to be geared towards delivery of individually ordered consumer goods- and not as much towards delivery of commercially purchased goods for the time being.

What is the government saying about this?

In November, Google requested guidance from the National Highway Traffic Safety Administration.  In response, the NHTSA remarkably shared Google’s view and said that the systems piloting a Google self-driving could be considered a “driver” under federal law.  The affirmation is a major step toward commercializing self-driving cars since many advocates have worried that regulatory red tape will put a halt to the technology.

However, the NHTSA went on to clarify that not all regulations as they currently stand can be applied to driverless cars-thus preventing their implementation into the transportation industry as the regulations stand.  At the end of the day, Washington policy makers-not technologists- will hold the reigns and control the speed of the future of this technology as they have with seat belts, airbags, emissions technology and electric cars- only government can provide the rules of the road and existing regulations written for human-controlled cars cannot be ignored.

Stay Tuned: The NHTSA has announced that it intends to outline a national set of rules and guidelines for deploying autonomous cars within six months-which is a good start.  Six months seems to be an extremely optimistic timeline considering the daunting amount of pioneering necessary to govern this unprecedented topic.  Regardless of the timeline, it will be interesting to see the proposed rules and guidelines when they are released.  Make sure to keep an eye on our blog for any updates.

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

Out on the road, drivers of large tractor-trailers bear a lot of responsibility and safety is a top concern. To keep fatigued drivers off the road, the Federal Motor Carrier Safety Administration developed and enforces the Hour-of-Service (HOS) regulations which place limits on how long truck drivers may drive. To track drivers’ compliance with the HOS regulations, records of duty status or driver’s daily logs are used. These logs are required for any person who is subject to the safety regulations and drives a commercial motor vehicle (CMV) as defined in Section 390.5 of the Federal Motor Carrier Safety Regulations.

From a legal standpoint, if a driver of a CMV is involved in an accident, any evidence of that driver’s fatigue goes toward the question of liability. If the driver has a violation on their daily log indicating they logged too many hours on duty without a required rest break, the fatigue argument may be made. A trucking company and its drivers’ understanding and compliance with these regulations will not only strengthen the safety of our roads, but it will also avoid issues of fatigue which often arise after an accident.

In general, the HOS regulations provide an 11-Hour Driving Limit and a 14-Hour Driving Limit that CMV drivers must follow at all times. It’s important to also be aware that there are exceptions to the following HOS requirements.

The 11-Hour Driving Limit:

An interstate property-carrying driver is allowed to drive their truck up to 11 hours. All their time spent behind the wheel of the CMV in operation is considered “driving time.” After 11 hours of driving time, the driver must have at least 10 consecutive hours “off duty” before they can drive again. In order for time to be considered off duty, the driver must be relieved of all duty and responsibility for performing work. Also, the driver must be able to leave the place where their vehicle is parked.

So, if you’re a driver and you come to work at 5:00 a.m. and drive for 7 hours (from 6:00 a.m. until 1:00 p.m.) and then take a 30-minute break; after the break, you can drive for another 4 hours, until 5:30 p.m. Then, you must have 10 consecutive hours off duty before you can start driving again. You can do other work after 5:30 p.m., but you cannot drive a CMV again until you have 10 consecutive hours off duty. See Section 395.3(a)(3).

The 14-Hour Driving Limit:

The 14-hour rule is known as the 14 hour “driving window” limit. A driver is allowed a period of 14 consecutive hours in which they may drive up to 11 hours of those 14 hours on duty. Under the 14-hour rule, a driver may not drive beyond the 14^th consecutive hour after coming on duty, following 10 consecutive hours off duty.

The 14-hour window begins the moment the driver starts any kind of work. “On duty” time includes all the time a driver is working or is required to be ready to work. Examples include time spent at a terminal or facility of a motor carrier or shipper, time inspecting and servicing the truck, time loading and unloading and all driving time. Once the driver reaches the end of the 14^th hour on duty period, they cannot drive again until they have been off for 10 hours. Do note that a driver may continue to work beyond the end of the 14^th hour, but they may not do any more driving until they have taken another 10 consecutive hours off. See Section 395.3(a)(2).

The window is limited to 14 consecutive hours, even if you have some off-duty time such as a 30-minute lunch break or nap during those 14 hours. Your 30-minute break will not extend this 14-hour period, rather the 30-minute meal break will count against the 14-hour driving window. An exception to this rule would be with drivers in the 100 air-mile radius of their work reporting location who are not required to take the minimum 30-minute breaks.

Rest Breaks:

A driver may only drive if 8 hours or less has passed since end of driver’s last off duty or sleeper berth period of at least 30 minutes. Meal breaks or other off duty time of at least 30 minutes qualifies as a break. Within the 14-hour window and 11-hour driving rule, a driver may drive a total of 11 hours during their 14-hour driving period; but, driving will not be permitted if more than 8 hours have passed since the end of the driver’s last 30-minute break. Of note, the FMCSA has exceptions to the required rest break, such as the short-haul exceptions in 395.1(e). Further, if a driver is working but not driving after 8 hours, no break is required.

Status of Suspended Restart Provision:

The FMCSA has suspended enforcement of the requirements regarding the restart of a driver’s 60-hour or 70-hour limit as required by the Consolidated and Further Continuing Appropriations Act, 2015, which was enacted December 16, 2014. The restart provisions have no force or effect through this period of suspension and such provisions are replaced with the previous restart provisions that were in effect on June 30, 2013 which allowed drivers to restart their 60-hour or 70-hour calculations by taking at least 34 consecutive hours off duty, without any additional limitations. Drivers are therefore authorized, as of December 2014, to resume use of the previous 2013 restart provisions. To date, the current suspension of HOS restart provisions will remain in place for the first part of 2016. For additional information on the suspended restart provision see last week’s blog by Andrew Laquet.

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

As part of its preparations for 2016, Congress passed the Consolidated Appropriations Act to pay for the various functions of the government in the New Year. Importantly, the $1.1 trillion spending bill has again suspended the enforcement by the FMCSA of certain 2013 hours-of-service rules.

In 2013, FMCSA required that drivers using a 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 a week. These rules were greeted with controversy, cited by opponents as being unwieldy and unnecessary but held out by proponents as creating safer roads. The enforcement of these rules was suspended in 2014 as part of the appropriations act for that year and mandated the FMCSA study the issue. The FMCSA study comparing the fatigue and safety of truck drivers using two different versions of the hours-of-service restart provisions was completed in October 2015. It is currently in its data collection phase before its submission to the Department of Transportation for its review.

What is different about the suspension of the rules this year, though, is that Congress has added guidance on what the results of the study must show in order for FMCSA to implement and enforce the 2013 hours-of-service rules. The new language in Section 133 makes it clear that for FMCSA to lawfully enforce these provisions it must demonstrate “statistically significant improvement in all outcomes related to safety, operator fatigue, driver health and longevity, and work schedules, in comparison to commercial motor vehicle drivers who operated under the restart provisions” already in effect prior to the 2013 rules.

This will be a high hurdle for the agency to clear, and the language used by Congress implies the hours-of-service rules will not be put back in place any time soon. A FMCSA official noted that these suspended rules would not be enforced without first consulting with trucking “stakeholders.” It should be said, though, that the worrying part of this legislation is that it is tied to a budget bill, and this suspension is only the law for the remainder of the year. The suspension will have to be renewed by Congress at the end of the year for the suspension to stay in force through 2017. In fact, it is likely that new rules will be formulated and sent out for notice by the end of September 2016 for them to be finalized prior to a new budget bill.

What does this effectively mean for drivers and companies? Essentially, it means drivers and companies can continue to use the original 34 hour restart rule that was in place between 2003 and 2013. Drivers can still take any 34 hour period for a restart and may utilize a restart more than once per week if necessary. Employers and drivers should also be aware that all other regulations remain unaffected, and the suspension only relates to the 2013, 34 hour restart rules. Until Congress effectively prohibits FMCSA from enacting such a provision or lifts the suspension, companies will have to keep their ears to the ground on the regulations, ensure that any electronic devices used to track hours-of-service remain correctly calibrated to prevent false notices of violations, and hope Congress does the right thing and not allow FMCSA to force drivers to work less and not further strap with red tape an industry already facing driver shortages and saddled with regulations.

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 FMCSA has a Safety Fitness Determination Rule (SFD) per mandate by Congress, but the question becomes whether the proposed system is any more effective –or less ineffective – than the old system? Is this proposal a step in the right direction or just more of the same smoke-and-mirrors as the old version? According to the CCJ, the FMCSA safety rating methodology will update on a monthly basis and will integrate data from inspections, carrier investigations, and crash reports to culminate into a carrier safety fitness rating. The SFD rule would replace the current “Satisfactory, Conditional, and Unsatisfactory” rating system with a single determination of “unfit.” An “unfit” carrier would have to improve or shut down operations, with proscriptions of returning until the maladies are mitigated. From the mists, the FMCSA further boasts a yet uncharted ability to assess the safety fitness of 75, 000 carriers a month, up from its current record of 15,000 carriers per year. Of those 15,0000, less than half receive a safety rating.

The data sources are going to be investigation results and roadside inspection/violation data as compiled and measured by the CSA Safety Measurement System in five of its seven BASICS: Hours of Service Compliance, Driver Fitness, Unsafe Driving, Vehicle Maintenance, and Hazardous Materials. The proposal excludes consideration of the Crash Indicator and the Substances/Alcohol categories. The proposed methodology uses a standard of violations in a single BASIC within a 24 month period, using a minimum of 11 inspections. If the carrier’s performance meets or exceeds the failure standard, then it fails that BASIC. A failure in any of the two BASICS will result in an unfit rating. Until a carrier fails one BASIC, it cannot be considered “unfit.” This “failure standard” will become fixed, and so one carrier’s performance will not be compared to other carriers’ performance, in contrast with the current CSA SMS. As of now, the CSA Safety Measurement System website has been restored, albeit missing the percentile scores, measures, and indications of whether a carrier’s BASICs are in alert status.

Critics argue that the new system violates the FAST Act by using the same roadside compliance data and crash statistics data that created the cause of concern from Congress. Specifically, this information simply fails to predict how safe a carrier is in relation to how safe the carrier should be. In a 2014 Government Accountability Office Report, of the 750 different types of violations in the FMCSA system, only two had sufficient data to establish a substantial and statistically reliable relationship with crash risk. Further, the fear that the different “failure thresholds” for carriers based on exposure would set different safety bars for small and large carriers. From a litigation standpoint, using data that has not been shown to correlate to a carrier’s safety creates a dangerous inference of carrier ineptitude that could be difficult to overcome.  So, what is the answer? That’s a million dollar question, but I believe that returning to the drawing board and staying there until the smoke clears may be the best recourse.

This article was written by Lesley Hall, JD, MBA, associate attorney at Roberts Perryman PC. Lesley focuses her practice on Transportation and Logistics as well as Trucking Litigation. Additionally, Lesley is third generation of a trucking family.

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

On December 10, 2015, the Federal Motor Carrier Safety Administration (FMCSA) announced that its long-awaited- highly- debated- Final Rule mandating the use of electronic recording is officially here.  Without over-simplifying the issue, the change is essentially replacing HOS log books (or RODS) with an electronic system that is built into the truck to automatically log driving hours.  An ELD monitors a vehicle’s engine to capture data on whether the engine is running, whether the vehicle is moving, miles driven, and duration of engine operation (engine hours).
The four main elements of the ELD Rule address:

• Required ELD use by all affected commercial drivers;
• Sets ELD performance and design standards, and requires ELDs to be certified and registered with FMCSA.
• Establishes heightened standard of what supporting documents drivers and carriers are required to keep; and
• Prohibits harassment of drivers based on ELD data or connected technology and associated recourse for drivers. (For more detail on this element, see fellow associate, Anna Newell’s, blog post: http://robertsperrymanblog.com/2015/12/17/review-of-the-fmcsas-new-rule-prohibiting-coercion-of-commercial-motor-vehicle-drivers/)

Regardless of your feelings about the new rule, it is important to take the time to learn the specifics, determine how they may affect you, and implement a transition roadmap ahead to ensure you stay compliant.

First Up:  Are you affected?

If you are currently required to log Hours of Service (HOS) then the new ELD mandate affects you and essentially all other CMVs (Commercial Vehicle Carriers) that operate across state lines.

However, exemptions exist for drivers who: (1) keep records of duty status in 8 or fewer days out of every 30 working days, (2) drivers in drive-away and tow-away operations and (3) truckers operating vehicles older than model year 2000.
More likely than not, you fall into the affected category and will be required to adopt and use compliant ELDs.  Now what?

Creating Your Transition Roadmap:

Your roadmap will largely depend on your current logging methods and your resources i.e.  a smaller businesses may have a tighter budget and fewer resources to implement the new technology and associated training than a large company with an in-house IT department and larger budget.

All fleets and drivers must adopt and use compliant EDLs by December 16, 2017 unless they are “grandfathered in” which extends the compliance deadline until December 2019.
To be “grandfathered in, you must have previously installed an “ELD-like” device that meets the current standards outlined in 49 CFR 395.15 for Automatic On-Board Recording Devices.   These “grandfathered in” devices may be used beyond the December 2019 deadline if they can be modified (think software update) to comply with the ELD specifications.

If you are not grandfathered in, you may choose to voluntarily use ELDs or transition as quickly or slowly as you’d like as long as you are compliant by the appropriate deadlines.

Now is the time to be proactive and form a transition strategy that works best for you!

For the full text on ELD’s click here:  https://www.gpo.gov/fdsys/pkg/FR-2015-12-16/pdf/2015-31336.pdf  Keep an eye out for further discussion on the Final Rule on our blog.

Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s’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

Roberts Perryman PC is pleased to announce a new hire, Andrew Laquet. Andrew will be located at the St. Louis office.

Andrew joins Roberts Perryman P.C. from Boggs, Avellino, Lach & Boggs of St. Louis, MO where he represented clients in all aspects of insurance defense and civil litigation. Andrew’s practice at Roberts Perryman will be focused on transportation, insurance defense and complex litigation.

Andrew graduated from Southern Illinois University School of Law. While at SIUC, he was the Articles Editor of the Southern Illinois University Law Review and won the Best Comment Award. He also had two internships for the Southern Illinois University Office of Compliance and the Union County State’s Attorney’s Office. Additionally, Andrew was a judicial extern for Judge Stephen Spomer, Illinois Appellate Court, 5th District.

“We are very happy to have Andrew join our firm.” said Mr. Perryman, Chairman of Roberts Perryman. “Andrew understands not only how to provide the kind of client service and counsel Roberts Perryman has built its reputation on, but he also has the ability and skills to grow the firm’s business. We are thrilled to have him on board.”

Roberts Perryman has been defending clients for over 50 years. The headquarters is in St. Louis, MO with offices in Belleville, IL and Springfield, MO, 1-417-771-3121, http://www.robertsperryman.com

Contact: Jennifer Mason, Director, Marketing & Communications
+1 314 421-1850 or e-mail jmason@robertsperryman.com

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has adopted a new regulation which will prohibit anyone who operates a commercial motor vehicle in interstate commerce from coercing a driver to violate certain commercial regulations. This “Coercion Rule,” which will take effect January 29, 2016, gives the FMCSA authority to take enforcement action not only against motor carriers, but also against shippers, receivers and transportation intermediaries (including their agents or representatives).

So what exactly is coercion? The FMCSA defines “coercion” as when a motor carrier, shipper, receiver or transportation intermediary threatens to withhold work from, take employment action against or punish a driver for refusing to operate in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs), Hazardous Materials Regulations (HMRs) and Federal Motor Carrier Commercial Regulations (FMCCRs). An example would be if a motor carrier terminates a driver for refusing to accept a load that would require the driver to violate the hours-of-service requirements.

The rule comes in response to complaints received by the FMCSA from commercial drivers who reported having received pressure to violate certain regulations such as the hours-of-service requirement or transportation of hazardous material, and having received threats including job termination, reduced pay and forfeiture of favorable work hours.

From a legal standpoint, commentators fear this rule may by relied on to argue that shippers, receivers and transportation intermediaries are accountable for the actions of their drivers. Or, the rule may be used as a basis of liability in every broker, shopped and logistics provider case. The new rule clarifies that a motor carrier may found to have violated the driver coercion rule if it hires an independent owner-operator who coerces one of its drivers. However, a broker who hires a motor carrier to perform transportation services will not be liable for coercion based on the actions of the motor carrier, because motor carriers are not the broker’s agents and a broker is not an employee of a motor carrier. An exception may occur if a broker exercises control over the driver and then requires the driver to violate a safety regulation. Hopefully the net outcome of this rule won’t be to create a way for plaintiffs’ attorneys to argue that an intermediary’s conduct contributed to a crash.

When the coercion rule takes effect on January 29, 2016, the FMCSA will then start accepting coercion complaints from drivers. The rule includes procedures drivers are to use in reporting incidents of coercion to the FMCSA. It also establishes rules of practice that the FMCSA will follow in response to reports of coercion, as well as describes penalties that may be imposed if entities are found to have coerced drivers. Violations of this rule may result in penalties of up to $16,000.00.

It is anticipated the FMCSA field offices will be flooded with complaints which will have to be sifted through to determine which are worthy of investigation.

The Final Rule can be found at http://www.regulations.gov/#!documentDetail;D=FMCSA-2012-0377-0100.

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

On December 4, 2015, President Obama signed into law the Fixing America’s Surface Transportation Act highway bill (dubbed the “FAST Act 2015”). The five – year, $305 billion dollar highway funding bill includes several important trucking regulatory reforms and also represents the longest termed highway bill in decades. The Act mandates a series of long-term homework projects for the FMCSA with the goal of clearing the smoke and mirrors effect from certain issues such as CSA scores, driver detention issues, and insurance matters. To save you the trouble of perusing the approximately 1,300 pages of Act (unless you’ve been eagerly anticipating the read, then consider this a spoiler alert) we’ve highlighted some important changes that directly impact our industry:

• The infamous CSA scores are no more for the time being. Much of the information contained on the FMCSA website that was previously available and that related to carriers’ performance is no longer on display. Carriers’ percentile rankings and the seven SMS BASICS are among the bulk of the data that has been temporarily removed. The bill requires the FMCSA to perform in-depth studies on issues like carriers’ crash risk and the correlation between CSA scores and the carriers’ likelihood of crashes. This study is due to be produced to Congress within 18 months of the bill becoming law. Congress has required that the FMCSA implement a “corrective action plan” before it can allow public view of the carrier information previously contained on its website.
• The FMCSA must study and provide Congress with a report on how driver detention at shippers and receivers’ facilities impede the efficiency of US freight movement, as well as the impact the detention might have on drivers’ schedules or wages.
• The FMCSA must also provide a report to Congress concerning carrier liability insurance minimums and whether they should be raised from their current values. Liability for general freight carriers is $750,000.00.
• The Act allows carriers to use drivers’ hair as a source of material for drug testing, in lieu of urine tests, but only after the Department of Health and Human Services establishes a clear guideline for hair testing. The DHHS is expected to report to Congress with some guidelines within one year.
• The rulemaking process for the FMCSA has undergone new regulations, and the FMCSA must include a “regulatory impact analysis” for each new rule it institutes, which must show the effect the rule might have on carriers of various sizes. The Act requires the analysis to utilize data that represents the commercial motor carrier industry that would be impacted by the rule.
• The FMCSA must change the rules to allow military veterans with experience driving equipment that is similar to heavy-duty trucks to more easily obtain a CDL and drive a truck as a civilian. Specifically, the FMCSA must allow their military driving experience to count towards driving skills and tests and their medical certifications could be obtained from VA doctors rather than those in the FMCSA’s registry.

For as many things as the bill included, there exists a list of things notably absent from the final, signed draft:

• The final version does not contain a measure to permit 18-21 year old CDL holders to drive interstate. The preliminary House and Senate bills included measures to let states enter into a compact to allow 18-21 years olds to cross state lines. The final version, however, sets up a “controlled study” to be performed by the FMCSA to collect data on under-21 year old drivers who are former military members and study the benefits and safety issues.
• There is no provision allowing for an increase in federal weight limits. Trucking lobbyist groups pushed for an increase from the current 80,000 pounds to 91,000 pounds and increasing the maximum allowed length of tandem trailers to 33 feet from the current 28 feet.
• The Act provides no “hiring standards” provision (thankfully). The original House highway bill had criteria that encouraged shippers and brokers to hire only carriers with “satisfactory” safety ratings. Critics of the House highway bill balked, stating that the provision would wreak havoc on a majority of small trucking companies who are “unrated” by the FMCSA.
• The Denham Amendment, promulgated by Representative Jeff Denham (R-Calif.), sought to clarify a recent court ruling issued by a federal appellate court. The Federal Aviation Administration Authorization Act (FAAA) prohibits states from enacting laws that interfere with motor carrier prices, routes, or service. However, the federal ruling last year held that a California law mandating meal and rest break for workers in the states superseded FAA. The Denham Amendment would have explicitly provided that states cannot regulate truckers who fall under federal Hours of Service regulations.
• The final bill also eliminated the provision in the Senate’s original bill that allowed tolling on existing interstate lanes and the use of toll money for use outside of the US interstate system.

Overall, the Act shows promise in paving a way for a better future for those of us in the transportation industry. We are all painfully aware of the FMCSA’s need to take the CSA score concept back to the proverbial drawing board. Hopefully the new system will provide a less harsh view of some of the more (relatively speaking) benign issues that blemish some of our reports. Improvements in CSA reporting may also help defend trucking companies sued in litigation, as plaintiffs’ attorneys often exaggerate what would otherwise be seen as relatively minor disclosures. Of course the impact of this Act may hit more forcefully once the FMCSA generates the numerous reports it has been assigned to prepare and provide and that concern very important aspects of the transportation industry. The agency has been given a hefty homework assignment and it remains to be seen whether the curve is in its favor.

This article was written by Lesley Hall, JD, MBA, associate attorney at Roberts Perryman PC. Lesley focuses her practice on Transportation and Logistics as well as Trucking Litigation. Additionally, Lesley is third generation of a trucking family.

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